People v. Terry

Decision Date02 April 1970
Docket NumberCr. 10115
Citation85 Cal.Rptr. 409,2 Cal.3d 362,466 P.2d 961
CourtCalifornia Supreme Court
Parties, 466 P.2d 961 The PEOPLE, Plaintiff and Respondent, v. Harold Roger TERRY and Juanelda Allen, Defendants and Appellants.

Frederick E. Watson, Oakland, and Howard L. Schwartz, San Francisco, under appointments by the Supreme Court, for defendants and appellants.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., Edward P. O'Brien and Michael J. Kelly, Deputy Attys. Gen., for plaintiff and respondent.

PER CURIAM.

A jury found Harold Terry and Juanelda Allen guilty on two counts of first degree murder. Terry admitted a prior felony conviction of armed robbery. The jury fixed Terry's penalty at death on each count. Juanelda received life sentences because she was only 17 years old at the time of the homicides (see Pen. Code, § 190.1). Terry's appeal is automatic (Pen.Code, § 1239, subd. (b)), and Juanelda's appeal has been consolidated therewith.

About 11 p.m. on February 2, 1965, Marshall Burnett was slain in the course of a robbery of his Oakland drugstore. He was shot four times and stabbed seventeen times with a pair of scissors. The robbers took cash and stamps worth about $700. Prints of a man's shoe and what appeared to be the print of the spike heel of a woman's shoe were found on papers scattered about the floor of the pharmacy. An employee testified these papers had not been on the floor two hours before the robbery when he had swept the store.

According to Terry's testimony, he and Juanelda left their apartment about an hour before the robbery and drove to the neighborhood of Burnett's pharmacy, which they planned to rob. The pair walked to the pharmacy and waited outside for 10 or 15 minutes until customers left. During this wait they planned the details of the robbery. They then entered the store, and, according to plan, Juanelda asked Burnett for some Dristan. Defendants knew Burnett would turn his back to them to get this item, and, while his back was turned, Terry drew his revolver and announced, 'This is a stickup.' Terry then told Juanelda to turn out the store lights and close the front door, which she did. While Terry held his gun on Burnett, Juanelda rifled the cash register. Terry then told her to empty the safe, which she did, with the exception of a metal box which she was unable to remove. Terry pried this box out of the safe while Juanelda held the gun on Burnett. Terry then told Juanelda to get some adhesive tape. He took back his gun, and Juanelda found some tape and taped Burnett's hands behind his back. Terry took a pair of scissors and cut the tape, at which point Burnett broke free and lunged at Terry. As the two struggled together, Terry stabbed Burnett with the scissors and shot him several times. Defendants then left the store. Burnett was dead.

Juanelda's version of this episode differs from that of Terry only in that she denied that the pair had discussed a robbery while waiting in front of the pharmacy and denied she was aware that Terry planned a robbery until he drew his gun. She admitted that she held the gun on Burnett while Terry rifled the safe, but testified that she left the store before Terry killed Burnett.

The second homicide occurred about four weeks later, on February 28, 1965. Dick Leong, employee at an Oakland Safeway store, was killed by two bullets, one of which was fired directly into the back of his head. These bullets were fired from the same gun that was used to kill Burnett. Leong was murdered soon after he had closed up the Safeway store around midnight. The killing was observed by witnesses, one of whom observed that Leong's assailant was a Negro; another noticed a woman with a white sweater in the getaway car, which was described as light in color with one black front fender. Still another witness reported that the car's license plate number was BOR 228.

According to defendants, Terry and Juanelda left their apartment between 11 and 11:45 p.m. the night of the Leong killing and drove to the vicinity of the Safeway store. Terry testified that they had previously observed the Safeway store on several occasions while plotting the robbery and were familiar with Leong's routine in closing. They planned to wait until Leong had left the store, to prevent his leaving the area by deflating one of the tires on his car, and to force him at gunpoint to enter the store and open the safe. On the night of the killing they parked their car on a hill overlooking the store and a short time later drove close to the store. Terry got out of the car and told Juanelda to drive it up when he whistled. Terry deflated one of Leong's tires, but Leong started his car before noticing the flat. He then stopped while still in the Safeway parking lot and started to change the tire. Terry approached him with drawn gun and announced, 'This is a stick-up.' Terry then gave the prearranged whistle signal to Juanelda, and she drove the car along the street and stopped, blocking the entrance to the parking lot. Meanwhile Leong attempted to throw his lug wrench at Terry, but it slipped out of his hands. Leong fled. Terry fired a shot in the air in Leong's direction and gave chase. Leong ran behind defendants' car and into the street, shouting 'Help.' Terry ran up to the car and fired at Leong over the roof of the car. The shot felled Leong across the street. Terry then ran across the street and put a bullet into the back of Leong's head. He ran back to the car, jumped in, and Juanelda drove off.

Juanelda's account of this episode differed only slightly from Terry's. She denied planning with Terry to rob the store and said she did not know he planned a robbery until he began firing at Leong.

Police found and arrested defendants by tracing the license number supplied by the witness to the Leong killing. The number BOR 228 did not check out, but trying the letters BOR police found a car that matched the witness' description of the getaway car used at the Safeway store killing. This car was owned by one Charles Jones, at that time incarcerated in jail. One of the officers who eventually arrested defendants, Inspector Spence, learned from Berkeley police that Terry had possession of Jones' car in February 1965, the time of the homicides. This information came to the Berkeley police from a reliable informant, who also reported that Terry and Juanelda were living together. Spence also knew that police ballistics tests showed the same gun had been used to kill both Leong and Burnett and that what appeared to be a woman's heel print indicated a female accomplice in the Burnett killing. Furthermore, Spence learned that Terry and a pregnant Negro woman had participated in a recent robbery of a home in Alamo, California, and that Juanelda had given birth to a child in an Oakland hospital in January 1965, shortly after the Alamo episode.

From Mosco Allen, Juanelda's estranged husband, authorities had also learned that Terry and Juanelda were cohabiting. Mr. Allen gave police a street address for the apartment house where the pair allegedly lived. When officers went to that address they observed parked in the carport of the apartment house an automobile which matched the description of the car used in the Leong homicide.

Spence and another officer arrested Terry near his apartment on March 4, 1965. They learned from Terry the room number of his apartment, went to it, and arrested Juanelda. The apartment was then searched by the officers, and several pieces of evidence were seized. Among those used against defendants at trial were a pair of men's shoes (the prints of which matched those found at Burnett's pharmacy), bullets of the same caliber as those used in both homicides, women's shoes which could have made the spike heel marks at the pharmacy and which were probably bloodstained, and a woman's coat, also bloodstained.

Defendants were jailed and eventually confessed. These confessions were used against them at trial.

Police obtained several guns used by Terry from the home of his estranged wife. One of these was the murder weapon.

The People also proved an attempt by Terry to escape from jail some six months after his arrest, while he was awaiting trial on the homicide charges. During this attempted escape Terry wielded and fired a revolver and stated to a policeman, 'I have killed two men already. It doesn't make any difference to me if I kill you too.'

Terry took the stand and fully admitted the robbery and killing of Burnett and the attempted robbery and killing of Leong. He testified that Juanelda planned these crimes with him and knowingly participated in their execution, and that she had knowingly participated with him in several other robberies and burglaries prior to the Burnett-Leong episodes.

Juanelda took the stand and admitted her involvement in both homicides, but she denied any knowledge that Terry planned a robbery--on either occasion--until the moment she observed him with his gun drawn. She claimed she aided Terry in the Burnett robbery after he pulled his gun only out of fear that he might harm her if she didn't. On cross-examination she admitted her presence at the Alamo robbery. She claimed, however, that she did not know that Terry and his cohort planned the robbery there until they started loading their loot into the car. She knew then, however, that they had robbed to get the loot. She also admitted on cross-examination that she had bought bullets for Terry's gun after he had killed Burnett but prior to the Leong homicide.

A psychiatrist testified that Juanelda was immature and nonaggressive, and that she would 'blindly follow' one whom she loved. Although she was not mentally ill, the psychiatrist believed that the reason Juanelda aided Terry in the two homicides was her love for and fear of him.

Alleged Denial of Right to Trial by the Court

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