People v. Gibbs

• Decision Date: 07 November 1967
• Docket Number: Cr. 4300
• Citation: 63 Cal.Rptr. 471,255 Cal.App.2d 739
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Michael GIBBS, Defendant and Appellant.

Page 471

63 Cal.Rptr. 471

255 Cal.App.2d 739

The PEOPLE of the State of California, Plaintiff and Respondent, v. Michael GIBBS, Defendant and Appellant.

Cr. 4300.

Court of Appeal, Third District, California.

Nov. 7, 1967.

Hearing Denied Jan. 3, 1968.

Joseph DeCristoforo, Sacramento, Court appointed counsel, for appellant.

Thomas C. Lynch, Atty. Gen., by Raymond Momboisse, and John F. Biehl, Jr., Deputy Attys. Gen., Sacramento, for respondent.

FRIEDMAN, Associate Justice.

Defendant Gibbs appeals after a jury found him guilty of selling marijuana. He charges that prejudicial error occurred when the prosecution was permitted to place in evidence the transcribed testimony of a witness named Smith, who had testified at defendant's preliminary examination.

Smith was acting as a police informer. A state narcotics agent had driven him to the residences of two suspected marijuana dealers to make 'buys.' Smith entered the home of one Cole, who gave him a marijuana cigarette. Later he was let off near the residence of defendant Gibbs. Smith entered, then returned with a 'lid' (slightly over an ounce) of marijuana. Before each visit the agent searched Smith to assure himself that Smith had no marijuana on his person. Both Cole and Gibbs were arrested. Their preliminary examinations took place on the same day.

The informer testified at both preliminary examinations. He was not produced as a witness at defendant's trial. At the trial the prosecution sought leave to read his testimony into evidence under Penal Code section 686, upon a showing that he could not 'with due diligence' be found within the state. ¹ Outside the jury's presence a police officer testified to the details of a search for Smith during the two weeks preceding the trial. Smith's brother testified to a long distance telephone conversation with Smith in which the latter had expressed an intent to go to South America. Over a defense objection the trial court ruled that the prosecution had shown adequate diligence and permitted the absent witness's testimony in defendant's preliminary examination to be read to the jury. Later, as part of the defense, defendant's trial counsel adduced evidence of a portion of Smith's testimony at Cole's preliminary examination when, under cross-examination by Cole's attorney, Smith admitted use of marijuana.

Adequacy of the prosecution's showing of due diligence to locate the missing witness was addressed to the sound discretion of the trial judge. (People v. Dunn, 29 Cal.2d 654, 660--661, 177 P.2d 553.) We have examined the testimony aimed at fulfillment of the due diligence requirement and are satisfied that no abuse of discretion occurred.

Defendant's principal claim is invasion of his constitutional right to confront the witness. The Sixth Amendment's guarantee of the right of confrontation is imported into state prosecutions by the due process clause of the Fourteenth Amendment; the major reason underlying the right of confrontation is to give the accused an opportunity to cross-examine prosecution witnesses; the right, however, does not preclude evidentiary use of the testimony of an absent witness, provided that the defendant's attorney had an adequate opportunity to examine the witness. (Pointer v. State of Texas, 380 U.S. 400, 403--404, 407, 85 S.Ct. 1065, 13 L.Ed.2d 923; Douglas v. State of Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 13 L.Ed.2d 934.) A dictum in the Pointer case declares that the opportunity for cross-examination should be 'complete and adequate.' (380 U.S. at p. 407, 85 S.Ct. 1065.) Allegiance to the confrontation guarantee requires California courts to inquire into the circumstances of each case and to determine whether the proffered testimony was given under circumstances which permitted adequate cross-examination. (People v. Banks, 242 Cal.App.2d 373, 378--379, 51 Cal.Rptr. 398; see also People v. Haney, 249 A.C.A. 928, 934, 58 Cal.Rptr. 36; People v. Washington, 248 A.C.A. 581, 584, 57 Cal.Rptr. 487.)

Defendant asserts that the attorney who represented him at his preliminary examination, Mr. Ward, did not have adequate opportunity to cross-examine Smith, for the attorney had been appointed only five minutes before the hearing started. He argues that the attorney might have been adequately prepared to cross-examine Smith for the purpose of the magistrate's hearing, but did not have the kind of opportunity needed for investigation and preparation of cross-examination of a witness whose testimony was ultimately to be used at the trial itself.

At the inception of Cole's preliminary examination, the magistrate was under the impression that Cole and Gibbs were being jointly prosecuted, for he called both cases together. He observed that Attorney Ward had been appointed by the court to represent Cole; that Gibbs, on the other hand, had evinced financial ability to employ his own attorney but had failed to do so. The migistrate then requested Mr. Ward, the court-appointed attorney for Cole, to see that Gibbs' rights were 'protected.' At the request of both sides the magistrate then conducted Cole's hearing as a separate matter. When Gibbs' case was called, Mr. Ward inquired whether the court was appointing him to represent Gibbs, declaring that he could represent the accused completely only if he had the right to cross-examine witnesses. The court then appointed Mr. Ward as defendant's attorney and, at the attorney's request, declared a five-minute recess, presumably to permit the attorney to confer with Gibbs.

After the hearing opened, Mr. Ward cross-examined each of the three prosecution witnesses (a state chemist who identified the purchased substance as marijuana, the state narcotics agent and Smith, the informer). On direct examination Smith described his visit to the defendant, stating that on the day in question he had entered defendant's home, talked for 15 minutes and bought a packet of marijuana from him for $10. On cross-examination, Mr. Ward elicited testimony that Smith had visited Cole's house first, then defendant's; that he had been in defendant's house about 15 minutes, during which he and defendant had gossiped; that after he had bought the marijuana he left; that the term 'lid' referred to a quantity of marijuana. The prosecution's examination of Smith occupies slightly over two transcript pages, his cross-examination one page. Upon completing his cross-examination, Mr. Ward declared that he desired to call no witnesses. He moved to dismiss the complaint on the ground that the evidence failed to show Gibbs' knowledge of the substance's character. The motion was denied and Gibbs was held for trial.

Bare existence of an opportunity for cross-examination in a prior proceeding supplies only a limited indicator of the opportunity's adequacy. Pointer v. State of Texas holds the opportunity inadequate when the accused has no lawyer. The presence and participation of counsel, however, do not necessarily ensure the opportunity's adequacy. Qualitative factors play a role. The nature of the proceeding; the character of the witness and his connection with the events; the extent and subject of his direct testimony; the time and preparatory opportunities available to the accused and his attorney--these are some of the influential factors.

In most California criminal prosecutions the preliminary examination is conducted as a rather perfunctory uncontested proceeding with only one likely denouement--an order holding the defendant for trial. ² Only television lawyers customarily demolish the prosecution in the magistrate's court. The prosecution need show only 'probable cause,' a burden vastly lighter than proof beyond a reasonable doubt. (See Rideout v. Superior Court, 67 A.C. 475, 62 Cal.Rptr. 581, 432 P.2d 197.) Committing magistrates usually accept the prosecution evidence at face value, leaving credibility judgments for the trial of guilt. The tactical influences pervading the process tend to induce shallow cross-examination. Limited cross-examination at the preliminary hearing is a frequent tactic of adept and skilled defense lawyers. Cross-examination may lack width and depth, not because counsel lacks opportunity, but because he chooses to defer his real effort until the trial itself. (See Cal.Criminal Law Practice (Cont.Ed.Bar, 1964) pp. 240--242.) The choice creates no defense disadvantage if the prosecution witness testifies at the trial. He is then available for painstaking and incisive cross-examination. If the witness disappears and his transcribed testimony is read to the jury, the opportunity for cross-examination disappears with him. In that situation waived or curtailed cross-examination exposes the defense to grave tactical damage.

The use of informers in narcotics enforcement is recognized and accepted. (See Powell v. United States, 122 U.S.App.D.C. 229, 352 F.2d 705, 708; People v. McShann, 50 Cal.2d 802, 806, 330 P.2d 33; People v. Gilmore, 239 Cal.App.2d 125, 129--130, 48 Cal.Rptr. 449.) Informers are prone to disappearance. Frequently they cannot be kept 'on ice' until trial. Defense-induced departure is a possibility. (See People v. Gilmore, supra, 239 Cal.App.2d at p. 129, 48 Cal.Rptr. 449; People v. Dozier, 236 Cal.App.2d 94, 102, 45 Cal.Rptr. 770.) If the informer is not a key witness, the prosecution may either dispense with his testimony or utilize him as a grand jury witness. If his testimony is important or essential, the prosecution may file a complaint, call the informer as a witness at the preliminary examination, expose him to cross-examination and perpetuate his testimony as insurance against his possible disappearance. This prosecution technique would be thwarted if the defense were permitted to manufacture a confrontation objection for trial use by deliberately waiving or curtailing cross-examination at the preliminary hearing.

Particularly when the witness is a...