People v. Gilmore

• Decision Date: 30 December 1965
• Docket Number: Cr. 10875
• Parties: The PEOPLE, Plaintiff and Respondent, v. Sam GILMORE, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 449

48 Cal.Rptr. 449

239 Cal.App.2d 125

The PEOPLE, Plaintiff and Respondent, v. Sam GILMORE, Defendant and Appellant.

Cr. 10875.

District Court of Appeal, Second District, Division 4, California.

Dec. 30, 1965.

Hearing Denied Feb. 23, 1966.

Erling J. Hovden, Public Defender, Los Angeles County, Forrest Latiner and James L. McCormick, Deputy Public Defenders, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack K. Weber, Deputy Atty. Gen., for plaintiff and respondent.

KINGSLEY, Justice.

Defendant was charged by indictment with a sale of heroin, in violation of section 11501 of the Health and Safety Code, with four prior felony convictions, two of which were for narcotic violations. He admitted the priors but pled not guilty as to the offense charged. After a trial by jury, he was found guilty. A motion for new trial and probation was denied and a sentence of imprisonment in state prison was imposed. He has appealed from the judgment.

It is not contended that the evidence was insufficient to support the verdict, nor that there were any errors at the trial stage which would impel a reversal. The contention made here is that defendant was denied due process of law in that: (1) there was an undue delay between the date of the offense charged and the date of his arrest, and (2) that he was unconstitutionally deprived of his right to interview and (had he desired to) to subpoena a police informer. In support of these contentions, which were duly and vigorously urged in the trial court, extensive discovery proceedings were held and the transcript of those proceedings is before us as part of the record on appeal.

We summarize the events which are thus presented to us in support of the two constitutional points as follows:

About the middle of January 1964, the narcotics division of the Los Angeles Police Department arranged with a man named Samuel Kinsey to act as an informer for the department. Officer Williams was assigned by his superiors to work with Kinsey as an undercover operative and they proceeded to implement a 'buy' program, in which Kinsey introduced Williams to sundry narcotic sellers and arranged for sales to be made to Williams by the persons so introduced. Over two hundred purchases of narcotics were made by Williams with Kinsey's aid during a period commencing in February 1964, and ending in May of that year. One of these, allegedly occurring on March 5, 1964, was the one herein charged against this defendant.

In mid-May 1964, it was decided to terminate the program insofar as Officer Williams and the informer Kinsey were concerned, and to seek Grand Jury indictments in the cases theretofore developed by them. A date for presentation of the cases to the Grand Jury was obtained, and Lieutenant Guindon, the officer in over-all charge of the program, directed Officer Cain to advise Kinsey that his services were no longer needed. The interview by which this was accomplished was described by Officer Cain as follows:

'A Yes, Officer Williams and Kinsey came in the office together. Officer Williams placed him or told him to go to the interview room on the third floor near the Narcotics office and, as I recall then, Officer Williams came to the Squad Room and told me that Kinsey was in the room and at that time I went in and had a conversation with Kinsey. At that time he was told that his services would no longer be needed, that we intended to begin arresting people who Officer Williams and other undercover officers had made purchases from, that we would secure indictments or get complaints through the District Attorney's office. After this I walked back to the Squad Room and I told Officer Williams that he would not be working with Kinsey any more, that if he wished to say goodbye or so long to him that he might do so at that time and that is when Williams returned to the room.

'Q And said goodbye to Kinsey?

'A Yes.

'Q Did you have a further conversation with Kinsey after Williams said goodbye?

'A I don't believe so. There could have been.

'Q Did Kinsey then leave the premises of the Police Administration Building?

'A Yes, sir.'

At the time of trial, except for Officer Cain, no member of the police department had seen, or been in contact with, Kinsey after the farewell scene above described. On May 20 or 21, Officer Cain was advised that Kinsey was in jail on a prostitution charge. Officer Cain visited him, told him to plead guilty if he was actually guilty and left. The officer later learned that Kinsey had pled guilty, was sentenced to five days in jail, served his time and left. No further word of him was had. ¹

I

We reject the contention that defendant was denied any constitutional rights by reason of the fact that his case was not presented to the Grand Jury until a little over two months after it occurred. There is no showing that the delay was not for a valid reason nor, except for any possible effect of that delay on Kinsey's disappearance (a matter which we discuss below), that it prejudiced defendant.

The matter of delay in instituting prosecution in situations such as that before us has recently been discussed in detail by the Court of Appeals for the District of Columbia in Powell v. United States, 352 F.2d 705, decided August 30, 1965. While it is true that, as Mr. Circuit Judge Wright points out in his dissent in that case, where there has been an extensive undercover buy program, involving many separate purchases, over a long period, from sellers not previously known to the police and seen only fleetingly in connection with a purchase, the officer may make quite honest mistakes when, after charges are filed, he must identify the sellers. But, as the majority in Powell point out, these risks must be balanced against the practical problems faced by the police and the net result, as far as mere delay is concerned, must result in favor of the government and not of the defendant. The pros and cons were summarized by that court as follows:

'We think that an accused must show two things in order to invoke an exercise of our supervisory power because of alleged basic 'unfairness,' cf. Ross v. United States [D.C.Cir., 349 F.2d 10], infra note 6, resulting from claimed delay in his arrest: that there was no legitimate reason for the delay, and that he was prejudiced by the delay. Appellant bears the burden of establishing his claim, Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939), Wilson v. United States, 218 F.2d 754, 757 (10th Cir. 1955), Lotto v. United States, 157 F.2d 623, 626 (8th Cir. 1946), and he has not met this burden in this case. The Government says that its undercover agents would be 'blown,' to use the vernacular, if they came to the surface to sign complaints as soon as an offender is detected and that the Government is entitled to maintain their usefulness by delaying arrests which would reveal them as agents. We believe this position to be both sound and substantial, for the Government, as the representative of the public, has a vested interest in operating at maximum efficiency in its enforcement of the law. Public interest in the proper administration of justice permits, if indeed it does not require, the rights and interests of the public to be kept as well protected and free from prejudice as is possible, so long as that protection and freedom is consistent with the rights of an accused. Use of undercover agents is a necessary and accepted police practice, and the interest of the Government in keeping an agent's identity secret for a reasonable period is a legitimate basis for delaying the arrest of an individual wrongdoer while the agent is continuing his covert investigations. This court indicated in Nickens [Nickens v. United States, 116 U.S.App.D.C. 338, 323 F.2d 808], supra, that the statute of limitations is but one, albeit the ultimate, bar to prosecution. Our view of the instant case is that it presents neither a due process question nor a case for exercise of our supervisory powers.

'Further, since it cannot be seriously argued that the police work wholly independently of the United States Attorney's office in these matters, it would seem that the acknowledged existence of governmental discretion in deciding whether or not to prosecute a given case tends to rebut appellant's claim of right to immediate arrest. We hold that the pre-arrest delay in this case was supported by a commendably legitimate reason. The efficacy of the undercover investigation which revealed appellant as a narcotics trafficker is demonstrated by the fact that 102 arrest warrants were issued for narcotics violations from this one investigation alone. To judicially disapprove of the police practice here involved would virtually end effective enforcement of narcotics laws, for surely it is within the realm of common knowledge and common sense that uniformed or otherwise known policemen are unable to penetrate the sub rosa world of the narcotics peddler. Extensive, time-consuming investigations by undercover operatives, who daily risk their lives, are required to get to the retail and wholesale sources of illicit narcotics.'

The problem actually is one of credibility of the officer. In the case at bench, Officer Williams was cross-examined extensively on the very point of his identification. ² The trial court and trial jury believed him, as they were entitled to do.

II

Although the police conduct herein described approaches the bounds of permissible practice, we conclude that it did not violate the constitutional right of a defendant to ascertain and interview a police informant who participated in the offense charged.

The problem thus presented is one of reconciliation of conflicting interests with the hope of preserving the essential rights of a defendant without so limiting police activity as to make effective detection and law enforcement impossible. On the one side, as we...