People v. Varnum
| Decision Date | 25 February 1969 |
| Docket Number | Cr. 12041 |
| Citation | 75 Cal.Rptr. 161,70 Cal.2d 480,450 P.2d 553 |
| Court | California Supreme Court |
| Parties | , 450 P.2d 553 The PEOPLE, Plaintiff and Respondent, v. Thomas Lamas VARNUM, Defendant and Appellant. |
Jay Plotkin, Studio City, under appointment by the Supreme Court, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., William W. James, Asst. Atty. Gen., and Ronald M. George, Deputy Atty. Gen., for plaintiff and respondent.
A jury found Thomas Varnum, John Jackson and Edward Jackson guilty of assault with intent to commit robbery against James H. Fields (Pen.Code, § 220), 1 first degree murder of Norman Merrill (§§ 187, 189), kidnaping of Norman Merrill for the purpose of robbery (§ 209) and robbery of Norman Merrill (§ 211). The jury fixed Varnum's punishment at death for both the murder and the kidnaping. 2 In People v. Varnum (1964) 61 Cal.2d 425, 38 Cal.Rptr. 881, 392 P.2d 961, we affirmed the judgment as to guilt and reversed as to penalty for error in argument by the prosecutor and instruction by the court of the type condemned by People v. Morse (1964) 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33, 12 A.L.R.3d 810.
Thereafter, on habeas corpus, we recalled the remittitur and reversed the judgment in its entirety on the ground that defendant's confessions had been admitted into evidence in violation of People v. Dorado (1965) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361. (In re Varnum (1965) 63 Cal.2d 629, 47 Cal.Rptr. 769, 408 P.2d 97.)
Upon retrial, defendant was again found guilty on all four counts charged. The jury fixed the penalty on the murder conviction at death and on the kidnaping conviction at life imprisonment without possibility of parole. On defendant's automatic appeal we affirmed as to guilt and reversed as to penalty because of the admission contrary to section 1111 of the uncorroborated testimony of an accomplice as to other crimes committed by defendant. (People v. Varnum (1967) 66 Cal.2d 808, 59 Cal.Rptr. 108, 427 P.2d 772, cert. den. 390 U.S. 529, 88 S.Ct. 1208, 20 L.Ed.2d 86.)
The case is now before us on appeal after defendant's third penalty trial on the murder conviction. A jury again fixed defendant's punishment at death. This appeal is automatic. (§ 1239, subd. (b).)
On the evening of August 16, 1962, Norman Merrill was working alone as the attendant of a service station in Los Angeles. Varnum and the two Jacksons robbed the station of approximately $50 and, afraid that there might have been a witness to the holdup, compelled Merrill to enter the car of a customer of the station which had been parked there earlier in the day. Robert Garcia, a truck driver, saw the car leave the station with two young Negro men seated in the front seat and one in the back seat with Merrill. Finding no one at the station, Garcia called the police.
Merrill's wallet was found by a passing motorist at 6:30 a.m. the following morning about 10 miles from the station. At 4 p.m. that afternoon John Russell, a maintenance mechanic, discovered Merrill's body lying face down in a storage yard near the place where the wallet had been found. After determining that Merrill was dead, Russell informed his employer who summoned the police.
An autopsy showed that Merrill's death had been caused by two gunshot wounds in the back perforating the heart and the left lung. One bullet had remained in the body; the other had passed completely through and was found below the surface of the ground. Both bullets were fired from a single-action .41 caliber revolver, the same type of gun which Varnum had earlier borrowed from Thomas Hanks.
On the evening of August 18th the police received an anonymous telephone call informing them that if they went to a specified address there would be someone there who could tell them about the disappearance of Merrill. The caller was John Ashton Victoria, a 16-year old boy who lived with Edward Jackson and who was present on August 16 when defendant and the Jacksons were planning the robbery. Victoria thereafter named all of the persons connected with the crime and on this information the police arrested Varnum and the Jacksons.
Considerable evidence received at the first trial was introduced by stipulation at the third penalty trial. Defendant did not take the stand in his own behalf and called only one witness, a religious adviser who testified as to her correspondence with Varnum about the Bible.
Defendant contends 1) that the court committed prejudicial error in admitting evidence of other offenses not specifically charged in the information; 2) that the prosecutor committed prejudicial misconduct in arguing the deterrent effect of the death penalty; 3) that the trial court erred in failing to give Sua sponte the instruction set out in People v. Morse, supra, 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33; 4) that section 190.1 violates the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution; and 5) that he was denied his right to an impartial jury due to the exclusion of a prospective juror for cause in violation of the standards set out in Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. We have concluded that none of these contentions has merit. We therefore affirm the judgment. I. Evidence of other offenses not charged in the information
The prosecution introduced evidence of two other robberies committed in the same general area and during the same month as those charged in the information. It consisted of the testimony of John Wyche and Donald Barton, the victims of the other robberies and of Thomas Hanks, an accomplice therein, who was the owner of the gun used to Kill Merrill and who testified that he had accompanied defendant on these earlier robberies.
Upon a previous appeal (see People v. Varnum, supra, 66 Cal.2d 808, 59 Cal.Rptr. 108, 427 P.2d 772) we reversed the judgment as to penalty on the ground that the prosecution attempted to establish these earlier robberies solely by the uncorroborated testimony of the accomplice Hanks in violation of section 1111. It now appears that at the last penalty retrial, Hanks' testimony was corroborated by that of the two robbery victims and that a claim of error under section 1111 is not again raised. Rather defendant now contends that it was 'a denial of due process * * * to admit evidence of other crimes not specifically charged in the information' and that 'the accused must be given prior notice of such crime so that he can prepare a defense * * *.'
It is well settled that at the trial on the issue of penalty evidence of other crimes is admissible (People v. Tahl (1967) 65 Cal.2d 719, 736--737, 56 Cal.Rptr. 318, 423 P.2d 246; People v. Mitchell (1966) 63 Cal.2d 805, 815--816, 48 Cal.Rptr. 371, 409 P.2d 211; People v. Terry (1964) 61 Cal.2d 137, 143--144, 37 Cal.Rptr. 605, 390 P.2d 381; People v. Hamilton (1963) 60 Cal.2d 105, 129, 32 Cal.Rptr. 4, 383 P.2d 412, overruled on other grounds People v. Morse, supra, 60 Cal.2d 631, 649, 36 Cal.Rptr. 201, 388 P.2d 33; People v. Bentley (1962) 58 Cal.2d 458, 460, 24 Cal.Rptr. 685, 374 P.2d 645; People v. Pike (1962) 58 Cal.2d 70, 94--95, 22 Cal.Rptr. 664, 372 P.2d 656), but that such crimes must be proved beyond a reasonable doubt (People v. Hillery (1967) 65 Cal.2d 795, 805, 56 Cal.Rptr. 280, 423 P.2d 208; People v. Tahl, supra, 65 Cal.2d 719, 736--737, 56 Cal.Rptr. 318, 423 P.2d 246; People v. Polk (1965) 63 Cal.2d 443, 450--451, 47 Cal.Rptr. 1, 406 P.2d 641; People v. Terry, supra, 61 Cal.2d 137, 149, fn. 8, 37 Cal.Rptr. 605, 390 P.2d 381). Contrary to defendant's claim, there is no requirement that to be admissible on the penalty phase of the trial, such other crimes must be specifically charged in the accusatory pleading. Nor is there any requirement that defendant be given other prior notice of them. Indeed, defendant has no cause for complaint in the instant case since he must have known from our previous reversal (see 66 Cal.2d 808, 59 Cal.Rptr. 108, 427 P.2d 772) that the prosecution would again seek to establish the other crimes by sufficiently corroborated evidence. Furthermore the record clearly indicates that before the opening statement by the prosecution, defendant had actual notice that witnesses would be called to prove the earlier robberies.
Finally, we observe that since defendant interposed no objection at trial to the introduction of the evidence of other crimes, he cannot now raise the objection for the first time on appeal. (People v. Tahl, supra, 65 Cal.2d 719, 735, 56 Cal.Rptr. 318, 423 P.2d 246; People v. Cockrell (1965) 63 Cal.2d 659, 667, 47 Cal.Rptr. 788, 408 P.2d 116; People v. Robinson (1965) 62 Cal.2d 889, 894, 44 Cal.Rptr. 762, 402 P.2d 834; People v. Jones (1959) 52 Cal.2d 636, 646, 343 P.2d 577.)
II. Alleged misconduct of the prosecutor
Defendant asserts that the prosecutor committed prejudicial misconduct during his opening argument to the jury by making three separate references to the deterrent effect of the death penalty. We take up the three specifications in the order presented.
First: By way of illustration, the prosecutor referred to a different type of homicide, namely a domestic 'situational' killing. We set forth the pertinent portion of the argument in the footnote. 3
Second: After referring to two car thefts by defendant in 1959 and 1960 for which he was respectively committed to the Youth Authority and sentenced to imprisonment in the county jail, the prosecutor argued as to whether 'incarceration is going to do him any good. * * *' 4
Defendant did not make any assignment of misconduct or object in any way to either of the above arguments.
Third: At the conclusion of his opening argument, the prosecutor then said: ...
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