Opinion
For Opinion on Hearing, see 44 Cal.Rptr. 326, 401 P.2d 934.
Stanley Mosk, Thomas C. Lynch, Attys. Gen., by Doris Maier, Asst. Atty. Gen., and Raymond Momboisse, Deputy Atty. Gen., Sacramento, for respondent.
Joseph A. Martin, Public Defender, Woodland, for appellants.
PIERCE, Presiding Justice.
Appellants' principal contention on this appeal from a judgment following a jury conviction for possession of marijuana (violation of Health & Saf. Code, sec. 11530) is that the court erred in refusing defendants' demand that the name of an informer (who was also claimed to be a material witness) be divulged. We find error and since we also hold that this error was prejudicial a somewhat detailed review of the facts is warranted. We state them chronologically.
Defendants both testified at the trial, Morales through an interpreter, Perez without Perez stated he had been drunk during all of the preceding events, that he spent the night drinking and was drunk all the next day, Sunday, October 13th. Morales said he was gone most of the next day. Perez declared he had not left the room except to go out for a bottle of wine at 3 p. m. At approximately 7:30 p. m. the stranger returned. Morales was not then in the room. The man asked Perez if they were still looking for jobs and the latter replied that Morales had been out looking for work that day. Perez, who (as he told the narcotics agent later) was sick from too much liquor, 'layed [sic] down on [his] bed again.' The visitor rolled and smoked a cigarette which, however, did not smell like a regular cigarette but had a strange odor. He denied knowledge of the smell of marijuana smoke. (In a statement given to the district attorney, reported by a court reporter, and read at the trial he had recognized it as marijuana from the stink.) The man stayed about ten or fifteen minutes. Before he left he asked Perez to take one of the bags to him at the Sportsman's Club around 9 o'clock and Perez had done so.
After the stranger had left, Morales returned with a bottle of whiskey.
State Narcotics Agent James Shierloh entered the defendants' hotel room at approximately 11:30 p. m. that evening. He was accompanied by Officer Glenn Barton of the Woodland Police Department. Shierloh had previously obtained a search warrant which he exhibited to Perez who opened the door for him. The warrant had been issued on the basis of the agent's affidavit. This affidavit, although not admitted in evidence, is a part of the clerk's transcript on appeal. It reads in part:
'That on October 13th, 1963 your affiant received information from an informer known to him and who has on prior occasions provided information for the Bureau of Narcotic Enforcement and has been found to be reliable that he had observed a supply of Marijuana in the room described in this Affidavit on the 13th of October, 1963.'
Thus, however incredible the defendants' testimony regarding the 'stranger' may appear, it must possess some kernel of truth since the presence of a third person in defendants' hotel room is confirmed by the search warrant affidavit.
A search was made of the defendants for weapons and none was found. Noticing a brown shopping bag and a blue canvas bag with a zipper, the officer opened both. Each contained a pink plastic bag. These plastic bags contained marijuana. He also found a partially-smoked marijuana cigarette in an ashtray. Also observed were 'a couple of wine bottles under the dresser [and] a partially consumed * * * pint bottle of whiskey,' white cigarette papers, one Prince Albert can, and the paper fillers for two tobacco cans. These articles were taken into custody shortly after midnight and the two defendants were taken to the police station.
There they were interrogated under circumstances which will be related hereinafter. As stated above, the principal ground for appeal stems from the court's ruling that the prosecution, notwithstanding defendants' demand and claim that they were being deprived access to a material witness, need not disclose the name of the informer who had advised the agent, Shierloh, that marijuana was in defendants' possession in their hotel room and that it had been observed there by the informer on that day, October 13, 1963. It was defendants' theory that the stranger who took them to the hotel and who had carried in the two bags was the only person who had entered their room until the search of the room by the police on the 13th.
During the trial, over defendants' objection, the court ruled that the affidavit in support of the search warrant was not to be admitted in evidence. Thereafter, on cross-examination of Shierloh, the court sustained the prosecution's objection to questions of defendants' attorney which would have elicited the identity of the informer. This ruling was made after full disclosure by the attorney that defendants believed the stranger to be also the informer and therefore a material witness to a vital issue, to wit, the 'planting' of the incriminating evidence in their room.
The contention of defendants that the court's rulings were in error must be sustained. When it appears that an informer is a material witness on the issue of guilt and the accused seeks disclosure on cross-examination, the prosecution must either disclose his identity or suffer a dismissal of the case. (Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639; People v. McShann, 50 Cal.2d 802, 330 P.2d 33.) In the case last cited officers caused a confidential informer to make an appointment by telephone with defendant to purchase heroin and gave him money dusted with fluorescent powder. The officers followed the informer until his meeting with defendant at the latter's automobile but lost sight of them thereafter. The informer later returned with heroin stated to have been bought from defendant with the powdered money. When defendant was later apprehended, heroin was found and upon a search of defendant's premises powdered money was found. At the trial, on cross-examination of the police officers, defense counsel sought the name of the informer. The court sustained objection on the ground of privilege. (Code Civ.Proc. sec. 1881, subd. 5.) On appeal it was held defendant was clearly entitled to disclosure of the informer's identity as a material witness; that there was no finding that the defendant knew the informer and it cannot be assumed that hd did. Such an assumption would in effect assume his guilt. The court stated (on p. 807, 330 P.2d on p. 36): '[T]here is no privilege of nondisclosure if disclosure 'is relevant and helpful to the defense of the accused or essential to a fair determination of a cause * * *' * * *.' (Emphasis supplied.)
The Attorney General argues that there is no evidence that the informer was in fact the stranger. The court, however, improperly rejected evidence that the informer had been in defendants' hotel room and had there observed the marijuana, and there was evidence that until the police came no one but the stranger and the defendants had been there. Moreover, the argument begs the question. As stated by the court (per Justice Dooling) in People v. Castiel, 153 Cal.App.2d 653, at page 659, 315 P.2d 79, at page 82: '* * * No one knows what the undisclosed informer, if produced, might testify. He might contradict or persuasively explain away the prosecution's evidence. It is the deprival of the defendants of the opportunity of producing evidence which might result in their exoneration which constitutes the error in this case, and we cannot assume because the prosecution evidence may seem strong that the undisclosed evidence might not prove sufficient to overcome it in the minds of the jurors.' (See also People v. Kiihoa, People v. Lawrence,
Neither can it be said in the case at bench that disclosure of the person who had observed the marijuana in the defendants' room and his production as a witness might not have explained away their apparent guilt. In this regard we think that the added factors of the language barrier suffered by these defendants and the serious question of their sobriety must be given serious consideration by us in determining the matter of prejudice. Moreover, we consider the fact that Officer Barton was neither called to corroborate Shierloh's testimony, sharply conflicting with that of defendants', nor was his absence explained.
Since the judgment must be reversed and the case retried, another matter should be discussed.
As stated above, defendants, taken to the police department shortly after midnight, were interrogated separately. The period of interrogation lasted until 7 a. m. Shierloh, Officer Barton, and, during a part of the questioning, an interpreter, Lara, participated. Thereafter, when the court reporter had been called in, a deputy district attorney also questioned Perez. Neither defendant was advised of his right to consult an attorney nor of his right to remain silent. No threats or promises of immunity were made to either man, and according to Shierloh the statements were voluntary. (Neither Barton nor Lara was called as a witness.) During most of the questioning Perez was trembling, stated that he was sick--had stomach pains; stated also that he was an alcoholic and that his sickness was induced by the 'withdrawal' of alcohol. He kept asking for liquor and after an hour and a half of questioning he was given a bottle of wine which he held up to his mouth, taking 'four or five swallows.' Perez testified that he asked for medical attention and was not allowed to have it. Shierloh denied this. After Perez' first statement, a second (reported) statement was given. Shierloh testified to the first statement, refreshing his recollection from notes. The court reporter was called as a witness and read a transcription of his notes of the second statement. There were inconsistencies between the first and second statements and there were inconsistencies between Perez' statements and his testimony. Morales also gave a statement and there are inconsistencies between his statement and Perez' statement.
Regarding these matters, the law may presently be said to be unsettled. In People v. Dorado (Aug. 1964), 61 A.C. 892, 40 Cal.Rptr. 264, 394 P.2d 952, and in People v. Anderson (decided the same day), 61 A.C. 903, 40 Cal.Rptr. 257, 394 P.2d 945, our Supreme Court asserted that once an investigation focuses on defendant any incriminating statements given by him during investigation by investigating officers become inadmissible if defendant was without counsel and the officers failed to advise defendant of his right to an attorney and his right to remain silent. Rehearing has been granted in each of these cases which are pending. On retrial of this case, the effect, if any, of the facts recited just above this footnote will depend upon ultimate rulings in the appeals cited.
Respondent argues the inconsistencies as proof of guilt, appellants that they are the product of a combination of defendants' difficulties in understanding and speaking English and, in the case of Perez, the allnight interrogation of an alcoholic suffering acute withdrawal symptoms after a two-day drinking debauch.
Agent Shierloh testified that Perez, when questioned, was sober, and other testimony of this witness to the effect that Perez' trembling was intermittent was intended to suggest the withdrawal symptoms were to some extent feigned. However, it is noteworthy that the court reporter's transcript of the statement by Perez includes the following question by Shierloh: 'Q. '* * * Due process is denied whenever a confession is used which has been obtained 'by means which the law should not sanction.' [Citations.]' (People v. Ditson, 57 Cal.2d 415, 437, 20 Cal.Rptr. 165, 177, 369 P.2d 714, 726.) No distinction in this regard is made between extrajudicial statements properly characterized 'admissions' and those which are confessions. (People v. Atchley, 53 Cal.2d 160, 170, 346 P.2d 764.) Involuntary confessions and admissions are not excluded solely upon the ground of their unreliability. The fact that the trier of fact may regard an extrajudicial statement as truthful will not justify its admission if it was obtained by coercion. (Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (June 1964).)
Recited above is testimony, which, if credited, might require a rejection of the extrajudicial statements given as involuntary. On the other hand, the evidence sharply conflicts in this regard. Belief of Shierloh's testimony that defendants were sober and that Perez' trembles were feigned would justify a finding the statements represented an exercise of free and uncoerced volition.
Upon the retrial of the case this question must be resolved. First to be resolved however (and resolution of this point should be made here and now) is the question whether, in the event defendants are to be jointly tried, the extrajudicial statements of either defendant can be received in evidence without violating due process, realizing that if received such statements will necessarily be tested for voluntariness by the same jury which will thereafter (if it finds any of the statements of either or both to have been given voluntarily) have the duty of determining their truth or falsity.
In the trial preceding this appeal the court held a voir dire examination outside the jury's presence and made a preliminary determination that all statements by both defendants were voluntary. The statements, together with the evidence relating to the question of voluntariness, were then referred to the jury. The jury was instructed it was not to consider any extrajudicial statement of either defendant unless it found that the statement was voluntarily made, and if it found that the statement was voluntary, it must then determine whether the statement under consideration was true or untrue in whole or in part. It was also instructed that a statement made by one defendant could only be considered as evidence against him and could not be considered as evidence against a condefendant. That was an exceedingly large order, one which we do not think it was possible for that jury, or any other, to fill. It was an attempt at 'carving jurors' minds into autonomous segments' far beyond human capacity.
The quotation is from the opinion of Justice Friedman of this court in People v. Chambers, 231 A.C.A. 41, 51, 41 Cal.Rptr. 551.
Even when 'segmentation' is limited to permitting the jury to hear the confession or admission of a single defendant, while at the same time considering its voluntary nature, a serious question of due process exists, and it is only where, as in California, a preliminary determination of voluntariness has theretofore been made by the court (the so-called 'Massachusetts procedure') that the requirements of due process are met. (Jackson v. Denno, supra, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 916-917.) In Jackson but one defendant was involved. And we believe that the thinking of the United States Supreme Court, should a case like the one at bench come before it, can be predicted with some confidence from the following taken from footnote 10 of the The quoted statement is, we think, appropriate when applied to the facts of this case. Consider the task assigned the jury. It was first to consider severally the voluntary nature of each statement of Perez and of Morales. It could decide that the statements of one were voluntary, of the other, not. And since Perez had given two statements it must severally determine the nature of each. Having determined which it should consider and which, if any, it should reject, it must then repeat the process all over again in determining which of the statements were credible. But when this process of ratiocination was completed, it was then charged that neither statement could be considered as evidence against the other defendant. Thus, notwithstanding the obvious fact that the cumulative effect of the statements of the two defendants was to point up their inconsistencies--a circumstance which was stressed by the district attorney in his closing argument to the jury--the jury was nevertheless instructed, and was supposed to be able to heed the instruction, that the statement of Perez could not be considered as evidence against Morales, nor Morales' statement against Perez. Ridiculous. This is indeed the 'rule of exclusion' becoming 'emasculated.' it is indeed a 'giving to the jury an instruction which, as every judge and lawyer knows, cannot be obeyed.' The incongruity is discussed in a comment on the effect of the Jackson case rationale in 78 Harvard Law Review 211, at page 213. It says: '* * * Where a confession made by one conspirator and implicating others is admitted into a joint trial of the conspirators with instructions that it may be used only against the confessor, the danger of prejudice to the nonconfessing defendants is clear, * * *.' The note referred to cites Delli Paoli v. United States, 352 U.S. 232, 237, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), where the United States Supreme Court had held that under the facts of the case before it admission of the confession of one codefendant under an appropriate instruction of limited use was not reversible error. In that case four Justices, Frankfurter, Black, Douglas and Brennan, dissented, holding that despite the court's admonition the confession (to quote the case summary) 'cannot be wiped from the brains of the jurors.' The speculation of the Harvard Law Review note, supra (on p. 213), is that 'Jackson may foreshadow a holding that the Delli Paoli procedure vioulates due process.'
We do not, however, rest our holding here upon our prediction of a future ruling by the United States Supreme Court. Within our own province we can and do hold that, although a trial court is vested with a wide discretionary power in determining whether codefendants shall be tried in joint or separate trials, under the circumstances present in this case we would The appeal from an order denying a motion for a new trial, being nonappealable, is dismissed.
The judgment is reversed and the cause is remanded for new trial in accordance with the views expressed herein.
FRIEDMAN, J., and VAN DYKE, J. pro tem., concur.
Hearing granted; MOSK, J., not participating.