Opinion
Cr. 5987
4-3-1958
The PEOPLE of the State of California, Plaintiff and Respondent, v. Nellard Robert BERVE, Defendant and Appellant. *
Robert H. Aarons, Pasadena, for appellant. Edmund G. Brown, Atty. Gen., Albert Bianchi, Deputy Atty. Gen., for respondent.
The PEOPLE of the State of California, Plaintiff and Respondent,
v.
Nellard Robert BERVE, Defendant and Appellant. *
Robert H. Aarons, Pasadena, for appellant.
Edmund G. Brown, Atty. Gen., Albert Bianchi, Deputy Atty. Gen., for respondent.
SHINN, Presiding Justice.
Nellard Robert Berve was charged by information with the murder of Mary Margaret Pettit. In a court trial defendant was found guilty of murder of the second degree and he was sentenced to state prison. Berve appeals from the judgment.
The deceased, a married woman, lived with her husband and their three minor children in Lakewood. Her older sister, Mrs. Wanda Roper, also lived in Lakewood. Wanda was the chief witness for the People. The following is the substance of her testimony. Prior to October 4, 1956, the deceased was in good health. On October 4th, Mrs. Pettit asked Wanda to take her to a certain motel and barroom in Lakewood She told her sister that her purpose in going was to have an abortion and that defendant 'was going to do it.' Early in the evening Wanda drove Mrs. Pettit to the Bellflower Motel on Lakewood Boulevard. They arrived at about 7 or 7:30 p. m.; Wanda registered for a motel room in her own name; Mrs. Pettit paid the room rent, which was $5. Wanda then accompanied her sister to the Boulevard Stop, a cocktail lounge located on Lakewood Boulevard not far from the motel. The sisters sat down next to defendant and conversed with him for a few minutes. Mrs. Pettit went to the ladies' room. While her sister was absent, Wanda told defendant that 'she sure hated to see Mary go through that.' Berve replied that 'he did too, but under the circumstances it was for the best.' When Mrs. Pettit returned the three parties left the Boulevard Stop and went back to the motel in defendant's automobile.
Upon alighting from the car, defendant took a paper sack from the middle of the seat. Wanda did not see what was inside the bag. She accompanied defendant and her sister to the motel room, talked to Mrs. Pettit for a new minutes, and then proceeded to the Idle Hour, a cocktail lounge located across the street from the motel. On cross-examination, she was asked whether she had had 'an understanding to stand by to help in any form that night.' The witness denied having had such an understandings. Upon being asked whether she was going to stand by to help, she answered: 'I would have, yes.' Wanda remained in the Idle Hour for about an hour or an hour and a half. Then defendant entered the establishment, joined her at the bar and ordered a drink. Wanda asked him how her sister was and defendant said that she was o.k. She inquired whether 'everything went o.k.' and defendant said: 'No, she was bleeding, and * * * it usually did not happen that way.' They left the Idle Hour and walked to defendant's automobile. Mrs. Pettit was seated in the car. Defendant drove the sisters back to Wanda's car which was parked in front of the Boulevard Stop. Mrs. Pettit asked Berve to take it easy over the bumps and complained of bleeding and of pains in her stomach. Defendant told her that 'the first time might not work, he might have to do it two or three more times, [and] for her to let him know.' Wanda then took her sister home.
The People also called Jackson Hunter, who was a bartender employed at the Idle Hour. Hunter testified that he was on duty on the evening of October 4th. He saw Wanda Roper enter the establishment around 8 or 8:30 p. m. She sat at the bar and remained there for an hour or more. Defendant came in, ordered a drink, had a short conversation with Mrs. Roper, whereupon the two of them left. About a week after suffering the miscarriage, Mrs. Pettit was removed to the Los Angeles County Hospital. She was suffering from tetanus poisoning and despite the efforts of physicians to save her life she died from the effects of it. There was undisputed medical testimony that the infection was due to injury received in the performance of an abortion. The medical testimony was in conflict as to whether the injury could have been self-induced.
There was no evidence which connected defendant with the offense other than the testimony of Wanda and evidence of a full confession, which we shall discuss later. This evidence was received over the objection of defendant that his confession was not given voluntarily.
The first question is whether Wanda was an accomplice of defendant. It is necessary to decide this question. The testimony of Wanda was not corroborated except by evidence of defendant's confession. As we shall presently see, evidence of the confession was improperly admitted. If Wanda was an accomplice the evidence was insufficient to support the finding of guilt. If, however, she was not an accomplice, her testimony, considered with the uncontradicted evidence that Mrs. Pettit died of tetanus poisoning induced by an abortion, was sufficient to establish defendant's guilt. The trial judge declined to rule whether she was an accomplice and in his concluding remarks said: 'And assuming, and she may be, I am not deciding it, because I don't think it is necessary for the decision, that Wanda Roper was and is an accomplice. Her testimony was corroborated by the defendant's own statement or his confession, by whichever term you want to designate them.'
Since the controlling facts were not in dispute, the question for the trial court whether Wanda was an accomplice was one of law and it is necessarily the same on appeal. People v. McDermott, 75 Cal.App. 718, 719-720, 243 P. 485; People v. Frahm, 107 Cal.App. 253, 264, 290 P. 678; People v. King, 30 Cal.App.2d 185, 197, 85 P.2d 928; People v. Lamb, 134 Cal.App.2d 582, 586, 285 P.2d 941.
It has never been held in our jurisdiction that one who accompanies a woman to a residence or office knowing that she is to submit to an abortion thereby becomes an accomplice of the person who performs the abortion. The decisions, as we shall see, hold that such innocent assistance, without more, does not amount to criminal activity.
In People v. Balkwell, 143 Cal. 259, 76 P. 1017, 1019, a Miss Byrne accompanied deceased to the home of the defendant where an abortion was performed; she endeavored to persuade the deceased not to have it done; she did nothing to help the defendant in the perpetration of the act. The court said: 'It is further urged that the conviction was had upon the uncorroborated testimony of an accomplice, Miss Byrne, but there is no word of evidence to show that Miss Byrne was such an accomplice.' And the court quoted from Underhill on Criminal Evidence (§ 346): "Nor is a woman an accomplice, who, being an intimate friend and confidant of the deceased, knew of her pregnancy and her desire for relief, and accompanied her to the defendant's house, when she did not aid or advise the defendant, and was not present when the crime was committed."
In People v. Brewer, 19 Cal.App. 742, 127 P. 808, the husband of the deceased accompanied her to the residence of the defendant 'with knowledge of her purpose, but without aiding or abetting or encouraging her therein, and who did not assist the defendant therein * * *.' He was not present when the operation was performed and rendered no assistance. The court said: 'Except that he was the husband of the pregnant woman, his conduct was quite similar to that of the witness in People v. Balkwell, 143 Cal. 259, 76 P. 1017, who was held not to have been an accomplice.' The holding in the case was that the court could not say as a matter of law that the husband was an accomplice.
The facts in People v. Seiffert, 81 Cal.App. 195, 253 P. 189, were substantially the same as in Brewer. The sister of the deceased accompanied her to the defendant's office knowing that an abortion was tof be performed. She testified that she advised against it but that she was willing to help her sister in any way she could. All that was held in this case was that the sister was not, as a matter of law, an accomplice of defendant. The court cited People v. Balkwell, supra.
There was a similar holding in People v. Davis, 43 Cal.2d 661, 673, 276 P.2d 801, 807, where the court said: '* * * and the mere accompaniment of a victim of abortion to defendant's residence, although realizing at that time the victim's purpose in going there is to obtain an abortion, does not necessarily make the companion an accomplice.' Citing People v. Balkwell, supra, 143 Cal. 259, 261, 76 P. 1017; People v. Brewer, supra, 19 Cal.App. 742, 746, 127 P. 808; People v. Seiffert, supra, 81 Cal.App. 195, 198, 253 P. 189. These three cases were cited by the court in People v. Wilson, 25 Cal.2d 341, at page 346, 153 P.2d 720, at page 723, in support of the statement: 'The mere fact that he (husband) accompanied his wife to defendant's office does not make him an accomplice.' In the foregoing cases and in People v. Malone, 82 Cal.App.2d 54, at page 68, 185 P.2d 870, the question whether witnesses for the People were accomplices was submitted to the jury upon exceedingly thin evidence that they had any connection whatever with the commission of the offenses. However, the contention made in each case on appeal was that the court should have instructed that each of the several witnesses was an accomplice as a matter of law. These contentions were rejected and properly so since under the holding in People Balkwell, supra, the facts would not have justified a conclusion that they were accomplices. However, the holdings in those cases that the witnesses were not, as a matter of law, accomplices, was the equivalent of holding that they were not accomplices, since, in each case, upon the facts, the question was one of law.
We hold that Wanda Roper was not an accomplice. Section 1111 of the Penal Code says in part: 'An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.' Wanda's testimony shows that she was reluctant to see her sister submit to an abortion, and there was no evidence whatever that she rendered any assistance in it, or did or said anything to advise or encourage it. There was nothing even suggestive of criminality upon her part in anything she did upon the importunity of her sister. It seems no less than absurd to assert that she was subject to prosecution. It follows that from the proof of death by criminal means and defendant's connection therewith, as established by the testimony of Wanda, there was sufficient evidence to justify the finding of guilt.
As previously mentioned, the trial court was of the opinion that even if Wanda was an accomplice her testimony was adequately corroborated by the confession of the defendant.
It is contended that the evidence of the confession was inadmissible for the reason that the evidence conclusively established that the confession was obtained by the use of force and fear. This point is well taken.
There was no dispute as to the facts with respect to the circumstances and the manner in which defendant's confession was obtained. The trial court was not in doubt as to the facts. This clearly appears from the statements of the court of its reasons for overruling defendant's objection to evidence of the confession. The court's ruling, as we shall see, was based upon an erroneous concept of the law as applicable to the established facts.
Wanda testified that on the afternoon of the day defendant gave his confession she went to the sheriff's station where she discussed the affair with Lieutenant Peterson. She returned to her home where she met Peterson and a reporter to whom she dictated a statement. Then, with Peterson, another officer, and the reporter, she went to defendant's place of business where they remained outside. From there they went to Wanda's home. Peterson and two other officers were there when Wanda arrived. In the meantime Harry Pettit had brought defendant to Wanda's home and he, with his brother Sonny and a man named Jim Johnson, were present with defendant. Defendant was seated on a couch, bleeding from the forehead. A window glass had been broken and a leg had been broken from a coffee table. A rug was mussed up. The officers ordered defendant to get up and they left with him. Harry Pettit was holding a rifle. Defendant testified that in the early evening of the same day Harry Pettit, the husband of the deceased, encountered defendant at the latter's place of business at closing time; at the point of a rifle he compelled defendant to enter a car and drive to Wanda's home while he, Pettit, sat in the rear seat holding a rifle on defendant and occasionally touching his head with it. Defendant testified that at Wanda's home he was brutally beaten for the purpose of forcing him to make a confession to the authorities. He was beaten with fists and knocked through a plate glass window, suffering a cut, which bled freely. A leg was broken from a coffee table and thrown at him; he was called unrepeatable names. Harry Pettit sat in front of him with the rifle trained on him and occasionally struck him with the butt of the rifle. He was threatened with death if he failed to make a confession. He was invited to run away so Pettit could shoot him; he was put in great fear for his life and was willing to admit anything to escape from his torture. This ordeal lasted about two hours until the officers came which was shortly before Wanda's arrival.
Defendant testified to all this mistreatment, and also testified that a car had been parked in front of his parents' home and that the occupant had been watching his parents. In the Roper home threats were issued against defendant's parents if they tried to assist him; he was 'chilled with fright.' Officer Peterson testified that when he arrived at the Roper home he observed defendant's condition and that he was bleeding, bruised, in a disheveled state and perspiring. He saw Harry Pettit seated on a chair in front of defendant with a gun in his hands. He knew that defendant had been brought to the house at the point of a gun. He had seen defendant about two hours earlier and knew that his injuries had been inflicted in the meantime. The People did not call either of the Pettits or Johnson as a witness. Not only was defendant's testimony concerning his mistreatment without contradiction, but it was substantially corroborated by the testimony of Officer Peterson. The officer who had come to the Roper home prepared to obtain a confession from the defendant soon learned that he had been subdued to the point where his resistance to demands for a confession had been broken. This law enforcement officer, ignoring the obvious fact that defendant had been severely beaten, and assaulted with a deadly weapon, was concerned only with the fact that he was apparently in a condition of mind to confess his guilt. Defendant was arrested; his hands were handcuffed behind his back and he was taken to the sheriff's station where he was immediately questioned and his statement admitting guilt was reported and transcribed.
Officer Peterson testified that no threats were uttered and no inducements offered at the station and, as far as he could observe, defendant's confession was free and voluntary. That defendant was brutally beaten and put in fear of his life was the only reasonable conclusion consistent with the evidence. The court was convinced of those facts but altogether disregarded the evidence that the confession has been extorted from defendant by means of force and fear. With respect to the use of the rifle the court said: 'I don't know what difference it makes. Suppose somebody brought him down there at the point of a gun. Unless that can be traced to these officers, how would that make a confession involuntary?' The court also said: 'It is also clear to the Court that the confession of the defendant was voluntary. We can even go farther than that, and I say it is the opinion of the Court that he was extremely happy to see these officers upon their arrival, and the defendant thought for some reason that his life was in danger and that these sheriffs saved his life. In any event, there is no evidence before this Court that any force was used, or threats or promises made to the defendant. He was not promised any immunity, or threats made to him by any law-enforcement officers.' The court said further: 'Is there anything further before I rule on this issue of whether this confession is admissible. It is now submitted to me. * * * The objection is overruled. Do not argue on this question, there is no use.'
We have yet to hear from those whose duty it is to administer the law and protect the rights of the citizens the first word of criticism of the brutal methods that were employed to extort a confession from the defendant. The officers had full knowledge of it and offered the puerile excuse that they were not the ones who beat the defendant into submission. The court gave tacit approval to the use of force and threats by Pettit and his accessories as a means of obtaining a confession. The Attorney General agrees with the court's reasoning and justifies its ruling upon the ground that the officers did not participate in defendant's mistreatment. He says 'Here it is undisputed that 'those in authority' did nothing which could have caused the confession to be involuntary.' It is not difficult to foresee the evil consequences that would flow from toleration of this attempted evasion of fundamental principles of law.
The quoted statements of the court disclose an erroneous concept of the principles under which confessions illegally obtained are excluded from the evidence. To the trial court the fact that the mind of a prisoner was so saturated with fear or hope that he felt forced to make a confession is immaterial unless it was brought about by the acts of law enforcement officers. By the court's own statement it appeared that defendant was put in fear of his life if he refused to confess. Although it appears that the court was convinced that defendant had agreed to confess because he was in fear of his life, the court considered nothing except the absurd statement of Officer Peterson that as far as he could see defendant's confession was given freely and voluntarily. The officer knew full well that between the time he saw defendant earlier in the evening and when they met in Wanda's home defendant had been 'worked over' for the very purpose of extorting a confession. We are convinced that the trial court was not so naive as to believe that the confession was given voluntarily. The court was merely mistaken in its view that the rule of law which bars the use of involuntary confessions is designed merely as a regulation of the conduct of peace officers, and that a confession may be obtained by any one else by any means whatever and used as evidence without violating any right of a defendant. The error in this concept of the law is self-evident. It is the absence of volition which condemns enforced confessions. The source of the coercion is of no moment.
The principles which forbid the use of confessions induced by force, fear, promise of immunity or reward of any nature are of a part with the right of an acused to a fair trial, in accordance with the laws of the land. The use of such evidence offends the due process clauses of the Federal and State Constitutions, U.S. Const. Amend. 14; Const. art. 1, § 13. Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192, 1193; see People v. Speakes, 156 Cal.App.2d 25, 319 P.2d 709, 716, and cases collected note 4. 'Use of involuntary verbal confessions in State criminal trials is constitutionally obnoxious not only because of their unreliability. They are inadmissible under the Due Process Clause even though statements contained in them may be independently established as true. Coerced confessions offend the community's sense of fair play and decency. * * * Nothing would be more calculated to discredit law and thereby to brutalize the temper of a society.' Rochin v. People of California, 342 U.S. 165, 173-174, 72 S.Ct. 205, 210, 96 L.Ed. 183, 190-191.
There was not the slightest reason for believing that defendant's mind was free from the fear of death which induced him to promise to confess. Although the officers did not make threats they took advantage of the threats which they knew had been made by the others, and the results were the same as they would have been if the officers, themselves, had used similar methods. We may well quote from People v. Jones, 24 Cal.2d 601, 609, 150 P.2d 801, 805, a statement that fits the present case. The court was speaking of the repetition of a confession made under threats and it was said: 'If a defendant is subjected to threats or violence and within a few days thereafter he makes a confession, it may not be introduced in evidence unless it clearly appears that such improper treatment did not cause him to confess. In a situation such as here presented, there is a presumption that the influence of the prior improper treatment continues to operate on the mind of the defendant and that the subsequent confession is the result of the same influence which rendered the prior confession inadmissible, and the burden is upon the prosecution to clearly establish the contrary. (Citations.)'
When it clearly appears that in obtaining a conviction use was made of a confession wrested from the accused by force, fear, the promise of immunity or the hope of reward, the inquiry need go no farther. It is of no consequence that the facts confessed may be proved by other evidence or that the guilt of the accused may be satisfactorily established by the entire evidence. The Constitution affords protection to the guilty as well as the innocent. The use of such a confession is a violation of due process. The conviction cannot be allowed to stand. The violation of the rights of the accused is, of itself, a miscarriage of justice.
Appellant complains of the court's refusal to require Officer Peterson to produce a statement made to him by Wanda prior to defendant's arrest. It was sought to use the statement in the cross-examination of the officer. There was no error. The statement would properly have been made available to appellant in the crossexamination of Wanda, but no such request was made.
All the purported appeals from nonappealable orders listed in the notice of appeal are dismissed. The judgment is reversed.
VALLEE, J., and PATROSSO, J.. pro tem., concur. --------------- * Opinion vacated 332 P.2d 97.