PEOPLE v. GORDON

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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Richard David GORDON, Defendant and Appellant.

Cr. 21417.

Decided: December 05, 1972

Norman W. DeCarteret, Sherman Oaks, under appointment By the Court of Appeal, for defendant and appellant. Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Howard J. Schwab and Lawrence P.Scherb II, Deputy Attys. Gen., for plaintiff and respondent.

By information, defendant was charged (Count I) with murder, a felony, in violation of Pen.Code § 187 and (Count II) with burglary, a felony, in violation of Pen.Code § 459. A first trial resulted in his conviction of both crimes, each found to be in the first degree, but that judgment was reversed on appeal because of an error in instructions. (People v. Gordon, Crim. No. 19548, unpublished opinion filed 8/10/71.) The present appeal is from a second trial which resulted in his being found guilty of second degree murder and not guilty of burglary.

Briefly capsulated, on Saturday morning February 21, 1970, defendant shot and killed Carl Pieper in Pieper's home at 7056 Ramsgate Avenue in Los Angeles. Seventeen witnesses testified for the prosecution, three for the defense (including appellant) and, in addition, there were stipulations regarding the testimony of other persons. Many exhibits were offered and admitted. In general, the evidence showed that Mrs. Carolyn Thorin Simpson1 had been living with decedent; she testified they had planned to be married that Saturday night. Defendant Gordon testified she had said that she would marry him, instead, and that she shot Pieper during a planned confrontation that Saturday morning. Gordon had given three different stories to the police, had testified at the first trial that he shot Pieper, and was thoroughly impeached; Pieper, and was thoroughly impeached; additionally, both his and Mrs. Simpson's testimony was, in some instances, self-contradictory and was inherently illogical.

I

Appellant's first contention rests upon the prosecutor's opening statement to the jury, appellant contending the statement shows the prosecutor knowingly produced perjured testimony and thereby deprived appellant of the due process of a fair trial. The deputy District Attorney's statement is footnoted herein.2 As will be observed in the footnote, he claimed only partial credibility for Mrs. Simpson's expected testimony; that part to be relied upon would be corroborated by other evidence, he said. He did not rely on other phases of her expected testimony nor did he ask the jury to do so.

The parties to a lawsuit cannot always select their own witnesses; some witnesses are forced upon them by circumstances. Such was the case with Mrs. Simpson since she was the only person who could relate what was said, what if anything was planned and what occurred.

Appellant relies upon In re Imbler, 60 Cal.2d 554 (1963) as authority requiring a reversal, spelling out, as it does (p. 560, 35 Cal.Rptr. 293, 387 P.2d 6), the elements to be established by an appellant who claims that the use of perjured testimony, resulting in his conviction, deprived him of due process. Horn v. Atchison, T. & S.F. Ry. Co., 61 Cal.2d 602, 605, 39 Cal.Rptr. 721, 394 P.2d 561 (1964), also relied upon by appellant, is clearly distinguishable.

In re Imbler, supra, does not assist appellant. The first element Imbler requires is that the testimony, in fact, be perjured. Mrs. Simpson expressed few, if any, doubts as to the accuracy of her own testimony. While the prosecution may conclude that anticipated testimony does not ‘hang together,’ i. e., is not cohesive, and that it is illogical and, therefore, unreasonable, such a conclusion fails to establish that a witness will knowingly give perjured testimony. (Also see: In re Mitchell, 35 Cal.2d 849, 856, 221 P.2d 689 [1950]; In re Wallace, 24 Cal.2d 933, 937–938, 152 P.2d 1 [1944].) The fact the prosecutor expressed belief that Mrs. Simpson would not tell all that she knew, and that he did not believe part of her expected testimony, fails to establish perjury on her part. Furthermore, at no time did the prosecutor say that he knew her testimony would be fabricated or did he state he would rely upon the part whose truth he questioned.

Before our Evidence Code became effective on January 1, 1967, (Evid.Code § 12) there existed limitations on a party's right to impeach his own witness. In recognition, however, that ‘a party does not necessarily have free choice of witnesses but must take those who know the facts, and therefore cannot ‘vouch’ for them' (Witkin, Cal.Evidence, §§ 1270–1271, pp. 1176–1177), Evid.Code § 785 was adopted, reading: ‘The credibility of a witness may be attacked or supported by any party, including the party calling him.’ (Emphasis added.) Bearing this rule in mind, a prosecutor can attack the character of the testimony of his own witnesses (Evid.Code § 780). However, the fact that a prosecutor does not believe the witness to be entirely credible does not establish that the witness is guilty of perjury.

II

Appellant next argues there was evidence that Mrs. Simpson was his accomplice for which reason the court should have, sua sponte, instructed the jury on the definition of ‘accomplice’ and on the rules applying to accomplice testimony. (Pen.Code § 1111; People v. Bevins, 54 Cal.2d 71, 75–76, 4 Cal.Rptr. 504, 351 P.2d 776 [1960].)

Under Pen.Code § 1111 an accomplice is defined ‘as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.’ Mrs. Simpson was not such a person. She could not have been prosecuted in the second trial wherein she gave her testimony since, in the first trial, she had been acquitted. While appellant argues that her acquittal is irrelevant, his argument is unsupported by authority and is directly contrary to California law. Thus, as stated in People v. Lawson, 114 Cal.App.2d 217, 220, 249 P.2d 850, 852 (1952): ‘. . . a verdict of not guilty as to one defendant is a finding of fact that he was not an accomplice of another defendant convicted of the same crime with which both were charged.’ (Also see: People v. Darnold, 219 Cal.App.2d 561, 578, 33 Cal.Rptr. 369 [1963]; People v. Goldstein, 136 Cal.App.2d 778, 789, 289 P.2d 581 [1955].)3 Mrs. Simpson could not have been an accomplice within the meaning of the Code definition and, accordingly, the court properly gave no instruction on accomplice testimony.

III

As a third point, appellant argues that a statement, inadvertently made by the trial court to prospective jurors during his voir dire examination of them, was prejudicial. We disagree. In talking to the jury panel, the judge had stated that he later would instruct them that ‘a defendant is presumed guilty . . . until his innocence is proved by the prosecutor . . .’ Counsel immediately brought this misstatement to his attention and he corrected himself, saying, ‘I made a horrible mistake. . . . a defendant is presumed to be innocent until his guilt is proved beyond all reasonable doubt and to a moral certainty.’ At the conclusion of the evidence he again so instructed the jury, using CALJIC instruction No. 2.90. While the court's initial statement was grossly incorrect, the judge recognized his error and immediately so told the jury, correcting himself. The jury cannot have been misled and we apprehend no miscarriage of justice. (People v. Watson, 46 Cal.2d 818, 836–837, 299 P.2d 243 [1956].)

IV

Appellant contends there was evidence that Carl Pieper was ‘accidently’ [sic] killed so that the court should have, sua sponte, instructed the jury on involuntary manslaughter, defining it. The court did, on its own initiative, read CALJIC instruction No. 17.10 regarding included offenses, concluding by instructing that: ‘The offense of murder with which the defendant is charged in Count I necessarily includes the lesser offenses of voluntary and involuntary manslaughter.’ The court defined ‘voluntary manslaughter’ and, on its own initiative, also gave several other instructions distinguishing murder from manslaughter. (CALJIC Nos. 8.50, 8.37, 8.40, 8.42, 8.43, 8.44, 8.52 and 8.74.) Accordingly, appellant's argument revolves around his contention that the court should have defined ‘involuntary manslaughter.’

Defendant's contention rests on the ground that the jury could have found him guilty of aiding and abetting Carolyn Thorin Simpson and that there was evidence she shot the victim by accident. Thus, according to appellant's testimony at the second trial, all three were in the bedroom; Pieper took a pistol from the dresser and hit Simpson with it; defendant grabbed the gun and he and Pieper struggled with it into the hallway; the gun fell to the floor and defendant thereafter heard a shot fired; looking up, he saw Simpson had the gun; she later said, ‘It was an accident.’ (Oppsed to this, Simpson had testified that defendant entered the bedroom, fired a shot at her and the decedent and, thereafter, had struggled with decedent and they disappeared into the hallway; she then heard three shots fired, following which she saw Pieper's body lying in the bathroom.)

One problem is ignored by the litigants. Thus, when a person who is claimed to be an ‘accomplice’ is adjudged innocent of a crime, may such person, nevertheless, be deemed a principal whose alleged crime another may be found guilty of aiding and abetting? The answer to this is in the affirmative. (People v. Bearss, 10 Cal. 68 [1858]; People v. Simpson, 66 Cal.App.2d 319, 329, 152 P.2d 339 [1944]; People v. Blackwood, 35 Cal.App.2d 728, 732–733, 96 P.2d 982 [1939]; 1 Wharton's Criminal Law and Procedure (Anderson ed.) § 116, pp. 253–254.)

The distinction between accomplices and aiders-abettors seemingly is based, in part, upon the statutory definition of an accomplice as one ‘who is liable to prosecution for the identical offense’.) (Pen.Code § 1111.) Here, Mrs. Simpson could not be so prosecuted, having been acquitted. ‘. . . The conception of an accomplice, though frequently used in a general sense referring to a participant in a criminal undertaking, has a more definite technical sense in the law of evidence . . ..’ (14 Cal.Jur.2d 226, ‘Criminal Law’ § 40.) As to aiding and abetting, however, the situation is differently founded, Thus, a person who has pled ‘not guilty’ to a criminal charge may show that not he, but another, committed it. He is no more bound by a court's previous finding that the other was guilty than he is bound by a finding that the other was not guilty. (People v. Bearss, supra, 10 Cal. 68, and 1 Wharton, supra.) A person seeking to establish the sole guilt or the innocence, as the case may be, of another whom he is charged with aiding and abetting is not a party to the original charge against that other, and the principle of res inter alios acta applies.

Since, from the foregoing, it appears that appellant properly may raise the point, we briefly discuss it, and conclude the trial court's alleged failure to define it was not error. Evidence of defendant's individual guilt was overwhelming. The evidence showed that if Mrs. Simpson did pull the trigger (an unlikely eventuality, in light of the evidence) such was done purposely and pursuant to a scheme jointly contrived by her and appellant. There was no substantial evidence to establish that the homicide was involuntary manslaughter. Accordingly, there was no error committed in omitting a definition of such crime. (People v. Tiner, 11 Cal.App.3d 428, 434, 89 Cal.Rptr. 834 [1970], disapproved on other grounds in People v. Beagle, 6 Cal.3d 441, 451–452, 99 Cal.Rptr. 313, 492 P.2d 1 [1972]; People v. Asher, 273 Cal.App.2d 876, 904, 78 Cal.Rptr. 885 [1969]; People v. Morrison, 228 Cal.App.2d 707, 712–713, 39 Cal.Rptr. 874 [1964].)

V

Appellant further contends the trial court erred in failing to tell the jury, sua sponte, that to be guilty of murder an accused must entertain the specific intent to kill, relying upon People v. Ford, 60 Cal.2d 772, 792–793, 36 Cal.Rptr. 620, 388 P.2d 892 (1964). However, appellant overlooks the fact he was found guilty of only second degree murder and, in this respect, that the court on its own initiative told the jury (CALJIC No. 8.30): ‘Murder of the second degree is also the unlawful killing of a human being with malice aforethought when there is manifested an intention unlawfully to kill a human being . . ..’ (Emphasis added.) Additionally, other instructions defining ‘homicide’ and ‘murder’ were given. (CALJIC Nos. 8.00, 8.10 and 8.20.) The instruction was, under the circumstances, adequate and no error or prejudice is found.

VI

Appellant contends he was denied the effective aid of trial counsel because a ‘hostile’ juror was not challenged and was permitted by him to remain on the jury, and also because certain evidence was not objected to.

On voir dire, prospective juror Wells stated that she had a young son who had just gone on the police force in the Bay area. She did not ‘see him very often and he just doesn't discuss it.’ She stated she saw no reason why his employment would affect her. Appellant's argument that the juror must have been biased because her son was a policeman, and that it was poor tactics to leave her on the jury, is without foundation.

Similarly unfounded is the contention that counsel was ineffective because hearsay was improperly admitted without objection and because some leading questions asked by the prosecution should have been objected to. Nowhere does it appear that the trial was reduced to a ‘farce or a sham’ (People v. Ibarra, 60 Cal.2d 460, 464, 34 Cal.Rptr. 863, 386 P.2d 487 [1963]), and ‘Before ineffectiveness of counsel may be successfully urged, an extreme case must be shown. [Citations.] The assertion may not be predicated on mere surmise or speculation, but must be proved as a demonstrable reality or fact. [Citations.]’ (People v. Simms, 10 Cal.App.3d 299, 314, 89 Cal.Rptr. 1 [1970].)

Appellant's counsel at the second trial was the same deputy Public Defender who had represented him at the first trial. Presumably he was thoroughly familiar with the facts and facets of the case and knew what he planned to do and why. We cannot find from the record that he was ineffective, particularly in light of the second trial's more favorable outcome as compared with that of the first trial. And, as observed served in People v. Brooks, 64 Cal.2d 130, 140, 48 Cal.Rptr. 879, 886, 410 P.2d 383, 340 (1966): ‘In the heat of a trial, defendant's counsel is best able to determine proper tactics in the light of the jury's apparent reaction to the proceedings. Except in rare cases an appellate court should not attempt to second-guess trial counsel.’

VII

As a final point, appellant argues there was no evidence of any intent on his part to kill Pieper so that the verdict is unsupported in that respect. We disagree. It probably is true that there is no direct evidence of such intent but there is more than ample indirect evidence. As the court instructed, intent may be shown ‘by the circumstances attending the act.’ Here, there was evidence that defendant had procured a pistol and, on the morning of the murder, climbed through a kitchen window of the victim's house, had appeared unannounced at the bedroom door and had fired a shot at decedent and Mrs. Simpson, before the fatal shot was fired. He confessed to all of this to a police officer. Although there was much more circumstantial evidence, this evidence is sufficient to sustain the verdict.

The judgment is affirmed.

FOOTNOTES

1.  Mrs. Simpson had been charged with Pieper's murder, as a codefendant of appellant, at the first trial. However, she had been acquitted by the judge pursuant to motion made on her behalf under Pen.Code § 1118.1.

2.  ‘Now, I have been talking about independent witnesses and the trial of these two. And I have also talked about this case being unusual. It is going to be unusual because the People's star witness—I suppose if it is going to be written up in a newspaper article—would be Carolyn Thorin, because she is going to testify that she was in this house. She was in bed with Carl Pieper. This man, Mr. Gordon, came in, apparently through the window. He came into their bedroom and fired shots. He ultimately killed Carl Pieper. That is going to be her testimony.‘What I'm going to suggest to you is that she is going to go on and testify to other things. And what I am going to suggest to you, and perhaps this makes the case unusual, is that she's not going to tell you the truth. I think you will conclude, from all the evidence, that there was more than one person involved here. And the other person is Carolyn Thorin.‘Carolyn Thorin's story will go on to the effect that Carl Pieper was killed by Mr. Gordon here; that she was then struck or beat up by Mr. Gordon; that she was kidnaped at gupoint. She was forced into Carl Pieper's car. They then followed this path I have already described about going to the restaurant and the motel.‘She will describe to you how she talked Mr. Gordon out of the gun that was being held on her. And she then went out in the sand area and buried it. She will then describe to you how she went back into the motel. She will describe to you how she talked Mr. Gordon into fleeing and that she would give him time to flee. And she would even drop him off at the airport.‘Mr. Gordon, apparently falling under her influence, agreed to this. She will testify to that. They got back into the car. She dropped him off at the International Airport. And then, she went to her mother's house in Redondo Beach, where she called the police.‘The police arrived. The police are told that Mr. Gordon here is on an airplane to New York which, in fact, he was. Mr. Gordon is then arrested in New York.‘I think you will conclude when you see all the evidence and when you hear the people testify as to what went on outside of this house that you are getting a half-truth story from Mrs. Thorin. And I say half-truth, because I think the other evidence will indicate that Mr. Gordon here was probably in fact the man who pulled the trigger and did the killing. Part of the evidence, as I've already indicated, was the lights in the back yard. Mr. Pieper apparently always kept those lights on, you will hear. And this morning, the lights were off. You will also hear how Mr. Pieper was almost paranoid about security, because he had recently—recently in the past year before his death, he had someone break into his house. He was paranoid to the extent where he had several locks on all the doors. And yet Mr. Gordon was able to get into the rear window, which apparently was not locked.‘So this is basically the case the People will produce. It is not going to be an easy case where you can sit back and not take any notes or not think about what is going on. And I urge you to think about it.‘And I think that when you finally hear all the evidence and think about it a little bit, that you will conclude that this was a single murder with two people who did it, and one of them is sitting here. And it is your job to decide whether he is guilty or innocent of these charges.’

3.  Although language appearing in People v. Wallin, 32 Cal.2d 803, 806–808, 197 P.2d 734 (1948), relied on by appellant, seemingly states a contrary rule, its facts distinguish it from our case. There, Mrs. Paz, the accomplice, had been convicted of a murder which appellant was charged, as an accessory, with aiding her in concealing. The court held Mrs. Paz could be an accomplice even though she could not hove been charged with the ‘identical offense,’ i. e., being an accessory, for which crime appellant was on trial. Having already been found guilty of murder, her testimony was open to the suspicion of being given in hope of leniency whereas, in our case, Mrs. Simpson, having been acquitted, could have had no such suspected motivation.

DUNN, Associate Justice.

FILES, P. J., and KINGSLEY, J., concur.

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