People v. Schader

• Decision Date: 20 August 1969
• Docket Number: Cr. 9855
• Court: California Supreme Court
• Parties: , 457 P.2d 841 The PEOPLE, Plaintiff and Respondent, v. Harry W. SCHADER, Defendant and Appellant.

Page 1

80 Cal.Rptr. 1

71 Cal.2d 761, 457 P.2d 841

The PEOPLE, Plaintiff and Respondent, v. Harry W. SCHADER, Defendant and Appellant.

Cr. 9855.

Supreme Court of California,

In Bank.

Aug. 20, 1969.

Elfriede F. Sobiloff, San Francisco, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Edward A. Hinz, Jr., Edsel W. Haws, and Charles G. Warner, Deputy Attys. Gen., for plaintiff and respondent.

TOBRINER, Justice.

The jury convicted defendant of first degree robbery and of the first degree murder of Police Officer Eugene McKnight in Sacramento on July 23, 1963, and fixed the penalty at death. His appeal is automatic. (Pen.Code, § 1239, subd. (b).) Defendant presents manifold contentions relating to his guilt trial, but we do not find prejudicial error in the conduct of the guilt trial. We must reverse the judgment as to penalty, however, because the trial court excluded veniremen from the jury panel in violation of the principles set forth in Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776.

Defendant shot Officer McKnight after a brief struggle in the parking lot of a Lucky Market at about 7 p.m., moments after codefendant Turner ¹ robbed the market's cash registers at gunpoint. Although he had been in the general vicinity of the checkstands during the robbery, defendant displayed no weapon and played no active role. He followed Turner out of the market a few seconds after Turner emptied the last register. The prosecution sought to prove both that defendant premeditated the killing during the moments of struggle and that the killing occurred during the escape phase of the robbery. The prosecution contended that Turner and defendant jointly planned and committed the robbery and that defendant was to serve as a lookout, ready to assist Turner in case of emergency. Schader testified in his own defense that he had planned to commit A robbery with Turner and indeed was casing the market for an anticipated Later robbery, but asserted that he had no idea that Turner would commit The particular robbery at the time it actually occurred. Defendant admitted cocking his pistol during the struggle, but claimed that the shooting was accidental.

After defendant offered his explanation for his presence at the scene of the robbery, the trial court permitted the prosecution, over defendant's objection, to engage in two lines of cross-examination which defendant assigns as reversible error.

The prosecutor cross-examined defendant upon the details of a robbery for which defendant was convicted in 1957. He offered the testimony 'to show common scheme, plan, or design; and most particularly, to show intent at the time of the offense charged.' The trial court permitted the prosecutor to inquire into similarities in the two offense: in each case, the robbers chose a supermarket as the target; the defendant worked with a single partner, a relative; the perpetrators used a stolen car for escape; one partner robbed cash registers, displaying a loaded pistol which was subsequently concealed; the other partner, standing by unobtrusively, but armed with a loaded pistol, was available to participate in case of trouble. The prosecutor used the testimony thus obtained in his vigorous argument to the jury that defendant in the instant robbery 'played the same role that Uncle Gilbert played down in Los Angeles, in an identical robbery * * * ready to put a couple through the ceiling if somebody panicked.'

The prosecution also introduced into evidence, a conditional sales contract for a red Cadillac convertible which showed that defendant faced a payment of $900 several days after the robbery. The People cross-examined defendant about this document. In his closing argument to the jury, the prosecutor urged that the impending payment formed the motive for the robbery. He heavily emphasized the rhetorical question, 'What did he put in the scales of justice--a big red Cadillac on one side, and the life of a human being, Officer McKnight, on the other?'

Defendant attacks both lines of cross-examination as beyond the scope of direct examination; he objects to the admission of the conditional sales contract, and the concomittant cross-examination on the further ground that the contract was discovered as the fruit of an interrogation previously held by this court to have been conducted in violation of defendant's constitutional rights (People v. Schader (1965) 62 Cal.2d 716, 44 Cal.Rptr. 193, 401 P.2d 665). In view of his admission of his general intention to commit robbery, defendant argues that cross-examination upon the details of the prior robbery could not fall under any exception to the general rule proscribing close inquiry into prior convictions. We explain why we uphold the cross-examination upon the details of the prior robbery; we find the admission of the sales contract erroneous but not prejudicial.

1. Alleged improper general scope of cross-examination

Setting aside for the moment the special rules pertaining to the admissibility of evidence of fruits of improper interrogation and of prior felony convictions, we find that general principles delimiting the scope of permissible cross-examination justified the prosecutor's inquiry.

We are not unmindful of a basic principle of criminal justice which makes the provision of former Penal Code, section 1323 (now see Evid.Code, § 773, subd. (a)), limiting cross-examination of a defendant to 'those matters about which he was examined in chief,' an indispensable ally of the federal and state constitutional rights guaranteeing that a person shall not 'be compelled, in any criminal case, to be a witness against himself.' (Cal.Const. art. I, § 13; U.S.Const. 5th Amend.; see People v. Arrighini (1898) 122 Cal. 121, 126, 54 P. 591; People v. Sims (1958) 165 Cal.App.2d 108, 113, 331 P.2d 799.) We recognize, of course, with the United States Supreme Court, 'that the American system of criminal prosecution is accusatorial, not inquisitorial, and that the Fifth Amendment privilege is its essential mainstay. * * * Governments, state and federal, are thus constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against the accused out of his own mouth.' (Malloy v. Hogan (1964) 378 U.S. 1, 7--8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653.) The People must 'shoulder the entire load' of their burden of proof in their case in chief, without assistance either from the defendant's silence or from his compelled testimony. (Tehan v. United States ex rel. Shott (1966) 382 U.S. 406, 415, 86 S.Ct. 459, 15 L.Ed.2d 453; Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106; Murphy v. Waterfront Comm. (1964) 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678; 8 Wigmore, Evidence (McNaughton rev. 1961) p. 317.)

Even when a defendant chooses to offer testimony on his own behalf, the privilege against self-incrimination serves 'to prevent the prosecution from questioning the defendant upon the case generally, and in effect making him its own witness.' (People v. Gallagher (1893) 100 Cal. 466, 475, 35 P. 80, 83; People v. O'Brien (1885) 66 Cal. 602, 6 P. 695; People v. Sims, supra, 165 Cal.App.2d 108, 113, 331 P.2d 799.) Such general compelled cross-examination would not only post the same 'cruel trilemma of self-accusation, perjury or contempt' recognized in Murphy v. Waterfront Comm., supra, 378 U.S. 52, 55, 84 S.Ct. 1594, 1596; it would also penalize and thereby deter a defendant's assertion of his right to take the witness stand to explain or contradict a particular aspect of the case against him. ²

None of these fundamental principles, however, imply that when a defendant voluntarily testifies in his own defense the People may not fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them. The provision of former Penal Code, section 1323 'does not mean that the cross-examination must be confined to a mere categorical review of the matters, dates or times mentioned in the direct examination. * * * It may be directed to the eliciting of any matter which may tend to overcome or qualify the effect of the testimony given by him on direct examination.' (People v. Pike (1962) 58 Cal.2d 70, 90, 22 Cal.Rptr. 664, 675, 372 P.2d 656, 667; People v. Zerillo (1950) 36 Cal.2d 222, 228, 223 P.2d 223.) ³

Defendant took the stand to meet the People's evidence which showed that he was present and armed during the robbery, that he fled immediately thereafter, and that he shot Officer McKnight. His testimony covered events and circumstances beginning with his conspiracy to commit a robbery with codefendant Turner, through his activities in casing the market, his alleged surprise when he discovered that Turner had decided to commit the robbery by himself then and there, and his apprehension in the parking lot by Officer McKnight, and beyond his struggle and killing of the police officer. Such complete direct testimony placed in issue his motives, intent and state of mind during the robbery. Cross-examination which revealed those motives, intent and state of mind was therefore not prohibited under general strictures limiting the scope of cross-examination. (See People v. Perez (1967) 65 Cal.2d 615, 621, 55 Cal.Rptr. 909, 422 P.2d 597, cert. granted (1968) 390 U.S. 942, 88 S.Ct. 1055, 19 L.Ed.2d 1131. People v. Ing (1967) 65 Cal.2d 603, 611, 55 Cal.Rptr. 902, 422 P.2d 590.)

Defendant contends alternatively that other, more specific rules render impermissible cross-examination upon the details of his prior conviction and upon the conditional sales contract. We deal first with the details of the prior conviction.

2. Alleged improper admission...