People v. Fusaro

• Decision Date: 23 July 1971
• Docket Number: Cr. 6010
• Citation: 18 Cal.App.3d 877,96 Cal.Rptr. 368
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Respondent, v. Robert FUSARO, Defendant and Appellant.

Page 368

96 Cal.Rptr. 368

18 Cal.App.3d 877

The PEOPLE of the State of California, Respondent, v. Robert FUSARO, Defendant and Appellant.

Cr. 6010.

Court of Appeal, Third District, California.

July 23, 1971.

Rehearing Denied Aug. 12, 1971.

Hearing Denied Oct. 21, 1971.

Thomas C. Lynch & Evelle J. Younger, Attys. Gen. by Edward Hinz, Jr., and Charles P. Just, Deputy Attys. Gen. and argued by Roger Venturi, Deputy Atty. Gen., Sacramento, for plaintiff-respondent.

Peter H. Smurr, Carmichael, for defendant-appellant.

FRIEDMAN, Associate Justice.

A jury trial resulted in defendant's conviction of four separate narcotics offenses: (a) sale of a restricted dangerous drug on October 30, 1969 (Health & Saf. Code, § 11912); (b) possession for sale of a restricted dangerous drug on November 19, 1969 (Health & Saf. Code, § 11911); (c) possession of heroin on November 19, 1969 (Health & Saf. Code, § 11500), (d) sale of a restricted dangerous drug on November 13, 1969 (Health & Saf. Code, § 11912).

Defendant operated a garage under the name of Bob's Automotive Service. On October 30, 1969, Maureen Ates, a police informer who was acquainted with defendant, went to the garage to purchase narcotics from him. Miss Ates and Charlene Fowler, a detective, entered the garage and talked to defendant in the office portion of the building. Miss Ates asked to purchase methedrine and defendant told them to return later the same evening. Later that evening Miss Ates and Detective Fowler again entered the office, the door of which was open. He was heard to say to another man that he could supply a pound of methedrine a week. He went to a file cabinet located in the office and removed two plastic baggies. He poured the contents of the baggies into a plate and agreed to sell the two women 12 'spoons' for $100. He measured out the powder, placed it in a plastic bag and handed the bag to Miss Ates, who handed him marked money. He poured the remainder of the powder into a leather pouch. Subsequently Miss Ates turned the contraband over to Detective Fowler, who gave it to Gorman, a narcotics agent. The material defendant sold the two women consisted of 8.5 grams of amphetamine.

On November 12, 1969, Agent Gorman, Detective Fowler, Inspector Nance and Sergeant Keller met at the home of an informer named Diana Lauck. Diana, also known as Angel, had been a drug user and had purchased drugs from defendant on several prior occasions. She had gone to the police and offered to cooperate with them. Diana placed a telephone call to defendant at the garage and talked to him about the purchase of drugs. He told her to come to the garage in about 20 minutes. The police drove Diana to the garage, where they gave her a $20 bill. At approximately midnight she entered the garage and was inside for about 15 minutes. Defendant was in the garage when she entered. They had a conversation concerning drugs. Defendant went to a back room, upon returning took a baggie from a metal box and measured out a spoonful of white powder into a smaller bag and returned the baggie to the metal box. He gave the smaller bag to Diana and she gave him the $20 bill. She left the garage and gave the bag to Detective Fowler, who turned it over to Agent Gorman. The baggie contained .5 grams of amphetamine. The officers then went to a restaurant where Detective Fowler took Diana into a restroom, searched her and determined that she did not have the money which had been furnished her.

On November 18, 1969, a search warrant was served at defendant's garage. The garage was not open for business and the doors were closed. The officers knocked on the outside door, identified themselves and informed the person who answered the knock that they had a search warrant. They were admitted. Two officers went to the office, which was closed. The officers knocked, identified themselves and informed the occupants that they had a search warrant. They could hear activity inside but no one opened the door. The officers repeated their identification, then opened the door and went into the office. They found five people there. The officers searched the room, including the cabinet in the office. They discovered a leather pouch in which was a balloon containing heroin, a fully loaded nine millimeter pistol injection paraphernalia consisting of syringe and needles, a spoon with white residue on it, .7 grams amphetamine, and dextro-amphetamine in the amount of 59.5 grams.

Defendant was not at the garage at the time of the search. The cabinet in which the contraband was found was the same cabinet from which defendant had taken the drug on the night of October 30 and the leather pouch in the cabinet was identified as the one used by defendant on the night of October 30. On November 20 defendant was arrested. He was examined and several needle marks were discovered on his arm.

The defense adduced evidence attempting to show that the drugs were sold by a garage employee named McKay rather than defendant; that defendant was wearing a full beard during the latter part of 1969; that the prosecution evidence indicated that the person who made the sales was beardless. There was evidence that defendant had grown a beard in July but that he had shaved it off a few days before the offenses. On rebuttal the prosecution adduced evidence tending to show that defendant did not have a beard at the time of the offenses; that McKay, the employee alleged to have made the sales, did not resemble defendant and was not the person who sold the narcotics.

Claim of Perjury

Defendant argues that conviction of the November 13 offense was procured through the perjured testimony of Diana Lauck, the only 'percipient' witness to the offense. On direct examination Diana testified to three prior narcotic purchases from defendant. On cross-examination she was impeached by her testimony at the preliminary examination denying prior purchases. Still on cross-examination she explained that she was frightened at the time of the preliminary examination, because she had just been discharged from the hospital after being stabbed. In response to further cross-examination she said that defendant was not the one who had stabbed her. On redirect examination by the prosecutor, she testified that she had been stabbed by Gary Motheral, who had narcotic transactions with defendant. On appeal defendant accused Diana Lauck of perjury in testifying that Gary Motheral had stabbed her. Defendant resorts to the inacceptable technique of attaching affidavits to his appeal briefs. These affidavits by Leona Fusaro, wife of defendant, and Gary Motheral are to the general effect that Diana was a narcotics user and had cut her wrists, then stabbed herself.

At this point defendant is resorting to a boot-strap strategem. Diana's alleged perjury was not the subject of testimony at the trial. Statements of alleged fact in the briefs which are outside the record will be disregarded on appeal. (Knapp v. City of Newport Beach, 186 Cal.App.2d 669, 9 Cal.Rptr. 90.) True, a conviction will be set aside on collateral attack where perjured testimony was an essential element and was knowingly presented by the prosecution. (In re Mitchell, 35 Cal.2d 849, 856, 221 P.2d 689.) The alleged perjury of Diana Lauck was not an essential element. The truth or falsity of her story of the stabbing was not relevant to the issue before the jury, that is, whether defendant had sold her amphetamine on November 13. An attempt to prove a witness' untrustworthiness concerning a matter which is not relevant and not the subject of independent proof represents impeachment on a 'collateral' matter which the law permits the trial court to exclude in its discretion. (Witkin, California Evidence (2d ed.) § 1259.) 'A party cannot cross-examine his adversary's witness upon irrelevant matters for the purpose of eliciting something to be contradicted.' (People v. Dye, 75 Cal. 108, 112, 16 P. 537, 539.) Had the defense attempted at the trial to show that Diana had lied regarding her stab wound, the exclusion of such evidence would not have constituted prejudicial error, because the transaction involved a collateral matter. (See, e.g., People v Howes, 99 Cal.App.2d 808, 822, 222 P.2d 969.) Defendant's affidavits are inadmissible, establish no ground for reversal and would merit no inquiry in any proceeding in any forum.

Misconduct of Prosecutor

Defendant alleges that the prosecuting attorney indulged in prejudicial misconduct by displaying two photographs to the jury prior to their admission in evidence. A photograph of a door with a peephole in defendant's garage was shown to witness Fowler. Mr. Klein, defendant's trial counsel, requested to Voir dire the witness as to the photograph and the jurors were excused. As they walked out, Mr. Osmundson, the deputy district attorney, was standing in front of them with the picture in his hands so that they could see it. Defense counsel objected and Mr. Osmundson told the court that he did not intentionally hold the picture in such a way that the jurors could see it. The picture was admitted into evidence and the case proceeded.

The second incident involved a photograph of defendant taken the night of his arrest. It was to be used in connection with the testimony of witnesses that defendant was clean-shaven. Defendant now argues that Mr. Osmundson took the picture from its envelope before showing it to the judge and that he walked in front of the jury with it, thus displaying it to the jury before it was offered in evidence. According to the record, Mr. Klein contended that he believed the jurors had been shown the picture, but the record also indicates that the picture was not shown to the jury at all but only handed over to be marked for identification.

The intentional or unintentional character of Mr. Osmundson's actions was for the trial court to decide. Apparently the judge determined that the prosecutor had not acted intentionally and this...