People v. Ingram

• Decision Date: 26 December 1978
• Citation: 87 Cal.App.3d 832,151 Cal.Rptr. 239
• Parties: The PEOPLE, Plaintiff and Respondent, v. Thomas INGRAM, Defendant and Appellant. Crim. 29890.
• Court: California Court of Appeals Court of Appeals

Page 239

151 Cal.Rptr. 239

87 Cal.App.3d 832

The PEOPLE, Plaintiff and Respondent, v. Thomas INGRAM, Defendant and Appellant.

Crim. 29890.

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

Dec. 26, 1978.

Hearing Denied March 14, 1979.

Paul Halvonik, State Public Defender, under appointment by the Court of Appeal, Charles M. Sevilla, Chief Asst. State Public Defender and Joel F. Franklin, Deputy State Public Defender, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Shunji Asari and Mark Alan Hart, Deputy Attys. Gen., for plaintiff and respondent.

LILLIE, Acting Presiding Justice.

The court found defendant Ingram and codefendant Evans guilty of possession of heroin. Defendant appeals from the judgment. His main contention is that the trial court erred in denying his motion to disclose identity of the informant.

On May 12, Officers Wesselink and Richardson received information from an informant regarding narcotics activity in apartment 107 at a Hollywood address "a male Negro approximately 25 to 35 years old, five-six, five-seven, 140, and a male Negro, a drag queen," describing him, going under the name of "Rachel," were using and selling heroin from apartment 107; "the day prior, or the evening prior" (May 11), he purchased heroin from the "drag queen" (Evans) and "there was also another male Negro inside the location, the same description I described earlier."

Around 11 a. m. on May 12 the officers went to apartment 107 to conduct a narcotics investigation; one of them knocked on the door, identified himself and stated his purpose; after a short delay Evans, wearing a baby doll nightgown, opened the door. The officers informed him they were there to make a narcotics investigation, and Evans admitted them; although they did not ask permission to search the apartment, Evans said they could do so. Defendant was sitting on the bed in his shorts and asked, "Why did you come to our place?"; Officer Richardson replied they were conducting a narcotics investigation, and defendant said, "Well, go ahead and search. We don't have anything to hide." A subsequent search disclosed heroin in the kitchen sink and narcotic paraphernalia in and around the sink, in the cupboard area, on the floor in the kitchen and in Evans' overnight case which was in the kitchen; a receipt for the rent for apartment 107, in the name of "Evans, Rady," was found in Evans' purse also in the kitchen.

Evans and defendant were arrested; defendant asked, "Can I get my clothes?" pointing to the closet; there was other clothing in the closet. Boxes and miscellaneous clothing were near the door and both defendants said, "We are moving pretty soon." Track marks on the arms of both defendants were more than 12 hours old but had been made within a 21-day period.

A resident security officer testified he had seen defendant on several occasions at apartment 107; once defendant claimed to reside there; Evans told him defendant was merely a visitor who stayed there frequently; defendant's name was not affixed to the rental application and it was not on the apartment mailbox. Another security guard testified that although defendant had informed him he lived in apartment 107, his name did not appear on the tenant list; many "drag queens" frequented the apartment and Evans had other visitors.

Evans testified he lived in apartment 107 and on May 12 was living with defendant, his roommate, who had moved in in April; he is a "drag queen" and uses "the name of Rachel." He denied ownership of the contraband seized in his apartment except for the measuring spoons; he confirmed ownership of the overnight case; he said he did the cooking and cooked at least once a day but denied knowledge of the presence of the heroin in the kitchen; he denied participating in a narcotic sale on May 11.

Defendant's father testified that defendant lives with him at his home on 80th Street and keeps clothing and shaving equipment there; defendant spent the night of May 11-12 away from home.

Defendant testified he lived with his father on 80th Street and had lived there for five or six months; he only slept in Evans' apartment on occasion and had only about two changes of clothing in the closet; he did not have a key to Evans' apartment and the key in his possession at the time of arrest was to his father's place; his name was not on the mailbox at Evans' address and he never told anyone it was his residence. He visited Evans around 7 p. m. on May 11 and as he arrived someone was leaving; he and Evans went to the movies, returned late to Evans' apartment, immediately went to bed and slept until 10 a. m., when Evans admitted a visitor; the visitor left and Evans returned to bed; he did not get out of bed during this time; he was unaware of any narcotics or narcotic paraphernalia in the kitchen; Evans told him he had been asked to move and had packed boxes; he did not give officers permission to search or tell them he and Evans were moving; he was not in the apartment when Evans sold heroin to anyone; he is not an active narcotic user and marks were from an old operation. The identification card found in his possession at the time of arrest was dated May 11 and it bore the address on 80th Street.

At the commencement of and as part of the trial, defendant moved for disclosure of the identity of the informant. The trial court held an adversary hearing on the issue of disclosure under section 1042, subdivision (d), Evidence Code, and denied the motion. ¹ Appellant's claim of error based on this denial has merit.

Defendant's joint possession of the contraband recovered from the kitchen was predicated on his former use of narcotics and presence on the premises. The People's theory was that he was a resident of apartment 107. Defendant's presence in or opportunity of access to Evans' apartment, without more, will not support a finding of unlawful possession (People v. Redrick, 55 Cal.2d 282, 285, 10 Cal.Rptr. 823, 359 P.2d 255; People v. Mitchell, 53 Cal.App.3d 21, 25, 125 Cal.Rptr. 543), and it is highly significant and material to defendant's case if he was but a visitor to the apartment on May 12 (People v. Garcia, 67 Cal.2d 830, 839, 64 Cal.Rptr. 110, 434 P.2d 366.)

The informant told police he had been in apartment 107 "the day prior or the evening prior" (May 11) and purchased heroin from Evans and another black man; he identified Evans but made no reference to the second man by name and did not identify defendant as that man, and his description was general enough to fit any number of black men who visited Evans' apartment. The informant possessed information which, if disclosed, would either confirm that defendant was the second man in apartment 107 when the informant purchased heroin from Evans the day before, thus demonstrating defendant had knowledge of the presence of the contraband in the kitchen; or establish that defendant was not with Evans when the informant bought the heroin, a fact consistent with defendant's claim that he was but a visitor there on May 12, and cast doubt on the People's claim he knew of the contraband in the sink.

The state of the evidence is such that the informer's identification of the second man is critical to defendant's defense. There is a direct conflict concerning whether defendant resided in apartment 107. Codefendant Evans said defendant lived there and was his roommate. Two security guards testified Evans and defendant told them they lived in apartment 107, but admitted that defendant's name was not on the rental application, tenant list or mailbox. Officer Wesselink testified to certain of defendant's statements from which the inference that he lived there was reasonable. Defendant's father testified defendant lived with him on 80th Street. Defendant testified he did not live in apartment 107 but with his father on 80th Street, was a visitor that night in apartment 107 and knew nothing of the contraband; as he arrived around 7 p. m. on May 11 someone was leaving the apartment; and he was not in the apartment when Evans sold heroin to anyone. Defendant's "I.D." card, obtained on May 11, listed his address on 80th Street. There is manifest in the record a clear question of credibility. The informant might have confirmed defendant's testimony that it was not he who was present in apartment 107 on May 11 when he bought heroin from Evans. It would be a most relevant and material fact from which the trier of fact could find that defendant was only a visitor on May 12 and was unaware of the presence of the contraband in the kitchen.

The defendant bears the burden of demonstrating that " 'in view of the evidence, the informer would be a material witness on the issue of guilt and nondisclosure of his identity would deprive the defendant of a fair trial.' (Citations.) That burden is discharged, however, when defendant demonstrates a reasonable possibility that the anonymous informant whose identity is sought could give evidence on the issue of guilt which might result in defendant's exoneration." (People v. Garcia, 67 Cal.2d 830, 839-840, 64 Cal.Rptr. 110, 116, 434 P.2d 366, 372; Price v. Superior Court, 1 Cal.3d 836, 843, 83 Cal.Rptr. 369, 463 P.2d 721.)

Dispositive of the case at bench is People v. Coleman, 72 Cal.App.3d 287, 139 Cal.Rptr. 908, in which this court found that the informer was a material witness to the possession of heroin. The informant had been present in Lily Coleman's apartment a few hours before the contraband was found; and he knew of the relationship between defendants Dukes and Coleman and that Dukes was the dominant party in it. The officers went there because an informant told them drugs were in her apartment and he had seen narcotic paraphernalia in her purse. Police were admitted to the apartment by Dukes, and Coleman consented to a search. Lily Coleman's defense was that the heroin found in her purse and in...