THE PEOPLE, Plaintiff and Respondent, v. FRANK H. GRAVES, JR., Defendant and Appellant.
Crim. No. 9318
In Bank
Feb. 23, 1966.
208
Thomas C. Lynch, Attorney General, Edward P. O‘Brien, Derald E. Granberg and James T. Fousekis, Deputy Attorneys General, for Plaintiff and respondent.
Defendant was charged with forging three checks drawn on the Central Valley National Bank. The checks named defendant as payee, and he admittedly endorsed and deposited them, one in his account in the First Western Bank and the others in the Wells Fargo Bank. The Central Valley National Bank had no accounts in the names of the purported makers.
After the checks were returned unpaid, agents of the First Western and Wells Fargo Banks called on defendant at his office. Defendant explained that he had received the checks from three different persons in connection with a real estate transaction and stated that he did not know where these men could be located.
The bank agents then got in touch with Inspector Wiebe of the San Francisco Police Department. At his suggestion the agents and defendant met in the inspector‘s office. Defendant repeated his explanation, and at Inspector Wiebe‘s request wrote out two pages of handwriting exemplars, duplicating everything written on the faces of the three checks. Inspector Wiebe took defendant to the district attorney‘s office, where he again repeated his explanation. Defendant was then arrested.
The checks and the handwriting exemplars were turned over to Criminologist Williams of the San Francisco Police Department for examination. Three or four days later Williams asked Inspector Wiebe to obtain additional exemplars. Williams testified at the trial that the original exemplars were unsatisfactory because some of the writing on the checks was handprinted, and the exemplars were mostly in script. At Inspector Wiebe‘s request defendant, who was still in custody, wrote out three copies of each check on specimen check forms. At no time was defendant advised of his right to counsel or of any other constitutional rights.
The handwriting exemplars were introduced into evidence, and Williams testified that the handwriting on the faces of
There is no merit in the contention that the exemplars and statements given before arrest should have been excluded. The exclusionary rule of Escobedo and Dorado applies only when the accusatory stage has been reached, that is, “when the officers have arrested the suspect and the officers have undertaken a process of interrogations that lends itself to eliciting incriminating statements, . . .” (People v. Stewart, 62 Cal.2d 571, 577 [43 Cal.Rptr. 201, 400 P.2d 97].)
Here defendant had not been arrested, and the purpose of the inquiry was not to elicit incriminating statements. Inspector Wiebe learned the facts of the transaction for the first time at this conference. It was only after the questions had been asked and answered and the exemplars given that the investigation focused on defendant and he was placed under arrest.
The handwriting exemplars furnished after defendant had been in custody for three or four days were also admissible. Inspector Wiebe did not elicit incriminating statements from defendant but only requested and secured additional exemplars to make the handwriting analysis easier. We need not decide whether defendant could have invoked the privilege against self-incrimination and refused to make these exemplars.1 The right to counsel during police interrogation established in Escobedo v. Illinois, supra, is designed to prevent the use of coercive practices to extort con-
In Escobedo, the court found a remedy in the Sixth Amendment right to counsel for the abuses it deemed inherent in inquisitorial methods. There is nothing in the language or the logic of Escobedo, however, to indicate that this remedy is needed if the police have not carried out a process of interrogation that lends itself to eliciting incriminating statements. Accordingly, we find no support in Escobedo for invoking the right to counsel to block scientific crime investigation. Reliance on handwriting exemplars for expert analysis is not a substitute for thorough scientific investigation of crime but an excellent example of such investigation.2 To preclude the police from asking for such exemplars would foster reliance instead on the very inquisitorial methods of law enforcement that Escobedo deems suspect.
The judgment is affirmed and the purported appeal from the nonappealable order denying a new trial is dismissed.
McComb, J., Tobriner, J., Mosk, J., and Burke, J., concurred.
PETERS, J.-I dissent.
I agree with the majority that the exemplars and statements given before arrest were admissible under Escobedo and Dorado because the accusatory stage had not yet been
The majority reason that the right to counsel only applies to the elicitation of statements from the defendant and not to the elicitation of evidence in other forms. It is stated that “The right to counsel during police interrogation established in Escobedo v. Illinois, supra, is designed to prevent the use of coercive practices to extort confessions or other incriminating statements. [Citation.] It does not protect a defendant from revealing evidence against himself in other ways.” The majority conclude, therefore, that it is unnecessary to reach the question whether handwriting exemplars fall within the privilege against self-incrimination.
The limitation of Escobedo and Dorado to evidence given in the form of statements is, in my opinion, unsound. It is contrary to the very purpose upon which the right to counsel during police interrogation at the accusatory stage is predicated.
The United States Supreme Court in Escobedo was primarily interested in preventing improper police tactics which spawned involuntary confessions. It concluded that the presence of counsel would go far to eradicate such tactics. (In re Lopez, 62 Cal.2d 368, 372-373 [42 Cal.Rptr. 188, 398 P.2d 380].) But those coercive practices thus sought to be restricted are not limited to obtaining confessions in the form of statements from an accused. There is no legal difference between a defendant being coerced into obtaining for the police documents or real evidence not otherwise obtainable by legal process, and being coerced into giving incriminating statements. There is no guarantee that coercive methods will not be used by the police to obtain documents or chattels
It is evident that coercive methods or other improper police practices can be used to elicit incriminating evidence through several other forms than through statements. In each case the accused is persuaded to obtain or create evidence against himself. The fact that such evidence is usually obtained through statements, since this method requires the least action on the part of the accused and hence the least amount of persuasion, does not obviate the danger that coercive methods will be used to obtain evidence in other ways. On the contrary, because the obtaining or creating of nonverbal evidence generally requires more active participation on the part of the accused, there is a greater danger that coercive methods will be used to obtain such evidence. The right to counsel matures when the accusatory stage arises. (Escobedo v. Illinois, 378 U.S. 478, 492 [84 S.Ct. 1758, 12 L.Ed.2d 977].) Since counsel would be no less valuable in preventing coercion of evidence in forms other than statements, I cannot distinguish between the forms of incriminating evidence in determining the right to counsel at this stage.
Once it is concluded that the rules of Escobedo apply to obtaining evidence from the defendant through other forms
The majority, without determining whether the privilege against self-incrimination is applicable to handwriting exemplars, and relying primarily on People v. Matteson, supra, 61 Cal.2d 466, strongly indicate that it is not. (Majority opinion, fn. 1.) It should be mentioned that Matteson did not decide the question because the exemplars there involved were held to be inadmissible under Rochin whether or not the privilege against self-incrimination was applicable. (People v. Matteson, supra, at p. 469.) We have recently recognized that the question is an open one in this state. (People v. Gilbert, 63 Cal.2d 690, 708-709 [47 Cal.Rptr. 909, 408 P.2d 365].)
It is true, as the majority state, that not every aid that a defendant or suspect is required to give the prosecution violates the privilege against self-incrimination. An accused can be fingerprinted, photographed, and measured without his consent; he may be ordered to stand up in court for identification or to try on items of clothing; blood samples may be taken from a suspect without his consent if the means used to obtain them do not shock the conscience. (See Holt v. United States, 218 U.S. 245 [31 S.Ct. 2, 54 L.Ed. 1021]; People v. Lopez, 60 Cal.2d 223, 244 [32 Cal.Rptr. 424, 384 P.2d 16]; People v. Duroncelay, 48 Cal.2d 766, 770 [312 P.2d 690].) In the above cases, however, the evidence sought relates to the physical characteristics of the defendant and is already in existence.3 It is universally conceded that one can rely on the privilege in refusing to produce documents or chattels in the
It is also unreasonable to hold or to imply that the police, without advising a defendant of his right to counsel, can obtain handwriting exemplars at the accusatory stage which show that he wrote the forged checks, when, admittedly, they could not request his verbal admission that he wrote those checks. A limitation of Escobedo to the elicitation of statements would encourage the police to obtain evidence from a defendant in other forms which are within the privilege against self-incrimination without advising him of his right to counsel. Admission of such evidence must therefore be held to constitute a violation of the right to counsel during the accusatory stage as established in Escobedo.
The question remains whether the error in the present case requires reversal. The evidence gained from the exemplars must be regarded as admissions contained in attempted ex-
People v. Lopez, supra, 60 Cal.2d 223, 244, contains dicta that a defendant may be required to speak for voice identification, but, even if this dicta were correct, there is no support for it in the cases cited as authority for this proposition. (See People v. Duroncelay, supra, 48 Cal.2d 766; People v. Trujillo, 32 Cal.2d 105 [194 P.2d 681].)
Under the People‘s theory of the case, the conviction of defendant is based solely upon the premise that he was the person who had filled out the face of each of the three checks. Defendant consistently denied this both before the trial and as a witness at the trial. There is no direct testimony to the contrary. Obviously, the jury found that defendant had filled out the checks in question. In so finding, the jury must have relied upon and accepted the testimony of the expert that defendant was the person who had done the writing on the face of the checks. As already pointed out, the exemplars properly obtained were unsatisfactory, and apparently insufficient to convict. The expert‘s opinion that defendant wrote the checks must have been primarily based on the second set of exemplars illegally obtained. This requires a reversal because there is not only a reasonable possibility that the evidence complained of might have contributed to the conviction (Fahy v. Connecticut, 375 U.S. 85, 86 [84 S.Ct. 229, 11 L.Ed.2d 171]) but there is a reasonable probability that a result more favorable to the defendant would have been reached if the evidence illegally obtained had not been erroneously admitted. (People v. Watson, 46 Cal.2d 818, 837 [299 P.2d 243].)
I would reverse the judgment.
Peek, J., concurred.
Appellant‘s petition for a rehearing was denied March 22, 1966. Peters, J., and Peek, J., were of the opinion that the petition should be granted.