The PEOPLE, Plaintiff and Respondent, v. Lionel Raymond WILLIAMS, Defendant and Appellant.
Defendant Lionel Raymond Williams appeals from a judgment of conviction entered after a jury trial. The trial court denied defendant's motion for severance (Pen.Code, § 954) of Counts I and II from Counts III through XII, inclusive, of the indictment. Thereafter, the jury found defendant guilty of one count of murder in the second degree (Pen.Code, §§ 187, 189), nine counts of first degree robbery (Pen.Code, § 211) and one count of second degree robbery (Pen.Code, § 211). The jury further found defendant had used deadly weapons within the meaning of Penal Code section 12022, subdivision (b) in the commission of Counts I, IV, V and VIII. In addition, the jury found that defendant used a firearm within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1) during the commission of Counts VII and IX, and inflicted great bodily injury (Pen.Code, § 12022.7) during the commission of Count VII. Defendant was sentenced to state prison, the sentences to run consecutively, for the term prescribed by law.
STATEMENT OF FACTS
Count III: January 24, 1976
At approximately 12:45 a. m., Theda Kleinhans (Kleinhans) and her friend Patricia Verser (Verser) were standing under a street light in a residential area discussing their place of employment. A few moments after Kleinhans saw an automobile drive around the corner, she saw defendant run toward her. Before she could scream, defendant approached Kleinhans from the rear and placed a knife at her throat. He then whispered, “Give me your money or I will kill you.” Kleinhans received a small wound to her hand from the knife as she handed her purse to defendant. After taking the purse, defendant shoved Kleinhans against Verser's automobile. Kleinhans never saw defendant clearly, but Verser was face-to-face with defendant during the entire attack.
Counts IV and V: February 7, 1976
Marcia and Mark Frank were entering an apartment building in West Hollywood at approximately 8:15 p. m. to visit a friend. Mrs. Frank went through the security door leading into the building's lobby and walked to the elevator. Mr. Frank followed, pausing to close his umbrella as he entered the building, whereupon Mr. Frank noticed three black men approaching the door. Because the door was designed to close slowly, one of the three men had an opportunity to grab the door to prevent its closure. While Mr. and Mrs. Frank were waiting for the elevator to arrive, the taller of the three men pulled a pistol, shoved it into Mr. Frank's ribs and demanded his valuables. Defendant, the shorter of the three men, approached Mrs. Frank while the third man stayed near the security door. Defendant grabbed Mrs. Frank by her fur coat and threw her to the ground, after which he ripped the coat off the hysterical Mrs. Frank and tried unsuccessfully to take her wedding ring. Defendant subsequently sought to induce the taller man to give him the gun, stating repeatedly, “I want to waste the *. Let's waste them,” even though someone was approaching and defendant's accomplices wished to flee.
Counts I, II and VI: February 12, 1976
Sal Mineo (Mineo) approached the entrance to the walkway of his apartment at approximately 9:30 p. m.; he suddenly stopped short and began to back away. A neighbor, standing approximately 30 feet distant, heard Mineo say, in a louder than normal voice, words to the effect, “No, no.” Defendant then bolted from the entrance-way and plunged into Mineo in a tackling motion, fatally stabbing him in the process. After knocking Mineo to the ground, defendant fled from the alleyway. The neighbor described the attacker as white, average height with brownish hair with blond highlights and large unkempt curls.
At approximately the same time, a security guard heard a voice scream for help. He did not know the direction from which the voice came, but seconds later he saw a figure apparently running toward a small yellow Toyota. The figure entered the automobile and drove away at a high rate of speed with the headlights off. The security guard saw the figure once, at a distance of about 75 feet, and gave a description of a male, 5′ 10″ or 11″, with Mexican yellow or Italian coloring. Initially, the security guard had described the assailant as white. When Mineo's body was examined at the coroner's office, $22 was found on his person.
Approximately 25 minutes after the attack on Mineo, Richard Roy (Roy) was attacked as he returned to his apartment. The traveling time between Mineo's and Roy's apartments was later determined by the police, using two different routes, to be two minutes and two minutes 20 seconds, respectively.
As Roy was walking from his car to the front of his apartment building, he saw two men walking up the driveway. When the two men approached him, the larger of the two demanded his money. Roy responded that he did not have any money, whereupon the larger man struck Roy in the jaw, knocking him to the ground. As he fell, Roy dropped his keys. The larger man walked away, but the shorter man, later identified as defendant, remained behind and continued to strike Roy while he was on the ground. Defendant also bent back Roy's fingers, as if he intended to break them, in an effort to remove Roy's rings. Thereafter, defendant took Roy's key ring and departed.
Count VII: February 19, 1976
Diana Matlik (Matlik) was walking from her place of employment to her automobile at approximately 7:15 p. m. Before she reached her automobile, defendant jumped out from between her automobile and another and, with pistol in hand, demanded her money. He told her to be quiet or he would kill her. Initially, Matlik did not take him seriously; however, when he pulled back the trigger, she dropped her purse and beautician's equipment bag. Defendant picked up the bags, then struck Matlik in the head with his gun. As a result, Matlik subsequently lost the hearing in her left ear. About one month later, she tentatively identified defendant in a photographic lineup.
Count VIII: February 26, 1976
Peter Kirchen (Kirchen) was driving home at approximately 10:30 p. m. when he pulled behind an automobile at a boulevard stop. After the automobile preceding Kirchen's crossed the intersection, it stopped in the right hand lane. As Kirchen drove by the automobile, the driver honked the horn; Kirchen pulled to the right and stopped after which the driver of the other automobile approached him and asked directions to a nearby street. After giving directions, Kirchen resumed his journey home. Shortly thereafter, Kirchen noticed that the same automobile was following him, at which point Kirchen prudently decided that he should not drive directly to his home. He drove one block past his residence, intending to circle the block.
After Kirchen turned a corner, the following automobile approached and swerved into Kirchen's lane, forcing him to pull to the side of the road and stop. Once again, the driver stepped out of his automobile and asked for directions to the same street. Kirchen kept the driver's window of his automobile closed. When the man approaching was three to four feet from Kirchen's automobile he demanded Kirchen's money. When Kirchen failed to comply with the demand, it was repeated by a second man. Thereafter, the first man shattered the driver's window of Kirchen's automobile with a ballpeen hammer and repeated his demand for Kirchen's money. At this point, Kirchen eagerly obliged by handing over his wallet and flinging his change at the man.
Later that evening, defendant and one James Green were stopped by police officers after they negotiated an illegal left hand turn at which point two of Kirchen's credit cards were found in their possession.
Counts IX through XII: March 7, 1976 (Gucci Robbery)
Allwyn Williams (A. Williams) (no relation to defendant), Alvino Love (Love), and defendant were in Beverly Hills looking for potential robbery victims who appeared to have considerable money. William and Mary Selwyn, Dr. Max Gatov and Zena Carroll were window shopping in front of the Gucci clothing store. While they perused the window display, Williams and another light-skinned black, later identified as defendant, approached the group, and defendant placed a gun at the back of Mr. Selwyn's neck. When Mr. Selwyn turned around, defendant placed the gun at his throat, became very agitated, hostile, and threatening, and demanded Mr. Selwyn's money. The assailants took the wallets and purses of all four victims, then fled to a waiting automobile some blocks away where Love had remained throughout the incident.
In February and March 1978, defendant regaled A. Williams with the details of his participation in some prior criminal activities. In the presence of his cousins, Leve Ross III and Perry Ross, defendant confessed to killing Mineo. He stated that he committed the murder at a location below Sunset in Hollywood while planning to rob someone. He further stated that when he approached Mineo, Mineo backed up and began screaming, whereupon defendant stabbed him; after the stabbing, Mineo said, “Oh” or “What?” Defendant also mentioned using a yellow automobile in the commission of the crime.
On February 8, 1978, Los Angeles Sheriff's Deputy Michael P. McCrady was on duty in the County Jail's Hospital Ward 6000 Control. Standard procedure required a search of inmates as they left a visitor's area. When defendant prepared to leave the visitor's area, Deputy McCrady informed him that he would be searched, and instructed defendant to face a wall of the room. When Deputy McCrady began to search in the area of defendant's left pocket, defendant reacted violently and, as a result, was handcuffed. Thereafter, Deputy McCrady resumed the search and removed a note from defendant's left rear pocket which read: “I want Big Perry down here right away (sic) it is important i (sic) want somebody to do something to Rock right away so do something about him he is against me all the way.” It further read, “and he is in high power” (a high security area); “Important.”
Defendant made incriminating statements about the Mineo murder on other occasions. Ronald Peek, a corrections officer at the Calhoun County Jail in Michigan, worked the midnight shift on October 12, 1977. While making his rounds, he overheard defendant tell another inmate that he killed Sal Mineo.
Mary Ann Newsome (Newsome) had known defendant for several years. During the early morning hours, sometime in September 1976, defendant came to her apartment, claiming to be depressed. He stated that he supposedly killed some famous guy in West Hollywood, that money was involved, but he did not take any. Defendant further said that when he became depressed, he had to go out and hurt someone. During a later conversation with Newsome, defendant told her that the killing occurred in an area where he committed a robbery or robberies. Lastly, Miss Newsome testified that defendant wore many different hairstyles and changed his hair color in 1976. While defendant was an inmate in Michigan, his hair color had an orange or light brown cast to it; his hair was darker in color at trial.
Near the end of February 1977, Los Angeles Sheriff's Deputy Edward J. Pia was advised that defendant wanted to talk about the Mineo murder. Defendant volunteered that he was at an apartment or house with six or seven other “blood dudes” where he heard one of the “dudes” say that he knew who killed Sal Mineo. The “dude” said that Mineo was killed as the result of a dispute over a drug sale; the mysterious murderer was paid $1,500 for the act, and left that same evening for New Orleans or elsewhere in Louisiana.
Defendant made several inculpatory statements to Sergeant Von D. Sturm in December 1977 after he had been given his Miranda rights. He stated that he purchased a Buick from a local dealership, but the automobile was mechanically troublesome; hence, while the automobile was being serviced, he obtained “loaners” from the dealer. A search of the dealer's records revealed that defendant was loaned a yellow 1971 Dodge Colt on February 12, 1976, the day of the Mineo murder. The loan agreement listed defendant's address as 439 West 93rd Street, Los Angeles.
During the same December conversation with defendant, Sergeant Sturm examined the tattoos on defendant's arms, observing the tattoo of a dagger on defendant's left arm. Defendant informed Sergeant Sturm that he self-administered the tattoo while he was an inmate in the Michigan jail. At Sergeant Sturm's request, defendant drew a picture of a knife which he had purchased at a local surplus store. He described the knife as brown handled, approximately ten inches in length with serrations for removing fish scales on one edge of the dull or black colored blade, and equipped with a brown sheath. Based on the drawing and description, Sergeant Sturm purchased the same type of knife at the same surplus store.
Dr. Ronald Taylor of the coroner's office testified that the knife purchased by Sergeant Sturm was the same type of knife as that used to kill Mineo; in fact, the knife was virtually identical to the murder weapon which was so unique that the coroner's collection of approximately 200 knives contained no similar weapon. Dr. Taylor stated that the knife was designed for combat rather than hunting or fishing.
Defendant offered evidence that Mineo's attacker was caucasian. At the time of the murder, Monica Merrem, age 12, was alone in the apartment she shared with her mother, Marcia DiSessa. When she heard someone scream for help, she looked out the apartment window and saw a man running in the alley. She noticed that the individual was very white, with high cheek bones and tight skin. He wore large curls of hair which bounced as he ran.
In rebuttal, the People offered the testimony of Elliot Mintz (Mintz), who had made a public appeal for anyone who possessed information concerning the Mineo death to come forward. Subsequently, Mintz spoke to Marcia DiSessa (DiSessa) on the telephone and recorded the 61-minute conversation. At no time during that conversation did DiSessa refer to a white man.
Byron Cleveland (Cleveland), defendant's brother, testified that on the night of the Mineo murder, defendant was at Cleveland's home to obtain his signature as cosigner for the purchase of defendant's automobile. Cleveland testified that defendant arrived at approximately 6:00 p. m. and departed between 7:00 and 7:30 p. m. Joan Saunders, a resident of Inglewood, also testified that defendant asked her to co-sign the note for his automobile on the same evening, but she refused; defendant left her home between 9:00 and 9:30 p. m.
Defendant introduced evidence to impeach the testimony of Allwyn Williams. In 1978, Williams was incarcerated in the Los Angeles County Jail and, while incarcerated, he was offered testimonial immunity for his cooperation in the investigation which was focused on defendant. Defendant's cousins, Leve Ross III and Perry Ross, both denied that defendant confessed to the Mineo murder in their presence. Defendant further established that Williams had been allowed to plead to a misdemeanor in the Gucci robbery, thereby allowing him to remain eligible to enlist in the Marine Corps. Finally, the defense offered evidence that the photograph taken of defendant on June 3, 1979 was underexposed, taken on the wrong type of film, resulting in improper identifications by witness.
Defendant contends that the trial court's refusal to sever trial of the murder count in the indictment from the robbery counts was a violation of Penal Code section 954 and defendant's right to due process and a fair trial.
Defendant further asserts that there was no substantial evidence of his involvement in the Gucci robberies in that there were no witnesses who could identify him, thereby permitting his conviction on the uncorroborated testimony of an accomplice.
Defendant avers that the trial court committed prejudicial error in permitting the introduction of hearsay and other evidence which was not probative and by failing to prevent an excluded witness from testifying.
Finally, defendant contends that he was denied a fair trial in view of the trial court's failure to dismiss a biased and emotionally disturbed juror.
Defendant contends that the trial court's refusal to sever trial of the murder count in the indictment from the robbery counts was a violation of Penal Code section 954 and defendant's right to due process and a fair trial. We disagree.
Penal Code section 954 provides in pertinent part:
“An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts … provided, that the court … in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts … be tried separately ․”
The defendant bears the burden of affirmatively showing that substantial prejudice will result from joinder. (People v. Kemp (1961) 55 Cal.2d 458, 477, 11 Cal.Rptr. 361, 359 P.2d 913). A bare assertion of prejudice will not carry the burden. Indeed, the defendant must show that the consolidation for trial of criminal informations or indictments was not supported by good cause or in the interests of justice (People v. Coleman (1968) 263 Cal.App.2d 697, 702, 69 Cal.Rptr. 910) and that the joinder of the offenses was in some way inflammatory to the defense. (See Coleman v. Superior Court (1981) 116 Cal.App.3d 129, 172 Cal.Rptr. 86). The trial court retains sound discretion to allow joinder which is broader than the discretion which may be exercised in admitting evidence of uncharged offenses (People v. Haston (1968) 69 Cal.2d 233, 244-50, 70 Cal.Rptr. 419, 444 P.2d 91). The limitations on the admissibility of evidence contained in Evidence Code section 1101, subdivision (b) are not applicable when all offenses are charged (People v. Shells (1971) 4 Cal.3d 626, 632, 94 Cal.Rptr. 275, 483 P.2d 1227, emphasis in the original).
The circumstance that the offenses charged were committed at different times and places is not sufficient to deprive the trial court of discretion in ordering consolidation for trial if the offenses are of the same class of crime. (People v. Coleman, supra, 702, 69 Cal.Rptr. 910.) Offenses are of the same class for purposes of section 954 if they possess common characteristics or attributes. (People v. Meneley (1972) 29 Cal.App.3d 41, 51, 105 Cal.Rptr. 432.) The trial court must base its decision in applying section 954 upon a proper consideration of the particular circumstances of each case, weighing substantial prejudice to the defendant against the efficiency of judicial administration. Ordinarily, joinder avoids needless harassment of the defendant and the waste of public funds which may result if the same general set of facts are tried in two or more separate trials (People v. Matson (1974) 13 Cal.3d 35, 41, 117 Cal.Rptr. 664, 528 P.2d 752; citing People v. Brock (1967) 66 Cal.2d 645, 655, 58 Cal.Rptr. 321, 426 P.2d 889). This consideration forms the basis for the reasonable statutory policy favoring joint trials.
Defendant first argues that murder and robbery are not crimes of the same class, relying upon People v. De La Plane (1979) 88 Cal.App.3d 223, 251, 151 Cal.Rptr. 843. Defendant has misinterpreted De La Plane, for the cited language is mere unanalyzed dicta. The assertion that murder and robbery are not of the same class of crime will not withstand scrutiny. Both murder and kidnaping are a form of assault and an offense against the person. (People v. Meneley, supra, 41, 51, 105 Cal.Rptr. 432). Robbery and kidnaping share sufficient common characteristics as assaultive crimes against the person to be jointly chargeable. (People v. Rhoden (1972) 6 Cal.3d 519, 524-525, 99 Cal.Rptr. 751, 492 P.2d 1143.) Murder is one of the most heinous crimes in our society, “the unlawful killing of a human being … with malice aforethought.” (Pen.Code, § 187, emphasis added.) Defendant's assertion that the joinder of lesser assaultive or violent crimes with robbery is permissible, but the joinder of the most serious assaultive crime, murder, is not, must give way to the force of logic under the facts of the instant case.
In the instant case, all incidents occurred within 42 days of each other and transpired after dark, primarily between the hours of 7:30 p. m.-10:30 p. m. (only the Kleinhans robbery occurred after 10:30 p. m.). A space of approximately one week separated each incident with the exceptions of the Frank robberies, which occurred two weeks after the Kleinhans robbery, and the Mineo and Roy incidents, which took place on the same evening. All of the incidents, with the exception of the Kirchen robbery, occurred within a very circumscribed geographical area, a considerable distance from defendant's home. With the exception of the Gucci robberies, all incidents took place in residential neighborhoods. Allwyn Williams, an acquaintance and accomplice of defendant in the Gucci robberies, testified that they were in Beverly Hills because they were looking for someone to rob whom they felt had money. With the exception of the Kirchen robbery, every other incident took place in higher rent districts. Accordingly, while these similarities might not render evidence of uncharged crimes admissible to show a common plan or scheme under Evidence Code section 1101, subdivision (b), they do establish a discernible pattern.
One common thread throughout every incident was the excessive violence defendant displayed toward his victims. According to the testimony of Mary Ann Newsome, who had known defendant for several years at the time the offenses were committed, when defendant became depressed “he had to go onto the street and hurt someone.” In the Mineo incident, the victim stopped short in his approach and began to back away from defendant's location. At that moment, defendant ran into Mineo as if to tackle him and inflicted the fatal knife wound, which the coroner testified was the product of a knife designed for combat rather than hunting or fishing.
During the Kirchen robbery, defendant forced the victim's car to the right side of the street and to a stop and demanded the victim's money. Kirchen rolled up the window on the driver's side whereupon defendant shattered the window with a ballpeen hammer and again demanded his money. This gratuitous, aggressively violent display is consistent with the attack on Mineo. Thus, there was an arguable necessity for evidence of the Kirchen robbery in the Mineo trial on the issue of motive.
Similar acts of physical or verbal brutality are readily apparent in the other charged offenses. In the Kleinhans robbery, a knife was placed at the victim's throat, she was threatened with death, and the victim was shoved against a car, receiving a small knife wound on her hand. Hence, again, evidence that defendant had used a knife in the past was arguably necessary. Mark and Maria Frank were robbed at gunpoint while defendant brutally manhandled Mrs. Frank and ripped away from her the fur coat she was wearing. Over the objections of his accomplices, defendant wanted to “waste the [expletive deleted].” Again, this is consistent with the seemingly senseless attack on Mineo.
The robbery of Robert Roy occurred about 25 minutes after the Mineo killing. Roy was attacked at a location approximately two minutes by car from the site of Mineo's murder. In view of defendant's alibi defense, evidence of the Roy robbery would have been necessary at a separate murder trial to show that defendant was in the vicinity of the Mineo killing. While no weapon was displayed to Mr. Roy, he was beaten and his fingers were bent backward by defendant as if to break them after Mr. Roy was knocked to the ground by defendant's accomplice. Thus, as in the Kirchen and Mineo incidents, defendant inflicted excessive violence upon Roy when he hesitated in the face of defendant's commands.
Diana Matlik's robbery was marked by the same hostile anger. She was threatened with death by defendant. After obtaining her purse, defendant struck her in the head with his pistol, causing a loss of hearing in her left ear. In addition, one of the victim's of the Gucci robbery described defendant as very agitated, hostile and threatening. The purses of the female victims were ripped from them and a gun was placed at the neck of William Selwyn. Clearly upon consideration of all the circumstances, joinder was permissible. The strict requirements of similarity imposed by Evidence Code section 1101, subdivision (b) are not applicable to consideration of joinder. (People v. Matson, supra, 13 Cal.3d 35, 41, 117 Cal.Rptr. 664, 528 P.2d 752.)
In support of his assertion that substantial prejudice resulted from joinder, defendant points to the positive identifications made in the robberies as contrasted with the conflicting descriptions of Mineo's assailant. We consider the argument specious. Admittedly, the witnesses' identifications of Mineo's assailant were varied. The assailant was alternatively described as being white with brownish hair with blond highlights and being Italian or having Mexican yellow skin; however, according to Newsome, defendant previously changed his hairstyle and hair color, which could account for the varying descriptions of some of the witnesses.
Defendant's murder conviction was not dependent upon the accuracy of identification given the scope of defendant's admissions. Defendant confessed to A. Williams that he killed Sal Mineo, describing Mineo's backing away and his exclamation, “No, no” prior to being stabbed. Ronald Peek, a corrections officer at the Michigan jail where defendant was incarcerated, heard defendant tell another inmate that he killed Mineo. Newsome testified that defendant stated that he killed someone in West Hollywood; that money was involved, but he did not obtain any of the money.
Defendant offers no proof of the prejudice other than the bald assertion that evidence of one crime prejudiced the jury's consideration of the other offenses. The jury was correctly instructed to view the evidence of each offense as if it were the only accusation before it. The jury is presumed to have performed its function properly. Defendant's acquittal of the attempted robbery charge is further evidence of the jury's independent assessment of the issues of the instant case. In that defendant has failed to meet his burden of proof, denial of severance did not amount to an abuse of discretion.
Defendant's assertion that there was no substantial evidence of his involvement in the Gucci robberies in that there were no witnesses who could identify him, thereby permitting his conviction on the uncorroborated testimony of an accomplice, lacks merit.
Our task on review is limited to determining whether there is substantial evidence in support of the verdict (see People v. McDaniel (1976) 16 Cal.3d 156, 178, 127 Cal.Rptr. 467, 545 P.2d 843; People v. Reilly (1970) 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 475 P.2d 649). To meet the test of substantiality, evidence must be “of ponderable legal significance … reasonable in nature, credible, and of solid value.” (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738.)
Penal Code section 1111 provides in pertinent part:
“A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof ․”
“‘Although the corroborating evidence must do more than raise a conjecture or suspicion of guilt, it is sufficient if it tends in some degree to implicate the defendant.”’ (People v. Perry (1972) 7 Cal.3d 756, 769, 103 Cal.Rptr. 161, 499 P.2d 129 quoting from People v. Santo (1954) 43 Cal.2d 319, 327, 273 P.2d 249). “‘[T]he corroborative evidence may be slight and entitled to little consideration when standing alone.”’ (Ibid.; quoting from People v. Wade (1959) 53 Cal.2d 322, 329, 1 Cal.Rptr. 683, 348 P.2d 116.)
Viewing the evidence, as we must, in a light most favorable to the judgment and presuming the existence of every fact which the jury reasonably could deduce from the evidence (People v. Johnson, supra, 26 Cal.3d at 576, 162 Cal.Rptr. 431, 606 P.2d 738), there is substantial evidence to support the verdict.
Defendant did not challenge A. Williams' participation in the Gucci robbery. We must therefore examine the identifications of the assailants by the victims. All four victims' descriptions were generally consistent. One of their attackers, the man who held the gun, was described as a light skinned black, clean shaven, about 5′ 8″; two of the victims stated that this man wore braids in his hair. At the time of trial, defendant was a light skinned black, about 5′ 8″, had bushy hair with a beard or moustache and wore glasses. At trial, Mr. Selwyn was unable to identify defendant as the man who placed the gun at his throat; the long passage of time between the robbery and trial dimmed his memory. However, Mrs. Selwyn was more positive. Given the significant difference between defendant's in-court appearance and that of her attacker, she was unable to make a positive in-court identification, although identifying defendant's photograph on two separate occasions during her testimony. Defendant's assertion that Mrs. Selwyn's earlier statement that her eyes, for some unknown reason, gravitated to defendant's photograph made her identification invalid as emotional rather than logical is meritless. That Mrs. Selwyn's eyes might have intuitively fixed upon the photograph of her attacker does not automatically destroy the accuracy of her identification. The jury had an opportunity to weigh Mrs. Selwyn's testimony and they presumably concluded that her testimony was credible.
Gatov and Carroll were unable to make positive in-court identifications of defendant and Gatov could not positively identify defendant's photograph. However, Carroll testified that when defendant removed his glasses, he appeared more like her assailant. We therefore conclude that the witnesses' collective and individual identifications, although in part arguably entitled to little consideration standing alone, tend in some logical way to implicate defendant, thus adequately corroborating Allwyn Williams' testimony. (People v. Perry, supra, 7 Cal.3d at 769, 103 Cal.Rptr. 761, 499 P.2d 129.)
Defendant avers that the trial court committed prejudicial error in permitting the introduction of hearsay and other evidence which was not probative and by failing to prevent an excluded witness from testifying. Although we find error in part, we consider it harmless. Hearsay is defined in Evidence Code section 1200 as “a statement that was made other than by a witness while testifying at the hearing and is offered to prove the truth of the matter stated.”
Testimony of Deputy Pia
Defendant challenges Deputy Pia's testimony that defendant was present with six or seven other individuals when one of them said that he knew who killed Sal Mineo. Defendant's assertion that this constitutes multiple hearsay, which is not made admissible by Evidence Code section 1201, is specious.
At the first level, defendant's statement is an admission within the meaning of Evidence Code section 1220 which provides:
“Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with the knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.” As enunciated in People v. Ford (1964) 60 Cal.2d 772, 799, 36 Cal.Rptr. 620, 388 P.2d 892: “An admission is ‘any statement by an accused relative to the offense charged.”’
At the second level, the statement allegedly reported by the individual who spoke to defendant that Mineo was murdered over a disputed drug deal, was not hearsay. The statement was not offered for the truth of the matter stated, as acknowledged by the prosecutor in his closing argument. The impact of defendant's statements to Deputy Pia was that defendant demonstrated a consciousness of guilt by his attempt to divert the police investigation through falsely identifying the assailant as an unknown person who fled to Louisiana and providing a specious motive. Accordingly, defendant's statement was properly admitted in evidence.
“Get Rock” Note
Defendant argues that the “Get Rock” note was inadmissible hearsay evidence, the admission into evidence of which was prejudicial error. We agree that the trial court erred in allowing the introduction of the note into evidence, but find the error de minimus in light of the other substantial evidence against defendant.
The People offered the note to establish that defendant's out-of-court statements contained therein exhibited a consciousness of guilt. Hence the note was hearsay, offered for the truth of the matter stated. The People's reliance on People v. Richards (1976) 17 Cal.3d 614, 617, 131 Cal.Rptr. 537, 552 P.2d 97 and People v. Ford, supra, 60 Cal.2d at 772, 36 Cal.Rptr. 620, 388 P.2d 892 is misplaced. In Richards, a witness's recollection of defendant's oral statements was admissible under Evidence Code section 1220. In the instant case, we are concerned with defendant's ambiguous written statement. Defendant's message “[I] want somebody to do something to Rock [Allwyn Williams] right away … he is against me all the way” is subject to a wealth of speculation. The record does not reveal any evidence of a causal connection between the note and the offenses charged. Therefore, the note is “not relative to the offense charged.” (People v. Ford, supra, 60 Cal.2d at 799, 36 Cal.Rptr. 620, 388 P.2d 892.)
Testimony of Elliot Mintz
The exclusionary rule of Evidence Code section 777, subdivision (a) provides that the court “may exclude from the court-room any witness not at the time under examination so that such witness can not hear the testimony of other witnesses.” The trial judge exercises sound discretion in this matter. (People v. Ortega (1969) 2 Cal.App.3d 884, 894, 83 Cal.Rptr. 260.)
Without offering any authority therefore, defendant baldly asserts that Mintz's testimony violated the stipulated agreement that all witnesses be excluded from the courtroom. With respect to the only two witnesses with whom his testimony was concerned, Mintz was out of the courtroom when Monica Merren testified, and present during only a portion of Marcia DiSessa's testimony. More importantly, the prosecution learned of the existence of the tape recording on the afternoon that DiSessa began her testimony and Mintz testified for the narrow purpose of laying a foundation for the introduction of the tape recording. Based upon these facts, we discern neither an abuse of the trial court's discretion nor any possible prejudice to defendant.
Finally, defendant contends that he was denied a fair trial in view of the trial court's failure to dismiss a biased and emotionally disturbed juror. We cannot agree. Penal Code section 1089 provides in pertinent part:
“If at any time, whether before or after the final submission of the case to the jury …, if a juror requests a discharge and good cause appears therefor, the court may order him to be discharged ․”
Defendant's principal reliance upon People v. Collins (1976) 17 Cal.3d 687, 131 Cal.Rptr. 782, 552 P.2d 742 in support of his contention is ill-founded. The issue as framed by the Collins court was “whether the substitution of an alternate juror is constitutionally permissible after deliberations have begun.” (Id., at p. 691, 131 Cal.Rptr. 782, 552 P.2d 742.) The instant question is whether the trial court erred by failing to discharge the juror before deliberations began. Collins may be further distinguished from the instant case in that the Collins' juror, after an extensive hearing, “steadfastly maintained that she could not follow the court's instructions ․” (Id., at p. 696, 131 Cal.Rptr. 782, 552 P.2d 742.)
In the instant case, the juror twice informed the court of his misgivings about deciding the case. The first indication of the juror's insecurity came a week-and-a-half into the trial. At that time, the juror felt ill at ease because of his inability to synthesize the facts like an emotionless computer. However, the juror assured the court that he would try his best to “leave an open mind” through the remainder of the trial, would “certainly try” to listen to the remainder of the facts presented by both sides, and would try to apply the law to those facts as given by the judge.
Two weeks later, the juror sent a note to the court which stated, “I do not want to make a decision in this case. I think we should talk again about removing me from the jury.” Under questioning by defense counsel, the juror stated his ability to impartially decide the facts, as follows:
DEFENSE COUNSEL: “Your Honor, could I possibly ask [the juror] a question?
THE COURT: “Yes.
DEFENSE COUNSEL: “…, you say you're bothered because you don't know if you can be impartial. Are you saying that you feel you are going to go into the deliberations with a closed mind, you wouldn't listen?
JUROR NO. 11: “No.
DEFENSE COUNSEL: “Are you willing to go into the deliberations, if we say you should go in, or if the court rules that, and at least listen to what everybody else has to say?
JUROR NO. 11: “Sure.
DEFENSE COUNSEL: “And do you think you can listen to what everybody else has to say impartially?
JUROR NO. 11: (No audible response.)
DEFENSE COUNSEL: “Have you already prejudged the case?
JUROR NO. 11: “No.
DEFENSE COUNSEL: “I have no further questions, Your Honor.”
After listening to this colloquy, the trial court determined that no good cause existed to remove the juror, but that the juror merely acted in an overly conscientious manner. Both the defense and the prosecution refused to stipulate to the removal of the juror. We therefore find no abuse of the trial court's discretionary power under section 1089 as to the discharge of a juror.
The judgment is affirmed.
SPENCER, Presiding Justice.
LILLIE and FLETCHER,* JJ., concur.