People v. Roberts

• Decision Date: 29 November 1966
• Docket Number: Cr. 3945
• Citation: 246 Cal.App.2d 715,55 Cal.Rptr. 62
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Wallace ROBERTS, Defendant and Appellant.

Page 62

55 Cal.Rptr. 62

246 Cal.App.2d 715

The PEOPLE of the State of California, Plaintiff and Respondent, v. Wallace ROBERTS, Defendant and Appellant.

Cr. 3945.

Court of Appeal, Third District, California.

Nov. 29, 1966.

Hearing Denied Jan. 25, 1967.

Frank Duncan, Los Angeles, for appellant.

Thomas C. Lynch, Atty. Gen., by Raymond M. Momboisse and Daniel Kremer, Deputy Attys. Gen., Sacramento, for respondent.

PIERCE, Presiding Justice.

The appeal is from a conviction of first degree murder.

The contentions ably presented will be discussed under captions below. One question is whether a visit to and search of defendant's apartment was made with defendant's knowledgeable consent. Credible, substantial testimony by the police officers involved would have justified the jury in finding that it was. Before incriminating evidence was discovered as a result of the search defendant was questioned. These questions and the answers thereto were properly admitted at the trial. At that time defendant was a suspect but not one upon whom suspicion had focused as a prime suspect. (See People v. Dorado, 62 Cal.2d 338, 347, 42 Cal.Rptr. 169, 398 P.2d 361.) He was not under arrest. As soon as incriminating evidence (money undoubtedly stolen from the victim) was found, defendant was advised of his 'constitutional rights'; his right to remain silent and his right to an attorney. He was not expressly informed that any statement made could be used against him, nor was he advised of his right, if indigent, to have an assigned attorney whom he could have present during the interrogation. Thus the warning given was sufficient under Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, as interpreted in People v. Dorado, supra, but it was insufficient under Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The Miranda rule, as a federal mandate, applies only to cases tried after its date, June 13, 1966. (Johnson v. State of New Jersey, 384 U.S. 719, 733, 86 S.Ct. 1772, 16 L.Ed.2d 882, 892.) This case was tried before that date. The California Supreme Court, however, has not determined whether the more exacting warning required under Miranda shall be made retroactive. This it may do under language in the Johnson decision. ¹ But under the facts of this case we need not determine whether admission into evidence of defendant's extrajudicial statements was error. Defendant did not confess. His statements intended to be exculpatory were inculpatory. Error, if any, was non-prejudicial. His guilt proved by legally admitted evidence is beyond rational question. There has been no miscarriage of justice. We find no other error. We will affirm the judgment.

At 11:25 p.m. on the night of February 3, 1965, a state janitor, T. J. Anderson, was discovered lying unconscious in a small photographic darkroom in the corner of a larger reproduction room (Room 50) in the basement of the State Public Works Building in Sacramento. He was discovered by his foreman, George Smith. Anderson lay in a pool of blood. A hammer was imbedded in his head. He died from the wounds five days later.

Immediately following the discovery of the victim, police officers were called and an investigation began. The following facts were learned: a brown leather wallet containing cards bearing the victim's name--but with no money in the wallet--was found in the darkroom. Anderson had a reputation among his coworkers, including defendant, for carrying comparatively large sums of money.

Defendant was also a janitor employed in the Public Works Building and was at work that night. It was proved at the trial that Anderson had had six $20 bills, two $5.00 bills and a few $1.00 bills on his person immediately before going to work that afternoon. Evidence of this was unassilable and is undisputed. Through information obtained of the habitual steps Anderson took in the performance of his janitorial duties, the officers were able inferably to place the time of the attack on Anderson at a time shorting after 9 p.m. These circumstances were: the victim usually took a lunch break between 8:30 and 9 p.m., commencing his janitorial duties in Room 50 thereafter. Only a very little of the post-9 p.m. work had been accomplished. Shortly after 9 p.m. janitor William Dungan borrowed some cleaning equipment from Anderson's cleaning cart which was customarily left outside the room he was cleaning and which that night Dungan found outside Room 50. When he returned the borrowed cleaning equipment at approximately 9:30 p.m., he looked inside Room 50 but did not see Anderson there. He did not look inside the darkroom, the door to which was closed. Defendant produced as a witness janitor Meyer who testified to a conversation with Anderson. He fixed the conversation as being on the night of the assault and the time as being at 10 p.m. The prosecution challenged and materially weakened the credibility of Meyer's testimony. On cross-examination he admitted talking with his foreman, George Smith, about this incident, one or two days after the assault. During that conversation he acknowledged he may have told Smith 'to avoid any argument' that he thought but was not certain he had seen Anderson. On rebuttal Smith testified categorically Meyer had admitted doubt as to the night when he had seen and talked with Anderson. He also admitted being upset over a condition affecting his son.

We turn now to what is known of the movements of the defendant on the night of February 3. His duties were to clean the restrooms of the first, second and third floors of the 'new annex' of the Public Works Building. His habit was to eat at the second-floor lunch room between 8:30 and 9 p.m. He was not seen by any of the other janitors there that night, although he testified he had been there with two of them.

At approximately 9:20 p.m. defendant was observed running along the fifth floor hallway of the building by another janitor, Jeffrey Wood. Defendant at that time was clad In a dark sports shirt and light work trousers. He appeared very excited. Wood called out to him: 'How's it going.' Defendant replied: 'So so,' without breaking stride. Defendant's duties did not call for him to be on the fifth floor and Wood had never seen him there before.

Between 9:30 and 10 p.m. defendant appeared at the door of the first floor 'hopper' room where janitor, Thomas Bennett, was cleaning his tools. He told Bennett he had spilled Clorox on his clothes and asked Bennett whether it would take the color out of the clothes. Bennett told him that it would.

At about 9:30 p.m. defendant entered the second floor restroom. Janitor Tyrese Fegan was already there. Defendant told Fegan he had 'wasted some Clorox' on himself. His explanation: "Terry,' he says, 'I been calling and talking on the phone with a girl and,' he said the girl had him so nervous he had wasted Clorox on himself.' Fegan noticed there were spots down both legs of defendant's trousers. At the trial Fegan identified the trousers and black sports shirt theretofore established to be the clothes defendant had been wearing when at work that night. Defendant informed Fegan he had another pair of trousers in the 'hopper' room. Fegan suggested to defendant that he change his clothes and rinse out the pair of trousers which were spotted with bleach. Defendant did so, changing into a dark pair of trousers. He also took off his black sports shirt and put on a white T-shirt. Defendant then washed out the trousers he had been wearing and put them on a hanger. He then left the room.

Shortly after Anderson had been removed to the hospital, the building personnel were assembled by the police in a basement locker room. The clothing of each man was examined; each was asked whether he had changed his clothing that night. When an answer was in the affirmative an inspection was made of the clothing indicated. Defendant was questioned first. He was then wearing the dark trousers into which, according to janitor Fegan, he had changed earlier. He denied that he had changed his trousers; untruthfully stated he had worked in the dark trousers and T-shirt all evening.

Defendant left the building at approximately 1:30 a.m. On leaving the building he picked up and took with him a hanger on which the wet trousers and the shirt he had been wearing earlier were hung.

Thereafter, during the interrogation of the other personnel carried on by the police officers, the latter learned that appellant had, in fact, changed and washed his clothing.

At approximately 4 a.m., Sacramento Police Officers Tipton and Sickles proceeded to defendant's home to speak to him. They knocked and received no response. They remained in the vicinity and kept the house under observation until relieved by Officers Kunz and Relles.

The information the latter officers had at that time, obtained either at the police station or from the officers whom they were relieving, was that a man had been beaten; that his wallet had been found and that it was empty; and that the person whose apartment they were watching was known to have washed out some clothing at the place where the incident ha occurred and after it had occurred. Uncertainty exists in the record whether these officers also knew that defendant, when questioned at the state building, had denied the change of clothes. The officers did not have a warrant for the arrest of defendant and did not have a search warrant.

Kunz and Relles waited and watched for approximately an hour and then (at approximately 9 a.m.) knocked at the door of defendant's apartment. Receiving no response, they went to the adjacent apartment of June Wright, the landlady of the apartment house. By telephone the officers informed the police department they had knocked without response and they intended to enter defendant's apartment. Mrs. Wright accompanied them to defendant's apartment with a passkey. Before entry by that means the officers knocked...