People v. Spencer

• Citation: 31 Cal.Rptr. 782,60 Cal.2d 64,383 P.2d 134
• Decision Date: 02 July 1963
• Docket Number: Cr. 7240
• Court: United States State Supreme Court (California)
• Parties: , 383 P.2d 134 The PEOPLE, Plaintiff and Respondent, v. Harold Allen SPENCER, Defendant and Appellant.

Page 782

31 Cal.Rptr. 782

60 Cal.2d 64, 383 P.2d 134

The PEOPLE, Plaintiff and Respondent, v. Harold Allen SPENCER, Defendant and Appellant.

Cr. 7240.

Supreme Court of California, In Bank.

July 2, 1963.

Rehearing Denied July 31, 1963.

Ivan E. Lawrence, Canoga Park, and Arvo Van Alstyne, Los Angeles, for defendant and appellant.

Stanley Mosk, Atty. Gen., and Gordon Ringer, Deputy Atty. Gen., for plaintiff and respondent.

SCHAUER, Justice.

Defendant appeals (by operation of Pen. Code, § 1239, subd. (b)) from judgments of death and imprisonment imposed pursuant to jury verdicts finding him guilty or murder in the first degree and robbery while armed with a deadly weapon.

Defendant concedes as he must, on the record of this case that the evidence is sufficient to support the jury verdicts. He contends, however, that he was denied a fair trial by reason of a variety of asserted errors, relating principally to the conduct of the voir dire examination of the prospective jurors, the sufficiency of proof of the corpus delicti on the robbery count, the admission of certain evidence and the giving of certain instructions, alleged misconduct of the prosecutor in his closing arguments, and the adequacy of the deputy public defender's representation of defendant at the trial. We have concluded that these contentions are without merit and that the judgments of conviction should be affirmed.

By information defendant was charged in Count I with murdering Richard Heathman on May 5, 1962, and in Count II with robbing Healthman of four dollars while armed with a deadly weapon, a .38 caliber revolver. It was also charged that defendant had suffered two prior felony convictions for violation of former Vehicle Code section 503 (theft or unlawful taking or driving of a vehicle, now Veh.Code, § 10851) and had served terms of imprisonment for each offense.

The public defender was appointed as counsel. Defendant entered pleas of not guilty and not guilty by reason of insanity, and denied the prior convictions. The two alienists appointed to examine him (Pen. Code, § 1027) filed their reports stating that in their opinion defendant was sane at that time and at the time of the alleged commission of the crimes. At the start of trial defendant withdrew his insanity plea and admitted the prior convictions.

On the guilt phase of the trial defendant neither took the stand nor offered any evidence on his behalf. The prosecution called three eyewitnesses, as well as the arresting and investigating police officers and experts, whose testimonies established the following facts:

At approximately 10 p. m. on May 5, 1962, Istran Karkus observed a Yellow Cab cross the intersection on 12th Street and Dewey in Los Angeles, heading west on 12th, and come to a stop at the right-hand curb some 20 feet from the corner. The intersection was illuminated by an overhead light. Immediately afterwards Mr. Karkus heard a shot, then saw defendant step out of the right rear door of the cab and enter the right front door; as the door opened the dome light inside the cab went on and defendant reached up towards it. Mr. Karkus entered his nearby house and telephoned the police. Two or three minutes later he returned outside with his landlady, Mrs. Derkacz, where they met a neighbor, Mr. de Baca, who had also heard the shot. The three then observed defendant leave the cab by the right front door, walk 50 or 60 paces west on 12th Street, retrace his steps, take a blue canvas hand bag from the cab, ¹ and begin walking rapidly eastwards. As he approached the next corner defendant was seen to throw the bag into some bushes, then begin to run. Neither before nor after the shooting did Mr. Karkus, Mrs Derkacz, or Mr. de Baca see anyone other than defendant in or near Heathman's cab.

Police Officers Knapp and Stevenson arrived within minutes in a patrol car and arrested defendant, who had turned onto Catalina and was then walking in a leisurely manner carrying his jacket on his arm. At the time of the arrest defendant was wearing khaki trousers and a sport shirt. There was wet, sticky blood on his hands and clothing, and in his trousers pocket were found a blood-stained handkerchief, four one-dollar bills sticky with blood, and some small change. The canvas bag was retrieved from the bushes and contained some clothes and toilet articles.

The cab driver, Heathman, was found slumped in the front seat, leaning against the left front door of his vehicle. He had been killed instantly by a gunshot wound through the head, the bullet having entered behind the right ear and exited in front of the left ear. There was considerable blood on the front seat and in the rear of the cab behind the driver. Samples of this blood were compared with the blood found on defendant's hands, clothing, handkerchief, and the four one-dollar bills; the samples all proved to be Type O.

A .38 caliber revolver was found in the rear of the cab on the right side, pushed down between the cushion and the back of the seat; the cylinder contained four bullets and an expended cartridge. (The gun had been stolen on the day before the shooting from a pickup truck belonging to a police officer.) A deformed bullet was found in the front of the cab; because of destruction of striation marks a ballistics test was inconclusive. The only identifiable fingerprints on the gun were those of the officer who first discovered it. A partial print of defendant's palm, however, was lifted from the right rear door.

The driver's wallet was in the front of the cab, lying on the passenger's (right) side of the transmission hump in the floor. The wallet contained identification cards showing that it belonged to Heathman, but no money. The driver's trip report showed that he had had a one-dollar fare between 9:30 and 9:35 o'clock that evening.

Defendant told a variety of stories to the police and the alienists. At the time of his arrest by Officer Knapp he explained the blood on his hands and clothing by saying he had cut his finger; but an examination of both of his hands and arms revealed no such cut or other wound. He denied having been in or near Heathman's cab at any time, and stated that he had been playing cards with some friends. When asked the address, he said that he could not remember it.

Two hours later, at the Wilshire police station, defendant told a different story to Officer Stevenson. Defendant then stated that he had had some drinks during the afternoon and later had gone to a restaurant and met a man named 'Reyes,' and that the two of them had ridden around in cabs for a while. When asked if 'Reyes' had been with him at the time of the shooting, defendant stated that he thought he was; that he (defendant) had been drowsing in the back of the cab and had not heard the shot; that someone awakened him and said, 'Frisk the body'; that he had entered the front seat of the cab and had searched Heathman's body for money or valuables; and that he left when someone said, 'People are coming. Let's get out of here.' Defendant told the officer that he had first met 'Reyes' at Folsom; he also denied that the blue canvas bag found in the bushes was his.

Shortly thereafter defendant was further questioned by Sergeant Meade and Officer Wilkerson, and their conversation was recorded on tape. With the exception of a certain portion deleted by stipulation (referring to defendant's prior convictions), the recording was played to the jury. Defendant repeated substantially the same story that he had told Officer Stevenson, adding that he had entered the cab after agreeing to a proposition by 'Ramos' (elsewhere referred to by defendant as 'Reyes' or 'Rejos') that they rob a grocery store together. In the course of the conversation defendant again denied owning the blue canvas bag, saying, 'it's not mine and that's the truth.' Two days later, while being transported to the Central Jail, defendant admitted having purchased the canvas bag about a week before from 'some fellow downtown.'

Sergeant Meade subsequently directed a letter to the Department of Corrections in an effort to track down 'Ramos' (or 'Reyes' or 'Rejos'), but was unable to accomplish any related additional investigation on the basis of the department's response. Two months after his arrest defendant told Dr. George W. Abe, one of the examining alienists, that he 'had never met a person by the name of Reyes in Folsom' and that he 'had never known anyone by the name of Reyes.'

The jury returned verdicts finding defendant guilty as charged of murder and armed robbery. On the penalty phase the People introduced no further evidence other than certified copies of defendant's prior felony convictions. Defendant took the stand; he denied remembering the events of the night of the crimes, but in response to the question 'Is there any doubt whatsoever that you were inside that taxicab?' defendant answered, 'No, sir, there is not.' Defendant was then asked, 'Do you know such a person as Ramos or Reyes, or any other name that that person was referred to?' Defendant answered, 'No, I can't recall anyone I don't even know why I would even mention it, actually. I can't recall knowing anyone by that particular name.' The jury fixed the penalty at death on the murder count, and judgment was pronounced accordingly.

Defendant predicates misconduct on certain portions of the prosecutor's voir dire examination of the prospective jurors. Defendant complains of the fact that the prosecutor 'flatly advised' such jurors that as the representative of the People he expected to ask for the death penalty, and then asked certain of the jurors whether they had a personal conception of 'what a proper case for the imposition of the death penalty might be' and if so, whether they would be able to recognize such a case if it were presented to them. Defendant argues that 'the prosecutor here was evidently attempting to implant the notion in the mind of the jury that since he,...