People v. Dickerson

California Court of Appeal May 9, 1966 No. Crim. No. 10503Published

Before: Fleming

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Holding. The court held that defense counsel's concession of a lesser-included offense during closing argument, in response to direct judicial inquiry, did not constitute ineffective assistance of counsel but rather a tactical attempt to mitigate the impact of overwhelming evidence.

Issues

Whether defense counsel's concession of a lesser-included offense during closing argument denied the defendant effective assistance of counsel.
Whether the failure to present defenses of unconsciousness or insanity constituted ineffective assistance of counsel.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We do not think this recital shows any lack of effective legal representation on behalf of this defendant.”

“There are times in a case when the stubborn defense of a weak position becomes the equivalent of forensic suicide.”

“Although it would be improper for counsel to enter a plea of guilty to any crime without his client’s consent, this does not preclude counsel in argument from realistically appraising the evidence before the court and conceding its force”

FLEMING, J. Alphonso Dickerson was charged with assault with intent to murder (Pen. Code, § 217). Represented by the public defender, he waived trial by jury and had his case tried by the court. He was convicted of the lesser offense of assault by force likely to produce great bodily injury (Pen. Code, § 245).

Mrs. Gertrude Devezin, the complaining witness, a widow, knew Dickerson slightly and occasionally employed him to run errands for her. On the evening of July 9, 1964, Dickerson came to her apartment and beat her into unconsciousness. He repeatedly kicked her in the face, broke her jaw, and inflicted other serious injuries. She testified he said “I'm tired of you talking about your son. ... I’m going to kill you.” She saw an electric cord in his hands, and at the hospital she discovered that her throat was bruised.

A second witness, Cary Banks, saw defendant leave Mrs. Devezin's house with an extension cord in his hand. Defendant said, “I just beat the old so-and-so, you know, up. ... If she isn't dead, I should go back and kill her.” Mr. Banks went to Mrs. Devezin's apartment, found the living room a wreck, saw blood all around, and discovered Mrs. Devezin in a chair covered with blood from her head down, with a bruise and a purple mark on her neck.

A third witness, Evelyn Baker, saw the defendant on her porch with an extension cord around his arm and heard him say, “Somebody ought to go down there and see how Gertrude is because I think I have killed her.” Mrs. Baker ran to Mrs. Devezin's apartment and found the latter covered with blood, with her head cut and bleeding and with a purple or brown mark around her neck.

[75]For the defense, Dickerson testified that he and two other men had been drinking with Mrs. Devezin for several hours, that the other two had passed out, recovered, and left the premises, and that later he had found Mrs. Devezin lying in the bathtub bleeding from her head. She told him she didn’t want an ambulance. Outside the apartment he saw Mrs. Baker and asked her to see about Mrs. Devezin. At that time he told the other witnesses, . She’s fallen into the tub and tried to murder herself. . . . Maybe I should go back and finish the job.” He had been drinking but he remembered everything that happened, was not befuddled, and not given to blackouts.

In rebuttal, Mrs. Devezin testified that no other persons had been on her premises and that no drinking party had taken place.

People v. Dickerson

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