Appendix — McGautha v. California
Supreme Court brief1971
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IN THE
Supreme Court of the United States
OCTOBER TERM, 1970
No. 203
DENNIS COUNCLE MCGAUTHA,
Petitioner,
—
CALIFORNIA,
Respondent.
ON WRIT OF CERTIORARI TO
THE SUPREME COURT OF CALIFORNIA
PETITION FOR CERTIORARI FILED JUNE 21, 1969
CERTIORARI GRANTED JUNE 1, 1970
INDEX
Page
Information, Filed April 6, 1967 2
Minutes, Filed April 12, 1967 5
Minutes, Filed August 14, 1967
—— — —
—
ii INDEX—Continued
Page
Minutes, Filed August 16, 1967 7
Minutes, Filed August 21, 1967 8
Instructions Given, Guilt Phase, Filed August 22, —— 8
Verdicts, Guilt Phase, Filed August 22, 1967 11
Minutes, Filed August 23, 1967 : 15
Minutes, Filed August 24, 1967 ; 16
Instructions Refused, Penalty Phase, Filed August 25, 1967 16
Instructions Refused with Explanation, Penalty Phase, Filed
August 25, 1967 19
Verdicts, Penalty Phase, Filed August 25, 30
Judgments:
Wilkinson, Filed September 15, 1967 31
McGautha, Filed September 29, 1967 32
Transcript of Proceedings: 5
Proceedings in Chambers Regarding Prior Convictions 34
Voir Dire Examination of Jurors:
Juror Agnes Kischell—
By Wilkinson's Counsel 37
By Deputy District Attorney 40
Juror Fred Perez
By Wilkinson’s Counsel 3 41
By Deputy District Attorney 8 43
Juror Anthony Thomas
By Wilkinson's Counsel 43
By Deputy District Attorney 44
Juror Evelyn Janssen—
By the Court es 46
By McGautha’s Counsel 47
By Wilkinson's Counsel ei 47
By Deputy District Attorney 49
Juror Leonard Wain—
By the Court 51
By McGautha’s Counsel ————-.------------------ 53
By Wilkinson’s Counsel 53
By Deputy District Attorney 56
INDEX—Continued iii
Page
Transcript of Proceedings—Continued
Voir Dire Examination of Jurors—Continued
Juror Janice Welker—
By the Court 58
By McGautha’s Counsel 60
By Wilkinson’s Counsel 61
By Deputy District Attorney 63
Juror Carol Fogel—
By the Court 63
By McGautha’s Counsel 65
By Wilkinson’s Counsel 65
By Deputy District Attorney 67
Juror Harriet Grant—
By the Court 68
By McGautha’s Counsel 70
By Wilkinson’s Counsel 70
By Deputy District Attorney 70
Juror Allen Hamblin—
By the Court 71
By McGautha’s Counsel 72
By Wilkinson’s Counsel 72
By Deputy District Attorney 73
Juror Rita Braun—
By the Court 74
By McGautha’s Counsel 75
By Wilkinson’s Counsel 75
By Deputy District Attorney 75
Juror Mildred Barden—
By the Court 76
By McGautha’s Counsel 78
By Wilkinson’s Counsel 78
By Deputy District Attorney . 78
Juror Roderick Haskell
By the Court 79
By McGautha’s Counsel 80
By Wilkinson’s Counsel 80
By Deputy District Attorney 80
—
iv INDEX—Continued
Page
Transcript of Proceedings—Continued
Proceedings and Testimony at Penalty Phase:
List of Evidence Relating to McGautha’s Prior
Convictions in Texas 81
Opening Statement by Wilkinson’s Counsel! 82
Testimony of William Rodney Wilkinson, Witness
on his own Behalf—
Direct Examniation 84
Cross Examination by Deputy District
— ̃ↄ— ̃ ̃ ͤ—— ee 101
Cross Examination by McGautha’s Counsel 119
Re-Direct Examination 132
Re-Cross Examination by Deputy District
Attorney 185
Testimony of Edward D. Brimmer, Witness on ns
half of Wilkinson—
Direct Examination ; 136
Cross Examintion by McGautha’s — . 139
Cross Examination by Deputy Distriet
Attorney 140
Testimony of Iola Henry, Witness on Behalf of
Wilkinson—
Direct Examination -
Cross Examination by Deputy District
r 143
Testimony of Charles Henry Davis, Jr., Wilkens « on
Behalf of Wilkinson—
— —— actstecccasccceakedenncnarecnen 145
Testimony of Sergeant Richard L. Sullivan, Wit-
ness on Behalf of Wilkinson —
Direct Examination — 148
Cross Examination by McGautha’s pour „
Cross Examination by Deputy District
Attorney 153
Testimony of Laban David Bolling, -~ Witness
on Behalf of Wilkinson
Direct Examination 3 156
INDEX—Continued
Transcript of Proceedings—Continued
Proceedings and Testimony at Penalty Phase
—Continued
Testimony of Dennis Councle McGautha, Witness
on his own Behalf—
Direct Examination
Cross Examination by Deputy District
Attorney
Cross Examination by Wilkinson’s Counsel
Re-Cross Examination by Deputy District
Attorney
Summation by Deputy District Attorney
Summation by Wilkinson’s Counsel
Summation by McGautha’s Counsel
Instructions to the Jury by the Court
Further Instruction to the Jury by the Court
Proceedings in Response to Jury Request
Verdicts by the Jury
Proceedings Regarding Sentencing
Motion for New Trial by McGautha’s Counsel
Response by Deputy District Attorney to Motion
for New Trial
Sentencing by the Court
Opinion of Supreme Court of California, Filed April 14,
1969
Order of Supreme Court of California Denying Re-Hearing,
Filed May 14, 1969
Order of Supreme Court of the United States Granting Mo-
tion for Leave to Proceed In Forma Pauperis and Granting
Petition for Writ of Certiorari, Filed June 1, 1970
[fol. 1]
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
S. C. No, A 219578
THE PEOPLE OF THE STATE OF CALIFORNIA, PLAINTIFF
D.
DENNIS COUNCLE MCGAUTHA, FANNIE LUE SMITH
and WILLIAM RODNEY WILKINSON, DEFENDANTS
INFORMATION
ROBBERY (Sec. 211 P. C.) —Cts. I, II
MURDER (Sec. 187, P. C.) —Ct. III
The said DENNIS COUNCLE McGAUTHA, FANNIE
LUE SMITH and WILLIAM RODNEY WILKINSON
are accused by the District Attorney of and for the County
of Los Angeles, State of California, by this information,
of the crime of ROBBERY, in violation of Section 211,
Penal Code of California, a felony, committed as follows:
that the said DENNIS COUNCLE McGAUTHA, FAN-
NIE LUE SMITH and WILLIAM RODNEY WILKIN-
SON on or about the 14th day of February, 1967, at
and in the County of Los Angeles, State of California,
did willfully, unlawfully, feloniously and by means of
force and fear take personal property from the person,
possession and immediate presence of Pon Lock.
That at the time of the commission of the above offense
said defendants, DENNIS COUNCLE McGAUTHA and
WILLIAM RODNEY WILKINSON, were armed with
deadly weapons, to wit, handguns.
‘fol. 2] COUNT Ii
For a further and separate cause of action, being a
different offense of the same class of crimes and offenses
as the charge set forth in Count I hereof, the said DEN-
NIS COUNCLE McGAUTHA, FANNIE LUE SMITH
and WILLIAM RODNEY WILKINSON are accused by
the District Attorney of and for the County of Los An-
geles, State of California, by this information, of the
crime of ROBBERY, in violation of Section 211, Penal
Code of California, a felony, committed as follows: That
the said DENNIS COUNCLE McGAUTHA, FANNIE
LUE SMITH and WILLIAM RODNEY WILKINSON
on or about the 14th day of February, 1967, at and in
the County of Los Angeles, State of California, did will-
fully, unlawfully, feloniously and by means of force and
fear take personal property from the person, possession
and immediate presence of Benjamin Smetana.
That at the time of the commission of the above offense
said defendants, DENNIS COUNCLE McGAUTH and
WILLIAM RODNEY WILKINSON, were armed with
deadly weapons, to wit, handguns.
[fol. 3] COUNT III
For a further and separate cause of action, being a
different offense of the same elass of erimes and offenses
as the charges set forth in all the preceding counts here-
of, the said DENNIS COUNCLE McGAUTHA, FANNIE
LUE SMITH and WILLIAM RODNEY WILKINSON
are accused by the District Attorney of and for the County
of Los Angeles, State of California, by this information,
of the crime of MURDER, in violation of Section 187,
Penal Code, a felony, committed as follows: That the
said DENNIS COUNCLE McGAUTHA, FANNIE LUE
SMITH and WILLIAM RODNEY WILKINSON on or
about the 14th day of February, 1967, at and in the
County of Los Angeles, State of California, did willfully,
unlawfully and feloniously and with malice aforethought
murder Benjamin Smetana, a human being.
EVELLE J. YOUNGER
District Attorney for the
County of Los Angeles,
State of California
By /s/ Stanley Friedman
STANLEY FRIEDMAN
Deputy
Ima
[Filed in open Superior Court of the State of
California, County of Los Angeles, on motion
of the District Attorney of said County.
Dated: Apr. 6, 1967, William G. Sharp, Clerk,
By E. Hillard, Deputy.)
(fol. 4] A219578
That before the commission of the offenses hereinbefore
set forth in this information, said defendant, DENNIS
COUNCLE McGAUTHA, under the name of Dennis Me-
Gautha, was in the District Court of the State of Texas,
for the County of Dallas, convicted of the crime of
THEFT OVER $50, a felony, and the judgment of said
court against said defendant in said connection was on
or about the 26th day of October, 1948, pronounced and
rendered and said defendant served a term of imprison-
ment therefor in the State Prison.
That before the commission of the offenses hereinbefore
set forth in this information, said defendant, DENNIS
COUNCLE McGAUTHA, under the name of Dennis Me.
Gautha, was in the District Court of the State of Texas,
for the County of Dallas, convicted of the crime of ROB-
BERY, a felony, and the judgment of said court against
said defendant in said connection was on or about the
26th day of October, 1943, pronounced and rendered and
said defendant served a term of imprisonment therefor
in the State Prison.
, eee
4
That before the commission of the offenses hereinbefore
set forth in this information, said defendant, DENNIS
COUNCLE McGAUTHA, under the name of Dennis Me-
Gautha, was in the District Court of the State of Texas,
for the County of Harris, convicted of the crime of MUR-
DER WITHOUT MALICE, a felony, and the judgment
of said court against said defendant in said connection
was on or about the 23rd day of November, 1948, pro-
nounced and rendered and said defendant served a term
of imprisonment therefor in the State Prison.
That before the commission of the offenses hereinbefore
set forth in this information, said defendant, DENNIS
COUNCLE McGAUTHA, under the name of Dennis Mc-
Gautha, was in the District Court of the State of Texas,
for the County of Harris, convicted of the crime of ROB-
BERY BY ASSAULT, a felony, and the judgment of
said court against said defendant in said connection was
on or about the 16th day of May, 1952, pronounced and
rendered and said defendant served a term of imprison-
ment therefor in the State Prison.
The former convictions herein alleged against said de-
fendant, DENNIS COUNCLE McGAUTHA, are hereby
charged against him with respect to each of the counts
hereinbefore set forth and by reference the same are
hereby made a part of each of said counts.
* * * *
[fol. 6]
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
MinuTEs—April 12, 1967
Department No. 100
Present Hon. ROBERT FEINERMAN, Judge
Case No. A219578
[Title Omitted in Printing!
McGautha: Due to a conflict of interest Deputy Public
Defender is relieved and C. Lloyd appointed pursuant to
Section 987a Penal Code. Smith: Due to a conflict of
interest Deputy Public Defender relieved and J. Cochran
appointed pursuant to Section 987a Penal Code, Wilkin-
son: Due to a conflict of interest Deputy Public Defender
relieved and A. Bornstein appointed pursuant to 987a
Penal Code. McGautha and Wilkinson: Plead “Not
Guilty.” Trial continued to June 7, 1967 at 9 AM in
Department 117. Smith: Motion 995 Penal Code contin-
ued to May 3, 1967 at 9 AM in Department 111. Each:
Waives time. Each: Remanded.
ee
6
[fol. 9]
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
MINUTEs—August 14, 1967
Department No. 117
X CHARLES LLOYD
X J. COCHRAN
X A. BORNSTEIN
Each: Cause is called for trial. Motion of Defendant
Smith for severance is granted, and the Court severs
cause as to Defendant Smith from Defendants McGautha
and Wilkinson. The Court trails cause as to Defendant
Smith to conclusion of cause as to Defendants McGautha
and Wilkinson. Defendant Smith waives time. Defend-
ant McGautha is arraigned on priors and admits all four
priors. By order of the Court, all prospective jurors are
sworn to answer regarding qualifications and impaneling
commences, By stipulation, juror Maxie Valdivia may
be excused. Prospective jurors are admonished and cause
is continued to August 15, 1967 at 10:00 A.M. Motion
of Defendant McGautha is granted and the Court orders
Sheriff to allow Defendant to shave prior to next Court
date. Each: Remanded.
[fol. 11]
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
MINUTES—August 16, 1967
Department 117
Jury trial is continued from August 15, 1967 with all
Mrs. Janice Walker Mrs. Mildred Harden
Mrs. Rita Braun Mrs. Harriet S. Grant
Mrs. Agnes Kischell Mr. Roderick Haskell
Mrs. Evelyn Janssen Mrs. Leonard Wain
Mrs. Carol Fogel Mr. Allen Hamblin
Mr. Fred Perez Mr. Anthony Thomas
to commence on opening statement, August 17, 1967 at
10:30 AM. Motion of Defendant’s, court orders Sheriff
to allow bathing priviledges and haircuts for Defendant,
said haircuts at Defendant’s expense, Jury is admonished.
Cause is continued to 10:30 AM on August 17, 1967.
Each: Remanded.
* * * *
8
[fol. 14]
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
MINUTES—August 21, 1967
Department No. 117
Each: Jury trial is continued from August 18, 1967 with
all present as before. John Wesley Watkins, Kenneth
Chapman, Peter Borck and Kaye Robert Drury are sworn
and testify for the People. People’s exhibits 21 (2 dia-
grams), 22 (photo), 23 (photo), 24 (envelope and con-
tents), 25 (envelope and contents), 26 (car registration)
marked for identification. Stipulated, People’s exhibit 5
may be returned to arresting officer at conclusion of trial.
Stipulated that People’s exhibit 24 was bullet found in
body of deceased, Motion of People, all exhibits marked
for identification now received in evidence except #5.
People rest. Defendant Wilkinson’s exhibit A (diagram)
received in evidence. Stipulation of each: Defendant
Wilkinson and McGautha, was arrested in Bakersfield on
or about March 3, 1967. Defendant Wilkinson rests.
Defendant McGautha rests. All rest. Cause argued and
continued to August 22, 1967 at 10 AM. Each: Re-
manded.
[fol. 15]
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
[Filed Aug. 23, 1967, William G. Sharp, County Clerk,
By J. Chris Williams, Deputy.]
Dept. No. 117
No. A2195
[Title Omitted in Printing]
INSTRUCTIONS GIVEN
Consisting of 46 pages herein
[fol. 38] 51. (Re-revised)
DEFENDANT NOT TESTIFYING
NO INFERENCE OF GUILT MAY BE DRAWN
It is a constitutional right of a defendant in a criminal
trial that he may not be compelled to testify. Thus the
decision as to whether he should testify is left to the
defendant, acting with the advice and assistance of his
attorney. You must noc draw any inference of guilt from
the fact that he does not testify, nor should this fact be
discussed by you or enter into your deliberations in any
way.
HISTORY
of this instruction shown
by check ( marks
Requested by People
Requested by Defendant
Given on Court’s Motion
Given as Requested
Given as Modified
Refused
Instruction numbers, captions and
notes are not parts of the respective
instructions, and have not been read
to the jury.
/s8/ W. B. K.
Judge
10
[fol. 56) 9-A. (Revised)
WHEN PENALTY NOT AN ISSUE—CAPITAL CASE
In determining the issue of guilt or innocence in this
case, the subject of penalty or punishment is not to be
discussed or considered by you. If you return a verdict
of guilty of murder in the first degree, then the matter
of penalty or punishment will be considered and deter-
mined by the jury in a separate proceeding. If you re-
turn a verdict of guilty of [murder in the second degree
or of] any lesser offense, the matter of penalty or punish-
ment will be determined by the Court and other govern-
mental agencies.
HISTORY
of this instruction shown
by check () marks
Requested by People v
Requested by Defendant
Given on Court’s Motion
Given as Requested *
Given as Modified
Refused
Instruction numbers, captions and
notes are not parts of the respective
instructions, and have not been read
to the jury.
/s/ W. B. K.
Judge
[fol. 72] VERDICTS, GUILT PHASE
Filed August 22, 1967
{Cavtion Omitted in Printing]
Jury trial is continued from August 21, 1967 with all
present as heretofore. On motion of Defendant Wilkin-
son, Defendant’s Exhibit A (Diagram) is received in
evidence. All sides rest. The jury is instructed. The
Sheriff is sworn. The jury retires to deliberate the cause
at 10:40 AM. At 4:15 PM, the jury comes into Court
with the following verdict:
TITLE OF COURT AND CAUSE
“We, the Jury in the above entitled action, find the de-
fendant Dennis Councle McGautha, guilty of violation of
Section 211 Penal Code, to wit Robberty, as charged in
os 1 of the information, and we find the degree to be
rst.”
This 22nd day of August, 1967
Mr, ALLEN A HAMBLIN
Foreman
“We, the jury in the above entitled action find the de-
fendant Dennis Councle McGautha, guilty of a violation
of Section 211 Penal Code, to wit Robbert as charged in
ny 2 of the information, and we find the degree to
be first.”
This 22nd day of August, 1967
Mr, ALLEN A HAMBLIN
Foreman
“We, the jury in the above entitled action, find the de-
fendant Dennis Councle McGautha, guilty of a violation
of Section 187 Penal Code, to wit Murder, as charged
in Count 8 of the information, and we find it to be in
the first degree.”
This 22nd day of August, 1967
Mr, ALLEN A HAMBLIN
Foreman
“We, the jury in the above entitled action, find the charge
against Dennis Councle McGautha, of being armed at the
time of his commission of the offense as contained in
Count 1 of the information true.”
This 22nd day of August, 1967
Mr, ALLEN A HAMBLIN
Foreman
“We, the jury in the above entitled action, find the charge
against the defendant Dennis Councle McGautha of being
armed at the time of his commission of the offense as
contained in Count 2 of the information true.”
This 22nd day of August, 1967
Mr, ALLEN A HAMBLIN
Foreman
[fol. 73]
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
Department No. 117
MINUTES—August 22, 1967
(continued )
“We, the jury in the above entitled action, find the de-
fendant William Rodney Wilkinson, guilty of a violation
of Section 211 Penal Code, to wit Robbery, as charged
in 3 1 of the information, and we find the degree
to rst.“
This 22nd day of August, 1967
Mr, ALLEN A HAMBLIN
Foreman
“We, the jury in the above entitled action, find the de-
fendant William Rodney Wilkinson, guilty of a violation
of Section 211 Penal Code, to wit Robbery, as charged
in 8 2 of the information, and we find the degree
to rst.”
This 22nd day of August, 1967
Mr, ALLEN A HAMBLIN
Foreman
“We, the jury in the above entitled action, find the de-
fendant William Rodney Wilkinson, guilty of a violation
of Section 187 Penal Code, to wit Murder, as charged
in count 3 of the information, and we find it to be in
the first degree.”
This 22nd day of August, 1967
Mr, ALLEN A HAMBLIN
Foreman
14
We, the jury in the above entitled action, find the charge
against the defendant William Rodney Wilkinson, of be-
ing armed at the time of his commission of the offense
as contained in Count 1 of the information, true.”
This 22nd day of August, 1967
Mr, ALLEN A HAMBLIN
Foreman
“We, the jury in the above entitled action, find the charge
against the defendant William Rodney Wilkinson, of be-
ing armed at the time of his commission of the offense
as contained in Count 2 of the information, true.”
This 22nd day of August, 1967
Mr, ALLEN A HAMBLIN
Foreman
Verdicts are read and recorded. Reading as recorded
waived, The jury is polled. All answer in the affirma-
tive. All verdicts forms submitted to the jury and in-
structions are filed. A Probation Officer’s report ordered.
The jury having returned said verdicts re count 3, the
court orders penalty trial to commence August 23, 1967
at 10:00 AM. The jury is discharged for the night, Each:
Defendant makes motion for new trial, said motion to
be ruled on later, Court states. Each: Remanded.
noe 15
Lol. 74]
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
Department No. 117
MINUTES—August 23, 1967
The jury having found each defendant “Guilty” as
charged, and having found in count 3, Violation of Sec-
tion 187 Penal Code, to be Murder in the first degree.
The Court now orders the penalty phase, by law to com-
mence. Jury trial commences with all present as hereto-
fore. People waive opening statement. Each defendant
reserves right to make opening statement. People’s Ex-
hibit 27 (Police file, prints, etc) received in evidence.
People rest. Defendant Wilkinson makes opening state-
ment. Defendant McGautha reserves opening statement.
Edward D Brinner, William R Wilkinson, Iola Henry,
Charles Henry Davis, Jr, Richard L Sullivan, Laman
Bolling, are sworn and testify for the Defendant Wilkin-
son. Defendant Wilkinson rests. Defendant McGautha
waives opening statement, is sworn and testifies in his
own behalf. Jury admonished. Cause continued to Au-
gust 24, 1967 at 10:00 AM. Each: Remanded.
—ͤ—œ—wũ— — — — — — ow
— —
16
[fol. 75]
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
Department No. 117
MINUTES—August 24, 1967
Jury trial is continued from August 23, 1967, with all
present as heretofore. Defendant McGautha resumes tes-
timony. Defendant McGautha rests. Defendant Wilkin-
son rests. People rest. Cause is argued. Jury is in-
structed. Sheriff is sworn. Jury retires to deliberate the
cause at 2:10 pm. The jury comes into court at 4 pm,
testimony is read to jury and jury instruction 306.2 is
read in open court. The Court orders the jury be locked
up over night at 5:15 pm at the Biltmore Hotel. The
sheriff is sworn to take the jury and alternate jurors in
custody to said hotel. Jury to continued deliberations at
9 am on August 25, 1967. Each: Remanded.
* „ a *
[fol. 81] TOP
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
[Filed Aug. 25, 1967, William G. Sharp, County Clerk,
By J. Chris Williams, Deputy.]
Dept. No. 117
No. A219578
[Title Omitted in Printing]
INSTRUCTIONS REFUSED
Consisting of 2 pages herein
[fol. 82 29.1 (New)
DEFINITION OF ADMISSION
A statement made by a defendant other than at his
trial may be an admission.
An admission is a statement by a defendant, which by
itself is not sufficient to warrant an inference of guilt,
but which tends to prove guilt when considered with the
rest of the evidence.
You are the exclusive judges as to whether an admis-
sion was made by the defendant and if the statement is
true in whole or in part. If you should find that such
statement is entirely untrue, you must reject it. If you
find it is true, in part, you may consider that part which
you find to be true.
HISTORY
of this instruction shown
by check () marks
Requested by People —
Requested by Defendant
Given on Court's Motion
Given as Requested
Given as Modified
Refused —
Instruction numbers, captions and
notes are not parts of the respective
instructions, and have not been read
to the jury.
/s/ W. B. K.
Judge
18
[fol. 83] 89. (Revised)
EVIDENCE LIMITED TO ONE OF
SEVERAL DEFENDANTS
In the trial of this case, certain evidence was admitted
as against one of the defendants, but denied admission
as against the other.
At the time this evidence was received you were ad-
monished that it could not be considered by you as against
the other defendant in deciding his innocence or guilt.
You are again instructed that you must not consider
such evidence as against the other defendant.
The guilt or innocence of each defendant must be
decided as if he were being tried separately.
HISTORY
of this instruction shown
by check () marks
Requested by People
Requested by Defendant
Given on Court’s Motion
Given as Requested
Given as Modified
Refused ad
Instruction numbers, captions and
notes are not parts of the respective
instructions, and have not been read
to the jury.
/s/ W. B. K.
Judge
[fol. 84] TOP
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
[Filed Aug. 25, 1967, William G. Sharp, County Clerk,
By J. Chris Williams, Deputy.]
Dept. No, 117
[Title Omitted in Printing]
INSTRUCTIONS REFUSED WITH EXPLANATION
Consisting of 11 pages herein
fol. 85 306.1 (New)
FIRST DEGREE MURDER—PENALTY
Para. 4
The defendants in this case have] been found guilty
of the offense of murder in the first degree, and it is now
your duty to determine which of the penalties provided
by law should be imposed on each defendant for that
offense. In arriving at this determination you should
consider all of the evidence received here in court pre-
sented by the people and defendants throughout the trial
before this jury. You may also consider all of the evi-
dence of the circumstances surrounding the crime, of the
each defendant’s background and history, and of the facts
in aggravation or mitigation of the penalty which have
been received here in court. However, it is not essential
to your decision that you find mitigating circumstances
on the one hand or evidence in aggravation of the offense
on the other.
It is the law of this state that every person guilty of
murder in the first degree shall suffer death or confine-
ment in the state prison for life, at the discretion of the
jury. If you should fix the penalty as confinement for
life, you will so indicate in your verdict. If you should
20
fix the penalty as death, you will so indicate in your
verdict. Notwithstanding facts, if any, proved in miti-
gation or aggravation, in determining which punishment
shall be inflicted, you are entirely free to act according
to your own judgment, conscience and absolute discre-
tion. That verdict must express the individual opinion
of each juror.
Beyond prescribing the two alternative penalties, the
law itself provides no standard for the guidance of the
jury in the selection of the penalty, but, rather, commits
{fol. 86] the whole matter of determining which of the
two penalties shall be fixed to the judgment, conscience
and absolute discretion of the jury. In the determination
of that matter, if the jury does agree, it must be unani-
mous as to which of the two penalties is imposed.
HISTORY
of this instruction shown
by check () marks
Requested by People a
Requested by Defendant
Retyped Given on Court’s Motion
and Given as Requested
given. Given as Modified
Refused —
Instruction numbers, captions and
notes are not parts of the respective
instructions, and have not been read
to the jury.
/s/ W. B. K.
Judge
(fol. 87] 806-A. (Revised)
SEPARATE DETERMINATION OF PENALTY
OF EACH DEFENDANT
7th
In this case you must decide separately the question of
the penalty of each of the two defendants. If you can-
not agree upon the penalty to be inflicted on both de-
fendants, but do agree as to the penalty of one of them,
you must render a verdict as to the one on which you
do agree.
HISTORY
of this instruction shown
by check () marks
Requested by People
Requested by Defendant
Given on Court’s Motion
Given as Requested
Given as Modified
Refused v
Instruction numbers, captions and
notes are not parts of the respective
instructions, and have not been read
to the jury.
/s/ W. B. K.
Judge
[fol. 88 II. (New)
GENERAL INSTRUCTIONS
Ladies and Gentlemen of the Jury:
It becomes my duty as judge to instruct you in the
law that applies to this case, and it is your duty as jurors
to follow the law as I shall state it to you. On the other
hand, it is your exclusive province to determine the facts
in the case, and to consider and weigh the evidence for
that purpose. The authority thus vested in you is not
an arbitrary power, but must be exercised with sincere
judgment, sound discretion, and in accordance with the
rules of law stated to you.
Both the People and the defendant have a right to
demand, expect, that you will conscientiously and dis-
passionately consider and weigh the evidence and apply
the law of the case, and that you will reach a just ver-
dict regardless of what the consequences of such verdict
may be.
Your verdict must express the individual opinion of
each juror.
You are the exclusive judges of the facts and of the
effect and value of the evidence. You must determine
the facts only from the evidence received in court.
You must not consider as evidence any statement of
counsel made during the trial; however, if counsel for
the parties have stipulated to any fact, you will regard
that fact as being conclusively proved.
As to any question to which an objection was sus-
tained, you must not speculate as to what the answer
might have been or as to the reason for the objection.
You must not consider for any purpose any offer of
evidence that was rejected, nor any evidence that was
stricken out by the court; such matter is to be treated
as though you had never heard it.
It is not necessary that facts be proved by direct evi-
dence. They may be proved also by circumstantial evi-
dence or by a combination of direct evidence and circum-
stantial evidence. There is no distinction between direct
evidence and circumstantial evidence as a means of proof.
Neither is entitled to any greater weight than the other.
23
fol. 89] Direct evidence means evidence that directly
proves a fact, without an inference, and which in itself,
if true, conclusively establishes that fact.
Circumstantial evidence means evidence that proves a
fact from which an inference of the existence of another
fact may be drawn.
An inference is a deduction of fact that may logically
and reasonably be drawn from another fact or group of
facts established by the evidence.
You are the sole judges of the credibility of the wit-
nesses who have testified in this case. In determining
the credibility of a witness you may consider his de-
meanor while testifying; the character of his testimony;
his opportunity and ability to observe, to recollect, or
to communicate any matter about which he testifies; his
character for honesty or veracity or their opposites; the
existence or nonexistence of any bias, interest or motive
in the case; or any statement made by him that is in-
consistent with his testimony.
A witness false in one part of his testimony is to be
distrusted in others; that is to say, you may reject the
whole testimony of a witness who wilfully has testified
falsely as to a material point, unless, from all the evi-
dence, you shall believe that the probability of truth
favors his testimony in other particulars.
You are not bound to decide in conformity with the
testimony of a number of witnesses, which does not pro-
duce conviction in your mind, as against the declarations
of a lesser number or other evidence, which appeals to
your mind with more convincing force. Testimony given
by one witness whom you believe is sufficient for the
proof of any fact.
fol. 90] [Duly qualified experts may give their opin-
ions on questions in controversy at a trial. To assist
you in deciding such questions, you may consider the
opinion with the reasons given for it, if any, by the
expert who gives the opinion. You may also consider
the qualifications and credibility of the expert. You are
not bound to accept an expert opinion as conclusive, but
should give to it the weight to which you find it to be
entitled. You may disregard any such opinion if you
find it to be unreasonable. ]
24
It is your duty as jurors to consult with one another
and to deliberate with a view to reaching an agreement,
if you can do so without violence to your individual judg-
ment. Each of you must decide the case for yourself,
but should do so only after a consideration of the case
with your fellow jurors, and you should not hesitate to
change an opinion when convinced that it is erroneous.
HISTORY
of this instruction shown
by check () marks
Requested by People
Requested by Defendant
Given on Court’s Motion
Given as Requested
Given as Modified
Refused 7
Instruction numbers, captions and
notes are not parts of the respective
instructions, and have not been read
to the jury.
s, W. B. K.
Judge
[fol. 91] ROBBERY
210-A. DEGREE OF ROBBERY
210-B. (Revised)
DANGEROUS OR DEADLY WEAPON—DEFINITION
Robbery is the felonious taking of personal property
of any value in the possession of another, from his person
or immediate presence, and against his will, accomplished
by means of force or fear,
— 0 ——
25
210-A.
Robbery which is perpetrated by torture or by a person
or by two or more persons any one of them being armed
with a dangerous or deadly weapon is robbery in the
first degree. All other kinds of robbery are of the second
degree.
If you should find the defendant guilty of robbery, it
will be your duty to determine the degree thereof and
to state that degree in your verdict.
—0 0 —
210-B. (Revised)
A dangerous or deadly weapon means any weapon,
instrument or object that is capable of being used to
infliet death or great bodily injury. It is not necessary
that such weapon be in fact used nor visible.
HISTORY
of this instruction shown
by check () marks
Requested by People
Requested by Defendant
Given on Court’s Motion
Given as Requested
Given as Modified
Refused v
Instruction numbers, captions and
notes are not parts of the respective
instructions, and have not been read
to the jury.
/s/ W. B. K.
Judge
26
[fol. 92] 808-B. (Revised)
INVOLUNTARY MANSLAUGHTER
There are two classes of involuntary manslaughter:
(1) Involuntary manslaughter is the unlawful killing
of a human being without malice aforethought during the
commission of a misdemeanor which is inherently danger-
ous to human life or safety.
(2) Involuntary manslaughter is the unlawful killing
of a human being without malice aforethought in the
commission of an act ordinarily lawful which involves
a high degree of risk of death or great bodily harm,
without due caution and circumspection,
HISTORY
of this instruction shown
by check () marks
Requested by People 7
Requested by Defendant
Given on Court’s Motion
Given as Requested
Given as Modified
Refused v
Instruction numbers, captions and
notes are not parts of the respective
instructions, and have not been read
to the jury.
/s/ W. B. K.
Judge
{fol. 93] 808. (Revised)
MANSLAUGHTER—VOLUNTARY
AND INVOLUNTARY
Manslaughter is the unlawful killing of a human being,
without malice aforethought. It is not divided into de-
grees but is of two kinds, — voluntary manslaugh-
ter and involuntary manslaughter
HISTORY
of this instruction shown
by check () marks
Requested by People
Requested by Defendant
Given on Court’s Motion
Given as Requested
Given as Modified
Refused —
Instruetion numbers, captions and
notes are not parts of the respective
instructions, and have not been read
to the jury.
/s/ W. B. K.
Judge
— — — —— —
= —
28
[fol. 94] 808-A. (Revised)
VOLUNTARY MANSLAUGHTER
Voluntary manslaughter is the intentional and unlaw-
ful killing of a human being without malice aforethought
upon a sudden quarrel or heat of passion without delib-
eration or premeditation.
HISTORY
of this instruction shown
by check () marks
Requested by People —
Requested by Defendant
Given on Court's Motion
Given as Requested
Given as Modified
Refused —
Instruction numbers, captions and
notes are not parts of the respective
instructions, and have not been read
to the jury.
/s/ W. B. K.
Judge
{fol. 95] 306.1 (a) (New)
EVIDENCE OF OTHER CRIMES
Evidence of other crimes alleged to have been com-
mitted by the defendantſs] may not be considered as
evidence in aggravation unless proved beyond a reason-
able doubt. Reasonable doubt is defined as follows: It
is not a mere possible doubt; because everything relating
to human affairs, and depending on moral evidence, is
open to some possible or imaginary doubt. It is that
state of the case, which, after the entire comparison and
consideration of all the evidence, leaves the minds of
jurors in that condition that they cannot say they feel
an abiding conviction, to a moral certainty, that such
other crime [crimes] has [have] been committed by the
defendant(s].
HISTORY
of this instruction shown
by check () marks
Requested by People
Given but Requested by Defendant
retyped into Given on Court’s Motion
one instruction Given as Requested
7s, W. B. K. Given as Modified “
Refused vd
Instruction numbers, captions and
notes are not parts of the respective
instructions, and have not been read
to the jury.
/s/ W. B. K.
Judge
[fol. 98 VERDICTS, PENALTY PHASE
Filed August 25, 1967
[Caption Omitted in Printing]
Jury trial, penalty phase continued from August 24, 1967.
Jury returns to deliberation at 9 am, On motion of De-
fendant Wilkinson, Attorney E. Broady to sit in for
Attorney Bornstein for jury instructions only. Jury in-
structed. The sheriff is sworn, The jury retires to de-
liberate the cause at 10:10 am, The jury comes into
court at 2:45 pm for further reading of testimony and
then retires to deliberate the cause at 2:50 pm. Jury
returns into Court at 3:35 pm for further reading of
testimony and returns to deliberations at 4 pm. At 4:45
pm, the jury comes into court with the following verdicts:
TITLE OF COURT AND CAUSE
“We the jury in the above entitled action, having found
the defendant, Dennis Councle McGautha, guilty of mur-
der in violation of Section 187 Penal Code, a felony, and
having found it to be murder in the first degree, as
charged in Count III of the information, now fix the
penalty, for said offense at death.
This 25th day of August 1967.
ALLEN A. HAMBLIN
Foreman
“We, the jury in the above entitled action, having found
the defendant William Rodney Wilkinson guilty of mur-
der in violation of Section 187 Penal Code, a felony, and
having found it to be murder in the first degree as
charged in Count III of the information, now fix the
penalty for said offense at life imprisonment.”
This 25th day of August, 1967
ALLEN A. HAMBLIN
Foreman
The verdicts are read and recorded. Reading as recorded
is waived. The jury is polled as to each defendant on
said verdicts. All answer in the affirmative. The jury
81
is discharged. All Exhibits and verdicts and jury in-
structions submitted to the jury are returned and filed
away. Each: Time waived. A Probation Officer’s report
is ordered, Probation and sentence hearing set for Sep-
tember 15, 1967, 9 am, Each: Remanded.
* * * *
[fol. 100] JUDGMENTS
WILKINSON, Filed September 15, 1967
[Caption Omitted in Printing]
Motion for new trial is denied. Sentenced as indicated.
Count 1 211 Penal Code, First Degree. Armed Counts 2
211 Penal Code First Degree armed and Count 3 187
Penal Code First Degree. Ordered merged for purpose
of sentence, Sentenced as indicated on said counts. All
sentences to run concurrently, sentenced to life imprison-
ment on Counts 2 and 3. Defendant files notice of appeal
of Judgement in Propria Persona.
Whereas the said defendant having been duly found
guilty in this court of the crime of ROBBERY (Sec 211
PC), a felony, as charged in each of Counts 1 and 2
of the information, which the Jury found to be Robbery
of the first degree and that defendant was armed as
alleged; MURDER (Sec 187 PC), a felony, as charged
in Count 3, which the Jury found to be Murder of the
first degree; counts 2 and 3 having been merged for
purposes of sentence
It is Therefore Ordered, Adjudged and Decreed that the
said defendant be punished by imprisonment in the State
Prison for the term of his natural life as to Counts 2
and 3 and for the term prescribed by law as to Count 1.
Sentences as to Counts 1, 2 and 3 are ordered to run
CONCURRENTLY with each other.
It is further Ordered that the defendant be remanded
into the custody of the Sheriff of the County of Los An-
geles, to be by him delivered into the custody of the
yo of Corrections at the California State Prison
at Chino.
[fol. 101]
McGAUTHA, Filed September 29, 1967
[Caption Omitted in Printing]
Motion for new trial denied. Court states he has read
report. Motion for reduction of sentence is denied. Pro-
bation denied. Sentenced as indicated. Motion of de-
fendant, Attorney Lloyd is relieved. Defendant files
Notice of Appeal of Judgment in propria persona. Court
orders Counts II, 211 Penal Code Ist degree and Count
III, 187 Penal Code, Murder, merged for purpose of
sentence, Court orders sentence on Count III, 187 Penal
Code at death penalty.
Whereas the said defendant having been duly found
guilty in this court of the crime of ROBBERY (Sec 211
PC), a felony, as charged in each of Counts 1 and 2
of the information, which the Jury found to be Robbery
of the first degree and that defendant was armed as
alleged; admitted prior convictions as alleged, to wit:
Theft over $50, a felony, District Court of the State of
Texas, Dallas County, October 26, 1943; Robbery, a
felony, District Court of the State of Texas, Dallas
County, October 26, 1943; Murder Without Malice, a
felony, District Court of the State of Texas, Harris
County, November 23, 1943; Robbery by Assault, a
felony, District Court of the State of Texas, Harris
County, May 16, 1952 and served a term in the State
Prison for each prior conviction; counts 2 and 3 having
been merged for purposes of sentence
It is Therefore Ordered, Adjudged and Decreed that the
said defendant be punished by imprisonment in the State
Prison for the term prescribed by law, on said counts.
Sentences as to Counts 1 and 3 are ordered to run CON-
CURRENTLY with each other.
It is further Ordered that the defendant be remanded
into the custody of the Sheriff of the County of Los An-
geles, to be by him delivered into the custody of the
ng ed of Corrections at the California State Prison
at Chino.
—
[fol. 102] [Caption Omitted in Printing]
Motion for new trial denied. Court states he has read
report. Motion for reduction of sentence is denied. Pro-
bation denied. Sentenced as indicated. Motion of de-
fendant, Attorney Lloyd is relieved. Defendant file
Notice of Appeal of Judgment in propria persona Court
orders Counts II, 211 Penal Code Ist degree and Count
III, 187 Penal Code Murder, merged for purpose of sen-
tence. Court orders sentence on Count III, 187 Penal
Code at death penalty.
Whereas the said defendant having been duly found
guilty in this court of the crime of MURDER (Sec 187
PC), a felony, as charged in Count 3 of the information,
which the Jury found to be Murder of the first degree
and fixed the penalty at death; admitted prior convic-
tions as alleged, to wit: Theft over $50, a felony, Dis-
trict Court of the State of Texas, Dallas County, October
26, 1943; Robbery, a felony, District Court of the State
of Texas, Dallas County, October 26, 1943; Murder With-
out Malice, a felony, District Court of the State of Texas,
Harris County, November 23, 1948 and Robbery by As-
sault, a felony, District Court of the State of Texas,
Harris County, May 16, 1952 and served a term in the
State Prison for each prior conviction
It is now the judgment and sentence of this Court for
the offense of Murder in the first degree, you suffer the
death penalty, and that said penalty be inflicted within
the walls of the State Penitentiary at San Quentin, Cali-
fornia, in the manner and means as prescribed by law
and you are remanded to the care, custody and control
of the Sheriff of Los Angeles County, to be by him de-
livered within ten days from date hereof to the Warden
of the State Penitentiary at San Quentin, for execution
of the sentence, and to be held by him pending final
determination of the appeal in this matter, which is
automatic.
* * a *
| eee te ·˖%e
— —-—-—t—
—
PROCEEDINGS IN CHAMBERS REGARDING
PRIOR CONVICTIONS
[fol. 25
LOS ANGELES, CALIFORNIA, MONDAY
AUGUST 14, 1967, 10:30 A.M.
in
(The following proceedings were had in chambers:)
THE COURT: Your name is Dennis Councle Mc-
Gautha; is that correct?
DEFENDANT McGAUTHA: Les.
THE COURT: And your name is William Rodney
Wilkinson; is that correct?
DEFENDANT WILKINSON: Right.
THE COURT: All right, I will have the record re-
flect, now, the appearance here in chambers of both de-
fendants and the presence of all counsel in this matter,
Mr. Lloyd, Mr. Cochran, and Mr. Bornstein.
There is a third defendant named in this Information.
That is Fannie Lue Smith, the female defendant. Due to
some difficulty in transportation she has not as yet ar-
rived here in the Brunswig Building and she is en route.
We do, however, at this time, have our jury panel
present in the courtroom and, if course, the record should
reflect, if it does not, that this entire proceeding is being
conducted in chambers outside of the presence of the
jury.
My though is at this time, in light of our prior con-
versation that there is to be a motion on behalf of de-
fendant Fannie Lue Smith, for a severance, which is to
{fol.26] be unopposed by the People, that we can go
ahead at this time and at least start a selection of the
jury, and I will hear the motion, and in light of the fact
that there will be no opposition to it by the People and,
I understand, no opposition from either defendant Mc-
Gautha or Wilkinson, I can hear that matter and grant
it and we can go ahead and use the time, if that is agree-
able with the People?
MISS OBERA: Yes, your Honor.
35
THE COURT: And is that agreeable with defendant
McGautha?
MR. LLOYD: Yes, it is.
THE COURT: Is that eorrect, Mr. McGautha?
DEFENDANT McGAUTHA: Les.
THE COURT: Is that agreeable with defendant Wil-
kinson?
DEFENDANT WILKINSON: Yes.
MR. BORNSTEIN: Yes.
THE COURT: Is that agreeable with you, Mr. Coch-
ran, on behalf of Fannie Lue Smith?
MR. COCHRAN: Certainly, your Honor. It certainly
is.
THE COURT: All right, then we will proceed on this
matter.
I will grant the motion at the time it is made to
sever Fannie Lue Smith from the trial, and the under-
[fol. 27] standing is that her matter will then be tried
at the conclusion of this trial.
The other matter to be taken up here in chambers, at
this time, is, in addition to the three counts set forth in
the Information, we have an allegation in the Informa-
tion as to defendant Dennis McGautha of one, two, three,
four prior felony convictions, and it is my understanding,
Mr. Lloyd, that you desire at this time to have defendant
McGautha admit those priors outside the presence of the
jury.
MR. LLOYD: That is correct, your Honor.
You do admit the priors, don’t you, Mr. McGautha?
DEFENDANT McGAUTHA: Yes, I do.
MR. LLOYD: You recall I discussed that with you
and you want to admit them here so the jury doesn’t hear
them; okay?
DEFENDANT McGAUTHA: Yes.
THE COURT: Would you arraign the defendant on
the priors, then, Miss Obera?
MISS OBERA: Mr. McGautha, it is alleged that be-
fore the commission of the offenses with which you are
now charged you were, under the name of Dennis Mc-
Gautha, in the District Court of the State of Texas, for
the County of Dallas, convicted of the crime of theft,
over fifty dollars, a felony, and judgment of the Court
86
[fol. 28] was rendered on or about the 26th day of Oc-
tober, 1943, and you served a term of imprisonment
thereof in the state prison.
Do you admit or deny that?
DEFENDANT McGAUTHA: I admit this.
MISS OBERA: It is further alleged that before the
commission of the offenses alleged in this Information
you were, under the name of Dennis McGautha, in the
District Court of the State of Texas, for the County of
Dallas, convicted of the crime of robbery, a felony, and
the judgment of the Court was rendered on or about the
26th day of October, 1943, and you received a term of
imprisonment in the state prison for that crime.
Do you admit or deny that?
DEFENDANT McGAUTHA: I admit it.
MISS OBERA: It is further alleged that before the
commission of the offenses charged in this Information
you were, under the name of Dennis McGautha, in the
District Court of the State of Texas, for the County of
Harris, convicted of the crime of murder without malice,
a felony. The judgment of the Court was rendered on
or about the 23rd day of November, 1948, and you
served a term of imprisonment in the state prison for
that crime.
Do you admit or deny the allegation?
DEFENDANT McGAUTHA: Explanation, please. It
[fol. 29] was not murder without malice, it was man-
slaughter.
MR. LLOYD: All right, murder without malice.
Mr. McGautha, I would advise you to admit it as read;
all right?
DEFENDANT McGAUTHA: I admit it.
MISS OBERA: It is further alleged that before the
commission of the offenses alleged in the Information you
were, under the name of Dennis McGautha, in the Dis-
trict Court of the State of Texas, for the County of
Harris convicted of the crime of robbery by assault, a
felony, and the judgment was rendered on or about the
16th day of May, 1952, and you served a term of im-
prisonment in the state prison for that crime.
Do you admit or deny that allegation?
37
DEFENDANT McGAUTHA: I admit it.
THE COURT: All right, the record will reflect now
that the defendant has admitted all the priors outside of
the presence of the jury.
All right, we will proceed with the selection of the
jury.
(Whereupon, the following proceedings were had in
open court within the hearing of the prospective jur-
ors:)
THE COURT: This case of People vs. Dennis Mc-
Gautha and William Rodney Wilkinson.
MR. LLOYD: Defendant McGautha is present and
ready, your Honor.
* * „ *
[fol. 87]
PROSPECTIVE JUROR KISCHELL
VOIR DIRE EXAMINATION
BY MR. BORNSTEIN:
Q Mrs. Kischell?
A Yes.
Q May I ask you what your business or occupation is;
housewife?
A Housewife.
Q And is there a Mr. Kischell?
A No, there isn’t.
[fol. 88] Q Have you been the victim of a robbery or
burglary?
A No.
2 ei any of your friends or neighbors?
o.
Q Have you sat on any prior cases before involving
persons charged with robbery or burglary?
A Yes. Yes, in 58 I just remembered I sat on one
that was a robbery.
Q This was on a prior tour of duty as a juror?
A Yes.
Q Was this in Los Angeles County?
A Yes.
88
Q Now, you understand that the mere fact that you
have sat on a prior case that doesn’t make any difference
as far as this case?
A Oh, no.
Q You understand that as far as this case is con-
cerned it is like that piece of paper there; right?
A That's right.
Q Now, let me ask you this: suppose you are picked
as one of the jurors, and you are in the jury room, and
you have had a little prior experience sitting as a juror,
you wouldn’t try to, in a sense, run the situation; would
you
A Definitely not.
[fol. 89] Q You understand that each defendant is en-
titled to each one of your individual opinions as to their
innocence of guilt; you understand that?
A That's right.
Q And you understand that each defendant would be
entitled to your individual opinion, assuming we got to
the stage as to how he should be punished?
A Yes.
Q And that you would discuss the matter with the
other jurors; is that correct?
A That's right.
Q But that if you have reached a conclusion and you
feel it is a proper one, you would have a right to your
opinion?
A Yes.
Q You understand that? You understand that in a
sense you are sitting as a judge, just as Judge Keene
sits. He judges the situation as far as the law and the
procedure and how he carries on the trial, but as far as
the facts and the opinions and conclusions which are
drawn from facts, that you are the judge; you under-
stand this, do you not?
A That's right.
Q You understand, I’m sure, I don’t have to repeat
this, but I am going to ask each of you again the awe
some responsibility that you have in a case of this
[fol. 90] magnitude; do you understand that?
A I do.
Q Do you understand that two people’s lives, in a
sense, are in your hands?
A That's right.
Q And that you are going to take and judge each of
these persons as individuals; is that right?
A Yes.
Q Now, assuming that we have reached the stage of
penalty, again, you understand that you are going to
be the person who fixes it, in a sense, the punishment,
assuming we reach the penalty stage of the murder
prosecution, and that the law, in a sense, gives you very
few guidelines. That in a sense it says you decide it
based upon the facts that have been presented to you
and whatever other competent evidence is before you
on what should happen to these persons. Do you feel
you could do this?
A I think so.
Q And, again, I will ask the question, the fact that
a person is of a different racial origin, that this is the
United States of America and it can’t make any dif-
ference; you understand that; don’t you?
A That's right.
You know that even though there have been prob-
lems with certain groups that have come about, that
(fol. 91] this can’t color your thinking. You must de-
cide on these persons as human beings and individuals;
you understand that, don’t you?
A Yes.
— Q And none of the prejudices that all of us have
do some degree, or none of these sympathies that all of
us have to some degree can enter into your verdicts;
you understand that?
| A Yes.
| Q You must decide upon the facts and the law and
nothing else?
A Yes.
Q Is there any reason why you feel that you can-
not be a fair and impartial juror sitting on this case?
A No, I can’t think of any.
2 vou do, you will let us know; right?
es.
[fol. 148]
PROSPECTIVE JUROR KISCHELL
VOIR DIRE EXAMINATION
BY MISS OBERA:
Q Mrs. Kischell, you have not been a juror before
either; have you?
A Yes, I have.
Q Oh, you have. And was that a criminal case?
A Well, a robbery. It was criminal.
That's right. Did this occur on your earlier tour?
[fol. 1491 A Yes.
Q We will also be involved in robberies here, as
you heard. I take it you would not let anything that
happened in the earlier case affect your judgment here?
A No, it would be entirely different.
Q Incidentally, it may come to your attention during
the course of this trial, in addition to the two defendants
who are on trial, there is another person who seems
to be involved in these robberies throughout. Now will
that fact, do you think, affect your verdict in this
case in any way?
A I don’t know.
Q Well, let’s assume that when you start hearing
evidence it comes to your attention there is another
person and this other person’s name keeps coming up
and then identification keeps coming up throughout the
case and that person is not before you for trial. All
right, now, you understand each defendant is entitled
to your individual verdict; do you not?
A That's right.
Q Now, can you determine the guilt or innocence
of these defendants individually without reference to
some third person who is not before the Court?
A I believe so.
Q Each person feels that he would answer that same
way and you wouldn’t speculate about why that other
[fol. 150] person isn’t here and you wouldn't speculate
if you get to the penaity phase about, “Why should I
write in a death penalty for either of these persons
when I know that somebody else is involved and that
person isn’t here before me?”
41
Do you think you would be tempted to speculate
about these matters?
A I don’t believe so.
Q If you find as you go along that you might be,
would you let us know?
A I certainly would.
[fol. 126] PROSPECTIVE JUROR PEREZ
VOIR DIRE EXAMINATION
BY MR. BORNSTEIN:
Q@ Mr. Perez, may I ask what your business or
occupation is?
A Yes, I am a dealer and collector of pre-Columbian
Q Of all the jurors I have inquired of you do have
the most unusual occupation I have ever run into.
[fol. 127] In your occupation such as this, have you
ever been the victim or do you know of any of your
associates that have been victims of a burglary or rob-
bery?
A No.
And have you sat on any prior cases?
A No, I have not.
Q@ Do you have any friends or relatives who are
members of any law enforcement agency?
A No, I have not.
Q Now, if you are chosen as a juror to sit in this
particular proceeding you will use your own intelligence
and you will analyze the evidence as you think it
should be analyzed; is that correct?
A That's right.
Q You heard my little statement as far as the red
light situation?
A Les.
Q And the fact that some of the jurors may say,
Well, I think that the policeman saw what he says he
saw,” and others may say, Well, I think the man came
to a full stop and the policeman just wasn’t paying too
much attention,” reasonable people can disagree over in-
1
3
42
3 of reasonable evidence; you understand
t
A Yes, I do.
[fol. 128] Q The fact that there may be a disagree-
ment over interpretations between all you persons who
would be in the jury room, this can be reasonable under
the circumstances; you understand that?
A Yes.
Q You understand, also, that it would be your duty
as a juror to fully discuss any of these things that
you disagree upon and not just sit there and say, “I
don’t like the way he is talking and I will just go and
take my position.” You understand that this would be
quite unfair to all parties?
A Yes.
Q You understand that it is an expensive proposi-
tion for the state to pay you and pay the court and
everybody else and that all of us, in a sense, want a
verdict, but that the verdict that we want must be based
on the evidence and the law and nothing else; you under-
stand that?
A Correct.
Q And, therefore, if you accept a position that would
be contrary to what some of the other jurors believe
or think, you are not going to abandon your position
just to go along with the majority, say, would you?
Would you abandon your position just to go along?
A No, I would not.
Even though you may think, “Gee, I hate to waste
[fol. 129] the time and I hate to see all these people
waste their time,” you are entitled to your opinion and
that is of primary importance; you understand that?
A That's right.
Q Now, with reference to the charges, again, I will
repeat, you understand that they are individual charges,
they are individual sets of circumstances that you must
make individual verdicts on?
A That's right.
Q And the same thing, assuming that you get to
the penalty phase, you are going to run into the same
situation there. You are going to use your mind to
analyze the evidence as you think it should be analyzed
43
and you are going to discuss it but you are going to
arrive at your verdict as to what you believe it should be?
A That is correct.
MR. BORNSTEIN: Thank you.
[fol. 156] PROSPECTIVE JUROR PEREZ
VOIR DIRE EXAMINATION
BY MISS OBERA:
Q Mr. Perez, I will ask you the same questions which
I have asked the other prospective jurors. Do you think
of any question you would answer differently?
A No.
(fol. 188] PROSPECTIVE JUROR THOMAS
VOIR DIRE EXAMINATION
BY MR. BORNSTEIN:
Q Mr. Thomas, I’m sure you remember the ques-
tions of yesterday and I am going to be rather brief,
if I may.
In my questions that I asked of the other jurors
are there any answers that you would have answered
in a different manner?
A Substantially, no.
Lou heard the statements that I made with ref-
erence to the various charges and you understand that
[fol. 134] it would be your duty to take each charge as
an individual matter; is that correct?
A Ves, sir.
Q And you also heard the questions and the answers
with reference to the individual personalities involved
and, again, it would be your duty to take each of the
defendants as an individual human being and judge
him alone, not in relationship to the other, if the proper
time comes; you understand that, do you not?
A Yes, sir.
Q Is there anything about this matter or the pro-
ceedings that are before the court today that would
ao
44
cause you to feel that you could not serve as a fair and
impartial juror?
A No.
Q May I ask what your business or occupation is?
A Immediately prior to being called for jury I grad-
uated from the commercial airline ground training course
and I will be so employed when I am through.
Q And may I ask what your occupation was prior
to that?
A I have been in the service, Army.
And did you have any connection with, or do
you have any friends that are connected with any police
authorities or prosecution agencies?
[fol. 1351 A No, sir.
And as far as the penalty, the death penalty is-
sue, you have an open mind on this? You are not an
advocate as to the abolition, or you will not try to
enforce it heavier; is that correct?
A Not consciously, no.
And if you discover sometime along the line that
something crops up in your thoughts, you are going
to try to put them out of your mind which would make
you an advocate rather than a judge; is that correct?
A Yes, sir.
MR. BORNSTEIN: Pass for cause, your Honor.
* * * *
[fol. 157] PROSPECTIVE JUROR THOMAS
VOIR DIRE EXAMINATION
BY MISS OBERA:
And, Mr. Thomas, I will ask you the same ques-
tions which I have asked the other prospective jurors
and ask you if you can think of any question you would
answer differently?
A No.
MISS OBERA: Has anybody seated in the jury box
ever been present when a jury has returned a penalty
of death? Anybody?
All right, now the remarks I am going to make right
now are to prepare you for a time that you are
45
totally unfamiliar with, and if after consideration of
what I say you feel that you should not serve on this
case don’t hesitate to let us know.
I want you to think, now, we have passed the de-
termination of guilt or innocence to a time about ten
days from now, and at that time maybe the atmosphere
in the courtroom will be totally different. It will prob-
ably be very tense and there may very well be rela-
tives and friends of the defendants here in the court-
room, and there may very well be tears and other emo-
tional outbursts on the part of those friends and rela-
tives, and those two defendants will be sitting there
[fol. 158] in the courtroom waiting for your verdict. And
when you come in the courtroom, if you are bringing in
a death penalty, the clerk is going to read that penalty
in open court then you will be asked, each of you,
if that is your verdict.
Now, if it comes down to that, Mr. Taylor, do you
think that you could answer yes?
PROSPECTIVE JUROR TAYLOR: Yes. |
MISS OBERA: And how about you, Mr. Stout?
PROSPECTIVE JUROR STOUT: Yes.
MISS OBERA: And, Mrs. Terrile?
PROSPECTIVE JUROR TERRILE: Yes.
MISS OBERA: Mr. Loop?
PROSPECTIVE JUROR LOOP: Yes.
MISS OBERA: Mrs. Kischell?
PROSPECTIVE JUROR KISCHELL: Yes.
MISS OBERA: Mrs. Gripkey?
PROSPECTIVE JUROR GRIPKEY: Yes.
MISS OBERA: Mr. Thomas?
PROSPECTIVE JUROR THOMAS: Yes.
MISS OBERA: Mr. Perez?
PROSPECTIVE JUROR PEREZ: Yes.
MISS OBERA: Mr. Hondrick?
ROSPECTIVE JUROR HONDRICK: Yes.
MISS OBERA: Mr. Hunt?
PROSPECTIVE JUROR HUNT: I believe so.
[fol. 159] MISS OBERA: Mr. Kuretich?
PROSPECTIVE JUROR KURETICH: Ves.
MISS OBERA: Mr. Morrison?
PROSPECTIVE JUROR MORRISON: Yes.
MISS OBERA: Pass for cause.
[fol. 288] THE CLERK: Mrs. Evelyn G. Janssen,
J.-a-n-s-s-e-n.
PROSPECTIVE JUROR JANSSEN
VOIR DIRE EXAMINATION
BY THE COURT:
Q Mrs. Janssen, have you been able to hear the pro-
ceedings as they have gone on thus far?
A Les, sir.
Q Calling your attention, then, first, to the nature
of this litigation, do you know of any reason why you
could not sit on this case if called upon to do so?
A No, I do not.
Q Do you know, Mrs. Janssen, any of the partici-
pants to the litigation?
A No, I don’t.
Q Do you know anything about it other than what
you heard me state to the court what the charges are?
A None.
Q You were able to hear my statements to the other
jurors as to the nature of the proceedings; is that
correct?
A Yes, I did.
[fol. 289] Q And you understand that; is that right?
A Yes, sir.
Lou heard my questions and counsels’ questions
directed to the other prospective jurors as well; is that
right?
A Yes, sir.
Q As you heard those questions, and heard your
fellow jurors answer and applied those questions to your-
self, did they suggest to you any reason why you could
not sit on this case?
A None whatsoever.
Q Did they suggest any type of personal informa-
tion which you would like to advise counsel of at this
time?
47
No, sir.
I take it, then, that you have not, for example,
a victim of a robbery; is that right?
No, I haven’t.
Q You, I take it, that you are not—you do not
have any members of your family or close friends that
are members of law enforcement agencies?
A That is right.
Q You agree, then, Mrs. Janssen, in this case that
you will take the evidence from one source and one
source only and that is here in the courtroom as it is
received during the course of the trial?
[fol. 240] A Yes, sir.
Q You further agree that you will follow the law
as I shall state it to you at the conclusion of the case;
is that right?
A Yes, sir.
Q I take it that you do not belong to any organi-
zation that advocates the retention of or the abolition
- — death penalty in the State of California; is that
ght
A That is right.
THE COURT: Mr. Lloyd, you may inquire for cause.
MR. LLOYD: Pass for cause, your Honor.
THE COURT: Thank you, Mr. Lloyd.
Mr. Bornstein?
A
Q
been
A
VOIR DIRE EXAMINATION
BY MR. BORNSTEIN:
Mrs. Janssen, may I ask what Mr. Janssen does?
He is a foreman for Aerojet General in Downey.
— you are a housewife?
es,
Have you sat on any prior juris involving crim-
inal cases?
A Tes, one small criminal case on narcotics three
(fol. 241] Years ago in March.
But I am sure it wasn't a small case because it
is just as important to that defendant.
A That is correct.
OP PO
48
Q And the fact that you have had prior experience
would make no difference in this case; is that correct?
A That’s right.
Q And you are going to have an open mind to all
the evidence that will be presented to you here; is that
correct?
A Les, sir.
Q I just sort of hate to keep repeating myself but
I’m sure you realize the seriousness of what is going on
here?
A Yes, sir.
Q And you can appreciate, though, even though it
may be boring and time consuming, that we have to do
what we feel is right; you understand that?
A That’s right.
Q The fact that we are taking up time, I’m sure
you don’t—you realize that it is not arbitrary or ca-
pricious, we are trying to, all of us, to do the right
thing?
A That's right.
Q And the fact that we have asked certain people
[fol. 242) to step down for what appears to be no ap-
parent reason doesn’t cause you to feel that you would
not be fair to everybody concerned; is that correct?
A That is correct.
Q It reminds me of a story once when a court re-
porter friend of mine was sitting in a case and the
attorney asked the young lady to step down and the
reporter asked him afterwards, “How come you asked
that pretty young lady to step down?” He said, It re-
minded me of my first wife.”
So you see, we can listen to our hunches. We do
what we have to do, nothing personal. I know you
realize that; is that correct?
A I realize that.
Q Now, the fact that we have spoken about the bi-
furcated or double proceedings that may or may not
happen in this particular case, you understand that be-
cause we have discussed it does not mean that we have
formed any opinions, or that we are trying to give you
49
any opinions as to what you should or should not do;
you understand that?
A I realize that.
Q The fact that we say, “Well, if it gets to the
second stage,” we are not presenting to you any factual
evidence or any facts or any inferences from what we
are saying to you that, “Well, it will get to the second
[fol. 243] stage.“ You understand that; do you not?
A Yes, sir.
Q We are merely questioning you because we have
no other opportunity at a later time to ask you these
questions; correct?
A Yes.
Q And the fact that we sort of ask you these ques-
tions, you understand what we are getting at, and if
anything is different you are going to tell us; is that
correct?
A I will.
Q And is there anything about the proceedings that
have happened so far to cause you to feel that you can-
not be fair to all parties concerned?
A No, sir.
Q Is there anything that you want to bring up or
discuss with me at this stage where it would have some
bearing on your being a fair and impartial juror?
A Nothing I can think of.
Q There is no reason as you sit here now as to why
you feel you could not do your job right; is that correct?
A That's right.
MR. BORNSTEIN: Thank you very much.
Pass for cause, your Honor.
THE COURT: Thank you, Mr. Bornstein.
[fol. 244] Miss Obera?
VOIR DIRE EXAMINATION
BY MISS OBERA:
Q Mrs. Janssen, do you have any religious beliefs
which you think might make it impossible for you to
render a death penalty verdict in any case?
A No, ma’am.
— nt serena see stress fe
Q You know, sometimes when we are here in the court-
room, we assume certain roles. We think of ourselves
as jurors and maybe we haven’t considered all of the
other things that enter into our life which we will
have to face when we leave the courtroom, and you might
go home and start thinking about it and say, “Well,
you know, I said I didn’t have any conscientious scruples,
and I don’t, but now that I think about it, it wouldn’t
go alone with the ideas of my church,” something like
— — don’t have any feelings like that?
o.
Q When you were a juror before, that was some time
ago; was it not?
A Well, I was—I sat on a civil case just a week and
a half ago, but the criminal case was three years ago in
March.
[fol. 245] Q Did you sit on that civil case with any
of the other ladies and gentlemen who are seated here in
A No.
Q And it doesn’t offend you when one side or the
other excuses somebody; does it?
A No, it doesn't.
And if you yourself were excused, you would not
consider that a reflection upon your ability to serve as a
juror; would you?
A Certainly not.
Q We have talked quite a bit about penalty, and we
have skipped over those qualifications which relate to the
determination of guilt or innocence to a certain degree.
Now, do you recall all these questions I asked about
giving witnesses immunity, by a person not being a
trigger man and still being subject to prosecution for
murder, those questions? Do you recall those?
A Yes, I recall those.
Did you answer those to yourself?
A Yes, I did.
51
And did you think of any question which you
would answer differently from what other juror an-
[fol. 246] swered those questions?
A No, I didn’t.
Q As far as you know at this time there is no reason
why you could not sit as a juror in this case?
A None whatsoever.
And you are willing to undertake all the responsi-
bility which goes with being a juror in this kind of a
case?
A Yes.
And you will answer to your own conscience for
your verdict?
A Definitely.
And you don’t have to answer to your husband or
to your neighbors?
A No.
And you feel that you are willing—You under-
stand that, now, I am speaking about the death penalty
again. That if a verdict of death is returned in this case
it will be your doing?
A Yes, I realize that.
Q And you nevertheless are willing to undertake the
responsibility?
A Yes, I am.
Q You would not find it easy?
A No.
MISS OBERA: Thank you. Pass for cause.
[fol. 262] THE CLERK: Leonard Wain, W-a-i-n.
PROSPECTIVE JUROR WAIN
VOIR DIRE EXAMINATION
BY THE COURT:
Q Mr. Wain, having followed the procedures thus far
from your vantage point in the back of the courtroom,
as you take your seat now in the jury box do you know
of any reason why you could not sit on this type of a
case?
A No.
Q Have you had occasion, Mr. Wain, to serve as a
juror before?
A No.
Q This is your first case?
A Yes.
Q I take it, then, that you do not know any of the
participants to the litigation; is that correct?
A That is correct.
Q You understood, did you not, my statement to the
jurors as to the nature of the pleading known as the
[fol. 263] Information, and the three counts in the Infor-
mation, two counts of robbery and one count of murder;
you understood that?
A Yes.
Lou understood what I told the jurors what the
word information was; did you not?
A Les, sir.
Q I stress that because in one recent case, after
going through all of this, I received a note from the jur-
ors asking me what the word information meant, so I
think it was a legitimate question and an oversight on
my part.
So, once again, I state that an Information is the name
of a pleading which we give to certain criminal cases,
and that is what the case is based upon.
You heard me when I stated to the other jurors that
the defendants, and each of them, have entered a plea of
not guilty to these charges.
A jury trial has been agreed upon and that is why we
are here; do you understand that?
A Yes.
Lou further understand that the People having
filed these charges have the burden of proof in a criminal
case, and that is the burden of proving the case, if it is
capable of proof, beyond a reasonable doubt, and that
these defendants, and both of them, are presumed to be
[fol. 264] innocent until the contrary is proved; you ap-
preciate that?
A Yes.
58
Q I take it, then, Mr. Wain, that you will decide this
case based upon the evidence as it is received here in
court during the course of trial and based upon the law
as it will be stated to you; is that right?
Y
es.
I take it, then, that you do not belong to any or-
geben that advocates the abolition or retention of the
dea th penalty i in the State of California; is that right?
A That is correct.
Q And you appreciate the fact that our legislature in
their wisdom has seen fit to leave the decision as to the
proper penalty in a case where the verdict is murder in
the first degree to the jury and that the legislature has
seen fit to impose two alternative punishments, one,
death, or, life imprisonment, and they leave that sole and
exclusive decision to the jury; you understand that?
A Yes.
Q You do not entertain any feeling about one type
of penalty over the other that would preclude you from
rendering a penalty, say, for example, of death in a
[fol. 265] proper case; is that right?
A That is correct. —
THE COURT: Thank you, Mr. Wain.
Mr. Lloyd, you may inquire of this juror for cause.
MR. LLOYD: I will pass for cause.
Thank you, your Honor.
THE COURT: Thank you, Mr. Lloyd.
Mr. Bornstein?
VOIR DIRE EXAMINATION
BY MR. BORNSTEIN:
Q Mr. Wain, may I ask you your business or occupa-
tion, sir?
A Iam a salesman.
. And what type of product are you involved in sell-
ing
A I sell women’s clothing.
Q You deal with retail or wholesale levels?
A Retail.
— . — — « —
— a a
of
Q And the fact that you deal with retail levels of
outlets, have you ever been involved with persons that
you know of that have been victims of robberies or bur-
glaries?
A No.
[fol. 266] Q Is there anything about the nature of the
charges, the seriousness of the nature of the charges, that
would cause you to feel that you would have a problem in
this case?
A No.
Q With reference to the term death penalty, is there
anything about that that brings anything to mind that
you would want to discuss at this time?
A No.
Q Have you discussed it with other persons?
A Several years ago a controversy came up.
Q Over Carroll Chessman or after him?
A I think it was during that time.
Q And with reference to the discussion, you formed
no opinion, I presume, that would cause you to be an
advocate as to either position; is that correct?
A That is correct.
Q You understand that it is not our prerogative to
argue the propriety of the death penalty. It is in the
law and it is here today and we must live within this
framework; you understand that, do you not?
A Yes.
Q But that it would be improper on your part to ad-
vocate certain enforcements or non-enforcements of the
penalty based upon sympathies or prejudices that you
may have if you are called upon to sit as a juror and we
[fol. 267] get to that stage; right?
A Yes, sir.
Q Now, are you a member—I’m sorry, are any of
your friends or members of your family members of any
police or prosecution agency?
A No.
Q Have you sat on any prior cases involving crimi-
nal charges? N
A No.
exe meen cnet inate Cl ll Ll AO ATO
rs
Q Now, again, going into the factors that I have cov-
ered before, the fact that we have asked certain people to
step down and you may have walked over with them and
discussed the weather with them, or whatever else came
to mind, you understand that this can in no way affect
your verdict?
You understand that what we do as attorneys, that
we are trying to do our job as we see fit, and we cannot
do something that you feel, “I don’t like the attorney,
therefore, I am going to take it out on the client.” You
understand that?
A Yes.
Q You understand that at times we will ask certain
questions where objections will be made, and that in
doing this we are not trying to keep anything from you
but we are trying to carry the rules out as it should be;
you understand that?
[fol. 268] A Yes, sir.
And you are not going to speculate or guess why
we did it or what the outcome of the question or answer
would have been if it is not allowed to come out; you un-
derstand that, do you not?
A Yes, sir.
Q That at certain times we may be questioning wit-
nesses and we may be questioning them in a manner
where it appears to be unkind, or that we are pushing, or
we are trying to do something that you feel is unfair or
unkind, again, you must understand that we have a right
to carry the case out as we see fit; you understand this;
do you not?
A Yes, sir.
Q And that if we get out of line, the judge is the
arbitrator as to how the rules are carried out and he will
stop it; you understand that?
A Yes.
Q And the fact that we may do this at times you
cannot hold our conduct against the outcome with refer-
ence to our clients?
A Yes.
Q Is there anything about the fact that we have dis-
cussed the bifurcated or the double nature of the pro-
Fr —L—„— [ wV2—
56
ceedings over and over again that would cause you to feel
that we are conceding anything, or we are admitting
* 3 anything, or anything of that nature?
0.
Lou understand that we shall not have another op-
portunity to discuss your qualifications, so that we have
to do it now even though we are making certain assump-
tions that something may or may not happen in the
future?
A Yes.
Q Is there anything about any of the questions that
have been asked by myself or the other attorneys that
you would want to discuss at this time?
A No.
Q Do you feel that, as you sit here now, that you
could properly sit in this case and carry out your duties
as a juror fairly and honestly?
A Yes.
Do you understand that although a person may be
of a different race than you or myself, he is entitled to
the same protection of the law as all of us?
A Yes.
Lou don’t have any qualms about enforcing the
law properly, fairly, and honestly, no matter what the
person is as far as his background?
A That's right.
MR. BORNSTEIN: Thank you.
[fol. 270] Pass for cause, your Honor.
THE COURT: Thank you, Mr. Bornstein.
Miss Obera?
VOIR DIRE EXAMINATION
BY MISS OBERA:
Q Mr. Wain, did you answer all of the questions to
yourself as I was questioning the other prospective jur-
ors?
A Yes.
Q And did you think of any question which you would
have answered differently?
57
A No.
Q I notice you have a book there. Are you going to
school part time or anything like that?
A No, it is a book on the stock market.
Q Do you expect any problems in the market that
may divert your attention from the case in the next few
days?
4 No, I am just studying the market.
Q Have you ever made any study of the law?
A No.
Q Never gone to law school or anything like that?
A I took a couple of courses in college.
Q What courses did you take?
[fol. 2711 A Business law. Constitution law.
Q You took constitutional law in college?
A Yes.
Q In connection with a business course?
A Right.
Q Or as an elective?
A Elective.
Q Do you think that that might in any way effect
your ability to sit as a juror?
A No.
Lou don’t consider yourself 2 constitutional law
expert at this point?
A No, ma’am.
Q If you think of any questions which you know
should be brought to our attention would you let us
know?
A Yes, sir.
Q You will have no hesitancy in doing that?
A That is correct.
Q And if you were a defendant in this case and all
you wanted was a fair trial, would you be satisfied with
a juror in your frame of mind sitting on the jury?
A Yes, I would.
Q And if you were charged with the prosecution of
this case, and what you wanted was a fair trial, would
you be satisfied with a juror in your frame of mind sit-
ting on this case?
[fol. 272] A Yes, I would.
Q You say that without reservation?
A That is correct.
MISS OBERA: Thank you.
Pass for cause.
[fol. 272] THE CLERK: Mrs. Janice C. Welker,
W-e-l-k-e-r.
PROSPECTIVE JUROR WELKER
VOIR DIRE EXAMINATION
BY THE COURT:
Q Mrs. Welker, have you been able to hear as you
sat in the back of the courtroom yesterday and today?
A Yes, sir.
Q And, that is Mrs. Welker; is that correct?
A Yes.
Calling your attention, then, first, to the nature of
[fol. 273] this litigation, that is, an Information filed
consisting of three counts, two of robbery and one of
murder, is there anything in the nature of the litigation
that causes you to feel you could not sit on this type of
a case?
No, sir.
Have you had occasion to sit as a juror before?
No.
This is your first case?
Yes.
Either civil or criminal; is that correct?
This is my first case of any kind.
Of any kind?
Yes.
You do not know anything about this case other
than what you heard here in court; I take it?
A No, nothing.
Q You further understand by your last answer that
you do not know any of the participants to the action,
either the defendants, counsel, or any of the witnesses
mentioned yesterday; is that right?
OPO PO PO POP
A No, no one.
As you heard the questions that were directed to
the other prospective jurors by Court and counsel, did
they suggest to you any reason why you could not sit on
[fol. 274] this case?
A No.
Q Did they suggest to you any personal information
that you would like to impart for the consideration of
counsel at this time?
A No.
Q For example, you have never been a victim of a
robbery, was one question that was asked? You have
not?
A No, I never have.
Lou do not have any relatives or close members of
your family in law enforcement agencies; is that correct?
A Yes.
Q Is there a Mr. Welker?
A Yes, sir.
Q What is his business or occupation?
A He is a salesman for Dowl Chemical Company.
21 take it, then, Mrs. Welker, that you will agree
in this case to follow the law as I shall state it to you at
the conclusion of the case; is that right?
A Yes.
Q You further agree that if selected to serve as a
juror in this case you will take the evidence from the
witness stand and from that source alone?
A Yes.
[fol. 2751 Q You understood the explanation that I
gave to the jury about the fact that the Information is
merely an allegation, that the People have the burden of
proving the case, they having filed it; you understand
that?
A Yes.
Q You further understand the basic and fundamental
principle of our system of law that the defendants, and
each of them, are presumed to be innocent until the con-
trary is proven, and in case of reasonable doubt they are
entitled to an acquittal; you appreciate that?
A Yes, sir.
Q You further heard and understood the concept that
the mere fact that the defendants are here for trial is
not evidence of their guilt and it is not to be considered
as such by the jury; you appreciate that?
A Yes, I do.
I’m sure at this point you understand the nature
of the bifurcated proceeding in the State of California
where the charge is one of murder?
A Yes.
Q In other words, that the same twelve jurors, de-
pending on what type of a verdict they render in the guilt
or innocence phase, may or may not be called upon to
decide the proper punishment in the event, for example,
that the verdict is guilty of murder, and the jury finds it
[fol. 276] to be murder of the first degree; you appreci-
ate that?
A Yes.
And we are dealing at this time on the contingency
that we might get to this second phase, and the same jur-
ors who decide the guilt or innocence of the defendant
would then in that instance be called upon to decide the
proper punishment; do you understand that?
A Yes.
Q You do not belong to any organization that advo-
cates the retention or abolition of the death penalty?
A No, sir.
Q And you do not entertain any conscientious objec-
tion to the death penalty to the extent that they would
preclude you from rendering that type of a verdict in a
proper case if called upon to do so; is that right?
A That's right.
THE COURT: Thank you.
Mr. Lloyd, you may inquire for cause.
MR. LLOYD: Pass for cause.
Thank you, your Honor.
THE COURT: Thank you, Mr. Lloyd.
Mr. Bornstein?
61
(fol. 277]
VOIR DIRE EXAMINATION
BY MR. BORNSTEIN:
Q Mrs. Welker, the judge has asked many of the
questions that we have been asking and I know it is prob-
ably getting to be quite boring, but I’m sure you under-
stand the responsibility that all of us carry?
A Yes.
Q And you understand that even though we may ap-
pear to be repetitious, we may appear to be time consum-
ing, that in no way can we cause this to change any opin-
ions of having a fair trial?
A Yes.
Q With reference to prejudices and sympathies, you
understand that you cannot allow these items or these
ethical considerations to enter into your judgment here
as far as this case is concerned; is that correct?
A Yes.
Q Did you agree with my little statement that a fair
interpretation of what I said about the statue of justice
being blindfolded because we are not going to look at the
person, only look at the facts?
A Yes.
Q Now, is there anything that has been brought up
here since we have been discussing the matter that you
would want to raise at this time?
(fol. 278] A No, sir.
Q With reference to the double proceedings, or bi-
furcated proceedings that we are commenting on here,
the fact that we have in the abstract discussed certain
things that; may or may not happen, you understand that
this can have no meaning to you right now?
A Yes.
Q And you understand, also, do you not, that five
days from now they can’t have any meaning? You can’t
think, Well, gee, the attorney talked about the death
penalty, I wonder what his thoughts were?” You know
this has no) meaning to you; you understand that?
A Yes.
62
Q What my thoughts are and what the judge’s
thoughts are, the other attorneys’ thoughts are as to why
we go into these things.
Now, they are in the abstract merely because we are
trying to arrive at a certain set of circumstances as far
as what we feel would be right for our clients and this
jury; you understand that?
A Yes.
Q The fact of the death penalty, have you had any
particular thoughts or discussions about it either by your-
self, reading something in a magazine or paper, or with
friends or family?
A Well, thoughts. Certainly not any great discus-
[fol. 279] sions. I am certainly not definite one way or
another. I think there are proper cases where I could
vote for the verdict.
Now, you realize here that we are not talking—we
are talking now, in a sense, in an abstract situation, but
that if you are chosen as a juror that you must decide the
fate of two human beings; you understand that?
A Yes, I do.
Q And you understand the dreadful seriousness of the
problem that is before you today?
A Yes.
Q If you are chosen as a juror?
A Yes.
Q Is there anything about any of the proceedings or
anything that has gone on that would cause you to feel
that you could not be a fair and impartial juror in this
case?
A No, sir.
MR. BORNSTEIN: Thank you, very much.
Pass for cause, your Honor.
THE COURT: Thank you, Mr. Bornstein.
Miss Obera?
—
[fol. 280]
VOIR DIRE EXAMINATION
BY MISS OBERA:
Q Mrs. Welker, have you ever been employed outside
your home?
A Not since I have been married, no.
Q And before your marriage, what was the nature of
your employment?
A I worked for the Port of Immigration on Terminal
Island, Immigration Department.
MISS OBERA: Pass for cause.
[fol. 426] THE CLERK: Mrs. Carol Fogel, F-o-g-e-l.
PROSPECTIVE JUROR FOGEL
VOIR DIRE EXAMINATION
BY THE COURT:
Q Is that Miss or Mrs. Fogel?
A Mrs. Fogel.
Q Mrs. Fogel, do you know of any reason why you
could not sit on this case?
A No, I do not.
Q Have you had occasion to serve as a juror before?
A No, sir.
Q This is your first case either criminal or civil; is
that correct?
A Yes.
Q Do you know anything about this litigation other
ve what you heard here in eourt during the past three
ays?
A No, I do not.
35 Do you know any of the participants to the litiga-
tion
A No, I do not.
Q Were you able to hear just about all the questions
[fol. 427] that were asked of the other prospective jur-
ors by the Court and counsel.
bd
A Yes, I was.
Did they suggest to you any reason why you could
not sit on this case?
A No, they did not.
Q Did they suggest to you any personal information
that you wished to tell us about at this point?
A No, nothing.
Q I take it, then, you do not suffer from claustro-
phobia?
A No.
Q You have never been the victim of an armed rob-
No.
You have never studied law; is that correct?
That is correct.
Is there a Mr. Fogel?
Yes, there is.
What is his business or occupation?
He is a school teacher.
In what level is he employed?
He teaches sixth grade for the Los Angeles City
Schools.
Are you employed outside of home?
[fol. 428] A Les, I am.
And in what capacity.
I am a secretary.
In what type of a concern?
In a bank.
In a bank?
Yes.
Do you have any close relatives or friends who are
members of law enforcement agencies?
A No, sir.
Q I take it, then, you are not a member of any or-
ganization that seeks to abolish or seeks to retain the
death penalty in the State of California; is that correct?
A That is correct.
Q You understand, I trust, at this time the nature
of the bifurcated proceeding that the twelve people here
finally selected to serve on this case may get into; do
you understand that?
OOO 4
—
OPO PO PO
65
A Yes, I do.
Q I take it that you do not entertain any conscien-
tious objection pertaining to the death penalty that would
preclude you from rendering a decision such as that in
a proper case; is that right?
A That is correct.
You agree in this case that you will take the evi-
fol. 429] dence from the witness stand and from that
source alone and you will follow the law as I shall state
it to you at the conclusion of the case; is that correct?
A Yes, sir.
THE COURT: Thank you.
Mr. Lloyd?
MR. LLOYD: I will pass for cause. Thank you, your
Honor.
THE COURT: Mr. Bornstein?
VOIR DIRE EXAMINATION
BY MR. BORNSTEIN:
Q Mrs. Fogel, I’m sure that you are getting about as
tired as I am of hearing the same things over and over
again, but I am sure you recognize the fact that we are
not doing this to waste our time or your time?
A I understand.
Q Are there any questions that were asked of any of
the other jurors that you would want to raise and am-
plify in answer to the question or questions?
A No, I have considered them all and I can think of
nothing.
Q You considered the fact that you may be called
upon to determine whether or not two human beings live
[fol. 430] or die?
A Yes, I considered this very seriously.
Q And have you considered the fact that you cannot
be an advocate as to whether they shall or shall not live
or die based upon any personal feelings or any outside
factors, but merely upon the evidence and instructions
that the Court will give you at the termination of the
proceedings?
rn ene
A Yes, sir.
Q And, assuming that there is a verdict as to the first
phase and you go into the second phase and you feel,
based upon the evidence that the punishment shall be one
of two factors involved, would you have the courage of
your convictions, after you discussed the matter fully
with the other jurors and you felt that you were right,
would you stick to your convictions?
A Yes, I would.
Q The fact that there may be other persons that
would jump up and down and holler a little bit and say,
“Let’s get it over with,” would this cause you to —
your opinion in any way?
A No.
Lou understand that my defendant, Mr. Wilkinson,
and Mr. Lloyd's defendant, Mr. McGautha, that they
are entitled to your individual opinion as a juror?
A Les, sir.
[fol. 4311 Q The fact that the persons involved are of
a different racial origin, would this make any difference
to you?
A No.
Q The fact that there has been a considerable amount
of problems recently because of the racial factor in the
United States, would this cause you to feel biased or
prejudiced in any way that would apply against my de-
fendant or Mr. McGautha?
A No, sir.
Q You understand, I’m sure, if you analyze your own
feelings, that in some way all of us have little petty
biases and prejudices that we have built up over the
years. These can have no bearing in this case; you un-
derstand that, do you not?
A Yes, I do.
Q A little example I give, and I am sure you look at
it the way I do, that at one time a country is a friend
of ours, and when something nice happens to them we
are very pleased, and now that they are not friends of
ours and something bad happens to them we are pleased,
you see. So, in a sense, there is a bias, or a prejudice
that is built up through the papers, through the news,
67
through television, that we have for our country, and
we also have the same feelings about people we know at
times; you understand this?
[fol. 4321 A Yes.
Q I am not trying to say to you that you are a
n that is not a fair person. When I say that, I
think all of us have little biases and prejudices but I
think when we look at our everyday life sometimes we
see a person, we don’t like them, we don’t like his looks,
maybe, and this is the type of thing I had in mind; you
understand that?
A Yes.
Q And the fact that I may say something that would
be of an insulting nature, or I may browbeat, you may
think I am browbeating somebody, or I may be pushing
a point as far as witnesses are concerned, you understand
that I am not trying to hurt anybody and that what I
am doing is trying to get the factual situation so you
may have all the evidence before you; you understand
that?
A Yes, I do.
Q The fact that a witness at times may reach the
stage where they would cry, or they might do something
in that nature, that, again, is not a matter of personal-
ity; you understand that?
A Yes.
Q And that because something like this may or may
not happen, this could have no bearing on your being
fair and impartial; you understand that, do you not?
[fol. 433] A Yes, I do.
Q With reference to the last point of being fair and
impartial, as you sit here and you have examined your
thoughts, I notice that I have watched most of you out in
the audience over the last two days and you have been
paying very close attention, is there anything that has
come to your mind that would cause you to feel you could
not be fair and impartial if selected to sit as a juror in
this case?
A No, nothing at all.
MR. BORNSTEIN: Thank you very much.
Pass for cause, your Honor.
68
THE COURT: Miss Obera?
MISS OBERA: Pass for cause.
* * * *
[fol. 484] THE CLERK: Mrs. Harriet Grant,
G-r-a-n-t.
PROSPECTIVE JUROR GRANT
VOIR DIRE EXAMINATION
BY THE COURT:
Q Mrs. Grant, having heard, now, the nature of this
litigation, I’m sure, explained to you on many occasions
as you sat in the back of the courtroom, do you know of
any reason at this point why you could not serve on a
jury of this kind?
[fol. 485] A No, I do not.
Q Have you, Mrs. Grant, have you had prior service
as a juror?
No.
Q This is your first case either civil or criminal?
A That's right.
Q Do you know anything about this litigation other
than ng you have heard here in court?
A No
5 Do you know any of the participants to the litiga-
on
A No, don't.
Q You understood my explanation of the bifurcated
procedure when the charge is as it is in this case, murder
in Count III of the Information; do you not?
A Yes.
Lou understand the contingency that we are deal-
ing with and questioning jurors about at this time with
the thought in mind that we might well get to that point;
do you not?
A Yes.
Q And, I take it, then, in your answer to my first
question, that you do not belong to any organization that
69
seeks the abolition or retention of the death penalty in
(fol. 486] this state?
A No, I do not.
Q I take it that you would agree, if selected to serve
on this case, to follow the law as I shall state it to you
at the conclusion of the case; is that right?
A Yes.
Q I take it, further, Mrs. Grant, that you would
agree that you would take the evidence from the witness
stand and as it is received here in court during the
course of the trial and from that source alone; is that
correct?
A Yes.
Q Is there a Mr. Grant?
A Yes, there is.
Q What is his business or occupation?
A He is a publisher’s representative having to do
with magazines.
Q Publisher’s representative?
A Yes.
Q And are you employed outside of the home?
A Oh, an occasional job as a cateress.
Q Calling your attention, now, to the questions that
have been asked and directed to the other prospective
jurors of a personal nature, did they suggest to you any
information that you wish to volunteer at this time?
[fol. 487] A No.
Q For example, you have never studied law or been
the victim of a robbery; is that correct?
A No.
Q You do not suffer from claustrophobia or have any
close friends or relatives, that are members of a law
enforcement agency; is that correct?
A No.
Q I take it, then, Mrs. Grant, that you are satis-
fied that if you are selected as a juror in this case that
the defendants and the People would get a completely fair
and impartial trial at your hands; is that correct?
A Yes.
Q I take it, then, Mrs. Grant, you do not entertain
any conscientious objection to the imposition of the death
— — ——
—— RT —!i! :=: — ͤ—u—-—
* w —ů—— — PTO Oe
70
penalty to the extent that it would preelude you from
ever voting for that type of punishment in a proper case
if you felt that that was the proper punishment; is that
right?
A That's right.
THE COURT: Thank you.
Mr. Lloyd?
MR. LLOYD: Your Honor, I have no questions of
Mrs. Grant.
THE COURT: Mr. Bornstein?
[fol. 438]
VOIR DIRE EXAMINATION
BY MR. BORNSTEIN:
Q Mrs. Grant, if I asked you just the one question,
that being, is there anything that you would want to
discuss further based upon the questions that have been
asked of the other jurors, would your answers be sub-
stantially the same?
A They would have been the same.
Q And the fact that I am not going into any greater
detail as far as questioning, there is no reason that you
feel * could not be fair and impartial; is that correct?
A 0.
And the fact that I am not going to ask you any
additional questions means nothing to you other than the
fact that you will listen carefully, and there is nothing
that can be discussed that has not been discussed earlier;
is that correct?
A That's right.
MR. BORNSTEIN: Pass for cause, your Honor.
THE COURT: Thank you, Mr. Bornstein.
Miss Obera?
MISS OBERA: Pass for cause, your Honor.
* * * *
[fol. 442] THE CLERK: Mr. Allen Hamblin, H-a-m-
b-l-i-n.
—— — et err rene — —
71
PROSPECTIVE JUROR HAMBLIN
VOIR DIRE EXAMINATION
BY THE COURT:
Mr. Hamblin, what is your business or occupation,
I am a teacher.
At what level, sir?
Junior high school.
And with what school district are you associated?
El Segundo.
[fol. 443] Q Is there anything, sir, in the nature of
the litigation that we are about to select a jury to try
that would cause you to feel that you could not sit on
a case of this nature?
A No, sir.
Q Is there some particular subject that you teach at
that level?
A I teach history of the United States and history
of the world.
Q The explanation that I have given to the jury on
many occasions, I trust that you heard and you under-
stand that; is that correct?
A Yes, sir.
Q And you agree with the concepts, as I have enunci-
ated them, that we try a case of this nature under; do
you not?
A Yes.
Q You further agree that you will follow the law as
I shall state it to you at the conclusion of the case?
A Yes, sir.
Lou further agree that you will take the evidence
from the one source that you are obligated to take it
from, and that is during the course of the trial and as it is
received either from the witness stand or by way of phys-
ical objects, in the event that they are received into evi-
fol. 444] dence; do you not?
A Yes, sir.
Q I take it, then, Mr. Hamblin, that you are satis-
fied in your mind that the defendants and the People
E
to
* ON
72
could get a completely fair and impartial trial in a ease
such as this from your hands; is that correet?
A Les.
Q Have you had occasion to serve before as a juror?
A No, sir.
Q This is your first case; is that right?
A Yes.
Q The personal questions that were directed to the
other jurors, as you heard those and applied them to
yourself, did they suggest any information that you wanted
to volunteer at this time?
A No.
THE COURT: All right, thank you, Mr. Hamblin.
Mr. Lloyd?
MR. LLOYD: I have no questions, your Honor.
THE COURT: Mr. Bornstein?
VOIR DIRE EXAMINATION
BY MR. BORNSTEIN:
Q@ Mr. Hamblin, the questions that were asked of
[fol. 445] the jurors by all of us, are any of the questions
subject to amplification by you or do you want to go into
any greater detail?
A No, sir.
Q The fact that you have been sitting here for several
days and listening to us over and over again, you under-
stand that we are not trying to waste your time and we
are not trying to waste ours; you understand that?
A Yes.
Q The fact that sometimes we seem to say we will
accept the juror, or the prosecution has, and then someone
else comes in, one of the defendants, and we ask another
juror to be excused, again, you understand that this is not
a matter of personalities or personal offense against any-
body. We are trying to do what we have to, as we think
it should be done properly; you understand that?
A Yes.
Q The fact that we have discussed the death penalty
issue, again, this means nothing to you right now. You
78
will listen to the evidence, you will listen to the instruc-
tions and you will arrive at a verdict based on that and
nothing else; is that correct?
A Yes.
Any reason that you feel, sir, that you cannot sit
(fol. 446] fairly and impartially as a juror in this matter?
A No.
MR. BORNSTEIN: Thank you, sir.
Pass for cause, your Honor.
THE COURT: Thank you, Mr. Bornstein.
Miss Obera?
VOIR DIRE EXAMINATION
BY MISS OBERA:
Q Mr. Hamblin, as a teacher, I suppose you have
engaged in discussions about the death penalty; haven’t
u?
K No.
Q You never have?
A No.
Q Not necessarily with your students, but with other
members of the faculty?
A Not with the faculty.
Q Well, now, as we have gone along here for a couple
of days asking questions, have you given serious thought
to the matter of capital punishment? .
A Yes.
Q And do you really think that you should be a juror
in this case?
A I think I could give a fair judgment, yes.
[fol. 447] Q You are aware of the responsibility which
you are undertaking?
A Yes, ma’am.
Q And you are willing to undertake that responsi-
bility?
A Yes, ma’am.
MISS OBERA: Pass for cause.
[fol. 4531 THE CLERK: Mrs. Rita Braun, B-r-u-a-n.
74
PROSPECTIVE JUROR BRAUN
VOIR DIRE EXAMINATION
BY THE COURT:
Q Mrs. Braun, do you know of any reason why you
could not sit on this case?
A No, I don't.
Have you had occasion, Mrs. Braun, to sit as a
juror before this case?
A About fourteen years ago, civil case.
Q And that was on a panel in the Superior Court?
A Municipal Court.
Q And this is your first case, then, on this second tour
of duty; is that correct?
A Yes, it is.
Q Is there anything that you know about this case
other than what you heard here in court today?
A No, there isn’t.
Do you know any of the participants to the liti-
gation?
A No,I don’t.
[fol. 454] Q You heard my explanation of the funda-
mental concepts that we try a case of this nature under;
did you not?
A Yes.
Q And you understood them as I explained them to
the other members of the jury?
A Yes.
Q You agree in this case that you will follow the law
as I shall state it to you; is that correct?
A Les.
Q You further agree that you will take the evidence
only from one source and that is as it is received here in
the course of the trial; is that right?
A That's right.
Q You do not belong to any organization that advocates
the retention or abolition of the death penalty in this
state?
A No, I don't.
QI take it that you do not have any conscientious ob-
jections about the death penalty that would preclude you
from serving on a case of this nature; is that right?
75
A Thaat’s right.
In tthe personal questions that were asked the other
members Cof the jury, did they suggest any reason, or, any
—s that you would like to tell us about at this
poin
fol. 4551 A No.
Q Youy are satisfied in your mind that if you are
selected aas a juror in this case that both of the defend-
ants and the People would receive a completely fair and
N trial; is that correct?
5 * that would be based on the evidence and the law
0
A Tes
ee Whaat is the business or occupation of your hus-
He, assembles computers.
By * what corporation is he employed?
Calilifornia Computer Products in Anaheim.
Aree you employed outside of the home?
No,, I am not.
Hatyve you ever been employed outside of the home?
In v — *
Genneral office work.
I tetake it, then, there is nothing in the projected
length of ? this trial that would cause any undue hardship
upon you 4 if you are selected; is that right?
A at’s right.
9 hes ] — COURT: All right, thank you.
7 oy
MR. LETOYD: I will pass for cause, your Honor.
THE CCOURT: Thank you.
Mr. Botornstein?
MR. BGORNSTEIN: I will pass for cause, your Honor.
—.— CCOURT: Thank you.
MISS (OBERA: Pass for cause, your Honor.
THE CCLERK: Mrs. Mildred Barden, B-a-r-d-e-n.
ODPrPOPO PO ror
76
PROSPECTIVE JUROR BARDEN
VOIR DIRE EXAMINATION
BY THE COURT:
Q Mrs. Barden, do you know of any reason why you
could not serve on this case?
A No.
Q I take it, then, in response to that question, that
you have had an occasion to hear all of the proceedings
[fol. 457] that have gone on thus far during these past
three days; is that correct?
A Yes.
Q And you do not know anything about this litiga-
tion other than what you heard here; is that right?
A That's right.
Q And, I take it, then, that you do not know any of
~*~ — to the litigation; is that also correct?
es.
Q Have you had occasion, Mrs. Barden, to serve as a
juror before?
A No, I haven't.
Q This is your first case on any panel of jury duty;
is that correct?
Yes.
Is there a Mr. Barden?
Yes.
What is his business or occupation?
He is a physician.
He is a physician?
Yes.
Is there some specialty that he practices medicine
in the field of?
A No.
General practitioner?
[fol. 4581 A Yes.
Q Are you employed outside of the home?
A Yes.
Q In what capacity?
A Part time medical receptionist.
OPO PO POP
77
you raise your voice just a little bit.
time medical receptionist and music teacher,
Is there anything in the nature of the other ques-
t were directed to the other prospective jurors
of a personal nature that, as you heard them,
A No.
Q You are satisfied, then, Mrs. Barden, that you
could give to both of the defendants and to the People
a completely fair and impartial trial in this case?
A Yes.
Q And, once again, at the ris kof being terribly
repetitious, but I do want you to understand that the
defendants, although they are joined and tried together
as co-defendants, are each entitled to the individual
judgment of the jury on the question of their innocence
or guilt; you understand that, of course?
A Yes.
[fol. 4591 Q And I trust at this point that there are
no questions that you have about the bifurcated procedure
and how we proceed in a case such as this where the
charge is one of murder?
A No.
Q That is, that we first take evidence on the ques-
tion of guilt or innocence of the defendants and the jury
is given instructions on the law.
The jury then goes out to deliberate on the question of
guilt or innocence of the defendants.
The jury will be given separate verdicts as to each
count in the Information and as to each defendant.
The jury is then called upon to decide, if they can, the
question of the guilt or innocence of the defendants, ex-
clusive of any question of penalty or punishment, based
solely upon the evidence and based solely upon the law,
and then, depending upon what the verdict or verdicts
are that the jury returns on the initial stage, we then
either do or do not, with the same twelve jurors, start a
separate and distinct hearing and trial on the question
78
of penalty or punishment, if the verdict is one of murder
and if the verdict is one of murder in the first degree.
I’m sure after all the times that that has been said
by me that you do understand that concept; do you
[fol. 460] not?
A Yes.
And, once again, although at this point it is hard
to believe that anybody could not comprehend that con-
cept, we are merely talking to jurors at this time about
their feelings on the death penalty because we may get
to that, and I don’t want you or any other juror to take
all of this conversation and all of the questioning that we
have had pertaining to the issue as any evidence that we
are going to get to that point; you appreciate that?
A Yes.
Q And you do not entertain any conscientious feelings
pertaining to the death penalty that would preclude you
from rendering, in a proper case, that type of decision if
called upon to do so; is that right?
A No.
Q I take it the converse is true, that you do not favor
the death penalty over life imprisonment; is that correct?
A That's right.
Q In other words, you are willing, in the event that
you are called upon to decide that issue, to listen to all
of the evidence that will be presented on that issue and
make a determination based upon that and the law as
the Court will give it to you; is that right?
[fol. 4611 A Yes.
THE COURT: Thank, you, Mrs. Barden.
Mr. Lloyd?
MR. LLOYD: No questions. Thank you, your Honor.
THE COURT: Mr. Bornstein?
MR. BORNSTEIN: Pass for cause. Thank you.
THE COURT: Miss Obera?
MISS OBERA: Pass for cause, your Honor.
* * * *
THE CLERK: Mr. Roderick Haskell. First name
spelled R-o-d-e-r-i-c-k. Last name, H-a-s-k-e-l· l.
[fol. 462
PROSPECTIVE JUROR HASKELL
VOIR DIRE EXAMINATION
BY THE COURT:
Q Mr. Haskell, do you know of any reason, sir, as
you now sit in the jury box why you could not serve on
a case of this nature?
No, I don’t.
What is your business or occupation, Mr. Haskell?
Test man, Pacific Telephone.
Is this your first case as a juror?
Yes, sir.
Either civil or criminal; is that correct?
Correct.
And this is your first tour of duty on any jury
panel; is that correct?
A Yes, it is.
Q Is there a Mrs. Haskell?
A Yes.
Q Is she employed outside of the home?
A No, she is a housewife.
Do you know anything about this litigation other
than what you heard here in court?
A No, sir.
Q Do you know any of the participants to the litiga-
[fol. 463] tion?
A No, sir.
Q As you heard these various questions that were di-
rected to the other prospective jurors by the Court and
counsel, they suggested to you no reason why you could
not sit on this case and render a completely fair and im-
partial verdict based upon the evidence and the law; is
that correct?
A Yes.
Did they suggest to you any personal information
that you felt at the time you heard the questions that
you would like to volunteer if and when you got into the
jury box?
A No.
OPO PO Por
80
Q I take it, then, Mr. Haskell, that you do not belong
to any organization that advocates the retention or the
= of the death penalty in this state; is that cor-
rect
A That is correct.
Lou are satisfied, Mr. Haskell, that if you are se-
lected as a juror in this case that the defendants, and
each of them, and the People would receive a completely
fair and impartial trial; is that correct?
A Definitely.
THE COURT: All right, thank you, Mr. Haskell.
Mr. Lloyd?
[fol. 464] MR. LLOYD: No questions of Mr. Haskell,
your Honor.
THE COURT: Mr. Bornstein?
MR. BORNSTEIN: Pass for cause, your Honor.
THE COURT: Miss Obera?
MISS OBERA: Pass for cause, your Honor.
PROCEEDINGS AND TESTIMONY AT
PENALTY PHASE
[fol. 427]
LOS ANGELES, CALIFORNIA, WEDNESDAY,
AUGUST 23, 1967, 10:00 A.M.
a
THE COURT: All right. In the case of People versus
McGautha and Wilkinson, I will have the record reflect
the appearance of both defendants, the presence of all
counsel, and the jury in their respective places in the
jury box.
Good morning, ladies and gentlemen.
This matter is scheduled of this date for further pro-
ceedings in the matter, the jury having returned a ver-
dict of guilty as to each defendant of murder in the first
degree. The matter is now calendared at this time for
the penalty phase of the trial. Are the People ready in
this matter?
MISS OBERA: People are ready, your Honor.
THE COURT: Is defendant McGautha ready?
MR. LLOYD: Yes, he is, thank you, your Honor.
THE COURT: Is defendant Wilkinson ready?
MR. BORNSTEIN: Yes.
THE COURT: Do you desire to make an opening
statement in this matter, or do you have any evidence?
MISS OBERA: I waive opening statement, your
Honor.
THE COURT: Do you desire to make an opening
statement at this time?
MR. LLOYD: No, your Honor.
THE COURT: Do you desire to make an opening
[fol. 428] statement at this time?
MR. BORNSTEIN: Not at this time.
THE COURT: All right. You may proceed, Miss
Obera.
MISS OBERA: Your Honor, I have here a file of
documents from the State of Texas, County of Walker,
pertaining to Dennis McGautha. These documents are all
stapled together. I ask that collectively this file consist-
ing of records of judgments, photographs, fingerprints,
be marked People’s Exhibit 27.
THE COURT: It will be so marked for Identification
as People’s Exhibit Number 27.
MISS OBERA: And received in evidence.
MR. LLOYD: May the record reflect that I have ex-
amined the documents.
No objection, your Honor.
THE COURT: It will be received in evidence bear-
ing the marking given to them for identification as
People’s Exhibit 27.
MISS OBERA: The People rest.
THE COURT: Who was going to proceed first?
MR. LLOYD: May we have a short 15-second con-
ference?
THE COURT: Take your time.
(Counsel confers. )
MR. BORNSTEIN: Your Honor, I’d like to make a
short opening statement, if I may.
THE COURT: You may.
[fol.429] MR. BORNSTEIN: Ladies and Gentlemen
of the Jury, we have reached the stage of the proceed-
ings that when you were questioned originally I’m sure
that you know now why we went into such great detail.
I am going to put Mr. Wilkinson on the witness stand.
I am going to bring out his background. I am going
to ask him about some of the things that happened, but
I want you to understand very carefully that in doing
this I am asking you to consider Mr. Wilkinson alone.
I am not asking ; ou to take anything that he says and
to apply it against Mr. McGautha.
In this proceeding each person is an individual human
being. He is to be judged as an individual and what Mr.
Wilkinson says, he is doing it because I am going to put
him on the stand and I feel it is important for you to
know something about his background when you go in that
jury room and decide whether or not he should live or
die, and in doing this I have to bring out certain things
that may not be of help, and it could be, in a sense, a
hindrance to Mr. McGautha, but I am not doing it to
hurt Mr. McGautha. I am not doing it to throw the
blame over on any other person.
I am merely doing it so that you will have a complete
and, what I hope is, an over-all picture of what took
place involving the robbery that caused the death of Mr.
[fol. 430] Smetana.
In going over Mr. Wilkinson’s life you will see that he
is a person that came from a background, a mixed-mar-
riage background.
He didn’t do too well in school.
He was in the Army a short time. He was released
because he didn’t have the mental capacity to carry out
the functions of a soldier.
That he has been in California for a short period of
time.
That at one time he was involved with a church group.
Mr. Davis—Reverend Davis, I thought would be here
this morning, but he should be here this afternoon, will
testify that Mr. Wilkinson used to attend church quite
regularly and then he left the group.
He fell in with a group of persons and because of this
he no longer went to the church, and in falling in with
this other group of persons he met Miss Dupree.
fol. 4311 In meeting Miss Dupree, he became involved
with her, and Miss Dupree has two children, as she told
you, and it turned out that Miss Dupree was living with
her sister, and her sister used to have many men come
over to visit her, and I’m sure that in living with her
that it was rather a dissolute type of relationship that
was going on with these other men and Miss Dupree’s
sister, and that in doing this, one of the children had
been hurt by someone, probably in some sort of a drink-
ing party, and Mr. Wilkinson was trying to take her out
of this, and that he needed some money, and in needing
money, he became involved with someone who said he
could make money in an easy way, and the most difficult
money that any person could ever earn in his life, be-
cause he is now facing you because of trying to make
money the easy way and his life is in your hands as a
consequence.
Thank you, Ladies and Gentlemen.
THE COURT: Thank you, Mr. Bornstein.
Do you desire to make an opening statement on behalf
of defendant McGautha at this time?
MR. LLOYD: Not at this time. May I reserve the
right, if your Honor please?
THE COURT: Call your first witness.
MR. BORNSTEIN: Thank you.
Mr. Wilkinson, will you take the stand.
THE CLERK: Would you raise your right hand, sir,
(fol. 482] and be sworn by reading the oath aloud as you
see it there before you.
THE WITNESS: I do solemnly swear the testimony
I shall give in the case now pending before this Court
shall be the truth, the whole truth, and nothing but the
truth, so help me God.
THE CLERK: Be seated.
Would you state your full name, please.
THE WITNESS: William Rodney Wilkinson.
THE CLERK: Spell the last name, sir.
84
THE WITNESS: W-i-l-k-r-i-n-s-o-n. No. W-i-l-k-i-n-
8-0-n.
THE CLERK: Thank you.
WILLIAM RODNEY WILKINSON,
called as a witness by and on his own behalf, having been
first duly sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY MR. BORNSTEIN:
Mr. Wilkinson, what is your date of birth?
March 4, 1941.
How old are you today?
Twenty-six.
Where were you born?
Greenfield, Mississippi.
1.433] Q How long did you live in Mississippi?
Up until 1960.
All right. Did you attend school in Mississippi?
Yes. I went to Sacred Heart High School in Green-
PO PO pO
D
(f
How high did you go in school?
Well, I went to the 11th Grade.
What race or racial origin is your mother?
She is Negro.
What about your father?
He is white.
Did you have any problems when you were a
youngster because of this?
A Well, kids at school, they’d tease.
Q Who would tease you, what kind of children, white
children, colored?
A No. Negro children. I went to a Negro school.
Q How did you do in your school studies?
A Well, I did fair; not too good.
Q What kind of classes did you take?
A Regular high school, history, and mathematics, and
English.
OO YONO RENO
85
Q Why was it you only went up to the 11th grade?
[fol. 484] Was there any particular reason?
A Well, I quit—after dad had died, mother didn’t
have too much else. I went—I found me a job and I
would help her out as much as I could.
Q When did your father die? How old were you?
A About 12 or 13.
Q When did you start working to help your mother
out?
A Well, I started—well, I had a paper route when
dad had died, and then I started helping around grocery
stores, delivering packages and groceries in the neighbor-
hood.
How many brothers and sisters did you have when
your father died?
A Four sisters and one little brother.
Q Who was the oldest?
A Sue. That’s—Sue Washington.
Q Where were you in relationship to being the old-
est or the youngest?
A I had two sisters older than me, and the rest
younger.
Q What kind of jobs did you work at when you were
—after you left school and, oh, say, when you were 16,
17, 18 years old?
A Well, a man named Mr. Jack in the neighbodhood,
he let me work at a service station, and I worked mostly
[fol. 485] around the service station.
Q Did you have any formal training that caused you
to have any specific skill such as being a mechanic or
printer or anything like this other than just these jobs
that you had?
A Well, no—a neighbor, they always working on
cars, and the neighbor’s son, we used to all get together
and fix old cars and stuff.
Q All right. When you were 18 years old, did you go
into the Army?
A Yes.
Q Were you drafted or did you enlist?
A I enlisted for the draft.
Q How long were you in the Army?
A About five or six months.
Q Do you know why you were released from the
Army?
A Yes. They passed some kind of law where your
I. Q. had to come up to a certain standard, and it was 80
many thousand men kicked out because their I. Q. wasn't
up to the standard, but—
Q Do you know what your—
A AI went through basic and everything.
Q You were not put out of the Army because you
caused any trouble or anything like that?
A No, just for low I. Q.
[fol. 486] Q Did you have any disciplinary action
—a when you were in the service?
0.
Q Then you were—What type of discharge did they
give you?
A Honorable Discharge.
Q Do you know what your I. Q. level is?
A No, not right offhand.
Do you know what the level was that the Army
wouldn’t keep you at?
A No. It was a series of tests they gave us, and we
had to make 90 on all the tests, and I think I was short
a few points.
Q Somewhere in the eighties?
A That's right.
[fol. a And after you left the Army, where did
u go
A I went back to Jackson, Mississippi.
Q And what kind of work did you do then?
A Oh, I got my old job back at the station.
Q What about your sisters and brother, and your
mother? What were you doing? Were you living at home
when your aunt went back home?
A Yes.
Q Were you still helping to support the family?
A Yes.
Q You got in some sort of trouble when you were
after you got out of the Army, something about some
checks; is that correct?
A Yes.
Q What happened with reference to this?
A Oh, a girl friend of mine, she worked at the store
and she was cashing some checks on this lady that owned
the store, and some kind of way she involved me.
I spent some of the money and the police arrested me,
put they didn’t get any conviction on me. They convicted
her and I think I did a couple of months in jail.
Q While you were awaiting trial?
A Yes.
fol. 488] Q But you were never convicted?
A No.
Q And then after this event you went to California;
is that correct?
A Right.
Q What time did you arrive in California? What
was the year?
A 1960, I believe it was.
Q And did you look for a job when you came to
California?
Yes.
Did you find work?
Yes, J. W. Robinson.
And what were you doing with J. W. Robinson?
Washing dishes.
And where were you living when you first came to
California?
A 1 lived with Reverend Charles Davis. He has a
rooming house on Pico and Los Angeles Street, and I
rented a room from him.
Q And when you were renting the room, from Rev-
erend Davis, what kind of a church, denomination was
he connected with?
A First Baptist.
Q And did you have any relationship with him as
far as his work as a preacher?
(fol. 489] A Well, I helped him—First he asked me
did I belong to a church and I told him, yes, and he
asked me would I—how about coming to church with
him, you know, and so I started going to church and I
liked it, you know, his church and I joined his church.
Oro O
Q And how long did you continue doing this?
A Well, I have been—up until I got arrested, I have
been going to his church.
Q And how long did you continue to stay with Rev.
erend 1 —
A About two years. N
Q All right, now when you were at Robinsons you
started out as a dishwasher. Did you advance in any
manner?
A Les, in about two months I advanced to a baker.
The lady called me out and she talked to me and she
asked me did I think I could bake. The guy quit, the reg-
ular baker she had, so I told her, yes.
g So they gave me a couple of weeks and 1 started bak-
ing.
Q How much were you earning per hour when you
were a baker?
A $1.85 an hour.
Q How many hours a week were you working, ap-
proximately?
[fol. 440! A During the holidays, we worked 12 hours
a day, but usually eight hours a day.
Q Were you doing anything as far as helping your
mother and your younger sisters in Mississippi during
this time period?
A Yes, I would send them money when I had it. I
could save my money and so I would send them money.
She needed money for all the kids.
Q Did you leave J. W. Robinsons?
A Yes, I found a better job at Art Craft Picture
Frames.
Q Did you make more money?
A Yes.
Q And how long did you work at Art Craft Picture
Frames?
A About a year and a half.
Q Now, something happened to you on July 4, 1965?
What was this?
A A gang of fellows shot me.
Q Was there any reason that you know of?
A No.
89
Q Did you know any of these persons?
A No, we—I was just walking down the street and
they come out of an alley and shot me, you know, and
ran.
The police never did find out who it was.
(fol. 441] Q Where were you shot?
A In the back.
Q And did you go to the hospital because of this?
A Yes.
Q How long were you in the hospital?
A About a week.
Q And after you got out of the hospital where did
you go to live?
A On Jefferson, with Iola.
Q That is Iola Henry?
A Yes.
Q How long did you stay with Iola?
A I imagine a year or two.
Q And you found out that when you got out of the
hospital she had made arrangements for you to have a
place to stay, and so forth?
A Yes.
Q You were unable to work at this particular time;
is that correct?
A Right.
Q Now, at some time you met Erma Dupree; is that
correct?
A Right.
Q When did you meet her?
A Just before Christmas.
(fol. 442] Q Of what year?
A 66.
Q And what were the circumstances that you met
her under?
A Well, I was going downtown in a truck and she
was at a bus stop and I stopped for the red light and
she said, “Hi, can I get a ride?” So I picked her up and
took her to the hospital and she asked me would I wait
on her. I said, “Yeah.” We had dinner later.
Q * did you meet any other persons through
Erma
Yes, I met her sister.
What is her sister’s name?
Lowanda.
* you meet a girl by the name of Sharon Jones?
es.
2 you meet a fellow—what is Sharon’s husband’s
A Guy Jones.
Q Did you meet anyone else through these persons?
A Yes, I met Dennis.
2 Dennis McGautha?
Yes.
And were you working during this time period
[fol. 443] that you were living with Erna?
A Yes, I was working at Great Western Bag Cor-
poration.
Q Where was that at?
A Vernon.
Q What kind of work were you doing?
A I was baling bags. The bales came out of the
chute and I taped the ends up and stacked them.
Q How much were you earning an hour?
A $2.65 an hour.
Q Now, was there some conversation that you had
with Mr. Jones about robberies?
A Yes.
Q Who initiated this conversation?
A He did.
Q What did he tell you?
A My rent was due and his rent was due, and the
landlady had been over, you know, she was going to put
both of us out, and he said, “Man, we ought to go knock
over somebody and get some money of some kind over
here.” So we were all drinking and talking.
Q Up to this time, in your life have you ever had any
thoughts of holding anybody up or stealing money by use
of force or violence?
A No.
Q All right, and then what happened after this as
[fol. 444] far as Mr. Jones, and what took place?
A Well, I was living with Erma, Erma and her sis-
ter, and Erma’s sister was having—she had two or three
annie =
91
boy friends over. One of them fell on one of Erma’s
babies and hurt the baby.
Q How old was this baby that was hurt in the proc-
ess?
A About three or four months old. Just a small one.
Q Was this person, the fellow that fell on the baby
drinking or anything like that before this happened?
A Yes.
Q And how bad was the baby hurt?
A She took—we took the baby to the hospital and
they told Erma she was not treating the baby right. They
kept the baby.
(fol. 445] Q They kept the baby in the hospital?
A Yes.
Q How long?
A Two weeks. ie
Q So after this, did you decide that you wanted to
move out of there?
A Yeah.
Q Were you working at this time?
A Yes.
Q Then what happened?
A Well, I called Dennis up and told him what hap-
pened, and he said, “Well, Man, you come stay with me
until you can get your apartment.”
I said, well—I asked Erma about it and she said—she —
agreed to it, you know.
Q Then you and Erma moved in with Dennis, and was
there someone else there?
Yes.
Who was that?
Fannie; Fannie Lue Smith.
Fannie Lue Smith?
Uh-huh.
How long did you stay with Dennis before the
date of February—when did you move in in relationship
to the date of the 14th of February, 1967?
A I think about a week before then, before Febru-
[fol. 446] ary.
Q What happened with reference to staying with
1 and Fannie? Were you still working at this
time
OPO ror
92
A No.
Q What happened as far as your job—
A Well, I didn’t have transportation out there. I was
going to try to take another job, and meanwhile this job
didn’t come in, and the man out at the Great Western
Bag, he dismissed me because he said, “You don’t have a
car”, and the shift I was working, I was working grave-
yard shift.
Q How did you have to get to work when you were
working graveyard shift?
A On the bus.
Q How long did it take you to get to and from work?
A Oh, about an hour, because the bus goes so far, to
Vernon, and I think it was Alameda, and then it turns
around and goes back.
Q How far did you have to walk after you got off
the bus to get to work?
A About a mile, across Downey Road, I think it was,
Loma Vista.
Q About this time, were you getting desperate for
some money?
[fol. 4471 A Well, yes, I was.
Q What happened as far as money and the fact that
you didn’t have any and you needed some?
A Well, my mother send me some money. I called
her and told her I needed some monev and she send me
some money. She sent it to Iola, and I got one money
order from her, and she sent another one, but I never did
get that one.
Q All right. What happened as far as trying to get
money by use of force or violence? What took place?
A Well, it was mentioned
Q Who mentioned it?
A Me and Dennis. We talked about it, or Guy talked
about it.
Q What were your feelings at this time about engag-
ing in holdups or robberies?
A I didn’t like the idea.
Q Did vou express yourself? Did you tell anybody
you didn’t like the idea?
A Yes. I told Erma about it.
Q All right. At some time, ycu had a gun or you got
a hold of a gun; is that correct?
A Yes.
Q Where did you get this gun at?
A I was working up on Mount Olympus in Holly-
wood, up on Charles Benson, and he got a bunch of
(fol. 448] trucks and stuff up there, and this construc-
tion work, and this old pistol was up there in the glove
compartment of one of the trucks I drove, and I asked
Charles could I have it, and he said, “Yeah, you can take
it. It ain't good for nothing.”
He asked me where did I find it. I told him I found
it inside one of the trucks. He said, “Well, I guess one
of the workers up there, thy do a lot of shooting up
here, target practicing, and stuff like that.”
Q What kind of a gun was this?
A A .82 automatic.
Q What condition was it in?
A Well, it didn’t have a clip, and one of the sides of
the handle was broke off and wasn’t in too good a condi-
tion.
Q Did you ever shoot the gun?
A No.
Q Did you ever know if it would in fact shoot?
A No, I didn’t know.
Q All right. On the date in question that the Pon
Lock store was held up and Mr. Smetana’s store was
held up, what happened? Let’s start with that date,
earlier on that date. What’s the first thing you can
recollect about that date?
A Well, we got—me and Dennis got up and we rode
around. I think he went to pay 2 bill or something. We
[fol. 449] passed through the neighborhood. This guy
Jones, he lived over in that neighborhood, and we went
by to see if he was home, and he was.
: that Pon Lock’s store’s neighborhood?
es.
On Wall Street?
Right.
Thirty-seventh and Wall Street, in that area?
94
A Yes.
Q All right. Did you have a conversation with Mr.
Jones about that store?
A Tes. He was telling us about how easy the store
would be to knock over, you know.
Q You meant by “knock over —he meant holdup; is
that right?
A Tes.
Q Then what happened?
A I told him, I said, “I don’t know.” I said, “Don’t
people live in the back of the store, you know.” I said,
“That wouldn’t be a good idea, to hit that little store.
Lou probably couldn't get nothing out of it, anyways”,
and that was all.
(fol. 450] Q All right. Now, did you later come back
to the subject matter of this store?
Yes.
Where was this?
We were passing by the store.
Who was passing by?
Dennis and I.
What was said?
Dennis told me, “Let’s go in and look it over.”
All right. What happened?
So we parked and went in, and I bought a can of
„and he bought a can of beer, and we walked out.
Then what happened?
We left, and I think we went back to the house,
the next day we went down to the store again.
Q Who went by the store again?
A Dennis and I.
Q All right. What happened on this date?
A We got out and went in the store, and he asked
the lady about some bow dollar—
Q Iam sorry. What was that word?
A Give a bow dollar, a silver dollar.
Q A silver dollar?
A Yes. He was teasing her about could he get more
(fol. 451] than a dollar for the bow dollar.
Q For a bow dollar?
A For a silver dollar.
.
o
95
Q You call it a bow, b-o-w, dollar; is that it?
A Yes. And she was telling him, no he couldn’t by
a dollar for it, you know. It was just worth a dollar to
her. And, meanwhile, there is a little rack with potato
chips and stuff on it. I got some potato chips, I think,
and Dennis orders some wine, and, I don’t know, when I
knew anything, Dennis was robbing.
Q You were by the other lady; is that right?
A I was in the back—yeah, I seen the little girl that
got up on the stand. She was putting some groceries on
the shelf.
Q Did you have a gun with you then?
A No, and she—I asked her was anybody in the back
of the store, and she said, “Yes”, so I was looking in the
back of the store. Dennis said, “Come on, man. Let’s
go.” So we left.
Q Is that the day that the young boy was in there?
A Yeah.
Q You bought him a peppermint stick for a penny?
A Yes.
Q Why did you do this?
[fol.452] A Well, the kid, he was trying to stick his
candy in the pickle, and the top of it was too rough, and
this candy—he dropped his candy and it broke—the pep-
permint candy, when it breaks, it just splatters every-
where—so he looked so pitiful, you know, he didn’t have
another penny to buy him another one, so I bought him
another peppermint stick and put it in for him.
Q Then you left the store, and where did you go then?
Was Fannie Smith in the car at that time?
A No.
Q This is at the time when you held up the—Pon
Lock was held up. Do you remember whether she was in
the car or not?
A Oh, yes, she was in the car. That's right. She was
driving. This was the next day.
Q Then what happened after you left Pon Lock’s?
A We got in the car and we left, and went back to
Dennis’ house.
Q What happened there?
96
A Well, Sharon and Erma was coming up the back
steps, and so we all went in and sat down, and I was
talking to Erma. I asked her where she had been. She
was telling me where she had been, and I spoke to Sharon,
and that was all.
Q All right. Then what happened?
[fol. 453] A Sharon told us she had to get home before
Guy got home from work because she had been out and
she didn’t want him to know she had been out.
Q All right. Then what did you do?
A She asked Dennis to take her home, and—no, she
asked Fannie to take her home, so Fannie and Erma and
Sharon was getting ready to go, so Dennis said, “Wait a
minute. We'll all go”, you know, so all of us got in the
car and took her home.
All right. Mr. Wilkinson, what hand do you use
to do any of the daily tasks such as writing or eating?
What hand do you use naturally and normally?
A Im left handed.
Q Do you do everythig left handed as far as anything
that you would do with one hand?
A Yes.
Q And then all of you were in the car together. This
would be you and Dennis and Fannie and Jones and
the two children; is that correct?
A Yeah.
Lou went from Fannie or Dennis’ place over to the
Jones’ residence; is that right?
A Right.
Q You left off Sharon Jones?
A Right.
Q Then what happened?
[fol. 4541 A Well, we—Fannie said she didn’t want
to go home, she wanted to go riding, and we all feel like
riding, so I said, “Well, why don’t we get some beer and
go riding”, so we went out Venice. We were going to
ride out by the beach, and as we were going out Venice,
well, I don’t know, Fannie was telling us about a place
where she used to work i in this vicinity, and there was a
store there, so I said, “Well, let’s stop at this store and
get some beer”, you know, so we—you couldn't park on
97
Venice. There is no parking there, so we pulled on Har-
vard and stopped, and we got out and I went in the store
and got a six pack of beer, and I think Dennis got a six
pack of beer, and we left.
Was the lady in the store when you bought the
beer?
A No.
Q The man was?
A Yeah.
Q All right. Then what did you do after you bought
the beer and went back to the car?
A We got in the car and we went on out Venice, rid-
ing and drinking beer and talking, and so we rode so
far, so we changed our mind and turned around and come
back toward home.
Q Why did you go back?
A Well, I don’t know. We just changed our minds.
[fol. 455] We didn’t want to go to the beach.
Q Who was driving the car?
A Fannie.
[fol. 456] Q And you were going back to the same area.
Did you stop by the same store again?
A Yes.
Q Was there some conversation in the car about hitting
the store?
A No, never.
Was there something said after you came back from
the store about going back there and what you were
going to do there?
A No, never did come up about hitting the store at
all.
The only thing we said about the store, Fannie said it
was a nice little store. That it was—She has worked in
the vicinity and when she was working there she went in
there a couple of times.
Q Did she say anything about the fact that there was
just a man and a wife in there?
A Yes.
Q And did she say anything about, “It would be easy
to do something in there.”
A Yes.
98
2 1 — by that she meant easy to rob; is that right?
es.
Q And this was discussed in the car; right?
A Yes.
(fol. 457] Q Who entered into the discussion?
A It was her and Dennis ing.
Q And then what happened?
A We stopped. We pulled over around Harvard and
stopped again and Fannie said she was going in and get
some groceries to make some sandwiches for us when we
get back home because everybody was hungry. She said
she didn’t feel like cooking a full meal.
Q All right, then she went to the store and then
what did you do?
A Oh, Dennis and I were still in the car so, I don’t
know, Dennis told us, “Man, let’s go in and look at the
store.“
I said, “Well, yeah, we can get some cold beer.”
Did you have a gun with you at this time?
No, my gun was in Erma’s diaper bag.
Did you get your gun?
No, it was still in there.
When you left the car did you get your gun?
No.
Did Dennis have a gun?
I think so, yes.
And then you and Dennis went into the store;
POPO PO PO
(fol. 458] @Q What happened in the store?
A Well, I went back to the beer cooler and there was
some old man back there already getting some beer.
Q Describe this old man, if you will, please.
A He was about, I’d say five ten or five eleven, and
I'd say he weighed around 200 pounds.
Q Was he colored or white?
A No, he was a white man.
Q Anything else you remember about it?
A Yes, he was getting a six pack of Coors out of a box,
the small cans.
I teased him. I said, “You get your money’s worth if
you get—if you get a big can.”
99
He said, No, I can’t drink a whole beer because I leave
half of it.”
And I got a six pack of Colt .45 out and by that time
this lady screamed and he turned around and I turned
around and he says “What is going on over there?”
I said, “I don’t know.”
So he started over and I grabbed him. I told him not to
go over there because he might get hurt, and so he said,
“What is this, a robbery?”
I said, Leah.“
He said, “You want my money?”
I said, “No, I don’t want your money. Just stay right
[fol. 459] here.“
Q Then what happened?
A And then I heard a shot and Dennis told me, he
said, Come on, let's go, man.”
So I ran out of the store.
Q Did Dennis have something with him when he left
the store?
A Yes, he had a newspaper and a bottle of wine.
Q And you got back to the car?
A Yes.
Q And then you went back to Fannie’s house; is that
right?
A Yes.
Q And the testimony that Erma Dupree gave with
reference to the gun and bullet, was that substantially
correct?
A Well, yes, I got my pistol out of the diaper bag and
after I realized what had happened I just unloaded it.
It has a—wasn’t over one shell, I mean, one bullet, and
I put the gun back in the diaper bag.
I said, “You keep this. I don’t want it.”
Q When you went into that store the second time you
knew that, did you not, that Dennis was going to hold it
up? There was going to be a holdup there?
fol. 460] A No, I didn’t know exactly there was going
to be a holdup. We didn’t say definitely we was going to
hold it up.
Q But you had spoken about it in the car; right?
A Yes.
100
Q And when you held the old man in the back of the
store you knew what was going on; is that right? *
A I did then when the woman screamed, I knew what
was happening.
Q Now, think back again to when you were in the
store and the old man, you were by the old man there,
did you have your pistol with you?
A I don’t think so. I think I left it in Erma’s diaper
bag. I know I never did pull it.
MR. BORNSTEIN: Your Honor, may I approach the
witness?
THE COURT: You may.
(Counsel approaches the witness and then resumes his
former position.)
Q BY MR. BORNSTEIN: All right, you made out a
statement quite some time ago, is that correct?
A Yes.
And when you made the statement out it was fresh
in your mind as to the events that led up to what took
place?
A Yes.
[fol. 461] Q Did you have your gun with you at the
time you went in the store?
A Oh, yes.
Q And you pulled it out at the old man; is that right?
A Yes, that it when he asked me, “Oh, this is a
holdup.”
I said, “Yeah.”
Q How did you feel after you found out that the man
in the store was killed?
A I felt scared. I didn’t know what to think.
Q And what did you do after you found out that the
man had died?
A Well, I was trying to think over a way what to do,
you know, whether to leave town or to stay and find out
what happened, or what, I didn’t know what to do.
Q Did you take any of the money from the robbery?
A I don’t even remember. It wasn’t that much.
Wasn’t even enough to split.
Q Did you drink anything after the robbery?
101
A Yes, I drank some whisky I had at the house, some
of this wine.
Q Why did you drink the whisky?
What was your thought at that time?
A I just tried to get drunk and forget it.
(fol. 462] Q Did you want to think about what had
happened?
A No.
Q Now, after you were taken into custody by the
police you were questioned. Did you make a complete
statement to the police admitting your involvement in the
entire series of events?
A I don’t know. I was intoxicated when the police
picked me up. I don’t know.
Q Later on you made a statement, did you not?
A Yes, I told them that I didn’t shoot anybody.
Q But you told them about the robberies and your
involvement; is that correct?
A Yes, I told them I was involved.
Q You told them the truth as best you could remember ;
is that correct?
A Yes.
Q Sergeant Sullivan was one of them and Sergeant
Stevens; right?
A Yes.
MR. BORNSTEIN: You may cross examine.
THE COURT: Miss Obera.
[fol. 463] CROSS-EXAMINATION
BY MISS OBERA:
Mr. Wilkinson, where is your mother now?
In Jackson, Mississippi.
And are your sisters there, too?
Three of them. One is in college and one is married.
You say you received an Honorable Discharge?
Yes.
From the service?
That’s right.
Was that a discharge under honorable conditions
or straight Honorable Discharge?
Ohr PO PO PO
102
A It is straight Honorable Discharge.
Q Nota general discharge under honorable conditions?
A It just said Honorable Discharge.
The officers, they have the discharge. I have it in my
billfold.
Do you have it?
A The officers who arrested me, they have it.
Q Now, you mentioned getting in a little trouble when
you got out of the Army and that a girl friend of yours
involved you in some checks. Would you tell us about that,
How did you get involved?
[fol. 464] A Well, like I said, she was cashing some
checks on this lady who she worked for at the store and
the police asked her what did she do with the money and
she told them, “Me and Rodney spent it.” So they picked
me up, too, and they picked her up.
Q Did you spend the money?
A Yeah, we went out that night, and my money was
spent and hers was, too.
2 Was this woman supporting you?
No.
Q Now, let's go back to the time when you started to
talk with Guy Jones and Dennis McGautha about robberies.
You say your rent was due?
A Yes.
Lou also said you were earning $2.65 an hour at
that time; is that true?
A Yes.
Q Why didn’t you pay your rent with your earnings?
A Well, at this time the first week they hold back on
the job. You don’t get a check for two weeks.
Q Over what period of time did you discuss robberies?
A This was just one night.
And you then went out and committed a robbery
[fol. 465] the next day?
A No.
All right, how long had you been talking about rob-
beries before you engaged in a robbery?
A This happened one night. We were all sitting around
talking and it just come up one Friday night and I didn’t
see Guy any more until maybe the next week.
108
Q All right. And the next week, didn’t you get a pay
check by then?
A Yes.
Q Also, during this time Fannie Lue Smith was work-
ing; wasn’t she?
I guess 80.
She gave you a place to stay; didn’t she?
Yes.
She kept food in the house; didn’t she?
Yes.
Well, what is this business about your rent being
OS OY ON
.
i=]
@
~
Well, this was where I was staying.
How many places were you staying at that time?
I had one place I was staying at at 512 East 36th
t.
Is that Iola Henry’s house?
that is a room I rented.
(fol. 466] Q You were free to stay at Iola Henry’s
house if you wished; weren’t you?
A Well, no.
Q And, how much rent were you paying?
A $11 a week.
Q You had been working pretty regularly ever since
19—strike that.
How long had you been working regularly before you
committed this robbery?
A Up until about, I imagine, two weeks.
Q And then how long had you been unemployed before
that?
Before the robbery?
A
Q Yes.
A About two weeks before the robbery.
Q You were unemployed for two weeks?
A
Q
wa
Pog POP
2
Yes.
Now before those two weeks how long had you been
working regularly?
A Well, I have been—always had a job.
Q Always had a job?
A Yes.
104
Q Why didn’t you apply for unemployment insurance
when you were
A I did but I didn’t qualify.
Was it because you didn’t have sufficient earnings
[fol. 467] to qualify?
A No, it was—they had, I don’t know, a nine-week
waiting period. They disqualified me for some reason.
[fol. 468] Q When did you get the gun at Mount
Olympus?
A In—let me see. It was in 66.
Q What part of 667
A Oh, it was about four or five months before this
happened.
Q Why did you keep the gun?
A Well, I was going—I don’t know. I just kept it.
Q You bought some bullets for it, didn’t you?
A I didn’t buy some bullets. A friend of mine had
some.
Q What did you plan to do with the gun after you got
the bullets?
A I didn’t plan to do anything but put it in my suit-
case and kept it. I planned to fix it.
Q You said that there was something wrong with this
gun. Would you tell us what that was?
A I don’t know exactly what was wrong with it. It
didn’t have a clip in it, for one thing.
Q All right. When you talk about a clip, I am now
holding People’s 5 in evidence. Is this the kind of gun you
had?
A Yes.
Q When you talk about a clip, are you talking about
this part that fits into the handle of the gun?
[fol. 469] A Right.
Q This part?
A Uh-huh.
Q You put bullets in this part; is that right? This is
what holds the bullets?
A Yes.
Q So you didn’t have any way to hold a number of
— in the gun?
No.
105
Q But you could put one bullet in the gun, couldn’t
?
ih Yes, if you hold it a certain way and put it in.
Q You put that in through the top, do you?
A Uh-huh.
on February 14, you put a bullet in that gun,
didn’t you?
A Well, no, it wasn’t on February 14 I put a bullet
in it. The bullet had been it from the time the guy gave
me the bullet, told me he had some, and he was trying to
see if it would fit.
Q So when you went into the market you had the gun,
A Oh, yeah.
Q You had a bullet in the gun, didn’t you?
A Yes.
ol. 470) Q Why did you go in that marke. with a
loaded gun?
A I didn’t go in and shoot anybody.
Q Why did you go in there with a loaded gun?
Now, you talked about the Pon Lock Market.
Chuck’s Market; you know the one I am talking about?
A Uh-huh.
Q You said, “Before I knew anything, Dennis was
robbing the place.” Is that the truth?
A Yes.
Q You and Dennis went in there to rob the place, didn’t
you?
A We went in there—we just walked in to buy some
beer. We didn’t know we was going to rob it.
Q Hadn’t you already bought some beer, and then
didn’t you go back?
A That was the day before.
Q Go back to the store—when you went in there for the
beer, you had your gun with you?
A This last time?
Q Yes.
A Yes, I had the gun.
Q Well, then, you knew that the purpose in going in
that market was to rob it, didn’t you?
— a
106
A Well, no, I didn’t know who was going to rob it or
= not. We hadn’t said definitely we were going to
rob it.
Q You were going to rob it if there weren’t a lot of
people around, weren’t you?
A I don’t know. I guess so.
Q You were going to rob it if it seemed safe to rob it;
is that right?
A Yes.
Q So it didn’t really come as a surprise to you that
Dennis had a gun on the lady and was asking for her
money, did it?
A Well, yes, it did kind of surprise me.
Q Now, after you left Chuck’s Market, you received
some of the money, didn’t you?
From the robbery?
Chuck’s Market; right.
Yeah.
How much money did you receive?
About $32.
Who else received money?
Dennis.
Did Fannie receive any?
No.
Where was the money divided?
At the house, at Dennis’ house.
Now, when you got $32, you had enough money to
[fol. 472] pay your rent, didn’t you?
A Yes.
Q Did you pay your rent?
A I paid the rent. I paid Dennis for staying there in
the evening.
[fol. 473] Q Dennis didn’t require you to pay rent, did
he?
A No, but I did because Fannie was working every
day, and I wasn’t working, and Dennis wasn’t working,
and I thought it was only right to pay it.
Q With this stolen money?
A Pardon?
Q With the stolen money. You thought it was only
right to pay them with this stolen money?
OPO PO PO PO POP
A Pay them with the stolen money?
Q I will withdraw the question.
Now, I am talking about the robbery on Venice Boule-
vard. You hit Mrs. Smetana with that gun, didn’t you?
No, I didn’t.
You hear her say you hit her with the gun?
I heard her say it, but I didn’t.
1 you ever handle Dennis’ gun?
o.
Never did?
No, I never have.
What did you know about the condition of Dennis’
OPl ONO
gun?
A Nothing.
Q Did it surprise you when the ballistics expert men-
tioned that the firing pin on that gun was broken?
[fol.474] A No, it didn’t, because this Watkins fellow
in Bakersfield, when Dennis was talking about it, that
the trigger or something—I mean the firing pin was
chipped, and he asked Watkins where could he get it
fixed, and Watkins was telling him something about it
someplace, a gun store or something.
Q Now, I am going to show you this other gun, the
one marked People’s 3 in evidence. Is this Dennis’ gun
as far as you know?
A It looks like it.
Q When you made some statements to the police, you
made those statements sometime after this robbery and
murder, didn’t you?
Yes.
How long after?
It was close to—almost a month.
1 — were sober at that time, weren't you?
0.
When you talked to Sergeant Sullivan, you were
sober, weren’t you?
A No. I talked to—I talked to so many officers, I
didn’t remember.
Q All right. You were arrested up in Bakersfield?
A Right.
OPO POP
108
Q Sergeant Sullivan came up there and got you;
(fol. 475] right?
A Yeah.
‘ 85 You had been in custody overnight there in Bakers-
eld
A Well, they wouldn't take us back that night. They
took—they waited till—they stayed, Sergeant Sullivan
and Mr. Stephenson stayed overnight and they took us
back the next day.
Q They questioned you the next day, didn’t they?
A They questioned me, They came the same day that
we was arrested. We got arrested that morning and
they was there after dinner, after noon.
Q About how much time after the time you were
arrested were you questioned?
A About three or four hours, I think.
You weren’t drunk then?
Pardon?
You were not drunk then, were you?
I was—yeah, I guess I was high.
You understood all their questins, didn’t you?
Some of them.
You answered their questions, didn’t you?
Some of them.
They made a recording of your statement, didn’t
[fol. 476] they?
A I don’t know.
Q Do you remember telling the officer something about
the condition of the gun you had?
A Yes.
Q Do you remember being asked this question, or
these questions, by Sergeant Stevens and giving these
answers about a gun?
“Q All right. Where is Dennis’ gun?
“A I don’t know where it is. He give it to her
and he said he was going to get rid of it. I said,
‘I’m getting rid of mine, too. I don’t want it. The
pin is broken'.“
rg remember making that statement?
0.
OPO PO PO PO
—
109
Q Do you remember the officer asking, “The ,38” and
your reply, “Yes, it was broken”, and the question, The
38 worked all right in the market when he wanted to
shoot the man”, and your answer, “Yes, the pin was
loose, and it broke, and I don’t know who broke the pin
out“.
How do you know the pin was loose when the gun was
fired in the market?
A Dennis told me it was loose.
Q When did he tell you it was loose?
[fol. 4771 A He showed it to me. I guess he was play-
ing around with it or something.
Q You fired the . 38, didn’t you, Mr. Wilkinson?
A No, I never fired it.
Q You killed Benjamin Smetana—
A I did not.
Q —and now you want to put it on Mr. McGautha?
A No, I did not kill Mr. Spintana.
MISS OBERA: I have no further questions,
THE COURT: Mr. Lloyd, do you have any questions
of this witness?
MR. LLOYD: One or two, your Honor.
THE COURT: Let’s take our recess at this time,
please.
Ladies and gentlemen of the jury, bear in mind once
again the admonition, It is, once again, that you are
not to suffer yourselves to be addressed by any person
on any subject matter of this trial, either directly or
indirectly. You are not to converse among yourselves
about this trial, and you are not to form or express any
opinion on this phase of the trial until it has been finally
submitted to you.
We will be in recess now for 15 minutes,
(Morning recess.)
[fol. 478] THE COURT: Case of McGautha and Wilk-
inson, I will have the record reflect the appearance in
court of both defendants, all counsel, and the ju
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