People v. Castiel

• Decision Date: 10 September 1957
• Docket Number: Cr. 3316
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Nathaniel CASTIEL and Floreen Benjamin, Defendants and Appellants.

Page 79

315 P.2d 79

153 Cal.App.2d 653

The PEOPLE of the State of California, Plaintiff and Respondent, v. Nathaniel CASTIEL and Floreen Benjamin, Defendants and Appellants.

Cr. 3316.

District Court of Appeal, First District, Division 2, California.

Sept. 10, 1957.

Rehearing Denied Oct. 10, 1957.

Hearing Denied Nov. 5, 1957.

Terry A. Francois, San Francisco, for appellant Castiel.

Arthur D. Klang, San Francisco, for appellant Benjamin.

Edmund G. Brown, Atty. Gen. of California, Clarence A. Linn, Asst. Atty. Gen., Victor Griffith, Deputy Atty. Gen., for respondents.

DOOLING, Justice.

The appellants were charged jointly in an indictment in five counts, one of conspiracy to violate section 11500 Health and Safety Code, two counts charging separate sales of heroin and two counts charging transportation of heroin. Appellant Castiel was convicted on all five counts and appellant Benjamin of conspiracy and on one count each of sale and transportation, the other two counts having been dismissed as to her.

The prosecution's evidence showed that an informer in the presence of three narcotics officers on March 2, 1956 talked on the telephone to a man called 'Nate,' asked for a 'couple of spoons' and was told to 'go to the coffee shop Sears-Roebuck.' The telephone number called was that of the telephone located in the home of appellant Benjamin and her husband. One of the officers 'listened in' on the conversation on an extension telephone. The informer was searched and given $50 in marked currency. The three officers went with the informer to Sears-Roebuck's store. One officer entered the coffee shop with the informer. Appellant Castiel was seen to drive into the parking lot, leave his automobile and enter the coffee shop. One of the officers testified to seeing a transfer of currency from the informer to Castiel and a small white package from Castiel to the informer. Another saw a meeting of the hands. After Castiel left the informer gave one of the officers two small paper wrapped packages which were found to contain heroin.

Later the same day a second telephone call was made to the same number. A woman answered the informer who said she was 'Flo,' and when asked for 'a couple of more spoons' directed the informer to go to Turk and Baker Streets. When asked: 'Will you bring it?' she replied: 'No, I'll send Nate.' The informer was again searched and given another $50 and proceeded with the officers to the rendezvous. The informer stood on the corner, within sight of the officers. Castiel drove up in an Oldsmobile identified as belonging to the husband of appellant Benjamin. Informer entered the Oldsmobile and remained therein for a short time. When the Oldsmobile had driven away one of the officers received two 'bindles' of heroin from the informer. Another officer followed the Oldsmobile to appellant Benjamin's residence, where Castiel parked it and entered the house.

Both appellants took the stand and Flatly denied the testimony of the officers. It will be observed that the evidence against Castiel is quite direct and that against Benjamin quite weak, depending on inferences from circumstantial evidence.

The most important question in the case arises from the refusal of the agents on cross-examination to reveal the name of the informer, claiming the information privileged under section 1881 Code of Civil Procedure. The trial court sustained objections on this ground. It is appellants' claim that where an informer, as here, is an active participant the privilege must give way to the constitutional right of the defendants to produce him as a witness in their defense.

We may well take as a starting point in the discussion of this question the language of the Missouri Supreme Court in State v. Tippett, 317 Mo. 319, 296 S.W. 132, 135 (quoted with approval by our own Supreme Court in Powell v. Superior Court, 48 Cal.2d 704, 312 P.2d 698, 701,): "That it was desired that the state's evidence remain undisclosed, partakes of the nature of a game, rather than judicial procedure. The state in its might and power ought to be and is too jealous of according a defendant a fair and impartial trial to hinder him in intelligently preparing his defense and in availing himself of all competent material and relevant evidence that tends to throw light on the subject-matter on trial." Our Supreme Court in the case in which this language was quoted declared it to be '* * * the policy of this state that the goal of criminal prosecutions is not to secure a conviction in every case by any expedient means, however odious, but rather, only through establishing the truth upon a public trial fair to defendant and the state alike.' Powell v. Superior Court, supra, 48 Cal.2d 704, 312 P.2d 698.

At every essential step tending to fix guilt upon these appellants the testimony shows that the undisclosed informer was a principal actor and, if called to the stand, would be a material and important witness. He placed the two telephone calls, which were monitored by the officers, and it was he who is alleged in their testimony to have spoken over the telephone to each of the appellants. It is he in both cases who is alleged in the testimony to have purchased and received narcotics from the appellant Castiel. The appellants in this case both took the stand and denied the alleged telephone conversations and the alleged sales of narcotics. If the undisclosed informer were not an informer but a stranger to them and the officers had overheard and testified concerning the identical telephone conversations no one can doubt that the officers on cross-examination could be asked the identity of the person who had made the telephone calls and to disclose it if known to them. If the officers had observed the transfer of a package from a defendant to another person not an informer under the same circumstances as here and testified to that fact no one can doubt that on cross-examination the officers would be required to disclose the identity of the person, if known to them, to whom, according to their testimony, the officers had seen the package transferred. The possible importance of this person's identity to the defense is just as great whether he happens to be a government informer or not. In either event, if the defendants had the opportunity to interview him and call him as a witness, he might contradict the testimony of the officers completely or in part. He might deny that he was present at all, or participated in any of the transactions. He might corroborate the officers as to the telephone calls and the purchases of narcotics but testify that the persons to whom he talked and from whom he made the purchases were persons other than the appellants. It would be intolerable if the government could convict its citizens of crime and thereby deprive them of their liberty and civil rights while denying them the opportunity to produce a witness or witnesses to the alleged crime, whose identity is known to the witnesses who testify against him. The defendant is entitled as a matter of due process of law to be allowed to interview and produce any witness who might give evidence favorable to his defense, and when a witness who testifies to the commission of a crime testifies that another person or other persons were also present, and particularly where such other person or persons according to the testimony were active participants, the right of the defendant to the disclosure of the identity of such person or persons on cross-examination seems too clear for successful contradiction. If this was a case without precedents logic and the basic constitutional guaranty of due process would compel this conclusion, but it is not a case without precedents.

The cases generally hold that where in the trial of a criminal case the basic right of a defendant to produce evidence which might exonerate him comes into conflict with a privilege of the government to withhold such evidence from disclosure the government's privilege must in general give way to the basic right of the defendant. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639; People v. Lawrence, 149 Cal.App.2d 435, 308 P.2d 821; Portomene v. United States, 5 Cir., 221 F.2d 582; United States v. Conforti, 7 Cir., 200 F.2d 365; Sorrentino v. United States, 9 Cir., 163 F.2d 627; Wilson v. United States, 3 Cir., 59 F.2d 390; United States v. Blich, 10 Cir., 45 F.2d 627; United States v. Keown, D.C., 19 F.Supp. 639; United States v. Coplon, 2 Cir., 185 F.2d 629, 28 A.L.R.2d 1041; United States v. Andolschek, 2 Cir., 142 F.2d 503; People v. Ramistella, 306 N.Y. 379, 118 N.E.2d 566; Parsons v. State, 251 Ala. 467, 38 So.2d 209; Centoamore v. State, 105 Neb. 452, 181 N.W. 182; People v. Davis, 52 Mich. 569, 18 N.W. 362; Crosby v. State, 90 Ga.App. 63, 82 S.E.2d 38; Smith v. State, 169 Tenn. 633, 90 S.W.2d 523; Mapp v. State, 148 Miss. 739, 114 So. 825; Hill v. State, 151 Miss. 518, 118 So. 539.

Many, but not all, of these cases...