People v. Smith

• Decision Date: 18 March 1969
• Docket Number: Cr. 7327
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Lorean SMITH, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 53

76 Cal.Rptr. 53

270 Cal.App.2d 715

The PEOPLE of the State of California, Plaintiff and Respondent, v. Lorean SMITH, Defendant and Appellant.

Cr. 7327.

Court of Appeal, First District, Division 3, California.

March 18, 1969.

Pettis & Brott, Howard C. Hall, Oakland, for appellant.

Thomas C. Lynch, Atty. Gen., of State of California, Robert R. Granucci, John T. Murphy, Deputy Attys. Gen., San Francisco, for respondent.

DAVID, Associate Justice pro tem. ^*

Appellant Lorean Smith was charged with the murder of Clifton Allen (Pen.Code § 187), pleaded not guilty, was tried by the jury and convicted of voluntary manslaughter (Pen.Code § 192). Motions for a new trial and probation were denied, and she was sentenced to state prison for the term prescribed by law.

Three grounds for reversal of the conviction and judgment are urged.

(1) Was it prejudicial and reversible error for the prosecution to refer to appellant's blood alcohol test taken after the killing, in asking for a stipulation for the admission of the report, when it previously was denied admission into evidence for want of a proper foundation and in referring to the taking of the test in arguing appellant's credibility?

(2) Was it prejudicial and reversible error for the prosecution to attempt to offer evidence relative to a prior shooting in which appellant was involved?

(3) Did the court err in impliedly finding that appellant waived the presence of her attorney, before giving her statement to the police officers on November 6, 1966, and in refusing to rule that Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 barred receipt in evidence of a tape recording of her statement?

Since we rule against the appellant on the points tendered, the judgment and sentence are affirmed.

There was little or no essential conflict in the evidence presented by the People to support the charge on the one hand, and that advanced by appellant who claimed self-defense on the other.

On Sunday evening, November 6, 1966, appellant telephoned the Richmond police department. On the witness stand in her own behalf, Lorean Smith stated 'I told them I had shot a man and I told them where. * * * He said someone would be right out.' Officer Wilhelm came right over. The place where the killing occurred was Jackson's Cafe in Richmond. Scuffling and fighting were not uncommon there. The man killed by a bullet from Lorean Smith's .25 caliber revolver was Clifton Allen. The appellant herself and other eyewitnesses told the story.

Miss Smith sat on a bar stool next to Allen, who was almost dead drunk. A senseless argument developed between them, sparked by her refusal to be treated to a beer by him, and a refusal by her to discuss the death of a former waitress at the cafe. Lorean Smith arose to go to the door and he hit her with a backhanded sweep of his arm and pushed her against a partition. With that, Lorean Smith asked, 'did he want to fight?' He said 'Yes.' He responded, 'Yes, G-d-it, I'll kill you. I'll kill you.' They tussled on the floor. This lasted 10 to 15 minutes. He knelt over her, a knee in her stomach, clutching her hair, choking her, and banging her head on the floor. Miss Smith did not have her usual strength to fight back. She was three months pregnant. She was doing what she could to get him off, but was using her hands to get her bag open. None of the spectators intervened. Finally, she said 'I'm going to kill you for this.' She unzipped her purse, pulled out her gun and shot him. As she pulled out the gun, the 15 or 20 customers cleared out. A waitress, Mrs. Profit, ran to the kitchen and hid behind the deep freeze. Lorean Smith's friend at the bar, Dessie Bernstein, said 'Lorean, I think you done killed the man.' Lorean said 'Nobody mess over me.' Going to the phone, gun in hand, Lorean telephoned the police and her mother. To the latter she said 'Mama, I just shot a man.'

Her arrest followed the arrival of the police and surrender of the gun. She was taken to nearby Brookside Hospital for a blood alcohol test, thence to the Richmond Hall of Justice, where she gave a tape-recorded statement. She was then taken to the Kaiser Clinic where she was examined for any injuries. Only a small bruise on her temple was found, and the doctor testified she gave no physical evidence of having been beaten severely.

The prosecutor's references to the blood alcohol test did not constitute prejudicial misconduct. If intoxication is a material point, the report of the test is proper evidence. To produce the results thereof is not prohibited self-incrimination. (People v. Haeussler, 41 Cal.2d 252, 260 P.2d 8, cert. den. 347 U.S. 931, 74 S.Ct. 533, 98 L.Ed. 1082; People v. Conterno, 170 Cal.App.2d Supp. 817, 826, 829, 339 P.2d 968.) Sergeant Rodden testified such a test was made. He was not permitted to state the results, for want of a proper foundation. The report itself was offered, and denied admission for the same reason.

Almost immediately thereafter the prosecution, in excusing Sergeant Rodden, asked defendant's counsel if he was aware of the existence of the report of the test. No actual reference was made to what the report said. The court sustained an objection, and directed the jury to disregard these remarks. If there was error in asking such a question, and we find none, it must be assumed to have been cured by this direct admonition to the jury. (People v. Brice, 49 Cal.2d 434, 437, 317 P.2d 961; Witkin, Cal.Crim.Proc., § 751, pp. 724--725.) Appellant's counsel indicated that if he could inspect the report, he might stipulate to it. Thereafter he did not stipulate. Since Sergeant Rodden had testified Lorean had gone to Brookside Hospital for the test, which she did not recall or denied, it was not misconduct to allude to this in argument before the jury. At least it had a minimal bearing on credibility. The judge admonished the jury to disregard this also. The seriousness of the crime charged does not increase in proportion to inebriation of a killer; but intoxication may work for him in excusing criminal irresponsibility due to 'diminished capacity'. (People v. Conley, 64 Cal.2d 310, 49 Cal.Rptr. 815, 411 P.2d 911.) So appellant cannot claim prejudice from peripheral references to evidence which might have helped her, except for her counsel's diligence in excluding it.

This did not, as appellant claims, imply 'the existence of facts which the People made no effort to prove and had no reason to believe could be proved', as was the situation involved in People v. Lo Cigno, 193 Cal.App.2d 360, 388, 14 Cal.Rptr. 354.

Having failed to object to the extensive evidence as to another prior shooting in front of Jackson's Cafe on March 6, 1965, in which a shot from Lorean Smith's gun grievously wounded John Scott, the admission of such evidence does not require reversal of Lorean's conviction. (Evid.Code § 353; People v. Kitchens, 46 Cal.2d 260, 262, 294 P.2d 17; 3 Cal.Jur.2d, § 156, p. 634; 5 Am.Jur.2d, § 601, p. 66.) The court instructed the jury to disregard all such testimony. (People v. Kelley, 66 Cal.2d 232, 57 Cal.Rptr. 363, 424 P.2d 947; People v. McCaughan, 49 Cal.2d 409, 421--422, 317 P.2d 974.)

Evidence Code section 1101 provides that evidence of specific instances of a person's character or a trait of his character, is inadmissible when offered to prove his conduct on a specific occasion. In this case, the evidence certainly was not tendered to prove the admitted fact that Lorean Smith shot Allen.

On the other hand, Evidence Code section 1101 excepts evidence from the exclusionary rule when tendered to prove some fact (such as motive, intent, preparation, plan, knowledge, or absence of mistake or accident) other than a person's disposition to commit such acts; and likewise permits the admissibility of such evidence offered to support or attack the credibility of a witness. (Evid.Code, § 1101(c).) At least on the latter ground, perhaps the People were entitled to have had the evidence before the jury. Why did she carry her concealed gun to the cafe, after the day's work for Avon was over? She did not have any collections with her; she had to get money from others to telephone the police and her mother after the shooting. The evidence perhaps was relevant to a common design, plan or modus operandi to overcome the defense of innocent intent, which would make the homicide justifiable. (Pen.Code §§ 187--189.) The People have not appealed. Lorean Smith cannot claim prejudice when her counsel allowed the evidence to be received without objection or motion to strike. The court instructed the jury to disregard it. (Cf. People v. Horowitz, 70 Cal.App.2d 675, 693, 161 P.2d 833; People v. Nakis, 184 Cal. 105, 114, 193 P. 92.)

We turn to consideration of Lorean Smith's interview with officials at the Hall of Justice on November 6, 1966, relative to her killing of Allen. The year before, she had been interviewed about the Scott shooting; she had told her story; no charges were pressed, the matter lapsed and her gun had been returned to her. She herself had called the police after killing Allen. Her mental attitude there seems apparent. If she had to stand trial, she would need a lawyer; but if her version of self-defense, supported by the witnesses, was accepted, (like that of 'accident' or 'unknown assailant' in the Scott affair) she might again go her way and get back her gun. She didn't need a lawyer for this, she would hold nothing back in her exculpatory version of the sad affair.

At the police station some few hours after the killing, the constitutional warnings and statement of rights were meticulously given and explained; her responses recorded in writing and likewise tape-recorded; following which Lorean Smith voluntarily told her story. After proceedings out of the presence of the jury, the trial judge overruled appellant's objection to the receipt of the tape-recording in evidence; and later, to playing the tape to the...