People v. Stuller

• Decision Date: 14 August 1970
• Docket Number: Cr. 4001
• Citation: 89 Cal.Rptr. 158,10 Cal.App.3d 582
• Court: California Court of Appeals Court of Appeals
• Parties: , 41 A.L.R.3d 712 PEOPLE of the State of California, Plaintiff and Respondent, v. Gary Gene STULLER, Defendant and Appellant.

Page 158

89 Cal.Rptr. 158

10 Cal.App.3d 582, 41 A.L.R.3d 712

PEOPLE of the State of California, Plaintiff and Respondent, v. Gary Gene STULLER, Defendant and Appellant.

Cr. 4001.

Court of Appeal, Fourth District, Division 2, California.

Aug. 14, 1970.

Hearing Denied Oct. 9, 1970.

[10 Cal.App.3d 587] Hollopeter, Terry & Schneider and Harvey A. Schneider, Pasadena, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and William V. Ballough, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

KERRIGAN, Associate Justice.

Convicted by jury of forcible rape of a 19-year old girl (Pen.Code, § 261, subd. 3) and oral copulation of a 14-year old child (Pen.Code, § 288a), defendant's application for probation was denied, and he was sentenced to concurrent terms in state prison.

About midnight on January 11, 1969, the defendant knocked on the front door of the 14-year old copulation victim's Palm Springs residence and asked for her parents. The girl (Heidi) did not open the door, but merely looked through the 'peekhole' or aperture in the door. She informed the defendant that her parents were not in and inquired if he wanted to leave a message. Defendant said, 'No,' gave a fictitious name, and left. The girl went to bed around 1:00 a.m. and was awakened somewhat later by the defendant. He pointed a gun at her, told her to be quiet, and ordered her into the kitchen. While still holding the gun on her, he committed several indecent acts, including an act of oral copulation. After completing the aforesaid indignities, defendant told the girl that he was going to rape her. She broke free, ran next door, and reported the incident to a neighbor. Heidi made an in-court identification of the defendant on the basis of her observations. She testified that she was able to remember his appearance and build from seeing him both on the porch and in the kitchen where the lights were on.

Around 7:45 p.m. on January 23, 1969, the 19-year old rape victim (Mary) arrived at her Palm Springs apartment after finishing her day's work as a telephone operator and dining with her sister. She washed her hair and did some ironing. About 9:00 p.m. the defendant knocked on the door. He told her the lights of her car were on. She went out, turned them off, and returned to her apartment. The defendant again appeared at the door and asked if he could borrow a tablet to write a note, stating that the manager was not in and that he was interested in renting one of the apartments in the complex where Mary resided. The girl gave him a pen and stated he could use the stenographer's tablet on the table. He also requested a drink of water. After drinking the water, he placed the glass on the kitchen sink. After making some notation on the steno pad, he walked to the front door, shut it, and pulled a small gun from his jacket. He warned the girl not to scream or to make any outcry. Holding the gun on her, he forced the girl to have intercourse. Upon completing the act, he admonished the victim not to report the incident and left. The girl waited until he was gone and then went to a neighbor's residence. The neighbor reported the crime to the police and then took the girl to the hospital for examination. The girl furnished the authorities with a physical description of the assailant from which a composite sketch was prepared.

Both victims lived near each other in the Palm Springs area; in fact, the two girls were acquainted, Mary having at one time acted as a babysitter for Heidi; however, neither girl had ever seen the defendant prior to the separate assaults, although he had apparently rented an apartment in the same residential area where the girls lived shortly before the attacks.

Apparently on the basis of the physical description of the assailant furnished by the two victims, and from the composite drawing or drawings of the attacker prepared from details supplied by Mary, the police began a routine investigation of males residing in the immediate vicinity who might fit such description. ¹ In addition to the physical description of the assailant furnished by the victims, the police had two other 'leads': (1) A Palm Springs identification technician had discovered two latent impressions on the drinking glass in Mary's apartment; and (2) on the day following the attack on Mary, the authorities also found a page or sheet from her stenographic pad in a vacant lot next to her apartment; this sheet had unsigned notations on it to the effect that the writer had visited an apartment (inferentially the manager's), the latter had not been at home, and the writer was interested in renting an apartment.

On January 28, 1969, a Palm Springs officer visited the defendant's apartment and told him he was being questioned as a suspect because there had been some sexual attacks in the area where he lived and that he fit the description of the assailant. However, the visit was obviously investigatory in nature as the defendant was not arrested.

The following day the Palm Springs police received a call from an employee of the Holiday Inn to the effect that the defendant had applied for a job as a bartender. A local ordinance required that hotel bartenders register with the police. Registration included fingerprinting. The officer told the caller to have the defendant visit the station and fill out the required forms. After receiving the Holiday Inn call to the effect that the defendant intended to register for employment as a bartender, the officer left instructions with the police clerk that the job application form be modified to indicate that the form was to be written rather than printed. (Ordinarily, the forms bore a notation to the effect that they were to be printed.) The purpose of making the change was to enable the police to obtain a specimen of the defendant's handwriting so that the specimen could be compared with the note found in the vacant lot next to the rape victim's apartment. The police also wanted the defendant's fingerprints in order to compare them with the prints lifted from the glass found in Mary's apartment.

Later the same day (January 29), the defendant appeared at the police station, wrote out the answers required by the job application form, and furnished the police with his fingerprints. The two latent impressions from the glass matched the defendant's prints on the fingerprint card.

Apparently acting on the basis of the fingerprint identification and their prior knowledge reflecting that the defendant fit the assailant's physical description, the police proceeded to the defendant's apartment without a warrant in the early morning hours of January 30 and placed him under arrest for the two separate assaults. He was advised fully of his constitutional rights and informed that he would have to accompany the officers to the station. After being so informed, the defendant indicated he wanted to wear his jacket to the station. One of the arresting officers searched the jacket prior to handing it to him to make certain it did not contain any weapons; in one of the pockets was a .22-caliber revolver. This weapon was similar to the one used by the assailant in the rape incident. The jacket was fleece-lined and was identified at trial by Mary as the one worn by the attacker.

After his arrival at the station, the defendant was fingerprinted and furnished with a 'statement of (constitutional) rights' form which he signed, thereby acknowledging that he had been fully advised of his rights. The writing on the statement of rights form and the writing on the job application form required by the local ordinance was compared with the note in the assailant's handwriting found in the vacant lot next to Mary's apartment. An analysis of the defendant's handwriting on the job application form and on the statement of rights form matched the writing on the note found in the vacant lot next to Mary's apartment. An expert testified that the note found in the lot was written by the defendant.

On the day following the defendant's arrest, Mary was shown 100 'mug' shots or photographs by the police. She identified the defendant as the assailant from one of the photos.

The defendant testified in his own behalf. In denying his involvement in either offense, the defendant offered the defense of alibi, claiming that he had been with his mother at the time of the commission of both crimes. His mother corroborated his alibi, testifying that he had been with her when both assaults were perpetrated.

The defendant's attack on the judgment takes the following form: (1) It was error for one judge to Voir dire the jury and for another to preside over the trial; (2) his fingerprints and handwriting sample were obtained in violation of his constitutional rights against self-incrimination, right to privacy, and equal protection; (3) the court abused its discretion in finding that the identification technician was qualified to testify as a fingerprint expert; (4) the photographic identification procedure was impermissively suggestive and was also improperly conducted in that he was not represented by counsel at the time the pretrial identification was made; (5) the court erred in its evidentiary rulings; (6) the district attorney was guilty of prejudicial misconduct in his closing argument to the jury; and (7) the court erred in its instructions to the jury.

Defendant initially maintains that it was error for one judge to preside over the Voir dire proceedings and for another judge to preside over the trial. When the case was called for trial before Judge Marsh on July 22, 1969, he apparently was engaged in another matter. The district attorney and defense counsel stipulated that Judge Slaughter could preside over the Voir dire examination of the jury, and that when the jury had been impaneled, the matter could be reassigned to Judge Marsh for purposes of trial. After the jury was selected and sworn, Judge Marsh...