Opinion
Rehearing Denied Feb. 23, 1960.
Hearing Granted March 23, 1960.
Opinion vacated 6 Cal.Rptr. 759.
Benjamin F. Marlowe, Oakland, for appellant.
Stanley Mosk, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., John S. McInerny, Deputy Atty. Gen., for respondent.
TOBRINER, Justice.
Convicted upon trial by jury of a violation of Penal Code, § 209, kidnapping for the purpose of robbery, and section 211, robbery in the first degree, defendant appeals upon the grounds, among others, that an alleged coerced confession, some exhibits and certain testimony should not have been admitted into evidence. The record, in our judgment, compels us to sustain defendant's contentions as to the confession and in part as to the exhibits and testimony.
Our review will be in the sequence of (1) the facts of the crime, (2) the nature of the confession and statements, (3) the methods employed by the police to obtain them, and (4) the application to the foregoing of the appropriate legal tests. We shall then analyze an instruction on confessions and admissions; finally, we determine the admissibility of the testimony and exhibits.
The crime was a particularly obnoxious one. On December 22, 1957, at about 8 p.m., an armed man, subsequently identified as Allen Hecht, demanded admittance to the home of Blain R. Groo, the manager of Pay Less Grocery and Market, a large grocery and supermarket located at Mountain Boulevard, Oakland. Threatening to shoot Groo if he did not comply, Hecht demanded that Groo accompany him to the store, there to open the company's safes. Hecht forced Groo to call his wife, and then threatened to throw a bottle of acid in Mrs. Groo's face unless Groo told him where the store keys were hidden. Hecht found the store keys; meanwhile a second bandit, upon summons of Hecht and addressed by Hecht as 'Ralph,' entered the house. The two men forced the Groos to drive with them in the Groos' car to the market. During the drive, Hecht threatened to shoot Mrs. Groo in the spine if Groo did not cooperate. He told Groo that there would be another man at the store with a submachine gun who would 'mow every one of you down' if Groo caused trouble.
At the market the men forced Groo to open the two safes belonging to the company; they took the money and checks and then locked the Gross in a large refrigerator in the store. Before he left, Hecht told Groo that it was then about 9 p. m. and the police would be there in about 20 minutes to let them out. Some seven hours later, at about 4 a. m., the Groos succeeded in escaping from the locked refrigerator and summoning the police.
The day after the robbery the Groos were taken to the Berkeley Police Department where they identified a picture of Hecht as one of the robbers. The police found Hecht at his apartment in Fairfax. When Hecht threatened the officers with two guns a shooting foray occurred, and Hecht was killed. A search of his person produced a newspaper with the name, address and home phone number of Groo on it. On the reverse side there was written the address '1162 Bryant.' In the driveway the police found a 1956 Oldsmobile bearing a license number registered to the defendant. They likewise discovered in the apartment credit slips for gasoline, carrying the license number of the car and defendant's name. And in the glove compartment of the car they found a black leather blackjack.
'1162 Bryant' Street turned out to be the address of Fargo Company in San Francisco, a firm which makes and distributes police equipment. On December 18, 1957 defendant and another man had purchased a leather blackjack at the Fargo Company. A leather blackjack can be purchased only by law enforcement officers. After discovering the evidence pertaining to defendant, the police officers went to his home in Fairfax and questioned Mr. and Mrs. Trout regarding it. We deal here with two statements which the police officers themselves obtained from the Trouts and a statement which Trout gave San Quentin officials.
Defendant's statement to the officers, made on December 24, 1957, sets out that defendant, while a guard at San Quentin, met Hecht; that their association continued, contrary to prison regulations, after Hecht's release; that they planned to start a service station. The statement proceeds with the following narration. About two weeks before the robbery Hecht told defendant that he was being pressed for money and that he knew of a place that he 'thought was reasonably safe and thought we could get it with no trouble.' The Sundary before the robbery Hecht took defendant to the market and they 'drove over and drove around' it. The following Wednesday Hecht explained his plan to 'go to these people's house.' Defendant objected, '* * * I thought it was just a little too much, that I had a family of my own and wasn't even interested,' but Hecht assured defendant he wouldn't 'see the people' or be 'involved in any way.' Hecht told defendant there would be another man who would participate but did not name him.
The account continues that on December 22, at about 6 p.m., Hecht and defendant left defendant's home in Hecht's car. They stopped at a coffee shop in Oakland for about an hour and a half; they had a drink at a bar; they drove around until about 7:40 or 7:45 p. m. Defendant let Hecht out at a drugstore on a corner at Fruitvale, going back to the market, circling it until he saw a Buick parked in front, and then driving to a prearranged meeting place at Park and Fruitvale. Shortly after, Hecht drove up in the Buick, left it there, joined defendant, and Hecht and defendant went to defendant's home. The statement concludes with the explanation that defendant did not see any of the money stolen and had no knowledge of its disposition.
Shortly after the above confession defendant made another statement to the San Quentin officials. In this statement defendant described how he became involved with Hecht. When asked, 'Did you actually know what was going on, I mean on this job Sunday night,' defendant replied, 'Yes.'
The third statement was that of Mrs. Trout, rendered to the police at about 2:30 or 3:00 a. m. on December 24. According to it, Hecht on the afternoon of December 22, came to the Trout home, leaving it about 4 p. m. but returning for supper at about 5 p. m. Mrs. Trout left the home at 5:30 to go to a church function; she returned at approximately 9 or 9:30 p. m. At about 10:15 p. m. Hecht and her husband came back. Before she left for church her husband had told her that if her folks asked where he was she should tell them that he was working on the house.
We turn to the facts on the crucial nature of the methods which the police used to obtain the statement of defendant; in this respect we examine the testimony of defendant himself, Mrs. Trout, Mrs. Lodolce and Lieutenant Murray.
According to defendant, on the night of December 23 at about 11 p. m. the police officers entered defendant's home, which was occupied by defendant, his wife and their three minor children. The officers first separated defendant and his wife for interrogation; later, they told defendant that they would take his wife to jail. When he protested they answered that 'she didn't have to go to jail, they didn't want to take her to jail, that it was up to * * * [him], if * * * [he] wanted to give them a statement, that is all * * * [I] had to do and they would leave her at home.' Defendant asserted that he could not confess; he 'didn't know anything about it * * * and then I was asked The police took defendant to the inspector's office in Oakland; there, he saw his wife, but she was instructed not to talk to him and to stay in her chair. She was crying. The police then placed defendant in a holding cell. He was moved to another cell without sleeping facilities. Later he was photographed and fingerprinted. At about 6 a. m. he was put in the jail section of the prison for about an hour but was unable to sleep. He had no morning meal. At about 7 a. m. photographers took his picture and, shortly after, Lieutenant Murray interrogated him.
Lieutenant Murray outlined some of the details of the crime and told defendant several times that his wife 'should be at home with the children * * * at that particular time of the year. * * *' Lieutenant Murray said, indeed, that 'she could go home'; that all defendant 'had to do was to come clean and confess, clear this thing up and she could go home with the children.'
After the Murray interview the officers sent Mrs. Trout to see defendant. On the first occasion, Mrs. Trout told defendant she had been informed she could go home if defendant would confess; on the second, she told him that the police had first taken her to San Rafael to open the safe deposit box, and then took her home and 'the children were there.' She told 'how the baby had cried for her when she left'; 'she wanted to go home'; 'she just couldn't bear it.' After this interview, defendant told Lieutenant Murray he had decided to give the confession provided his wife would be released; he asked if Murray would let her go. Murray answered that he wished her to stay during the confession but that she could leave immediately after, at the first available transportation.
We turn from the testimony of defendant to that of Mrs. Trout. She stated that she was informed that her release would depend entirely on her husband; that she conveyed this message to defendant. And as soon as her husband completed his confession Lieutenant Murray opened the door for her and told her that she was free to go.
Mrs. Lodolce's testimony confirmed in substance that of Mrs. Trout. She attested that when she went to the inspector's office to inquire about her sister, Lieutenant Murray stated that Mrs. Trout could not be released at that time and that her release depended entirely upon her husband. The testimony of Mr. Glavinovich, an attorney, corroborates Mrs. Lodolce's testimony.
We conclude with Lieutenant Murray's testimony. When asked whether he told defendant that Mrs. Trout's release would depend entirely on defendant, Lieutenant Murray replied, 'No, sir, not in those words.' (Emphasis added.) Murray did not recall making any statement to defendant that if he came clean or gave a statement his wife could go home. He further testified that defendant gave the confession at 3:30 in the afternoon and that Mrs. Trout was released as soon as routine release slips could be completed. He confirmed that he twice sent in Mrs. Trout to see defendant. The confession itself discloses that Mrs. Trout attended its taking.
We turn to the principal issue of the case: defendant's contention that the police procured his confession by means of coercion. In the face of modern knowledge of psychological techniques to induce confession, or, to use the professional term, 'menticide,' we realize the difficulty and importance of The California courts have held that a confession cannot be introduced unless and until the prosecution lays a foundation by preliminary proof that the defendant voluntarily rendered it. Defendant may refute such a showing. If the evidence as to voluntariness conflicts, the trial court initially resolves the issue; if the court concludes the confession forced, the court withholds it from the jury; if the court finds it voluntary the court may admit it into evidence and repose in the jury the final determination of its voluntariness. People v. Gonzales, 1944, 24 Cal.2d 870, 876-877, 151 P.2d 251. The role of the appellate court is set forth in People v. Jones, 1944, 24 Cal.2d 601, 608, 150 P.2d 801, 804: 'While the weight of the evidence addressed to the circumstances surrounding the obtaining of a confession is to be determined preliminarily by the trial court, the circumstances constituting improper influences that would exclude a confession present questions of law, reviewable by an appellate court.'
Recent and terrifying use of the technique of confession has proven the wisdom of the courts in guarding against the introduction of coerced confessions. Psychological studies explain that it is possible to break the endurance of the normal person and obtain compliance with the interrogator's wishes by various procedures of refined cruelty. The official United States report on 'brainwashing' (The New York Times, August 18, 1955) states that in the Korean War 'virtually all American P.O.W.'s * * * at one time or another in one degree or another, lost their identity as Americans * * * thousands lost their will to live * * *.' The British report estimates that one-third of their P.O.W.'s absorbed enough indoctrination to be classified as Communist sympathizers (The New York Times, February 27, 1955). The well known case of Cardinal Mindszenty and the less publicized but comparable one of Colonel Frank H. Schwable (who was imprisoned during the Korean War) are illustrative. The former Chief, Psychological Department, Netherlands Forces, Joost A. M. Meerloo states, 'Menticide is an old crime against the human mind and spirit but systematized anew. It is an organized system of psychological intervention and judicial perversion through which a powerful dictator can imprint his own opportunist thoughts upon the minds of those he plans to use and destroy. The terrorized victims finally find themselves compelled to express complete conformity to the tyrant's wishes. Through court procedures, at which the victim mechanically reels off an inner record which has been prepared by his inquisitors during a preceding period, public opinion is lulled and thrown off guard. 'A real traitor has been punished,' people think. 'The man has confessed!' His confession can be used for propaganda, for the cold war, to instill fear and terror, to accuse the enemy falsely, or to exercise a constant mental pressure upon others.' P. 28, The Rape of the Mind (World Publishing Co., 1956). See Theodore Reick, Confession, Compulsion and the Nature of Punishment; see discussion of Justice Traynor in People v. Atchley, 1959, 53 Cal.2d 160, 346 P.2d 764, 769, as to confession which is 'the product of 'mental coercion."
The question here, therefore, is whether the undisputed facts establish the involuntary nature of the confession. An affirmative answer would compel the conclusion that the confession should not have been considered by the jury at all, since the error would be clearly prejudicial; the remainder of the prosecution evidence showed merely an association of defendant with Hecht, not his participation in the charged crime. We turn to the cases for illustrative analyses of factual backgrounds of confessions found to be coerced and those determined to be voluntary.
In People v. Mellus, 1933, 134 Cal.App. 219, 223, 25 P.2d 237, which was cited with approval in the recent decision in People v. Matlock, 1959, 51 Cal.2d 682, 697, 336 P.2d 505, the district attorney, in a case involving the theft of chickens, told the defendant: 'If you want to come clean on it, that is one thing; if you don't, that is all right. Your mother has told us practically everything. In fact, we have implicated her in it. The question is, do you want to come clean on it yourself and exonerate her, or are we going to hold both of you?' The court stated that the record clearly and convincingly showed that the sheriff told the defendant that if he 'did not tell all about what took place, he would have to lock up the mother.' (134 Cal.App. at page 225, 25 P.2d at page 239.) The court pointed out: 'We cannot overlook the natural ties of affection In People v. Shelton, 1957, 151 Cal.App.2d 587, 588, 311 P.2d 859 (likewise approved in People v. Matlock, supra, 51 Cal.2d at page 697, 336 P.2d 505), defendant's wife arrived at the premises where defendant apparently made book, and the officers told her that if the defendant did not confess they might arrest her. She then talked to the defendant; he thereupon made the confession; the confession was introduced into evidence. As to the single question of the nature of the confession, Justice Dooling, speaking for the court, agreed 'with appellant that the confession was not voluntary.' 151 Cal.App.2d at page 588, 311 P.2d at page 860.
The latest expression of the Supreme Court in People v. Matlock, supra, 1959, 51 Cal.2d 682, 697-698, 336 P.2d 505, 512, involved defense testimony that the police had threatened 'to 'bring the rest of the family in'' unless defendant confessed. Denying the threat, the police testified to the free rendition of the confession. The court, after stating that '[a] serious question is presented by the threat of an officer to 'bring the rest of the family in' * * *' and that '[a] confession coerced by a threat to arrest a near relative is not admissible,' held: 'In the whole circumstances of this case, however, we conclude that on the present record neither the threat alone nor its combination with the other circumstances in which defendant gave his statements was as a matter of law so inherently coercive as to require that we reject the officers' testimony that the statements were freely made * * *.' The court, however, reversed the judgment on other grounds and remanded the cause for a new trial.
Here, unlike Matlock, the circumstances, even in the absence of a vocal threat, are indicative of coercion. While the testimony as to a specific promise by the police to release defendant's wife may conflict, the following facts are not disputed: (1) the officers arrested defendant's wife after defendant failed to give them a statement at his home; (2) the police took the wife's statement shortly after her arrest at 3 a. m.; (3) about 12 hours later the police asked her to remain while defendant gave his confession; (4) the police twice before the confession sent in the wife to talk to defendant; and (5) the police released the wife immediately after the confession. Even if the police voiced no threat we cannot disregard the implications inherent in these circumstances.
Respondent's contention that the police adopted 'a lawful and reasonable attitude' cannot be sustained. The argument runs that, having reason to suspect the involvement of Mrs. Trout, the police 'took the position that they intended to hold her until they determined for sure that she was not a part of the conspiracy.' Early in the morning after her arrest, Mrs. Trout falsely narrated Hecht's activities on the Sunday of the crime. These statements, supplemented by her subsequent admission that she had known Hecht and that he had been at her house on the day of the crime, could well induce the suspicion of her complicity in the crime. But defendant's statement neither mentions his wife nor sets forth whether she had knowledge of the crime. The statement conceivably might impliedly exonerate his wife from active participation in the offense, but a police check of her assertion that she attended a church function, presumably shared by numerous other persons able to confirm her presence, would have served better to exonerate her.
The police knew no more about Mrs. Trout's participation in the conspiracy after the defendant's statement than they had known twelve hours earlier. If there were reason to hold her before the statement, there remained the same reason to do so after its rendition; the police action in releasing her becomes inexplicable. Defendant's confession thus in fact enabled Respondent's two answering arguments do not vitiate the force of the element of coercion.
Respondent first urges that the argument as to erroneous introduction of the confession 'overlooks' the 'fact' that after defendant 'had given this allegedly involuntary confession to the Oakland Police Officers' he 'again confessed' to the officials from San Quentin, and the latter 'confession' plus 'the other evidence connecting him up with these crimes' rendered non-prejudicial any possible error in admitting the first confession. Even though the San Quentin 'confession' occurred under different circumstances, it involved primarily the background of defendant's admitted association with Hecht; it falls far short of a confession of actual participation in the crime. Clearly, the erroneous use of defendant's extensive confession could not be mitigated by the narrow admission.
Respondent's second argument is that the basis for exclusion of involuntary confessions lies in their untrustworthiness; therefore, 'the final test in determining the admissibility of a confession should be one based upon its trustworthiness rather than its voluntariness.' While untrustworthiness may constitute a reason for excluding a coerced confession (see People v. Burwell, 1955, 44 Cal.2d 16, 31, 279 P.2d 744), another and independent basis for exclusion lies in the method of procuring it (see People v. Matlock, supra, 1959, 51 Cal.2d 682, 697-698, 336 P.2d 505; People v. Jones, 1944, 24 Cal.2d 601, 610-611, 150 P.2d 801.
Concluding that the record compels a decision that the confession was coerced, we undertake an examination of a rendered instruction on confessions and admissions. We believe the instructions may have misled the jury into believing that the requirement of voluntariness applied only to a complete confession and not to an admission or statement which pertained to an incriminating fact.
The instructions defined an admission as 'something less than a confession in that it does not concede so much pointing toward defendant's guilt, and does not alone, even if true, support a deduction of guilt. It may consist of any statement or other conduct by a defendant whereby he expressly or impliedly acknowledges a fact that contributes in some degree to the proof of his guilt of an alleged crime for which he is on trial, and which statement was made or conduct occurred outside of that trial.' The court then instructed the jury that it could consider a confession only if voluntary and, 'This rule does not apply to an admission, if any, by the defendant which did not amount to a confession, and you may consider, for whatever value you attach to it, evidence of any such admission, whether voluntarily or involuntarily made.' In People v. Nagle, 1944, 25 Cal.2d 216, 222-223, 153 P.2d 344, however, the court stated that the necessity for determining the voluntary character of a statement does not depend upon whether it constituted a confession but upon whether it included an important incriminating fact. See also People v. Eggers, 1947, 30 Cal.2d 676, 689, 185 P.2d 1. The statements of defendant introduced in this case did include such important incriminating facts. In the statement to the Oakland police, defendant admitted acting as a lookout man, and, in the statement to the San Quentin officials, knowledge of the crime. The instructions failed to inform the jury the same test would be applicable to such important incriminating statements as to a confession.
We turn to defendant's assertions of error in the admission of specific items of evidence, each of which we treat separately.
(a) The backjack. Defendant objected to the introduction of this exhibit as well as to testimony that defendant, shortly before the crime, purchased the blackjack. There was no showing the While weapons and instruments useful in the commission of crimes are not admissible unless shown to have a connection with the crime charged, the court admitted the blackjack here for the limited purpose of 'connecting the defendant with the alleged conspiracy.' Circumstantial evidence, such as this, confined as here to proof of a conspiracy, may properly be admitted. People v. Robinson, 1954, 43 Cal.2d 132, 271 P.2d 865.
The following evidence sustained the court's position that the blackjack would tend to establish such a conspiracy between Hecht and appellant: (1) On the Wednesday preceding the crime defendant and another person had purchased a blackjack at 1162 Bryant Street. (2) On the reverse side of the newspaper found on Hecht's person there appeared the notation '1162 Bryant.' (3) In the automobile parked in front of Hecht's apartment, which was registered to defendant, the police found in the glove compartment a blackjack similar to the one defendant purchased at 1162 Bryant Street.
We believe, therefore, the testimony as to the purchase of the blackjack, the sales slip as to its purchase and the blackjack itself were admissible.
(b) The tape and greasepaint. These exhibits were apparently admitted 'for illustrative purposes' in connection with Captain Bolger's testimony that blackjacks, tape and greasepaint are 'very often' used in crimes such as the instant one. Since no evidence connected these items with defendant or the offense, their admission falls within the prohibition of such cases as People v. Gonzales, 1924, 66 Cal.App. 646, 648, 226 P. 946; People v. Orloff, 1944, 65 Cal.App.2d 614, 151 P.2d 288; and People v. Yee Fook Din, 1895, 106 Cal. 163, 166, 36 P. 530. Respondent's argument that the state admitted the items only for illustrative purposes, citing People v. Aguirre, 1958, 158 Cal.App.2d 304, 322 P.2d 478, is irrelevant; such admission presumes a proper predicate: in Aguirre the testimony disclosed that defendant had used a similar gun at the robbery.
(c) The pistol. The prosecution proffered the pistol upon the ground that Groo testified it was similar to the one used in the robbery. Testimony that a gun offered into evidence is 'similar' to one actually used in the crime sufficiently lays a foundation. People v. Aguirre, supra; People v. Sampsell, 1930, 104 Cal.App. 431, 441, 286 P. 434. As a consequence, the court properly admitted the pistol.
(d) Gasoline credit card. Since defendant did not object to the admission at the trial of a gasoline credit card issued to him, which was found in Hecht's apartment at the time of his death, defendant cannot initially do so here.
(e) Paper with notations of Groo's name and address and '1162 Bryant.' Defendant's objection to the admission of this paper, found in Hecht's wallet, on the grounds that the prosecution did not show that defendant knew of its contents or even its existence, fails; possession of Groo's name and address, in itself, strengthens the inference of Hecht's involvement in the crime.
(f) Officer Weldon's testimony. Defendant complains that this testimony sought to degrade defendant by making it appear that he was 'sexually abnormal.' Officer Weldon testified on rebuttal defendant and Hecht were parked on the San Pablo Dam Road in Contra Costa County on August 31. While the inference urged by defendant from this testimony has no warrant, its introduction, as an attempt to impeach defendant's testimony on an immaterial matter, did constitute error. Defendant did not at any time deny his Tellefsen v. Key System Trans-it Lines,
People v. McCarthy, Stickel v. San Diego Elect. Ry. Co.,Since we have concluded that the confession was obtained by coercion, and should not have been introduced; that the instruction on voluntariness of the admissions and confession was erroneously stated; and that certain of the exhibits and testimony should not have been admitted, we do not believe it necessary to analyze the remaining contentions of defendant.
We reverse the judgment.
BRAY, P.J., and FOLEY, J. pro tem., concur.