People v. Collier , 49 Cal. Rptr. 109 ( 1966 )

BROWN (R. M.), J.

The appellant was charged with two counts, the first count for violation of Penal Code section 217 in that he did wilfully, unlawfully and feloniously make an assault with a deadly weapon (a pistol) on Thelma Nickerson with intent to murder her; and the second count for violation of Penal Code section 12021 in that he had in his possession a pistol and had theretofore been convicted of a felony, the crime of escape. The matter was tried before a jury and he was found guilty on both counts and sent to state prison.

The appellant on the afternoon of September 26, 1963, had told a Maggie Jones that he was going to shoot Thelma Nickerson—not to kill her, but to fix her so that no one else would want her. That evening Thelma Nickerson, Virgie Mae Smith and Addie Mae Timmons walked out of the front door of the house of one of the women in Bakersfield. The Nickerson car was parked in front of the house; appellant’s car was parked down the same street. As she approached her car the appellant walked up to her and after a short conversation, and without further warning, the appellant is alleged to have shot her twice in the interior median aspect of her right upper leg. The appellant then ran to his automobile and left the scene. At about 1:30 a.m. of the following morning the appellant came to the police station with his brother and sister-in-law where he was taken to the patrol squad room by Sergeant Dodd, where the shooting in question was discussed. After questioning as to what happened, the appellant stated that he had become angry at Thelma Nickerson and felt he had to hurt her, that he did not intend to kill her and that he had thrown the gun he used out of his car as he drove off. In the next hour or so appellant went with a Sergeant Fidler and Detective Wheeler to look for the gun.

During the trial it was the appellant’s defense that he did not have a gun, that he did not shoot Thelma Nickerson, that he heard two shots fired, that he did not know where the shots came from, and that he did not tell Maggie Jones that he was going to shoot Thelma. However, other testimony at the trial as to the occurrence during the short period of time varied from witness to witness. Addie Mae Timmons said she saw the appellant pull a gun out of his pocket and shoot the victim, while Virgie Mae Smith said she saw a flash when the sound of shots was heard but did not see a gun. On cross-examination she stated that she did not see a flash; that he pulled something out of his pocket which looked like a gun.

The victim, who was within touching distance of the appellant, stated that she did not see a gun and did not know who shot her. This statement was made to the doctor who treated her as well as on direct examination at the trial. It was her contention that another friend of hers who was parked across the street at the time could have shot her.

It is appellant’s contention that the confession was inadmissible, having been obtained in violation of due process of law. In this case the appellant was notified by his brother that the police were looking for him and his life might be in danger if he were armed at the time of arrest. Thus, in the company of his brother and sister-in-law the appellant went to the police station and voluntarily surrendered himself. At this time the appellant had been named by a witness as a suspect in the case. The officers were not looking for any other person as a suspect. When the appellant arrived at the station Sergeant Dodd took him into a private room for questioning and the appellant contends that the investigation was no longer one of general inquiry but had shifted to the stage of accusation, that the focus was on the accused, and that he was taken into the interrogating room for the purpose of eliciting from him a confession, which was done without Sergeant Dodd’s advising the appellant of his rights to an attorney or to remain silent.

This ease was tried before the Dorado decision, and not being final, is subject to the application of In re Lopez, 62 Cal.2d 368 [42 Cal.Rptr. 188, 398 P.2d 380]. In People v. Dorado, 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361], the requirements necessary to support appellant’s contentions are given, as follows: “We conclude, then, that defendant’s confession could not properly be introduced into evidence because (1) the investigation was no longer a general inquiry into an unsolved crime but had begun to focus on a particular suspect, (2) the suspect was in custody, (3) the authorities had carried out a process of interrogations that lent itself to eliciting incriminating statements, (4) the authorities had not effectively informed defendant of his right to counsel or of his absolute right to remain silent, and no evidence establishes that he had waived these rights. ’ ’ (Pp. 353-354.)

Respondent concedes that the first two requirements and the fourth requirement are met, but submits that the’ third requirement has not been met because the authorities had not carried out a process of interrogation that lent itself to eliciting incriminating statements.

In the recent case of People v. Stockman, 63 Cal.2d 494, the Supreme Court said at pages 497-498 [47 Cal.Rptr. 365, 407 P.2d 277] : “In determining whether the police carried out a ‘process of interrogations, ’ we must ‘analyze the total situation which envelops the questioning by considering such factors as the length of the interrogation, the place and time of the interrogation, the nature of the questions, the conduct of the police and all other relevant circumstances. ’ ’’

Respondent further relies on People v. Cotter, 63 Cal.2d 386 [46 Cal.Rptr. 622, 405 P.2d 862], There, the deputy sheriffs were at the scene of the crime when they received information that the defendant had called the sheriff’s station indicating where he could be found, gave the desk officer his name, told him he had just tried to kill a woman, and that he could be found at a certain corner. The Supreme Court held that his statements were “clearly admissible as having been made in the investigatory stage.”

In People v. Chaney, 62 Cal.2d 767, at pages 769-770 [48 Cal.Rptr. 188, 408 P.2d 964], the court discusses the question raised by the defendant as to whether the authorities were carrying on a process of interrogation which lent itself to eliciting incriminating statements. The People argued that because the defendant voluntarily appeared at the sheriff’s office and indicated his desire to “clear the matter up,” the confessions taken from him were spontaneous and unsolicited. The court held at page 771: “In view of the foregoing ‘total situation,’ and particularly the place setting of the interview and prior knowledge of the inspector [citation], little doubt is left that defendant confessed during a process of interrogation designed to elicit incriminating statements. While the record is meager as to the manner in which the interview was carried on, it does appear that defendant was interrogated rather than merely given an opportunity to make any statement he wished. ”

We hold that the interrogations set forth in the ease before us are comparable to those set forth in People v. Chaney, supra, in that after examining all of the circumstances, this was a process of interrogation since the officers knew who the suspect was, they had him in custody, and were in a definite way finding out from him what he had done in connection with the shooting of Thelma Nickerson. (See People v. Bilderbach, 62 Cal.2d 757 [44 Cal.Rptr. 313, 401 P.2d 921].)

With reference to count 2, and pursuant to the facts and the law stated hereinabove, it is also necessary to hold that the Dorado rule was violated.

The judgment is reversed.

Stone, J., concurred.