People v. Clapper

COUGHLIN, J.

The defendant, Clapper, and a codefendant McPherson, both were charged with robbery; both pleaded not guilty, and the issue raised was one of identification; and both were found guilty of robbery in the first degree. The defendant appeals, seeking a reversal of the judgment on the grounds (1) that the evidence is insufficient to identify him as one of two persons committing the subject robbery; (2) that illegally obtained admissions by him were introduced in evidence contrary to the rule in

People

v.

Dorado,

62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361]; and (3) that an instruction by the trial court violated his constitutional right against self-incrimination.

On August 14, 1963, at about 10:20 p.m., two young men entered a “Speedee Mart” market in San Diego County and robbed the operator on duty at gunpoint. The victim identified one of them as McPherson, the man with the dark hair, who had the gun. She testified that the defendant, Clapper, looked “similar” and “resembled” the second man, who had “blond, curly hair, lighter at any rate than the other one,” and was carrying a tire iron. A customer who had left the market and was about to get into her automobile shortly before the robbery occurred testified that two men came up from the side of the market; started toward her and hesitated; veered away; and disappeared. She identified them as the defendant Clapper and the codefendant McPherson. On cross-examination by counsel for the defendant she stated it

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would be possible for her to be mistaken in her identification of the defendant; that she believed him to be one of the boys, but could not say that she was absolutely sure, and that he had light hair similar to the defendant’s. A son of the victim testified that as he approached the market shortly after 10 p.m. he saw two boys running out of the store, one of them was dark haired and the other was light haired. It was established that the defendant Clapper had light, wavy hair.

On September 10, 1963, a police officer on routine patrol in the East San Diego area stopped a Pontiac automobile driven by the codefendant McPherson, with whom the defendant Clapper was riding, after the officer noticed the automobile slow down as it passed a liquor store on three occasions. While interrogating McPherson the officer observed and took from the front seat of the Pontiac a gun; placed it on top of his patrol car; and radioed “for cover, possible robbery suspects in custody.” As the officer said “robbery,” the defendant “gave a startled look”; turned; and ran. Subsequently the defendant was taken into custody by another patrolman in response to an all-units pickup radio message. While being transported to the city jail, the defendant told the patrolman, in reply to questions from the latter, that he had traded a painting of some sort for the “gun”, and that “it was owned by himself and another party.”