People v. Thompson

• Citation: 13 Cal.App.3d 47,91 Cal.Rptr. 341
• Decision Date: 24 November 1970
• Docket Number: Cr. 15550
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. John THOMPSON, Defendant and Appellant.

Page 341

91 Cal.Rptr. 341

13 Cal.App.3d 47

The PEOPLE of the State of California, Plaintiff and Respondent, v. John THOMPSON, Defendant and Appellant.

Cr. 15550.

Court of Appeal, Second District, Division 5, California.

Nov. 24, 1970.

John H. Leahy, Torrance, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Peter G. Samuelson, Deputy Atty. Gen., for plaintiff and respondent.

REPPY, Associate Justice.

I. Statement of the Case

Thompson and two codefendants, Washington and Williams, wee charged by information with possession of marijuana in violation of Health and Safety Code, section 11530. All were tried together before a jury and found guilty. All were represented by the same attorney, Mr. R. H. Lund. As to Thompson (hereinafter, defendant), proceedings were suspended and probation was granted for one year. Defendant appeals from the judgment (order granting probation; Pen.Code, § 1237).

II. Issues

Defendant raises a number of issues the most telling of which questions whether, at his trial, he was afforded the effective assistance of counsel as guaranteed by the United States Constitution (Amendment VI) and California Constitution (art. I, § 13). Because we have determined that defendant is correct in the above contention, we do not reach the remaining issues he has raised since they will probably not arise in the same manner if defendant is retried and is represented by separate counsel.

III. Procedure

Because of the nature of defendant's contention, we briefly outline some of the circumstances of the trial which are pertinent thereto. The district attorney's office filed the information on October 27, 1967. All three defendants appeared in Department 'South E' on October 30, 1967, for their arraignment and plea. Thompson was represented by private counsel, attorney R. H. Lund. The codefendants remained unrepresented. A supplementary reporter's transcript reveals that the following occurred at that proceeding: 'MR. LUND: Your Honor, Mr. Thompson is ready to plead. Both of the other defendants advised me they can afford private counsel and they are arranging to retain me, but I would ask that their matter go until one week from today so that can become a reality, and they say they will have no objection to waiving time and that their case be set for the same date Mr. Thompson's case be set. THE COURT: Do you presently represent Mr. Thompson? MR. LUND: I presently represent Mr. Thompson and I appeared at the preliminary for all three men.'

On November 6, 1967, Washington and Williams were arraigned and pleaded 'Not Guilty' and their trial was set for January 17, 1968. R. H. Lund was listed in the court's minutes as representing Washington and Williams.

The trial court made no inquiry into the possibility of conflicts of interest at either proceeding and gave no advice concerning the right or desirability of having separate counsel in case it was felt that there was a conflict or the potential therefor.

IV. Facts

At the trial the arresting officers Keeran and MacLyman of the Long Beach Police Department testified for the prosecution. They explained that at 1:00 a.m. on October 8, 1967, they came across a 1960 Thunderbird parked on Olive Avenue opposite the flow of traffic; that three men were sitting inside the vehicle; that they observed defendant, who was sitting in the front passenger seat, reach toward the floorboard as though he was placing something underneath the seat; that when they emerged from the stopped patrol vehicle and approached the open passenger side window they smelled a strong odor of marijuana emanating from the car. Officer Keeran, on direct examination, recounted that at that point he noticed Washington make a secretive movement '* * * away from his rear or the junction of the seat cushion and backrest' and that his partner told him that Washington 'had placed something in the seat cushion.' When Officer Keeran went on to relate that Officer MacLyman reached into that area where he had seen Washington place his hand, he was interrupted by the deputy district attorney who cautioned, 'Don't mention what you found. Just continue. * * * Don't mention what you found.' This admonition reflected a ruling which the trial judge had previously made off the record wherein he barred the mention to the jury of any weapons which had been found during the search of the automobile. The substance of this conference was made known later in the trial when the trial judge made the following statement:

'THE COURT: The record should show that this meeting is in the chambers away from the jury and that the purpose of the meeting is because there was some consultations at the bench which were not reported. We want to get those straightened out.

'I want the record to show what happened, so I would like to make this statement that when the matter of the weapons was first mentioned during the Plaintiff's (sic) opening statement, the attorneys approached the bench at the request of the Defendants' attorney, and the Defendants' attorney objected to any reference to weapons found in the car because it would be prejudicial to the Defendants' case.

'I asked the Defendants' counsel at that time if there was any issue in the trial as to search and seizure, and Defendants' counsel said No, that the issue had previously been resolved against Defendants.

'I sustained the Defendants' objection and ordered that no reference be made to the weapons. * * *'

Next in the prosecution's case Officer MacLyman described the furtive movements of Washington in the back seat. He was not, however, asked by the deputy district attorney as to what he found in the crevice between the seat and rear cushion. On cross-examination Mr. Lund asked the officer to tell what he had found in that crevice. Officer MacLyman explained that he had found a pocket knife. The deputy district attorney had earlier notified the court that if such questions were asked by defense counsel he would feel free to explore the issue on redirect; and on redirect the deputy district attorney presented a .32 caliber revolver and three live and one expended shells to the officer who identified the items as having been found beneath the front seat on the driver's side of the Thunderbird in the course of a search following the arrest of the trio.

During the meeting in chambers, when the trial judge explained his earlier off-the-record ruling, he stated that he had warned defense counsel that if he persisted in inquiring about the finding of the pocket knife, he would be forced to allow the prosecution to introduce evidence on the finding of the revolver. ¹ Mr. Lund explained his reason for cross-examining Officer MacLyman on the point as follows: 'The description of the officers as to the movement of the Defendant Washington in the back seat of the automobile towards some hiding movements caused me to believe that in presenting this case it was necessary to show that what he put behind the seat of the car was a small pocketknife in order to show to the jury that it was not some other type of contraband or anything of a narcotic nature, and I don't see how in any way that relates to the finding at the a later time of the revolver under the carpet or under the front seat of the car.' Later on cross-examination, Washington explained that he became frightened when the police approached the car and hid the pocket knife just because he didn't want it found on his person, even though it was not illegal to possess it.

The officers brought out these additional facts: After the knife was retrieved, Officer Keeran observed on the rear floor in front of where Washington was seated a partially smoked handrolled cigarette that appeared crushed (or stepped on). It was warm when he touched it. All three occupants were ordered to exit from the vehicle, were informed that they were under arrest for possession of marijuana, and ordered to stand with their hands on the roof of the police unit. The officers searched the car. In addition to locating the revolver they found a partially full beer can on the front passenger's side. Then the officers observed that Williams had placed his foot on top of a cigarette and had begun grinding it into the pavement. Upon closer inspection, the officers found that the cigarette was hand wrapped in yellow paper and partially smoked. At this point the persons of all three suspects were searched for weapons. Following this search the officers noticed that there was an unsmoked handrolled cigarette lying in the street approximately one and one-half feet behind defendant's foot. All the cigarettes found contained marijuana.

After the jury had returned the guilty verdicts, Mr. Lund made a motion for a new trial, based in part on the following: 'I will urge the Court to consider the effect of the showing of the firearm that originally had been excluded from the evidence, which was brought out through the unfortunate problem involving the Defendant Washington, who was attempting to hide apparently a pocketknife. It may be that in a situation like this, and sometimes I think it is, * * * it is impossible for three Defendants charged jointly to have a fair trial if they stand trial together. Certainly the decision as to Williams and Thompson might have been different had they not been on trial with the Defendant Washington who acknowledged his guilt and sat there where they found the marijuana cigarette right at his feet in the automobile. Then combined with the acts on his part that let in, because as I saw it to defend Defendant Washington adequately I had to show what he was attempting to put behind his seat, that it was a pocketknife. That opens the door to let in the other incriminating evidence--not incriminating evidence as to the facts of this case, but certainly prejudicial to the minds of untrained judges of the facts--that the revolver was...