People v. Underwood

• Citation: 389 P.2d 937,61 Cal.2d 113,37 Cal.Rptr. 313
• Court: United States State Supreme Court (California)
• Decision Date: 11 March 1964
• Parties: , 389 P.2d 937 The PEOPLE, Plaintiff and Respondent, v. O'Neal UNDERWOOD, Defendant and Appellant. Crim. 7456.

Page 313

37 Cal.Rptr. 313

61 Cal.2d 113, 389 P.2d 937

The PEOPLE, Plaintiff and Respondent, v. O'Neal UNDERWOOD, Defendant and Appellant.

Crim. 7456.

Supreme Court of California, In Bank.

March 11, 1964.

Harry E. Rice, San Francisco, under appointment by the Supreme Court, for defendant and appellant.

Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., and Keith E. Pugh, Jr., Deputy Attys. Gen., for plaintiff and respondent.

GIBSON, Chief Justice.

O'Neal Underwood and his 17-year-old cousin, Marshall Wisdom, were jointly charged with rape, robbery, and kidnaping. After the preliminary hearing the charges against Wisdom were suspended, and he testified as a prosecution witness at the trial of Underwood. ¹ A jury found defendant guilty of the crimes with which he was charged, and he has appealed from the judgment of conviction, contending that the court erred in admitting eivence of extrajudicial statements made by himself and by Wisdom which were, assertedly, the product of police coercion.

Mrs. Mamie Dozier, the prosecuting witness, gave the following version of what had occurred: About 11:00 p. m. on September 30, 1961, she left her home to drive to a store. She was wearing a formfitting sheath dress with 'slits in the back running up and down,' which she intended to wear to a dance at a men's 'social club' later that night, and she did not have on any underclothes. She stopped on her way to the store at a public telephone booth to call a friend. As she returned to her car, defendant, whom she had never seen before, got out of another car and approached her. He asked her if she could tell him the location of Sanford Avenue, and she replied that if he would follow her in his car she would sound her horn when they arrived there. On reaching Sanford Avenue she sounded her horn and stopped her car in order to make a turn. Defendant, who with Wisdom had followed in his car, came over to her and asked for further directions. He then opened her car door, grabbed her around the neck, threatened to kill her if she screamed, and got into her car, which he drove a few blocks and parked. Wisdom followed in defendant's car. Defendant took $3.25 from her purse and forced her to have intercourse with him. She did not physically resist him because he had threatened her with harm and she was afraid. He pushed her from her car into the back seat of his car and said to Wisdom, 'You drive. You know the place.' Wisdom drove them to the vicinity of the Hensley redevelopment tract, where defendant had intercourse with her in the back seat. He forcibly pulled some rings from her hand, which she told him were 'only worth a hundred dollars.' He asked Wisdom, who had remained in the front seat, if he wanted to have sexual relations with her, and Wisdom said, 'No.' After telling Wisdom to get into the rear seat, defendant drove back to Mrs. Dozier's car, and on the way she and Wisdom talked to each other. On arriving at her car defendant told Wisdom to let her out. She went home and told her husband she had been robbed, and he immediately summoned the police. She told them she had been raped and robbed.

Mrs. Dozier's husband testified that on her return home she was 'hysterical,' her dress was torn, her ring finger was bleeding, and her rings were missing.

Wisdom, called as a witness by the prosecution, testified as follows: He had been drinking and riding with defendant on the night in question. Defendant left his car to talk with Mrs. Dozier near a telephone booth, and when he returned they followed Mrs. Dozier to Sanford Avenue, where she parked. Defendant walked over to her car, talked to her for a short while, then got into her car, drove it a few blocks and parked again. Wisdom, who did not hear their conversation, followed in defendant's car and parked behind them. He thought defendant and Mrs. Dozier remained in her car for half an hour to an hour, but he was not sure of the exact length of time because, after finishing a can of beer, he went to sleep, and he did not hear any conversation or other sounds from within Mrs. Dozier's car. He awoke when a train went by, and he saw Mrs. Dozier at the front door of defendant's car with defendant standing behind her. Defendant and Mrs. Dozier got into the back seat and talked. Wisdom paid no attention to their conversation and heard only the mention of 'some kids, or something.' Defendant did not ask Wisdom to drive on say anything to him but took the wheel himself and drove to the Hensley tract. After arriving there defendant got into the back seat. Wisdom did not see or hear 'anything.' He did not notice defendant pulling at her fingers, and did not hear her say, 'It's not worth more than a hundred dollars' or, 'It hurts,' or hear any other conversation between her and defendant. Wisdom later got into the back seat with Mrs. Dozier. He did not remember having any conversation with her or noticing 'anything about her hand.'

The prosecution claimed surprise during the course of Wisdom's testimony and was permitted to impeach him by means of prior inconsistent statements he had made to the police following his arrest. There was uncontradicted evidence that these statements were involuntarily made as the result of pressures by the police. We will discuss later the contention that it was error to use these statements to impeach Wisdom.

Defendant took the stand in his own defense and testified to the following effect: He had seen Mrs. Dozier at a bar and various other places prior to the night in question. When he saw her coming out of a telephone booth, he asked her if she wanted to go 'for a ride and have some fun.' At first she said she did not have time, but as he started to walk away she said, 'The kind of fun that you want to have, I have time for that.' She told him to follow her and then drove to Sanford Avenue and parked. After stopping his car he walked over to hers. She was sitting behind the wheel with her dress pulled up above her knees. She asked him if he thought that 'this was worth the price of a fifth of whiskey' and, when he agreed, she said they could not leave her car parked there because her husband might see it. Defendant then drove her car a short distance and parked. Wisdom followed them and parked nearby. Defendant and Mrs. Dozier talked for a few minutes, and she said she would feel more at ease if they got out of her car, because her husband might 'show up.' They went to defendant's car, and, after awakening Wisdom, who was intoxicated, defendant told him to get into the back seat. Defendant then drove the car to a deserted area near the Hensley tract, where he and Mrs Dozier had sexual relations. He did not threaten or use any force on her, and he did not take her money or her rings. Wisdom was asleep in the front seat. She asked defendant for the money he had promised for the purchase of whiskey, and he told her that he had nothing but a twenty-dollar bill and would have to get change somewhere. He then drove her back to her car and, when she got out, drove off without giving her anything.

On cross-examination defendant testified that, although he had seen Mrs. Dozier before September 30, 1961, he had not talked to her, that he did not recall her saying her name was Mamie Dozier on the night in question, and that he had never heard any other name used in connection with her. He was then asked if he had made a statement to the police after his arrest, and he admitted having done so. He said it was possible he told the police he knew Mrs. Dozier as 'Mary Alyce,' but did not think he told them that he had previously had meetings and sexual relations with her. After defendant had concluded his testimony the prosecution placed a police officer on the stand who testified defendant told the police following his arrest that he had known Mrs. Dozier under the name 'Mary Alyce' and that they had frequently met and engaged in sexual relations. The officer further testified that defendant admitted engaging in a sexual act with her on the night in question, although he denied using any force or taking her money or rings.

Defendant was recalled to the stand and testified that it was true that he had previously had relations with Mrs. Dozier. He admitted making the statement testified to by the police officer, but said he had done so because he was physically exhausted from lack of sleep after the police had repeatedly awakened him during the night and told him to stand. As a further explanation of why he made the statement he said that he had a piercing headache, not only because of the loss of sleep but also because at the time he was apprehended he had been physically abused by members of Mrs. Dozier's family who had hit or kicked him about the head. He also said he made the statement because the police 'had been reading the Lindberg Act to me, and stating that if I did not say the exact thing that was on this complaint the lady signed * * * officer Davis said tht he personally would see that I was escorted to the gas chamber.'

The prosecution 'must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth.' (Rogers v. Richmond, 365 U.S. 534, 540-541, 81 S.Ct. 735, 739, 5 L.Ed.2d 760; see also Shotwell Mfg. Co. v. United States, 371 U.S. 341, 348, 83 S.Ct. 448, 9 L.Ed.2d 357.) And it is uniformly held that involuntary confessions are inadmissible as affirmative evidence not only because they are untrustworthy but also because it offends the community's sense of fair play and decency to convict a defendant by evidence extorted from him and because exclusion serves to discourage the use of physical brutality and other undue pressures in questioning those suspected of crime. (People v. Berve, 51 Cal.2d 286, 290, 293, 332 P.2d 97; cf. People v. Ditson, 57 Cal.2d 415, 437 et seq., 20 Cal.Rptr. 165, 369 P.2d 714.) As said in Spano v. New York, 360 U.S. 315, 320-321, 79...