People v. Duncan

• Decision Date: 18 November 1959
• Docket Number: Cr. 6639
• Citation: 346 P.2d 521,175 Cal.App.2d 372
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Melvin William DUNCAN, True Name: Ernest Milton Duncan, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 521

346 P.2d 521

175 Cal.App.2d 372

PEOPLE of the State of California, Plaintiff and Respondent, v. Melvin William DUNCAN, True Name: Ernest Milton Duncan, Defendant and Appellant.

Cr. 6639.

District Court of Appeal, Second District, Division 1, California.

Nov. 18, 1959.

Burton Marks, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Marvin L. Part, Deputy Atty. Gen., for respondent.

LILLIE, Justice.

The trial court sitting without a jury adjudged defendant guilty of two counts of selling heroin in violation of Section 11500, Health & Safety Code, as charged in an indictment, and found a prior misdemeanor conviction alleged therein to be true. His appeal from the judgment and order denying him a new trial is predicated on two assignments of error--abuse of discretion of the lower court in denying his motion for continuance, and the trial judge's refusal to permit him to act as his own counsel.

In arguing that it was error to require him to proceed without allowing him a reasonable time in which to locate the informant for the purpose of aiding him in the preparation of his defense, appellant cites such cases as People v. Lawrence, 149 Cal.App.2d 435, 308 P.2d 821; People v. Williams, 51 Cal.2d 355, 333 P.2d 19 and People v. Durazo, Cal.App., 332 P.2d 182 [hearing granted see 340 P.2d 594] advancing the position that the testimony of the informant was relevant and material to the issue of identity of the person with whom the officer had the two sales transactions. The record before us admits no application of the rules set forth in these cases for here no informant was either directly or indirectly involved in the offenses of which defendant was convicted; not only was no defense made at the trial, but there is no proper disclosure of what it might have been had defendant offered one or testified; and the evidence, consisting of the uncontradicted testimony of the officer, is overwhelming in support of defendant's guilt.

As to Count I, charging defendant with sale of heroin on March 26, 1958, the record shows that Officer Williams, an undercover operator, seated alone in his car observed defendant whom he knew walking down Fifth Street. He called to him and he entered the car where they discussed shirts. When defendant asked him if he wanted some 'stuff' and he answered 'yes,' defendant asked him to drive around the block. During their conversation the officer told him he 'just horned the stuff,' and the defendant said: 'All I know you from is Slim.' When they parked, a woman unknown to the officer, but known to the defendant, walked up and told defendant she had the 'stuff' but needed an outfit to take it. Defendant said he could get her one, and she, too, entered the car. The officer drove away with the two of them and while driving defendant gave him a green balloon of heroin for which he paid him $9.

Count II charged defendant with another sale on March 28, 1958, Officer Williams, again alone, saw defendant walking on East Fifth Street and motioned to him to go into a liquor store. When defendant asked him if he was going to get some wine or wanted something else, and he answered 'both,' defendant bought some wine and got into the car which the officer drove to Ceres Street, parking by a vacant lot. There he gave $9 to the defendant who left, returned 7 or 8 minutes later and handed him a white balloon containing heroin.

On cross-examination of the officer, defense counsel asked him if he had related all of the transactions he had with defendant, to which he answered 'no.' When he asked the officer concerning another sale by defendant on a prior date not charged in the indictment, the court sustained the People's objection. However, he did elicit testimony from the officer that he had seen defendant prior to March 26 and discussed with him the sale of some shirts, but that he had made no arrangements with the defendant pertaining to the future purchase of narcotics, or another meeting. Later the prosecution withdrew its previous objection to questions concerning other sales with defendant and the officer testified that he saw defendant on 3 or 4 occasions prior to March 26 and was originally introduced to him by an informer named 'Slim' on March 21 or 22; that the second time he saw defendant 'Slim' was with him and it was then or shortly thereafter, but still prior to March 26, that through 'Slim' he purchased heroin from the defendant for $5 and several shirts; and that at that time he handed the money and the shirts to 'Slim,' who passed them to defendant, and in return defendant handed a balloon containing heroin to 'Slim' who passed it to the officer. The informer was known to him as 'Slim' and sometimes 'Coffee,' and the officer described him, the places he frequented, and how he had met him. When the People rested, defendant asked for a continuance to permit him an 'opportunity to locate the individual that the officer has described.' The request was denied.

The basic issue involved in the first claim of error is whether the lower court abused its discretion in denying the motion for continuance (People v. Mackey, 171 Cal.App.2d 513, 340 P.2d 688). The evidence establishes without contradiction that, although having previously introduced defendant to the officer and arranged a sale (not charged in the indictment) between them several days prior to March 26th, the informant had no part in the sales of March 26th or 28th. He made no arrangements for the meeting btweeen the officer and the defendant on the 26th or 28th, and neither participated in either meeting nor set up the sales arising therefrom. Indeed, the officer himself had no prior appointment with defendant for either of those days and the encounter in each instance appears to have been entirely unarranged. The informant was in no way a participant in, nor an eyewitness to, either sale charged in the indictment; he was not present with the officer and defendant on March 26th or March 28th and as far as we know was completely unaware of the two meetings; he had no independent knowledge of either offense; and was in no way responsible for pointing an identifying finger at defendant at either time or upon his arrest. Thus we are unable to appreciate how or in what manner the informer's testimony could have been material to the issue of defendant's guilt.

Relying heavily on People v. Williams, 51 Cal.2d 355, 333 P.2d 19, and People v. Durazo, Cal.App., 332 P.2d 182 (now cited as 52 Cal.2d 354, 340 P.2d 594) appellant argues that had the trial court heard 'additional evidence which tended to create a reasonable doubt whether appellant was really the same person described by the officer as having also had various dealings with him before March 26, there would thereby have been established basis in the evidence for a reasonable doubt whether appellant was in fact the same person who sold heroin to the officer on March 26 and March 28.' These cases present factual situations entirely dissimilar to the one at bar; moreover in each, the sole defense of mistaken identity was supported by the testimony of the defendant himself who took the stand and denied he was involved in the sale.

In the instant case no specific issue of identity was presented--defendant neither took the stand nor offered a defense; and the officer's testimony of defendant's guilt and identity stands uncontradicted and unimpeached. He made no effort during the six months before trial to locate the informer, interview him or call him as his witness, and obviously he was far better known to defendant than to the officer. We do not know what his defense, had he offered one, would have been. We are doubtful, however, that it would even have been one of mistaken identity in view of an implied admission growing out of his voluntary ourburst in court. When the officer was asked 'Have you made more than two buys from the defendant?' and he answered 'I did,' the defendant cried out: 'You did? I never seen you before in my life unitil the 26th.'

As to how the informant might actually have aided defendant in the preparation of a defense we are unable from the record to say; even his counsel did not know. When the district attorney indicated he would not oppose the continuance if defense counsel sincerely believed that the informant would aid in the defense of his case, the latter advised the court, 'I might say I have no information or belief on that point.' We do not believe under the circumstances here involved it can be said that the lower court abused its discretion in denying the defendant's motion (People v. Mackey, 171 Cal.App.2d 513, 340 P.2d 688). We find neither error on the part of the trial court, nor prejudice to the defendant arising out of its denial of his motion for continuance.

Defendant moved for a new trial or, in the alternative, to reopen the case, predicated on his need for an opportunity 'to attempt to capitalize on the information' given by the officer concerning the identity and whereabouts of the informant 'if he exists and if he could be located,' and asked for a continuance of three weeks. Nothing in support of either motion was presented to the trial court by way of affidavit, testimony or argument. Defendant did not, and could not, advise the trial court of the testimony the informer might give, for indeed, he had never, in the month and half between the trial and the motions, located him or made any effort to do so. He did not, and could not, represent to the court in what manner such testimony might have aided him in the preparation of his defense. The most that can be inferred from his brief argument on the motions, if the result of sheer speculation--if the informer exists and if he could be located and if he testified, his testimony might have a bearing on the question of identity. Thus we cannot say the trial court abused its discretion in denying the motions.

Appellant further claims ...