People v. Ford

• Decision Date: 05 November 1959
• Docket Number: Cr. 6701
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Marvin Charles Edward FORD, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 573

345 P.2d 573

175 Cal.App.2d 109

PEOPLE of the State of California, Plaintiff and Respondent, v. Marvin Charles Edward FORD, Defendant and Appellant.

Cr. 6701.

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

Nov. 5, 1959.

John Paul Hare, Beverly Hills, for appellant.

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

LILLIE, Justice.

Defendant was convicted by a jury of selling heroin in violation of Section 11500, Health & Safety Code, as charged in a Grand Jury indictment, which further alleged two prior felony convictions admitted by him before trial.

The evidence discloses that on Saturday, June 21, 1958, around 10:30 a. m., Deputy Sheriff Burley, an undercover narcotics officer, with one Hendricks, drove to 9508 Success Avenue. Hendricks left the car, entered the house at that address and upon his return brought with him the defendant. As the latter approached the window on the driver's side of the car the officer said 'I would like to get some stuff.' They discussed the amount, how it was sold and the price, and the officer offered to buy three caps. Defendant took from his pocket three caps of heroin and handed them through the window to the officer, who gave him $10. Defendant returned $1 change. The officer then said he had been trying to buy a one-half once of 'stuff' all that day, but everyone was out. After defendant made contact with a third person by telephone he and the officer then negotiated for a one-half ounce for $125. The officer left saying he had to go home to get the rest of the money.

In his defense which amounted solely to a claim of mistaken identity, defendant denied he had ever seen Burley prior to the first time in court or had any transaction with him. On cross-examination, he attempted to develop an alibi for himself, claiming he had worked on June 21 wrecking automobiles for one Barber who paid him out of pocket, and had left home that morning at 8 a. m., spending the next three days at his girl friend's house; and tried to establish a defense of mistaken identity by testifying he had a brother, Genie 'Babe', who also lived at his home on Success Avenue who closely resembled him and looked 'almost identical.' Neither Genie 'Babe' nor defendant's employer, Barber, was called as his witness, nor was defendant's girl friend who was in the courtroom. Defendant, however, did call Hendricks, a convicted felon, and asked him if he had ever seen Burley in his company on June 21st. Hendricks refused to answer the question on the ground 'it might incriminate' him; but said he knew Genie 'Babe' and saw him with Burley on that day. Spencer, another defense witness, was called to confirm defendant's whereabouts at work on June 21st. He said he remembered the date because he had an appointment as an out-patient with the County Hospital on that day and called to change it to the 26th, which appointment he kept. However, on rebuttal, the Registrar of the County Hospital testified that although Spencer was an outpatient, his last appointment was June 17th and he hadn't been there since; no appointments are made for Saturday; none had been made for him on the 21st; and no appointment had been made by him for June 26th, nor did he appear on that date.

Appellant's sole contention is that the trial court erred in admitting into evidence his 'mug' photograph. He argues that since it showed front and profile views of his head, beneath which appeared numbers and 'SHERIFF'S DEPT., LOS ANGELES,' it placed him in an unfavorable light and produced a prejudicial effect 'bringing his past record to the attention of the jury.'

This issue arises out of the deputy's use of defendant's photograph in the Sheriff's Office within one hour after the offense was committed to aid him in identifying the man whose name he did not know, who sold him the heroin on June 21st. Evidence of a prior identification presents the same general problem as that proffered by a prior statement--it is inconsistent if the identifying witness testifies differently at the trial, and consistent if he makes the same identification. However, before discussing the cases culminating in the rule in California relative to the admissibility of previous nonjudicial identification of an accused, we review the manner in which the prior identification was made.

At the outset, and on direct examination as a part of the People's case, Deputy Burley identified the defendant as the person who sold him heroin on June 21st. On cross-examination, he was widely questioned concerning the appearance and identification of the man with whom he had the transaction. The deputy testified that defendant wore a long sleeved shirt and light colored pants and there was nothing unusual about his appearance, but he could recall little else about him; and that defendant approached his automobile three or four times and on both the first and second time he spent one-half to one hour with him. Defense counsel, Mr. Littlefield, then asked the deputy: 'Am I correct, sir, in assuming the only time you saw the defendant other than being in court was on June 21?' The answer was: 'In person, yes.' He further testified that although he had negotiated a sale with defendant on that date, he had never actually been introduced to him. On redirect examination, the district attorney then asked deputy Burley: 'Now, Mr. Burley, you told Mr. Littlefield here you had not seen the defendant from June 21 until you saw him in court here several weeks ago, and you added the phrase 'in person'.' 'A. That is correct.' 'Q. Now, sometime after June 21st of this year, 1958, did you see what appeared to be a photographic representation of the defendant's face?' 'A. I did. In fact, it was on the same day, June 21st.' Further examination without objection developed testimony that approximately one hour after the transaction on June 21st, the deputy saw defendant's photograph in the Record Bureau drawer of the Sheriff's Office and identified him as the man who sold him the narcotic; that when he testified before the Grand Jury, defendant was not present and he again identified him by the same photograph; and that there is no doubt in his mind that it was the defendant who sold him the capsules on June 21st. At the close of the prosecution's case and over the defendant's objection, the photograph was received in evidence as People's Exhibit 2. However, it was not shown to the jury then or until the entire case was submitted to it for its deliberation.

Defendant admitted on cross-examination he had been convicted of two felonies in California--conspiracy to violate the Marijuana Tax Act, 26 U.S.C.A. (I.R.C.1954) § 4741 et seq., in the U. S. District Court, and a violation of Section 11500, Health & Safety Code in the Superior Court of Los Angeles County, and had served a prison term for each.

The major issue before the jury was that of identification. On cross-examination of the deputy, the defense sought to discredit his identification of the defendant as the person with whom he had the transaction. In examining him...