People v. Williams

• Decision Date: 12 March 1973
• Docket Number: Cr. 13818
• Citation: 9 Cal.3d 24,506 P.2d 998,106 Cal.Rptr. 622
• Court: California Supreme Court
• Parties: , 506 P.2d 998 The PEOPLE, Plaintiff and Respondent, v. Orbry Lee WILLIAMS, Defendant and Appellant. In Bank

Page 622

106 Cal.Rptr. 622

9 Cal.3d 24, 506 P.2d 998

The PEOPLE, Plaintiff and Respondent, v. Orbry Lee WILLIAMS, Defendant and Appellant.

Cr. 13818.

Supreme Court of California,

In Bank.

March 12, 1973.

Molly H. Minudri, San Francisco, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch and Evelle J. Younger, Attys. Gen., William E. James, Asst. Atty. Gen., Philip C. Griffin and Daniel W. McGovern, Deputy Attys. Gen., for plaintiff and respondent.

BY THE COURT.

A jury found defendant guilty of one count of first degree murder and four counts of first degree robbery. His codefendant, William B. Thomason, was found guilty of one count of first degree murder and three counts of first degree robbery. The penalty for the murder was fixed as death for defendant and life imprisonment for Thomason. This appeal is automatic. (Pen.Code, § 1239, subd. (b).)

About 12:30 a.m. August 3, 1968, Rick Dwayne Taylor, age 19, was on duty as a liquor store clerk at Silver's Liquor Store in Long Beach. While Taylor was waiting on a customer, Thomason and a person very similar to defendant entered the store. After the customer left, the other man approached Taylor, who had been watching both men, and Thomason in particular, from the time they entered the store, because he expected them to rob him. Taylor had been robbed a week before and was extremely wary at the time. At gun point, Thomason forced Taylor to give him $125 of the liquor store's money. Taylor was made to lie down on his face in back of the counter while the two men ran out of the store. Taylor immediately thereafter called the police. September 25, 1968, Taylor was shown a dozen photographs at the police station, and he identified a photograph of Thomason. He was not able to identify defendant from his photograph. He did notice that defendant's photograph showed blond hair, whereas the other man involved in the robbery had brown hair at that time.

About 1:45 a.m. August 20, 1968, Robert T. Molby was tending bar in Long Beach at the High Hat Cafe. There were three customers at the bar, including Louis Merklein. Defendant entered alone, wearing dark glasses, and ordered some beer. A few minutes later, Thomason entered, spoke with defendant, and then moved to where he could watch the patrons. Defendant pulled a gun on Molby and forced him to empty the cash register, put the money (about $60) in a paper bag, and lie down on the floor. After defendant and Thomason left, Molby called the police. He identified both defendant and Thomason at the preliminary hearing. From a stack of individual photographs, Merklein was able to identify both men, even though the photographs of defendant showed him with blond hair, while at the time of the robbery his hair was dark.

About 3:30 a.m. August 23, 1968, Jack Wall, age 19, was working at Lerner's Service Station on the northwest corner of 7th and Magnolia Streets in Long Beach. He noticed a 1958 black Pontiac turn right on 7th Street. Shortly thereafter, the two men who had driven by in the Pontiac entered the station. Wall identified defendant and Thomason as the two men. Defendant wore sun glasses. Later, defendant pulled a black .25 automatic on Wall and required Wall to give him the money in the cash box. Defendant then told Wall to go to the office. There, Wall was forced to give the men the money he had ready for the next shift and also his own wallet. Altogether, defendant and Thomason took $107 from the station and $65 from Wall. In addition, defendant required Wall to give him a big Texas belt buckle Wall was wearing. Defendant gave the belt buckle to Thomason. They then took some cigarettes, and defendant told Wall to lie on the floor. Defendant said that if he got up within 15 minutes, he would shoot him. A minute or so after defendant and Thomason went out of the door, Wall started to get up; but defendant, who was standing by the telephone booth, took a shot at him. The shot missed Wall by about six inches.

A week later, police officers brought photographs to the service station, and from them Wall was able to identify both defendant and Thomason. Wall next saw defendant and Thomason at their preliminary hearing October 17, 1968. After Wall entered the court room, defendant was brought in and placed in the jury box. His hair was shaved off, and he was growing a mustache and a goatee. When he sat down, he looked at Wall, and it seemed to Wall as though he said, 'You are a dead man.' Wall had noticed that defendant had a gold tooth. At the trial, he examined defendant's teeth and verified that the gold tooth in defendant's mouth was the way it had looked the morning of the robbery. September 11, 1968, a detective sergeant found a .25 caliber empty cartridge case in the gutter by the service station, partially imbedded in an inch of mud.

Shortly after 1 a.m. August 24, 1968, defendant entered Lucky's Doll House in Long Beach. He had black hair, full across the sides and combed straight back, and was wearing horn rimmed sun glasses. He was clean shaven and very heavy set. James Hutcheson, the bartender, Irene Hanson, the cocktail waitress, and two customers, Tex D. Hensley and Gary K. Jonasson, were in the bar at the time. Defendant ordered two draft beers. He later walked over to the end of the bar and accused Jonasson of staring at him, telling him to stop it. A few minutes later, Thomason came in, walked over to the pool table, and racked up the balls. Defendant took the beers to the pool table, and he and Thomason played pool until about 10 minutes before 2 o'clock. Hutcheson was suspicious of the two men, watched them closely, and took his gun out from underneath the cabinet. Irene Hanson and her husband, who had come to pick her up, also feared trouble. At 2 o'clock, Hutcheson asked defendant and Thomason to leave, because it was time to close. They did so, and Hensley also walked out.

About 2:15 or 2:20, Hutcheson, Jonasson, and the Hansons went out the front door and walked to the parking lot. There defendant and Thomason, each with a gun, stopped them. Defendant said, 'This is a hold up.' Hutcheson laughed, saying it was comical because he had only $6 in his pocket. Defendant told Hanson to lie down, and Hanson did as he was told. Defendant and Thomason then took Hutcheson to the other side of the car by which they had been standing and, with defendant pressing a gun to the back of his head, told him to go into the bar and open the safe. Hutcheson told them that once he locked the safe, he could not open it. Defendant said, 'You better be able to or we going to deface the girl--the pretty girl.' Hutcheson said there was nothing he could do about it. Defendant then took Hutcheson's wallet and made him lie on his stomach with his face down. The wallet contained Hutcheson's social security card, his draft card, and his draft registration. Defendant approached the Hansons and Jonasson and told the latter three or four times to lie down, but Jonasson just stood there. Defendant asked him how he would like to have some bullets in him, and he fired a shot into the air. Jonasson still would not lie down, and defendant then shot him four times. Defendant and Thomason fled, and the Hansons and Hutcheson called the police. Later in the day, four .25 caliber shells were found in the paking lot and turned over to the police. Jonasson died September 6, 1968, as a result of the gunshot wounds.

Hutcheson testified on cross-examination that he went to a line-up but was not able to identify defendant and that he was not able to identify him from mug shots shown to him by the police prior to the line-up. Hutcheson saw a newspaper article showing defendant's photograph, and he was not able to identify him from that photograph either. However, when an article appeared in the paper September 21, 1968, with photographs of both defendant and Thomason, and Hutcheson darkened the hair on defendant, he recognized him.

Hanson saw defendant in a line-up August 30, 1968, but he did not make a positive identification at that time because of the color of defendant's hair. It was blond instead of black. At the preliminary hearing, he identified both Thomason and defendant, but noted that defendant looked 20 pounds lighter, had shaved off his hair, and had grown a goatee and a mustache. The first time Hanson was able to identify anyone positively was when defendant's hair was colored black in his photograph in the paper. Irene Hanson did not positively identify defendant in the line-up or from mug shots. She picked out one photograph of defendant and said it looked like him except for the bleached blond hair.

About 12:30 a.m. August 28, 1968, defendant entered Western Union's office at 214 Locust Street in Long Beach. He was wearing sun glasses, and his hair was bleached blond. He told the night manager, Maurice E. Real, that he wanted to send a telegram or money order to San Francisco. Real directed him to a table in the lobby containing blanks. Later, defendant returned to the counter and presented a telegram to Real. As defendant handed the telegram to him, Real noticed that he had a tattoo on his left hand. (At the trial, defendant presented his left hand to the witness, and Real testified that the tattoo was in the same location.) Written on the telegram were the words, 'Give me your money.' As Real looked up, defendant was pointing a .25 automatic at him. Just as Real started to give defendant the money, Robert Lange and David C. Stevens walked into the office. Defendant told Real to act normally, and he placed the gun under his left armpit and backed away from the counter. The two men came up to the counter and asked if a money order Lange was expecting had arrived. Defendant remained just to the right of them by a couple of feet. Real checked to see if the money order had come, but it had not; so the two men left. After Real gave defendant the money ($30--$40), defendant made...