People v. Collie

• Decision Date: 15 October 1981
• Docket Number: Cr. 21720
• Citation: 634 P.2d 534,30 Cal.3d 43,177 Cal.Rptr. 458
• Court: California Supreme Court
• Parties: , 634 P.2d 534, 23 A.L.R.4th 776 The PEOPLE, Plaintiff and Respondent, v. Bertram Ellsworth COLLIE, Defendant and Appellant.

Page 458

177 Cal.Rptr. 458

30 Cal.3d 43, 634 P.2d 534, 23 A.L.R.4th 776

The PEOPLE, Plaintiff and Respondent, v. Bertram Ellsworth COLLIE, Defendant and Appellant.

Cr. 21720.

Supreme Court of California.

Oct. 15, 1981.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Richard S. Kessler, Deputy State Public Defender, for defendant and appellant.

Roger S. Hanson, Santa Ana, amicus curiae, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief, Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins and Nathan D. Mihara, Deputy Attys. Gen., for plaintiff and respondent.

D. Lowell Jensen, Dist. Atty. (Alameda), John J. Meehan, Chief, Asst. Dist. Atty., and William McKinstry, Deputy Dist. Atty., amici curiae for plaintiff and respondent.

MOSK, Justice.

This case presents a variation on a theme with which the Courts of Appeal have been struggling for over a decade without our direct guidance: under what circumstances does Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 85 Cal.Rptr. 129, 466 P.2d 673, justify prosecutorial discovery of pretrial statements made by defense witnesses to defense investigators? Because Prudhomme's suggestion (at p. 327, 85 Cal.Rptr. 129, 466 P.2d 673) that such discovery may sometimes be allowed has caused little but confusion, and because we are not the proper body to create procedural rules that tend to impinge on the traditional and arguably constitutional rights of a criminal defendant, we disapprove of any compelled production of defense evidence absent explicit legislative authorization.

I.

On the evening of July 6, 1978, defendant Bertram Collie visited his estranged wife at her residence, as he had often done before. She and her daughter were in the bedroom watching television and, as defendant entered, the daughter retired to her own room, where she remained for the evening.

Defendant invited his wife to drink and to have sexual intercourse with him, but she refused. He subsequently bound her feet and hands and forcibly sodomized her. He then taped her mouth, ransacked the bedroom, left the room, and locked the door behind him. His wife heard him leave the house at about midnight.

Mrs. Collie then detected the odor of gas. She managed to free herself and unlock the door, and found that the stove burners were turned on, unlit. She turned them off. In the dining room she discovered and extinguished a lighted candle surrounded by combustible material. She then awakened her daughter, who was safe in her own bedroom and oblivious to all that had occurred.

Defendant testified that he and his wife had consensual intercourse early in the evening, after which he told her he was moving out permanently. He then proceeded to a neighborhood bar, where he telephoned a friend, Cynthia Morris, and asked to visit her. He testified that he arrived at her apartment about 11:30 p. m.

Ms. Morris was called as a defense witness. During cross-examination she revealed that she had spoken previously to a defense investigator. The prosecution immediately requested discovery of the notes prepared by the investigator. Defense counsel objected on the basis of the work product doctrine and the attorney client privilege. The court overruled the objections and ordered discovery.

On subsequent cross-examination, Ms. Morris admitted telling the investigator that defendant had visited her on July 8 or 9 rather than July 6. She was also impeached regarding relatively minor details of her testimony: for example, she told the investigator defendant called from a different bar than the one he had named in his testimony.

The jury found defendant guilty of attempted first degree murder of his wife, attempted second degree murder of his daughter, and forcible sodomy.

II.

Defendant first contends that the statements made by Cynthia Morris to the defense investigator were privileged communications not subject to prosecutorial discovery. Although his principal contention of error is that the order violated his privilege against self-incrimination under Prudhomme v. Superior Court, supra, 2 Cal.3d 320, 85 Cal.Rptr. 129, 466 P.2d 673, he made no such objection at trial and cannot raise it for the first time on appeal. (Evid. Code, § 353.) ¹ Defendant indirectly asserts the privilege, however, by contending that his attorney's failure to object on the basis of Prudhomme and its progeny constituted ineffective assistance of counsel. If counsel failed to perform in a manner to be expected of a reasonably competent attorney acting as a diligent advocate, and if his failure deprived defendant of a potentially meritorious defense, reversal is required. (People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859.) Preliminary to deciding this question, we reach the issue of whether the order violated defendant's privilege against self-incrimination. A brief synopsis of the short history of prosecutorial discovery in California is helpful in framing the issue.

The first case to authorize discovery directed at the defense was Jones v. Superior Court (1962) 58 Cal.2d 56, 22 Cal.Rptr. 879, 372 P.2d 919. There, defendant sought a continuance on the day set for trial, and as a condition of granting his request the trial court ordered limited defense discovery. On appeal we held that the privilege against self-incrimination did not shield defendant from being forced to produce the names and identities of witnesses who would be used to prove defendant's late proffered affirmative defense of impotency in a rape case. Language in the case declaring that discovery procedure "should not be a one-way street" (id., at p. 60, 22 Cal.Rptr. 879, 372 P.2d 919) was taken as establishing a broad principle of reciprocity in criminal discovery, and led to routine and wide-ranging discovery orders directed at defendants.

In Prudhomme v. Superior Court, supra, 2 Cal.3d 320, we reviewed one such order requiring defendant to divulge the names, addresses, and anticipated testimony of all defense witnesses. In limiting Jones virtually to its facts, we struck down the order because we found that disclosure of the requested information "conceivably might lighten the prosecution's burden of proving its case in chief." (Prudhomme, supra, 2 Cal.3d at p. 326, 85 Cal.Rptr. 129, 466 P.2d 673.) We further held that "the privilege forbids compelled disclosures which could serve as a 'link in a chain' of evidence tending to establish guilt of a criminal offense; in ruling upon a claim of privilege, the trial court must find that it clearly appears from a consideration of all the circumstances in the case that an answer to the challenged question cannot possibly have a tendency to incriminate the witness." (Ibid.) We left open, however, the possibility that prosecutorial discovery of some sort could be permitted: "A reasonable demand for factual information which, as in Jones, pertains to a particular defense or defenses, and seeks only that information which defendant intends to introduce at trial, may present no substantial hazards of self-incrimination and therefore justify the trial judge in determining that under the facts and circumstances in the case before him it clearly appears that disclosure cannot possibly tend to incriminate defendant." (Id. at p. 327, 85 Cal.Rptr. 129, 466 P.2d 673.)

Shortly after Prudhomme, we had occasion to consider a trial court's attempt to restrict a discovery order by limiting it to advance notice of the identity of any person who would be called as an alibi witness. (Reynolds v. Superior Court (1974) 12 Cal.3d 834, 117 Cal.Rptr. 437, 528 P.2d 45.) The trial court ordered the defense to produce the information, but after a thorough assessment of relevant state and federal precedents, we unanimously concluded that the wisest course was to refrain from any attempt to create or adopt a prosecutorial discovery scheme through our inherent power to administer matters of criminal procedure. In an opinion that is a model of judicial restraint, Chief Justice Wright concluded, "We see little to recommend our attempting at once to consider the desirability of creating a notice-of-alibi procedure and to pass objectively on the constitutionality of any such procedure which might result. It is one thing for a court to prescribe judicial procedures necessary to protect some fundamental constitutional guarantee of individual liberty. (Citations.) It is quite another thing for a court to design judicial procedures which are in no way required by higher law but which may seem to some socially desirable and perhaps may be permitted at least to some extent by our state and federal Constitutions. In the former instance, constitutional principles guide the court's hand; in the latter instance constitutional principles may well have to stay the court's hand. Given the difficulty of the constitutional questions posed by notice-of-alibi procedures, it is far better for this court to pass judgment, if and when necessary, on an integrated legislative document than on our own conditional decree by which we might seek to smooth the constitutionally rough edges of the order of the court below." (Id. at pp. 845-846, 117 Cal.Rptr. 437, 528 P.2d 45.)

In our most recent pronouncement on the subject, Allen v. Superior Court (1976) 18 Cal.3d 520, 134 Cal.Rptr. 774, 557 P.2d 65, we held invalid an order made on the court's own motion at the commencement of trial compelling disclosure of the names of prospective defense and prosecution witnesses for the purpose of voir dire. Chief Justice Wright again spoke for the court, but this time found no need to hesitate in reaching the constitutional issue: the order was found clearly violative of Prudhomme standards. ² Although the order was accompanied by an injunction against prosecutorial contact with any of the defense witnesses until their names were otherwise revealed, we found that knowledge of...