People v. Diaz

Decision Date28 October 1959
Docket NumberCr. 3548
Citation345 P.2d 370,174 Cal.App.2d 799
PartiesPEOPLE of State of California, Plaintiff and Respondent, v. John Emelio DIAZ and Albert Siegel, Defendants and Appellants.
CourtCalifornia Court of Appeals Court of Appeals

Elisbeth Lagomarsino, Berkeley, Richard D. Comerford, San Jose, for appellants.

Stanley Mosk, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Peter T. Kennedy, Deputy Atty. Gen., for respondent.

FRED B. WOOD, Justice.

The conviction of the defendants of violating section 11500 of the Health and Safety Code (sale of heroin) depends upon the testimony of state narcotics officer Mantler. He said he went out in a state auto with an informer who, at a certain point, left the car and then returned with the defendants whom the informer introduced to Mantler. From that point on Mantler dealt with the defendants and, according to his testimony, all in the presence of the informer.

At a certain point in Mantler's testimony, defense counsel requested the name of the informer and the court ruled the name would have to be disclosed. Thereupon witness Mantler testified 'his name is Robert Tomlinson,' adding that he did not know how to spell it.

The court correctly so ruled. Informer Tomlinson was a material witness, the only witness (other than the accused) who was in a position to amplify or contradict the prosecution's witness, officer Mantler. 1 People v. Williams, 51 Cal.2d 355, 359-360, 333 P.2d 19; People v. Durazo, 52 Cal.2d 354, 340 P.2d 594.

On the morning of the next day of the trial, it developed during the cross-examination of deputy sheriff Best that he knew informer Tomlinson and knew how to spell his name. He had known Tomlinson for some time, about two years; i. e., a year prior to the events in litigation. He said Tomlinson was at the time in the pay of the sheriff's office and that he had picked Tomlinson up on that occasion as well as on previous occasions.

Defense counsel then asked Best, 'You knew where the informer lives or lived at the time you picked him up?'

The prosecutor objected 'to the residence of the informer. We have given a lot of information about the informer. Except for the fact that he participated in the sale we wouldn't have to name him. We do not willingly divulge details of all these persons for obvious reasons. I will object to going into the place where he lives as irrelevant and immaterial in this particular case.'

In sustaining this objection the court said: 'Yes. He [the informer] participated in the sale and, therefore, you [defense counsel] are entitled to know the name of the informer. You know the name of the informer and you incidentally know a great deal more about him than the name.'

Defense counsel responded: 'Your Honor, I don't want to contradict the Court, but the recent Supreme Court decision does not say merely the name, it says identity of the informer which would, of course, include the name. The name in itself is not a sufficient identity of anyone. There may be seven thousand Robert Tomlinsons as far as we know. Identity in my mind would mean his name, where he resides and so forth.' 2

The court replied: 'I have already ruled.'

It appears from statements of defense counsel to the court and to counsel for the prosecution (outside the presence of the jury) that with knowledge of the name furnished by Mantler they had obtained several addresses of Tomlinson from various county records and sought without success to serve him with subpoenas at those addresses. They had been unable to locate him. They did not know where he was at that time. During that discussion defense counsel asked the prosecutor: 'Would it be possible that you could call Mr. Tomlinson as a witness to avoid all of this?' The prosecutor replied: 'I am not going to.' He owed the defendants no duty to do so, but his response underscores and emphasizes the fact that the reason for the refusal to give any more information concerning Tomlinson was the belief that defendants were entitled to the name only, not that the prosecution and the witness had divulged all their knowledge concerning the identity of Tomlinson.

The duty of the prosecution to disclose in such a situation as this is the duty to disclose the 'identity' of the informer, not his mere name if that be insufficient to identify and enable the defense to locate him, limited of course to pertinent information in the possession of the prosecution or its witness. The very word 'identity' runs like a common thread through all of the decisions on this subject.

Thus, in People v. Williams, 51 Cal.2d 355, at page 357, 333 P.2d 19, at page 20, upon facts very similar to those of our case, Chief Justice Gibson said that the privilege of the government to withhold the 'identity' of informers 'must give way when it comes into conflict with the fundamental principle that a person accused of crime is entitled to a full and fair opportunity to defend himself.' He further characterized it as the firmly established principle that the privilege of nondisclosure may not be invoked in a criminal case in which 'the identity' of the informer 'is material to the defense and nondisclosure would result in denying the defendant a fair trial.' 51 Cal.2d at page 358, 333 P.2d at page 21. Continuing in this vein he gave illustrations of the application of this principle, the following among others: 'Disclosure is required where the informer participated in the crime with which the defendant is charged * * * However, the limitation is not confined to such cases, since it is based upon materiality of the informer's identity to the defense. Clearly, for example, an informer who took no part in the crime but was an eyewitness may be in a position to give highly significant testimony * * *' 51 Cal.2d at pages 358-359, 333 P.2d at page 21.

In applying that principle to the facts of the Williams case (almost identical to those of our case), the Chief Justice said: 'In the light of the undisputed evidence in the present case, the informer was clearly a material witness on the issue of guilt with respect to the first sale. He not only saw the seller of the narcotics,...

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13 cases
  • Com. v. Bradshaw
    • United States
    • Superior Court of Pennsylvania
    • December 22, 1975
    ...rather of the 'names and whereabouts' of the informer. Commonwealth v. Carter, supra at 60, 233 A.2d at 287. Accord, People v. Diaz, 174 Cal.App.2d 799, 345 P.2d 370 (1959). Here, appellant was in jail from arrest to trial. He knew the informer's name and his parents' address. Richardson, h......
  • People v. Weger
    • United States
    • California Court of Appeals
    • June 5, 1967
    ...subdivision (e) 'consists of movement for evil purposes,' even in the absence of any constitutional question.4 In People v. Diaz, 174 Cal.App.2d 799, 803, 345 P.2d 370, it was held that, in the circumstances of a case in which the disclosure of the identity of an informer was necessary to a......
  • Eleazer v. Superior Court
    • United States
    • United States State Supreme Court (California)
    • January 30, 1970
    ...'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 witn......
  • People v. Goliday, Cr. 16369
    • United States
    • United States State Supreme Court (California)
    • January 31, 1973
    ...to locate him.' (Eleazer v. Superior Court, supra, 1 Cal.3d at p. 851, 83 Cal.Rptr. at p. 588, 464 P.2d at p. 44; People v. Diaz (1959) 174 Cal.App.2d 799, 802, 345 P.2d 370.) Here, one of the informants admittedly gave the police a 'contact' telephone number; at the preliminary hearing the......
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