People v. Ellis

• Decision Date: 23 December 1966
• Docket Number: Cr. 10346
• Citation: 421 P.2d 393,55 Cal.Rptr. 385,65 Cal.2d 529
• Court: California Supreme Court
• Parties: , 421 P.2d 393 The PEOPLE, Plaintiff and Respondent, v. Phillip Dean ELLIS, Defendant and Appellant. In Bank

Page 385

55 Cal.Rptr. 385

65 Cal.2d 529, 421 P.2d 393

The PEOPLE, Plaintiff and Respondent, v. Phillip Dean ELLIS, Defendant and Appellant.

Cr. 10346.

Supreme Court of California,

In Bank.

Dec. 23, 1966.

James R. Tormey, Jr., San Mateo, under appointment by the Supreme Court, and Michael R. Nave, Burlingame, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Edward P. O'Brien, John F. Kraetzer and John Murphy, Deputy Attys. Gen., for plaintiff and respondent.

TRAYNOR, Chief Justice.

Defendant appeals from a judgment of conviction entered upon a verdict finding him guilty of assault with intent to commit rape (Pen.Code, § 220).

The victim testified that while she was waiting for a bus in Burlingame at 5 a.m., July 20, 1964, defendant sought to induce her to engage in sexual intercourse. When she rebuffed him, he threatened to use his knife to compel submission. She saw no knife, but fled screaming, and defendant ran beside her repeatedly whispering, 'Walk. Don't run.' When a newspaper boy appeared on the otherwise deserted street defendant disappeared.

Defendant was arrested on September 9, 1964, and taken to the San Mateo Police Department, where the victim identified him in a lineup as her assailant. The victim also indicated that she could identify her assailant's voice. She was placed in a room next to the interrogation room, and defendant was asked to repeat phrases recited by the police. Defendant refused to cooperate and remained silent.

Police officers testified that they advised defendant of his right to counsel and of his right to remain silent and testified to his responses to their questions. They also testified that he refused to participate in the voice identification test. Defendant contends that introduction of the evidence of his refusal to participate in a voice identification test and the prosecutor's comments thereon violated his constitutional privilege against self-incrimination.

The privilege against self-incrimination applies to evidence of 'communications or testimony' of the accused, but not to 'real or physical' evidence derived from him. (E.g., Schmerber v. State of California (1966) 384 U.S. 757, 764, 86 S.Ct. 1826, 16 L.Ed.2d 908; Holt v. United States (1910) 218 U.S. 245, 252--253, 31 S.Ct. 2, 54 L.Ed. 1021; Gilbert v. United States, 366 F.2d 923 (9th Cir., Sept. 16, 1966); United States ex rel. Stovall v. Denno (2d Cir. 1966) 355 F.2d 731, 738; Rigney v. Hendrick (3d Cir. 1965) 355 F.2d 710, 713--714; Kennedy v. United States (1965) 122 U.S.App.D.C. 291, 353 F.2d 462, 466; Caldwell v. United States (8th Cir. 1964) 338 F.2d 385, 389; People v. Lopez (1963) 60 Cal.2d 223, 243--244, 32 Cal.Rptr. 424, 384 P.2d 16; People v. Duroncelay (1957) 48 Cal.2d 766, 770, 312 P.2d 690; People v. Trujillo (1948) 32 Cal.2d 105, 112--113, 194 P.2d 681; People v. Zavala (1966) 239 Cal.App.2d 732, 738--739, 49 Cal.Rptr. 129; 8 Wigmore, Evidence (McNaughton rev 1961) § 2265, p. 386; Model Code of Evidence (1942) rule 201 (2); Uniform Rules of Evidence (1953) rule 23 (3). The results of voice identification tests fall within the category of real or physical evidence. (Gilbert v. United States, supra; Rigney v. Hendrick, supra; People v. Lopez, supra; ¹ Wigmore, op. cit., supra; cf. People v. Graves (1966) 64 A.C. 216, 49 Cal.Rptr. 386, 411 P.2d 114, cert. den., 385 U.S. 883, 87 S.Ct. 175, 17 L.Ed.2d 111.) In such a test, the speaker is asked, not to communicate ideas or knowledge of facts, but to engage in the physiological processes necessary to produce a series of articulated sounds, the verbal meanings of which are unimportant. The sounds alone are elicited for identification purposes through characteristics such as pitch, tone, intonation, accent, and word stress. The speech patterns of individuals are distinctive ² physical characteristics that serve to identify them just as do other physical characteristics such as color of eyes, hair, and skin, physical build and fingerprints.

Voice identification testimony is the product of an observable physical characteristic made by an independent witness. It is the very type of objective factual evidence, independent of information communicated by the accused, that the privilege encourages police to seek. ³ Moreover, independent identification testimony, unlike testimonial evidence derived from the accused, raises no question of reliance on the veracity of the accused. ⁴ Any attempt by a suspect to disguise his voice is apt to be detected readily by those persons present who can compare the sample with his normal voice. Furthermore, there is no risk that one could be coerced into falsely accusing himself. It is difficult to imagine how a suspect could be induced to impersonate an unknown voice to incriminate himself.

It has been urged that the privilege reflects an ultimate sense of fairness that prohibits the state from demanding assistance of any kind from an individual in penal proceedings taken against him. ⁵ The privilege includes no such prohibition. Criminal proceedings are replete with instances where at least passive cooperation of an accused may be constitutionally required. ⁶

A suspect asked to speak for voice identification is not subjected to the same psychological pressures said to be generated by a demand for testimony. ⁷ It is no more unfair to ask a suspect to speak for voice identification than to ask him to appear in a lineup for visual identification. The psychological pressures are reduced to the same degree, through a limitation of alternatives. Deceit is improbable; the simple choice for a guilty person is between conduct likely to expose incriminating evidence and inferences as to guilt likely to flow from a successful refusal to participate.

A related view of the individual interest protected by the privilege focuses on the right of privacy. (United States v. Grunewald (2d Cir. 1956) 233 F.2d 556, 581--582 (Frank, J., dissenting) revd. 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931; Ratner, Consequences of Exercising the Privilege Against Self-Incrimination (1957) 24 U.Chi.L.Rev. 472, 488--489.) The Fifth Amendment right of privacy protects at least uncommunicated thoughts and has been extended to preclude compelled production of private papers and documents. (Boyd v. United States (1886) 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746.) A voice test, however, contemplates no such intrusion into privacy; no disclosure of thought or privately held information is requested. One's voice is hardly of a private nature. It is constantly exposed to public observation and is merely another identifying physical characteristic.

It thus appears that an extension of the privilege to voice identification would serve none of the purposes of the privilege. It would only exclude evidence of considerable importance when visual identification is doubtful or impossible. The masked robber, the telephone extortionist, and the attacker in the night may all seek refuge behind an extension of the privilege that would do little to further the welfare of accused persons in general. Denial of access to a pertinent identifying trait can only weaken a system dedicated to the ascertainment of truth.

We do not leave the individual unprotected. The need for protection is greater in confession cases where the risk of police overzealousness is comparatively great because self-incriminating statements are the most persuasive evidence of guilt. Testimony by a witness resulting from a purported identification is less conclusive and there is therefore less incentive for police to use unwarranted pressure in obtaining the evidence. Nevertheless, it bears emphasis that, as in the case of all police procedures for the securing of nonprivileged evidence, fundamental principles of fairness and due process are always applicable to prevent abuse. (See Rochin v. People of California (1952) 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183; People v. Matteson (1964) 61 Cal.2d 466, 39 Cal.Rptr. 1, 393 P.2d 161.)

Even though evidence obtained from a voice identification is not within the privilege against self-incrimination, the question remains whether evidence and comment on a refusal to take such a test is admissible. It is clear that 'it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation.' (Miranda v. State of Arizona (1966) 384 U.S. 436, 468, fn. 37, 86 S.Ct. 1602, 1625, 16 L.Ed.2d 694.) This doctrine is a logical extension (People v. Cockrell (1965) 63 Cal.2d 659, 47 Cal.Rptr. 788, 408 P.2d 116) of the rule of Griffin v. State of California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, prohibiting comment on the failure of an accused to testify at trial. Comment on refusal to testify was held to be 'a penalty imposed by courts for exercising a constitutional privilege. It cuts down or the privilege by making its assertion costly.' (Griffin v. State of California, supra, 380 U.S. at p. 614, 85 S.Ct. at p. 1232.) Such a rule is not applicable when, as in this case, the defendant has no constitutional right to refuse to speak solely for purposes of voice identification.

Nor was defendant's refusal to 'display his voice' itself a testimonial communication. It was circumstantial evidence of consciousness of guilt, and like similar evidence, such as escape from custody (People v. Otis (1959) 174 Cal.App.2d 119, 344 P.2d 342), false alibi (People v. Allison (1966) 245 A.C.A. 590, 598, 54 Cal.Rptr. 148), flight (People v. Hoyt (1942) 20 Cal.2d 306, 125 P.2d 29), suppression of evidence (People v. Burton (1961) 55 Cal.2d 328, 11 Cal.Rptr. 65, 359 P.2d 433), and failure to respond to accusatory statements when not in police custody (see 19 Cal.Jur.2d, Evidence, § 401, p. 141 et seq.), its admission does not violate the privilege. Moreover, as in the foregoing examples, the evidence did not result from a situation contrived to produce conduct indicative of guilt. Unlike...