Eleazer v. Superior Court

• Decision Date: 30 January 1970
• Citation: 1 Cal.3d 847,83 Cal.Rptr. 586,464 P.2d 42
• Court: California Supreme Court
• Parties: , 464 P.2d 42 Joseph Reginald ELEAZER, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; The PEOPLE, Real Party in Interest. L.A. 29681.

Page 586

83 Cal.Rptr. 586

1 Cal.3d 847, 464 P.2d 42

Joseph Reginald ELEAZER, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent The PEOPLE, Real Party in Interest.

L.A. 29681.

Supreme Court of California In Bank.

Jan. 30, 1970.

Kim H. Pearman, Hollywood, for petitioner.

No appearance for respondent.

Evelle J. Younger, Dist. Atty., Harry Wood and Donald J. Kaplan, Deputy Dist. Attys., for real party in interest.

TOBRINER, Justice.

Defendant Joseph Eleazer seeks a writ of prohibition to restrain the Superior Court of Los Angeles County from proceeding to try him on a charge of unlawful sale of seconal in violation of Health and Safety Code section 11912. Evidence at the preliminary hearing showed that a paid police informer was a material witness to the alleged sale. The police disclosed the name of the witness, but denied any knowledge of his address or of any way in which he could be contacted. For the reasons hereinafter stated we hold that when an informer becomes a material witness to the crime, the prosecution must demonstrate that it has attempted in good faith to locate him; the duty to disclose the identity of the informer cannot be evaded by deliberate failure to acquire information necessary to find him. Nevertheless, since previous California cases have not expressly imposed such a duty, we have concluded that the instant case should not be dismissed without presently affording the People an opportunity to comply with our ruling.

The district attorney filed an information charging defendant with an unlawful sale of seconal on April 8, 1969. At the preliminary hearing Officer Paniccia testified that he saw defendant sell five foil packets, later found to contain seconal, to a paid police informant known to him as Larry or 'Spider.' Defendant moved for discovery of the informer's identity. At the hearing on that motion Sergeant Fesler disclosed that the informant was named Larry Stine, and furnished defendant with a physical description of Stine, a photograph, the police information sheet, and three arrest reports.

When defense counsel inquired further, Sergeant Fesler testified that Larry Stine had participated in about 20 narcotics purchases with Officer Paniccia during April of 1969, and was paid in cash for his services. He stopped working for the police about three to four weeks before the discovery hearing. ¹ Sergeant Fesler added that neither he nor Officer Paniccia made any effort to secure an address from Stine, and that he had no idea where Stine could be located. We set out in the margin the continued examination of Sergeant Fesler as to the whereabouts of the informant. ² Upon completion of the examination defendant moved for an order directing the district attorney to produce Larry Stine or to make him available for defense subpena or, if he could not be produced or made available, to dismiss the information. Upon denial of this motion defendant petitioned for a writ of prohibition to restrain further proceedings against him.

The issue which we face here as to the prosecution's duty in regard to the location of the informer is a recurrent one. We note several cases in which the data disclosed by the police clearly did not suffice to locate the informer; some defendants discovered only the informer's given name or nickname. ³

When an informer is a material witness on the issue of guilt, the People must disclose his identity or incur a dismissal. (Roviaro v. United States (1957) 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639; People v. McShann (1958) 50 Cal.2d 802, 808, 330 P.2d 33; see Evid.Code, §§ 1041, 1042.) Stine was both an eyewitness to, and participant in, the sale of seconal and without question was a material witness on the issue of guilt. What must be disclosed is the witness's 'identity'; not merely his name, but all pertinent information which might assist the defense to locate him. (People v. Diaz (1959) 174 Cal.App.2d 799, 802, 345 P.2d 370; United States v. Goss (D.C.1965) 237 F.Supp. 26.) Thus, although the prosecution need not produce the informer as a witness, ⁴ it cannot withhold information which might assist the defense's efforts to locate and produce him.

We cannot accept the suggestion of many Courts of Appeal that the prosecution automatically fulfils its obligation of disclosure when it reveals all that it knows, despite the inadequacy of such data to locate the informer. ⁵ The present case, moreover, does not merely involve an insufficiency of government knowledge; here the police deliberately resolved to make no effort to learn the residence of the informer or to establish a way by which to locate him. That the police did so without motive to harm defendant, but to foster the security of the informer, does not afford a sufficient justification. The language of People v. Kiihoa, supra, 53 Cal.2d 748, 754, 3 Cal.Rptr. 1, 5, 349 P.2d 673, 677, applies: 'We cannot be indifferent to the resulting denial of the defendant's substantial rights, however praiseworthy was the prosecution's motive in protecting the informer from the threat of reprisal. Such motives and purposes cannot prevail when, as here, they inevitably result, intentionally or unintentionally, in depriving the defendant of a fair trial.'

Frequently, of course, the informer will not be a material witness to a crime. ⁶ When, however, through police tactics or happenstance the informer becomes a material witness, the police should make such inquiries and arrangements as are reasonably necessary to enable the prosecution and defense to locate him. ⁷ It is, after all, normal police practice to make such inquiries of material witnesses, and the testimony of an eyewitness may be as vital to the prosecution as to the defense. Certainly in the present case, after the informer was shown at the preliminary hearing to be a material witness, and when he still remained in police employ, the police or district attorney should have undertaken a good faith effort at least to obtain his address or to make some arrangement under which he could be successfully subpenaed for trial; their failure to do so suggests a deliberate evasion of the defendant's right to a fair trial.

The federal courts in Velarde-Villarreal v. United States (9 Cir. 1965) 354 F.2d 9, and United States v. Clarke (D.C.1963) 220 F.Supp. 905, 909, adopting the substance of such an approach to the problem, ordered the government to engage in a reasonable effort to produce an informer at trial. In the former case the Ninth Circuit stated that 'If Margarito (the informer) is available for hire, he should be available to come and testify. One wonders whether the agent might have made such an arrangement during one of those 'contacts." (354 F.2d at p. 13.) ⁸ The court concluded that the government should bear the burden of proving 'that it was genuinely unable through reasonable efforts to produce Margarito and also, if such be the case, that the Government did not take steps to see to it that Margarito would be or become unavailable as a witness.' (354 F.2d at p. 13.)

Although the federal cases speak of a duty to make reasonable efforts to Produce the informer, the imposition of such a duty would violate the principle that neither party must produce or call all possible witnesses. ⁹ Due process requires only that the police and the district attorney undertake Reasonable efforts in good faith to Locate the informer so that either party or the court itself (see Evid.Code, § 775), could, if it so desired, subpena him as a witness. ¹⁰

The district attorney argues that before the People are required to initiate any such investigation, the defendant should show that he 'cannot readily obtain the information through his own efforts.' (Ballard v. Superior Court (1966) 64 Cal.2d 159, 167, 49 Cal.Rptr. 302, 307, 410 P.2d 838, 843, 18 A.L.R.3d 1416 (quoting Traynor, Ground Lost and Found in Criminal Discovery (1964) 39 N.Y.U.L.Rev. 228, 244).) The district attorney's contention puts the cart before the horse. The police will know whether the informer was a material witness before charges have been filed against the defendant; it is at this time that inquiries will probably be most fruitful. If investigation is necessary at a later date it is still better undertaken by the prosecution both because of its greater investigatory resources ¹¹ and its superior knowledge of, and contacts with, the informer.

So far as the record shows, neither party has made any attempt to locate Mr. Stine; the possibility remains that, with reasonable efforts, he could be subpenaed for trial. Under these circumstances, and in view of the fact that prior decisions did not set forth clearly the duty of the prosecution to make a reasonable effort to locate an informer who is a material witness, dismissal of the information is not warranted; the People should be afforded an opportunity to comply with this ruling by attempting to locate Mr. Stine.

The alternative writ of prohibition is discharged without prejudice, and the peremptory writ of prohibition is denied.

TRAYNOR, C.J., and McCOMB, PETERS, MOSK, BURKE and SULLIVAN, JJ., concur.

1 The preliminary hearing occurred on May 16, 1969; the discovery hearing at which Sergeant Fesler testified took place on July 21 of that year. If Larry Stine worked with the police until three or four weeks before the discovery hearing, he must have been in the employ of the police at the time of the preliminary hearing when Officer Paniccia's testimony showed that Stine was a material witness.

2 'Q. (defense counsel) You don't have any records on him as far as where he lives, social security number, any of these types of information.

'A: This--his address is 'transient' on the arrest reports.

'Q: * * * Do you know where Mr. (Stine) presently is?

'A: No, sir.

'Q: Do you have any idea where he can be located?

'A: No, sir.

'* * *

'Q: How would they (Stine and Officer Paniccia) meet each time they would go out to try to make...