People v. Saidi-Tabatabai
| Decision Date | 22 May 1970 |
| Docket Number | SAIDI-TABATABA,D,Cr. 15224 |
| Citation | 7 Cal.App.3d 981,86 Cal.Rptr. 866 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Mary Elizabethefendant and Appellant. |
Joseph Amato, Santa Ana, under appointment by the Court of Appeal, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Bradley A. Stoutt, Deputy Atty. Gen., for plaintiff and respondent.
Charged with murder of her brother-in-law Mehdi, defendant was found guilty after an extended jury trial. The murder was found to be of the second degree. This appeal presents no issue concerning the sufficiency of the evidence. The record discloses convincing circumstantial proff that defendant shot Mehdi, late at night on November 14, 1966, after lying in wait at his apartment. Her defense was that a gun which she had been carrying in her purse accidentally discharged when she fell after having been slapped by Mehdi. The gun had been bought for three dollars at a 'swap meet' as a present for her father. Defendant had been told by the seller that it would not work. She had never purchased any ammunition for it.
Additional facts will be set forth wherever necessary to explain defendant's contentions on this appeal.
Defendant was arrested at her home in the early morning hours of November 15. As a result of a conversation with defendant, the police obtained the name of one Edward Eisen. Eisen was interviewed and gave extremely damaging testimony at the trial. Defendant's conversation with the police, as such, was never offered in evidence.
On November 15 defendant was again interrogated at the West Covina Police Station from 8:30 a.m. until about noon. During that interrogation defendant first asserted her claim of an accidental shooting; however, it differed in significant detail from her later testimony a the trial. The prosecution effectively impeached her with the statements she made on the morning of November 15. They had not been offered as part of the People's case in chief.
The trial court took extensive evidence on the voluntariness of defendant's statements and on the question whether there had been compliance with the mandate of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. No useful purpose would be served by setting forth the conflicting evidence offered by the parties. The court's findings and conclusions made in considerable detail, holding that defendant's statements were not obtained in violation of her constitutional rights are amply supported by evidence. There is no question that, on the police version of the facts, defendant talked voluntarily after a knowledgeable waiver of her Miranda rights.
A more serious question is presented by the following events: it may be inferred from the record that some of the more damaging statements which were later used to impeach defendant were made shortly before noon on November 15. At about 9:30 a.m. Detective Corby of the West Covina police received a telephone call from the attorney who eventually became defendant's trial counsel. He identified himself by name, said that he had been asked to represent defendant and wanted to know whether he could bail her out. Corby asked Captain Ryan who told him that bail would be set at the time of defendant's arraignment which would probably take place that or the next day. This information was apparently relayed to counsel who then stated that he was in Hollywood and asked whether he would be able to see defendant if he drove to West Covina. The answer was affirmative. Counsel then stated that he 'might be out that afternoon.' Asked for details about the case, Corby read to counsel a press release which contained the information that the police were questioning defendant. Counsel did not ask that the interrogation cease until he had a chance to confer with his client, nor did he request that defendant be advised that he was representing her.
Corby 'figured' and Ryan knew that defendant was being interrogated, but neither defendant nor the officers who were doing the interrogating were told that an attorney had called on behalf of defendant.
Apparently neither Ryan nor Corby knew, or knew of, the particular attorney. Corby was not at all convinced that he was actually talking to a lawyer. He suspected that the caller might, in truth, be a reporter who was trying to get more information than was being given to the press.
Counsel arrived at the West Covina station at about noon. 1 Within a few minutes he met his client. No further statements were obtained from her.
On appeal it is claimed that as soon as the police were made aware of the fact that an attorney was interesting himself in the case on behalf of defendant, they should have discontinued the interrogation or, at least, have informed defendant of that fact. No authority is cited for these propositions, nor have we been able to find any. The facts are, of course, quite unlike the case on which defendant principally relies, Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, where the arrestee's attorney personally appeared at the police station, asked to see his client--and actually did see him from a distance--but was not permitted to speak to him and where the client similarly requested permission to speak to the attorney.
Unquestionably it would have been the more 'sporting' thing for the police to stop the interrogation after the receipt of the telephone call, but, as has been pointed out: * * *' (People v. Boulad, 235 Cal.App.2d 118, 126, 45 Cal.Rptr. 104, 109.)
To hold that under the circumstances shown the police could not go on interrogating, would be to place legitimate investigation of crime under burdens which the Constitution surely does not demand. It must be remembered that on the evidence accepted by the trial court the defendant was fully advised of all of her rights and expressly waived them. As far as the police were concerned, counsel was just a voice on the telephone. He might not have been an attorney at all. He might have been an attorney whose interest in the matter was self-induced. 2 He did not say exactly when he intended to appear at the police station and, of course, he made no request that any interrogation cease although he was aware that defendant was being questioned. For the police to have stopped the interrogation would have meant the cessation of legitimate investigation because of a possibility which might never materialize; for them to have informed defendant that she had an attorney would not have been warranted by information which they knew to be accurate. We find no error.
For reasons unnecessary to relate, it became relevant whether defendant, after November 14, 1966, had had possession of certain pictures which had been in Mehdi's apartment. To prove their point, the People called defendant's husband who had received the pictures in the mail some time after his brother's death. He testified that during his marriage with defendant he had become familiar with her handwriting. Over objection that the question called for a violation of the privilege against disclosure of confidential marital communications (Evid.Code § 980) the husband was then permitted to testify that certain writing 'that accompanied the pictures that (he) received' was in defendant's handwriting. The ruling is assigned as error. The court was correct. Assuming for the sake of argument that the contents of the writing were a confidential communication, 3 the inquiry did not call for their disclosure. The prosecutor merely wanted to know who communicated with the witness, not what was said. * * *' (Estate of Pusey, 180 Cal. 368, 373--374, 181 P. 648, 650.) Every court that ever analyzed the problem has held that a spouse may identify the handwriting of the other spouse. The cases are collected in 10 A.L.R.2d 1389, 1404.
During the trial Mrs. Davies, one of the jurors, had lunch with Mrs. Barbara Warner, an attorney. According to Mrs. Warner's evidence presented to the court when its attention was drawn to the incident, Mrs. Davies said to Mrs. Warner 'that's the lawyer and there's the woman that did the murders' when counsel and defendant came into the courthouse cafeteria. Mrs. Davies denied having made the statement in question. She testified that she had simply told Mrs. Warner that she was a juror in a murder trial and had pointed to defendant as the defendant in that trial. She denied having formed in opinion concerning defendant's guilt. On this conflicting evidence the court found that Mrs. Warner 'probably misunderstood' what Mrs. Davies had said. It made a specific finding that Mrs. Davies' state of mind was such as to permit her to continue as a fair and impartial juror. Defendant's motion for a...
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