People v. Wells

• Decision Date: 14 January 1971
• Docket Number: Cr. 5209
• Citation: 92 Cal.Rptr. 191,14 Cal.App.3d 348
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Guy Gene WELLS, Defendant and Appellant.

Page 191

92 Cal.Rptr. 191

14 Cal.App.3d 348

The PEOPLE of the State of California, Plaintiff and Respondent, v. Guy Gene WELLS, Defendant and Appellant.

Cr. 5209.

Court of Appeal, Third District, California.

Jan. 14, 1971.

Hearing Denied March 9, 1971.

Thomas C. Lynch, Atty. Gen., by Daniel J. Kremer and Thomas W. Kelly, Deputy Attys. Gen., Sacramento, for plaintiff-respondent.

Marvin C. Marx, court appointed, Sacramento, for defendant-appellant.

JANES, Associate Justice.

Defendant was tried by jury upon an information charging the crime of burglary (Pen.Code, § 459) and that he, with the intent to inflict such injury, inflicted great bodily injury upon an occupant of the burglarized premises (Pen.Code, § 461, subd. 2). ¹ Before commencement of trial, defendant admitted two prior convictions of first degree robbery. From the judgment entered upon a verdict of first degree burglary and the jury's finding that he intended to and actually inflicted great bodily injury upon Mrs. Joan Coulat, the occupant of the premises, defendant prosecutes this appeal, contending (1) that prejudicial error was committed in his identification at a police lineup conducted without the presence of counsel and (2) that the jury instructions were inadequate and the evidence insufficient to support the finding of 'great bodily injury.' ²

The victim, Joan Coulat, testified that after a visit with friends she returned to her home between the hours of 9:30 and 10:00 p.m., turned on some of the lights and the television set and prepared to do some ironing. Within minutes she heard a shuffling noise and walked down the hall to the master bedroom in order to investigate. As she entered the bedroom she saw articles of clothing and other items strewn about the room and observed the defendant standing near a dresser. He immediately hit her on the right temple with a heavy object tied in a man's sock and then struck her with a sharp silver-colored object ³ held in his other hand.

Mrs. Coulat backed down the hallway as defendant--laughing continually as he did so--continued to strike her with first one weapon and then the other. Her arm was cut repeatedly by the silverish object as she raised her arm in attempts to shield her face and ward off the attacks. At one point she was able to scratch her attacker; he backed off momentarily and she escaped into the family room to call the police. She told the police a man was in her house and was trying to kill her. While she was speaking to the officer, defendant entered the family room and said, 'I'm going to get you now.' He came at her once more and again struck her with the hard object in the sock.

When the police arrived four minutes after her call, the telephone was off the hook and Mrs. Coulat was lying unconscious on the floor, scratched and bleeding. A patio door was open about six inches and her assailant had disappeared. She was cut fourteen times on her arms and was scarred; her face was scratched, her cheek cut, her head bruised, and she suffered severe headaches for several days. She was taken to the county hospital where X-rays were negative; there she was washed up and Merthiolate was applied. ⁴

The defense was alibi. Defendant, the sole witness in his behalf, testified that he was at a North Sacramento bar at the time of the offense; he could not remember the name of the establishment.

The Lineup

After Mrs. Coulat regained consciousness she gave the officers a description of her assailant, describing him as tall, crew-cut, heavy-set, Caucasian, and wearing a khaki jacket and trousers. In the days which followed, police detectives visited the Coulat residence to exhibit pictures of parolees in the area and to re-examine the scene. After viewing several hundred pictures, Mrs. Coulat picked out two having features similar to her assailant but made no positive identification. Finally, three days after the burglary, one of the officers showed Mrs. Coulat eight or ten additional pictures, spreading them out at random on her kitchen table, and she selected a photograph of defendant as that of her assailant. She stated, however, that she wished to see the man in the picture 'to make absolutely sure.'

That evening the officers conducted a lineup of five participants; the photograph of the five men in lineup order is in evidence. Mrs. Coulat drove her own car to the police station. She 'presumed' the man in the photograph would be in the lineup, but she had no conversations with the officers concerning the subjects or the makeup of the lineup. Upon viewing the lineup, she positively identified the defendant as her assailant. At the preliminary examination, and later at trial, she repeated her unequivocal identification.

Although the lineup took place after the Supreme Court rulings in United States v. Wade (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California (1967) 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, an effective waiver obviates the necessity for the presence of counsel. (People v. Caruso (1968) 68 Cal.2d 183, 184, 65 Cal.Rptr. 336, 436 P.2d 336.) The defendant did not have counsel at the lineup in which Mrs. Coulat identified him as her attacker. The record shows, however, that prior to his appearance in the lineup, defendant had been questioned and informed as to the particular burglary under investigation. He was advised also of his right to counsel at the lineup and waived, in writing, his right to such counsel. The written waiver was introduced at trial and was acknowledged by the defendant personally. The record thus demonstrates his intentional relinquishment of a known right and therefore an effective waiver. (Brookhart v. Janis (1965) 384 U.S. 1, 4, 86 S.Ct 1245, 16 L.Ed.2d 314, 317; Johnson v. Zerbst (1937) 304 U.S. 458--464, 58 S.Ct. 1019, 82 L.Ed. 1461, 1466.)

Despite the acknowledged waiver of his right to counsel at the lineup, defendant urges that he was entitled to the presence of an attorney to advise him--prior to its execution--as to the significance of the waiver of his right to assistance of lineup counsel. In this connection, he asserts that he did not know the nature and extent of the charges against him until several days after he was arrested, although he was subjected to the lineup and was identified the same day he was arrested. In light of the evidence we have summarized--including the showing that he was informed as to the offense which was under investigation, and that he was interrogated as to his whereabouts at the critical times--all prior to his execution of the waiver and lineup--we reject the invitation thus to enlarge the right to counsel at line-up proceedings.

Although not raised in the briefs, we have also considered defendant's challenge to efficacy of the waiver as a charge that his trial counsel erred in stipulating that defendant was advised of his rights and that the waiver of his right to counsel at the lineup might be received in evidence. However, in the circumstances shown by the record, the clear answer is that the decision was a matter of tactics within the discretion of defense counsel, and since the record shows that counsel was fully aware of the circumstances and nature of the waiver, inadequacy of counsel could not be successfully urged as ground for reversal. (People v. Garrison (1966) 246 Cal.App.2d 343, 350--351, 54 Cal.Rptr. 731; People v. Stewart (1967) 250 Cal.App.2d 829, 835--836, 59 Cal.Rptr. 71; see also, Note, Effective Assistance of Counsel For The Indigent Defendant (1965) Harv.L.Rev., pp. 1442--1445.)

Since the rule of Wade and Gilbert cannot be invoked because of the effective waiver of counsel, defendant, in order to secure a reversal on the basis of the lineup, must demonstrate that it was conducted with fundamental unfairness and violated due process of law. (Stovall v. Denno (1967) 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; People v. Caruso, supra, 68 Cal.2d at p. 184, 65 Cal.Rptr. 336, 436 P.2d 336.) At the request of defense counsel, the trial court heard extensive evidence--initially without the jury--on the matter of fairness of the lineup, and viewed a color photograph of the lineup itself. Notwithstanding several claimed inconsistencies in the testimony of Mrs. Coulat and complaint as to the manner in which it was conducted, the court held that it was a fair lineup. A careful examination of the record, with the lineup photograph before us, convinces us that the court could not have reached a contrary conclusion. The lineup was scrupulously conducted and we reject defendant's contention that there was anything suspect about the lineup procedure or the claimed inconsistencies in Mrs. Coulat's identification testimony.

Additionally, as emphasized by the People, the record strongly supports the conclusion that Mrs. Coulat's identification of defendant was not dependent on the lineup itself. On the night of the attack she gave officers a detailed description of the assailant and thereafter, following her examination of hundreds of photographs of various parolees in the area, she finally selected a picture of defendant under circumstances dispelling any suggestion of direction by the officers or other unfairness. At that point she asked to see the man in the picture before speaking further with the officers. When she appeared to view the lineup, her recognition of the defendant was instantaneous upon her first glimpse of him, before any of the participants were asked to step forward or speak. She had an adequate opportunity to observe defendant for approximately 12 minutes during the assault, her home was well-lighted, and the lineup came only 3 days following the crime. Assuming Arguendo, an improperly conducted lineup, the evidence strongly supports a conclusion that her identification of defendant at trial was not induced by or a product of any impropriety, but rather was based on the independent knowledge secured from her observations of defendant...