People v. Schader

Decision Date11 May 1965
Docket NumberCr. 7852
Citation401 P.2d 665,62 Cal.2d 716,44 Cal.Rptr. 193
CourtCalifornia Supreme Court
Parties, 401 P.2d 665 The PEOPLE, Plaintiff and Respondent, v. Harry W. SCHADER and James L. Tarner, Defendants and Appellants.

Benjamin M. Davis, San Francisco, and William H. Lally, Sacramento, under appointment by the Supreme Court, and Elfriede Sobiloff, Millbrae, for defendants and appellants.

Stanley Mosk and Thomas C. Lynch, Attys. Gen., Doris H. Maier, Asst. Atty. Gen., and Edsel W. Haws, Deputy Atty. Gen., for plaintiff and respondent.

TOBRINER, Justice.

Defendants Schader and Turner appeal from a judgment on a jury verdict finding them guilty of the crime of murder in the first degree as charged in Count I of an indictment returned by the Grand Jury of Sacramento County on August 6, 1963, and of the crime of robbery in the first degree as charged in Count II of the indictment. Schader's penalty for the crime of murder was fixed by the jury at death, and Turner's at life imprisonment. Defendants' motion for a new trial was denied. Schader's automatic appeal is before us pursuant to section 1239, subdivision (b) of the Penal Code, and Turner appeals from the judgment.

Officer Eugene McKnight of the Sacramento Police Department was killed during the course of the robbery of a grocery store on July 23, 1963, under the following circumstances:

A checker in the store testified that at about 6:45 p. m. on that date Turner pushed a shopping cart into the service area of her checkstand. Turner, exposing a gun, told her to leave the items alone and 'fill the bag.' At Turner's direction she took money from several cash registers and placed it in the bag, the total amount being $1,370.51. Turner then took the bag and proceeded out the door.

A store clerk, witness Brown, had observed defendants in a conversation at the produce area of the store prior to the acivity at the cash registers. Brown saw Schader standing in the vicinity of a second checkstand. As Turner left the store Schader moved around the shopping cart at the first stand and followed him out the door.

Officer McKnight and his wife were in the customer line at the first checkstand behind Turner. They remained in this position during the time the money was removed from the cash registers and as Schader was leaving the front door Officer McKnight drew his revolver and followed him. The officer was dressed in civilian clothes and was off duty.

When the officer reached the sidewalk area outside the front door of the store he stated, 'Hold it right there.' He caught up with Schader about 50 feet from the store door; at this time Turner was entering a green Chevrolet parked about 30 feet from Schader. McKnight placed his left hand on Schader's shoulder. McKnight's gun was in his right hand and was pointed at the green Chevrolet. Schader moved quickly behind the officer and drew his own gun. Witness O'Brien testified that Schader stood behind the officer holding the latter's left arm in an arm lock; that Schader 'reached the gun up to the man's neck and pushed it down against his neck'; that he then heard the report of the gun and the officer fell to the sidewalk. The bullet, of .38 caliber, entered the left side of the officer's neck, fracturing the vertebrae, severing the spinal cord, and coming to rest in the mouth along the surface of the right side of the jaw. The autopsy surgeon was of the opinion that death was instantaneous due to the severance of the spinal cord.

Schader ran to the Chevrolet after the officer fell to the ground and the car proceeded from the parking lot in a southerly direction. It was next seen by a witness, Mr. Norris, parked in front of his residence. He saw defendants run from the Chevrolet to a nearby parking lot where they entered a 1961 red Cadillac convertible with a black top. The car proceeded up Broadway in an easterly direction. Norris reported the incident to a police officer who relayed the information by radio to the police station.

Witness Morris, a California Highway Patrolman, received a radio report at approximately 7 p. m. that a Sacramento policeman had been killed in a market holdup; dthat the robbers were believed to be in a late model red Cadillac driving in an eastbound direction out of Sacramento. The officer parked his patrol car on an off-ramp of the Roseville freeway where he was able to observe eastbound traffic. Shortly after stopping his car he saw a late model red Cadillac with a black top go by at a speed of approximately 60 miles per hour. He followed, and the car began to slow down. The officer stated that 'the individual driving the car did not fit the Cadillac in that he looked not dressed for the vehicle. That he looked to young to own the vehicle.' The officer turned on his red light and stopped the Cadillac. Schader, the driver, got out of the car and walked back to the patrol car which was parked about 20 feet behind. Schader asked, 'Have I done something wrong, officer?' The officer drew his gun as he got out of the patrol car and, with the gun pointed at Schader, directed Schader to lie on his stomach on the ground facing the patrol car, with his arms and legs straight out.

The officer then approached the Cadillac. He noticed it shake slightly. At this point Schader stated in a loud voice, 'It looks like they've got us, Turner.' Turner had been hiding under a pile of clothes in the rear seat. He raised his hands and was directed by the officer to lie on the ground in spread-eagle fashion. His wrist was handcuffed to the wrist of Schader. Two .38 caliber revolvers were on the front seat of the Cadillac and a brown bag was discovered containing $1,370.51.

Later in the evening, defendant Schader made a statement to police officers which was recorded. He stated that at the time he and Turner went into the market they planned to rob the market at that time and that he observed Turner committing the robbery. Schader, admitting that he knew at the time of the shooting that the victim was a police officer, said that he thought the officer was attempting to apprehend Turner. He also admitted shooting the officer, although he said the revolver fired accidentally.

Defendant Turner also made a recorded statement that evening. He admitted planning with Schader to rob the market and committing the robbery. He said that Schader knew of the robbery and shot the victim.

At the trial Schader testified that he and Turner were merely surveying the market for a robbery which they had planned to commit later in the evening after they had left the market and returned at about the closing time. Schader further testified that at the time of the shooting, he did not know that Turner had committed the robbery, and that he did know that the victim was a police officer. He said that the officer grabbed him with one arm while holding a weapon in the other hand. He contended that he shot the victim accidentally during this struggle.

Schader attacked the confession at the trial on the ground that it had been procured by coercion. Conducting a voir dire hearing in the presence of the jury, the trial judge determined that the confession was voluntary. He told the jurors that they should not consider a consession if they found it involuntary or if they determined that a defendant had requested and had been denied counsel prior to giving it. The judge also instructed the jurors not to consider the confession of one defendant against the other defendant.

(1) Defendants contend that their arrest without a warrant was not based upon reasonable cause and that the subsequent search of the Cadillac was illegal, rendering the physical evidence obtained by the search and their later confessions inadmissible. On the other hand, the People contend that the arrest rested upon reasonable cause and that the search was incidental thereto.

Reasonable cause exists when the facts and circumstances within the knowledge of the officer '* * * at the moment of the arrest would 'warrant a man of reasonable caution in the belief' that an offense has been committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543.' (Beck v. Ohio (1964) 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142.) In Brinegar v. United States (1949) 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879, the court stated: 'The rule of probable cause is a practical, non-technical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice.'

The arresting officer had been advised by police radio that an officer had been killed during the course of a robbery and that the robbers were traveling easterly in a late model red Cadillac. Shortly thereafter he saw such a car proceeding in the given direction. In addition, the officer stated that he believed the youthful appearance and informal dress of the driver of the car presented a suspicious circumstance. Also, the speed of the Cadillac was reduced when the officer began following it.

Defendants argue that the dress and age of the driver and the reduction in speed were not unusual and should not be given any weight in determining reasonable cause. Aside from these particular circumstances, however, the officer had ample reason to stop the vehicle and arrest the occupants.

Defendants urge that, at most, the officer had cause to stop the vehicle for investigation. They note that the officer had information that the getaway car had two suspects in it; this car had only one person visible to the officer. With the information that one police officer had already been slain, however, Officer Morris was under no compulsion to investigate further before making an arrest. His immediate duty was to arrest the driver of the suspect vehicle, disarm him of any weapons, with a minimum...

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