People v. Redmond

• Decision Date: 05 August 1969
• Docket Number: Cr. 13093
• Citation: 71 Cal.2d 745,79 Cal.Rptr. 529,457 P.2d 321
• Court: California Supreme Court
• Parties: , 457 P.2d 321 The PEOPLE, Plaintiff and Respondent, v. Lawrence Wayne REDMOND, Defendant and Appellant.

Page 529

79 Cal.Rptr. 529

71 Cal.2d 745, 457 P.2d 321

The PEOPLE, Plaintiff and Respondent, v. Lawrence Wayne REDMOND, Defendant and Appellant.

Cr. 13093.

Supreme Court of California In Bank.

Aug. 5, 1969.

David C. Marcus, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen. and James H. Kline, Deputy Atty. Gen., for plaintiff and respondent.

PETERS, Justice.

Defendant appeals from a judgment of conviction of burglary in the first degree entered after trial without a jury. ¹ (Pen.Code, §§ 459, 460.)

Mrs. Bertha Worcester, aged 79, resided with her husband, aged 78, at 4908 West 134th Place in Hawthorne. Her testimony may be summarized as follows: On April 14, 1967, pursuant to a request by her or her husband to the T.V. Mart, a television salesman came to her residence to discuss the possible purchase of a television set. They talked in the house for about three quarters of an hour. He was a large man, six feet, 180 pounds, and he was wearing a black and white tweed sports coat. Mrs. Worcester was not asked and did not state in which room or rooms the conversation occurred.

The following day about 9 p.m., she and her husband were seated in the living room watching television, and she saw a man standing in the living room. The man's entire face was covered with a white mask. When asked to describe the man, she said: 'Well, he was about the same build as the man that had been there discussing televisions.' He had a screw driver about five or six inches long in his hand. He stated that he knew that they had $600 and that he wanted it. She denied having the money, and he continued to demand it. After about 15 or 20 minutes she went into her bedroom, obtained her purse, and upon returning to the living room she gave the man the money in the purse, about $10. Her husband reached for his cane, and the man 'dug this screw driver into my husband's left hand, made two places where it bled profusely.' The man then took the cane, hit her across the back of the head with it and then pushed her down on the floor. Subsequently, Mrs. Worcester went to a hospital for treatment.

She also said that the defendant resembled the robber and that the robber was wearing the same coat as the television salesman.

Upon cross-examination Mrs. Worcester stated that on April 29 she had visited a lineup at a police station. She was asked whether she had not told the officers there that the defendant did not seem as big as the person who was in her house on April 15 and that she could not identify him. She stated: 'Your Honor, that's a hard question for me to answer. It needs a little explanation of answer.

'THE COURT: Answer it with an explanation.

'THE WITNESS: When we was taken down to the station for identification, I recognized across the eyes, and I recognized the voice, but the hair had been cut short to the head, and he had on blue denim work clothes instead of street clothes, which made a little difference, but I told Sergeant Hoffman that the voice and the eyes, I was quite sure.

'Q BY MR. ARTHUR: Well, when you relate to the eyes, you didn't see the color of the person's eyes that was in your house at all on the 15th of April, did you?

'A No, I'm not talking about the color of the eyes. I'm talking about the expression.

'Q Well, you have indicated to the Judge that whoever was in your house on Friday, April 15, had a white type mask on covering his entire face?

'A That's rights, yes, sir.

'Q Court you see through that mask?

'A No, sir.

'Q Well, then, what are you relating the eyes to, the expression, if you couldn't see through the mask in relation to the identification lineup you went to?

'A Well, he had the mask on when he broke in. He didn't have it on when I went down for identification.

'Q I understand that, but I will ask again. You could not see his eyes or any squinting going on about the eyes at the time that you were burglarized, isn't that correct, because of the mask?

'A Well, there is an expression across the eyes that I recognized, and I recognized the voice very definitely.

'Q All right. Now, didn't you tell one of the investigating sheriffs that this person, that is, the defendant, that you saw in the lineup, was not as big, not as heavy?

'A Well, we said he didn't look as heavy as he did in his street clothes.

'Q Isn't it also a fact that you told whoever the officers were there at that time that you could not even identify Mr. Redmond as being in your house the previous day, Friday, the 14th?

'A I said the expression across his eyes and his voice was identical, but the street clothes made him look larger than the clothes he had on that night.

'Q All right, but isn't it a fact now--please listen to my question--that you told an officer or officers that you could not even identify Mr. Redmond as being the TV salesman that was in your house the Friday before the burglary?

'A I didn't say definitely. I said I wasn't sure.

'Q You said you were not sure whether he was in your house or not on Friday the 14th, is that correct?

'A I said I wasn't quite sure it was him outside the eyes and the voice was the same.

'Q Describe exactly, if you will, please, what you told me and what you told the officers concerning the eyes.

'A Well, I said there was an expression across the eyes that I noticed resembled Mr. Redmond's.

'Q All right. Now, what expressions, if you can break that down a little bit, please.

'A Well, I'm afraid that's hard to do. I'm afraid I can't.

'Q In other words, your identification is based upon a voice similarity and some expression in the eyes that you state that you caught when the man that burglarized your house had a white mask on, is that correct?

'A Yes, sir. * * *

'Q And I ask you to search your memory again. Is it not a fact that at the lineup, at the showup, you stated to an officer or officers that you were unable to identify Mr. Redmond, saying that you thought the suspect was bigger, but the voice sounded somewhat the same?

'A Yes.

'Q Is that about what you said?

'A Yes, sir.'

Mrs. Worcester said that the first time she gave a description to the police of her assailant was at the time of the lineup.

An officer also testified regarding the April 29 lineup. He stated that after receiving information from the Worcesters pertaining to the T.V. Mart, he learned that defendant was one of the firm's two salesmen; that on April 29 he asked that defendant be sent to a police station; that when defendant arrived and was asked about his house calls in the area generally he said he could not recollect specific ones and that he made about 200 calls per week; that defendant was not asked whether he had visited the Worcesters' address; and that defendant who was not under arrest said he 'would like to do anything he could to clear up this matter' and agreed to participate in a lineup and to give his fingerprints.

The officer testified that the lineup occurred in one room with the Worcesters in another on the other side of a one-way mirror. According to him, Mrs. Worcester said that the 'defendant's features around the eyes were the same as the suspect's,' that the features in the area of the nose and cheekbones were the same as defendant's, that 'the voice sounded the same as the suspect's voice,' and that the assailant's hair was brown and longer. The officer also testified that the Worcesters could not identify defendant either as the television salesman who had been at their home on April 14 or as the assailant on April 15.

The officer further testified that at the time of the lineup Mrs. Worcester said that the color of the tweed sport coat was brown and did not say that it was black and white. Defendant was released after the lineup.

Mr. Worcester was ill at the time of trial and did not testify. Another officer who apparently investigated the robbery on the date of the crime or the next day said that there was 'some confusion' as to whether Mrs. Worcester was struck by a cane or was shoved, that the police report states she was shoved and hit her head on a door, that although Mr. Worcester had bruises on his hands, he denied that the assailant touched him or hit him, but that on a subsequent occasion Mr. Worester said he did not know if he had been struck by an object and could not recall, he was too concerned about his wife.

There was also evidence that between April 15 and April 16 a clasp on the bottom of a screen to the window of the Worcester bedroom was broken and the screen bent up. Defendant's fingerprint was found on the inside window sill of the bedroom.

Defendant testified that he began working for the T.V. company about January of the year, that on April 14 he visited the Worcester home in response to a call concerning a T.V. set, that his conversation was mostly with Mr. Worcester and consumed about 20 minutes, that the price he quoted on television sets ranged from $318 to $350, that during the conversation they had first talked about consoles and table models, that he thought maybe he could sell them a portable and suggested that they keep their set, that they could install a two-set coupler from which an antenna would run to the portable set, that he went into the Worcester bedroom to show Mr. Worcester how a portable could be attached to the antenna by use of a coupler on the inside of the window, and that he recalled touching the window sill when he leaned back and asked Mr. Worcester, 'What can we do to make a deal?' The deal was not made, and they returned to the living room.

Defendant claimed that he was working at 9 p.m. on Saturday evening, April 15. He said he owned several sport coats, most of which were in solid colors and that he had only one tweed sport coat, which was powder blue.

Defendant's parents testified that their son lived with them, that he went to college in the morning and then worked from 1 p.m. to 9 p.m. at the T.V. Mart, that they were familiar...