People v. Spencer

• Citation: 66 Cal.2d 158,424 P.2d 715,57 Cal.Rptr. 163
• Decision Date: 14 March 1967
• Docket Number: Cr. 7855
• Court: United States State Supreme Court (California)
• Parties: , 424 P.2d 715 The PEOPLE, Plaintiff and Respondent, v. Tommy SPENCER, Defendant and Appellant. In Bank

Page 163

57 Cal.Rptr. 163

66 Cal.2d 158, 424 P.2d 715

The PEOPLE, Plaintiff and Respondent, v. Tommy SPENCER, Defendant and Appellant.

Cr. 7855.

Supreme Court of California,

In Bank.

March 14, 1967.

Joseph M. Rosen, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Stanley Mosk and Thomas C. Lynch, Attys. Gen., William E. James, Asst. Atty. Gen., and Gilbert F. Nelson, Deputy Atty. Gen., for plaintiff and respondent.

TOBRINER, Justice.

The jury found defendant guilty of kidnaping for the purpose of robbery (Pen.Code, § 209) and of first degree murder (Pen.Code, §§ 187, 189), and fixed the penalty at death. The trial judge denied defendant's motion for a new trial and for a reduction of penalty. This appeal comes to us automatically under Penal Code section 1239, subdivision (b).

Defendant contends that his confession was improperly admitted at the guilt trial because he had not been informed of his rights to silence and to counsel prior to the time he confessed; he also urges that improper comments by the district attorney and an inadmissible confession infected his penalty trial with error. Since we conclude that the introduction of defendant's confession at the guilt trial constituted reversible error under Escobedo v. State of Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 and People v. Dorado (1965) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, we need not reach the issues raised by defendant's other contentions.

The essential facts stand uncontradicted. Late in the evening of May 3, 1963, two sailors on liberty, Billy Jack and Paul Clements, were hitchhiking from San Diego to Hermosa Beach. Defendant and his codefendant, William Atlas, picked up the sailors in their automobile in Long Beach. Shortly thereafter, defendant and Atlas stopped the car and went into a liquor store to purchase some wine; upon returning, they were unable to start the car. The sailors left the car and attempted to obtain another ride, but they were soon picked up again by defendant and Atlas, who had finally managed to start their car.

When Atlas turned the car off the highway leading to Hermosa Beach, Clements said that he and Jack would leave the car. Defendant, holding a gun, replied, 'No, you are going to take a little ride with us.' Defendant then demanded that the two sailors give him their valuables; this they did. Shortly thereafter, defendant ordered Jack and Clements out of the car and onto the ground. After they complied, defendant fired several shots; one struck Jack in the head, another in the back, and a third in the neck, fatally wounding him. Clements was not hit.

Defendant and Atlas drove away but soon stopped their car in order to push a woman's stalled automobile. As they pushed the automobile to a gas station, a tire on their own car went flat. The woman agreed to pay for the flat, and defendant accompanied her to her home in order to secure the money. At this point the police arrived at the intersection where the gas station was located and arrested Atlas; as soon as defendant returned, the police arrested him as well. The police found the stolen goods in the possession of defendant and Atlas; they found a gun upon defendant.

After taking defendant and Atlas to the police station in the early morning of May 4, the police subjected both suspects to a tape-recorded interrogation. Defendant related most of the above facts but insisted that he, rather than Atlas, had been the driver, and that Atlas alone had perpetrated both the robbery and the killing. Atlas, on the other hand, claimed that he was the driver; he accused defendant of the robbery and shooting.

Later the same day, during a second recorded interrogation at the police station, defendant confessed that he had committed the robbery and the shooting. He said that he had fired the shots only to induce the sailors to keep their heads down and that he had not intended to hit either of them. In another recorded statement, however, Atlas stated that defendant had told him that he intended to shoot the sailors; Atlas claimed that defendant's declaration took him by surprise and that he tried to persuade defendant to abandon any such plan.

After the court admitted into evidence all of these recorded statements, both Atlas and defendant testified. Atlas' testimony coincided in substance with his earlier statements. Defendant's testimony consisted generally of a repetition of the statements that he had given during the second interrogation. He again admitted picking up the sailors with the intention of robbing them; he said that after he had robbed them he told them to get out of the car and onto the ground; he admitted shooting one of the sailors but insisted that he had only intended to fire some shots to frighten them into keeping their heads down. He added that he had had a great deal to drink.

Clements, the surviving sailor, testified at the trial, identifying defendant as the one who had shot his companion. Defendant offered no evidence contradicting his guilt; the jury returned verdicts finding defendant and Atlas guilty of first degree murder and kidnaping for robbery. The jury fixed defendant's penalty at death and Atlas' at life imprisonment without possibility of parole; the trial court modified Atlas' punishment to life imprisonment with possibility of parole but ordered that defendant Spencer suffer the penalty of death.

Applying the principles established by Escobedo v. State of Illinois, supra, 378 U.S. 478, 84 S.Ct. 1758, and People v. Dorado, supra, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, ¹ we have concluded that the trial court committed reversible error in admitting defendant's confession in evidence.

Turning initially to the admissibility of the confession, we note that defendant's first recorded interrogation took place at the police station at least two hours after he had been arrested. Later in the day, when defendant abandoned the position he had previously taken and confessed to the robbery and shooting, he remained in custody and at that point was subjected to a process of interrogation that manifestly lent itself to eliciting incriminating statements. The accusatory stage had thus been reached; defendant was therefore constitutionally entitled to remain silent and to consult counsel. (People v. Stewart (1965) 62 Cal.2d 571, 577, 43 Cal.Rptr. 201, 400 P.2d 97, affd. sub nom. Miranda v. State of Arizona, supra, 384 U.S. 436, 497--499, 86 S.Ct. 1602; Escobedo v. State of Illinois, supra, 378 U.S. 478, 490--491, 84 S.Ct. 1758; People v. Dorado, supra, 62 Cal.2d 338, 353--354, 42 Cal.Rptr. 169, 398 P.2d 361.)

Since the record before us does not affirmatively indicate that defendant had been advised of his rights to silence and to counsel or that he was aware of these rights and chose to waive them, we hold that the trial court erred in admitting defendant's confession into evidence. (Escobedo v. State of Illinois, supra, 378 U.S 478, 490 fn. 14, 84 S.Ct. 1758; People v. Stewart, supra, 62 Cal.2d 571, 581, 43 Cal.Rptr. 201, 400 P.2d 97, affd. sub nom. Miranda v. State of Arizona, supra, 384 U.S. 436, 497--499, 86 S.Ct. 1602; People v. Dorado, supra, 62 Cal.2d 338, 353, 42 Cal.Rptr. 169, 398 P.2d 361.)

Having concluded that defendant's confession should not have been admitted into evidence, we consider next whether its erroneous introduction caused prejudice to defendant. We have held that use of a confession violative of Escobedo and Dorado necessarily compels reversal of the resulting conviction since a confession so completely shatters a defendant's case that its erroneous use at his trial works incalculable damage and precludes a finding of harmless error notwithstanding overwhelming extrinsic evidence of guilt. (People v. Schader (1965) 62 Cal.2d 716, 728--731, 44 Cal.Rptr. 193, 401 P.2d 665; People v. Dorado, supra, 62 Cal.2d 338, 356, 42 Cal.Rptr. 169, 398 P.2d 361; People v. Parham (1963) 60 Cal.2d 378, 385, 33 Cal.Rptr. 497, 384 P.2d 1001.)

The State contends that, since the jury in this case heard the defendant admit his guilt on the witness stand, the use of defendant's unlawfully obtained confession should be deemed harmless error on the theory that defendant's extrajudicial statement probably played little if any role in the jury's deliberation. (See Motes v. United States (1900) 178 U.S. 458, 475--476, 20 S.Ct. 993, 44 L.Ed. 1150; People v. Combes (1961) 56 Cal.2d 135, 148, 14 Cal.Rptr. 4, 363 P.2d 4; cf. People v. Jacobson (1965) 63 Cal.2d 319, 330--331, 46 Cal.Rptr. 515, 405 P.2d 555; People v. Cotter (1965) 63 Cal.2d 386, 398, 46 Cal.Rptr. 622, 405 P.2d 862.) Even if we assume that the United States Constitution would permit the application of a harmless error rule under such circumstances, ² we could not rest affirmance of the judgment solely upon our evaluation of the minor effect of defendant's confession upon the Jury; we must still weigh its impact upon defendant's Trial.

In determining the effect of defendant's extrajudicial confession upon the outcome of the instant trial, we must consider the likelihood that it contributed to the verdict by Inducing the defendant to admit his guilt in open court. ³ If the improper use of defendant's extrajudicial confession impelled his testimonial admission of guilt, we could hardly sustain his conviction on the theory that his confession to the police, although inadmissible, merely duplicated his subsequent confession to the jury; in that event we could not, in order to shield the resulting conviction from reversal, separate what he told the jury on the witness stand from what he confessed to the police during interrogation. ⁴ In effect, defendant's testimonial admission would then merge into his extrajudicial confession, and the instant case would be indistinguishable from one in which the only confession in evidence had been unlawfully obtained. In such a case, not even overwhelming evidence...