Shipp, In re

• Decision Date: 24 May 1967
• Docket Number: Cr. 9539
• Citation: 59 Cal.Rptr. 97,66 Cal.2d 721,427 P.2d 761
• Court: California Supreme Court
• Parties: , 427 P.2d 761 In re Oscar SHIPP on Habeas Corpus. In Bank

Page 97

59 Cal.Rptr. 97

66 Cal.2d 721, 427 P.2d 761

In re Oscar SHIPP on Habeas Corpus.

Cr. 9539.

Supreme Court of California,

In Bank.

May 24, 1967.

Rehearing Denied June 21, 1967.

Oscar Shipp, in pro. per., and Frederic Campagnoli, San Francisco, under appointment by the Supreme Court, for petitioner.

Thomas C. Lynch, Atty. Gen., Edward P. O'Brien and Robert B. Granucci, Deputy Attys. Gen., for respondent.

TOBRINER, Justice.

Petitioner seeks a writ of habeas corpus on the ground that he is unlawfully imprisoned under a judgment of conviction for first degree murder. A jury convicted petitioner of two counts of second degree robbery and one count of first degree murder. The court sentenced him to the term prescribed by law for the first two counts; the jury fixed the punishment at death on the murder count. On petitioner's automatic appeal (Pen.Code, § 1239, subd. (b)) we affirmed the judgment in all respects, holding that the erroneous denial of a request for discovery did not prejudice petitioner. (People v. Shipp (1963) 59 Cal.2d 845, 31 Cal.Rptr. 457, 382 P.2d 577.) The United States Supreme Court denied a petition for certiorari. (Shipp v. California (1964) 377 U.S. 999, 84 S.Ct. 1927, 12 L.Ed.2d 1049.)

After the above proceedings petitioner sought his first writ of habeas corpus in this court. (In re Shipp (1965) 62 Cal.2d 547, 43 Cal.Rptr. 3, 399 P.2d 571.) In that instance we reversed the judgment as to penalty because of errors of the type condemned in People v. Morse (1964) 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33. Although petitioner also then contended, as he does now, that the trial court improperly permitted the introduction of his extrajudicial statements procured by the police without informing him of his rights to counsel and to remain silent under People v. Dorado (1965) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, we held that the judgment had become final prior to the rendition of Escobedo v. State of Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, he was therefore not entitled to relief. Petitioner then sought certiorari in the United States Supreme Court to review our decision; that court denied his petition. (Shipp v. Wilson (1966) 382 U.S. 1012, 86 S.Ct. 623, 15 L.Ed.2d 528.) As of the date of the presentation of the instant petition petitioner awaited a new penalty trial. When we issued the order to show cause we ordered a stay of that proceeding pending the outcome of the instant petition.

Petitioner now properly raises the Escobedo issue in the pending petition in light of our intervening decision in In re Spencer (1965) 63 Cal.2d 400, 46 Cal.Rptr. 753, 406 P.2d 33. In that case we adopted, for purposes of applying the Escobedo doctrine, the definition of finality set forth in Linkletter v. Walker (1965) 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601: 'By final we mean where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed * * *.' (381 U.S. 618 at p. 622, 85 S.Ct. at p. 1734 fn. 5.)

In re Spencer, supra, 63 Cal.2d 400, 46 Cal.Rptr. 753, 406 P.2d 33, involved a chronological situation parallel to that in the instant case. In the pending matter the United States Supreme Court denied a petition for certiorari (Shipp v. California, supra, 377 U.S. 999, 84 S.Ct. 1927) on June 22, 1964, the same day that the high court handed down the Escobedo decision. In People v. Spencer (1963) 60 Cal.2d 64, 31 Cal.Rptr. 782, 383 P.2d 134, the Supreme Court also denied certiorari on June 22, 1964. (Spencer v. California (1964) 377 U.S. 1007, 84 S.Ct. 1924, 12 L.Ed.2d 1055.) When the defendant in Spencer then petitioned this court for a writ of habeas corpus we held: 'Since, in the instant case the United States Supreme Court did not deny petitioner's petition for certiorari prior to the time the court rendered the Escobedo (decision), his judgment did not become final prior to those decisions.' (In re Spencer, supra, 63 Cal.2d at p. 405, 46 Cal.Rptr. at p. 757.) We concluded that, 'Petitioner may therefore invoke Escobedo * * * and Dorado * * * to attack his judgment.' (Id. at p. 406, 46 Cal.Rptr. at p. 757, 406 P.2d at p. 37; see People v. Treloar (1966) 64 Cal.2d 141, 49 Cal.Rptr. 100, 410 P.2d 620; In re Varnum (1965) 63 Cal.2d 629, 47 Cal.Rptr. 769, 408 P.2d 97; People v. Arguello (1965) 63 Cal.2d 556, 47 Cal.Rptr. 485, 407 P.2d 661; People v Polk (1965) 63 Cal.2d 443, 47 Cal.Rptr. 1, 406 P.2d 641, for applications of the Spencer doctrine resulting in reversals.) We have recently reaffirmed our holding that we apply Escobedo and Dorado 'to all * * * cases which had not become final before June 22, 1964,' (People v. Rollins (1967) 65 A.C. 731, 742, 56 Cal.Rptr. 293, 301, 423 P.2d 221, 229.) Accordingly, we must resolve the merits of petitioner's contentions.

The opinion in petitioner's automatic appeal sets out the facts in detail (People v. Shipp, supra, 59 Cal.2d 845, 846--849, 31 Cal.Rptr. 457, 382 P.2d 577); a summary of the events relevant to the present issue will suffice here. The prosecution's case consisted of evidence tending to show that on the night of December 30, 1961, two persons had beaten and robbed two elderly men in their hotel rooms. One of the two, a Mr. Hawley, died six days later as a result of the beating. Oscar Shipp and his codefendant, La Verne Jones, both of whom resided in the same hotel, were seen there on the night in question. In Shipp's room the police found two bank passbooks and a journal behind the refrigerator. They also discovered spots that appeared to be bloodstains on Shipp's jacket and on one of his shoes. Upon arresting Shipp the police found a key in his pocket which fitted the locks on both the victims' doors, although it would not actually unlock the deceased's door. ¹

The principal evidence offered by the prosecution, and the evidence upon which Shipp now posits the Escobedo-Dorado objection, was a tape recording of Jones' and Shipp's statements to four police officers. In this recording, made six days after their arrests, they described in detail how they had robbed each victim. Petitioner and his codefendant admitted that they engaged in restraining each victim and 'keeping him quiet'; they admitted, too, that they left Hawley lying on the floor. ² Jones claimed that Shipp struck the victim; Shipp said that he could not remember striking him and did not think that any of his actions could have caused Hawley's death.

Both petitioner and his codefendant testified. Although their testimony conflicted in many particulars with the account in the tape recording, they admitted the truth of its substance. Jones indicated that after they left the deceased's room Shipp said he was going to return because he thought they might have 'missed something.' Shipp denied returning. To the question, 'Did you do anything physically to Mr. Hawley except put your hand over his mouth?' Shipp answered, 'That's correct, that's all I did.'

We shall point out that petitioner's tape-recorded statements were admitted in violation of his constitutional rights and that their introduction into evidence worked prejudicial error. We shall also explain that Shipp's subsequent testimony did not negate the prejudicial effect of the illegally procured statements.

The record clearly shows that the police obtained the tape-recorded statements in violation of petitioner's right to counsel and to remain silent unless he was advised of, and waived, those rights. Since the tape-recorded interrogation occurred after Shipp had been in police custody for six days and since the police were then carrying out 'a process of interrogations that (lent) itself to eliciting incriminating statements' (Escobedo v. State of Illinois, supra, 378 U.S. 478, 84 S.Ct. 1758), the accusatory stage had clearly been reached. (People v. Stewart (1965) 62 Cal.2d 571, 43 Cal.Rptr. 201, 400 P.2d 97, affd. sub nom. Miranda v. State of Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.)

The arresting officer testified that he asked Shipp whether he wanted to make a statement and whether he wanted an attorney and told him that anything he said could be used against him. Shipp testified, however, that the police at no time advised him of his right to counsel or of his right to remain silent. Since this trial took place before the decisions in Escobedo and Dorado the trial court was not alerted to the necessity for ruling on the admissibility of the statements under these decisions and consequently made no finding whether Shipp was warned of his rights but chose to waive them. (People v. Schader (1965) 62 Cal.2d 716, 727--728, 44 Cal.Rptr. 193, 401 P.2d 665; see People v. Green (1965) 63 Cal.2d 561, 565, 47 Cal.Rptr. 477, 407 P.2d 653.)

Since the issue of the unlawful admission of the statements is properly before us and since the record fails to show that the statements were admitted in compliance with the requirements of Escobedo-Dorado, this issue remains unresolved. We cannot sustain the conviction upon this defective record if the admission of the statements is otherwise prejudicial. ³

On the present record the admission of the statements caused prejudice to petitioner. Applying the test set forth in Chapman v. State of California (1967) 386 U.S. 18, 26, 87 S.Ct. 824, 829, 17 L.Ed.2d 705 (see People v. Talley (1967) 66 A.C. 363, 373 fn. 5, 56 Cal.Rptr. 492, 423 P.2d 564) we have determined that the People have not 'demonstrated, beyond a reasonable doubt, that the (error) did not contribute to' petitioner's conviction.

Except for the tape recording, the prosecution did not introduce evidence of a persuasive nature that connected Shipp with the crime. The prosecution's additional evidence consisted of testimony that Shipp possessed a key which fitted but would not unlock Hawley's door, that Shipp's jacket and shoe appeared to bear bloodstains, and that passbooks and a journal...