PEOPLE v. DOTY (1947)

In each of four counts of an information filed by the District Attorney of Los Angeles County the defendants were accused jointly of the crime of burglary. Each count charged the defendants with the burglary of a different Safeway grocery store in the City of Los Angeles on the night of August 2 or morning of August 3, 1946. To each of the four counts the defendants entered pleas of not guilty. Trial before a jury resulted in verdicts of guilty of burglary in the second degree against both defendants as to each count. A motion for a new trial was denied. From the judgments of conviction thereupon entered the defendants prosecute this appeal.

It is urged that there is no evidence to sustain the verdicts on any of the four counts of the information. The following summary of the evidence adduced on behalf of the prosecution renders this contention unavailing.

At approximately 2:30 on the morning of August 3, 1946, two West Los Angeles police officers in a patrol car observed the defendants in a Safeway store located at 2090 Westwood Boulevard, the defendant Flohr being then crouched in front of a safe. The defendants attempted to flee, but surrendered when the officers opened fire. Upon being questioned, one of the defendants gave the location of their automobile, which was found parked on a side street a block from the store. In the vehicle were found three paper bags, containing respectively $950, $162 and $707.45 in bills of various denominations, as well as coins rolled in paper wrappers.

On the night of August 2, 1946, three other Safeway stores, located on Third Street, Robertson Boulevard, and Melrose Avenue, had been burglarized. These three burglaries from the basis of Counts I, II and III of the information, count IV charging the burglary of the Westwood Boulevard store. In connection with the burglaries of the three stores first above mentioned, the prosecution introduced evidence that in one of the paper bags of money was a bundle of 12 checks which were identified by the manager of the Robertson Boulevard store as checks of his customers; that a bolt cutter found in the rear of the Westwood Boulevard store had been used to cut the hasp on the Melrose Avenue store; that in each of the four crimes, all of which occurred on the same evening, the hasp of the door had been cut in a similar manner; and finally, that under questioning at the police station, defendants admitted that they were guilty of all four burglaries.

Appellants' contention that the evidence is insufficient to support the verdicts amounts to no more than an argument against the credibility of the police testimony and in favor of the explanation offered by the defendants at the trial. It is urged, for instance, that the police could have ‘planted’ the incriminating checks in one of the bags of money. Such a contention does not justify the reversal of a judgment. The question of credibility of witnesses was for the triers of fact. People v. Day, 71 Cal.App.2d 1, 4, 161 P.2d 803.

In explanation of their presence in the Westwood Boulevard store, the defendants testified in substance that they attended a theatre in Hollywood on the night of August 2nd, and afterwards went to a restaurant; that about 1:30 they drove to Westwood Boulevard to meet a young lady with whom defendant Flohr had made an appointment for 2 o'clock; that they went to the intersection of Westwood and Olympic Boulevards and drove around the block looking for the girl, parked the car on Glendon Avenue one block east of Westwood Boulevard, walked to Westwood Boulevard and past the Safeway store looking for a street number. At this point they noticed that the door of the store was open and that there was a sign on the door, ‘something about a $25.00 reward for any information’; that they entered the store to telephone the store manager and also the young lady, but were apprehended before they did any telephoning. Defendant Flohr accounted for the money in his car by stating that he had left his hotel with $2,500 wrapped in a newspaper, and after purchasing some liquor transferred the money into the paper bags which contained the liquor. He carried this large sum, according to his testimony, because he intended to play cards that evening.

Defendants produced as a witness one Harris Johnson, who at the time of his testimony was a resident of the county jail and who had occupied the same cell as defendant Flohr. Johnson testified that he and another man were attempting to rob the Westwood Boulevard store about 2 o'clock in the morning of August 3, 1946, but fled upon the arrival of the defendants, leaving behind the bolt cutters found on the premises and the gloves which, according to the police officers' testimony, were being worn by defendants at the time of their apprehension. This witness did not want to give the name of his companion, but when pressed for an answer, stated that his name was ‘Joe Blow’; that he first met ‘Joe Blow’ on the afternoon of August 2; that they visited some bars and restaurants in the afternoon and evening before attempting the burglary; that after fleeing the store he never saw ‘Joe Blow’ again. Johnson's testimony threw no light on the burglaries of the three other stores during the same evening. Nor did any evidence on behalf of the defense support the story of defendants as to their activities during the evening when the other three stores were burglarized.

It is next contended that the asserted confessions or admissions, testified to by several police officers, were not free and voluntary, but were obtained by threats, violence and brutality, and that even though the evidence be sufficient to support the verdicts exclusive of the confessions, that the placing of such confessions in evidence resulted in the denial of a fair trial, citing People v. Dye, 119 Cal.App. 262, 270, 273, 6 P.2d 313.

When evidence of defendants' confessions and admissions, as testified to by three police officers, was offered by the prosecution, no objection was raised by the defense. The officers who testified stated that the confessions were ‘freely and voluntarily’ made. A written statement, not signed by the defendants, but the truth of which it was testified they had admitted, was read to the jury without objection by defendants and introduced in evidence by stipulation. The defense made no voir dire examination of the prosecution witnesses as to the voluntary nature of the alleged admissions and confessions. In presenting their defense the defendants testified at length to a course of brutal conduct by the arresting officers and by a third officer, which resulted in a confession by defendant Doty. Defendant Flohr denied making any confession. The treatment described by the defendants unquestionably would render the confessions inadmissible. On the other hand, their testimony was flatly contradicted by that of the police officers involved. It was admitted that the defendants showed signs of physical injury when they arrived at the police station. The defendants testified that they lay down and submitted to arrest when the officers fired upon them; that they were kicked and struck by the officers while being handcuffed and while being taken to the station. They further testified that they were subjected to violence while at the West Los Angeles police station. The officers testified that the only violence used was at the time of arrest, when the defendants refused to disclose the whereabouts of their automobile and one of the defendants tried to escape. In part, according to the prosecution, their physical condition while in the station and at the county jail was due to the fact that they flung themselves to the pavement to escape the officers' bullets. It may be conceded that both defendants had a ‘rough time’ and were ‘roughed up’ in the process of apprehension at the Westwood Boulevard store.

But whether the confessions were elicited by threats, brutality or other form of coercion presented a question of fact upon which the evidence was in sharp conflict. Appellants contend that despite such conflict they are entitled to a reversal, citing Lisenba v. People of State of California, 314 U.S. 219, 62 S.Ct. 280, 290, 86 L.Ed. 166, 180, and Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192, to the effect that when it is claimed that a prisoner's admission or confession has been wrongfully obtained an appellate court is ‘bound to make an independent examination of the record to determine the validity of the claim. The performance of this duty cannot be foreclosed by the finding of a court, or the verdict of a jury, or both.’ The cited cases, as well as other cases relied upon by appellants, present situations in which the appellate tribunals held that the uncontradicted evidence disclosed circumstances indicating that the confession was obtained by means not sanctioned by the law. This was the situation not only in the cases above cited but as well in People v. Jones, 24 Cal.2d 601, 150 P.2d 801; Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716; People v. Rogers, 22 Cal.2d 787, 805, 141 P.2d 722; People v. Loper, 159 Cal. 6, 112 P. 720, Ann.Cas. 1912B, 1193. But no such situation is presented in the case at bar.

It may be conceded that in any case where the claim is made that a confession has been unlawfully elicited an appellate court should scrutinize the record to determine whether the trial court, to whom the question is first addressed, properly held that there was sufficient evidence that the confession was free and voluntary to warrant its admission in evidence. On the other hand, if the mere claim or testimony of a defendant that the confessions were coerced is sufficient to require that evidence thereof be excluded, then any defendant would have the power to prevent the production of such evidence. As was said in People v. Bateman, 80 Cal.App. 151, 156, 251 P. 335, 337:

‘* * * If this were the law, it would lie within the power of the defendant to clear from the case all confessions by his own evidence or such evidence as he might produce, and this regardless of the truth of such testimony. Where it is sought to introduce a confession of a defendant in evidence, the court is called upon primarily to pass upon the question of fact as to whether the confession was freely and voluntarily made, and it is for the jury to determine ultimately whether it was so made and therefore entitled to consideration. * * *.’

See also People v. Elliott, 104 Cal.App. 107, 285 P. 401 and 4 Cal.Jur. Ten Year Supp., p. 669. To quote from the last-cited authority, ‘Nor is the court required to strike out the confession because the defendant testifies that it was made involuntarily, his credibility being a matter for the jury's determination.’ Equally pertinent is the language from Lisenba v. People of State of California, supra, 314 U.S. at page 238, 62 S.Ct. at page 291, 86 L.Ed. 181: ‘There are cases, such as this one, where the evidence as to the methods employed to obtain a confession is conflicting, and in which, although denial of due process was not an issue in the trial, an issue has been resolved by court and jury which involves an answer to the due process question. In such a case we accept the determination of the triers of fact, unless it is so lacking in support in the evidence that to give it effect would work that fundamental unfairness which is at war with due process.’ (Emphasis added.) In Ashcraft v. State of Tennessee, supra, 322 U.S. at page 153, 64 S.Ct. at page 926, 88 L.Ed. 1199, the United States Supreme Court said: ‘Our conclusion is that if Ashcraft made a confession it was not voluntary but compelled. We reach this conclusion from facts which are not in dispute at all.’

Conceding that it was the duty of the trial court to determine in the first instance whether the confessions should be admitted, we have here a situation in which no objection was raised to their admission for lack of foundation as being free and voluntary, the defendants choosing to rely upon their own evidence presented as part of their defense that the confessions were wrongfully obtained. In such circumstances, as heretofore indicated, the question was one of fact for the triers of fact. The instructions are not part of the record on appeal nor have appellants complained thereof in any way. It must be presumed that the jury found either that the confessions were free and voluntary or that the evidence was sufficient in the absence of the confessions. In either event, the verdicts are amply supported.

It is urged that a new trial should have been granted for insufficiency of the evidence and error in admitting the confessions. No appeal was taken from the order denying a new trial. The errors complained of have, however, been discussed under the appeal from the judgment.

The assignment of alleged ‘errors at the trial’ is without merit. Such errors would not justify a reversal even in the absence of section 4 1/212 of article VI of the California Constitution. Furthermore, if evidence as to offenses not charged against the defendants was received, it must be assumed that the jury was given proper instructions as to the limited purpose for which such evidence was received, inasmuch as no contention is made that the jury was not fully, fairly and correctly instructed. For that reason, the instructions have not been brought here on this appeal.

There remains to be noticed the final contention of appellants, that because of certain statements made by the trial judge at the time he pronounced sentence upon them, it was the court's duty to order a new trial on the ground that the aforesaid confessions were inadmissible. In this regard the record reflects that after the jury had rendered the guilty verdicts herein and had been discharged, and when granting appellants' requests for permission to file applications for probation, the court said:

‘Before the matter is concluded there is something the Court would like to state.

‘There was strong evidence in this case that the police exercised force and brutalities on these defendants. The Court isn't at all convinced that didn't happen, and from a preponderance of the evidence, the indication is that certain members of the Los Angeles Police Department did use force and threats on these defendants.

‘I have no criticism of the verdict. We know the effect of such. They, the jury, rightly perhaps, disregarded the confessions and even admissions and still arrived at the result.’

When, however, at a later date, appellants appeared for hearing upon their applications for probation, the court denied a motion for new trial, denied probation, and sentenced appellants to the penitentiary.

There can be no doubt that where a trial court is of the opinion that a party prosecuted for a crime has been convicted upon insufficient evidence or has been denied that fair and impartial trial guaranteed to every person accused of crime, it is the duty of the court to set the verdict aside by granting a new trial. But in the instant case the foregoing remarks of the trial judge show conclusively that he had no doubt but that the verdicts were justified. We have a right to presume, from the fact that the motions for new trial were denied, that the court entertained no doubt that the verdicts were justifiable and fully supported by substantial evidence, and that the defendants had been fairly tried and justly convicted. We must assume, in other words, that had the trial judge entertained any reasonable doubt as to whether guilty verdicts should have been returned, he would have granted a new trial. In this regard it must be borne in mind that notwithstanding his remarks concerning the testimony relative to claimed brutality and threats on the part of the police officers, the trial judge stated unequivocally, ‘I have no criticism of the verdict.’ Furthermore, as aptly stated by the court, ‘They, the jury, rightly perhaps, disregarded the confessions and even admissions and still arrived at the result.’ The instructions not being before us and no claim being urged that they were not full, complete and correct, we too must assume that the jury was correctly instructed upon its duty not to consider the confessions of appellants if they believed such confessions were obtained by force, violence or threats, and were, therefore, not freely and voluntarily made.

We have now specially considered the more important points urged for a reversal, and, as must be apparent, have been able to discover no sound legal reason for disturbing the result.

The judgments are and each of them is therefore affirmed.

WHITE, Justice.

YORK, P. J., and DORAN, J., concur.