PEOPLE v. Lowell Lyons, Defendant and Appellant.* (1957)

Appellant was convicted of two counts of receiving stolen property. This is an appeal from the judgment.

The argument on appeal is extensive. Appellant was charged, together with Paul Ferguson and James Pope with receiving stolen property. The case against Pope was dismissed on motion of the People, and Pope became a witness for the prosecution. Six counts were alleged. Count IV was dismissed. The jury returned a not guilty verdict as to Counts I, II and III, and guilty of receiving stolen property as charged in Counts V and VI. Ferguson pleaded guilty to Count II. Incidentally, Pope was charged with four prior convictions.

The offense involved an alleged theft of a watch and a fur coat. It was charged that the defendants conspired to commit burglary and receive stolen property. Count V referred to the watch and Count VI to the fur coat.

The case against codefendant Pope was dismissed with the obvious understanding that he would testify for the prosecution. The indictment against appellant, Ferguson and Pope, charged Pope with four prior convictions of burglary and a prior conviction of grand theft against Ferguson. Ferguson pleaded guilty to Count II.

Appellant contends, as recited in respondent's brief:

‘1. That the testimony of the accomplices was not corroborated as required by Penal Code Section 1111.

‘2. That the verdict of not guilty of conspiracy to commit burglary and to receive stolen property was inconsistent with the verdicts of guilty of receiving stolen property, inasmuch as two of the overt acts of the conspiracy charged were possession of stolen articles, the receiving of which was charged, and of which the appellant was found guilty.

‘3. That the Court erred in excluding evidence of the bias and prejudice of Officer Hooper.

‘4. That the District Attorney committed prejudicial error in his arguments to the jury, and in his questioning of the appellant.

‘5. That the testimony of coerced witnesses was used, and the appellant was thereby denied the due process of law.

‘6. That the Court erred in admitting into evidence the testimony of a witness concerning his service of subpoenas upon Gallo, and his subsequent failure to find Gallo.

‘7. That the Court erred in receiving evidence obtained by the police by means of a secret microphone and recorder in rebuttal.

‘8. That the prosecutor suppressed evidence and thereby denied the appellant a fair trial.

‘9. That the Court erred in allowing the district attorney to read an altered transcript of a tape recording to refresh the appellant's recollection of a conversation after the appellant stated that his recollection needed no refreshing.

‘10. That the Court erred in refusing to instruct the jury that private transactions are presumed to be fair and regular; and that a defendant is presumed to speak the truth, and unless the presumption is destroyed by the evidence, the jury must find that he has spoken the truth; that the testimony of a witness who has been granted immunity should be examined with great care; and that guilt cannot be established by the admissions of the appellant alone.

‘11. That the appellant was denied a fair trial by the actions of armed guards in carrying exhibits to the jury room.

‘12. That the Court erred in denying the appellant's motion for severance.

‘13. That there was a fatal variance between the pleading and proof in Count VI inasmuch as the evidence showed no more than a burglary.

‘14. That the Court erred in its instruction concerning the method to be used in determining the sufficiency of the corroboration of the accomplices.

‘15. That the Court erred in denying the appellant's motion for a new trial because of newly discovered evidence.’

Several of appellant's contentions, hereinafter to be discussed, find support in both law and evidence, and deal with material matters vitally affecting the integrity of the trial. A careful survey of the record leaves no room for doubt the cumulative effect of the errors is highly prejudicial and has resulted in a situation which can only be cured by reversal and a new trial.

whether appellant be guilty or innocent of the crime charged, it is fundamental that every defendant must be accorded a fully and fair trial, regularly conducted in the time honored manner. The laws of evidence and procedure may not be relaxed at the whim of either judge or prosecutor. Mere suspicion is no substitute for the doctrine of reasonable doubt. This is particularly true in cases such as the present, where much of the testimony emanates from the mouth of the defendant's accomplices.

There is no claim on appellant's part that the articles in question were not stolen, or that such articles were not found in the immediate presence of appellant and other defendants. However, excluding the accomplice testimony, nothing save alleged suspicious circumstances, has been offered to supply the corroboration required by Section 1111 of the Penal Code. The appellant cannot be legally convicted unless this statute is satisfied with respect to the elements of the crime charged, receiving stolen property with knowledge of its character. And, even if appellant can be deemed guilty of being a party to the original burglary, this, as pointed out in the briefs, does not necessarily make appellant guilty of the crime now under discussion.

At the time of the arrest, according to officers' testimony, the stolen watch was found in appellant's pocket; appellant is said to have then claimed that the watch had been in his possession for ‘some time’, although, actually, it had only been stolen the day before. This is strongly relied upon by the prosecution, as furnishing adequate corroboration of the accomplices' testimony. The appellant denied making such a statement and it was not otherwise proven. This is a striking example of the alleged corroboration, the sum total of which cannot be deemed to satisfy the requirements of the law.

Neither in this nor in any other case, can the courts countenance any relaxation of the salutary provisions of Section 111 of the Penal Code, which reads: ‘A conviction can not 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.’

Interrelated with the matter of corroboration just discussed, is the appellant's Fifth Assignment of error that the ‘Trial Court caused prejudicial reversible error in excluding evidence of bias and prejudice on the part of Officer Hooper’, who testified, ‘I asked him (appellant) where the watch had come from. He said that it was his watch,—he had had it for some time’, and that appellant said nothing else about the watch. Appellant denied making this statement.

On cross-examination the officer stated that the interrogation of appellant was recorded but the witness did not know whether the portion about the watch was recorded. No record of appellant's alleged statement was ever produced. The question was then asked whether the officer had stated to appellant, ‘You don't like police officers, do you, Mr. Lyons?’ As stated in appellant's brief, ‘the officer stated in reply that he didn't recall making the statement and said he believed appellant stated that. (Later in the trial this witness admitted accusing appellant of anti-police feeling (Rep.Tr. 461, 1 103). Then appellant referred to the People's witnesses * * * Mr. Pope being first, and asked: (Rep.Tr. 322, 1. 1–14). ‘Now, how many times from the 8th of April, 1955, to this day, have you talked to Mr. Pope?’.' This evidence was offered by appellant to show bias and prejudice, but was excluded.)

Since the officer's statement that appellant claimed to have had the stolen watch ‘for some time’, was heavily relied upon by the prosecution as furnishing corroboration of the accomplice testimony, appellant should have been permitted to show any bias, interest or prejudice affecting the witness' credibility. As appellant says, ‘The police witness later admitted he had accused appellant of ‘anti police’ feeling, therefore there was a basis for appellant's belief that the witness was biased and prejudiced. That he had contacted the witness Pope an unusual number of times * * * would go to show that prejudice, and that is exactly what appellant attempted to show.'

In this connection, appellant calls attention to the fact that, ‘Officer Roberts stated Hooper had contacted him after testifying and that he (Roberts) came back to court on the following day and changed his testimony; the court also censored Hooper for going out into the hall during the trial and, admittedly, contacting another witness * * * in defiance of a previous order of sequestration of witnesses.’ In view of the record, and of the importance of the testimony in question, the appellant should have been accorded ample latitude in testing the credibility of the witness Hooper. The error in excluding evidence bearing on such credibility cannot be deemed harmless.

Standing alone, the trial court's refusal to give appellant's requested instruction that private transactions are presumed to be fair and regular, and in failing to instruct the jury that a defendant is presumed to speak the truth, might, perhaps, be deemed harmless error. However, in the instant case where, as hereinbefore indicated, a conviction depends largely upon accomplice testimony nad an alleged statement of appellant is relied upon as furnishing necessary corroboration, it is felt that such an instruction, as requested by appellant, has material value, and upon a retrial of this case, should be given.

It is further argued by appellant that ‘There was a fatal variance * * * in that Court 6 charged the defendant with receiving stolen property when all the proof thereon of necessity supported and established a charge of burglary by reason of the conspiracy element appearing therefrom.’ Count VI charged appellant with having, on April 7, 1955, feloniously received an ermine coat stolen from its owner, Donald Thomas Handy. James Pope, a defendant against whom the charge was dismissed, testified for the prosecution, to having burglarized the Handy home and stolen the ermine coat; that the coat was taken to defendant Dan Rio's apartment and turned over to defendant Ferguson while appellant Lyons was at Rio's apartment with Ferguson.

According to Pope's testimony, there had been an understanding with appellant Lyons and defendant Ferguson, about March 17, 1955, in connection with the handling of property to be stolen by Pope. On the evening of April 7, 1955, Lyons, Ferguson, Pope and Rio met at Rio's apartment and had a conversation concerning the amount of money to be realized from the fur pieces. Either Lyon or Ferguson is said to have taken the furs out of the house; eventually the brown ermine coat was placed in Ferguson's garage. On the morning of April 8, 1955, the coat was taken to one Gallo's place at the Crest Hotel, and Gallo agreed to try and get $1,100 for defendants. Ferguson and Lyons were arrested while transacting this business with Gallo.

There is substantial merit in the appellant's argument that, assuming the truth of the prosecution witnesses, ‘the only logical interpretation * * * is that the defendant Lyons was an active member of a criminal conspiracy * * * which contemplated (1) a stealing by Pope, (2) a disposition of the ill-gotten gains by defendant Lyon and Ferguson, and (3) a division of the proceeds received * * * as among the three of them. This was the enterprise for which the combination had been effected. It had not been completed and was in the process of being diligently prosecuted, according to the testimony, at the time the defendant Lyons and Ferguson were arrested. We contend, therefore, that the verdict of guilty or receiving stolen property as to Count 6 is at fatal variance with the evidence adduced in support thereof.’

Under the most favorable interpretation of the evidence, appellant could only have been guilty, as a conspirator, of the crime of burglary. The alleged conspiracy was still under way with the view of realizing something from the burglary, but at the time of appellant's arrest, had not been completed. The appellant had not, as yet, received the stolen property although the same may have been then in appellant's presence and hence could not be convicted of that crime. Evidence tending to show appellant's activity in the conspiracy to commit burglary and share in the proceeds, cannot be deemed adequate proof of receiving stolen property, a crime having distinct and different elements. And, as appellant states, a defendant can hardly be convicted of ‘receiving stolen property from himself’.

The other assignments of error advanced by appellant are either without merit or must be considered harmless in respect to the defendant's substantial rights. The errors hereinbefore discussed, however, and the combination thereof, cannot, even under the most favorable interpretation, be deemed other than prejudicial in nature, and entitle the appellant to a new trial.

The judgment and the order denying defendant's motion for a new trial are, and each is reversed, and the cause remanded for a new trial.

DORAN, Justice.

WHITE, P. J., and FOURT, J., concur.