Opinion
Cr. 2741
10-1-1951
PEOPLE v. LE BEAU.
Thomas L. Berkley, Joseph G. Kennedy, Clinton Wayne White, Charles E. Wilson, Berkeley, for appellant.
PEOPLE
v.
LE BEAU.
Oct. 1, 1951.
Hearing Granted Oct. 29, 1951. *
Thomas L. Berkley, Joseph G. Kennedy, Clinton Wayne White, Charles E. Wilson, Berkeley, for appellant.
Edmund G. Brown, Atty. Gen., Clarence A. Linn, Deputy Atty. Gen., J. Frank Coakley, Dist. Atty. of Alameda County, Vernon L. Goodin, Deputy Dist. Atty., Oakland, for respondent.
BRAY, Justice.
Defendant appeals from conviction by a jury of felony, to wit, possession of cocaine, and from an order denying a new trial.
Questions Presented.
The main questions are: (1) In a prosecution for possession of cocaine, is evidence of defendant's use of cocaine admissible? (2) Was the prosecution entitled to impeach its own witness?
Evidence.
Defendant makes no contention that the evidence is not sufficient to support the jury's verdict of guilty. A brief review will be given of the evidence relevant to the claimed error in the admission of testimony. The first witness was the state narcotic chemist who qualified as an expert on narcotics. He testified that each of the two capsules which the officers found in defendant's pocket contained one grain of cocaine. He stated, without objection, that in his opinion the average person could not tell by looking at the capsules what the substance contained therein was, but a narcotic peddler could. About midnight Officer Taylor, an Oakland police officer working the Narcotics Detail, went, with Police Sergeant Skelton, to defendant's room in the rooming house of the latter's mother. They knocked on the door and entered. Defendant and Mrs. Velma Miller were seated in the room. Taylor told defendant that they had information from a girl that defendant had narcotics there. Defendant denied it. After a search of defendant's person and Mrs. Miller's purse, finding nothing, Taylor searched clothing hanging in a closet. In a pocket of a coat which defendant admitted was his, Taylor found a piece of tissue paper in which was wrapped two capsules. Answering Taylor's question defendant stated that the contents of the wrapper were his and that he had found the package on 7th Street. Defendant, at the police station, again claimed that he had found the package on 7th Street. On the stand, defendant denied making these statements. He stated that he had never seen the paper and its contents before the officer produced them in his room, and denied that they were his or that he had ever used narcotics; that while the coat was his he had not worn it for nearly a year. Mrs. Miller testified that while defendant was in the room she heard him deny two or three times that the package was his.
Use of Narcotics.
On direct examination, when asked by his own counsel if he had ever furnished narcotics to anybody, defendant denied that he had and stated: 'I wouldn't know narcotics. That is the thing, I wouldn't know it if I saw it. I don't know narcotics, never been in contact with any of them. I never had it in my possession, don't even know what it looks like.' On cross-examination defendant gave the following answers to the following questions, to none of which any objection was made:
'Q. Now, it is your testimony that you didn't know what a narcotic is, is that right? A. That's right.
'Q. Now, isn't it a fact that you had been using narcotics for a good many years prior to your arrest? A. No, that's not a fact at all; I have never used a narcotic.
'Q. You are acquainted with Nancy Teeples, known as Nancy McDowell? A. I know Nancy.
'Q. Do you know who I am referring to? A. Yes, I do.
'Q. Isn't it a fact that on several occasions you have told her that you used cocaine? A. No, I never told anybody I used cocaine.'
On rebuttal Nancy Teeples McDowell was called. After stating that she had known defendant approximately two years, she was asked, again without objection, if on several occasions defendant had not told her that he used cocaine. She replied 'No.' The following then occurred:
'Q. Well, I will refresh your recollection, Mrs. McDowell. Do you remember talking to me
'Mr. Berkley [counsel for defendant]: Objection; he is impeaching his own witness.
'Mr. Goodin [deputy district attorney]: If your Honor please, I can refresh her recollection and then certainly I am impeaching her.
'The Court: You may.
'Mr. Goodin: Q. Do you remember talking to me and Inspector Hansen of the District Attorney's office just yesterday about 11:30 in the morning in my office? A. Yes, I do.
'Q. Didn't you tell us at that time that the defendant had told you, that Mr. LeBeau told you on several occasions that he used cocaine? A. I don't believe that I stated anything that definite. I may have stated that from conversations that I have witnessed that the defendant talked about cocaine. Whether he used it, I would not know, and I have already told you that.'
Counsel then claimed surprise, stating that he talked to the witness that very afternoon and asked permission to call Inspector Hansen. Defendant objected, saying: 'If your Honor please, I think if he intends to impeach his witness it is all right, but I don't think he can go into any cross examination. This doesn't go to any evidence. It only goes at best as to whether or not----' The court overruled the objection. However, Inspector Hansen was out of the room, so counsel continued his examination of Mrs. McDowell.
'Mr. Goodin: Q. Now, you say that you have heard the defendant talking about cocaine during the time that you knew him? A. Yes, I have.
'Q. And in what manner did he talk about cocaine? A. I can't remember. You asked me if I ever, when I stated that you asked me
'Q. Well now, this is something aside from what you stated yesterday. I want you to tell me the truth today. A. Well, your questions are rather hard to answer in the way that you put them.
'Q. All right. Well, what was the nature of the conversation that you had, that you had over here wherein the defendant was talking about cocaine?'
Defendant objected that there was no foundation laid. This objection was overruled, the court saying, 'I think that's what he is trying to find out.' Thereupon the witness said: 'A. It'll only be a vague answer because I have had many conversations with him and I could not remember where it was, who was present or when it was, being as I do not know Mr. LeBeau that well.
'Q. But you do remember overhearing conversations wherein Mr. LeBeau was talking about cocaine, isn't that right? Is that your testimony now? A. Vaguely.'
Defendant moved that 'all' be stricken as immaterial. The motion was denied. Inspector Hansen was called by the district attorney and testified that Mrs. McDowell had told the district attorney and himself that defendant had told her he used cocaine.
Defendant now contends that the cross-examination of defendant concerning his use of narcotics, the admission of the testimony of Mrs. McDowell and that of Inspector Hansen in impeachment of Mrs. McDowell were erroneous. At no time did defendant object to the cross-examination of defendant on the subject of his use of narcotics, nor did he object to Mrs. McDowell being questioned on the subject, until it appeared that her testimony had taken the district attorney by surprise. Then, his objection was not to the subject matter, but to the manner of the district attorney's attempt to impeach her. Defendant stated: '* * * I think if he intends to impeach his witness it is all right, but I don't think he can go into any cross examination.'
The question of the use of narcotics by defendant was first mentioned by him when (undoubtedly in an endeavor to influence the jury to believe that he did not know what was in the capsules, in the event that it should find against his claim that he did not know the narcotics were in his coat) he stated that he had never seen a narcotic and would not even know what it looked like. The situation was similar to that in People v. Westek, 31 Cal.2d 469, 190 P.2d 9, where, in a prosecution for sodomy and lewd and lascivious conduct, defendant, in denying that he had mistreated the children mentioned in the charges, stated that he had never mistreated any children at all. Evidence that defendant had previously pleaded guilty to a charge of contributing to the delinquency of a minor other than any of the prosecuting witnesses was admitted. In holding this evidence properly admitted the court said, 31 Cal.2d at page 479, 190 P.2d at page 15: '* * * here appellant's voluntary declaration of his good character and unimpeachable moral status in relation to his prior conduct with boys was material to the issue involved, and the prosecution had the right to present responsive evidence which would 'tend to contradict' appellant's self-serving statement 'or weaken or modify its effect.' People v. Turco, supra, 29 Cal.App. 608, 610, 156 P. 1001, 1002. As the matter was considered in People v. Buckley, supra, 143 Cal. 375, at pages 389, 390, 77 P. 169, at page 175, in connection with the scope of cross-examination, it 'would be a harsh rule that would forbid the usual practice of allowing one on trial for a crime to testify, if he so desires, that he has led a decent * * * life * * *, for such evidence certainly tends to show good character,' but when he does so open 'voluntarily * * * the door to his past,' he cannot complain if the prosecution elects to subject him to further examination in regard thereto for the purpose of testing his credibility. The same reasoning applies in relation to rebuttal evidence offered by the prosecution. People v. Hoffman, supra, 199 Cal. 155, 162, 248 P. 504; People v. Turco, supra, 29 Cal.App. 608, 611, 156 P. 1001.'
In People v. Gin Hauk Jue, 93 Cal.App.2d 72, 208 P.2d 717, defendant was charged with the possession of opium. In his room had been found, in addition to opium, some hypodermic needles. On direct examination defendant denied that the articles found belonged to him, and denied knowledge of the contents of the package. He then stated that he did not know what hypodermic needles were. On cross-examination he was asked, over objection, if he were not a user of narcotics. He admitted that he was. In holding the cross-examination proper the court said, 93 Cal.App.2d at page 74, 208 P.2d at page 718: 'It cannot be said, particularly in view of the testimony given by defendant on direct examination, that the ruling of the trial court was improper. Sec. 1323, Penal Code; People v. Noland, 61 Cal.App.2d 364, 143 P.2d 86.' See also People v. Casas, 77 Cal.App.2d 255, 175 P.2d 19, where the court held that defendant's admissions that she had on several occasions used narcotics was a circumstance to be considered by the jury in determining that defendant knew the jar found in her possession contained opium. Nor is the evidence rendered inadmissible merely because it tended to prove the commission of another offense. People v. Grayson, 83 Cal.App.2d 516, 189 P.2d 285.
Evidence of defendant's use of narcotics being admissible, it then was relevant and material to prove by the witness Mrs. McDowell that he had admitted using cocaine.
Defendant contends that the proper foundation for Mrs. McDowell's testimony was not laid in that 'we have to know where the conversation, who was present * * *.' Defendant had been asked if it was not a fact that on several occasions he had told Mrs. McDowell that he used cocaine. Defendant answered, 'No, I never told anybody I used cocaine.' The question and his flat denial were sufficient foundation for such rebuttal evidence and amply informed him of the testimony to be offered. See People v. Hovermale, 76 Cal.App. 91, at page 95, 243 P. 878, at page 880, where the court, in answer to a somewhat similar objection, pointed out that the objection was without merit as to time and persons, and said: 'We cannot conceive how the witness could have been misled in any way in answering the question under consideration by the fact that the particular place where the conversation was claimed to have taken place was omitted from the question.' As stated in People v. Ferrara, 31 Cal.App. 1, 5, 159 P. 621, 623: 'It was not necessary to fix time, place, and circumstances of alleged statements made by defendant by questioning him thereon before proving such statements. His declarations and statements were original evidence against him, and the rules as to impeachment of witnesses did not apply.'
At first the district attorney attempted to refresh the memory of his witness by calling attention to her previous statement to him inconsistent with her present testimony. This he was entitled to do. People v. Durrant, 116 Cal. 179, 214, 48 P. 75. Then the district attorney, who obviously was taken by surprise at the witness' conduct, was entitled to show that she had made contrary statements. The situation was identical with that in People v. Gallagher, 12 Cal.App.2d 434, at page 437, 55 P.2d 889, at page 891, where the court said: 'The prosecution was taken by surprise by the refusal of the witnesses to identify appellant. The prosecution had a right to suppose the witnesses would adhere to the statements made to the officers and being taken by surprise at their refusal to do so, the district attorney had a right to show that they had made contrary statements.'
In People v. Newson, 37 Cal.2d 34, 230 P.2d 618, it was held that a witness cannot be impeached unless he has given testimony against the impeaching party. There a witness, when asked if she saw anyone when she looked in the drug store where the murder occurred, replied 'No.' Over objection the district attorney, claiming surprise, was permitted to impeach her by prior inconsistent statements. This was held error as her answer attempted to be impeached had been entirely negative. It helped neither the district attorney nor the defendant. In our case the witness' answer helped the defendant. He had denied that he had told Mrs. McDowell he used cocaine. She supported his denial. Hence her testimony was positive and harmful to the party calling her. Moreover, on direct examination, defendant testified that the officers had told him at his room that Mrs. McDowell had informed them that defendant had been supplying her with narcotics. In view of this voluntary testimony (the prosecution had offered no such evidence), the unexpected attitude of Mrs. McDowell was helpful to defendant. The court properly instructed the jury as to the effect of impeaching evidence.
Other Objections.
At the beginning of the trial, out of the presence of the jury, defendant demanded that the district attorney be required to state whether he expected to call Mrs. McDowell as a witness and if so, what he expected to prove by her. The district attorney declined to do so, stating that whether she would be called depended upon the evidence adduced. The court refused the defendant's demand. There was no error in doing so. We know of no law, and counsel has cited none, requiring the prosecution to do as demanded.
On cross-examination defendant, without objection, was asked concerning his employment following his statement on direct examination as to when he got out of the Army. In rebuttal the prosecution, again without objection, called defendant's employer in an attempt to impeach defendant concerning some statements made on this subject. No objection having been made at the trial it is now too late to raise the question. Moreover, the rebuttal evidence supported defendant's testimony.
There were two police officers present at the time the cocaine was found in defendant's room. Only one of them testified at this trial. Defendant contends that it was unfair for the prosecution to call only one of these officers. (Apparently there had been a previous trial at which both officers testified and the jury disagreed.) We know of no law, and counsel has cited none, which requires a party to call all witnesses to a particular incident.
The judgment and the order denying the motion for a new trial are affirmed.
PETERS, P. J., and FRED B. WOOD, J., concur. --------------- * Subsequent opinion 245 P.2d 302.