People v. Ward

• Decision Date: 30 September 1968
• Docket Number: Cr. 6424
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Max WARD, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 46

72 Cal.Rptr. 46

266 Cal.App.2d 241

PEOPLE of the State of California, Plaintiff and Respondent, v. Max WARD, Defendant and Appellant.

Cr. 6424.

Court of Appeal, First District, Division 2, California.

Sept. 30, 1968.

Rehearing Denied Oct. 30, 1968.

Hearing Denied Dec. 4, 1968.

Harley C. Hardesty, San Francisco, for appellant (under appointment by the Court of Appeal, First Appellate District).

Thomas C. Lynch, Atty. Gen. of the State of California, Robert R. Granucci, Michael J. Phelan, Deputy Attys. Gen., San Francisco, for respondent.

AGEE, Associate Justice.

On May 19, 1966 Max Ward, Carl Black, Norman Call and two others were indicted for conspiring to murder Dow Wilson (Count 1) and for murdering him on April 5, 1966 (Count 2).

Call was tried separately and convicted of first degree murder. He received a life sentence. The joint trial of Ward and Black commenced thereafter. After a jury was selected and while the prosecution was putting in its case in chief, Black's motion for a severance was granted. Count 1 (conspiracy) was then dismissed as to Ward and the trial proceeded against him alone on Count 2 (murder).

Following jury conviction of first degree murder, Ward waived a jury trial as to the penalty phase and was sentenced by the trial judge to life imprisonment. This appeal is from the judgment of conviction. The claims of error arising prior to the trial proper will be discussed first.

Denials of Appellant's Peremptory Challenges to Trial Judge

On August 1, 5, and 18, 1966, appellant Orally moved, under the provisions of Code of Civil Procedure section 170.6, to peremptorily challenge the trial judge to whom the action was assigned. None of these motions were 'supported by affidavit or oral statement under oath,' as required, ¹ and were therefore ineffective. (People v. Ashley (1963) 59 Cal.2d 339, 360, 29 Cal.Rptr. 16, 28, 379 P.2d 496, 508.)

In his closing brief, appellant states that his motion of August 5 complied with section 170.6 in that he 'relied upon the swearing of Mr. Davis (Black's attorney) re the Joint motion to disqualify.' (Italics added.) There is Nothing in the record to support the statement that Black's motion was Joint.

The minutes of August 5, in their entirety, are as follows: 'Thereupon George Davis and Lois Prentice (one of appellant's attorneys) Each interposed a motion to disqualify the Court as provided by section 170.6 C.C.P. as to their respective clients. Thereupon, after George T. Davis, counsel for the defendant Black was sworn, the Court denied the motions to disqualify the Court as provided by section 170.6 C.C.P. as to each defendant.' (Italics added.)

Furthermore, the record is completely Silent as to What was sworn to by Mr. Davis. (See fn. 1 herein as to what shall be contained in the required 'oral statement under oath.')

The following rule is well settled: An order of the trial court is Presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. (3 Witkin, Cal.Procedure, Appeal § 79, p. 2238; Walling v. Kimball, 17 Cal.2d 364, 373, 110 P.2d 58; Coleman v. Farwell, 206 Cal. 740, 741--742, 276 P. 335.)

Alleged Misconduct of Black's Counsel

During the voir dire examination of the jury, Black's counsel, George T. Davis, stated that, although appellant had the right to do so, 'I will excoriate him if he doesn't take the witness stand, * * *' Other similar remarks were made by Davis.

Appellant argues that any comment on a defendant's failure to testify in a criminal case is error. (Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106). Although the court denied appellant's motion for a mistrial on this ground, it admonished Davis to refrain from any further comments of such nature and warned him that it would be misconduct for him to do so.

Prior to any such comments by Davis, appellant's counsel had stated to the court that appellant intended to take the stand, and the fact is that he did take the stand and deny being in any way involved in the killing. There is nothing in the record to justify a conclusion that he was impelled to testify by any references made by Davis to appellant's right to invoke the Fifth Amendment. He thus sustained no prejudice by the Davis comments. (See People v. Ing, 65 Cal.2d 603, 610--611, 55 Cal.Rptr. 902, 422 P.2d 590; People v. Perez, 65 Cal.2d 615, 620--621, 55 Cal.Rptr. 909, 422 P.2d 597.)

Appellant also complains of certain comments and questions by Davis during said voir dire examination which presupposed that the evidence of appellant's guilt might be so great as to 'overflow' to his client, Black.

A typical question by Davis, to which, incidentally, no objection was made, is as follows: 'If as this case progresses and evidence of a rather emotional, highly emotional and disturbing nature--because actually pointing a gun at a human being and deliberately waiting and shooting him has got to be an emotion--has to be evidence with an emotional impact. Whether you believe it or not is another story. But if you listen to that kind of evidence and you finally decide that you believe it and you find Mr. Ward guilty of cold, premediated murder in the streets of the city of San Francisco, do you think you will be able to hold that evidence over on one side and not let it overflow against Mr. Black, assuming that no evidence of that kind, of anything like that, applies to Mr. Black? Do you think you can make that kind of a separation in your mind?'

Appellant's counsel himself followed the same line of inquiry. A typical question of his is as follows: 'Now, if the evidence shows in this case that that man over there--you understand we represent Max Ward--that that man over there met with some other persons involved in this case and talked about dumping someone, the decedent, Dow Wilson, but the evidence doesn't show any participation in those meetings by Mr. Ward, you will consider that on the charge of conspiracy?'

The trial judge was alert at all times during the selection of the jury, which ran into the fourth day of the trial, to advise the jury that any comments or insinuations by respective counsel during the voir dire examination were not evidence and should not have any influence upon their ultimate decision.

The judge also admonished the jury panel as follows: 'In this case, when the case is submitted to the jury, the jury may find either or both of the defendants not guilty or guilty. It is not a question of both being guilty or both being innocent at all.'

From our consideration of the entire record we have concluded that the 'tug of war' engaged in by respective counsel for Black and appellant did not result in prejudice to appellant and that the trial judge's prompt rulings and admonitions kept the record clear of reversible error. His refusal to declare a mistrial was therefore proper and not an abuse of discretion. A motion for mistrial is addressed to the sound discretion of the trial court. It may properly be refused where the court is satisfied that no injustice has resulted or will result from the occurrences of which complaint is made. (23 C.J.S.

Criminal Law § 961, pp. 838--839.) Denial of Appellant's Motion for Mistrial After Severance of Black

Appellant contends that the trial court abused its discretion in denying his motion for a mistrial and ordering the trial to proceed After the trial was severed as to Black.

Appellant argues that, during the period of the trial preceding the severance, Black's participation in the trial had resulted in prejudicing him in these respects: (1) misconduct by Davis during impanelment of jury; (2) selection of jury not of 'his own choosing'; and (3) admission of evidence of a conspiracy even though the conspiracy count was subsequently dimsissed as to appellant.

We have already discussed the alleged misconduct of Davis and need not again do so.

Appellant and Black were jointly entitled to twenty peremptory jury challenges and each was entitled to five separate peremptory jury challenges. (Pen.Code §§ 1070, 1070.5.) They agreed that each would exercise such joint challenges in rotation, with or without the concurrence of the other. Appellant's counsel exercised all of his ten joint challenges but only One of his separate peremptory challenges.

Although it is true that if appellant had been the Sole defendant he would have had a total of 20 peremptory challenges (Pen.Code § 1070), instead of the ten plus five which he had, his failure to exercise his remaining four peremptory challenges indicates his satisfaction with the jury as then constituted.

The situation is somewhat analogous to that in which an erroneous denial of a defense challenge for cause is waived by the defendant's failure to exhaust his peremptory challenges. (People v. Wilkes (1955) 44 Cal.2d 679, 686, 284 P.2d 481; People v. Goldberg (1952) 110 Cal.App.2d 17, 23, 242 P.2d 116.)

The right to a trial by a fair and impartial jury does not encompass the right to Particular jurors. (People v. Abbott, 47 Cal.2d 362, 372, 303 P.2d 730; People v. Howard, 211 Cal. 322, 325, 295 P. 333, 71 A.L.R. 1385.) Appellant cites no authority to the contrary.

Evidence as to a conspiracy to murder Dow Wilson was properly admitted in evidence and could be considered even after the severance of Black was ordered and the conspiracy count was dismissed as to appellant.

It is firmly established law that conspiracy need not be pleaded as a basis for the reception of evidence which shows the existence of one. (People v. Pike, 58 Cal.2d 70, 88, 22 Cal.Rptr. 664, 372 P.2d 656; People v. Ditson, 57

Cal.2d 415, 447, 20 Cal.Rptr. 165, 369 P.2d 714.) Exclusion of Prospective Jurors Professing Conscientious Ojection to Capital Punishment

Appellant argues that his constitutional right to an impartial jury was violated when the prosecution was allowed to challenge for cause all...