People v. Douglas

• Decision Date: 09 February 1977
• Docket Number: Cr. 28230
• Citation: 66 Cal.App.3d 998,136 Cal.Rptr. 358
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Melvyn Lemuel DOUGLAS, Defendant and Appellant.

Page 358

136 Cal.Rptr. 358

66 Cal.App.3d 998

The PEOPLE of the State of California, Plaintiff and Respondent, v. Melvyn Lemuel DOUGLAS, Defendant and Appellant.

Cr. 28230.

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

Feb. 9, 1977.

Hearing Denied April 7, 1977.

Norman W. DeCarteret, Sherman Oaks, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., William R. Pounders and Randy Sue Morrison-Bruck, Deputy Attys. Gen., for plaintiff and respondent.

FLEMING, Acting Presiding Justice.

Melvyn Lemuel Douglas was convicted in a jury trial of selling heroin (Health & Saf.Code, § 11352, subd. (a)) and possessing heroin for the purpose of sale (Health & Saf.Code, § 11351, subd. (a)). Outside the presence of the jury he admitted having been previously convicted of eight felony offenses. Concurrent state prison sentences were imposed with a finding that six of the eight prior felony convictions were true. He appeals contending: 1. The court improperly permitted defendant to be impeached at trial with his testimony given at the hearing pursuant to Penal Code section 1538.5. 2. The court erred in honoring the jury's request to listen to the tape recording after deliberations had commenced. 3. The suppression motion was improperly denied because Officer Burwell did not comply with Penal Code section 844. 4. The court erred in failing to Sua sponte instruct on entrapment. 5. The evidence as to Count I is insufficient to sustain the judgment because it was 'inherently improbable.' 6. The evidence is insufficient as to Count II because it showed only that Earl Newton was in possession of the contraband.

We view the evidence in the light most favorable to the judgment as is required by the usual rule governing appellate review. On May 27, 1975, Police Officer Donnie Burwell, wearing an electronic transmitter, was working in an undercover narcotics capacity. He had received information that narcotic activity was taking place at 1300 North Raymond in the City of Pasadena. He went to that residence and defendant responded to his knock on the door. Burwell immediately offered to buy $25 worth of heroin and tendered to defendant $25 in recorded funds. Defendant took the money, closed the door, reopened it, and gave a tin foil bindle to Burwell. Officer Burwell started to open the bindle. As he was doing so, he asked if it was 'good shit.' ¹ Defendant told Burwell not to open the bindle outside the apartment, grabbed Burwell by the arm, and pulled him into the residence leaving the door partially open.

The surveilling officers converged upon the apartment, announced their identity, and entered the apartment. Contemporaneously Burwell announced his true identity and told everyone in the apartment to 'freeze.' The $25 in recorded funds and seven other tin foil bindles were lying on a table in the room occupied by Burwell, defendant, Earl Newton, and Bobbie Ross. A 'notice to quit the premises' made out in defendant's name, other documents with defendant's name and address (1300 North Raymond), and a ledger of previous narcotics transactions were also observed lying on the table and were seized. When booked, defendant indicated that he lived at 1300 North Raymond.

The People introduced expert testimony that the bindles seized contained heroin and that the heroin was packaged for the purpose of sale.

Testifying in his own behalf at trial, defendant denied furnishing any heroin to Officer Burwell, denied receiving any money from him in exchange for any heroin, and denied knowing that Earl Newton ² was in possession of any heroin. Specifically, defendant asserted that in response to a knock he answered the door. Officer Burwell identified himself as 'Jimmie' and only asked for Earl Newton. Defendant alleged that as he was opening the door, it was forced open striking him in the face. Police officers then ran into the apartment and placed everyone under arrest. Finally defendant asserted that as the police entered he saw Earl Newton throwing 'some money and pieces of heroin on the floor.'

Defendant earlier had testified at the hearing held pursuant to his Penal Code section 1538.5 motion as follows: 'I heard a knock on the door so I waited a few seconds, and there was a second knock, so I went to the door and peeked out under a little glass pane where paint had been raised (sic). I asked who was it. I couldn't see him in his face; he kept turning his face. He said, 'Jimmie.' He said, 'Jimmie' again, so I asked, 'What do you want?' And he said, 'I was told I could see a man for an apartment for rent, and, also, I want to cop a spoon.' And he turned his head completely then, and I waited a second or two, and when I opened the door I asked him again, 'What do you want?' And he said, 'The other man can show me the apartment. I want to cop a spoon.''

We initially note that the only objection made below to the introduction of this prior inconsistent testimony was the assertion that it was not actually inconsistent. ³ After the trial court indicated that it would allow impeachment by the use of defendant's prior testimony given at the suppression hearing, the inconsistent testimony was read into the record pursuant to stipulation. '(Q)uestions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection at the trial on the ground sought to be urged on appeal, (citations) . . .' (People v. Welch (1972) 8 Cal.3d 106, 115, 104 Cal.Rptr. 217, 222, 501 P.2d 225, 230.)

Considered on its merits, the contention also fails. The question is whether defendant's testimony at the suppression hearing can be used against him at trial for the limited purpose of impeachment. Simmons v. United States (1968) 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, held 'that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.' (Simmons, supra, at 394, 88 S.Ct. at 976.) The court did not have before it in that case the more limited question of whether such testimony might be admissible for the purpose of impeachment. Language in a subsequent case--Brown v. United States (1973) 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208--indicates that the court regards Simmons as applying only to the direct use of suppression-hearing testimony in the case-in-chief. 'Under the Simmons doctrine the defendant is permitted to establish the requisite standing by claiming 'possession' of incriminating evidence. If he is granted standing on the basis of such evidence, he may then nonetheless press for its exclusion; but, whether he succeeds or fails to suppress the evidence, his testimony on that score is not Directly admissible against him in the trial.' (Brown v. United States, supra, p. 228, 93 S.Ct. p. 1569), 36 L.Ed.2d p. 213.) (Italics added.)

In deciding a similar question, whether defendant's testimony at a probation revocation hearing should be admissible at the criminal trial based on the same conduct, the California Supreme Court expressed the opinion that the language in Simmons did not preclude the use of such testimony for impeachment purposes. 'Although it is not without ambiguity, this carefully wrought language (in Simmons) would seem to preclude only the 'affirmative' use of a defendant's testimony at a suppression hearing.' (People v. Coleman (1975) 13 Cal.3d 867, 879, n. 11, 120 Cal.Rptr. 384, 395, 533 P.2d 1024, 1035; accord, Cal. Search and Seizure Practice, C.E.B. 1974, § 2.35.) Also, in Walder v. United States (1954) 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (decided before Simmons), it was held that defendant's testimony that he had never purchased, sold or possessed narcotics could be impeached by the testimony of a police officer who had participated in an unlawful search and seizure of narcotics from defendant in another unrelated matter, although that suppression hearing had been successful and had resulted in dismissal of thet indictment against defendant. The court in Walder stated that 'It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government's possession was obtained to his own advantage, and provide himself with a shield against contradictions of his untruths.' (347 U.S. at 65, 74 S.Ct. at 356.)

The court in Simmons was basically concerned with an unfair tension existing between the exercise of two constitutional rights: defendant's Fourth Amendment right to have illegally-seized evidence suppressed, and his Fifth Amendment privilege against self-incrimination. Permitting the prosecution to use testimony from the suppression hearing at the case-in-chief when defendant did not take the stand would have the impermissible effect of forcing a defendant to choose between the exercise of two constitutional rights; either he gives up his Fourth Amendment privilege by remaining silent at the suppression hearing, or he is denied his Fifth Amendment self-incrimination privilege when his suppression hearing testimony is read into the record at the full trial. The situation is different, however, when defendant takes the stand at the criminal trial but testifies in a manner inconsistent with his prior testimony. In the analogous probation--revocation situation our Supreme Court held in People v. Coleman, supra, that testimony at the revocation hearing is inadmissible at the subsequent criminal trial Except for the limited purpose of impeachment where there is a clear inconsistency. The court in Coleman pointed out that the intent of the exclusionary rule at trial is to encourage the fullest possible truthful disclosures at the...