Opinion
Aрpellant William Allen Bais was charged by information with the robbery of Harry Darr on July 30, 1971, in, violation of Penal Code section 211. The information also alleged that he had been armed with a deadly weapon at the time, and that he had two prior felony convictions. Before trial in the prosecution which followed, throughout which he was represented by the public defender, he admitted the prior convictions. A jury found him guilty as charged and fixed the crime as robbery in the first degree. He appeals from the judgment of conviction, contending that the trial court committed prejudicial еrror in granting a mid-trial prosecution motion for discovery of extrajudicial statements made by alibi witnesses.
The record of the prosecution’s evidence supports the following summary thereof: Harry Darr (the robbery victim named in the information) was working in the office of Western States Stone, a business establishment in Hayward, at approximately 5 p.m. on July 30, 1971. Another employee, Bill Ratzburg, was also present. The two men were' in the process of closing the place for the day. After Darr had deposited money in a safe in a storeroom, he observed an automobile arrive at the place *666 and park in the rear. When he and Ratzburg then stepped outside to examine a light fixture, two men approached them on foot. Each of the pair wore a ladies’ nylon stocking over his head as a mask, and. gloves on his hands. Each carried a handgun.
Darr recognized one of the men as appellant, whom he knew as a customer. The man he recognized ordered the two employees into the office, demanded “the money,” and accompanied Darr to the storeroom safe. Darr opened the safe and handed $312 in cаsh to the man. The man returned to the office when his companion called that someone was coming.
Lloyd Silva, a customer who entered the place at this point, saw both armed men, thought he might be observing a “gag,” and asked Darr what was going on. Darr replied “This is no joke, Lloyd, we’re really being robbed.” The robber with the money ordered Darr, Ratzburg and Silva into a restroom area and left with his companion. Ratzburg then called the police. The entire episode lasted about five minutes.
Darr identified appellant to the investigating police officer, and identified him agаin from a set of eight police photographs viewed that evening. Silva similarly identified appellant, from the same set of photographs, three months later.
Both Darr and Silva, testifying at the trial, made an in-court identification of appellant as one of the robbers. Darr described the clothing appellant had worn, and testified that he could not remember whether the two men had worn hats. (He had been unable to give a “clothing description” to the investigating officer or at appellant’s preliminary examination, but testified on the latter occasion that both rоbbers had worn hats.) Ratzburg did not appear at appellant’s trial.
The prosecution having rested, appellant presented an alibi defense through four witnesses who were called in the sequence next indicated. Cathy Rodriquez testified that she and some friends were in her home on the afternoon of the robbery, making “flowers for a wedding”; that appellant arrived at the home at about 1 p.m., and helped make the flowers; and that he did not leave the home until about 5 p.m. On direct examination, Ronnie Lee Harbeck testified that Cathy Rodriquez was his sister; that he lived with her and hеr husband; that he came home at about 4:50 p.m. on the day of the robbery, and saw appellant there; and that appellant was still there when he (Harbeck) left at 5:10 or 5:15 p.m.
The disputed prosecution discovery occurred at this point in the defense case. The circumstances attending it, and its aftermath, require detailed
*667
examination because, as will appear, the trial record is less than complete. Following the direct examination of Harbeck, and prior to cross-examination, the prosecutor made the discovery motion in question.
1
Defense counsel made a timely and comprehensive objection, citing several decisions on the subject of prosecution discovery (including
Prudhomme
v.
Superior Court
(1970)
The court then- orderéd defense counsel to deliver to the prosecutor the pretrial “statements” made by defense witnesses Rodriquez and Harbeck, and by other defense witnesses as and when they were called. In sequence, and as the court spelled out its order in detail, defense counsеl handed the prosecutor “statements” given by Ronnie Harbeck and Cathy Rodriquez. 2
After he had received the “statements,” the prosecutor commenced the cross-examination of Harbeck. The witness reiterated that he had seen appellant in the Rodriquez home at and about 5 p.m. on the day of the robbery, and named the persons who had been present according to his present recollection. The following exchange then occurred: “Q. [by the prosecutor] Have you talked to anyone about this? A. No, I haven’t. Q. Have you talked to an investigatоr from the Public Defender’s Office? A. Yeah. Somebody came to talk to me. Q. You don’t know who it was? *668 A. No. Q. You remember telling him you can’t really recall—you can’t actually remember who was at the home when you came in? A. I told him what I know and that was it. Q. Did you tell him you couldn’t remember who was in the house? A. I don’t remember. That happened so long ago. Q. But you remember today who was in the house? A. Yeah. Q. But you can’t remember Whether you told the Public Defender’s investigator or not, is that right? A. Yeah. Q. What did you do on July 29th, 1971, the day before the 30th? A. (No response.) Q. No idea? A. I don’t know. Out looking for a job. I don’t know. Q. What did you do on the 31st? A. (No response.) Q. Don’t know? A. No.”
The prosecutor did not further pursue the point of what Harbeck had told “the Public Defender’s investigator.” He (the prosecutor) made no direct reference to Harbeck’s “statement” to the investigator, or to its contents. The “statement” was not at any time shown to the witness, offered in evidence, otherwise produced, or marked for identification. The “investigator” who had “transcribed” it (see fn. 2, ante) was not called to the stand. 3
Appellant’s father, next testifying for the defense, stated that he had arrived at his home between 5:15 and 5:30 p.m. on July 30, 1971; that appellant arrived thеre shortly later; and that appellant drove the witness to the bank at about 5:20 or 5:30 p.m.
Appellant testified in his own defense as follows: On the date in question, he was at Cathy Rodriquez’ home, helping to make paper flowers. He saw Ronnie Harbeck come into the Rodriquez home at about 4:50 p.m. and leave 15 or 20 minutes later. Appellant took his father to the bank between 5 and 5:30 p.m., and waited outside. He knew the alleged victim of the robbery, but denied having been at the Western States Stone office on July 30 and denied any part in the robbery. On cross-examination, he admitted the twо prior felony convictions alleged in the information.
After the defense rested, the prosecutor offered no evidence by way of rebuttal. There was a discussion at this point, and the trial court instructed the jury before final arguments commenced, concerning the prosecutor’s use of a prior “statement” by Harbeck in the course of cross-examining him. 4 *669 In his argument to the jury thereafter, the prosecutor twice referred to the same subject. 5
After having been instructed, the jury retired to deliberate at 11:30 a.m. on Tuesday, November 30, 1971. That afternoon, the jury asked for and reсeived a reading of the entire testimony of both Darr and Silva (the eyewitnesses to the robbery). The jury was adjourned at 6 p.m. on that day, and reconvened at 9 a.m. on Wednesday, December 1. At 3:55 p.m. on the second day, the foreman reported that the jury had been unable to arrive at a verdict after seven ballots, and was presently divided by a 9-3 vote (the opposing directions of which were not stated). The trial court then gave the so-called “Allen instruction” 6 and directed the jury to deliberate further. The jury returned its guilty verdict at about 5 p.m. on the second day.
Appellant contends that the order granting discovery of the Harbeck statement violated his Fifth Amendment privilege against compulsory self-incrimination and his Sixth Amendment right to effective counsel. His contention must be sustained on the first ground.
*670
In
Prudhomme
v.
Superior Court, supra,
Applying the test to the order before it, the
Prudhomme
court held that it was invalid because it could not be ascertained from the order, or from the record, whether the matters to be disclosed “cannot possibly have a tendency to incriminate” the defendant.
(Ibid.)
On this point, the court noted that “[i]t requires no great effort or imagination to conceive of a variety of situations wherein the disclosure of the expected testimony of defense, witnesses, or even their names and addresses, could easily provide an essential link in a chain of evidence underlying the prosecution’s case in chief. . . . Thus the order before us is too broad, for it could require petitioner [the defendant] to disclose information which
*671
might serve as a link in a chain of evidence tending to establish her guilt of a criminal offense. In ruling upon petitioner’s claim of privilege, the trial court failed to inquire into the incriminatory nature of the information sought, acting upon the assumption that
Jones
and
Pike [People
v.
Pike
(1969)
It appears that the present trial court granted the discovery motion upon the assumption that the matters proposed for discovery were not such as “would tend to incriminate” appellant. This was a different basis for grаnting the motion than the trial court had employed in the
Prudhomme
case.
(Prudhomme
v.
Superior Court,
quoted
supra,
Respondent contends that the Prudhomme test is inapplicable because the рrosecutor’s motion for discovery was made during appellant’s trial and after the prosecution had rested. This argument is based upon the language of the Prudhomme decision (quoted supra), which defines the applicable test as to whether the requested disclosure “conceivably might lighten the prosecution’s burden of proving its case in chief.” (Id. at p. 326.) The Attorney General states the argument as follows: “Prudhomme approves by implication the discovery of matters not properly part of the prosecution’s case in chief. Negating an alibi defense is not part of the case in chief. Impeаching the credibility of alibi witnesses is proper rebuttal.”
This argument must be rejected for several reasons. In the first place, it rests upon an interpretation of the term “case in chief” as the opening procedural stage of a criminal trial which concludes when the prosecution rests. (See Pen. Code, § 1093, subd. 2.) The interpretation comports with conventional trial parlance, but the argument ignores the fact that the prosecution “for good reason, in furtherance of justice,” may be permitted
*672
to reopen its “case in chief” as thus interpreted.
(Id.
subd. 4.) In the event of a valid mistrial, moreover, a new “case in chiеf” (thus interpreted) would be commenced at a subsequent trial. It is entirely conceivable that the results of a given discovery, whenever made, could “lighten the prosecution’s burden in proving its case in chief.” Apart from such possibilities, the Attorney General’s narrow interpretation of “case in chief” is too technical to be applied in derogation of a constitutional privilege. In our view, the
Prudhomme
court’s reference to the prosecution’s “case in chief” was appropriate because the court was dealing with a
pretrial
discovery order. However, the reference may not be construed to- mean that a discovery cannot “lighten the prosecution’s burden,” in the constitutional sense, for the sole reason that it occurs after the prosecution has rested. This construction would import that a defendant’s constitutional privilege against self-incrimination is suspended at a given point in his trial. The
Prudhomme
court’s full discussion of the privilege precludes such reasoning.
(Prudhomme
v.
Superior Court, supra,
It follows that prosecution discovery must be denied, regardless of when requested, if the trial court determines that the matters to be disclosed will conceivably “lighten” the “burden” whiсh the prosecution bears in bringing about a conviction of the accused. “Negating an alibi defense” may very well produce this result, irrespective of the fact that it would be done through the medium of rebuttal evidence. The Prudhomme test consequently applies, and bars the discovery ordered here. 7
In addition, the Attorney General’s argument fails because the prospect of “negating an alibi defense” was by no means the only possible consequence of the discovery requested" in the present case. The prosecutor apparently had the prospect in mind when he moved for discovery, although he did not say so (see fn. 1 and accompanying text, ante); but, even if he had announced his specific purpose, the contents of the requested documents were obviously not known to be limited to that purpose. In short, he was requesting entry to a Pandora’s box. As the Prudhomme court indicated, “[i]t requires no great effort or imagination to conceive of a variety of situations wherein the disclosure . . . could easily provide an essential link in a chain of evidence underlying the prosecution’s case in *673 chief.” (Prudhomme v. Superior Court, supra, 2 Cal.3d 320 at p. 326.) The possibilities emphasize the requirement that the' trial court examinе the matters to be disclosed before granting prosecution discovery; the failure of the present trial court to do this was the essential error.
Respondent alternatively contends, in effect, that the trial court complied with the Prudhomme test by referring to the testimony of Rodriquez and Harbeck and by determining from those sources that the documents requested could not be “incriminatory” as to appellant. But the court obviously could not make this determination from the testimony of either witness; examination of the documents was required. The trial court having failed to conduct such examination, there wаs no compliance with the Prudhomme test.
Respondent further contends in effect that the error was not prejudicial because the contents of the prosecution-discovered “statement” by Harbeck were not “incriminatory,” as such or as to appellant, and because the prosecutor did not actually use the documents to “impeach” Harbeck’s credibility. Both arguments raise the troublesome problem— involving the state of the record on appeal—resulting from the fact that Harbeck’s pretrial “statement,” as discoveréd by the prosecutor and delivered to the latter (see fn. 2, ante), did not become part of the trial record. (See fn. 3, ante.) Despite this conspicuous omission, appellant has inserted a purported (but not authenticated) facsimile of the “statement” in his opening brief, and all parties 8 speak to its contents as if the document were properly before us. It is not properly before us: because it never became part of the record below, there is no way—through augmentation or otherwise—that its contents may be considered for any purpose on the appeal. This disposes of respondent’s contentions that the contents of the document were not “incriminatory”; the principal question pertains to its use.
It is true that the prosecutor did not expressly refer to the document in cross-examining Harbeck, that he did not complete a conventional process of impeaching the witness with it, and that he did not elicit from Harbeck the essentially impeaching fact that he (Harbeck) had made a prior extrajudicial statement inconsistent with his current testimony as an alibi witness in appellant’s defense. (See the text hereof preceding fn. 3, ante.) On the other hand, the prosecutor’s interrogation of Harbeck (quoted supra) strongly suggеsts that the critical questions were based upon the *674 discovered “statement,” the trial court unmistakably concluded as much (see fn. 4, ante), and all parties argue from this premise in their respective briefs. Under the circumstances, and although the record does not permit us to resort to the missing document itself in this regard, we may—and do—conclude that its discovery prompted the prosecutor’s critical questions in cross-examining Harbeck.
This being so, the discovery unquestionably prompted the prosecutor’s statements, in final argument, in which he in effect informed the jury that Harbeck had made a prior inconsistent statement; it was at this point that the discovery did its real damage by way of impeaching Harbeck. Respondent contends that the statements to the jury fall into the area of prosecutorial misconduct, of which appellant may not complain because defense counsel did not object, or request an appropriate admonition of the jury, when either was made.
9
Such misconduct may be considered on appeal, however, although not assigned as error at the trial, if, “the case being closely balanced and presenting grave doubt of the defendant’s guilt, the misconduct contributed to the verdict or [if] the harmful results of the misconduct could not have been obviated by a timely admonition to the jury.”
(People
v.
Floyd
(1970)
We regard the present case as “closely balanced and presenting grave doubt of the defendant’s guilt”; the jury, deliberating for eleven hours through two days and eight ballots, obviously so regarded it. Because the jury deliberated at such length concerning a direct—and essentially simple—conflict between eyewitnesses and alibi witnesses, which it finally resolved in favor of the testimony of the former, we conclude that the misconduct “may have contributed to the verdict.”
(People
v.
Floyd, supra,
It therefore appears that appellant may assert the misconduct on appeal.
(People
v.
Floyd, supra,
Respondent’s final argument is that evidence may constitutionally be used for impeachment purposes even if unconstitutionally obtained. This argument relies upon
Harris v. New York
(1971)
In the present case, there is no indication that Harbeck gave perjured testimony. (Had this been indicated by a pretrial “statement” he had given to the defense investigator, we may rеasonably assume that the prosecutor would have used it to impeach him.) Moreover, the pretrial statement in Harris had been given to the police, from whom the prosecutor obtained it for use in impeaching the defendant. Here, the disputed witness “statement” had been in possession of the defense until the trial court ordered its discovery. It is one thing to allow the fruits of a constitutional violation to be used, for cause, after it has occurred outside the trial court. It would be quite another matter to permit it to occur at the hands of the court itself. For these reasons, Harris is inapplicable.
Because the trial court’s discovery error violated appellant’s Fifth Amendment privilege against compulsory self-incrimination, it was of federal constitutional dimensions.
(Prudhomme
v.
Superior Court, supra, 2
Cal.3d 320 at pp. 323-326.) Consequently, the judgment may not stand unless we find that the error was harmless beyond a reasonable doubt.
(Chapman
v.
California
(1967)
Appellant and amicus also ask us to hold that the error constituted a prejudicial violation of appellant’s Sixth Amendment right to effective counsel. The
Prudhomme
court declined to discuss an identical argument when raised in conjunction with the Fifth Amendment point which produces reversal here. (See
Prudhomme
v.
Superior Court, supra,
The judgment is reversed.
Devine, P. J., and Bray, J., * concurred.
Respondent’s petition for a hearing by the Supreme Court was denied June 13, 1973.
Notes
He moved for discovery with this statement: “I would like tо see any statements that might have been taken by any agents of the Public Defender’s Office as to Cathy Rodriquez, as to Ronnie Lee Harbeck. I would ask to have, also, the statements of those witnesses that might be called by defense ¡>¡c] or that he plans on calling next.”
The record shows these deliveries in the following announcements by defense counsel: “I will give him [the prosecutor] a copy of Mr. Ronnie Harbeck’s statement as transcribed by my investigator. . . . Let the record reflect I am handing him a copy of the statement given by Cathy Rodriquez.” There is nothing in the record showing or suggesting that the trial court inquired concerning the contents of either document, or examined either, at any time.
For these reasons, the Harbeck “statement” discovered by the prosecutor never became part of the trial record and, as will appear, the jury knew nothing of its existence until after all the evidence was in.
The discussion, which took place prior to afternoon adjournment at the conclusion of the defense case, went as follows: “Mr. Baskin [defense counsel]: I don’t foresee any problems on instructions. The Court : All right. Remind me, though, to instruct the jury on the limiting [sic: limited?] effect of the question that was asked Mr. *669 Harbeck. Will you call it to my attention? That is, for impeachment only. Mr. Janssen [the prosecutor]: Certainly. Mr. Baskin: From a prior statement, you mean? The Court: Yes. Mr. Baskin: Which was never read to him. The Court: It was referred to him.” (Italics added.)
When the court was reconvened on the following morning, and after each side had declared itself to have rested, the court made this statement to the jury: “Before Mr. Janssen commences his argument, I meant to instruct the jury in one minor respect. That is, yesterday when Mr. Harbeck was testifying, Mr. Janssen referred to a statement that he had previously made. The jury is instructed that whatever use was made of that statement is to be considered by the jury only for the purpose of possible impeachment of Mr. Harbeck’s testimony; and it is not to be considered by the jury as evidence of the truth of the matter that may have been contained in the statement.” (Italics added.)
On the first occasion, the prosecutor said: “Ronnie Harbeck 4:50 on the dot he’s at the [Rodriquez] apartment on the 30th. He remembers the 30th. He walks in the door and remembers who’s sitting in that apartment. The prior date he couldn’t remember.” (Italics added.)
(Respondent contends that the last reference, to the “prior date,” was to July 29, 1971, not the date upon which Harbeck gave a “statement” to the “Public Defender’s investigator”; appellant claims the converse. Although the reference was ambiguous, it supports appellant’s interprеtation.)
In his closing argument to the jury, the prosecutor further stated: “I asked Mr. Harbeck if he saw anyone in the living room. He can’t testify whether someone was in that house that he didn’t see. He could only testify as to what he saw and he said he saw these people that he remembers today but didn’t remember in an earlier date that were in the living room.” (Italics added.)
For the text of this instruction, see, e.g.,
People
v.
Ortega
(1969)
At this point, we mention—and emphasize—that we are interpreting
Prudhomme
as a constitutional inhibition, under the Fifth Amendment, of mid-trial prosecution discovery pertaining to alibi witnesses for the defense; that we do so in the absence of any California stаtute permitting such discovery
(Rodriguez
v.
Superior Court
(1970)
“A11 parties” include appellant, respondent and the California Public Defenders Association (amicus curiae).
The Attorney General concedes that at least one of the prosecutor’s statements, having been unsupported by impeachment evidence, constituted misconduct as here discussed. (See fn. 5, ante.)
Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairman of the Judicial Council.