Opinion
As Modified on Denial of Rehearing April 10, 1964.
Don Edgar Burris and E. V. Cavanagh, Los Angeles, under appointment by the District Court of Appeal, for defendant and appellant.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Gordon Ringer, Deputy Atty. Gen., for plaintiff and respondent.
FILES, Justice.
On Saturday morning, May 19, 1962, Ethel Mae Johnson was stabbed to death. Her body showed 49 wounds, three of which were described by the autopsy surgeon as fatal wounds in the heart. The weapon must have been a pointed and edged instrument at least five inches in length. The deceased, a 32-year-old woman 5 feet 3 inches tall, weighing 111 pounds, had a history of prostitution and addiction to heroin, though there was no evidence she was currently engaging in any illegal activity. Her neighbors knew she had been going in regulatory for Nalline tests.
For about a year immediately preceding her demise the decedent had been living with Lawrence Williams as husband and wife in a small one-story hotel, owned by the latter, situated on the north side of 68th Street near Central Avenue in Los Angeles. The building contained 10 rooms, 5 on each side of a central hallway which went straight through the center of the building. As one entered the front hall from the street, Rooms 1, 3, 5, 7 and 9 were on the righthand side, while the even numbered rooms were on the left side. Decedent and Williams occupied Room 1, which was the nearest to the street. The next room back from the street, Room 3, was a kitchen for the common use of all tenants.
Lawrence Williams testified that he left the premises to go to work about 10 a. m. At that time Ethel was asleep in bed in Room 1. Silas Traylor, who lived in Room 6, testified that he left the hotel about 8 a. m. When he returned about 11:40 or 11:45 a. m., he saw blood on the floor of the hallway and on the door of his room. He went back to Room 1, where he found the door open two or three inches. He opened it and saw no one. Then he opened the door to Room 3. There he saw blood 'all over the floor' and 'the feet sticking up.' He then went outside and spoke to a neighbor who was passing by, and asked her to call the police.
Deputy Sheriff Hardman, in a patrol car, received a radio call at 11:55 a. m. and arrived at the scene three or four minutes later. He found the nude body of the deceased on the floor of Room 3. There was a 'considerable amount' of blood on the floor of Room 3 and on the inside and outside of the window. The windowpane had been broken and the screen pushed out. On the wall just outside the window was a handprint of dried blood. There were two shoe prints in the blood in Room 3. The lock on the door to Room 1 had been broken, as though the door had been forced inward. Bloodstains on the floor of the hall led from the doorway of Room 3 to the doorway of Room 6. There was also blood on the wall of the hallway outside Room 2. In Room 1 there was a spot of blood on the bed. The decedent's purse lay over the spot. There was also one spot of blood on the purse.
Defendant and Williams had been acquainted since childhood. Defendant was also acquainted with the deceased, whom he knew as Williams' woman. Defendant had lived in the hotel for about two weeks in February 1962. Williams had not seen defendant for about two weeks prior to May 19.
Allen Black testified that he lived in Room 5. Friday night, May 18, he was away in an all-right dice game. He returned to his room Saturday morning about 9 or 9:30 with his friend Calvin Coolidge Johnson (apparently no relation to the deceased). Both men went to bed and slept. Mr. Johnson testified that he was awakened by the sound of a telephone ringing. A little later the doorbell at the front door of the building rang. He heard the front door open and close. Then he heard noises like bumping walls and stumbling. Then he heard a The bumping sound seemed to come from the vicinity of the front door, then seemed to move down the hall. The next sound came from Room 3 as the woman said, 'Monroe, don't kill me.' There was no screaming and the tone was just 'conversation.' Then she said, 'Don't cut my baby.' After that Mr. Johnson heard the window break.
When Mr. Johnson heard the words, 'I am not going to tell the police,' he awakened Black. The latter testified that as he awoke he heard a noise in the hallway and then heard the words, 'Monroe, don't cut me. I will tell him I fell out of the bed.' He recognized the voice of Ethel, which seemed to be coming from the hallway. Then he heard Ethel say, 'Monroe, don't kill my baby.' He heard this twice. Then he heard the glass break. Nothing more was heard after that. When he heard the glass break, Black looked out the window but he saw nothing. Both men promptly dressed themselves, walked straight outside and down to the corner to get a drink. When they heard the siren of the sheriff's car they returned to the hotel. Later that day they told the investigating officers what they had heard.
Mr. Johnson estimated that 15 or 25 minutes elapsed from the time they left the hotel until they heard the siren.
Mr. Black, Mr. Traylor, Mr. Williams and Ada Johnson, who was the mother of the deceased, all said that the defendant was commonly called 'Monroe.' The latter two testified they were unaware of any other 'Monroe' known to the deceased.
On the basis of information obtained at the hotel, the investigating officers asked for the arrest of defendant. Late that evening defendant was picked up by Los Angeles police officers outside a ballroom on West Manchester Boulevard and was taken to the 77th Street Station. At 11:45 p. m. deputy sheriffs formally took defendant into their custody and removed him to the sheriff's Firestone Station, where he was examined and questioned. The officers observed some scratches on defendant's face, which defendant explained as having been caused while shaving that day. They removed his shoes and submitted them to a chemist, who was called to the station for that purpose. He observed a small bloodstain on the front portion of the heel of the left shoe. The stain was on the leather base to which the rubber heel was attached. He then conducted a field test, which demonstrated that the substance on the heel was blood. In the chemist's opinion, it was a fresh stain. Both shoes appeared to have been cleaned recently, and the upper portions had been polished. On each shoe that portion of the leather sole which is under the instep, and which does not ordinarily touch the ground, had the appearance of oxidation, as though some bleach had been used on it. Officer Collins testified that when he asked defendant about this, defendant stated that he had washed the soles with 'Clorox.' Subsequent laboratory examination showed that there were two bloodstains on the left shoe and one on the right shoe. The spot on the right shoe was identified as human blood. The chemists were unable to determine what kind of blood was on the left shoe.
At 3:07 a. m. on May 20, 1962, defendant was formally interrogated by Officer Collins in the presence of a shorthand reporter. The transcript of the interview is in evidence. At that time defendant stated that he had been acquainted with the deceased and with Lawrence Williams, that he had lived at Williams' hotel in February 1962, but that the last time he had been at the hotel was three weeks ago or longer. He specifically denied that he had killed Ethel, denied any knowledge of blood on his shoes, and denied that he had scrubbed his shoes or attempted to clean them to get blood off them. Defendant was taken thereafter to the Los Angeles County Jail, where he was held until he was arraigned on Wednesday, May 23.
By an information defendant was charged with murder and with having served three prior terms of imprisonment, of which two were for burglary and the third was for violation of Penal Code, section 245 (assault with deadly weapon). Defendant pleaded not guilty of the offense charged but admitted the priors. He waived a jury and was tried before the court, which found him guilty of murder in the second degree and sentenced him to State Prison. This appeal is from the judgment.
Defendant's contention that the evidence is insufficient must be judged in the light of the familiar rule that the appellate court does not reweigh the evidence, that where the evidence is in conflict or where more than one inference may be drawn from the facts in evidence, the appellate court is bound to accept as true such evidence and such inferences reasonably drawn from the evidence as would support the judgment. (People v. Newland, 15 Cal.2d 678, 104 P.2d 778.)
There were some conflicts in the testimony, and there certainly is more than one inference to be drawn from the facts in evidence. Defendant testified on his own behalf that on the morning of May 19, 1962, he performed a series of personal errands which took him away from the neighborhood of Williams' hotel. Defendant testified that he had been in the Owl Cafe, at the corner of Vernon and Central Avenue, between 10 and 11 a. m., but did not see anyone he knew there. From the cafe he 'caught the car and rode down to Vernon and Hoover,' where he went into a cleaning shop and picked up some clothes. He said he left the cleaner's at about 11:20 or 11:15 and returned to his home at 1034 1/2 West Vernon. He denied having been at Williams' hotel on May 19 and denied that he had killed the deceased.
Defendant called the wife of the owner of the cleaning shop, who testified that she had 'a faint recollection' that defendant had come in there about 11, 11:30 or 12 o'clock on Saturday morning to pick up clothes. On cross-examination she said it could have been Friday morning.
With respect to the shoes, which were received in evidence against him, defendant testified that he had not washed them with 'Clorox,' and he had not told the officers he had washed them with 'Clorox.' He testified that he had no idea what had caused the whitening of the leather under the instep.
At the close of the trial the judge summed up his view of the evidence. He referred to the testimony of Mr. Black and Mr. Johnson, which he found to have 'a very compelling quality.' He mentioned the blood found on defendant's shoes as a fact which, by itself, was subject to alternative explanations. The judge then pointed to the scrubbed or bleached condition of the underside of defendant's shoes. For this circumstance he found no satisfactory, innocent explanation. Defendant had denied knowing why his shoes were in this condition, yet the peculiar color of the leather strongly supported the inference that some unusual treatment had been applied. The shoes, as exhibits, are part of the record on appeal. We cannot say that the trial judge was unreasonable in drawing the inference which he drew from the testimony of the chemists and the condition of the shoes as they appeared to him. There is sufficient evidence to support the judgment.
Defendant contends that he is entitled to a reversal because of the way he was treated by the police and the deputy sheriffs between the time he was arrested on Saturday evening and the time of his arraignment on the following Wednesday. Specifically, defendant points to the following matters in the record:
(a) Defendant testified that the Los Angeles police officers who arrested him failed to inform him of the cause of the arrest and their authority to make it. Although defendant knew the men making the (b) Defendant was arrested without a warrant, and he contends there was no probable cause for the arrest at that time.
(c) Neither the arresting officers nor the deputy sheriffs who questioned him ever advised defendant of his right to remain silent.
(d) Defendant testified that at some time after his arrest he asked permission to call an attorney, but permission was refused. Defendant was allowed to telephone a friend on Sunday morning, after he had been taken to the County Jail. He contends that the officers violated Penal Code, section 851.5, subdivision (a), which provides: 'Any person arrested has, immediately after he is booked, and, except where physically impossible, no later than three hours after his arrest, the right to make, at his own expense, in the presence of a public officer or employee, at least two telephone calls from the police station or other place at which he is booked, one completed to the person called, who may be his attorney, employer, or a relative, the other complied to a bail bondsman.'
(e) Defendant did not have the advice of counsel between the time of his arrest and the time of his first arraignment. He contends the state should have supplied an attorney to advise him during this period.
(f) While defendant was in custody a nurse took a sample of his blood without his consent.
(g) Defendant's arriagnment ws delayed in violation of Penal Code, section 849, subdivision (a), which states: 'When an arrest is made without a warrant by a peace officer or private person, the person arrested, if not otherwise released, must, without unnecessary delay, be taken before the nearest or most accessible magistrate in the county in which the offense is triable, and a complaint stating the charge against the arrested person, must be laid before such magistrate.'
(h) Statements made by defendant during the pre-arraignment period were received in evidence against him. Defendant contends that these statements were, as a matter of law, involuntary and inadmissible because of the irregular procedures noted above.
Defendant argues that these alleged delinquencies on the part of the police should result in a dismissal of the proceedings against him. No authority has been cited for imposing such drastic consequences upon the administration of justice becasue of the conduct of police officers. If courts were required to dismiss cases upon a showing that police officers had not complied with the law, then every police officer would be empowered to confer immunity upon any criminal simply by violating some of the rights of the accused during his prearraignment detention. Although the California rule excluding illegally obtained evidence was initially based upon the necessity of discouraging illegal searches and seizures (People v. Cahan, 44 Cal.2d 434, 445, 282 P.2d 905), the courts have not yet extended that principle so far as to confer immunity upon the victims of illegal police procedures. (People v. Valenti, 49 Cal.2d 199, 203, 316 P.2d 633.)
The applicable principle is that the state will not be allowed to profit from the use of illegal procedures. To put it the other way, if any violation of defendant's rights prejudiced him in the trial, he is entitled to a new trial. (See People v. Parham, 60 A.C. 333, 341, 33 Cal.Rptr. 497, 384 P.2d 1001.) Analysis of the trial record in this case shows defendant was not prejudiced, nor did the state profit by any of the matters complained of, excepting only the initial arrest. It is therefore unnecessary to discuss whether the conduct of the officers was improper in all of the particulars cited. The trial record demonstrates that the only evidence obtained as a result of defendant's arrest which was of any real significance was the shoes. The fact that defendant was arrested on May 19 made this evidence available to the prosecution.
The arrest was made upon information sent out by the officers who investigated at the scene of the crime on Saturday afternoon. There they learned that the victim had addressed her assailant as 'Monroe,' that defendant was acquainted with the victim, and he was the only person of that name whom they could connect with the victim. They had checked defendant's record and were aware he had proved himself capable of assault with a deadly weapon. Altogether, there was reasonable cause to arrest defendant. The examination of the shoes defendant was wearing followed as a proper consequence of that arrest.
Defendant does not claim he was subjected to any physical mistreatment or any psychological coercion other than some rather persistent interrogation during the early morning hours of May 20. This interrogation produced nothing which was of any real value to the People at the trial. The stenographer's transcript which was received in evidence containing defendant's statements to the sheriff's men was generally consistent with the testimony which he gave in court. The only admission of any importance attributed to defendant by the officers was his alleged statement that he had washed his shoes with 'Clorox,' a statement which he repudiated both in his transcribed interview at the sheriff's station and in his court testimony. In other respects his quoted remarks were inconsequential and, in the view of the trial judge, nonincriminating.
Whether defendant did or did not tell the officers he had used 'Clorox' was not a significant issue. The incriminating fact was the appearance of the shoes themselves. Inspection convinced both the chemist and the judge that something had been used, and defendant testified that he had no explanation.
Defendant further contends that the prosecution deprived him of due process of law in that the investigating officers failed to seek out and interview persons who might have supported his alibi, and further, that the coroner failed to make an examination of the body of the victim for the purpose of discovering whether she was at the time of her decease under the influence of narcotics, or whether she had had recent sexual intercourse. No authority is cited for defendant's contention that his constitutional rights included that kind of assistance from the investigating officers and the coroner. It is purely a matter of speculation whether additional investigation would have aided the defendant or strengthened the case against him. Defendant is not entitled to either a reversal or a dismissal upon this ground.
There is no showing that the delay in allowing defendant to make telephone calls after his arrest made any difference in the preparation of his defense. Defense counsel does not even assert that he was handicapped by this.
Defendant contends that the testimony of the witnesses Black and Johnson as to what the decedent said to her assailant was inadmissible hearsay. Decedent spoke under the stress of a murderous attack upon her person. The utterances were apparently spontaneous, and not the product of reflection or an attempt to relate a narrative. Her statements pertained to what she had just observed. Under these circumstances what she said was admissible under the 'spontaneous declaration' exception to the hearsay rule. (People v. Poland, 22 Ill.2d 175, 174 N.E.2d 804; see Showalter v. Western Pacific R.R. Co., 16 Cal.2d 460, 468, 106 P.2d 895; VI Wigmore on Evidence (3d ed.) § 1750.)
Defendant's final contention is that if he was guilty of murder at all, it was first degree murder, and for this reason the trial court's finding of second degree is unsupported. The record shows that the case was fairly tried and that the evidence was carefully and conscientiously weighed by the trial judge.
The order denying the motion for a new trial not being appealable, the appeal therefrom is dismissed. The judgment is affirmed.
SHINN, P.J., and FORD, J., concur.