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District Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. John T. MARBURY and George Horn, Defendants and Appellants.

Cr. 3515.

Decided: May 10, 1965

Harry Ackley, Woodland (Court-appointed), for appellant Horn. Milton McGhee, Sacramento (Court-appointed), for appellant Marbury. Thomas C. Lynch, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen., and Raymond Momboisse and John Giordano, Deputy Attys. Gen., Sacramento, for respondent.

Defendants were convicted of first degree murder and second degree robbery. Each appeals from the judgment against him. (Defendants' purported appeals from the orders denying motions for a new trial are nonappealable and will be dismissed.) Two confessions by defendant Marbury, implicating both himself and defendant Horn, were admitted in evidence. Two questions are involved on appeal: (1) Did the receipt in evidence of Marbury's confessions violate his constitutional rights? We are compelled to rule that it did under the rule of People v. Dorado, 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361, and People v. Stewart, 62 A.C. 597, 43 Cal.Rptr. 201, 400 P.2d 97; (2) Does rejection of the Marbury confessions implicating Horn require reversal of the judgment as to the latter? We hold that it does.

Shortly before 6:00 P.M. on January 24, 1964, the victim, Itsu Matsuo, an elderly woman of Japanese descent, left her home ‘O’ Street. She was carrying a handbag.

At about 5:45 P.M. of that day one, Willie Reed, a principal prosecution witness, observed defendants Marbury and Horn at the Stag Pool Hall at 3d and ‘J’ Streets, Sacramento. Reed was acquainted with Marbury. At about 6:00 P.M. Willie Reed left the Stag Pool Hall. As he walked south on 4th Street, he heard the sound of shoe cleats on the sidewalk behind him. Turning, he recognized Marbury as one of two men following him. Reed, believing himself to be possible quarry, quickened his steps. Marbury and the other man did likewise. On 4th Street between ‘N’ and ‘O’ Streets Reed passed Mrs. Matsuo walking in the opposite direction. When Reed reached the corner he crossed the street and, at the middle of the intersection, looked back. He saw Marbury either push or strike Mrs. Matsuo, who fell. Reed testified: ‘I heard a noise like her head hitting the ground.’ Reed saw Marbury snatch the woman's handbag. The second man was standing by Marbury at the time. Both defendants then walked rapidly to the corner of 4th and ‘O’ Streets, at which point Reed recognized the second man as Horn. At the corner the defendants turned right and started to run.

At about the same time, prosecution witness Frank Williams, a storekeeper, had closed his shop at 4th and ‘P’ Streets for the night and was walking southerly on 3d Street towards his home. He observed a man whom he identified as Horn, walking along 3d Street. Horn whistled twice as if warning or alerting someone. That ‘someone’ was not then visible, but Williams, looking back, observed a man approaching. That man attacked Williams, tripping him and knocking him down. During the scuffle, Williams was able to reach for, produce, and open a pocket knife. With it he slashed his assailant on the left side. He identified this man as Marbury. Williams himself received lacerations from Marbury's boot. The fight was interrupted by a passing motorist who intervened. Williams was taken to the emergency hospital.

A third prosecution witness, Cole Younger, the passing motorist described above, testified that he got out of his car to help Williams. He identified Marbury as Williams' assailant. He believed that Horn was among those persons standing by but he could not make a positive identification.

The first victim, Mrs. Matsuo, died that night. The cause of death was brain damage occasioned by her head striking a solid stationary object with great force. The victim's handbag was found, empty, the following morning behind some bushes at the corner of 4th and ‘O’ Streets.

That night Marbury went to the emergency hospital for treatment. He stated he had been attacked by three Mexicans. He had cuts on his left side and abrasions on his fingers.

Neither defendant took the stand to deny guilt. Marbury produced an eyewitness, a 15-year-old boy, Jesse Chavez. While walking down 4th Street he heard a thump, looked in the direction from which the sound had come and saw Mrs. Matsuo lying on the pavement with a person grabbing her purse. He identified that person as defendant Horn. Neither defendant produced an alibi witness.

On January 22d, two days prior to the murder of Mrs. Matsuo, Deputy Sheriff Balshor of Sacramento County had talked with Marbury about an armed robbery. Thereafter, and after the murder of Mrs. Matsuo, Marbury was arrested and booked for the robbery, a ‘county offense.’ On Saturday, January 26th, while Marbury was again being questioned regarding the ‘county’ crime, Detective Arthur Stanley of the Sacramento City Police force joined in the questioning and asked Marbury questions about the attack upon Mrs. Matsuo and Williams. The officer related to Marbury the evidence which they had against him regarding the latter crimes. This interrogation commenced about 7:00 P.M. According to Balshor and Stanley, after 15 or 20 minutes Marbury confessed. Stanley testified to the substance of the confession. Marbury agreed to make a statement to the district attorney. A deputy district attorney and a court reporter were summoned. Marbury then gave a detailed confession. Both confessions were admitted into evidence.

In the detailed statement Marbury said that he and Horn had been at the Stag Pool Hall; that they had been drinking and were broke; so they decided to ‘roll a drunk.’ He described the purse-snatching incident substantially as it had been related by Reed, except that he said Mrs. Matsuo had ‘fallen’ to the sidewalk. He admitted taking her handbag. He stated he and Horn had then walked rapidly to the corner of 4th and ‘O’ Streets, where they took out a coin purse and threw the handbag into some shrubs. Marbury contended that in the incident with Williams later, the latter had attacked him. After Marbury had been formally charged, he took the police officers to the scene of the two incidents and pointed out where the various acts had taken place.

There is thus not the slightest doubt of the guilt of both defendants or the part that each played in committing the murder and assault. Nevertheless we must reverse the judgment of conviction.

We must reverse Marbury's conviction because of the following facts: He was, at the time of both of his confessions, in custody. True, at the time of the first confession he was in custody primarily because of the asserted commission of another crime. When Marbury's statement was given to the deputy district attorney, however, it must be conceded he was then in custody for the murder, although he had not as yet been formally charged. He was also at the time of both confessions a prime suspect. Suspicion had focused upon him. He was being interrogated by law officers for the purpose of eliciting a confession. He was not advised of his right to remain silent, or of his right to be represented by an attorney. And, as we shall develop hereinafter, there is no affirmative showing that he had waived those rights.

Our Supreme Court recently held in People v. Dorado (1965), supra, 62 A.C. 350, at pages 365–366, 42 Cal.Rptr. at page 179, 398 P.2d at page 371, that the defendant's confession there involved ‘could not properly be introduced into evidence because (1) the investigation was no longer a general inquiry into an unsolved crime but had begun to focus on a particular suspect, (2) the suspect was in custody, (3) the authorities had carried out a process of interrogations that lent itself to eliciting incriminating statements, (4) the authorities had not effectively informed defendant of his right to counsel or of his absolute right to remain silent, and no evidence establishes that he had waived these rights.’

It was further held in Dorado that a confession improperly admitted requires reversal notwithstanding the provisions of California Constitution, Article VI, section 4 1/2. That section says that no judgment shall be set aside for error ‘unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ The reason is stated in Dorado, at page 368, 42 Cal.Rptr. at page 181, 398 P.2d at page 373, as follows:

‘The use of an involuntary confession results in a denial of due process * * * ‘regardless of other evidence of guilt.’ [Citations.]

‘The improper introduction of the confession which has been obtained in violation of the constitutional right to counsel transgresses the protection of due process no less than the illegal introduction of a confession which has been coerced. In either case courts cannot inquire into the prejudicial nature of the introduction of an illegally obtained confession for the reasons stated in People v. Parham (1963), 60 Cal.2d 378, 385, 33 Cal.Rptr. 497, 501, 384 P.2d 1001, 1005: ‘Almost invariably * * * a confession will constitute persuasive evidence of guilt, and it is therefore usually extremely difficult to determine what part it played in securing the conviction.’'

Dorado had not been decided when the case at bench was tried. Neither had Escobedo v. Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, upon which it is based. Both involved new interpretations of ‘due process.’ It is quite obvious therefore why Marbury was not advised of his ‘absolute right to remain silent’ or of his right to counsel. This also explains why the court admitted the confessions into evidence without requiring the showing demanded by the Dorado rule.

There was also no affirmative showing that Marbury had waived these rights. He testified he had asked for an attorney and had been refused the right. This was denied but it was admitted he had not been advised of his rights.

In People v. Stewart, supra, 62 A.C. 597, 43 Cal.Rptr. 201, 400 P.2d 97, in which there is explanatory elaboration of the rules laid down in Dorado, the court (per Justice Tobriner, the author of both the Dorado and Stewart opinions) states (on page 607 of 62 A.C., 43 Cal.Rptr. on page 207, 400 P.2d on page 103):

‘In Carnley v. Cochran (1962) 369 U.S. 506, 82 S.Ct. 884 [8 L.Ed.2d 70], the United States Supreme Court said, ‘The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.’ (Id. at p. 516, 82 S.Ct. at p. 890.) It follows that in order to establish a waiver of the right to the assistance of counsel the record must indicate that the defendant was advised of his right to counsel and to remain silent or that he knew of these rights and intelligently and knowingly waived them.'

The Attorney General (during oral argument) cited a recent decision of this court, People v. Chaney (March 1965) 233 A.C.A. 75, 43 Cal.Rptr. 280, as authority for the proposition that the facts here satisfy the requirements of Dorado. In Chaney defendant had been advised of his right to remain silent. He had also said ‘he had decided to ‘voluntarily come in * * * and clear the matter up.’' Here defendant was not advised he had a right to remain silent or of his right to have an attorney. The cases are distinguishable.

During the trial Marbury claimed his confession was improperly induced by promises of leniency, and his appeal brief alludes to the question of voluntariness. The record indicates that the trial judge did not make an independent determination of voluntariness but submitted the question directly to the jury. Since the conviction must be reversed on other grounds, we do not appraise the case in the light of the procedural demands later announced in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908.

We turn next to the contention of defendant Horn that the improperly admitted confessions of Marbury, which implicated Horn, were prejudicial to his case. We must agree.

It is argued by the Attorney General that Horn was not prejudiced because the court had instructed the jury that Marbury's confession could not be considered as evidence against Horn and there is a presumption that the jury has performed its duty and has observed the admonitions of the judge. (People v. Eggers, 30 Cal.2d 676, 691, 185 P.2d 1; People v. Isby, 30 Cal.2d 879, 896–897, 186 P.2d 405.) It has also been held that in the absence of a strong showing to the contrary, it is to be presumed that such instructions sufficiently protected defendant's right to a fair trial. (People v. Pike, 58 Cal.2d 70, 85, 22 Cal.Rptr. 664, 372 P.2d 656; see also People v. Chambers, 231 A.C.A. 41, 41 Cal.Rptr. 551.) This reasoning has been applied to support a rule, stated as a matter of generalization, that extrajudicial statements made by a codefendant in the absence of the other defendant are admissible, even though they may tend to incriminate the latter, provided the jury is properly admonished and instructed that such evidence can be considered only against the defendant making the statement. (People v. Ketchel, 59 Cal.2d 503, 533, 30 Cal.Rptr. 538, 381 P.2d 394.)

The rule has been criticized, even as a generalization. In Paoli v. United States (1957) 352 U.S. 232, 237, 77 S.Ct. 294, 1 L.Ed.2d 278, where the rule was asserted, a minority of four justices, Frankfurter, Black, Douglas and Brennan dissented. They would have held that despite a court's admonition, a confession cannot be wiped from the brains of the jurors. And Morgan in ‘Some Problems of Proof Under the Anglo-American System of Litigation’ (1956) 104–105 (see footnote 10, Jackson v. Denno, supra) refers to the admonition ‘as a pious fiction indulged by the courts' and to the admonishing instruction as one ‘which, as every judge and lawyer knows, cannot be obeyed,’ while Justice Friedman, in People v. Chambers, supra, 231 A.C.A. 41, refers at page 51, 41 Cal.Rptr. at page 558 to it as ‘carving Jurors' minds into autonomous segments' and points to opinions voicing ‘misgivings as to jurors' ability to segregate evidence into separate intellectual boxes, each containing a single defendant.’

Nevertheless, were we dealing here with confessions of a codefendant properly and constitutionally admitted against the co-defendant we would (in the absence of special circumstances of misuse) be compelled by binding higher authority to reiterate the rule.

Here, however, we do not have properly admitted confessions. Also we have a case where the receipt of confessions necessitates a reversal of the case against the person who gave it and who by an overwhelming preponderance of the evidence (excepting the confessions) was the principal actor in the commission of the offense. Can it be said that defendant Horn has had a fair trial, which due process demands, when so much of the case against him depends upon that portion of Marbury's confessions which assert that Horn was the instigator of the plan?2 We do not think so.

In People v. Gonzales, 136 Cal. 666, 69 P. 487, where a confession, improper because coerced, was held to require a reversal against the defendant who made it, it was also held by our Supreme Court (per Justice Henshaw) that this required reversal against the other defendant jointly tried; this notwithstanding the fact the trial court had instructed the jury that ‘the declarations of one defendant could not be considered by the jury as evidence against the other.’ The court observed (on p. 668, 69 P. on p. 488) that ‘it amounts to charging and attempting to convict Gonzales upon the merest hearsay evidence.’ That case is binding upon us. We also subscribe to its reasoning.

We hold that the judgment against the defendant Horn must also be reversed because, notwithstanding the court's admonition, the inadmissible confessions made by Marbury contain much damaging testimony implicating Horn as the instigator of the plan and we do not believe it would have been possible for the jury to have erased this from its consideration of Horn's guilt. (That it did not do so, the conviction of Horn for first degree murder, perhaps attests.) Since the confessions are tainted as to Marbury their unwholesomeness poisons the conviction of Horn who has not been fairly tried. As to him also due process was violated.

The defendants assign prejudicial error to the prosecuting attorney's comment on defendants' failure to take the stand. Shortly before this opinion was filed, the United States Supreme Court on April 28, 1965 filed its opinion in Griffin v. State of California, 85 S.Ct. 1229, holding that such comment violates the Fifth and Fourteenth Amendments. Since the judgments are reversed on other grounds and the comment is unlikely to occur on retrial, we do not consider whether the prosecutor's comment supplies a ground of reversal. There are other contentions which, for the same reason, we need not consider. The contention that the evidence was insufficient to support guilty verdicts is without merit. Even without Marbury's confessions, evidence of guilt of both defendants is very substantial.

The purported appeals from the order denying a new trial are dismissed. The judgment against each defendant is reversed.


2.  We also note that the prosecuting attorney capitalized upon Marbury's confessions in urging the jury to convict Horn. Although we have been referred to no instance in which the prosecuting attorney in argument referred to defendant Horn as the instigator of the plan, he did, however, state to the jury: ‘We have two men here that plotted in the Stag Pool Hall to go roll a drunk.’ The only evidence to support the statement that Horn ‘plotted’ a plan to ‘roll a drunk’ was the confessions of Marbury.

PIERCE, Presiding Justice.

FRIEDMAN and REGAN, JJ., concur.