Reset A A Font size: Print

District Court of Appeal, Second District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Robert Earl MATTESON, Defendant and Appellant.

Cr. 7938.

Decided: January 20, 1964

Robert Earl Matteson, in pro. per., and Kate Whyner, Hollywood, under appointment by the District Court of Appeal, for defendant and appellant. Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and S. Clark Moore, Deputy Atty. Gen., for plaintiff and respondent.

Defendant was charged with four counts of forgery (Pen.Code, § 470) and after a jury trial was convicted on all counts. His appeal is from the judgment.

All four checks were drawn upon the printed forms used for the payroll account of O K Roofing Sales & Service Corporation. Defendant was at that time an employee of this company. The payee of the checks in counts I and III was Ray Parmerter. The checks in the other two counts were payable to Robert E. Matteson. The name of Matteson appeared as endorser under the endorsement of Parmerter on the check in count I. Matteson's name as endorser was also on the checks in counts II and IV. The checks in counts III and IV were dated September 22, 1960. The checks in counts I and II were undated, but a bank stamp on the back side of each was dated September 23, 1960.

The signature of the individual who signed for the maker on each check purported to be that of Charles C. Durbin, who was secretary of the company. Mr. Durbin testified it was not his signature. Both Mr. Durbin and the president of the company testified that no one had been authorized to issue these checks on behalf of the company. The blank checks had disappeared from the office without the knowledge or consent of the management.

The persons who had cashed the checks in counts I, II and IV identified defendant as the person who had presented the checks and received the money for them. The person who cashed the check in count III testified that defendant accompanied the person who presented it.

A handwriting expert testified that he had compared the handwriting on the four checks with a handwriting exemplar furnished by defendant after his arrest. The witness was of the opinion that all of the writing on all four checks, excepting only the endorsement of Parmerter, was in defendant's hand.

Officer Rogers of the Los Angeles Police Department testified that a conversation with defendant took place after defendant was arrested, and that all statements made by defendant at that time were freely and voluntarily made. The officer said he asked defendant where he got the checks and defendant said he found the checks, along with a number of others, in his automobile, and that they were completely made out at that time. Defendant also told the officer that at the time he cashed the checks ‘he knew that they were not any good.’

No objection was made to any of this testimony given by Officer Rogers. On cross-examination defense counsel elicited the fact that just prior to the conversation defendant had been removed to another room by Officer Rogers' partner, Officer Eldridge, and that after they returned defendant mentioned that he had been struck by Officer Eldridge. Officer Rogers testified, ‘He said that my partner didn't hit him very hard. * * *’ This statement by the defendant was made just before he admitted that he knew the checks were no good. This conversation preceded the visit to the office of the handwriting examiner, where defendant made the handwriting exemplar.

At the request of defense counsel, the court deferred any ruling on the offer of the exemplar into evidence. The People then rested, subject to the admission of the exhibit.

Defendant then took the witness stand. His counsel stated that his testimony was offered for the limited purpose of determining whether the conversation with Officer Rogers was freely and voluntarily given. Defendant testified as follows: On March 13, 1961, he was taken from the jail and escorted to a room by Officers Rogers and Eldridge. They asked him to make a handwriting exemplar. He refused, stating, ‘I wish to have counsel first.’ Officer Eldridge kicked defendant in the shins and pulled his hair. Defendant said he yelled when he was kicked, but not very loudly. Officer Eldridge then conducted defendant to another room where Eldridge, with his fist, struck defendant several times in the body. Defendant further testified that Officer Eldridge asked him if he would ‘like the rubber hose treatment,’ and at this point defendant decided to make a handwriting exemplar. They then returned to Officer Rogers' presence, where defendant made his statements, after which defendant was taken to the office of the handwriting examiner where the exemplar was made. Officer Eldridge did not go along to the latter office.

Officer Rogers, called in rebuttal, testified that the room where defendant was questioned was the squad room, containing seven desks and other office furniture. When defendant was brought in he was requested to make a handwriting exemplar, but he refused. Officer Rogers did not see Officer Eldridge put his hands on defendant at any time. Officer Eldridge and defendant were out of the room only two or three minutes. After they returned, Officer Rogers explained to defendant that the handwriting of the endorser on the checks appeared to be the same as the handwriting on the face of the checks, and that if defendant was not the person who had done the writing, the handwriting expert could eliminate him as that person. Then they went to the office of the handwriting examiner.

At the time the case was tried Officer Eldridge was reported to be on vacation and so was not called as a witness.

At the close of the case defendant renewed his objection to the handwriting exemplar upon the ground that it had not been given voluntarily. He moved to strike Officer Rogers' testimony as to defendant's statement upon the same ground. The court overruled the objection to the exemplar, but granted the motion to strike the statement and admonished the jury to disregard it. The trial judge stated outside the presence of the jury that the objection to the exemplar was overruled upon two grounds: first, that it was not testimony within the privilege against self-incrimination, upon the authority of People v. Harper, 115 Cal.App.2d 776, 252 P.2d 950; and, second, that defendant indicated he had no fear of Officer Rogers and by the time he gave the exemplar he was not under duress or compulsion.

Defendant did not at any time move for a mistrial, nor did he move for a new trial.

Defendant's principal contention here is that the handwriting exemplar was not admissible in evidence against him because it was obtained by means of a brutal assault, citing Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183. The People fail to meet this issue when they argue that the document is not testimony and is not protected by the constitutional privilege against self-incrimination. The Rochin rule is a rule of exclusion and the fact that the evidence meets other standards of admissibility will not save it.

The trial court's findings that when defendant arrived at the office of the handwriting expert he was no longer acting under compulsion seems to us contrary to human experience. If it be assumed that in the forgery squad room his free will had been subverted because an officer had beaten him and threatened him with more unless he gave an exemplar, the mere removal of the defendant away from the presence of the offending officer and into a different office of the police building could not ordinarily be expected to satisfy the prisoner that he could now stand on his refusal without fear of further mistreatment. We shall not, therefore, rest our decision upon that finding.

Assuming that the handwriting exemplar should not have been received in evidence, was defendant prejudiced by it? A review of the evidence demonstrates that there was no prejudice because defendant's guilt was so overwhelmingly proved by other evidence that the exemplar given at the police building added nothing of substance.

The crime of forgery may be committed by passing as genuine a false instrument with intent to defraud. It is not necessary to show that defendant wrote the check. (Pen.Code, § 470; People v. Jones, 210 Cal.App.2d 805, 807, 27 Cal.Rptr. 35.) When the spurious character of the instrument has been clearly established, the fact that defendant created it is pertinent chiefly to show he knew that it was spurious and intended to commit a fraud.

The testimony of Mr. Durbin established that the checks were not genuine. The instruments on their face purported to be payroll checks. Defendant was named as payee on two of them. It would be a most unusual case when the payee of a forged payroll check did not know that the check was a forgery. Defendant knew well enough whether he had rendered services to earn these paychecks.

The handwriting examiner found that all of the writing on all four checks was in the same hand, excepting only the endorsement of Parmerter. This meant that the defendant's endorsement which appeared on three of the checks was in the same hand as the maker's signature. It was a reasonable inference that what purported to be defendant's signature on the checks which he personally cashed was in fact defendant's handwriting. (People v. Chapman, 156 Cal.App.2d 151, 159, 319 P.2d 8.) In view of this identification of defendant with the handwriting on the checks, it was surplusage to add that these signatures corresponded to an exemplar written by defendant after his arrest.

This powerful proof of guilt was and is uncontradicted by any circumstance or testimony. It is noteworthy too that this is not a case in which a defendant failed to testify to facts showing his innocence because he feared having his prior convictions disclosed to the jury. This defendant did take the witness stand and did subject himself to impeachment for the sole purpose of testifying that he had been mistreated at the police station. Under these circumstances, his failure to testify on the merits carries even greater force than in the typical case of a defendant who chooses to remain silent.

On this record, with or without the handwriting exemplar, no rational person could doubt that defendant's guilt had been conclusively proven. Any error in receiving the exemplar and the testimony concerning it, therefore, should not require a retrial. (People v. Parham, 60 A.C. 333, 340, 33 Cal.Rptr. 497, 384 P.2d 1001.)

Defendant also contends that when he took the witness stand for a limited purpose, the prosecutor should not have been allowed to elicit on cross-examination the fact that defendant had been convicted of burglary nine years before. His argument is that the prior offense is irrelevant. This evidence was received not to prove the prosecution's case, but to impeach the defendant as a witness under the express authority of Code of Civil Procedure, section 2051. Since defendant chose to testify, he was subject to impeachment as any other witness would have been. (People v. Williams, 27 Cal.2d 220, 228, 163 P.2d 692.)

Defendant contends that it was error to receive in evidence a group of four more payroll checks of O K Roofing Sales & Service Corporation. One dated September 21, 1960, was payable to Ray Parmerter, two dated September 22 and September 23, 1960, respectively, were payable to Robert E. Matteson, and the fourth dated September 23, 1960, was payable to Ray Parmerter. These checks bore printed serial numbers 3095, 3096, 3098 and 3099, which identified them as a part of the group which the witness Durbin had said were found to have been missing from the office. (The checks charged in the information bore serial numbers 3093, 3094, 3097 and 3059.) There was no other testimony specifically concerning any of the checks in this group except that of the handwriting examiner who said the writing on this group of checks was by the same hand as that on the other exhibits. Although the proprietors of the roofing company were not asked to testify that the checks in this second group were unauthorized, the president had testified that he and Mr. Durbin were the only persons authorized to sign. It logically follows that all of the checks in the second group were forgeries also.

The effect of this evidence was to establish the existence of other spurious instruments which were identical in form with those charged in the information and which were closely related by date and serial number with the instruments which are the subject of this proceeding. The existence of four payroll checks payable to defendant and four payroll checks payable to Parmerter, all dated within a three-day period and in amounts ranging from $133.61 to $172.31, was an unusual circumstance tending to corroborate the testimony of the officers of the roofing company that these checks had not been issued by them in the ordinary course of business.

Moreover, the fact that these additional checks were in the same handwriting as defendant's endorsement on the checks which defendant had cashed tended to connect these additional forgeries with defendant. The existence of such additional forgeries was a fact which the prosecution was entitled to prove as circumstantial evidence of defendant's knowledge and intent. (People v. McGlade, 139 Cal. 66, 70, 72 P. 600.) The admissibility of the evidence is not destroyed either by the failure of the prosecution to ask the victims about these checks specifically or the omission of any evidence as to where the additional checks had been found.

Finally, defendant contends that he is entitled to a new trial because the jury heard the testimony of Officer Rogers, which was later stricken.

It now appears to be settled law that where the case submitted to the jury includes an inadmissible confession which has been received over defendant's timely objection, defendant is entitled to a reversal, however strong the case is otherwise. (Lynumn v. State of Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922, 928; People v. Brommel, 56 Cal.2d 629, 634, 15 Cal.Rptr. 909, 364 P.2d 845; People v. Trout, 54 Cal.2d 576, 585, 6 Cal.Rptr. 759, 354 P.2d 231, 80 A.L.R.2d 1418.)

No case has been called to our attention in which this rule of automatic reversal has been applied where the confession was first received and then stricken and the jury instructed to disregard it. There are California decisions to the contrary.

In People v. Mayen (1922) 188 Cal. 237, 205 P. 435, 24 A.L.R. 1383, the Supreme Court concluded that the defendant's confession had not been coerced and hence was admissible. As an additional ground of decision, the court said (188 Cal. p. 257, 205 P. p. 443):

‘However, the trial court withdrew this part of the testimony from the jury with instructions to disregard it, so that if there was error in its admission it was cured by such instruction.’

In People v. Dominguez (1923) 61 Cal.App. 182, 214 P. 448, the confession of appellant's codefendant was received and then stricken and the jury was admonished to disregard it. The court said (61 Cal.App. p. 183, 214 P. p. 448):

‘We must assume that the jury obeyed the admonition, and that therefore appellant's cause was not prejudiced by the erroneous admission of the confession.’

In People v. Hardy (1948) 33 Cal.2d 52, 198 P.2d 865, an alleged statement of the defendant was received and then stricken. The record contained other errors, and the evidence, in the court's opinion, furnished ‘weak support for a judgment imposing the extreme penalty.’ Because of the cumulative effect of the errors, the judgment was reversed. The case contains no suggestion of any rule of automatic reversal.

So much has happened since People v. Mayen was written that it is necessary to consider whether the more recent decisions compel a different result here. Mayen was a leading case on the admissibility of illegally obtained evidence until overruled on that point in People v. Cahan (1955) 44 Cal.2d 434, 445, 282 P.2d 905, 50 A.L.R.2d 513. The subsequent decisions have not commented upon the statement in Mayen that the admonition to the jury cured the error.

Courts are well aware that striking testimony from the record is not the full equivalent of preventing its introduction. The principle that a jury is presumed to have followed the court's instructions to disregard immaterial or incompetent matter is one which may be applied only with a nice discretion. Two recent examples of its nonapplication are People v. Ozuna, 213 A.C.A. 364, 28 Cal.Rptr. 663, and People v. Roof, 216 A.C.A. 260, 30 Cal.Rptr. 619, where this division reversed because under the circumstances of those cases the defendants appeared not to have had a fair trial. The effect of a trial court's admonition to the jury to disregard certain immaterial matter must be considered in relation to the whole record, as was done in the cited cases.

The decisions of the California Supreme Court establishing an automatic reversal rule where a coerced confession is in evidence place the rule upon the ground that 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.’ (See People v. Parham, 60 A.C. 333, 340, 33 Cal.Rptr. 497, 501, 384 P.2d 1001, 1005.) The decisions of the United States Supreme Court declare that ‘the admission in evidence, over objection, of the coerced confession vitiates the judgment because it violates the Due Process Clause of the Fourteenth Amendment.’ (Payne v. State of Arkansas, 356 U.S. 560, at 568, 78 S.Ct. 844, at 850, 2 L.Ed.2d 975, 981.)

The reasons for the rule of automatic reversal in cases where the coerced confession is a part of the evidence to be weighed by the jury do not require an automatic reversal under the special facts of the instant case. Several considerations support this conclusion.

There was no violation of any constitutional right of defendant unless it can be said that the trial was essentially unfair. The evidence came in without objection. When defendant moved to strike, it was stricken. No coerced confession was a part of the evidence upon which the case was submitted. The judgment does not in any legal sense rest upon the confession. The most that can be said is that the members of the jury might have been influenced by something which they were instructed not to consider. The existence of such a possibility can hardly be classified as an obsence of due process without considering other circumstances.

The trial judge committed no error with respect to the confession. He struck it out at his first opportunity. Defendant gave the court no opportunity to grant a mistrial or a new trial. For the court to have granted a mistrial without the consent of defendant would have amounted to an acquittal. (Jackson v. Superior Court, 10 Cal.2d 350, 74 P.2d 243, 113 A.L.R. 1422.) A trial court has no power to grant a new trial unless the defendant moves for it. (People v. Rothrock, 8 Cal.2d 21, 63 P.2d 807.)

The record does not indicate that defense counsel was incompetent or that his tactics deprived defendant of effective aid, so as to bring the case within the doctrine of such decisions as People v. Ibarra, 60 A.C. 435, 34 Cal.Rptr. 863, 386 P.2d 487. A reviewing court knows nothing of what information defense counsel had as a basis for his trial tactics, but even hindsight does not indicate anything which could have been done at the trial which would have improved defendant's position. Had counsel requested that the testimony concerning defendant's statements be taken first outside the presence of the jury, the court would have excluded the evidence and defendant would have had nothing to say to the jury. As the matter was tried, defendant at least had the opportunity to tell the jury how the police had mistreated him. Had counsel moved for a mistrial and had such motion been granted, defendant could have looked forward to nothing more comforting than an immediate retrial while all of the prosecution's witnesses were still available to overwhelm him with unanswerable proof of guilt.

If after talking to his client the attorney felt that nothing could help the defendant except sympathy, we cannot say that this demonstrates any inadequacy on the attorney's part.

If the case law does not compel a blind and arbitrary reversal for a combination of circumstances which in no way could have affected the outcome, then the result is clearly indicated by article VI, section 4 1/2, of the California Constitution. Guilt was proved to a moral certainty. Defendant has never suggested that he has or ever had a defense. The procedure was regular in all essential respects. Barring unforeseeable mischance, a retrial would surely produce the same verdict.

The judgment is affirmed.

FILES, Justice.

SHINN, P. J., and FORD, J., concur.