People v. Collie, Cr. 19378
| Citation | 110 Cal.App.3d 104,167 Cal.Rptr. 720 |
| Decision Date | 10 September 1980 |
| Docket Number | Cr. 19378 |
| Court | California Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Bertram Ellsworth COLLIE, Defendant and Appellant. |
Quin Denvir, State Public Defender, Richard S. Kessler, Deputy Public Defender, San Francisco, for defendant and appellant.
George Deukmejian, Atty. Gen. of Cal., Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, Nathan D. Mihara, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.
Bertram Ellsworth Collie appeals from a judgment of imprisonment which was rendered after a jury found him guilty of attempted first degree murder of his wife, attempted second degree murder of his daughter (Pen. Code, §§ 187, 664) and forcible sodomy (Pen. Code, § 286).
Appellant and Elizabeth Collie were married in 1973. There daughter was born in the same year. The couple separated in September 1977, but thereafter appellant often spent nights at Elizabeth's house.
The offenses now under review occurred on the evening of July 6, 1978, when appellant came to Elizabeth's house and entered her bedroom, where she and the daughter were watching television. As soon as the child saw appellant she went to her own bedroom. Appellant invited Elizabeth to get drunk with him and have sexual intercourse, but she refused. He subsequently bound her feet and hands and forcibly sodomized her. Appellant then taped Elizabeth's face, ransacked the bedroom, and left the room, locking the door. Elizabeth heard him leave the house about midnight.
Elizabeth subsequently smelled gas. She freed herself, unlocked the bedroom door with a pair of scissors, and ran into the kitchen, where the stove burners were turned on, unlit. She turned the burners off and ran to the dining room, where she saw a candle burning on the floor, surrounded by combustible material. She blew out the candle and woke her daughter, who was safe in her own bedroom.
Appellant testified that he had arrived at Elizabeth's home at around 7:30 or 8:00 p.m., and engaged in consensual sexual intercourse with her at around 8:30 or 9:00 p.m. Afterwards he told Elizabeth that he was moving out of her home permanently. He went to a neighborhood bar called the Bosun's Locker and telephoned a friend, Cynthia Morris, and told her he would be coming to her apartment with some ice cream. He then returned to Elizabeth's home and picked up some clothes, went to a neighborhood store and bought ice cream, and traveled by bus to Morris' apartment, arriving at approximately 11:30.
Cynthia Morris testified that appellant had telephoned her at around 11:30 p.m. on July 6 saying that he would be coming to her apartment, and that he arrived at around 12:30 or 12:45 p.m., with some ice cream. In cross-examining Morris, the prosecutor learned that she had been interviewed by a defense investigator. He requested a copy of the investigator's interview notes. Defense counsel objected and requested the court to examine the notes instead of handing them to the prosecutor in their original form, but the court declined to do so and ordered discovery of the notes. On subsequent cross-examination, Morris admitted having told the investigator that appellant had visited her residence with the ice cream of July 8 or 9, rather than July 6. The prosecutor also used the investigator's notes to impeach minor aspects of Morris' testimony; for example, Morris admitted having told the investigator that appellant had telephoned her from a bar called the Illusion Club rather than from the Bosun's Locker.
Appellant contends that the trial court's discovery order violated his privilege against self-incrimination. He relies on Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 85 Cal.Rptr. 129, 466 P.2d 673; People v. Thornton (1979) 88 Cal.App.3d 795, 152 Cal.Rptr. 77; People v. Chavez (1973) 33 Cal.App.3d 454, 109 Cal.Rptr. 157, and People v. Bais (1973) 31 Cal.App.3d 663, 107 Cal.Rptr. 519.
The Supreme Court held in Prudhomme v. Superior Court, supra, that pretrial prosecution discovery is precluded by the Fifth Amendment privilege against self-incrimination if the information sought could possibly tend to incriminate the defendant, i. e., if discovery "conceivably might lighten the prosecution's burden of proving its case in chief." (2 Cal.3d at p. 326, 85 Cal.Rptr. at p. 133, 466 P.2d at p. 677.) The court subsequently applied this standard to mid-trial discovery in Allen v. Superior Court (1976) 18 Cal.3d 520, 525, 134 Cal.Rptr. 774, 557 P.2d 65, restating the rule and shifting its basis to independent state grounds (Cal.Const., art. I, § 15). Courts of Appeal have subsequently held that the prosecution may not be accorded discovery of statements by a defense alibi witness that could lighten the burden on the prosecution to prove the guilt of the defendant (People v. Bais, supra, 31 Cal.App.3d at p. 672, 107 Cal.Rptr. 519; accord, People v. Thornton, supra, 88 Cal.App.3d at p. 797, 152 Cal.Rptr. 77), and that the trial court should not order discovery without first examining the demanded material to determine whether any part of it should be excluded (People v. Chavez, supra, 33 Cal.App.3d at p. 459, 109 Cal.Rptr. 157; People v. Bais, supra, 31 Cal.App.3d at p. 673, 107 Cal.Rptr. 519).
It is pertinent that Evidence Code section 915, subdivision (a), precludes the trial court from requiring the defendant to disclose information claimed to be within the privilege against self-incrimination in order to rule on the claim of privilege. (Compare People v. Chavez, supra, 33 Cal.App.3d at p. 457, 109 Cal.Rptr. 157 ().) Any implication to the contrary that might be divined from the opinions in People v. Chavez and People v. Bais is contrary to the statute. However, the defendant retains the burden of showing that the evidence sought might tend to incriminate him. (Evid. Code, § 404.) Thus, if the defendant does not allow the trial court to screen the information which the prosecutor seeks to discover, he must prove by some other means that the information might tend to incriminate him, or the court may order discovery for failure of the defendant to carry his burden of proof. As a practical matter, to carry this burden it may in some cases be necessary for the defendant to offer the information to the court for examination and screening. (See People v. Bais, supra, 31 Cal.App.3d at p. 673, 107 Cal.Rptr. 519.)
Despite Prudhomme and its progeny, appellant's trial counsel did not object to the discovery order on the basis of appellant's privilege against self-incrimination. He asserted that the investigator's notes were "a work product of my office, of my confidential relationship with my client," and that they did not contain statements by Cynthia Morris. Appellant's claim of error based on violation of his privilege against self-incrimination is thus not cognizable on appeal. (See Evid. Code, § 353; see also 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, §§ 276-280, pp. 4264-4269.)
Appellant claims that his trial counsel's failure to assert the privilege against self-incrimination resulted in a denial of effective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859.) In making this claim, appellant bears the burden of showing that his trial counsel failed to act in a manner to be expected of a reasonably competent attorney acting as a diligent advocate. Additionally, he must establish that trial counsel's omission resulted in the withdrawal of a "potentially meritorious" defense. (Id.)
At the time the prosecutor requested production of the defense investigator's notes, appellant had already testified in his own behalf. In doing so he waived the privilege against self-incrimination to the extent of the scope of relevant cross-examination. (People v. Thornton (1974) 11 Cal.3d 738, 760-761, 114 Cal.Rptr. 467, 523 P.2d 267, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684 fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1, cert. den. 420 U.S. 924, 95 S.Ct. 1118, 43 L.Ed.2d 393; People v. James (1976) 56 Cal.App.3d 876, 888, 128 Cal.Rptr. 733; People v. Tealer (1975) 48 Cal.App.3d 598, 604, 122 Cal.Rptr. 144.) This waiver encompassed the impeachment of Cynthia Morris' testimony on the same matters to which appellant had testified, through use of her prior inconsistent statements to a defense investigator. Such impeachment was within the scope of relevant cross-examination of appellant. Thus trial counsel's omission to assert the privilege against self-incrimination was not a failure to act in a manner to be expected of a reasonably competent attorney acting as a diligent advocate. Appellant was not denied effective assistance of counsel.
Appellant also contends, as did his trial counsel, that discovery of the defense investigator's notes was proscribed by the work product doctrine. He relies on Code of Civil Procedure section 2016, subdivision (b). The discovery statutes in the Code of Civil Procedure, however, have been held to apply only to civil actions and proceedings. (Clark v. Superior Court (1961) 190 Cal.App.2d 739, 742, 12 Cal.Rptr. 191, cited in People v. Chavez, supra, 33 Cal.App.3d at p. 458, 109 Cal.Rptr. 157.) Even assuming arguendo that section 2016, subdivision (b), is applicable to criminal proceedings, appellant has made no showing that the investigator's notes reflected the "impressions, conclusions, opinions, or legal research or theories" of his attorney. (Code Civ.Proc., § 2016, subd. (b).)
Appellant contends that the trial court abused its discretion when it permitted the prosecutor to question appe...
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