People v. Diaz
Decision Date | 28 October 1959 |
Docket Number | Cr. 3548 |
Citation | 345 P.2d 370,174 Cal.App.2d 799 |
Parties | PEOPLE of State of California, Plaintiff and Respondent, v. John Emelio DIAZ and Albert Siegel, Defendants and Appellants. |
Court | California 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.
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
In sustaining this objection the court said:
Defense counsel responded: 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: 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: ...
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