People v. Thomas

Decision Date10 March 1970
Docket NumberCr. 3654
Citation86 Cal.Rptr. 97,5 Cal.App.3d 889
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Mathew D. THOMAS, Defendant and Appellant.

J. Stanley Sanders, Beverly Hills, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Elizabeth Miller, and Arnold W. Lieman, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

KAUFMAN, Associate Justice.

In a jury trial, defendant was convicted of two counts of rape (Penal Code, section 261, subd. 3). His motion for a new trial and application for probation were denied, and he was sentenced to state prison for the term prescribed by law, the sentences to run concurrently. He appeals from the judgment of conviction.

Defendant contends (1) that the evidence is insufficient to support the verdict; (2) that he was denied the right to counsel at the police lineups; and (3) that the lineup procedure was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was thereby denied due process of law.

Sufficiency of the Evidence

The test on appeal, as to the sufficiency of the evidence, is whether there is any substantial evidence to support the conclusion of the trier of fact, not whether guilt is established beyond a reasonable doubt, and, in applying this test, we must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Redmond, 71 A.C. 775, 784--785, 79 Cal.Rptr. 529, 457 P.2d 321.)

Applying the above rule, the following is a statement of the evidence presented at trial.

At about 8:30 a.m. on June 16, 1968, the victims, two eighteen-year-old girls, Christie and her cousin Jayme, arrived at the Tahquitz Falls area in Palm Springs. The girls drove there in Christie's car and parked it at the foot of the trail leading to the falls. Christie was wearing a short dress with a two-piece bathing suit underneath. Jayme was wearing a two-piece bathing suit with a blouse over it. Both girls were carrying their sandals.

As the girls sat on the curb, putting on their sandals, three Negro men in an old light-colored car drove by, two men seated in the front seat, one in the rear. The man in the back was wearing a green turban. A man identified as defendant was sitting on the passenger side of the front seat. He was wearing a blue and white checked shirt with short sleeves and a straw hat. After the girls had put on their sandals, they started toward the falls area.

About fifteen minutes after the girls started their walk, Jayme saw the defendant coming up behind her and said hello to him. Hearing her cousin's greeting, Christie turned around to see to whom Jayme was speaking and saw the defendant. He had on a blue and white checked shirt and a straw hat.

Defendant engaged the girls in conversation as they walked, asking Jayme if she would accompany him to a 'love-in' which was being held in the falls area. When Jayme declined, and resisted defendant's attempts to put his arm around her, defendant produced a gun. Christie was ordered to walk ahead and to refrain from looking back, while Jayme followed, defendant holding his gun on her.

After walking about two minutes, Christie turned around and saw another male Negro. He was 'about six-two,' very thin, and about twenty years old. He had a green turban on his head and was wearing very bright colors. Christie testified that he was the same person whom she had earlier seen in the back seat of the car.

Defendant directed the girls behind some rocks. The other male Negro joined the trio behind the rocks. Defendant said that he was 'high,' mentioned marijuana, and asked the girls if they would like to smoke marijuana. They declined.

Defendant next ordered the girls to 'disrobe.' When the girls remained motionless, he repeated his request for them to disrobe. Jayme started to 'turn back and look,' and he told her not to. She asked him, 'please not to do that.' He told her to shut up; that if she would not cooperate, he could kill her. Jayme told defendant she did not care if he killed her but that she was not going to do anything with him. Defendant hit Jayme against the right ear with his gun and she fell down against the cement. Blood began to ooze out of her ear.

Defendant again ordered the girls to disrobe. When Christie stated she would not, defendant ripped off the top of her bathing suit.

Defendant helped Jayme off with her bathing suit top. He told the girls to lie down on their stomachs, facing the rocks. After the girls were undressed, defendant said, 'I'm taking this one,' pointing at Jayme.

It is unnecessary to recount the details of the rapes. Suffice it to say that the victims testified in detail that the defendant compelled Jayme to have three acts of intercourse with him and compelled Christie to have intercourse with him.

During the course of the attacks upon the girls, defendant got up and asked Christie if she had a cigarette. She told him she had. He got a cigarette out of his pocket and asked her if she had any matches. Christie gave him a book of matches, blue and white in color, having the name 'Newporter Inn' on the cover. The matches were not returned to Christie.

Following the attacks, defendant ordered the girls to keep silent regarding the events of the morning, threatening to kill them should they disobey. He told the girls to count to one hundred and left. After counting, the girls got dressed, walked over to a stream and washed and left the area. After attempting to locate a hospital without success, the girls went to the police station in Palm Springs. It was then approximately 10:00 a.m.

At approximately 10:35 a.m. Christie and Jayme were admitted to the Desert Hospital for examinations. Traces of spermatozoa were found on the vaginal walls of both Christie and Jayme. The examining physician examined Jayme's right ear and observed an irregular laceration involving the cartilage and skin of the ear which was repaired with stitches.

At approximately 9:55 a.m. Officer Gary Boswell of the Palm Springs Police Department noticed an older model, grey Cadillac stopped in a no-parking zone near the base of the path to Tahquitz Falls. Initially, the car appeared to be empty. However, as he approached for the purpose of issuing a citation the officer saw a man, who had evidently been lying on the rear seat, sit up. Upon questioning, this man, a Negro, gave his name as Jimmy Lee Patrick. He stated that he had but recently arrived in the Palm Springs area, where he had been met by his cousin and the owner of the car a friend of his cousin. Mr. Patrick indicated that he did not know the owner's full name, referring to the person only as 'Matthew.' Officer Boswell remained outside the automobile and Mr. Patrick assisted the officer in his attempts to ascertain the owner of the vehicle by handing to the officer the contents of the glove compartment. Although the registration slip could not be located, Officer Boswell found among said papers a number of forms, bills and receipts made out to Mathew Thomas. This automobile was identified as the same one the girls had seen earlier and was owned by defendant's wife. Defendant, by his own testimony, had the use of this automobile on the date of the crime.

At the time of his arrest, defendant explained the presence of this automobile at the entrance to Tahquitz Falls by telling the arresting officer that the automobile had been stolen on the evening of June 15, 1968 and not recovered by him until sometime before noon the next day when he found it near the entrance to Tahquitz Falls. No report to the police of this alleged theft had been made. At the trial, however, defendant testified that he had driven the car to Banning on the evening of June 15, 1968 for the purpose of attending a party and had not returned to his home with the car until early on the morning of June 16, 1968, at which time he parked the car near his home, leaving the key in the vehicle. He stated that he then went to bed, where he stayed until approximately 3:00 p.m. on June 16.

Detective Howard Tuthill of the Palm Springs Police Department placed defendant under arrest about two hundred feet from defendant's home at approximately 9:00 p.m., June 16, 1968. Officer Tuthill told defendant that he was under arrest for investigation of forcible rape and advised him of his constitutional rights in conformity with Miranda. Officer Tuthill asked defendant if he understood these rights; defendant said he was not sure. The officer readvised him or his rights and defendant then stated he understood.

Officer Tuthill next sought, and was given permission, to enter defendant's house for the purpose of conducting a search. 1 On the floor of the northeast bedroom, the officer found a book of matches, white with blue lettering, bearing the name 'Newporter Inn.' Defendant stated to Officer Tuthill that these matches were his.

The defendant was identified as the assailant, both at police lineups and in court by the two victims of the crime. A matchbook similar to that given the assailant by Christie was found in defendant's home and ownership thereof was claimed by defendant. The automobile registered to defendant's wife, to which he had access on the date of the crime, was established as being at the scene of the crime within a few minutes of its commission. Obviously, the verdict is supported by substantial evidence.

Before considering defendant's contentions concerning the unlawful character of the police lineups, it should be noted that respondent argues that defendant is precluded from raising these issues on appeal because of his failure at trial properly to object to or move to strike either the evidence of the lineup identifications or the in-court identifications. 2 There is considerable...

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