A jury found defendant guilty of assault with intent to commit robbery, first degree robbery, kidnaping with bodily harm for the purpose of robbery, and first degree murder. It fixed the penalty for kidnaping at life imprisonment without possibility of parole and the penalty for murder at death. A motion for new trial was denied. The appeal is automatic. (Pen. Code, § 1239, subd. (b).)
At a previous trial the jury fixed the penalty at death for the kidnaping and murder. We reversed the judgment only as to penalty because of errors condemned in People v. Morse (1964) 60 Cal.2d 631 [36 Cal.Rptr. 201, 388 P.2d 33]. (People v. Varnum (1964) 61 Cal.2d 425 [38 Cal.Rptr. 881, 392 P.2d 961].) Before retrial, however, we issued a writ of habeas corpus and reversed the judgment in its entirety on the ground that confessions introduced in evidence had been obtained in violation of Escobedo v. Illinois (1964) 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758]. The judgment was not final when Escobedo was decided. (In re Varnum (1965) 63 Cal.2d 629 [47 Cal.Rptr. 769, 408 P.2d 97].) On this appeal defendant does not challenge his conviction of assault with intent to rob James Fields. He challenges only his conviction of the robbery, kidnaping, and murder of Norman Merrill.
Defendant's fingerprints were found at the service station on the cardboard box in which credit receipts were kept and on the horn ring and the inside of the left front window of the car used to kidnap the victim. A ballistics expert testified that the lethal bullets had been fired by a Colt such as the one Victoria testified defendant had taken with him.
The foregoing evidence is sufficient to support the verdicts.
Police officers conducted a fruitless search for the gun throughout the building where the Jacksons lived. They then prevailed upon Jackson, who was in jail and had confessed, to telephone his wife, who was in the women's jail, and ask her to reveal the hiding place of the gun. Mrs. Jackson said it was in the fuse box in the hallway of the apartment building, where an officer later found it. The officers thus learned of the hiding place of the gun from both Jackson and his wife who had not been advised of their constitutional rights. The inquiry had focused on both of them, and they were not in custody merely as potential witnesses but had been handcuffed while being transported to jail and had been booked for the murder. Although Mrs. Jackson was not prosecuted for the offense, she was entitled to be advised of her rights before being subjected to police inspired and supervised questioning
Under these circumstances information and physical evidence secured as a result of questioning the Jacksons without warning them of their rights could not be used against them. (People v. Stoner (1967) 65 Cal.2d 595, 600 [55 Cal.Rptr. 897, 422 P.2d 585]; People v. Dorado, supra, 62 Cal.2d 338, 353-354; People v. Bilderbach (1965) 62 Cal.2d 757, 763-767 [44 Cal.Rptr. 313, 401 P.2d 921]; People v. Ditson (1962) 57 Cal.2d 415, 439 [20 Cal.Rptr. 165, 369 P.2d 714].) The question remains, however, whether defendant has standing to challenge the violations of the Jacksons' rights.
In cases of searches and seizures conducted in violation of the Fourth Amendment we have held that the defendant has standing to object even when his own rights were not violated. (People v. Martin (1955) 45 Cal.2d 755, 760-761 [290 P.2d 855].) Otherwise the deterrent effect of the exclusionary rule would be seriously weakened. Defendant contends that we should apply the same rule to Escobedo-Dorado-Miranda violations effectively to deter unlawful police interrogations. Noncoercive questioning is not in itself unlawful, however, and the Fifth and Sixth Amendment rights protected by Escobedo, Dorado, and Miranda are violated only when evidence obtained without the required warnings and waiver is introduced against the person whose questioning produced the evidence. The basis for the warnings required by Miranda is the privilege against self-incrimination (Miranda v. Arizona (1966) 384 U.S. 436, 457-470 [16 L.Ed.2d 694, 713-721, 86 S.Ct. 1602, 10 A.L.R.3d 974]), and that privilege is not violated when the information elicited from an unwarned suspect is not used against him. (See Murphy v. Waterfront Com. of New York Harbor (1964) 378 U.S. 52, 78-79 [12 L.Ed.2d 678, 694-695, 84 S.Ct. 1594].) Similarly the right to counsel protected by Escobedo and Dorado is not infringed when the exclusion of any evidence obtained through the violation of the rules of those cases precludes any interference with the suspect's right to effective representation. (See Massiah v. United States (1964) 377 U.S. 201, 206-207 [12 L.Ed.2d 246, 250-251, 84 S.Ct. 1199].)
The information elicited by the trial court did not establish for this jury the facts that were the basis for Hanks' conviction. Its only effect was to impeach Hanks' testimony by showing his prior conviction of a felony. No error was committed thereby even if the court's purpose had been to impeach Hanks instead of to rule on his claim of privilege.
The error in admitting the accomplice testimony was substantial, and it is reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. (Cal. Const., art. VI, § 13
The judgment is reversed insofar as it relates to penalty. In all other respects, it is affirmed.
Tobriner, J., Sullivan, J., and White, J.,
I concur with the majority in the reversal as to penalty, but I dissent insofar as the majority affirm the balance of the judgment challenged by defendant. That too should be reversed.
At the trial there was introduced the murder weapon, a most important piece of evidence for the prosecution. This gun had been discovered by the police as a direct result of the improper interrogation of Edward Jackson and his wife, also
This result is reached by the majority although they admit that in the case of an unlawful search and seizure third persons have standing to urge an illegal search although their rights are not directly violated. (People v. Martin, 45 Cal.2d 755 [290 P.2d 855].) The majority assert, correctly, that the basis of this rule is that otherwise "the deterrent effect of the exclusionary rule would be seriously weakened." Certainly one can say, with even greater emphasis, that the rule here adopted by the majority will seriously impair the deterrent effect on improper police activities intended by Escobedo. A reading of Escobedo, Dorado, and Miranda demonstrates that the rules there adopted were adopted largely to deter improper police activities, just as the unlawful search and seizure rules were adopted for the same purpose. The same rule should be applied to both situations.
The majority also imply that if the confession had been coerced from the Jacksons, Varnum would have standing to attack it. But what the majority overlook is that the rules adopted in Escobedo, Dorado and Miranda were adopted because of the fear that a confession without the required warnings is suspect as coercive. Certainly, the United States Supreme Court in Escobedo and Miranda applied the coercive confession rules. They should also be applied here.
What the sanction may be if the confession is not introduced we need not now determine. All that we have to determine is that the interrogation was unlawful. Violation of the Fourth Amendment occurs at the time of the unlawful search. Violation of the Fifth Amendment occurs the moment defendant is induced to give incriminating information. Violation of the Sixth Amendment occurs the moment the accused is interrogated without being informed of the right to counsel. What the majority fail to realize is that Escobedo, Dorado and Miranda pushed back the impact of the Fifth and Sixth Amendments from the courtroom to the police station.
Carried to its logical conclusion the rule that interrogation is not unlawful until the results of that interrogation are
In support of its contention that the violation of the privilege against self-incrimination does not occur until the evidence is used against the accused the majority rely on Murphy v. Waterfront Com. of New York Harbor, 378 U.S. 52, 78-79 [12 L.Ed.2d 678, 694-695, 84 S.Ct. 1594]. That is the case that repudiated the old rule that one jurisdiction could compel a witness to testify where his testimony, although not incriminatory in that jurisdiction might incriminate him under the laws of another jurisdiction. The state had granted the witness immunity under state law, but he claimed the privilege on the ground that his testimony would incriminate him under federal law.
It was held that under its grant of immunity the state could compel the witness to testify and that the witness' privilege would be protected by precluding the federal authorities from using the testimony in a criminal prosecution against him. But this holding does not support the thesis of the majority. The court adopted the rule announced to "accommodate the interests of the State and Federal Governments in investigating" crime. Unless the state under its immunity statute could take the testimony the whole purpose of the immunity statutes would be defeated in many, if not most, situations for which they were designed. No such competing state and federal interests are here involved.
Massiah v. United States, 377 U.S. 201, 206 [12 L.Ed.2d 246, 250-251, 84 S.Ct. 1199], is also relied upon by the majority to support their conclusion that the right of the accused to counsel is not violated until the prosecuting authorities attempt to use the words elicited while the accused was without a lawyer. It is true that that case states that the accused was denied his right to counsel when the confession was introduced. But there is nothing in that opinion to indicate that there was no violation of the accused's rights if the confession is not used at trial. In Escobedo where the accused demanded the right to counsel the rights of the accused were violated immediately upon that request being denied.
The practical effects of such a holding cannot be minimized. What the majority have done is to attempt to turn a doctrine protective of constitutional rights into a rule of evidence. It must be remembered that the rule of the majority holding that interrogation without warnings is lawful not only encourages such interrogations but also encourages officers to ignore express requests for counsel and to ignore assertions of reliance on the privilege against self-incrimination. Under Dorado and Miranda the same rules are applicable to both situations. In Miranda the court unequivocally covered the situation under discussion in the following language. (Miranda v. Arizona, 384 U.S. 436, at pp. 473-474 [16 L.Ed.2d 694 at p. 723, 86 S.Ct. 1602, 10 A.L.R.3d 974].) "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. [Footnote omitted.] At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present."
I interpret those words as limitations on police activity — the majority do not. A conscientious police officer must, of course, try to obtain evidence by every lawful means. Now he is impliedly told by the majority that, where there are multiple suspects, he may, without giving the required warnings and despite the suspect's request for counsel or desire to remain silent, interrogate one suspect in violation of these rights in the hope of getting admissible evidence against the other suspects. The majority opinion can be interpreted as not only condoning but in effect encouraging such violation of fundamental constitutional rights.
I would hold the admission of the gun was error, and under
I concur in the affirmance of the judgment as to guilt but dissent from the reversal of the judgment as to penalty. In my opinion it is not reasonably probable that a result more favorable to defendant would have been reached had the asserted error relating to the testimony of Thomas Hanks not been committed. (Cal. Const., art. VI, § 13;
Furthermore, at the penalty trial the court informed the jury that "the general instructions having to do with credibility of witnesses and so forth [given at the guilt trial] apply to this phase of the case as well as to the other one," and at the guilt trial the court fully instructed the jury regarding the law relating to an accomplice's testimony. The instructions informed the jury that the testimony of an accomplice is to be viewed with distrust and that a conviction may not be had upon the testimony of an accomplice unless it is corroborated, and the instructions further defined an accomplice, stated that if the offenses involving Merrill were committed by anyone then as a matter of law Hanks was an accomplice, and explained what corroboration is sufficient. In view of these instructions and the further instruction given at the penalty trial that evidence of other crimes may not be considered as evidence unless proved beyond a reasonable doubt, it does not appear that the alleged error was prejudicial.
McComb, J., concurred.
Appellant's petition for a rehearing was denied June 28, 1967. White, J.,