# Appendix — McGautha v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0276%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1971 - **Citation:** 402 U.S. 183 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0276%3A01. Public record. Not legal advice.