*1 property entirely which the was distributed sur- under viving of the wife to the relative exclusion relatives of the predeceased husband, reversed, cause is remanded superior directions with enter decree dis- subject tributing proceeds policy in accordance expressed. with views hereinabove J., Shenk, Carter, Gibson, J., J., Traynor, J., Spence, C. J., MeComb, J., concurred. In Oct. No. 6243. Bank. [Crim. 1958.] McSHANN, Respondent, PEOPLE, THE v. ROBERT Appellant. *2 Vaughns, Ap- Dixon & White and Clinton White for W.
pellant; Attorney Brown, Edmund General, G. Clarence Linn, A. Attorney General, Deputy Assistant and Victor Griffith, At- torney Respondent. General, for Defendant appeals
TRAYNOR, judgment J. from a conviction on two counts of violation of section 11500 of the Safety charged Health and one Code. Count a sale of heroin *3 charged possession on November 1956. Count two 1956. heroin November prosecution’s The evidence showed that on November 26, McBee, Hilliard, Police Leen, Officers and Goodrum met a confidential informer Oakland. Officers McBee and the informer and Hilliard searched found no narcotics on accompanied by informer, him. four officers, then Department to the Oakland Police where went he made an by telephone purchase appointment for of narcotics from McBee dialed the Officer number listed for defendant. recording defendant, a was and made of the residence con- McBee, Hilliard, pres- Officers and Goodrum were versation. telephone during conversation and later ent listened to the played recording recording. The before jury, and talking the voice to identified the informer the officers as de- fendant’s. gave a $20 a bill bill, $10 The officers and a powder. They fluorescent bill, each dusted with took $5.00 vicinity of Market and him to the Grand Streets where he an automobile driven defendant. Officer entered McBee sight until he lost of it. Ten followed automobile informer later the entered Officer fifteen minutes McBee’s gave Market Streets and at 21st and Officer McBee automobile powder small containing bindle a white a later identified as heroin. saw informer Officer Goodrum enter the auto- mobile identified defendant’s followed it until and got out and McBee’s entered Officer automobile. 27,1956, again On November made a defendant, call to (and which was also played recorded later purchase to the jury), arranged and to heroin from him a bar. Officer McBee informer then to went vicinity of the Later joined bar. Officer them, Hilliard listening after recorded conversation he obtained a war- rant premises. to search defendant’s On November 27th Officers Goodrum, Reppas,and Woishnis kept defendant’s residence under surveillance. Officer Hil- liard instructed them to follow defendant when he left his residence and him opportunity. arrest at the first There- after defendant left his an residence in He automobile. stopped at the intersection of Adeline and Market Streets for a traffic signal, and the officers drove their automobile front of his and told him that he They was under arrest. told gas him to back his car a get into station and to out and place top hands got car. As he out of the car, “silvery OfficerWoishnis a observed flutter” and “He said: dropped it.” something shiny Officer Goodrum saw “hit off of his ground shoe and on the land . . . .” [defendant’s] Beppas picked up packages Officer four tinfoil and asked Í” defendant: “What about these Defendant he said didn’t anything package know wrapped about them. A smaller cellophane pocket. was found in packages defendant’s All five officers,together contained heroin. The with OfficersHilliard McBee, then went defendant’s residence and searched They including bill, it. a $1,058, found a $20 $10 bill and a light large bill on which ultraviolet $5.00 disclosed powder. prosecution’s amount of fluorescent evidence also showed that defendant made certain admissions after his arrest. party he
Defendant testified that was not *4 telephone conversations, alleged meeting denied the with the possession he informer, and denied that had of narcotics on November 27th. During the cross-examination of McBee Hil Officers jury hearing of on on
liard before the probable and OfficerHilliard jury, trial in the absence of the court sus cause ground privilege (Code Proe., 1881, on the tained Civ. § prosecution’s objection questions by 5) the de subd. 806 seeking
fense to obtain the name of the informer. Defendant contends that trial prejudicial committed error sustaining objections.* these
Count One: The Sale Heroin on 26, November 1956 by
Since the sale the defendant was to the informer, identity. clearly defendant was entitled to disclosure of (Roviaro States, v. United 353 U.S. 58 [77 1 639]; People L.Ed. Alvarez, Cal.App.2d v. 154 694, 696 People 1006]; Cal.App.2d P.2d Castiel, v. 153 [316 653, 656-659 79]; People Lawrence, P.2d v. 149 Cal. [315 App.2d 435, 821].) People 451 contend, P.2d The how [308 ever, prejudiced that invoking defendant was not the evidence that telephone defendant received two calls from the informer and that he made a that the sale to the informer to establish identity. very defendant knew the informer’s That evidence was in issue, however, for he defendant denied that received finding such calls or that he was no made such sale. There that the defendant knew the informer and it cannot be assumption assumed that in effect he did. Such would guilt. (See States, supra, assume his 353 Roviaro United v. 60.) U.S. 27,1956 Two: The Count Possession Heroin on November People on uphold The seek count two the conviction on bearing grounds that the has no informer’s privilege any that event there nondisclosure of informers. privilege The common-law nondisclosure is based public policy. purpose privilege “The is the fur protection therance and interest in effective law privilege recognizes obligation
enforcement. zens to of citi knowledge communicate their the commission of and, preserving crimes to law-enforcement officials their encourages perform obligation.” anonymity, them to (Roviaro States, supra, United in protection against reprisals. of some former is thus assured particularly The use of informers is effective the enforce sumptuary against gam ment of laws such as those directed liquor prostitution, or use of bling, the sale and and narcotics. identity ordinarily destroys his Disclosure the informer’s (See obtaining information Don- usefulness thereafter. not contend that the recorded conversations *Defendant does (See interception People an unlawul therefore inadmissible. were v. 517].) Malotte, 46 Cal.2d P.2d
807 Pigeons, nelly, Spies, Informants, Judicial Control Stool Agent Provocateurs, 60 1091,1093; Yale J. 1 U.C.L.A. L. 405, L. Rev. 1881, 5 the
Section
subdivision
Code of Civil
encompasses
privilege
Procedure
the
of nondisclosure of in
public
formers : “A
officer cannot be examined as to commu
public
him in official
when
confidence,
nications made to
the
divergence
by
interest would suffer
There
the disclosure.”
opinion
privilege
the
as to whether
common-law
covers
only
identity
the
of the
also includes the contents
(See McCormick,
[1954],
of the communication.
Evidence
pp.
supra,
;
at
309-311; Donnelly,
60 Yale
J.
1094-1095
L.
719, 730.)
98
the reasons for the
U.
Pa. L. Rev.
Since
privilege
primarily
informer,
the
relate
to
position
privilege
some authorities
not
take the
does
extend to the communications
would dis
unless
contents
(See
close or
tend
disclose the
informer.
p.
Wigmore,
755; McCormick,
ed.],
8,
Evidence
vol.
[3d
supra, p. 310.)
1881,
5 it extends
Under section
subdivision
public
to the
interest would
communications
“when
by
suffer
the disclosure.”
It
is for the court
public
determine whether
by
(See
interest
Dwelly
will suffer
disclosure.
McReyn
v.
6
olds,
128,
Cal.2d
131
1232];
P.2d
Wigmore, supra,
[56
vol.
8
798-801;
22
667, 676.)
Cal. L. Rev.
At common law
privilege
could not be
invoked if
known
to those who had cause to resent
(See
v.
States,
communication.
Roviaro
53,
United
353 U.S.
623,
60
1
639].)
L.Ed.2d
1881,
[77
Under section
subdivision 5 the test
public
is whether
interest would
Conceivably,
suffer
the disclosure.
even when the informer
may
persons
be known to
who
have cause
resent
communication,
open
against
might
disclosure in
still be
interest.
A defendant who knows the iden
tity
informer,
ordinarily
however,
preju
will
not be
by a
identity.
diced
refusal
to disclose that
general agreement
There is
there is
privilege
no
if
nondisclosure
disclosure “is relevant
helpful
defense of
accused or essential
to a fair determination of
(Roviaro
a cause
.”
States,
.
v. United
supra,
.
808 627, 628-629; Tong,
F.2d Li United States v. Fat 152 F.2d 650, 651-652; States, Wilson United 392; 59 F.2d Q.B.D. Marks v. Beyfus, 494, 498; L.R. 25 Centoamore v. supra, State, 182, 183]; McCormick, Neb. N.W. p. 310; Morgan, p. [1954], 119; Basic of Evidence Problems *6 pp. ed.], 3, Wharton, 136-137; Criminal Evidence vol. [12th p. Wigmore, supra, 8, 756;.Underhill, Evidence, Criminal vol. pp. 670; 22 98 2, 820-821; 667, vol. Cal. L. Rev. U. Pa. 239, 719, 730-731; 244-245; L. Rev. 1945 Wis. L. Rev. Uni Evidence, 36.) form Rules of rule partici limited to the informer who Disclosure is not pates alleged. in the crime The information elicited from an helpful may informer be “relevant and defense of the a fair of a cause” even accused or essential to determination participant. though example, For not a testimony eyewitness-nonparticipant an the innocence of the accused lessen risk would vindicate obviously helpful testimony relevant and of false would be a fair of the accused and essential to determination defense of the cause. problem frequently a in Disclosure is such cases as the
present involving one violations narcotics laws, when informer is a so-called also material witness on the issue guilt. A mere informer has a limited role. “When such person truly simply points a is an informant he finger suspicion person toward who has puts violated the law. He in motion which the wheels cause the defendant to be sus pected perhaps plays arrested, part but he no in the criminal, act with which the charged.” defendant is later (People Lawrence, supra, Cal.App.2d v. 149 His ordinarily necessary not is to the defendant’s case, privilege against disclosure properly and the applies. appears from When it the evidence, however, that also a material is witness guilt, issue of may helpful relevant and be his is to the defendant. deprive him of a fair Nondisclosure would trial. Thus, appears from the evidence it that the informer when is a guilt material witness on the issue of and the accused seeks cross-examination, disclosure on People must either dis close or incur a (See dismissal. Roviaro v. United States, supra, 61.) Any 353 implications U.S. to the con trary People Cox, Cal.App.2d v. 156 472, 477 P.2d [319 681], People Gonzales, Cal.App.2d v. 136 437, 440-441 588], disapproved. P.2d are [288
809
Jencks v.
States,
United
353
671-672
U.S.
S.Ct.
[77
comparable
1007,
MeBee and Officer Hilliard telephone testified to the call, and a recording thereof played cut Officer Hilliard was before jury. the telephone The persuasive informer’s call was evi- possession, dence on for it indicated that defendant was en route to make a sale heroin when he was arrested and knowingly possession therefore had at that time. As the originator telephone call the was a material possession. prosecution witness issue of the The made him by introducing a such witness telephone evidence of his call purchase a by playing make of heroin recording and a telephone jury. the conversation the before prosecution solely could testimony have relied on the possession of the officers as to defendant’s of heroin and as telephone to his admissions without reference to the call. telephone Thev chose instead also to introduce evidence of call, testimony which substantiated the of Officers Goodrum Reppas and receiving and discredited defendant’s. Defendant denied opportunity He had no fair call. to substantiate impeach testimony denial and of the officers without identity. disclosure of the closure, Had informer’s there been dis- might have testified no such tele- that phone made, call that was it was not defendant who received call, else that someone called, was that there anwas entrapment. cross-examination OfficersMcBee and Hilliard telephone identity originator call and the of its dealt an setting up with call to the defendant a person making sale and that call. It did not deal with communications made to them “in confidence” (Code Proc., §1881, (5)) or with subd. Civ. person making “in communications confidence.” parallels strong There are between the and instant case States, supra, 353 58-59, Roviaro United U.S. at wherein charged (count one) with a of heroin sale and defendant was transportation (count “illegal two). of narcotics” A with proper count conviction under two was “when the Govern possessed proved narcotics, that the accused unless ment has justifies possession.” (353 explains or such accused uphold sought to the conviction The Government ground of the informer count two on the that the therefore (John bearing Doe) had no on that and privileged. that had introduced evidence The Government as he in his car with defendant John Doe had conversation got ear, place out drove him to a where defendant picked up package, returned nearby tree, a small walked ato package left in another deposited in Doe’s car and testified in the trunk Doe’s car An officer secreted car. and both defendant, Doe and the between to the conversation they saw defendant officer testified he and another pick to Doe’s car. The up package return the small opium court held derivative. The package contained possible testimony was circumstances, Doe’s “John under the helpful might to the defense.... have been highly relevant *8 only than the witness accused] the The informer was [other testimony gov the amplify or position contradict in a to 63-64.) (353 U.S. ernment witnesses.” eye- present ease was not in the informer Although the ease, in was the Roviaro crime, as John Doe the witness to of the introduce evidence election to prosecution’s own the imperative it it the conversation made disclose amplify for informer, he alone could con- testimony tradict in the As the Eoviaro case officers. prejudicial was nondisclosure error. judgment as to reversed both counts. Gibson, J., J., Carter, J., Schauer, C. concurred. J., Dissenting.
SPENCE, Concurring in the I concur reversal as as to count one but dissent from the reversal to my opinion, count In two. of Roviaro United the case States, 353 639], 1 L.Ed.2d is not authority majority’s for the counts, reversal to both as but contrary, clearly the judgment indicates that the of con viction on the second count should be affirmed.
In the case, charges Eoviaro the two were (1) sale of (2) illegal transportation narcotics and Both narcotics. charges out single occurring August arose of a transaction 12, 1954. The Government not did “defend nondis- the closure respect of Doe’s with Count which ’’ ‘‘ charged a sought sale heroin it Doe, to John but to sus- judgment tain the on the basis of the conviction on Count 2, charging illegal transportation (Pp. 58-59.) narcotics.” The court there that, held under the circumstances, it was reversible error as to deny both counts for trial disclosure of the of the informer. holding In respect so with count, court, second stating after respect that “no fixed rule with to disclosure is justifiable” (p. 62), point was careful to out that the second “charge possession” count there did not (p. 63); mere present informer had “been with the accused at the occur- alleged transportation rence of illegal (p. 55) crime” ; and that “the participant, Government’s was sole other than accused, charged” (p. 64). the transaction present In case, possession”; count two did “mere “present not with the accused at the occur- rence of charged two; crime” in count and the participant pos- was not in the offense of “mere distinguished session” on November-27, 1956, as from prior of sale on offense November 1956. If, problem declared the Eoviaro case, is one of
“balancing protecting interest the flow of infor- against right prepare mation defense”; individual’s question if depends of error refusing disclosure *9 (p. particular 62), of each case” am “on the circumstances I clearly in view here is favor of the balance compelling preventing reasons for dis- interest. except informers, where the inter- closure justice forcefully in are stated the dissent it,
ests demand Here, however, we Eoviaro ease. of Mr. Justice Clark opinion majority implications of the only to have follow the judgment of as conviction that ease order to sustain to count two. toas one but affirm
I would therefore as to count reverse count two.
Shenk, J., concurred. Dissenting. I concur Concurring McCOMB, J., from judgment one, but dissent to count the reversal judgment two. as to count the reversal rehearing Respondent’s petition for a was denied October J., McComb, J., were Shenk, J., Spence, 1958. granted. opinion petition that the should be 1, 1958.] In Bank. No. 19911. Oct. [S. F. PRIESTLY, Petitioner, M. v. SUPERIOR COURT CLYDE FRANCISCO, OF SAN OF THE CITY AND COUNTY Respondent.