People v. Smith

• Decision Date: 25 October 1982
• Docket Number: Cr. 13183
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. James Hardy SMITH, III, Defendant and Appellant.

Page 650

186 Cal.Rptr. 650

136 Cal.App.3d 961

The PEOPLE, Plaintiff and Respondent, v. James Hardy SMITH, III, Defendant and Appellant.

Cr. 13183.

Court of Appeal, Fourth District, Division 1, California.

Oct. 25, 1982.

As Modified Nov. 19, 1982.

Hearing Granted January 27, 1983.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., A. Wells Petersen and Lilia E. Garcia, Deputy Attys. Gen., for plaintiff and respondent.

Quin A. Denvir, State Public Defender, under appointment by the Court of Appeal, and Handy Horiye, Deputy State Public Defender, for defendant and appellant.

WIENER, Associate Justice.

James Hardy Smith, III appeals the judgment entered on jury verdicts convicting him of murder in the first degree (Pen. Code, §§ 187, 189) ¹ during the commission of a robbery (§ 211) and kidnapping for the purpose of robbery (§ 209, subd. (b)) alleged as special circumstances (§ 190.2, subds. (a)(17)(i) and (ii)) and as independent counts. The jury also found Smith was armed within the meaning of section 12022, subd. (a) but he did not personally use the firearm under section 12022.5. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Before July, 1980, Michelle Kruse worked as a masseuse at an Escondido massage parlor owned and operated by William Hawthorne. When Kruse told Hawthorne she was quitting her job in mid-July, Hawthorne refused to pay her $75 of the amount she was owed.

Angry and upset, Kruse told her boyfriend Charles (Butch) Fleck about the incident. She reported Hawthorne appeared to carry thousands of dollars with him in a money belt and complained he had little reason to deny her the $75. Fleck became angry and wanted to confront Hawthorne and force him to pay Kruse the money, but Kruse dissuaded him. She was concerned about Fleck getting into trouble since he had only recently been released from prison on parole.

A few weeks later on August 7, Fleck and several friends gathered at his Escondido apartment to drink beer. The friends included defendant James (Sonny) Smith, whom Fleck had met while in prison. One of the other individuals present, David Wildasin, heard Fleck suggest to Smith the possibility of robbing a man with a money belt.

Smith spent the night of August 7 at Fleck's apartment. Kruse testified that on the morning of August 8 Smith remarked about needing some money. Fleck suggested a robbery of Hawthorne would allow them to get back Kruse's $75 plus some additional money the three could split. Kruse then left to take a shower. When she returned, she saw a pistol lying on the bed. She inquired about it because she was frightened, but Smith told her not to worry since the gun was only to be used to scare Hawthorne. He then showed her it was not loaded. Kruse testified that on leaving the apartment, Smith placed the revolver in his waistband.

Smith's version of the morning's events was somewhat different. He admitted a discussion regarding getting money from Hawthorne, but asserted it related only to the $75 owed to Kruse. Smith testified Fleck left at one point and returned with a pistol and holster wrapped in a newspaper. Smith asked what the gun was for and Fleck replied it was to "scare" Hawthorne. Smith indicated he did not like guns, examined the revolver, unloaded it, put the bullets in a jar, and gave it back to Fleck.

Smith, Fleck and Kruse then left to obtain a ski mask or masks, presumably for use in the robbery. They first checked with Ron Thompson, a friend of Fleck. Thompson testified Fleck explained their plan to rob Hawthorne of several thousand dollars while Smith listened. Smith testified he remained behind when Fleck talked to Thompson and did not hear the conversation. In any case, Thompson did not have a ski mask so Fleck, Smith and Kruse went to a nearby store. Kruse testified they bought two masks; Smith stated they bought one.

Between 5:00 and 5:30 p.m., Kruse drove Fleck and Smith to an alley near Hawthorne's massage parlor. She testified Smith left the car carrying the pistol and Fleck carried a tire iron. Smith maintained he carried the tire iron and that Fleck had the revolver.

Kruse then left and returned home. The only testimony regarding the details of the robbery and the events which followed came from Smith. He testified Fleck instructed him to remain across the alley with the tire iron while Fleck waited with the pistol by Hawthorne's van which was parked behind the massage parlor. Smith's function was to ward off anyone coming up the alley. Neither Fleck nor Smith was wearing a mask.

Hawthorne came out of the massage parlor and got into the van. Fleck approached him and forced him at gunpoint into the back of the van. Fleck rolled down the window and called to Smith to "[g]et your fucking ass over here." When Smith approached, Fleck told him to drive the van. Smith protested that he just wanted to leave but Fleck insisted. Smith testified he was "scared shitless" and believed Fleck might shoot him if he did not comply.

Smith got in and drove the van while Fleck gave directions. Smith was so upset he scraped the passenger side of the van against a truck while leaving the alley. Fleck directed Smith to a deserted area of North Escondido. Fleck tied Hawthorne's hands behind him with some antenna wire he found in the van. After searching Hawthorne for money, Fleck got out of the van and directed Hawthorne at gunpoint over the top of a small hill nearby. Fleck told Smith he was going to tie up Hawthorne and leave him where he would be found in a couple of hours. Smith waited in the van. Several minutes later he heard a gunshot. He alternately walked and ran up the hill and discovered Fleck standing over Hawthorne's body holding the gun. Smith asked Fleck what happened and Fleck replied, "The fucking asshole." Shaken, Smith ran back to the van followed by Fleck. As Fleck drove, Smith threw the tire iron out the passenger side window. (See post, fn. 2.)

They drove to Fleck's apartment and met Kruse. She testified she asked if they did it, to which Smith replied they had, but that it had not been worth it. According to Kruse, Fleck and Smith each took $300 from the robbery. According to Smith, he, Kruse and Fleck each received $132. They later abandoned Hawthorne's van in Escondido.

Hawthorne's body was discovered several days later as was his van. Fleck was arrested on August 21 and Smith was arrested a day later. After his arrest, Smith gave a tape recorded statement to police in which he admitted planning and participating in the robbery. He denied any involvement in the shooting itself and the details of the incident closely matched his trial testimony. In addition, while he was in jail, Smith discussed the crime with a fellow inmate, Lawrence Warfel. Warfel testified at trial that Smith's story to him basically matched Smith's trial testimony except that Smith had mentioned nothing about believing Fleck would shoot him if Smith did not drive the van. ²

Kruse testified she asked Fleck who shot Hawthorne and Fleck told her it was Smith. She confronted Smith with this allegation while visiting him in jail. According to her testimony, Smith nodded that he had shot Hawthorne, but stated it was a "total accident and everybody would be surprised."

Smith and Fleck were charged with robbery (§ 211), kidnapping for the purpose of robbery (§ 209, subd. (b)) and murder (§§ 187 and 189). As to the murder, two special circumstances were alleged: murder in the course of robbery (§ 190.2, subd. (a)(17)(i)) and murder in the course of kidnapping (§ 190.2, subd. (a)(17)(ii)). In addition it was alleged that both defendants were armed with and personally used a firearm as to all three substantive counts. (§§ 12022, subd. (a) and 12022.5.) Prior convictions and prison terms were also alleged as to both Smith and Fleck. (§ 667.5, subd. (b).)

Smith was tried separately after Fleck's severance motion was granted. The jury found him guilty of robbery, kidnapping and first degree murder and determined both special circumstance allegations to be true. Although the jury found Smith was armed with a firearm within the meaning of section 12022, subdivision (a), it concluded he did not personally use a firearm in the commission of any of the crimes. (See § 12022.5.)

Because the special circumstance allegations were found to be true, Smith was subjected to a separate penalty phase trial to determine whether he should suffer the death penalty. (See §§ 190.3 and 190.4.) The jury chose the lesser alternative, fixing the punishment at life imprisonment without possibility of parole. Sentences on the robbery and kidnapping convictions and related enhancements were stayed pursuant to section 654.

DISCUSSION

I

Smith's initial contentions focus on the admission of his taped statement given to sheriff's deputies following his arrest. He alleges the transcript of the statement demonstrates he did not knowingly, intelligently and voluntarily waive his Miranda rights before talking to the deputies. (See Miranda v. State of Arizona [1966] 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.) And even if his statements on the tape are admissible, Smith contends the court erred in not excising certain portions of the tape during which the deputies were playing a portion of Fleck's tape-recorded statement for Smith to hear. Smith argues the failure to eliminate these portions violated his Confrontation Clause rights under People v. Aranda (1965) 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265. Recognizing his trial counsel's failure to object to the admission of any part of the taped statement would normally bar his raising these issues on appeal, Smith asserts such a failure constitutes a denial of his Sixth Amendment right to effective assistance of counsel. (See People v. Pope [1979] 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859.)

Smith's Miranda -related arguments focus on two separate occurrences...