People v. Le Beau

• Decision Date: 01 October 1951
• Docket Number: Cr. 2741
• Citation: 235 P.2d 850
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. LE BEAU.

Page 850

235 P.2d 850

PEOPLE v. LE BEAU.

Cr. 2741.

District Court of Appeal, First District, Division 1, California.

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...