Shaffer v. Field

• Citation: 339 F. Supp. 997
• Decision Date: 20 January 1972
• Docket Number: No. 71-2345.,71-2345.
• Parties: Robert E. SHAFFER, Petitioner, v. Harold V. FIELD, Superintendent, Respondent.
• Court: U.S. District Court — Central District of California

339 F. Supp. 997

Robert E. SHAFFER, Petitioner, v. Harold V. FIELD, Superintendent, Respondent.

No. 71-2345.

United States District Court, C. D. California.

January 20, 1972.

Burton Marks of Marks, Sherman & Schwartz, Beverly Hills, Cal., for petitioner.

Evelle J. Younger, Atty. Gen., Rodney Lilyquist, Jr., Deputy Atty. Gen., Los Angeles, Cal., for respondent.

ORDER DENYING WRIT OF HABEAS CORPUS

DAVID W. WILLIAMS, District Judge.

Petitioner, a former deputy sheriff of Los Angeles County, was convicted by a jury in the Superior Court of that county for a violation of Penal Code § 187, murder in the second degree. The judgment was affirmed by the California Court of Appeal, Second Appellate Division, in an unpublished opinion. (Crim.No.18674, June 22, 1971). A petition for hearing was denied by the State Supreme Court and petitioner, now confined in prison, files this petition for a writ of habeas corpus. This Court has jurisdiction under 28 U.S.C. § 2254. An evidentiary hearing was ordered by this Court but the parties waived said hearing by a filed document.

The facts of the case were fully set forth in the unpublished opinion of the Court of Appeal. For purposes of this petition they may be briefly restated. On August 18, 1969, at about 4:30 A.M. petitioner and his partner, Deputy Malone, together with another two-man patrol unit consisting of Deputies Manskar and Spreen, responded to a "burglary in progress" call in a business establishment. All except Deputy Malone entered the premises and noticed that articles had been strewn about indicating that someone had partially ransacked the premises. The three officers inside heard a noise at the rear and moved toward the back room. Petitioner and Deputy Manskar entered a storage garage which was very dark and in the center of which was a pool table. Shaffer entered first and moved along the left side of the pool table. They had been looking around when suddenly the petitioner raised his left hand toward some boards stacked in a corner, stepped back, raised his right hand and then fired one shot. Robert Molett, the burglary suspect, had been crouched behind the stacked boards and was hit by the shot Shaffer fired. Momentarily thereafter, Deputy Manskar walked over to the corner of the pool table and asked petitioner "what happened?" and "where is the gun?" or "is there a gun?" Petitioner said "Yes, right there" and pointed to the floor where a .22 caliber revolver lay next to Molett's leg. As this happened, Molett said "that's not my gun; he defendant threw it down there".

Deputy Malone entered the building and was told by the petitioner that the suspect tried to shoot him and that he shot first. At Shaffer's request Malone got a camera for him from the patrol car and then returned to the scene where he saw the suspect thrashing about the floor in great pain and bleeding profusely from the left side. Malone asked the suspect why he tried to shoot Deputy Shaffer and Molett replied, "I didn't try to shoot your partner. Your partner shot me and threw down the gun." Malone confronted petitioner with this statement but Shaffer did not reply. Then Malone noticed an empty cellophane bag protruding from petitioner's right rear pocket and remembered that on several occasions in the past he had seen petitioner place a cellophane bag which appeared to contain a revolver in his locker. He then saw a .22 caliber revolver being passed around by various deputies. He asked petitioner whether the suspect's fingerprints were on the gun and defendant replied, "Hell no; what do you think I am passing it around for?"

Sergeant Wenke then arrived and petitioner told him that immediately preceding the shooting he heard a "click" which he could not locate and then heard a second "click" and saw a gun protruding from behind some stacked boards. Wenke asked Molett if he tried to shoot his deputies and Molett replied, "No, man, no." Wenke then asked Molett if he used the .22 caliber revolver and Molett said, "No, man, I didn't have a gun ...." Molett died four hours later.

At all times relevant there existed a sheriff's department regulation forbidding a deputy to carry or use a second service revolver or to substitute a revolver in lieu of the prescribed firearm. On November 12, 1969, pursuant to a homicide investigation, petitioner's sheriff's locker at the Firestone Sheriff Station was examined and officers found and seized a .357 Magnum and a 6.35 millimeter automatic revolver. Petitioner was charged with the murder of Molett.

At the trial the spontaneous statements of the deceased were introduced into evidence against Shaffer. On March 31, 1969, at 11:25 A.M. the jury began its deliberation. On April 3, 1969 at 10:40 A.M. the trial judge received the following note from the foreman of the jury: "Our last ballot, 10:15 A.M. ten to two, I feel we are hopelessly deadlocked. Two jurors that are connected family-wise with law enforcement will never change their vote." The judge then read to the jury the statement set out in the appendix appended hereto.

In this petition Deputy Shaffer contends that the trial court violated his constitutional rights in the following manner:

1) That the admission into evidence of the spontaneous statements of the dying victim violates petitioner's Sixth Amendment right of confrontation.

2) That the warrantless unconsented to search of petitioner's locker at the sheriff substation violates his Fourth Amendment right to be free from unreasonable searches and seizures.

3) That the giving of the so-called Baumgartner instruction to the deadlocked jury deprived petitioner of due process of law and the right to trial by jury.

4) That the failure of the trial judge to give an instruction as to the lesser included offense of manslaughter deprived petitioner of due process of law.

Each contention will be discussed separately.

SPONTANEOUS STATEMENTS

On four separate occasions following the shooting, the suspect stated to four different police officers that he did not have a gun and that he was shot by the petitioner who then threw down a gun beside him. The statement to Deputies Manskar and Malone were made immediately following the shooting and the statements to Sergeants Wenke and Hansell were made shortly thereafter and in response to questions. The evidence shows that all during this period the suspect was in great pain, bleeding profusely and was thrashing about on the floor deeply concerned with his own physical condition. He died within four hours of the shooting. The physical condition of the suspect, the agitation he felt from the pain of the bullet in his abdomen which lacerated his spinal cord and injured his back, and the profuse bleeding are all circumstances which suggest that Molett was not concerned with fabricating a contrived story before his death and that the statements were the product of nervous excitement.

Section 1240 of the California Evidence Code makes admissible as an exception to the hearsay rule spontaneous statements. The Law Revision Commission's comment to Section 1240 explains that "The rationale of this exception is that the spontaneity of such statements and the consequent lack of opportunity for reflection and deliberate fabrication provide an adequate guarantee of their trustworthiness." Clearly the presumption is that statements made closely after the occurrence of an incident are likely to be trustworthy. The comment of the Law Revision Commission to Section 1240 indicates that it was intended as a codification of the "res gestae" exception to the hearsay rule as announced in Showalter v. Western Pacific R. R. Co., 16 Cal.2d 460, 106 P.2d 895 (1940), which Court explained the rule to be "that declarations which are voluntary and spontaneous and made so near the time of the principal act as to preclude the idea of deliberate design, though not precisely concurrent in point of time therewith, are regarded as contemporaneous and admissible." The Showalter court expanded the rule to say that "where a declaration is made under the immediate influence of the occurrence to which it relates and so near the time of that occurrence as to negative any probability of fabrication, said declaration is admissible." This rule has been followed in the recent case of People v. Spencer, 71 Cal.2d 933, 940, 80 Cal.Rptr. 99, 458 P.2d 43 (1969).

The trustworthiness of the statements made by Molett under the test announced in Showalter and Spencer has been clearly established. The two statements to Manskar and Malone were made within moments of the shooting. The fact that Malone asked Molett why he tried to shoot his partner does not deprive Molett's answer of its spontaneity. People v. Washington, 71 Cal.2d 1170, 81 Cal.Rptr. 5, 459 P.2d 259 (1969). The statements made shortly thereafter to Wenke and Hansell are also trustworthy under the Spencer test. The lapse of time must be viewed in the light of the continuing excitement and agitation that Molett underwent and the later statements seemed to add no new accusations. The record is clear that at the time he told Wenke and Hansell his story Molett was still under extreme pain, was screaming and swearing and thrashing around on the floor. This indicates that his condition rapidly deteriorated after he had been shot. It is unlikely, under these circumstances, that he would have contrived or fabricated a story. To the contrary it appears that the statements to Wenke and Hansell were made while under the "influence of the occurrence" to which the statements relate. People v. Spencer, supra, People v. Washington, supra.

Petitioner argues that the State's determination that the evidence is trustworthy is nonetheless subject to the confrontation clause of the Sixth Amendment. He relies on Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) and California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). That reliance is misplaced. Pointer specifically...