Petition — Blake v. California
Supreme Court brief1976
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{ MAY 8 1976 |
Ju the Supreme Contrt nODRK JR, CLEN
OF THE
Anited States
OcToOBER TERM, 1975
No 75-1634
—_——
Rircnie Lee Bake,
Petitioner,
Vs.
“THe PropLe oF THE STATE OF CALIFORNTA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
to the Supreme Court of the State of California
Ropert C, Dunn,
812 Sixth Street, P.O. Box 996
Eureka, California 9550)
Telephone: (707) 442-1776,
Attorney for Petitioner,
PERNAU - WALSH PRINTING CO. - 562 MISSION STREET - SAN FRANCISCO. CA 94108
Subject Index
Page
RC MED on. secon aneedeadausnnedtnceidsaeawadaen 1
DL 1 sched adetnassanasseeseksebteedseuauaanasaee 2
Ds CD oot dneddes saekeeh sieadeles tieensan 2
Constitutional provisions involved ...............e-eeeee: 4
ns ae dd ek end wads O480KRRRERnES 4
GS GID 6.66. occccccsdcvescvccosiécnse 5
DT dudetuandldsd dbaudsinendnddRadnekd:<eanaee 6
Reasons for granting the Writ ......cccccccccccecvccccces 8
I. The decision below in allowing the felony-murder
instruction was an unforeseeable and retroactive ex-
pansion of the statute which conflicts with the due
process principles enunciated in Bouie v. City of
ae dace i Mile led ah hla lila eal el 8
II. Failure to provide eyewitness pretrial statements and
information of apprehension of an eyewitness on a
drug charge denied the petitioner his right to be in-
formed of the nature of the charges against him .... 12
III. Allowing Mathew James to testify denied the peti-
tioner the ability to confront his accusers .......... 17
IV. The denial of petitioner’s motion for a change of venue
resulted in the denial of a trial by a fair and im-
CUE BU ok cc cccciccccceseccscocecsstedeosese 21
POS PEP PE OE oe Pr re RP ee RD eT eye 26
Table of Authorities Cited
Cases Pages
Argersinger v. Hamlin (1972) 92 S.Ct. 2006, 407 U.S. 25,
25 5 & eer er re rer ar ror te ae he 12
Bizup v. People, 150 Colo. 214, 371 P.2d 786 (1962) ..... 11
Bouie v. City of Columbia (1964) 378 U.S. 347 ......... 8,12
Clifton v. Superior Court (1970) 7 Cal.App.3d 245, 86 Cal.
2 PPererrrr err? rrrrrrrTrer rir tre er 22
Dunean v. Louisiana (1968) 88 S.Ct. 1444, 391 U.S. 145,
et Fo arr ere ee ee 21
Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d
Pee: GED a ekensdelvcnanetaeenss ssannteuesbenuseress 20
Giglio v. United States (1972) 92 S.Ct. 763, 405 U.S. 150,
Se SEES ccc deccccinesudaseedceeuneusenesueuss 16
Green v. California, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.
ee See CED: cindcadeuuedudecnyeauenanaeueceasouess 20
Irvin v. Dowd (1961) 81 S.Ct. 1639, 366 U.S. 717, 6 L.Ed.
EE 40-bs.evie'cbcbubeneccdenseueeueecanebinesesontess 21
Mattz v. Arnett (1973) 93 S.Ct. 2245, 412 U.S. 481, 77
i UE « ccuucaeas beng akeded dade alee decease 21
Moore v. Illinois (1972) 92 S.Ct. 2562, 408 U.S. 786, 33
L.Ed.2d 706, rehearing denied, 93 S.Ct. 87, 409 U.S.
ee, cee ED’ 2 ouuvenekecectsees eos eboendeens 12,13
Murphy v. Florida (1975) 95 S.Ct. 2031, 421 U.S. 794, 44
Di GU ticucckeectevevacdenGiesceseuedets antes 21
Parker v. Gladden (1966) 87 S.Ct. 468, 385 U.S. 363, 17
Di Go cs augk su ckudee ce eeee es decevieescdetiens 24
Payne v. Nevada (1965) 406 P.2d 922 ................+. 11
People v. Brown, 29 Cal.2d 555, 176 P.2d 929 ........... 10
People v. Cartier (1960) 54 Cal.2d 300, 5 Cal.Rptr. 573,
ee EE es Cun eeuébnd otek isseuneraeaeuesavascutaes 10
People v. Dorman, 28 Cal.2d 846, 172 P.2d 686 ........... 10
People v. Hall (1973) 34 Cal.App.3d 834, 110 Cal.Rptr.
at - -cnccackch nase eksneus eds dekeeesreiesewdecbunuen 10
People v. Hutchinson (1969) 71 Cal.2d 342, 78 Cal.Rptr.
ek ee Ee TE 6.0 40645406 de radekeeeeeteeeedaniens 25
People v. Nixon (1949) 33 Cal.2d 688, 203 P.2d 748 ..... 10
TABLE OF AUTHORITIES CITED iii
Pages
People v. Podder (1974) 10 Cal.3d 750, 111 Cal.Rptr.
re oe at CUR ek ebb une ceauneeeeeeee 15
Pointer v. Texas, 380 U.S, 400, 85 S.Ct. 1065 (1965) .... 19
Remmer v. United States (1954) 74 S.Ct. 450, 347 U.S. 227,
Se EE ue nase dis éedeues wede bet ectan 24
Rice v. Vincent, 491 F.2d 1326 (2nd Cir. 1974) cert. denied,
95 S.Ct. 144, 419 U.S. 880, 42 L.Ed.2d 120 ............. 13, 16
Rose v. State (5th Cir. 1973) 474 F.2d 1150, rehearing
denied March 12, 1973, 94 S.Ct. 141, 414 U.S. 850, 38
i ee ee dee tee seen bees coaetun 16
Short v. United States (1973) 486 F.2d 561, 21° Ct.Clms
alr ta a ca at as ea es 21
Turner v. Louisiana (1965) 85 S.Ct. 546, 379 U.S. 466, 13
READE a Aegon SS NN A Rl ACN Re eh yr Bal OEE Bm 24
United States v. Owens (8 Cir. 1969) 415 F.2d 383 ...... 12
Codes
Evidence Code, Section 1150 ............. ccc ceccccccccs 25
Health and Safety Code:
RES ae SE gr ee ee 8
a a I ee ee 8
Penal Code:
a a 2
Ne a ERS SES Se aA en es oe Se 3, 8
RA Ee a RCC Re 2
I a a 8
DMT ccasuididdveisuvussedetdsdsee duseuteckes 2,9
anal ERT RY er eRe ee nae ee ee ee 24
Constitutions
United States Constitution:
PE ove cen cebduneedieddwensesdéwesscesas 4,8
TS aE ef ae LS 4
ee Se. . lccnecccceesecectuaes 8, 12,19
iv TABLE OF AUTHORITIES CITED tay
Statutes Page
38 USC, Bes. IGBTS) ... vecccccccdstccececucueseeasanen 2
Texts
we 2 eer 24
43 ALR B8 SBT... occvcecsececescuceuaunss eee 24
GB ALR 2466... ccccccccvecvesceeseeeeunenee 24
13 Hastings Ld. GB... cvccccccvccccoceescsseneuenenes 24
Ephram Margolin, 56 Cal. Law Rev., Toward Effective
Criminal Discovery in California: a Practitioner’s View,
BD. 10D 2. ccccccccccccccccesesucsscssecseeeeeeeeueues 17
5 Whartem S06 ....cccccccccccccescceshesseeneeennnen 24
Witkin, California Crimes, pp. 74-77, “Single Act or Trans-
actionn,” §670-746 ..ncccvecceveccsceccseqstesueeeuwunl 10
In the Supreme Court
OF THE
Anited States
Octosper TERM, 1yi5
No.
thee Ritcuie Lee Brake,
; Petitioner,
vs.
THE PEOPLE OF THE STATE OF CALIFORNIA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
to the Supreme Court of the State of California
The petitioner, Ritchie Lee Blake, prays that a writ
of certiorari issue to review the opinion and judg-
ment of the Court of Appeal of the State of Cali-
fornia rendered in these proceedings on October 14,
1975.
OPINIONS BELOW
The opinion of the Court of Appeal of the State
of California, First Appellate District, Division One,
.. mreported, appears at Appendix B, infra. The Su-
preme Court of the State of California denied a
2
petition for a hearing and said denial appears at
Appendix A.
JURISDICTION
The order denying the petition for a hearing was
entered on December 24, 1975. (See Appendix A).
On March 12, 1976, petitioner applied for an exten-
sion of time within which to file this Petition for a
Writ of Certiorari. On March 15, 1976, Associate
Justice William H. Rehnquist ordered that the time
for filing this Petition be extended to and including
May 10, 1976. The jurisdiction of this Court is in-
voked under 28 USC §1257(3).
QUESTIONS PRESENTED
The District Attorney of Humboldt County, State
of California, presented the matter of the death of
Mr. Jerry Marshall to the Humboldt Grand Jury
which returned an indictment against the petitioner,
Ritchie Lee Blake, charging him with First Degree
Murder (California Penal Code §187), Kidnapping
(California Penal Code §207) and First Degree Bur-
glary (California Penal Code §459) on March 21,
1973. The petitioner was tried by a jury in Humboldt
County and was found guilty of all three charges.
The questions arising out of said conviction are:
aw - wie ase
en a
3
1. Whether the action of the Trial Court in in-
structing the jury that it could find the petitioner
guilty of First Degree Murder based on California’s
Felony Murder rule (California Penal Code §189)
where the felony alleged was burglary and the death
occurred several miles from the site of the burglary
and at a later time was an unforeseeable and retro-
active expansion of narrow and precise statutory lan-
guage and thus violative of the due process clause of
the 14th Amendment.
2. Whether the failure of the prosecution to sup-
ply the petitioner with pretrial statements of eye-
witnesses until these witnesses testified and the fail-
ure to provide the petitioner with information that
one of these witnesses was stopped by Humboldt
County Sheriffs for possession of marijuana during
the course of the trial denied the petitioner the right
to be informed of the nature of the charges against
him.
3. Whether the Trial Court’s allowance of Mathew
James to testify when Mr. James stated that as a
result of a severe head injury he had no recollection
of the incident in question unless he studied his prior
statements, the Court’s subsequent instruction that he
study these statements, and his subsequent studying
and coaching by the prosecution denied the petitioner
the ability to confront his accusers,
4. Whether the Trial Court’s denial of petitioner’s
motion for a change of venue denied petitioner the
right to a trial by a fair and impartial jury.
4
CONSTITUTIONAL PROVISIONS INVOLVED
Constitution of the United States, Article I, §10:
“No State shall ... pass any ... ex post facto
Pee
Constitution of the United States, Amendment
XIV, $1:
“.. nor shall any state deprive any person of
life, liberty or property without due process of
law.”
Constitution of the United States, Aniendment VI:
“In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the
witnesses against him.”
Constitution of the United States, Amendment VI:
“In all criminal prosecutions, the accused shall
enjoy the right . . . to be informed of the nature
and cause of the accusation.”
Constitution of the United States, Amendment VI:
“In all criminal prosecutions the accused shall
enjoy the right ... to a speedy and public trial,
by an impartial jury...”
STATEMENT OF FACTS
Petitioner Ritchie Lee Blake was arrested along
with Mathew James, Gaylord Dowd and Milton Dowd,
and all were accused of the burglary of the Club
Hupa, on the Hoopa Indian Reservation, Humboidt
County, State of California, kidnapping and murder-
ing the janitor of the Club Hupa.
4)
The District Attorney allowed Mathew James, Mil-
ton Dowd and Gaylord Dowd to plead guilty to Sec-
ond Degree Burglary with County Jail time in return
for their testimony against the petitioner.
Testimony of Accomplices
The testimony of these three presented the story
that on January 10, 1973, the petitioner and the wit-
nesses had been drinking whiskey and Coke since the
early afternoon. Just before midnight the petitioner
went to the Club Hupa to obtain more whiskey. He
returned to where the other gentlemen were and in-
formed them the bar was closed, They decided to go
to the club for whiskey nonetheless. They arrived at
the club and found the deceased, Jerry Marshall,
burning trash. The petitioner and Gaylord Dowd
spoke with Mr. Marshall and Gaylord Dowd went
into the opened back door of the Club Hupa and
began removing liquor. He put the liquor in the car
and took the petitioner’s rifle with him. The petitioner
and Milton Dowd removed liquor from the bar. The
petitioner ordered Mr. Marshall into the back seat of
the car and then he and Milton Dowd got into the
car. They drove several miles to the Bald Hills area
and stopped near a “log skid road.” All of the oecu-
pants got out of the car, Gaylord Dowd saw the peti-
tioner raise his rifle, he turned and returned to the
car and he heard a shot. Milton Dowd testified he saw
Mr. Marshall fall and the petitioner approach Mr.
Marshall and then he heard another shot. The pe-
titioner returned to the car carrying a case of beer
and his rifle. He stated that he had killed Marshall.
6
This is the substance of the eyewitness testimony as
to the burglary, kidnapping and first degree murder,
the opinion of the Court of Appeal goes into much
greater detail and is located at Appendix B, pp. ii-vi.
The Trial
The petitioner moved the Trial Court for a change
of venue. The motion was denied and _ petitioner
sought a writ of mandamus from the Court of Appeal
of the State of California, First Appellate District,
in case 1 Civil No, 33330, which was denied, and a
petition for hearing in the Supreme Court of Cali-
fornia was also denied.
The trial commenced on Monday, December 3, 1973.
On Wednesday morning, December 5, 1973, Mathew
James took the stand. He stated that because of a
serious brain injury, suffered in 1967, and the result-
ing brain surgery that followed, his memory was
faulty and he could not remember anything for very
long. Even though the District Attorney’s office had
prepared Mr. James for his testimony, he said that
only after going over something for four or five times
could he remember it. After admonishing him in re-
gard to the provisions of the Penal Code that relate
to perjury, the Court ordered Mr. James to listen to
a reading by District Attorney Investigators and
Sheriff’s Officers of what purported to be his prior
statements and testimony. He also listened to part
of a tape of a polygraph test that had been admin-
istered to him. This lasted from 1:30 to 6:30 in the
evening,
7
This was the first time that the defense discovered
the existence of two statements made by Mr. James
and of the tape recording of the polygraph examina-
tion, These contaiz 2d three varying versions of his
testimony.
Mr. James was called the next morning, but his
memory was not refreshed. The Court ordered him
to stay close by until he was returned to the witness
stand, He spent that day in the District Attorney’s
office by Court order. The District Attorney then put
on Milton Dowd, at which point the defense was in-
formed about the statement Milton had made to a
Deputy District Attorney and an investigator. Later
in the trial the defense discovered that they had also
been denied access to a statement made by Gaylord
Dowd. The Court allowed the prosecution to use these
statements in Court and imposed no sanction upon
the prosecution for its failure to comply with the
Court-ordered discovery.
At the conc'usion of the trial the judge instructed
the jury as to the law on which they should base
their decision. This included a burglary instruction
that “the act of fleeing with the fruits of the bur-
glary to a place of temporary safety and the acts
done in the same continuous transaction to protect
the discovery of said burglary, are all an integral
part of the crime of burglary.” Over objection of the
petitioner the jury was instructed as to the felony-
murder rule, The jury returned a verdict of guilty
against the petitioner as to all three counts,
8
REASONS FOR GRANTING THE WRIT
I. THE DECISION BELOW IN ALLOWING THE FELONY-
MURDER INSTRUCTION WAS AN UNFORESEEABLE AN.
RETROACTIVE EXPANSION OF THE STATUTE WHICH
CONFLICTS WITH THE DUE PROCESS PRINCIPLES ENUN-
CIATED IN BOUIE v. CITY OF COLUMBIA.
In Bouie v. City of Columbia (1964) 378 U.S. 347,
this Court held that the due process clause of the 14th
Amendment. requires that the criminal law must have
existed when the conduct in issue oceurred and that
a judicial enlargment of a criminal law by inter-
pretation in an unexpected manner must not be given
retroactive effect. As the state’s legislature is barred
by the Ex Post Facto Clause (Art. I, $10) from en-
acting such a law this Court held that the Due Proc-
ess Clause bars the State’s courts from achieving the
same end by judicial construction. It is the petition-
er’s position that the courts of the State of California
have, in this case, given an interpretation to the fel-
ony murder rule which goes considerably beyond the
statutory language and establishes a new and much
broader rule of law and that this interpretation was
given retroactive effect.
California Penal Code §189' provides in part that
“all murder which is committed in the perpetration
1All murder which is perpetrated by means of a destructive
device or explosive, poison, lying in wait, torture, or by any other
kinds of willful, deliberate, and premeditated killing, or which is
committed in the perpetration of, or attempt to perpetrate, arson,
rape, robbery, burglary, mayhem, or any act punishable under
Section 288, is murder of the first degree; and all other kinds of
murders are of the second degree.
As used in this section, “destructive device” shall mean any
destructive device as defined in Section 12301 and “explosive” shall
mean any explosive as defined in Section 12000 of the Health and
Safety Code.
9
of or attempt to perpetrate ... burglary ... is mur-
der of the first degree.” A homicide which occurred
during the perpetration or attempted perpetration
of a kidnapping is not included within the First
Degree felony-murder definition.
The Instruction given by the Humboldt County
Superior Court and upheld by the Court of Appeal
and the California Supreme Court is:
“Tf a human being is killed by any one of several
persons engaged in the perpetration of, or at-
tempt to perpetrate, the crime of burglary, all
persons who either directly and actively commit
the act constituting such crime or who knowingly
and with criminal intent aid and abet in its
commission or, whether present or not, who ad-
vise and encourage its commission, are guilty of
murder of the first degree, whether said killing
is intentional, unintentional, or accidental.”
The petitioner objected to the giving of this in-
struction on the grounds that the homicide did not
occur during the perpetration of a burglary as de-
fined by California law.
California Penal Code §459 defines burglary” as
being committed by “Every person who enters any
. Store . . . with intent to commit grand or petit
larceny or any felony .. .” This code section was
2Every person who enters any house, room, apartment, tenement,
shop, warehouse, store, mill, barn, stable, outhouse or other build-
ing, tent, vessel, railroad car, trailer coach as defined by the
Vehicle Code, vehicle as defined by said code when the doors of
such vehicle are locked, aircraft as defined by the Harbors and
Navigation Code, mine or any underground portion thereof, with
intent to commit grand or petit larceny or any felony is guilty of
burglary.
10
enacted in 1872 and has undergone very little change
since that date. Flight from the scene of the crime
is not, and never has been, a part of the crime of
burglary. The Court of Appeal does not state that
burglary includes flight as there is a long line of
decisional law holding that burglary is a fixed locus
crime. Burglary was originally simply a crime against
habitation and was expanded by the legislature to
include other forms of property. Neither escape nor
flight are within the res gestae of burglary.
The Court’s ruling holds that the homicide need
not occur within the res gestae of either the burglary
or the felony which the accused intended to commit
when he entered the store. This is a departure from
the prior law of the State of California. The cases
in the past have held that Homicide is committed
in the perpetration of a felony if the killing and
the felony are parts of one continuous transaction
(People v. Nixon (1949) 33 Cal.2d 688, 203 P.2d 748;
People v. Cartier (1960) 54 Cal.2d 300, 5 Cal.Rptr.
573, 353 P.2d 53.
The killing in this case occurred in the course of
a kidnapping and after the burglary of the Club
Hupa was complete.
A kidnapping and a burglary are not to be econ-
sidered as one transaction under California law (Peo-
ple v. Brown, 29 Cal.2d 555, 176 P.2d 929; People v.
Dorman, 28 Cal.2d 846, 172 P.2d 686; People v. Hall
(1973) 34 Cal.App.3d 834, 110 Cal.Rptr. 440. See also
Witkin, California Crimes, pp. 74-77, “Single Act or
Transactions” §70-74). This ruling has altered the
11
California law in that it no longer requires that the
homicide be committed within the res gestae of either
the burglary or the underlying felony. What ap-
parently is California law now is that the felony-
murder instruction is applicable if there has been a
burglary and during the same night someone who
happened to be at the site of the burglary was killed
by one of the burglars.
The rule of law which existed in California prior
to this decision was also recognized by her sister
states. The Colorado Supreme Court expressed its
rule in regard to felony-murder relying, in part, on
California law in Bizup v. People, 150 Colo, 214, 371
P.2d 786 (1962). It stated:
“*When the homicide is within the res gestae of
the initial crime and is an emanation thereof, it
is committed in the perpetration of that crime
within the meaning of the [felony murder] stat-
ute.’ State v. Turco, 99 N.J.L. 96, 122 A. 844;
People v. Nixon, 33 Cal.2d 688, 203 P.2d 748;
State v. Forequette, 67 Nev. 505, 221 P.2d 404,
128 So.2d 132 (Fla. 1961) ...” (371 P.2d at 789).
The Nevada Supreme Court also stated:
“Faced with the problem of determining when
the underlying felony terminated for the pur-
pose of applying the felony murder doctrine, the
courts have generally spoken in terms of the res
gestae of the crime .. .” (Payne v. Nevada
(1965) 406 P.2d 922.
Though these cases have force or effect on Cali-
fornia law the Bizup v. People, supra, citation does
indicate that the present case is a drastic departure
12
from what other states had interpreted California
law. This California decision is unique in disregard-
ing the res gestae of the crime as the determining
factor of when the underlying felony has terminated.
It is this type of judicial determination that is not
to be applied retroactively under the Bouie v. City
of Columbia, supra, interpretation of the Due Process
Clause of the 14th Amendment. The application of
this new rule of law in this case is retroactive and
inconsistent with the due process clause.
II. FAILURE TO PROVIDE EYEWITNESS PRETRIAL STATE-
MENTS AND INFORMATION OF APPREHENSION OF AN
EYEWITNESS ON A DRUG CHARGE DENIED THE PETI-
TIONER HIS RIGHT TO BE INFORMED OF THE NATURE OF
THE CHARGES AGAINST HIM.
Inherent in even the most narrow view of the Due
Process Clause of the 14th Amendment is the right
to know of adverse evidence and the opportunity to
rebut both its truth and its relevance (United States
vu. Owens (8 Cir. 1969) 415 F.2d 383). This Court
has held the right to pretrial discovery to be applica-
ble to the states through the Due Process Clause and
in the Sixth Amendment’s requirement that a ecrim-
inal defendant be informed of the nature of the
charge against him. (Argersinger v. Hamlin (1972)
92 8.Ct. 2006, 407 U.S. 25, 32 L.Ed.2d 530).
The failure of the prosecution to provide all of the
written statements by witnesses is not always a denial
of due process, however. (Moore v. Illinois (1972)
92 §.Ct. 2562, 408 U.S. 786, 33 L.Ed.2d 706, rehear-
13
ing denied, 93 S.Ct. 87, 409 U.S. 897, 34 L.Ed.2d 155).
Due process is not denied when the information is
of such limited value as there is no reasonable likeli-
hood that even if it were produced when required
that it would have affected the judgment of the jury.
The fact that the evidence was not produced be-
cause of negligence on the part of the prosecution
rather than the intentional suppression of such evi-
dence by the prosecution is not the deciding factor.
(Rice v. Vincent, 491 F.2d 1326 (2nd Cir. 1974)
cert. denied, 95 S.Ct. 144, 419 U.S, 880, 42 L.Ed.2d
120). Certainly, where there is misconduct on the part
of the prosecution there is greater reason to require
a new trial; however, where the evidence denied the
defendant would reasonably have resulted in a different
verdict being returned the conviction must be re-
versed even if the prosecution’s action was only neg-
ligent or passive.
The evidence denied the petitioner here was sub-
stantial. Three pretrial statements made by eyewitness
Mathew James which contained varying accounts of
the alleged burglary, kidnapping and murder were
not turned over to the petitioner at any time prior
to the trial. (Reporter’s Transcript page 217). The
petitioner would have never been aware of the ex-
istence of these statements if the prosecution had not
been forced to use them during the trial to attempt
to refresh Mr. James’ memory as to what occurred.
Up to this point the petitioner did not know the
nature of the accusation against him in that he had
knowledge of only one of the various stories Mr.
14
James had told the prosecution. The prosecution of-
fered no explanation for this failure to provide dis-
covery.
It should further be noted that the failure to pro-
vide the petitioner with these statements was in vio-
lation of a discovery order made by the Superior
Court of the State of California in and for the
County of Humboldt.
There was other discovery that the prosecution,
without explanation, failed to provide the petitioner.
Statements from the other two eyewitnesses, Milton
Dowd and Gaylord Dowd, were kept from the peti-
tioner until they testified. (Reporter’s Transcript
page 429).
At the hearing in the Superior Court on the peti-
tioner’s motion for a new trial two Humboldt County
Sheriff’s officers testified that on January 2, 1974,
an automobile driven by Milton Dowd was stopped
for a traffic infraction (Augmented Reporter’s Tran-
script page 25). The officers searched the automobile
and found marijuana in the automobile. Mr. Dowd’s
sister, Gloria Vigil, also a witness for the prosecution
in the case against the petitioner, was called in order
that she could retrieve Mr. Dowd’s automobile. The
officers cited Mr. Dowd for a traffic violation and
allowed him to leave with Mrs. Vigil.
An integral part of the petitioner’s defense was
that through the use of drugs and alcohol on the
night in question the petitioner had a diminished
capacity which under California law can negate each
essential element which must be found prior to a
15
finding of malice necessary for a conviction for first
degree murder without the benefit of the felony mur-
der doctrine (People v. Podder (1974) 10 Cal.3d 750,
111 Cal.Rptr. 910, 518 P.2d 342). The Superior Court
instructed the jury as to this doctrine (Clerk’s Tran-
script page 73).
The prosecution and especially the eyewitnesses,
Mathew James, Milton Dowd and Gaylord Dowd, had
indicated that aleohol was used by them the night
of the burglary, and evidence of the use of marijuana
was introduced to the jury. The discovery of mari-
juana on one of the prosecution’s eyewitnesses dur-
ing the course of the trial would have substantially
aided the petitioner in his defense of diminished
capacity as it tends to indicate the frequency of use
of that drug by those who participated in the bur-
glary of the Club Hupa. The petitioner did not dis-
eover this until after the verdict was returned.
At the hearing on the petitioner’s motion for a
new trial the officers testified that they told no one
in the Sheriff’s Office or in the Office of the District
Attorney about the discovery of marijuana. The offi-
cers utilized their rights against self-incrimination
and refused to testify as to any aspect of this stop
except to state that such a stop was made (Reporter’s
Augmented Transcript, Officer Deaner, p. 28, line 8,
and Officer Hughes, p. 28, lines 17-18, p. 29, line 4).
From the population of Humboldt County, approx-
imately 104,000, and the limited news media (see Ap-
pendix B, p. xiii) it can be assumed that two members
of the Sheriff’s Office were well aware that Mr. Mil-
16
ton Dowd was an essential prosecution witness in a
major felony case. This was a deliberate and unjusti-
fied denial of evidence which was properly discov-
erable by the petitioner.
This Court has held that a prosecution office is a
single entity, and what is known to one prosecutor
is imputed to all the members of the office. (Giglio v.
United States (1972) 92 S.Ct. 763, 405 U.S. 150, 31
L.Ed.2d 104. This has been extended to include the
area of discovery (Rice v. Vincent, supra).
This Court has never held, however, that the sin-
gle entity rule should apply to the police authorities.
(Rose v. State (Sth Cir. 1973) 474 F.2d 1150, re-
hearing denied March 12, 1973, 94 S.Ct. 141, 414 U.S.
850, 38 L.Ed.2d 98). Where there has been deliberate
and unjustified activity by the police authorities
which has prejudiced the criminal defendant and
has denied the criminal defendant due process there
should be a retrial of the matter in order to mitigate
the effects of the police misconduct. The fact that the
misconduct was perpetrated by police officers on pa-
trol should not have any bearing on the outcome. They
were acting as officers of the State and have delib-
erately denied the petitioner his due process.
In conclusion, the prosecution and the police both
failed to provide the petitioner with the information
required by both the Due Process Clause of the 14th
Amendment and the Superior Court’s discovery or-
der. Because of this denial there is a reasonable likeli-
hood that if discovery had proceeded as intended the
17
jury’s verdict would have been different. The impo-
sition of sanctions against the prosecrtion for failure
to provide discovery is the only manner in which the
courts will ever be able to insure that the prosecution
will make a sincere effort to provide the discovery.
The Superior Court had the ability to grant a con-
tinuance after the five pretrial statements of the eye-
witnesses were made available to the petitioner or
grant a new trial when the deliberate coverup of Mr.
Milton Dowd’s possession of marijuana came to light.
However, Trial Courts are reluctant to and have con-
sistently failed to provide any sanctions against dila-
tory prosecutors. (Toward Effective Criminal Dis-
covery in California: a Practitioner’s View, Ephram
Margolin, 56 Cal. Law Rev. 1040). This important
right needs the imposition of some remedy when it
is denied. As this is the Court which has provided for
the right, this should also be the source of the remedy
when it is denied a criminal defendant.
Ill. ALLOWING MATHEW JAMES TO TESTIFY DENIED THE
PETITIONER THE ABILITY TO CONFRONT HIS ACCUSERS
Mathew James had suffered a very serious head in-
jury in an automobile accident in 1967. He was un-
conscious for a month following the accident and had
brain surgery to alleviate a blood clot. As a result,
he presently has a plate implanted in his skull and
he continues to suffer from headaches and dizziness
18
and his memory is impaired. (Reporter’s Transcript
pages 212, 213 and 469).
When initially called by the prosecution to testify,
Mr. James stated:
“T can’t remember since I had a head injury in
a car accident, and its been so long ago I don’t
hardly remember, ever since I had that car acci-
dent I can’t hardly—I can’t remember...
“T can only remember something if I study it and
go over it four or five times, and get it in my
head.”
(Reporter’s Transcript page 180).
Later, in the judge’s chambers, he informed the
Court that:
“Well, I can’t remember, if I studied it, ge over it,
T get it in my head.”
(Reporter’s Transcript page 191).
Under Order of the Court Mr. James was read what
purported to be his earlier statements by members of
the Sheriff’s Office and the District Attorney’s Office.
This occurred from 1:30 to 6:30 on December 5, 1973
(Reporter’s Transcript pages 202-203).
The following morning Mr. James was presented
in the judge’s chambers to see if his memory had heen
refreshed. The District Attorney asked if he remem-
bered his statement to the police and if what was read
to him was in fact that statement. Mr. James stated:
“T ouess: T don’t know, because T can’t remember
what happened.”
(Reporter’s Transcript page 216).
19
Next Mr. James was asked if the preliminary ex-
amination transcript was true. Mr. James stated:
“Well, I don’t know; I guess, like I said before.”
Then the District Attorney asked if the tape re-
cording was true and if Mr. James remembered the
interview ; to which Mr. James stated:
“T guess.”
(Reporter’s Transcript page 217).
When Mr. James did retake the stand he was not
testifying from his memory of January 10 and 11,
1973, but of what he had been read and forced to
memorize.
By allowing Mr. James to thus testify the peti-
tioner was limited to cross-examining him as to what
the prosecution had had him memorize. The petitioner
could not cros-examine Mr. James as to what actually
occurred on January 10 and 11, 1973, but was con-
fined to what the prosecution had recorded as his
earlier statements.
The right to cross-examination is fundamental to
the criminal justice system and is obligatory on the
states by the Due Process Clause of the 14th Amend-
ment (Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065
(1965) ).
In Pointer v. Texas, supra, this Court held that the
introduction of the transcript from the preliminary
examination where the defendant did not have the
opportunity to cross-examine the witness denied the
defendant his right to confrontation and the convic-
20
tion was reversed. The statements read to Mr. James,
and the statements which he studied were not taken
down originally under circumstances which afforded
the petitioner an opportunity to cross-examine Mr.
James. This was the source of Mr. James’ testimony,
not his independent recollection of events. As the pe-
titioner did not have the ability to cross-examine Mr.
James when he made these statements he was, like
Pointer, denied the right of confrontation.
If the statements themselves were to be introduced
into evidence a foundation would have to be laid as
to each statement. No foundation was laid by the
prosecution. The jury was never informed that Mr.
James was testifying from memorized statements but
was misled into believing he was testifying from his
independent recollection of the events of January 10
and 11, 1973. This violated the purpose of the Con-
frontation Clause as stated in Justice Steward’s opin-
ion in Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210,
220, 27 L.Ed.2d 213 (1970) quoting from Green v.
California, 399 U.S. 149, at 161, 90 S.Ct. 1930, 26
L.Ed.2d 489 (1970), “a practical concern [of the Con-
frontation Clause is] for the accuracy of the truth
determining process in criminal trials by assuring
that ‘the trier of fact [has] a satisfactory basis for
evaluating the truth of the former statement.’ ”
The trier of fact had a false basis upon which to
evaluate the truth of Mr. James’ testimony and since
Mr. James was testifying from memorized statements
which he could not remember making, the petitioner
was prevented from testing the accuracy of these
21
statements. It is for these reasons that petitioner as-
serts the violation of the Confrontation Clause and
the denial of Due Process and requests this Court to
grant a Writ of Certiorari to review the ruling in
this matter.
IV. THE DENIAL OF PETITIONER’S MOTION FOR A CHANGE
OF VENUE RESULTED IN THE DENIAL OF A TRIAL BY A
FAIR AND IMPARTIAL JURY.
In Duncan v. Louisiana (1968) 88 S.Ct. 1444, 391
U.S. 145, 20 L.Ed.2d 491, this Court held that right
of a criminal defendant to a trial by a fair and im-
partial jury was obligatory on the states.
The Due Process Clause of the 14th Amendment
requires that the criminal defendant be tried by a
jury panel which is both impartial and indifferent to
the outcome. (Jrvin v. Dowd (1961) 81 S.Ct. 1639, at
1642, 366 U.S. 717 at 722, 6 L.Ed. 1961; Murphy v.
Florida (1975) 95 8.Ct. 2031, 421 U.S. 794, 44 L.Ed.
2d 589.
In the Irvin v. Dowd, supra, decision this Court
found that where the setting of the trial was inher-
eatly prejudiced the criminal defendant would be
denied due process if venue-were not changed to a
place which was not inherently prejudicial.
Humboldt County, the place of this trial, is a rural
county and the site of the largest Indian reservation
in the State of California. (See Mattz v. Arnett
(1973) 93 S.Ct. 2245, 412 U.S. 481, 77 L.Ed.2d 92,
and Short v. United States (1973) 486 F.2d 561, 212
Ct.Clms 870). The burglary was committed at the
22
Club Hupa, the first liquor store or bar ever allowed
on the reservation. There was considerable evidence
introduced concerning the consumption of alcohol and
drugs by the petitioner, a resident of the Hoopa Res-
ervation and a member of the Hupa Tribe.
The California Court of Appeal has held that it was
impossible to impanel an impartial jury in Humboldt
County in a first degree murder case where the pub-
licity was similar to that of the petitioner’s case
(Clifton v. Superior Court (1970) 7 Cal.App.3d 245,
86 Cal.Rptr. 612). The defendant in the Clifton case
was not a native American but was rather a member
of a local motoreycle club.
The climate in the community against the peti-
tioner is evidenced in the record at least in three
separate instances. There was an apparent attempt at
the intimidation of Milton Dowd and Gaylord Dowd
which required the Court to instruct the Sheriff that
“if he needs more assistance down here, to have the
Sheriff clear out the hallways and make sure that
nobody is intimidating these witnesses out in the cor-
ridor.” (Reporter’s Transcript page 294). Secondly,
the defense counsel was forced to ask the Court for
an order halting intimidation being carried on by the
Sheriff’s Office against defense witnesses.
The third instance should, in itself, require the
reversal of the conviction. Margaret D. Hooker stated
in an affidavit filed by the District Attorney in oppo-
sition to the petitioner’s motion for a new trial:
“During the month of January, 1974, I was
approached by a male person whose name is not
23
known to me, who ventured an opinion that
defendant Ritchie Lee Blake wus guilty, that it
was common knowledge among the school chil-
dren of the Hoopa area that Blake had acknowl-
edged his responsibility.” (Italics added).
(Clerk’s Transcript page 169)
She did not make this communication known during
the trial when an alternate could have replaced her.
This came to the attention of the Court in the Dec-
laration of John D. Kinones, filed by the appellant.
Mr. Kinones was also a juror in this matter and had
overheard Mrs. Hooker state, after the verdict had
been rendered, that “she knew something about this
ease that would turn around the whole trial.” (C.T.
163-164).
The appellant moved for a new trial based on Mrs.
Hooker’s reception of information that Ritchie Lee
Blake “had acknowledged his responsibility” and that
she considered this information to be of such value
that it “would turn around the whole trial.” This
motion was heard on March 29, 1974 before the Hon-
orable D. H. Wilkinson, Judge of the Superior Court
of the State of California, County of Humboldt, and
the Court found that “there was no misconduct on
the part of the jnror, Mrs. Hooker, or any other
juror.”
Mrs. Hooker had been informed of an alleged con-
fession made by the appellant and that even the school
children in her own community of Hoopa, knew the
appellant was guilty.
24
Mrs. Hooker had, as all jurors had in this matter,
been continually admonished that she should not
speak with anyone in regard to this eriminal case.
Under Penal Code §1120, she was required to inform
the Court of the knowledge that she had aequired. As
a matter of common sense, a juror who is informed
of an alleged confession made by the defendant should
inform the judge of the reception of such informa-
tion.
When a juror receives outside information in
regard to a criminal case there is jury misconduct
and this raises a rebuttable presumption that the
defendant has suffered prejudice.
“In a criminal ease, any private communication,
contact or tampering directly or indirectly, with
a juror during a trial about the matter pending
before the jury is, for obvious reasons, deemed
presumptively prejudicial, if not made in pursu-
ance of known rules of the court and the instrue-
tions and directions of the court made during
the trial, with full knowledge of the parties.”
Remmer v. United States (1954) 74 S.Ct. 450,
451, 347 U.S. 227, 98 L.Ed. 654. See also 13
Hastings L.J. 432; 5 Wharton 304; 22 ALR 103;
62 ALR 1466; 41 ALR 2d 227.
This standard has been held applicable to the states
as to officers in charge of jurors in Turner v. Loui-
siana (1965) 85 S.Ct. 546, 379 U.S. 466, 13 T..Ed.2d
424 (overruling a decision by the Louisiana Supreme
Court) and in Parker v. Gladden (1966) 87 S.Ct. 468,
385 U.S. 363, 17 L.Ed.2d 420 (overruling a decision
by the Oregon Supreme Court). In Z'urner, supra,
25
this Court abandoned the test of actual prejudice in
cases involving the officers in charge of jurors, and
held such misconduct is prejudicial per se.
Although this does not involve any comments by
officers of the Court the rule of law both under state
law and Federal Constitutional guarantees: Where
there has been communication with a juror about a
matter presently before the jury there is a rebuttable
presumption of prejudice.
The Trial Court had before it no evidence that
could rebut this presumption. Statements of the effect
that the additional information had upon the reason-
ing of Mrs. Hooker is not admissible evidence under
the rule, People v. Hutchinson (1969) 71 Cal.2d 342,
349, 78 Cal.Rptr. 196, 200, 455 P.2d 132, 136. It was
held there that no evidence is admissible to show the
effect of such statements under Evidence Code §1150.
Thus we have a rebuttable presumption of prej-
udice with no evidence to contradict it. Hence, any
presumption of prejudice becomes conclusive rather
than rebuttable.
Hence this Court is urged to grant the writ of
certiorari to review the California Court’s holding
which found no misconduct and no prejudice to the
petitioner.
As to the issue of the change of venue, all of these
difficulties would have been avoided if the trial had
taken place not tainted by the racial prejudices
against native Americans as in Humboldt County and
not exposed to the publicity which a trial of this
magnitude generates in a small rural community.
26
CONCLUSION
For these reasons, a writ of certiorari should issue
to review the judgment and opinion of the Court of
Appeal for the State of California.
Dated, May 7, 1976.
Respectfully submitted,
Rosert C, Dunn,
Attorney for Petitioner.
(Appendices Follow)
APPENDICES
Appendix +“ A”
Clerk’s Office, Supreme Court
4250 State Building
San Francisco, California 94102
Dee. 24, 1975
Received
Dee. 29, 1975
Robert C. Dunn
Attorney at Law
I have this day filed Order
Hearing Denied
In re: 1 Crim. No. 13249
People
VS.
Blake
Respectfully,
G. E Bishel
Clerk
Appendix “BRB”
(NOT TO BE PUBLISHED IN OFFICIAL REPORTS)
In the Court of Appeal
State of California
First Appellate District
Division ONE
1 Crim. No. 13249
(Sup. Ct. No. 7075)
THE PEOPLE OF THE STATE OF CALIFORNIA, )
Plaintiff and Respondent,
vs. :
RitcHie LEE BLAKE,
Defendant and Appellant. 1
[Filed Oct. 14, 1975]
OPINION
Defendant appeals from the judgment upon a con-
viction of murder in the first degree (Pen. Code,
§187, robbery in the first degree (Pen. Code, § 211)
and burglary in the first degree (Pen. Code, § 499).
None of the assignments of error has merit. We there-
fore affirm the judgment.
Facts
On January 12, 1973, the Humboldt County Sher-
iff’s Office was informed by Arnold M. Ferris, man-
ager of the Club Hupa and Club Hupa Liquors that
Jerry Marshall was missing. Marshall was employed
by Ferris as part-time janitor. Marshall often times
performed his tasks after the bar had closed. He was
retarded due to a disease he had contracted in infancy
and was deaf in one ear due to an automobile acci-
dent. Marshall’s body was found on January 22, 1973,
by members of the Sheriff’s office.
In the afternoon of January 10, 1973, Milton Dowd
(hereinafter “Milton”), Matthew James and defend-
ant drank whiskey and coke at defendant’s house.
Some time later they got into James’ car. Defendant
brought a .22 caliber rifle with him. The three men
went to the Club Hupa where they purchased more
whiskey. They then drove around the area and
started consuming the whiskey and coke they had
purchased. Later that evening the three men went to
the home of Milton’s sister and brother-in-law, Mr.
and Mrs. Vigil. At the time they arrived the three
men had consumed approximately one-half of the
bottle of whiskey they had purchased. Gaylord Dowd
(hereinafter “Gaylord”), Milton’s brother, and Scott
Weber were at the Vigil residence when the three
men arrived. At ahout midnight defendant left to
purehase more whiskey but returned 15 or 20 minutes
later and told the others that the bar was closed.
Defendant suggested going to the Club Hupa to obtain
more whiskey.
iv
Defendant, Milton, Gaylord and James went to
the Club Hupa in James’ car. James parked his car
in the rear of the Club Hupa. Marshall was outside
burning trash. The back door of the Club Hupa was
open. Defendant and Gaylord got out of the vehicle
and spoke to Marshall. Gaylord then went into the
Club Hupa and began removing liquor from the
premises. He did not offer to pay for any of the
liquor. Marshall approached Gaylord, who pushed him
away with his foot. Gaylord put the liquor in the car
and at that time took defendant’s rifle from him.
Defendant and Milton entered the bar several times
and took bottles of whiskey and cases of Coor’s beer.
While these events were taking place James remained
in the car.
Gaylord handed the rifle to defendant and ordered
Marshall to get into the back seat of the car. Gaylord
entered the car and sat in the back seat. Defendant
shut and locked the hack door of the club. He and
Milton got into the front seat of the car and James
drove to the Bald Hills area. The car was stopped on
Marshall Road and all the occupants got out of the
ear.
Milton retrieved some of the beer from the trunk.
He was assisted by Marshall. They carried the beer
down “log skid road.” Defendant walked behind Mil-
ton and Marshall, carrying the rifle. Gaylord was
hehind defendant. James moved the car a few feet in
order that the headlights would point in the direction
of “log skid road.” Milton left the road to hide the
beer in the brush. At about this time Milton heard
Vv
his brother, Gaylord, shout at him and he also heard
a shot.
Gaylord saw defendant raise his rifle, at which
point Gaylord said to defendant “Hey, my brother is
out there.” Gaylord turned and started back toward
the car when he heard a shot. As Milton was running
back toward the car he saw Marshall fall to the
ground and then saw defendant approach from a dark
area to the side of the road. Defendant walked in the
direction of Mars’ »ll and then Milton heard another
shot.
James testified to the above episode as follows: He
saw defendant kneel and aim his rifle. Gaylord then
yelled at his brother to come hack te the car. Next
James heard two shots and saw Marshall fall to the
ground. He saw defendant walk toward Marshall and
shortly thereafter heard two more shots.
Defendant returned to the car carrying a case
of beer and his rifle. He stated that he had killed
Marshall to prevent him from going to the police.
Defendant further stated that he would “take the
rap” for the killing.
James drove from the Bald Hills area to Tish Tang
Road where all the liquor except a few bottles of
whiskey was put in the brush. The four men decided
it was best to leave town and so at approximately
3:00 a.m. they went to the Vigil’s residence where
they siphoned gas from the truck of defendant’s
brother. They drove to Eureka where they went to
Clarke’s Motel. Milton aroused the manager around
5:00 a.m. and rented a room with accommodations
vi
for four people for $10.50. The four men remained
in the motel room until 10:00 or 11:00 a.m. the next
morning. That night they drove back to Hoopa and
went to their respective homes. A few days after the
above incident Milton, James and defendant drove
to the Bald Hills area, but left when a dog started
to bark.
Defendant did not testify on his own behalf.
Pretrial Statements
Defendant argues that he was denied a fair trial
because of the failure of the prosecutor to supply him
with pretrial statements taken from James, Milton
and Gaylord. The record discloses that defendant
made a motion for discovery. The record also reflects
that defense counsel was not given these statements
prior to trial but that he did receive them during
trial. Defendant argues that the three pretrial state-
ments made by James contain three versions of the
events surrounding the commission of the crimes
charged. He does not contend that the statements
given by the Dowd brothers are at variance or that
they are inconsistent with other statements or with
their testimony at trial.
“As a general rule, a defendant in a eriminal case
may, for purposes of impeachment, inspect the state-
ments or recorded conversations of any witness whom
the prosecution intends to call at trial.” (Joe Z. v.
Superior Court. 3 Cal.3d 797, 805.) The record reflects
that at the trial James had difficulty remembering
the events of the evening in question. Since his testi-
vii
mony was already under attack it is doubtful that
the defense would have been materially aided in dem-
onstrating that James’ prior statements were incon-
sistent with each other. As respects the statements
given by the Dowd brothers it is not indicated by
defendant how or in what manner their statements
were beneficial to defendant. In any event defendant
has failed to show that he was prejudiced in the
preparation of the case by reason of the late disclo-
sure of the statements. (People v. Cohen, 12 Cal.App.
3d 298, 354.)
In People v. Ruthford, 14 Cal.3d 399, 406, the Su-
preme Court held that in a criminal case the prose-
cution must disclose to the defendant all favorable
substantial material evidence relating directly to guilt,
punishment, or credibility of witnesses, whether or
not the defendant. requests the information. Ruthford
holds, however, that the failure to make such a dis-
closure does not require a reversal per se. “The
defendant must make a showing of substantial mate-
riality and even after this showing is made reversal
is not required if the prosecution establishes the
failure to disclose was harmless beyond a reasonable
doubt.” (At p. 409.)
Defendant has the burden, therefore, of showing
that the information that was withheld from him
was of substantial materiality hefore the prosecution
need show that the failure to produce such informa-
tion was harmless beyond a reasonable doubt. He has
made no such showing. We observe that on December
5, 1973, during the course of the trial, James’ three
statements were read in the presence of defense coun-
sel. James was called to the stand five days later. It
appears, therefore, that defense counsel had ample
time to consider such statements in order to deter-
mine their inconsistency with the testimony at trial
and to utilize such statements for purposes of im-
peachment.
Testimony of Matthew James
Prior to his calling James to the stand the prose-
eutor furnished James with a copy of a pretrial
statement given by James and a copy ef the prelimi-
nary hearing transcript. James was also read another
pretrial statement he had given. When James was
called to the stand on December 5, 1973, he professed
that he was unable to remember the events of Janu-
ary 10 and 11, 1973, blaming his lack of memory on
a head injury he sustained in an automobile accident.
Outside the presence of the jury James was told by
the trial judge “. . . if you do remember these events
and you give testimony contrary to what the facts are
that you remember that you may then be subject to
prosecution for perjury which could result in your
incarceration in jail.” Also outside the presence of the
jury and in the presence of defense counsel, the court
reporter, the prosecutor, two investigating officers
and his mother, James was reread his statement, his
testimony at the preliminary hearing and also lis-
tened to a tape recording of a polygraph test which
he had previously undergone. The rereading of the
statements and the plaving of the tape recording took
from 1:30 p.m. until 6:27 p.m.
a an ee Nat atte
ix
The next morning the prosecutor questioned James
outside the presence of the jury, and when the wit-
ness still stated that he was unable to remember the
events in question the prosecutor abandoned his exam-
ination of James. The prosecutor then ealled the two
Dowd brothers who testified to the events of January
10 and 11, 1973, in some detail. On December 10,
1973, James was again questioned outside the pres-
ence of the jury. At this time James stated that the
rereading of the above-mentioned materials had re-
freshed his recollection “A little bit.” James then
stated he remembered most of the events in question,
but that he could not remember anything until he
stopped playing pool, but that he did remember play-
ing pool and drinking.' James was tl = again called
to the stand and after stating in the presence of the
jury that he had difficulty remembering events he
continued to testify in some detail to the events that
occurred after he left the Vigil residence.
Defendant contends that James’ testimony was
erroneously received because he did not. testify from
his personal recollection but from studying and re-
studying statements he could not remember making.
James’ testimony was given over objection.
Section 702 of the Evidence Code provides that a
witness must have personal knowledge of the facts to
which he testified. “Personal knowledge” means a
present recollection of an impression derived from
1Defendant, James and Milton had gone to the Vigil residence
between 6:00 and 7:00 p.m. to play pool and had played pool until
they left to go to the Club Hupa to obtain more whiskey.
x
the exercise of the witness’ own senses. (2 Wigmore,
Evid., § 657, at p. 762 (3d ed. 1940).) Section 170 of
the Evidence Code defines the word “perceive” as
meaning “to acquire knowledge through one’s senses.”
The question whether a competent witness has
the ability to perceive and recollect with respect to
the particular matter on which he testifies is a matter
for the preliminary determination of the trial judge;
its ultimate determination is for the jury. (People
v. Blagg, 10 Cal.App.3d 1035, 1040; see Witkin, Cal.
Evidence (2d ed. 1966) Witnesses, § 771, p. 718; Evid.
Code, § 403, subd. (a) (2); and see Evid. Code, § 701;
People v. Avery, 35 Cal.2d 487, 492.) In its comment
to Evidence Code section 701, the Law Revision Com-
mission notes that a court makes the determination
whether the witness has the capacity to communicate
and his understanding of the duty to tell the truth,
and that if he has those capacities the determination
whether he in fact perceived and does recollect is
left to the trier of fact. The Comment. observes that
“ .. the court may exclude the testimony of a wit-
ness for lack of personal knowledge only if no jury
could reasonably find that he has such knowledge.”
In the present case it cannot be said that no jury
could find that James lacked personal knowledge. The
jury had before it James’ testimony that he had some
difficulty remembering events due to a head injury
he suffered in 1967, and the jury was aware that
James had been given a copy of his statement and a
copy of the preliminary hearing transcript and that
he had heard a tape recording of a polygraph test
i oe
ee eee eee
xi
prior to the first time he was called to the stand.
Accordingly, the trial court properly left the final
determination of the issue of James’ perception and
recollection to the jury under appropriate instruc-
tions.
Use of James’ Prior Statement
Defendant argues that it was error to allow the
proecutor to read portions of a statement made by
James to Detective Gatto on January 23, 1973 because
James stated he could not remember making the state-
ment and it was not inconsistent with his testimony
at trial. Defendant argues that such use denied him
his right to confront witnesses against him.
James testified that he heard Marshall make a noise
when he was shot. James was then asked “You indi-
cate that you do not recall the statement concerning
shooting Marshall was like shooting a dog or cat.”
James answered that he did not remember making
such a statement or any statement on January 23,
1973 to Detective Gatto. After Detective Gatto testi-
fied to taking James’ statement, James was again
asked the same question and when queried if this was
his “recollection” responded “I guess.’””
Generally, “the testimony of a witness that he does
not remember an event is not ‘inconsistent’ with a
prior statement by him describing that event.”
(People v. Green, 3 Cal.3d 981, 988-989 [cert. den.,
404 U.S. 801]; People v. Sam, 71 Cal.2d 194, 208-
2On the other occasions when the prosecutor asked James if he
had made particular pretrial statements he testified that he re-
membered making them.
xii
210.) However, “[i]nconsistency in effect, rather than
contradiction in express terms, is the test for admit-
ting a witness’ prior statement [citation], and the
same principle governs the case of the forgetful wit-
ness.” (People v. Green, supra; see People v. Wheeler,
23 Cal.App.3d 290, 309.) In the present case James
testified to the events leading up to and following the
killing of Marshall. When asked the question which
is under discussion James became vague and equivo-
eal, asserting that he no longer remembered. Under
these circumstances the jury could properly disbe-
live James’ claim that he no longer remembered.
(People v. Green, supra, at p. 987.) Accordingly, the
prior statement of James was properly admitted pur-
suant to Evidence Code section 1235 which provides
for the admission of a prior inconsistent statement.
It is the rule that if a witness either denies,
acknowledges or qualifies the truth of a prior state-
ment, such statement may be introduced without vio-
lating the confrontation clause. (Nelson v. O’Neil, 402
U.S. 622, 629-630; People v. Jenkins, 34 Cal.App.3d
893, 898. We observe that in the present case the first
question asked by defense counsel was: “Mr. James,
is there a story that you’re supposed to be telling here
that you have a hard time remembering?” The wit-
ness answered in the affirmative, thus qualifying the
truth of his prior statement.
We note, further, that James was subject to full
eross-examination. Under these circumstances the
receint of his pretrial statements did not violate
defendant’s Sixth Amendment right of confrontation.
xiii
(People v. Cannady, 8 Cal.3d 379, 387; see California
v. Green, 399 U.S. 149, 158, 161.
Motion for Change of Venue
Defendant contends that the trial court erred in
denying his motion for a change of venue and that
such denial denied him a fair trial by an impartial
jury. The basis of the motion was that the crimes
charged against defendant received wide publicity
over the entire County of Humboldt; that such pub-
licity depicted defendant as a fugitive; that after the
preliminary hearing the news media gave wide pub-
licity to the testimony of James who named defendant
as the killer of Marshall and recounted a bizarre
story of an execution-like slaying; that Humboldt
County has a small population, having approximately
104,00 residents; that the news media and word-of-
mouth repetition of the sensational and callous as-
pects of the alleged crime created a county-wide
feeling of animosity and prejudice against defendant;
that defendant is an Indian and there is prejudice
agair st Indians in Humboldt County.
The motion was supported by the affidavit of de-
fendant and that of his attorney, Robert C. Dunn.
Defendant’s affidavit merely states that he believes
he cannot receive a fair trial in Humboldt County
or any adjacent county because of the publicity given
his arrest and the subsequent legal proceedings.
Dunn’s affidavit states that the publicity regarding
the murder of Marshall was widespread and gave the
impression that defendant took flight and concealed
xiv
himself after the murder to escape capture and pros-
ecution; that James’ testimony at the preliminary
hearing “covered the alleged crime from beginning to
end” and described defendant as a killer who exe-
euted Marshall in cold blood; that the Dowd brothers
testified before the Grand Jury to the same cffect;
that defendant “faced a community situation where
most knowledgeable persons seem to have a knowl-
edge of the crime alleged and the facts involved”;
and that “from such observations, T do not believe
that this Defendant can receive a fair and unpreju-
diced trial in Humboldt County, or any adjacent
county”.
In denying the motion the trial court stated as
follows: “... that the publicity given to the crime has
not been sensational to the point of being overwhelm-
ing. In fact, there has been nothing reported in the
past four or five months, and there has been no pub-
lication of statements by defendant.” Defendant did
not seek relief hy petition for writ of mandate nor
did he renew his motion during or after the voir dire
of the venireman.
The applicable principles are stated in People v.
Welch, 8 Cal.3d 106, 113 as follows: “‘A change of
venue must be granted when the defendant shows “a
reasonable likelihood that in the absence of such re-
lief, a fair trial cannot be had.’ ” [Citations.] And it
is the dutv of the reviewing court to make an inde-
pendent evaluation of the circumstances and to sat-
isfv itself de novo that the defendant obtains a fair
and imnartial trial. [Citations.]”
xV
In the instant case defendant failed in his motion
for change of venue to establish a reasonable likeli-
hood that he could not have a fair trial in Humboldt
County. The only evidence presented in support of
the motion was in the form of Dunn’s affidavit. This
affidavit did not present any facts but merely the
opinion and conclusions of the affiant. The nature,
frequency or content of the alleged pretrial publicity
was not shown. No showing was made that the
alleged publicity was other than ordinary news cover-
age. The trial judge found that the publicity com-
plained of was last reported some four to five months
prior to the determination of the motion for change
of venue.
We observe that the first attempt to make any
factual allegations is by statements in defendant’s
opening brief which we may not consider since they
are dehors the record. We do point out, however,
that the allegations made in the brief are essentially
argumentative and conclusionary rather than factual.
The thrust of defendant’s argument appears to ‘ve
that Humboldt County has a small population, i.e.,
104,892 persons. Population size alone is not deter-
minative. (People v. Fain, 2 Cal.3d 46, 52, fn. 1.) Tt
is merely a factor to be considered. (People v. Fain,
supra. )
We observe further that no contention is made
that on the voir dire examination of the jurors se-
lected to serve that any of them had read or heard
of anv of the pretrial publicity or that anv of them
were biased or prejudiced by reason of such publicity.
xvi
Nor is any contention made that any of the jurors
had indicated at voir dire that he or she had formed
an opinion as to the guilt or innocence of defendant
or that any of them had indicated that they could not
act fairly or impartially. Defendant accepted the
jurors without exhausting his peremptory challenges
and he exercised no peremptory challenges at all in
the selection of the two alternate jurors.
Under the circumstances the court did not err in
denying the motion for a change of venue. Moreover,
upon an independent evaluation of the circumstances
we are satisfied that defendant was not precluded
from receiving a fair and impartial trial by reason
of any pretrial publicity. (See Maine v. Superior
Court, 68 Cal.2d 375, 383.) The assertion that there
is evidence that the jury received evidence outside
of court and that the Dowd brothers were harassed
in halls of the courthouse during trial, absent any
showing that such conduct resulted from pretrial
publicity. is not indicative of a reasonable likelihood
that pretrial publicity prevented defendant from re-
ceiving a fair trial.
Electron Microprobe Test
The prosecution introduced evidence to the effect
that two human hairs, which were found on a head-
hand at Tish Tang Road where the liquor was dis-
covered, might be those of defendant. The evidence
was introduced through the testimony of a Federal
Bureau of Tnvestigation technician who velated the
results of a microseonie examination of the hairs he
tested in February of 1973.
OAPO 2 Det AE ws Only Pee
ee
The defense called a criminalist, Kenneth Parker,
to give expert testimony concerning various tests
which he performed on the hairs. Specifically, he
performed (or supervised the performance) of three
tests, the first of which was a microscopic examina-
tion of the hairs, similar to the test performed by
the prosecution expert. The second test, involving the
use of a scanning electron microscope (SEM) to
greatly magnify the image of the hair sample, was
performed by technicians at the General Electric
Nuclear Technology Laboratory in Pleasanton, Cali-
fornia. The third test, referred to by Parker as an
electron microprobe test (EMP), was performed by
General Electric technicians at Parker’s request at
the Pleasanton laboratory.
The trial court admitted evidence of the micro-
scope test and “SEM” test but refused to admit evi-
dence of the “EMP” test. With respect to the latter
test Parker testified that “it’s not generally accepted
by the scientific community.” He further testified,
“There are severe limitations associated with it which
we are aware of and satisfied with. However, I’m
only one scientist and with GE personnel is one
ercup.” Parker also testified that to his knowledge
evidence relating to the electron microprobe test had
never before been introduced in a eourt of law. and
that neither he nor the technicians at General FElec-
trie who had actually conducted the test had ever
done so before, although some of the procedures, i.e.,
ionization measurements, used in the test had been
previously utilized.
“The test for the admissibility of scientific testing
is whether or not it has received general acceptance
by recognized experts in the field.” (Hodo v. Supe-
rior Court, 30 Cal.App.3d 778, 784. See also People
v. Collins, 68 Cal.2d 319, 332; Huntington v. Crowley,
64 Cal.2d 647, 653.) “The determination of whether
a scientific test has received general acceptance by
recognized experts in the field so as to justify the
admission of expert testimony based on the results of
the test is primarily a question of fact for the trial
court.” (People v. King, 266 Cal.App.2d 437, 443.)
This determination will not be disturbed on anpeal
unless a manifest abuse of discretion is shown. (Hodo
v. Superior Court, supra, at pp. 784-785; People v.
King, supra.) Here there was evidence that the sub-
ject test had not received general acceptance by
recognized experts in the field. Under these cireum-
stances there was no abuse of discretion in ruling
that the test was inadmissible.
Testimony of Accomplices
Defendant asserts that he was convicted solely on
the uncorrohorated testimony of three accomplices,
i.e. James and the two Dowd brothers. Penal Code
section 1111 provides that “A conviction cannot he
had unon the testimony of an accomplice unless it be
eorroborated bv such other evidence as shall tend to
eonnect the defendant with the commission of the
offense: and the eorroboration is not sufficient if it
merely shows the commission of the offense or the
circumstances thereof. An accomplice is hereby de-
xix
fined as one who is liable to prosecution for the iden-
tical offense charged against the defendant on trial
in the cause in which the testimony of the accomplice
is given.” The corroborating evidence need only be
slight but it must relate to some act or fact which is
an element of the crime. People v. Hathcock, 8 Cal.3d
599, 617; People v. Perry, 7 Cal.3d 756, 769.)
Assuming, arguendo, that James and the Dowd
brothers are regarded as accomplices there is ample
independent evidence which tends, without aid or
assistance from the testimony of the accomplices, to
connect defendant with the crime charged. The ree-
ord discloses that on the evening of January 22, 1972,
at a time when the police were looking for defendant,
he went to the trailer of his friend Daniel Colegrove.
Defendant at that time informed Colegrove that he
had been present when Marshall was shot. This state-
ment tends to connect defendant with the commission
of the offense within the meaning of Penal Code see-
tion 1111. (See People v. Hatheock, supra, 8 Cal.3d
599, 617; People v. Perry, supra, 7 Cal.3d 756, 769.)
It is an established principle that statements of the
defendant may be used to corroborate the testimony
of an accomplice. (People v. Kramer, 259 Cal.App.2d
452, 462; People v. Reinard, 220 Cal.App.2d 720,
728.)
Instruction on Felony-Murder Rule
Defendant argues that it was error to give an in-
_ struction on the felony-murder rule because the res
gestae of the felony of burglary had heen completed
at the time of the homicide. The trial court gave the
xx
standard burglary instruction in the form of CALJIC
14.50.23 The court also instructed as follows: “How-
ever, all of the acts performed by the burglar imme-
diately after the entry of the building which follow
in one continuous transaction, including the acts of
fleeing with the fruits of the burglary to a place of
temporary safety, and the acts done in the same con-
tinuous transaction to protect against the discovery
of said burglary are all an integral party of the crime
of burglary.” With particular regard to the felony-
murder rule the court instructed as follows: “If a
human being is killed by any one of several persons
engaged in the perpetration—perpetration of or an
attempt to perpetrate the crime of burglary, all per-
sons who either directly or actively commit the act
constituting such crime or who knowingly and with
criminal intent aid and abet in its commission, or
whether present or not who advise and encourage its
commission, are guilty of murder of the first degree,
whether said killing is intentional, unintentional or
accidental.”
In the application of the felony-murder rule the
test is whether the killing and the felony are parts
of one continuous transaction. (People v. Salas, 7
Cal.3d 812, 821-825 [cert. den., 411 U.S. 939]; People
8The court instructed: “Every person who enters any structure
of a type shown by the evidence in this case with the specific intent
to steal, take away—steal, take and carry away the personal prop-
erty of another of any value with the specific intent to deprive the
owner permanently of his personal property, is guilty of burglary.
The essence of a burglary is entering such a place with such spe-
cifie intent and the erime of burglary is completed as soon as the
entry is made, regardless of whether the intent thereafter is carried
out.”
selene 05: We kee
xxi
v. Mason, 54 Cal.2d 164, 169; People v. Chavez, 37
Cal.2d 656, 669-670; People v. Boss, 210 Cal. 245,
252-253; People v. Miller, 121 Cal. 343, 345.) With
respect to the underlying felony of burglary the
felony-murder rule is not rendered inapplicable be-
cause the killing occurs after the entry or breaking
into a building upon the rationale that the crime of
burglary is held to be completed upon such entry or
breaking. (People v. Boss, supra, p. 252.) In Boss
the court stated that the felony-murder rule “. . .
was adopted to make punishment of this class of
erime [burglary] more certain. It was not intended
to relieve the wrongdoer from any probable conse-
quences of his act by placing a limitation upon the
res gestae which is unreasonable or unnatural.” (At
pp. 252-253.) (See People v. Mason, supra, at p. 169.)
In Chavez, supra, we find this pertinent statement:
“The law of this state has never required proof of a
strict causal relationship between the felony and the
homicide. The statute was adopted for the protection
of the community and its residents, not for the bene-
fit of the lawbreaker, and this court has viewed it as
obviating the necessity for, rather than requiring,
any technical inquirv concerning whether there has
been a completion, abandonment, or desistance of the
felony before the homicide was completed.” (At pp.
669-670.) (See People v. Mason, supra, at pp. 168-
169.)
In Mason there was evidence that the defendant
entered a house with the intent to commit an assault
upon Rona Porazzo, that he remained in the house
*e
for 20 hours, and then, in an exchange of shots, killed
Rona’s mother. It was held that the court did not.
err in instructing the jury that murder committed
in the perpetration of burglary is murder in the first
degree since under the evidence the homicide and
burglary were acts of one continuous transaction.
(54 Cal.2d at p. 169.) In Miller the defendant pur-
sued a person whom he was attempting to kill into
a house of another person whom the defendant killed
when that person interrupted the pursuit. This evi-
dence was held sufficient to justify an instruction
upon the subject of murder committed in the attempt
to commit burglary upon the basis that all of the
acts were part of one continuous transaction. (121
Cal. at p. 345-346.)
Analogy is found is the felony-murder rule cases
involving robbery as the underlying felony. In People
v. Rye, 33 Cal.2d 688, 693, the robberies took place
a considerable time before the fatal beating was ad-
ministered for the purpose of preventing discovery
of the previously committed robberies. The homicide
was held to be murder in the first degree beeause it
occurred during a “eontinuous integrated attempt to
successfully escape after the perpetration of the rob-
beries.” In People v. Kendrick, 56 Cal.2d 71, 90, the
killing occurred ahout 48 minutes after the robbery
victim had first been accosted by the defendant when
a police officer stopped the defendant for a traffic
violation. The defendant shot and killed the police
officer. The Supreme Court held that instructions on
the felony-murder rule were properly given stating,
eee
“The homicide, committed as it was while defendant
was in hot flight with the stolen property and in the
belief that the officer was about to arrest him for the
robbery, falls well within this rule.” In Salas, 7 Cal.
3d 812, the rule was held applicable where an officer,
who commenced to follow the defendant within three
minutes after a robbery, was killed within six or
seven minutes of that time. The Supreme Court con-
cluded that the robbery was still in the “escape stage”
and was committed while the defendant “‘was in
hot flight with the stolen property and in the belief
that the officer was about to arrest him for the rob-
bery.’” (7 Cal.3d at p. 823; see People v. Ketchel,
59 Cal.2d 503, 524, disapproved on other grounds in
People v. Morse, 60 Cal.2d 631, 637, 649.)*
In the present ease there was evidence that defend-
ant committed a burglary in the premises of the
Club Hupa for the purpose of committing a theft of
liquor; that the liquor was placed in a ear; that Mar-
shall, the janitor of the club, was ordered into the
ear; that defendant and his companions drove to an
isolated area; that Marshall was shot by defendant
while walking down a “log skid road;” that defend-
ant stated he had killed Marshall to prevent him
from going to the police; and that then defendant and
his companions drove to another location where the
stolen liquor was hidden in the brush. Under these
circumstances the burglary and the homicide were
parts of one continuous transaction. Defendant was
4In Salas it is noted that “The fact that a robber has not won his
way to a ‘place of temporary safety’ can only mean that he is still
fleeing, still trying to escape.” (7 Cal.3d at p. 822.)
Xxiv
in hot flight with the stolen property and killed Mar-
shall for the purpose of preventing discovery of the
previously committed burglary. Accordingly, the in-
structions on the felony-murder rule were properly
given.
There is no merit to defendant’s contention that the
felony-murder instructions rendered the instructions
on diminished capacity useless. We perceive this con-
tention to be based on the claimed error with respect
to the giving of the felony-murder instructions.
Suffice it to say, since there was no error in the giv-
ing of the felony-murder instructions the diminished
capacity instructions were not rendered useless but
were properly given with respect to whether or not
defendant entertained the specific intent requisite for
the commission of the underlying felony of burglary.
Jury Misconduct
As a ground for a new trial defendant urged that
the jury was guilty of misconduct. In support of this
ground defendant presented affidavits by three jurors
and, additionally, the testimony of one of these jurors.
Juror Hooker declared that during the trial she was
approached by a male person whose name is not
known to her. This person ventured an opinion that
defendant was guilty and that it was common know]l-
edge among the school children of the Hoopa area
that defendant “had acknowledged his responsibility.”
Juror Hooker declared that at no time did she dis-
cuss the content of this communication with any mem-
ber of the jury during the trial or during the jury
wre
xXV
deliberation, and that she in no manner deemed the
information imparted to her by the male who ap-
proached her as admissible evidence to be considered
by her in her deliberations, as she was mindful of
the court’s adinonition to disregard all informati.»
except that received in court during the trial. Juror
Hooker stated further that at the conclusion of the
jury deliberation and following the signing of the
verdict form she stated audibly, “Well, I did hear
something in Hoopa which could affect this trial.”
Juror Lemstrom, the foreman of the jury, declared
that at the conclusion of the jury deliberations Juror
Hooker “advised that she had received a communica-
tion” but that at no time was said communication a
part of the jury deliberation nor was said communi-
cation discussed in detail by any member of the jury
prior to the rendition ov recordation of the verdicts.
Lemstrom stated, further, that the verdicts returned
were based solely on evidence received during the
course of courtroom presentation.
Juror Kinones declared that he heard Juror Hooker
state in his presence that she knew “something other
than what had been received by this jury” and that
this statement was made as he was putting on his
coat to leave the jury room and the courthouse after
the jury had reached its verdicts and the verdicts
had been filed and recorded. Kinones stated that at
no time did Juror Hooker’s comment serve as an
item for discussion prior to arrival at verdicts and
that all deliberations had ceased when Juror Hooker
made her comment. The substance of Kinones’ decla-
XXvi
ration was orally reiterated by him during testimony
presented at the hearing of the motion for a new
trial.
“An allegation of jury misconduct raised on a mo-
tion for new trial presents a question of fact for the
trial court.” (People v. Orchard, 17 Cal.App.3d 568,
574.) “A motion for new trial is, . . . addressed to
the trial court’s judicial discretion, and its action will
not be disturbed on appeal unless that discretion is
clearly and unmistakably [sic] abused.” (People v.
Lyons, 18 Cal.App.3d 760, 778.)
“Affidavits of jurors may be used to impeach their
verdict only in certain limited situations. Such affi-
davits may be used to show that the verdict was
reached by lot or chance and to show that one or more
of the jurors concealed bias or prejudice on voir
dire.” (Putensen v. Clay Adams, Ine., 12 Cal.App.3d
1062, 1082: see Continental Dairy Equip. Co. v.
Lawrence, 17 Cal.App.3d 378, 386; Carlson, Collins,
Gordon & Bold v. Bandueci, 257 Cal.App.2d 212,
999.) A verdict may also be impeached on the bases
of improper influences that are open to sight, hear-
ing, and the senses and thus subject to corroboration,
but may not be impeached by affidavits whose effect
is to prove the subjective processes of the juror.
(Evid. Code §1150;° People v. Hutchinson, 71 Cal.
5Section 1150 of the Evidence Code provides: “(a) Upon an
inquiry as to the validity of a verdict, any otherwise admissible
evidence may be received as to statements made, or conduct, eondi-
tions, or events occurring, either within or without the jury room,
of such a character as is likely to have influenced the verdict im-
properly. No evidence is admissible to show the effect. of such
statement, conduct, condition, or event upon a juror either in in-
XXVil
2d 342, 349-350; People v. Orchard, supra, 17 Cal.
App.3d 568, 573; Putensen v. Clay Adams, Inc.,
supra, p. 1083.)
In the present case the evidence presented by the
affidavits and testimony of the jurors was admissible
since it was indicative of improper influences that
were open to sight, hearing and the senses and thus
subject to corroboration. It was of such a character
as is likely to have influenced the verdict improperly.
However, we cannot state that as a matter of law the
verdict was influenced either by the communication
allegedly made to Juror Hooker or her statement to
the other jurors. Juror Hooker stated that she did
not communicate the nature or substance of the com-
munication made to her to the other jurors at any
time and that the statement that a communieation
had been made to her was made to the other jurors
after the jury’s deliberations and the return of the
jury’s verdicts. Her declaration with respect to com-
munication with her fellow jurors was substantially
corroborated by the affidavits of Jurors Lemstrom
and Kinones and the testimony of Kinones. <Ac-
cordingly, the determination whether the communica-
tions under discussion improperly influenced the
verdict was a factual one for the trial judge and his
determination will not be disturbed by us because we
cannot say that under the factual presentation his
judicial discretion was abused.
fluencing him to assent to or dissent from the verdict or econcern-
ing the mental processes by which it was determined. (b) Nothing
in this code affects the law relating to the competence of a juror
to give evidence to impeach or support a verdict.”
Suppression of Evidence
At the hearing on the motion for new trial defend-
ant presented four witnesses in support of his conten-
tion that during the course of the trial the District
Attorney had wilfully suppressed evidence. The gist
of this testimony was that during the trial and after
his testimony in the case, Milton Dowd was stopped
for a traffic offense by sheriff’s deputies and during
an ensuing search an undetermined quantity of mari-
juana was found under the seat of the car. Defendant
was not arrested for or charged with possessing mari-
juana. He was only given a traffic citation. It was
defendant’s contention that the District Attorney de-
liberately suppressed this occurrence and that, as
argued by defendant’s counsel, it was “evidence that
we should have had available to us to go back over
and cross-examine the Dowd boy involved so the
question of his veracity in telling the story that he
did could have heen examined... .”
The materiality of the evidence purportedly sup-
pressed is unclear. The trial judge’s remarks at the
hearing on the motion for new trial indicated that
there was testimony before the jury that marijuana
was used bv defendant and his companions on the
night of the burglary, kidnapping and the homicide,
and that a marijuana cigarette was passed among the
persons in the automobile. The trial judge stated:
“The court feels that all of these points were covered
during the trial... .”
Tt appears, therefore, that the trial court consid-
ered that the evidence that marijuana was found in
Xxix
a vehicle driven by Dowd, if admissible at all, would
have been cumulative. Moreover, no showing was
made that the District Attorney or any of the mem-
bers of his staff was aware of the traffic incident
involving Dowd. Under all these circumstances the
court did not abuse its discretion in denying the mo-
tion for new trial on the basis that evidence was sup-
pressed by the District Attorney.
The judgment is affirmed.
Molinari, P.J.
We Concur:
Sims, J.
Elkington, J.
xxx
(NOT TO BE PUBLISHED IN OFFICIAL REPORTS)
In the Court of Appeal
State of California
First Appellate District
Drvision ONE
1 Crim. No. 13249
(Sup. Ct. No. 7075)
,
THE PROPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
vs. :
Ritcute LEE BLAKE,
Defendant and Appellant. ;
[Filed Nov. 13, 1975]
By THE Court:
Good cause appearing therefor, the opinion hereto-
fore filed in the above entitled case is modified of
record as follows:
Delete the words “District Attorney” on page 27,
line 20, on page 28, line 3, and on page 29, line 1, and
substitute in lieu thereof the -words “sheriff’s depu-
ties.”
The petition for rehearing is denied.
Molinari, P.J.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.