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District Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Cleveland Lee BROOKS, Defendant and Appellant.

Cr. 4639.

Decided: May 25, 1965

Charles W. Thissell, San Francisco, for appellant (under appointment of the District Court of Appeal). Thomas C. Lynch, Atty. Gen. of the State of California, Robert R. Granucci, John F. Kraetzer, Deputy Attys. Gen., San Francisco, for respondent.

Appellant, Cleveland Lee Brooks, appeals from the judgment of conviction upon a jury verdict finding him guilty of assault by means of force likely to produce great bodily injury with intent to commit rape (in violation of Pen.Code, § 220).

Questions Presented

1. Was appellant denied due process as a result of certain statements which his attorney made during her closing argument to the jury?

2. Was it error for the trial court to admit into evidence statements which appellant made to the police following his arrest; and, if so, was this error prejudicial to appellant?

The Record

Mrs. Antoinette Hart testified at the trial that at about 4:30 in the morning on December 7, 1963, she went voluntarily for a ride to the San Francisco Ocean Beach with appellant and his cofedendant, James Davis;1 that at the beach she waded in the water, fell, lost her wig, and was then pulled forcibly by defendants back to the automobile; that Davis held her down in the front seat of the car while appellant attempted to rape her; that when she attempted to keep her legs closed, appellant hit her in the face and burned her neck and thighs with the cigarette lighter from the car; that when she indicated she was becoming ill defendants threw her out of the automobile, Brooks pulling off her wedding and engagement rings in the process. Defendants then drove away, leaving her alone at the beach.

At the trial, each defendant testified on his own behalf. Each admitted freely that the threesome had gone for a drive to the beach on the morning of December 7, 1963, but as to what happened on this ride and at the beach, the testimony of the two defendants differed vitally from those facts related by Mrs. Hart in her testimony. In essence, defendants' version of the incidents which occurred on the morning of December 7, 1963, was as follows: The threesome drove to the beach at around 3:00 o'clock in the morning; at the beach Mrs. Hart went wading, fell in the water, lost her wig, and was assisted back to the shore and ultimately to the car by defendants; when the three arrived back at the car, appellant and Mrs. Hart got into the front seat and Davis got in the back seat in order to change his clothes which had gotten wet when he pulled Mrs. Hart from the water. Once in the car Mrs. Hart expressed her anger over the loss of her wig, made some suggestive statements and gestures in the form of a proposition to appellant, and then started making gestures at appellant with the hot cigarette lighter from the car, which she was holding in her hand. Appellant wrestled with her to obtain the lighter and Davis finally took it and locked it in the glove compartment of the car. After this incident, when defendants were ready to leave the beach, Davis asked Mrs. Hart to get into the back seat ‘because he couldn't drive through town with her acting the way she was.’ Mrs. Hart got out of the automobile but refused to get into the back seat, whereupon defendants drove away without her.

Also called as witnesses for the prosecution were Dr. Billingsley, the doctor who examined Mrs. Hart at the Emergency Hospital shortly after the occurrence, and Inspector John Mino of the Sex Crime Detail of the San Francisco Police Department, to whom defendants had separately made statements following their apprehension by the police.2 These statements were introduced into evidence through the testimony of Mino. In addition, a tape recording of appellant's statement was played before the jury. The statements made by appellant to Mino were substantially the same as his testimony at the trial, with the following major discrepancies: In his statement appellant stated that while he and Davis were sitting in their car outside of the housing project where Mrs. Hart lived, she came up to their car, and knocked on the window; whereas in his testimony, appellant stated that he saw Mrs. Hart as she was entering her apartment and called her over to the car in which he and Davis were sitting. Whereas appellant testified in court that when the three returned to the car from the beach, he and Mrs. Hart got in front and Davis got in the back seat, in his earlier statement he indicated that all three got into the front seat. At the trial appellant stated that when they were ready to leave the beach, he and Davis asked Mrs. Hart to sit in the back seat of the automobile and that when she refused they left her at the beach; whereas in his statement appellant stated to Mino that Davis put Mrs. Hart out when they were ready to leave the beach. In his statement appellant indicated that the threesome had had some conversation on the beach concerning the loss of Mrs. Hart's wig, and that Davis had attempted to retrieve it; appellant made no reference to this conversation or to an attempted retrieval of the wig in his courtroom testimony. Whereas appellant testified that Mrs. Hart had made several lewd propositions to him while they were sitting in the car at the beach, he mentioned no such propositions or conversation in his statements to Mino. Whereas at the trial, appellant, who had been apprehended by the police in Detroit, Michigan, denied that he left San Francisco because he knew the police were looking for him, and further denied that he had jumped out of the back window of his mother's house when the police came there in search of him, the tape recording of appellant's conversation with the police contained statements that appellant knew the police were looking for him, and that when they came to the house where he was staying he left through the back window and went to Detroit.3

The Propriety of Defense Counsel's Remarks to the Jury

Appellant claims that the deputy public defender made certain remarks in her argument to the jury which amounted to a denial of due process in that the making of these remarks had the same effect as entering a plea of guilty, reduced his right to counsel to a nullity, and was in excess of authority and in violation of her duties as an attorney. The remarks in question are set out verbatim as follows: ‘The first thing that you have to remember is that the burden of proof lies with the People, and it lies to a degree: Beyond a reasonable doubt. Every element of this crime must be proven by them. It doesn't have to be disproved by the defendants. They don't have to prove that they are innocent. They have to be proven guilty. * * * Between these three persons who testified, the two defendants and the complaining witness, it would be hard—very hard to determine that everything they said was the truth or that anything they said was the truth. And so you look at the other evidence. The evidence seems to be pretty well established that an assault or this altercation or this lallygagging at the Beach by these three drunks ended by dawn. * * * [A]nd remember another thing—not the testimony of any one of these three liars, but the testimony of the physician was that they had wheeled her into the room to do a vaginal examination for rape and she said, ‘Oh, no, oh, no. I really wasn't raped,’ and so then they wheel her out and look at the rest of her injuries. I only point out these discrepancies—you are aware of them, and you heard the testimony, and you will have her statement. And the discrepancies are so great that I wouldn't, if I had to decide, wouldn't know what went on at that Beach. But I am impressed by the doctor's testimony. I don't think he has anything to gain.' (Emphasis added.)

Before proceeding to determine whether these remarks were prejudicial to appellant we should here again point out that the record discloses conflicts between the testimony of the complaining witness and that of the two defendants; substantial differences between the testimony of the defendants at the trial and the accounts of the incidents which each defendant had previously given to Mino; and inconsistencies between Mrs. Hart's prior statements and her testimony at the trial. In the light of these discrepancies and inconsistencies and the statements made by counsel for appellant it is apparent that defense counsel's strategy was to impress upon the jury that since the three main witnesses were not credible and since there was a paucity of evidence independent of these three witnesses the prosecution had not sufficiently met its burden of proof of establishing appellant's guilt beyond a reasonable doubt.

It is the general rule that a defendant has a constitutional right to ‘effective aid in the preparation and trial of the case’ on the part of his counsel. (Powell v. State of Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158, 84 A.L.R. 527.) To justify relief on the ground that a defendant has been deprived of this right an extreme case must be disclosed and it must appear that counsel's lack of diligence or competency reduced the trial to a farce or a sham. (People v. Ibarra, 60 Cal.2d 460, 464, 34 Cal.Rptr. 863, 386 P.2d 487; People v. Wein, 50 Cal.2d 383, 410, 326 P.2d 457; People v. Robillard, 55 Cal.2d 88, 96–98, 10 Cal.Rptr. 167, 358 P.2d 295, 83 A.L.R.2d 1086; People v. Hughes, 57 Cal.2d 89, 99, 17 Cal.Rptr. 617, 367 P.2d 33.) In light of these principles relief has been rejected in most of the cases in which it was claimed that there was a denial of the subject constitutional right. (See People v. Wein, supra, 50 Cal.2d p. 410, 326 P.2d 457; People v. Robillard, supra, 55 Cal.2d pp. 96–98, 10 Cal.Rptr. 167, 358 P.2d 295, 83 A.L.R.2d 1086; People v. Hughes, supra, 57 Cal.2d p. 99, 17 Cal.Rptr. 617, 367 P.2d 33; People v. Williams, 164 Cal.App.2d 285, 292–293, 330 P.2d 942; People v. Dupree, 156 Cal.App.2d 60, 68–69, 319 P.2d 39.) In two California cases, however, it was held that the circumstances justified relief. (See People v. Ibarra, supra; and People v. Davis, 48 Cal.2d 241, 309 P.2d 1.)

In Ibarra, the Supreme Court of California held that the defendant had been denied due process of law when his counsel, through lack of knowledge of current law on search and seizure, failed to object to the admission of certain evidence. In so holding, the court stated that ‘Counsel's failure to object precluded resolution of the crucial factual issues supporting defendant's primary defense. It thereby reduced his trial to a farce and a sham.’ (60 Cal.2d p. 466, 34 Cal.Rptr. p. 867, 386 P.2d p. 491.)

In Davis, a murder case wherein the death penalty was imposed, the defense throughout the trial was based on an alibi. In support of that theory counsel for the appellant Davis offered witnesses including the appellant Davis, and argued this defense to the jury. While the prosecution was making its closing argument Davis' attorney requested the court to make some ‘corrections' in his argument. Upon leave being granted he advanced a ‘new theory’ to the effect that the appellants' alibi was not valid; that various witnesses who had testified for the defense had not told the truth, whereas the witnesses for the prosecution, whom counsel had previously attacked with vehemence, had. On appeal the Supreme Court, in reversing the judgments and the orders denying the motions for new trial, held that the statements by Davis' counsel in his supplemental argument were a direct and positive change of position to Davis' prejudice and injurious to his right to have the jury fairly consider his theory of defense as disclosed by the evidence. The reviewing court stated as follows: ‘Whatever trial strategy or tactics an attorney may employ in the defense of an accused he may not enter a plea of guilty to a felony without the consent of his client. [Citation.] It is a violation of his duty of fidelity to his client to assume a position adverse or antagonistic to him without the latter's free and intelligent consent given after full knowledge of all the facts and circumstances. [Citation.] This consent was not given. Without such consent an attorney may not surrender any substantial right of the accused. [Citations] nor may he impair, compromise or destroy his client's cause of action.’ (48 Cal.2d p. 256, 309 P.2d p. 9.) In commenting further upon the duties of an attorney the Supreme Court stated: ‘The issues in a criminal case must be decided in accordance with the evidence. The jury is the exclusive judge of the questions of fact submitted to it and of the credibility of the witnesses presented. [Citation.] * * * In arguing to the jury he is limited to a discussion of or to comment upon the facts in evidence.’ (p. 257, 309 P.2d p. 9.)4

We think that the situation in the present case is similar to that in Davis. Here appellant's theory of defense was that he did not assault or attempt to rape Mrs. Hart. Throughout the trial counsel consistently followed the theory that appellant was innocent. She offered appellant himself as a witness in support of this theory. It is reasonable to assume that counsel did not disbelieve his version of the occurrence when she presented him as a witness else she would not have offered him as a witness since counsel may not offer the testimony of a witness which he knows to be false because to do so may constitute subornation of perjury. (People v. Davis, supra, p. 257, 309 P.2d 1.) In the present case counsel, after offering appellant as a witness in support of his theory of defense, proceeded to call him a liar. This statement suggested to the jury that counsel did not believe her own client's testimony. The acceptance of this suggestion by the jury would, of course, completely dissipate appellant's defense to the charge for which he was being tried. Furthermore, the statement by counsel that ‘The evidence seems to be pretty well established that an assault or this altercation * * * by these three drunks ended by dawn’ was susceptible of the inference that the claimed assault had in fact taken place but that it should be discounted because the participants were all ‘drunk.’ It should be here pointed out that although there was evidence that alcoholic beverages had been consumed by the parties, there is no evidence in the record from which the inference could be drawn that appellant was intoxicated. Appellant testified that he was not intoxicated and that he knew what he was doing. In any event, evidence of intoxication was not presented on behalf of appellant for the purpose of showing that he was not capable of forming the specific intent involved in the crime charged (see People v. Gorshen, 51 Cal.2d 716, 727, 336 P.2d 492; People v. Mathews, 163 Cal.App.2d 795, 799–800, 329 P.2d 983), since appellant's theory of defense was that he did not assault Mrs. Hart.

We question the efficacy of the trial strategy employed by counsel in assuming that the jury would accept her suggestion that all of the witnesses to the occurrence in question were ‘liars' and ‘drunks,’ thus leaving the case in a posture where all of their testimony would be rejected by the jury so that the case would lack sufficient evidence to meet the prosecution's burden of proof. However, even if it could be said that there was some merit to this trial tactic, counsel nevertheless violated her duty of fidelity to her client in assuming a position adverse and antagonistic to him without the latter's free and intelligent consent based upon full knowledge of the facts and circumstances. There is nothing in the record in the case at bench to indicate that appellant consented to the tactics employed by his counsel.

From a review of the evidence presented at the trial and the statements made by counsel for appellant in her argument to the jury it is clear that counsel made a direct and positive change of position to appellant's prejudice. Appellant had a right to have the jury fairly consider his theory of defense as disclosed by the evidence. To deprive him of that right was to surrender a substantial right of appellant's. It is also reasonable to assume from counsel's statements that the jury could infer that appellant had told his counsel a different version of the occurrence involving Mrs. Hart prior to his taking the stand. The effect of such inference in the minds of the jurors cannot be minimized. We are constrained to hold, therefore, that, since counsel's conduct precluded the resolution of the crucial factual issues supporting appellant's primary defense, appellant was denied due process of law.

The Applicability of Dorado

Since the judgment must be reversed, we shall consider the applicability of the principle announced in People v. Dorado, 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361, as it may arise on retrial.5 Following the decision of the United States Supreme Court in Escobedo v. State of Illinois (1964), 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, Dorado held that it was error for a trial court to admit into evidence the confession of an accused which was elicited under the following circumstances: (1) The investigation was no longer a general inquiry into an unsolved crime but had begun to focus on the defendant; (2) the defendant was in custody; (3) the authorities had carried out a process of interrogations that lent itself to eliciting incriminating statements; and (4) the authorities had not effectively informed the defendant of his right to counsel or of his absolute right to remain silent, and no evidence established that he had waived these rights.

In the present case statements were made by appellant to Inspectors Mino and Murray of the San Francisco Police Department at the Sheriff's Office in Detroit, Michigan, after appellant had been apprehended by the Federal Bureau of Investigation pursuant to a warrant issued for appellant's arrest. The record clearly discloses that the investigation had begun to focus on appellant and that he was in custody. The record does not disclose that appellant was informed of his right to counsel and of his right to remain silent, or, if he was so advised, that he knowingly and intelligently waived those rights. (See People v. Stewart, 62 A.C. 597, 607, 43 Cal.Rptr. 201, 400 P.2d 97.) Mino did not testify that appellant was so advised; nor does the tape recording, which according to Mino's testimony accurately reflected his conversation with appellant, so indicate. In Stewart, it was held that in the face of a silent record a reviewing court cannot presume that the police informed a defendant of these rights.

We are not unmindful that on recross-examination appellant, when queried by the prosecutor as to whether he told Mino at the Sheriff's Office in Detroit that he had left his mother's house by the back way when the police were in front because he didn't want to be arrested, replied ‘I didn't make no statement to Mr. Mino until I had talked to an attorney. * * * No, I didn't talk to him at all.’ (Emphasis added.) Although at first blush it would appear from this statement that appellant had talked to an attorney prior to making the subject statements, it is equally susceptible of the interpretation that appellant did not talk to Mino and that he would not do so until he talked to an attorney. Assuming that appellant was advised of his right to counsel and to remain silent there is nothing in the record to show that he intelligently and knowingly waived these rights. ‘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.’ (Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70; People v. Stewart, supra, 62 A.C. p. 607, 43 Cal.Rptr. 201, 400 P.2d 97.) It should be noted, moreover, that an accused is entitled to be advised of his right to counsel and to remain silent even though he may have retained an attorney to represent him. (Escobedo v. State of Illinois, supra, 378 U.S. pp. 490–492, 84 S.Ct. 1758.)

With respect to the remaining requirement that the officers have undertaken a process of interrogations that lends itself to eliciting incriminating statements, we are satisfied that the total situation which developed in the present case fulfills this requirement. In ascertaining that this third requirement of the Dorado rule has been fulfilled we have considered the following factors: The length of the interrogations,6 the place of the interrogations, the nature of the questions, and the conduct of the police. With respect to the last-mentioned factor the record discloses that the two inspectors, who were sent to Detroit to return appellant to San Francisco upon his having waived extradition, alternated in asking a series of questions concerning the events which transpired on the morning of December 7, 1963. Although this ‘process of interrogations' did not produce a confession, since appellant at all times denied that he assaulted or attempted to rape Mrs. Hart, a significant incriminating statement was elicited. This statement consisted of the admission by appellant that he fled the police because he knew he was going to jail. Evidence of flight affords an inference of consciousness of guilt and therefore constitutes an implied admission. (People v. Davis, supra, 48 Cal.2d 241, 251, 309 P.2d 1; People v. Murguia, 6 Cal.2d 190, 192, 57 P.2d 115; People v. Waller, 14 Cal.2d 693, 702, 96 P.2d 344; People v. Cooper, 81 Cal.App.2d 110, 116–117, 183 P.2d 67; People v. Santo, 43 Cal.2d 319, 327, 273 P.2d 249; People v. Hoyt, 20 Cal.2d 306, 313, 125 P.2d 29.)

Appellant also made other statements to Mino and Murray which were used to impeach his testimony at the trial. These statements, since they tended to disprove appellant's testimony at the trial and to establish his incredibility, were incriminating statements or admissions. (People v. Burns, 232 A.C.A. 728, 730, 43 Cal.Rptr. 84; People v. Underwood, 61 Cal.2d 113, 120–121, 37 Cal.Rptr. 313, 389 P.2d 937; People v. Reid, 233 A.C.A. 184, 199–201, 43 Cal.Rptr. 379.) In Underwood, it was held that a statement which a defendant makes prior to trial, which, although exculpatory when made, later proves to be incriminating in the sense that it serves to impeach the defendant at the trial, is considered to be an admission and therefore subject to the exclusionary rule applicable to involuntary admissions. (See also People v. Atchley, 53 Cal.2d 160, 170, 346 P.2d 764; 3 Wigmore, Evidence, § 821, pp. 238, 241–242.) It should be noted, moreover, that in promulgating the exclusionary rule, the United States Supreme Court in Escobedo did not limit itself to confessions but stated that ‘no statement elicited by the police during the interrogation may be used against him at a criminal trial.’ (Emphasis added; 378 U.S. p. 491, 84 S.Ct. p. 1765.)

It was error for the trial court, therefore, to admit the incriminating statements made by appellant to Mino and Murray in Detroit. Although the admission into evidence of statements falling short of a confession, obtained in violation of the principle announced in Escobedo and Dorado, may constitute harmless error under some circumstances (People v. Dorado, supra, 62 A.C. p. 368, 42 Cal.Rptr. 169, 398 P.2d 361), the trial results in a miscarriage of justice and a reversal is warranted where it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of such error. (Cal.Const., art. VI, § 4 1/2; People v. Watson, 46 Cal.2d 818, 837, 299 P.2d 243.)

The competent evidence which tended to establish appellant's guilt is confined to the testimony of the complaining witness, Mrs. Hart, and to portions of the doctor's testimony to the effect that the burns had been inflicted by an automobile cigarette lighter and that such severe burns could not have been self-inflicted by a sane person. However, since Mrs. Hart's credibility as a witness was impeached by her out-of-court statements made to the police on December 7, 1963,7 and since other portions of Dr. Billingsley's testimony were favorable to defendants, the case for the prosecution was not a strong one. If, therefore, appellant's defense had not been correspondingly weakened by the introduction into evidence of his damaging out-of-court statements, it is reasonably probable that a result more favorable to appellant would have been reached.

We have studied the entire case and cannot conclude that the error of admitting into evidence appellant's admission of flight and his impeaching statements was not prejudicial. We are satisfied that this error and the prejudicial remarks of appellant's counsel in her argument, coupled as they were with a close factual case, had the effect of turning the jury's verdict against appellant.

The judgment is reversed.


1.  Appellant was indicted, arraigned and tried jointly with his codefendant, James, Davis, who was found guilty of the lesser and included offense of assault by means of force likely to produce great bodily harm (in violation of Pen.Code, § 245).

2.  Since these statements had been made by each defendant out of the presence of his codefendant, upon objection to their introduction by respective counsel, the jury was instructed that the out-of-court statements were admitted into evidence only as to the defendant who made them and were to be considered by the jury as against that defendant only.

3.  When queried as to why he ran away the statement disclosed the following reply: ‘Who—who wants to go to jail? I knowed we was goin’. Man, there ain't nobody got no right to tell. When a woman say she—to the judge (jury) she tellin' the truth. I was goin' to go up there and talk to her, you know, and her husband, but he was up there (unintelligible) had a gun or something. I didn't go up there.'

4.  At the hearing on the motions for new trial evidence was adduced by way of affidavits as to the appearance and deportment of the appellant Davis' counsel on the day of the argument in question, his conduct on the next day while the jury was still deliberating requiring his hospitalization for what was diagnosed as an acute mental disorder; and the uncontradicted opinion of expert medical witnesses that he was mentally ill on the day of the argument, and probably for several days prior thereto, affecting his ability to act in a rational manner during the closing hours of the trial. Although the Supreme Court noted this circumstance in its opinion and stated that counsel for the appellant Davis was therefore ‘not guilty of any purposeful professional misconduct’ (p. 258, 309 P.2d p. 10), its holding was not based upon counsel's mental incapacity but upon the prejudice to his client occasioned by his change of position in his supplemental argument to the jury.

5.  This case was tried and briefed prior to the decision in Dorado. The applicability of Dorado was, however, argued at hearing.

6.  The record discloses that it took approximately 17 minutes to play the recording.

7.  For example, in her statement to Mino, Mrs. Hart indicated (1) That she did not drink any liquor with defendants, whereas in court she admitted having some liquor to drink in the car with defendants; (2) that at the beach appellant went with her to the water, whereas her testimony in court was to the effect that defendant Davis accompanied her to the water; (3) that after appellant had burned her, he took her wedding rings, then she told defendants she had to go to the bathroom and defendants let her out of the car; in court she testified that she first told defendants she was going to become sick, whereupon they pulled her out of the car, in the process appellant pulling her rings off; (4) that she was discovered at the beach by two people in an automobile who drove her to someplace in the park and helped her telephone for a cab; in court she testified that a uniformed guard from the park stopped to help her. Finally, on direct examination by the defense, it was brought out that Mrs. Hart had been to the Ocean Beach earlier in the morning of December 7 with another person; she did not mention this incident in her statement to Mino or her earlier testimony at the trial, but rather, stated that she had been at the apartment of a friend from midnight until the time she met defendants.

MOLINARI, Justice.

SULLIVAN, P. J., and SIMS, J., concur.