People v. Shipp

• Decision Date: 18 June 1963
• Docket Number: Cr. 7236
• Citation: 31 Cal.Rptr. 457,382 P.2d 577,59 Cal.2d 845
• Parties: , 382 P.2d 577 The PEOPLE, Plaintiff and Respondent, v. Oscar SHIPP, Defendant and Appellant.
• Court: California Supreme Court

Page 457

31 Cal.Rptr. 457

59 Cal.2d 845, 382 P.2d 577

The PEOPLE, Plaintiff and Respondent, v. Oscar SHIPP, Defendant and Appellant.

Cr. 7236.

Supreme Court of California.

June 18, 1963.

Rehearing Denied July 17, 1963.

Burton Marks, Beverly Hills, under appointment by the Supreme Court, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack E. Goertzen, Deputy Atty. Gen., for plaintiff and respondent.

TRAYNOR, Justice.

Oscar Shipp and La Verne Jones were found guilty of the robbery of Bernard Wilkinson (Count I) and the robbery and first degree murder of Albert Hawley (Counts II and III). For the murder of Hawley the jury fixed the penalties as death for Shipp and life imprisonment for Jones. Jones does not appeal. Shipp's appeal is automatic. (Pen.Code, § 1239, subd. (b).)

The defendants and both victims were residents of the President Hotel in Los Angeles. Late in the evening on December 30, 1961, two men assaulted and robbed Wilkinson in his room. He was unable to identify his assailants. He testified that he was beaten unconscious, that he suffered three broken ribs and numerous cuts and bruises on his face, that between $7 and $8 were taken from his person, and that a cigarette lighter was taken from his room.

Hawley occupied a room one floor above Wilkinson's. The hotel manager found him there on the morning of December 31, and observed that his face was bloody. The manager asked, 'Who done it?' and Hawley replied, 'Two white men.' The police were called, and Officer Hickey was the first to arrive at the hotel. He testified that Hawley's room was disarranged and that Hawley's face was bloody and his shirt open. Officer Hickey saw a foot impression on Hawley's chest. A pocket was ripped from his trousers.

Hawley told Officer Hickey that during the night someone knocked at his door and said 'This is the management.' As he opened the door two men pushed in, knocking him down. They beat him on the head and body and kicked him numerous times. Hawley said that ten cents was taken from him. When asked who had done it, he said, 'Two white men.' After Hawley was taken to the hospital, Officer Hickey asked him for a further description, and Hawley said, 'I don't really know. I didn't see them.'

Hawley died on January 5, 1962. Dr. Kade, the autopsy surgeon, testified that the autopsy revealed over 20 rib fractures, three fractures of the sternum, a fractured vertebra, pulmonary contusions, hemorrhage inside the chest, extensive discoloration across the front and sides of the chest, and various head, face, and lower body injuries. It was Dr. Kade's opinion that the fractures caused terminal bronchial pneumonia and resulted in Hawley's death. He stated that the pattern of the fractures indicated that Hawley's rib cage collapsed from a crushing force exerted on the front of his chest. In Dr. Kade's opinion Hawley was lying on his back on a flat surface when the force was exerted, and was struck several blows on the chest with a heavy flat object.

Shipp and Jones were arrested on January 2. On January 8 they were taken to a room in the hall of justice, where they made voluntary statements to the police. Recordings of those statements were made without defendants' knowledge and were received in evidence at the trial. Jones gave the following account:

He and Shipp were in the lobby of the President Hotel on the night of December 30, 1961. They saw Wilkinson enter the hotel and board the elevator. They ran up the stairs to the third floor and went to Wilkinson's room. They unlocked the door with a master key that Shipp was carrying. When Wilkinson entered, Jones hit him. He found ninety cents in Wilkinson's pocket, which he took. Wilkinson began to struggle, and Jones hit him again. He searched the room and found some hair oil and a cigarette lighter. He hit Wilkinson again. Shipp then hit Wilkinson 'a couple of times more' and they left.

On Shipp's suggestion they went to Hawley's room on the fourth floor. The master key would not open the door. They knocked, and Shipp said. 'This is Eddy the guy downstairs.' (Eddy was the night clerk of the hotel.) They heard a voice in the room, but the door was not opened, and they broke in. Shipp grabbed Hawley, and Jones attempted to close the door. The door would not latch. At that point Jones heard someone in the hall, and then felt someone push on the door. Jones held the door with his foot and hands. The person in the hall left, and Jones was able to latch the door. Which Hawley made a noise, Jones told Shipp to keep him quiet. Jones then noticed that Shipp had his arm around Hawley's neck and that Hawley was bleeding from one ear. Jones ripped a pocket from Hawley's trousers and took his wallet. Shipp and Jones searched the closet and found nothing. When Hawley again made a noise, Shipp 'went back over there and held him down and shut him up with his hand over his mouth or something.' Jones then searched the dresser, under the bed, and under the mattress while Shipp held Hawley. Jones believed that Shipp struck Hawley once with his fist.

Shipp and Jones then went to Jones' room on the third floor. They looked in the wallets (Jones believed there were two) and found nothing. Shipp said, 'I'm going back upstairs because I think maybe we missed something.' Shipp left, and Jones went to bed.

At the conclusion of his statement, Jones said that on the night of the robberies shipp wore a light jacket and a light shirt. He noticed blood on the sleeve of the jacket and warned Shipp to get rid of it.

Shipp denied returning to Hawley's room, and then said, 'The other might of the robbery, the first man Barney (Wilkinson) it was all like Verne (Jones) said.' Shipp admitted committing both robberies with Jones and agreed with Jones' account of them, except that he denied striking Hawley. He denied kicking Hawley. He could not remember whether he had worn a jacket or just a white T-shirt. When asked about blood found on his shoe, he stated, 'Now, like I said, it had to have come from the fourth floor, it had to. That's the only possible way the blood could have gotten on the shoes.' He stated that he tried to get the wallet out of Hawley's pocket, 'but Verne pulled this thing off.'

Jones' palm print was found on the inside of the door to Hawley's room on January 2. When Shipp was arrested a jacket was found in his closet. The jacket and one of Shipp's shoes were stained with what appeared to be blood. A key was among Shipp's belongings at the county jail. Officer Seret took the key to the President Hotel and found that it unlocked the door to Wilkinson's room, but not the door to Hawley's room.

Officer Rodney testified for the prosecution that on January 11, 1962 he searched the room that Shipp had occupied and found a journal and two Coast Federal Savings passbooks behind a refrigerator. Another witness identified handwriting on the journal as Hawley's, and testified that Hawley had an account at Coast Federal Savings. On cross-examination Officer Rodney admitted that he had made an investigation report concerning his 'activities in the case.' Shipp's motion for production of the report for the purposes of impeachment was denied.

We agree with Shipp's contention that it was error to deny production of Officer Rodney's repost. A sufficient foundation for production was laid by showing that the witness has made a report relating to matters covered in his testimony. (People v. Estrada, 54 Cal.2d 713, 716, 7 Cal.Rptr. 897, 355 P.2d 641; Funk v. Superior Court, 52 Cal.2d 423, 340 P.2d 593; People v. Chapman, 52 Cal.2d 95, 98-99, 338 P.2d 428.)

In deciding whether this error was prejudicial, we must determine whether there was a reasonable probability that the jury would have reached a different verdict had the report been produced. (People v. Riser, 47 Cal.2d 566, 588, 305 P.2d 1.) Since we do not know the contents of the report, we must assume that production would have enabled Shipp to impeach Officer Rodney and thereby neutralize his testimony. The issue, therefore, is whether it is reasonably probable that the verdict would have been different had Officer Rodney's testimony been excluded. ¹

Officer Rodney's testimony tended to prove that Shipp robbed Hawley. It is not reasonably probable, however, that the jury's conclusion on that issue would have been different without Officer Rodney's testimony. Shipp admitted that he committed the robbery, and the evidence corroborating that admission is overwhelming.

Officer Rodney's testimony also tended to discredit Shipp's testimony, because it contradicted Shipp's claim that he knew nothing about the passbooks and journal. Shipp's testimony, however, was contradicted by other evidence. He denied telling Jones that he would get rid of his jacket. Jones testified to the contrary. Shipp denied that he ever intended to rob Hawley, though he admitted that he broke into Hawley's room, that he held his hand over Hawley's mouth while Jones searched the room, and that when he left the room Hawley was lying on the floor and bleeding from the ear. He testified that the blood on his jacket and shoe came from a fight he had been in before the robberies. When asked why he had previously stated that the blood must have come from the fourth floor, he explained that the fight occurred on the fourth floor. He claimed that he mentioned the fight during his recorded statement, and theorized that it was not recorded because the recorder was turned off. Officer Benson testified that the recorder was not turned off at any time during the taking of the statements and that the tape accurately and fairly reflected what was said.

Shipp's testimony was not only contradicted, but was inconsistent with his recorded statement and with Jones' statement, which Jones repeated on the stand. Shipp denied that Hawley's door had been latched or that he had said he was Eddy. When confronted with his...