Terry, In re, Cr. 13949

• Decision Date: 24 May 1971
• Docket Number: Cr. 13949
• Citation: 95 Cal.Rptr. 31,4 Cal.3d 911,484 P.2d 1375
• Court: California Supreme Court
• Parties: , 484 P.2d 1375 In re Doyle Alva TERRY on Habeas Corpus.

Page 31

95 Cal.Rptr. 31

4 Cal.3d 911, 484 P.2d 1375

In re Doyle Alva TERRY on Habeas Corpus.

Cr. 13949.

Supreme Court of California,

In Bank.

May 24, 1971.

Rehearing Denied June 23, 1971.

Doyle Alva Terry, in pro. per., and Roger S. Hanson, Woodland Hills, under appointment by the Supreme Court, for petitioner.

Thomas C. Lynch and Evelle J. Younger, Attys. Gen., William E. James, Asst. Atty. Gen., and Jack K. Weber, Deputy Atty. Gen., for respondent.

BURKE, Justice.

In 1959 Doyle Alva Terry was convicted on two counts charging lewd acts upon Richard and Timothy respectively, each a child under 14 (Pen.Code, § 288) and one count of infamous crime against nature committed against Timothy (Pen.Code, § 286). The judgment was affirmed. (People v. Terry (1960) 180 Cal.App.2d 48, 4 Cal.Rptr. 597 (hg. den.; cert. den. 364 U.S. 941, 81 S.Ct. 458, 5 L.Ed.2d 372).) In 1960 Terry was found guilty of first degree murder for killing Police Officer Vernon Owings (Pen.Code, §§ 187, 189), conspiracy to commit robbery (Pen.Code, § 182), and five counts of first degree robbery (Pen.Code, §§ 211 & 211a). We affirmed the judgment except the determination of penalty for the murder. (People v. Terry (1962) 57 Cal.2d 538, 21 Cal.Rptr. 185, 370 P.2d 985 (cert. den. 375 U.S. 960, 84 S.Ct. 446, 11 L.Ed.2d 318).) Upon a penalty retrial the jury again imposed the death penalty, and we again reversed that penalty. (People v. Terry (1964) 61 Cal.2d 137, 37 Cal.Rptr. 605, 390 P.2d 381 (cert. den. 379 U.S. 866, 85 S.Ct. 132, 13 L.Ed.2d 68).) The third penalty trial resulted in a mistrial. At the fourth penalty trial a jury again fixed the penalty at death, and we reversed that penalty under the compulsion of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. (People v. Terry (1969) 70 Cal.2d 410, 77 Cal.Rptr. 460, 454 P.2d 36 (cert. den. 399 U.S. 911, 90 S.Ct. 2205, 26 L.Ed.2d 566).)

Terry is currently confined at San Quentin pursuant to the 1959 and 1960 judgments of conviction. He was awaiting his fifth penalty trial for the murder when he filed the instant habeas corpus petition attacking both the 1959 and 1960 judgments on various grounds. We issued an order to show cause and stayed the penalty retrial '(p)ending final determination of this matter.' We have concluded that the 1960 judgment is valid but that the 1959 judgment must be set aside for the reasons hereinafter set forth.

I. VALIDITY OF 1960 CONVICTION

A. Asserted Error in Use of 1959 Conviction for Impeachment Purposes

At the trial for the murder, robberies, and conspiracy to commit robbery Terry on cross-examination by the prosecutor admitted having been convicted in 1959 on two counts of molesting children and one count of sodomy. The instructions given by the court informed the jury that 'a witness may be impeached * * * by proof that he has been convicted of a felony.' Terry contends, apparently for the first time, that the testimony of his 1959 conviction was inadmissible, since that conviction was assertedly invalid under Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255. The reason for his apparent delay in presenting this contention undoubtedly is that Barber v. Page was not decided until 1968 and Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (making Barber v. Page 'fully retroactive') was not decided until 1969, although he does not so state. (See In re Swain, 34 Cal.2d 300, 302, 304, 209 P.2d 793.)

"We have repeatedly held that prior convictions obtained in violation of Gideon v. Wainwright, * * * 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, cannot be used for impeachment or any other purposes. (In re Woods * * * 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913; In re Luce * * * 64 Cal.2d 11, 48 Cal.Rptr. 694, 409 P.2d 918 * * *; In re Tucker * * * 64 Cal.2d 15, 48 Cal.Rptr. 697, 409 P.2d 921; People v. Coffey * * * 67 Cal.2d 204, 60 Cal.Rptr. 457, 430 P.2d 15; In re Caffey * * * 68 Cal.2d 762, 69 Cal.Rptr. 93, 441 P.2d 933 * * *.) An accused cannot be forced to suffer anew from the earlier deprivation of his Sixth Amendment right. (Burgett v. Texas * * * 389 U.S. 109, 115, 88 S.Ct. 258, 19 L.Ed.2d 319. * * *)" (In re Dabney (1969) 71 Cal.2d 1, 6, 76 Cal.Rptr. 636, 638, 452 P.2d 924, 927.) Similarly a prior conviction invalid under Barber v. Page cannot be used for any purpose.

However, even if it be assumed (1) that Terry's 1959 conviction is invalid under Barber v. Page, Supra, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255, and (2) that the rule here enunciated prohibiting the use of such a prior conviction applies retroactively to Terry's guilt trial, reversal of the judgment, as we shall see is not required. The introduction into evidence of an unconstitutional prior conviction is not prejudicial per se, and in assessing the prejudicial effect of such an error we must apply the test enunciated in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705, namely whether the prosecution has proved 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' (In re Dabney, Supra, 71 Cal.2d 1, 6--8, 76 Cal.Rptr. 636, 638, 452 P.2d 924, 926; People v. Coffey, Supra, 67 Cal.2d 204, 219, 60 Cal.Rptr. 457, 430 P.2d 15.) Dabney further declared (71 Cal.2d at p. 8, 76 Cal.Rptr. at p. 639, 452 P.2d at p. 927) that '* * * only the most compelling showing can justify finding such error harmless beyond a reasonable doubt.'

Here the prosecution has made such a showing. In addition to Terry's testimony of the 1959 conviction there was evidence that he was convicted in 1947 of armed robbery, and this latter conviction was emphasized by the prosecutor in his closing arguments as basis for impeaching Terry's testimony on the stand. Although Terry now urges that the evidence regarding the 1947 conviction was inadmissible because he, assertedly, had received a pardon for that offense, as hereinafter appears, the court did not err in admitting that evidence.

Also the jury was instructed that the presumption of truth-telling on the part of a witness may be repelled by the interest of the witness in that case or by contradictory evidence. Terry's interest in the case is manifest, and, as shown hereinafter, there is extensive and convincing evidence contradictory to his testimony at the trial.

At the trial Terry admitted shooting Police Officer Owings but claimed that it was an accident and denied committing any of the robberies testified to or conspiring with anyone to commit robbery.

Terry's version of the circumstances surrounding the shooting was as follows: On June 24, 1960, Ross Wilson persuaded him to help get rid of a Cadillac, which was owned by Wilson and had been the subject of a police inquiry. Wilson drove the Cadillac and Terry followed in his Chrysler. After reaching Terminal Island, they stopped along the road. While working to remove the battery from the Cadillac, Wilson saw an approaching police car and got panicky because there was a gun under a sweater in the Cadillac. Terry picked up the gun with the sweater over it to put it in the trunk of the Chrysler. Officer Owings came over and asked what Terry had, and Terry replied 'nothing' and proceeded to the back of the car and raised the trunk. Owings 'made a jump' towards Terry, and Terry 'pulled back the sweater and the gun went off.' The shooting was not intentional, and he did not remember pulling the trigger. Officer Brizendine (Owings' partner) started shooting, and Terry had the gun in his hand and shot back. He must have 'cocked the hammer back' before returning Brizendine's fire. At one point he looked under an auto at Brizendine, Brizendine shot at him, and he guessed he shot at the officer. He and Wilson drove away from the scene. After letting Wilson out of the car, he drove on. The police pursued and captured him.

Terry also denied that he had ever laughed about killing the officer, as Wilson testified at the trial in reporting their conversation while in custody on July 11, 1960.

The prosecution called to the stand two eyewitnesses to the events at the scene of the shooting. The first such witness, Officer Brizendine, testified: About 6 p.m. on June 24, 1960, he and Officer Owings were driving in a police car on patrol duty in the area of the Terminal Island Naval Station. On seeing the hood of the Cadillac up, they stopped to give assistance. Brizendine walked forward to the Cadillac, where Wilson was standing. Owings walked the opposite direction toward Terry. While talking to Wilson, Brizendine heard a shot, and as he turned he saw Owings falling and Terry with a gun in his hand, shooting in the direction of Brizendine. Brizendine felt he had been shot, drew his gun, and fired at Terry. Brizendine then fired at Wilson. The officer did not know whether Wilson had a gun but does not now believe Wilson had one. Brizendine went behind a Ford parked at the scene, and Terry looked under the Ford and shot at Brizendine; and Brizendine returned the fire. Terry fled in the Chrysler, and as he backed out drove over Owings' legs. Brizendine radioed for police assistance. He noticed that Owings' gun was still snapped in the holster.

The other prosecution eyewitness to events at the scene of the shooting was Ross Wilson, who had been jointly charged with Terry for the murder, robberies and conspiracy to commit robbery but who near the close of the prosecution's case pleaded guilty to counts one (conspiracy to commit robbery) and four (robbery of Morris Danielson) and testified for the People. At the time of his testimony he had an application for probation pending; he admitted two prior felony convictions. Wilson testified: On the day the officer was shot Terry drove the Cadillac, which Wilson had sold to Terry several months before, and Wilson drove the Chrysler. Wilson did not know that Terry had a gun with him that day. After Brizendine stopped to talk with him, he heard a shot. He then saw Owings...