People v. Odom

FLEMING, J. This ease is before us for the second time by reason of the decision of the United States Supreme Court in Griffin v. California, 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106], holding invalid, under the Fifth and Fourteenth Amendments to the United States Constitution, article I, section 13, of the state Constitution, which permitted comment on an accused’s failure to testify on his own behalf.

The principal issues are whether defendants were entitled to separate counsel at their trial and whether comment by the prosecution on Odom’s failure to testify was sufficiently prejudicial to require that we reverse his judgment of conviction.

Defendants Odom and Lindsey were charged with robbery of a Los Angeles gas station on May 12, 1963. Each was identified by a witness as a participant, and both were arrested on May 14 in what had been reported as the getaway car.

On May 16 the public defender was appointed to represent both defendants. On May 20 at the preliminary hearing defendants were held to answer the charges against them. Both continued to be represented by the public defender up to the date of trial. On July 12, one week before trial, Lindsey petitioned the trial court to discharge the public defender and appoint private counsel to represent him on the ground that a conflict of interest between defendants existed.

On July 17, the day of trial, both defendants were present in court with the public defender, and at that time Lindsey renewed his request for the appointment of private counsel because of a conflict of interest, the nature of which, however, remained unspecified. Odom also requested the appointment of private counsel. After a recess the public defender advised the court he could not represent to the court that a conflict of interest existed between codefendants. The court then refused to appoint separate counsel.

Next, defendants requested a severance of their cases for trial, and this was denied.

Lindsey then waived his right to a jury trial and agreed to submit the matter on the transcript of the preliminary hear[878]ing. His case was referred to another department of the superior court for submission. Odom went forward in the original department with trial by jury in which he was represented by the public defender. Each defendant was found guilty of first-degree robbery.