People v. Ross

• Decision Date: 09 October 1969
• Docket Number: Cr. 14613
• Citation: 81 Cal.Rptr. 296,276 Cal.App.2d 729
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Johnny Lewis ROSS and Larry Randolph Hygh, Defendant and Appellant.

Page 296

81 Cal.Rptr. 296

276 Cal.App.2d 729

The PEOPLE of the State of California, Plaintiff and Respondent, v. Johnny Lewis ROSS and Larry Randolph Hygh, Defendant and Appellant.

Cr. 14613.

Court of Appeal, Second District, Division 5, California.

Oct. 9, 1969.

As Modified on Denial of Rehearing Nov. 6, 1969.

Hearing Denied Dec. 3, 1969.

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

Albert D. Silverman, Canoga Park, under appointment by the Court of Appeal, for defendant and appellant Larry Randolph Hygh.

No appearance for defendant and appellant John Lewis Ross.

REPPY, Associate Justice.

Defendant Hygh and a codefendant, Ross, were each charged by information with two counts of robbery in violation of Penal Code, section 211, with two counts of kidnapping for the purpose of robbery in violation of Penal Code, section 209, and defendant Ross was charged with receiving stolen property in violation of Penal Code, section 496. After a second trial by jury (following an initial mistrial because the jury was unable to reach a verdict) each defendant was found 'guilty' of both of the robbery counts and the degree was set as first; each defendant was found 'guilty' of one but 'not guilty' of the other kidnapping for robbery count; and defendant Ross was found 'not guilty' of the count for receiving stolen property. The trial judge reduced the guilty verdict of kidnapping for robbery to a violation of Penal Code, section 207, as a lesser but necessarily included offense. Each defendant was sentenced to the state prison for the term prescribed by law on one of the robbery counts. The court stayed execution of judgment on the remaining two counts (robbery and kidnapping), such stays to become permanent upon the completion of time served under the robbery count. Both defendants filed timely notices of appeal. However, defendant Ross did not file an opening brief, and we dismissed his appeal under rule 17(a) of the California Rules of Court on September 6, 1968. Defendant Hygh appeals from the judgment of conviction and from the denial of his motion for new trial.

Defendant Hygh (hereinafter, defendant) raises a number of legal arguments on appeal, which we take up Seriatim with a concurrent exposition of the facts relevant to each argument.

1. The prosecution's primary eyewitness was improperly 'primed' by the arresting officer before testifying. We conclude he was not.

On March 2, 1967, four Negro males entered a men's clothing store on Pico Boulevard in Los Angeles. One of them put a gun in the back of a salesman, Robert Jaeke, and ordered him and the store manager, Leon Marks, to lie face down on the floor. Both Jaeke and Marks obeyed. Then the man demanded that the manager open the back door. He did and returned to his prone position on the floor. This same man instructed Jaeke and Marks, 'Keep your head (sic) down or we'll blow your head (sic) off.' Both Marks and Jaeke could hear clothing being removed from the racks and carried through the rear door.

At the second trial, which is the consideration of this appeal, Jaeke testified that he was able to directly observe the man who had placed the gun at his back and had been the principal speaker for an accumulated time of 10 minutes, and he made an unequivocal court room identification of defendant as that man. On cross-examination, Jaeke testified that within a few days after the robbery (following two line-ups wherein he was unable to identify anyone as a potential suspect) ¹ he pointed out defendant from a group of 10 pictures. Upon further cross-examination, Jaeke revealed that before he had testified at the first trial the arresting officer, Sergeant Meckle, had showed him a photograph of defendant, apparently to refresh his recollection about his earlier out-of-court photographic identification. However, Jaeke stated that this had had no effect on him because '* * * I knew before.' Jaeke also testified that Sergeant Meckle had further pointed out to him that defendant's hair style was different at the trial than at the time of the robbery. Again, Jaeke indicated that this had had no effect on him because '* * * I could see that.' ²

Defendant's contention must fail because he has not been able to demonstrate how the asserted 'priming' led to an unreliable identification at the second trial. There is absolutely no indication that the related circumstances might have been factors in Jaeke's identification of defendant either at the first or second trial. (Cf. People v. Bolt, 265 Cal.App.2d 614, 615--616, 71 Cal.Rptr. 511.) Indeed, there is quite a bit of evidence to the contrary. Jaeke identified defendant from the group of photographs within a few days of the robbery. He denied that Sergeant Meckle's redisplay of a picture of defendant prior to the first trial affected his judgment at the second trial. At the second trial he unequivocally identified defendant as one of the robbers. Defense counsel made use of a lengthy cross-examination of Jaeke to try to demonstrate his lack of ability to remember or his propensity to testify to something which was not within his memory. It is clear that the jurors believed that Jaeke's identification was accurate. We must allow them to be the sole judges of the witness' credibility and reliability. (People v. Alonzo, 158 Cal.App.2d 45, 47, 322 P.2d 42; see also People v. Sanders, 217 Cal.App.2d 606, 610, 31 Cal.Rptr. 707.)

2. The trial judge abused his discretion in denying defense counsel permission to use a particular 'test instance' ³ in the cross-examination of the witness Jaeke. We conclude he did not.

During the cross-examination of Jaeke, defense counsel attempted to utilize a 'test instance,' i.e., an in-court test of the witness' ability to observe and recollect a fact not material to the case being tried but illustrative of his general ability to observe and to later recall and relate his observations. Jaeke was asked by defense counsel concerning his recollection as to who were the court personnel at the first trial. At one point, when he was being asked if he would stand by his statements, after Jaeke had stated as to the present court clerk's previous presence in court, 'I'm not positive, but I think so,' and again, 'I am quite sure about him but I am not positive,' the trial judge interceded and directed defense counsel to desist from asking any more questions in this area on the ground that the criteria (i.e., the particular 'test instance') desired to be used to measure the witness' ability to identify and recall was unfair and invalid. Defendant's counsel then made an offer of proof that the clerk of the first trial was a female Caucasian and that the current clerk was a male Negro. He argued that this evidence was highly probative on two defense points: 1) the inability of the witness to accurately remember the identity of a person he had seen previously; and 2) his propensity to testify with considerable assurance that he remembered a fact when the average person in a similar circumstance would admit unequivocally that he was not positive. The trial judge explained, in effect, that he was not allowing use of the proposed 'test instance' on the ground that the question put to Jaeke was confusing, because there was an occasion other than the two trials on which Jaeke had been in court when the current clerk had been on duty; that the question would not fairly test Jake's powers to observe and remember faces. ⁴ Further, the trial judge felt that the court clerk in a trial was not someone that Jaeke, as a layman, would remember (compared with the robber in the store committing the crime in his presence) and that this further indicated that the proposed 'test instance' was inappropriate criteria to measure the witness' ability to observe and recollect.

The general rule in this area has been stated as follows: "The authorities all agree that wide latitude should be allowed in cross-examination for the purpose of testing accuracy or credibility, ⁵ especially if the witness is a reluctant one or is hostile, or if he is one of the parties in interest, Or is a witness against a defendant in a criminal prosecution. The court has, however, discretionary power over cross-examination which will be disturbed on appeal only in case of an abuse thereof. Thus the court may confine an examination within reasonable limits, and May curtail a cross-examination which is unduly protracted, frivolous, or which relates to matters which are irrelevant, admitted or have already been fully covered. (Emphasis added.)" (People v. Whitehead, 113 Cal.App.2d 43, 48, 247 P.2d 717, 720, quoting 27 Cal.Jur. 96, Et seq.)

Considering the factors involved in the instant case, we cannot say, as a matter of law, that the trial judge abused his discretion by not allowing defense counsel to ask further questions about the clerk and to prove the difference between the two clerks. 'In proving the falsity of * * * a test instance erroneously recollected * * * it is * * * common to exclude Extrinsic testimony. Nevertheless, in simple cases, where the effect might be important this ought to be admitted. There is no propriety in a hard-and-fast rule; and the trial Court should be conceded a discretion.' (3 Wigmore, Evidence (3d ed. 1940) § 995, p. 638.)

3. A confession and certain following admissions made by defendant to Sergeant Meckle were erroneously admitted into evidence because defendant's right to remain silent had been abused. We hold that there was no error as to the confession and that any error as to the subsequent admissions was waived or was harmless.

On March 14, 1967, Sergeant Meckle and Officer Brown picked up defendant at the 77th Street police station to transport him to the Wilshire station pursuant to an arrest warrant. Sergeant Meckle advised appellant of his constitutional rights and asked him if he understoo...