Frye

Thomas Gaston Frye and Kim Leffingwell appeal their jointly tried burglary convictions (Pen. Code, § 459). Both contend no substantial evidence supports the judgment. Leffingwell also asserts the court improperly (1) excluded as hearsay his postarrest statement to the arresting officer and (2) refused his proposed jury instruction. Frye additionally asserts prosecutorial misconduct during his own cross-examination.

About 1:15 a.m., Nancy R. saw two men standing beside her neighbor Doray’s home. Twenty minutes later, Nancy R. saw a shadow move across Doray’s bedroom window. Nancy R., suspicious because Doray’s home had been unoccupied for over 11 months, called police.

Police arrived within five minutes. Officer Henderson saw Frye beside the house. Seeing Henderson, Frye ran to the rear, meeting Officer Winter stationed in the backyard. Frye turned back toward Henderson who ordered Frye to “freeze.” Frye complied. Searching Frye, Henderson found a flashlight and large hunting knife. Immediately after Henderson yelled “freeze,” Leffingwell ran out the back door of the house. Winter arrested Leffingwell, finding a flashlight and a small buck knife on his possession. Police…