People v. Lawrence

• Court: California Court of Appeals
• Writing for the Court: FRED B. WOOD; PETERS, P. J., and BRAY
• Citation: People v. Lawrence, 168 Cal.App.2d 510, 336 P.2d 189 (Cal. App. 1959)
• Decision Date: 09 March 1959
• Docket Number: Cr. 3487
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Jesse LAWRENCE, Defendant and Appellant.

Page 189

336 P.2d 189

168 Cal.App.2d 510

PEOPLE of the State of California, Plaintiff and Respondent, v. Jesse LAWRENCE, Defendant and Appellant.

Cr. 3487.

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

March 9, 1959.

Arthur D. Klang, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Preble Stolz, Deputy Atty. Gen., for respondent.

FRED B. WOOD, Justice.

Defendant was convicted of two violations of section 11500 of the Health and Safety Code: Sale and possession, respectively, of heroin.

As to the sale, there is a total gap in the chain of evidence. Willie Dandridge, an informant-participant who had no narcotics upon his person was furnished $200 in currency (identifiable by the serial numbers of the bills) and was under observation of the officer-witnesses until he entered defendant's place of residence. He remained inside for a period of 2 1/2 to 3 hours. Upon leaving, he took a taxi, rode in it for two blocks, got out, delivered a package of heroin to one of the officers, was searched and found to have none of the state money in his possession.

One Gerald Williams entered defendant's apartment a few minutes after Dandridge did and remained there until Dandridge left. Defendant's wife, Norvelle Lawrence, entered a few minutes after Williams and remained inside for an appreciable length of time. Upon her departure she went to a certain department store and made some purchases, using one of the $10 bills that had been given the informant by the state. The sum of $250, including $170 of the money the state had furnished Dandridge, was found in a box on a bedside table in defendant's apartment. Plaintiff says there is no testimony that Williams was searched upon his apprehension after leaving defendant's apartment, and we have found none.

Heroin was found in the apartment: some on a cocktail table in the front room; some on a bed in the bedroom; and some in the pockets of a pair of trousers hanging on a closet door. Confronted with two of these items at the time of their seizure, defendant admitted they were his. He said he realized it was heroin and that he used it for his asthma.

Plaintiff says that this admission, the presence of the state money in his apartment, and a certain telephone conversation between Dandridge and defendant, definitely connect defendant with the sale, to the exclusion of his wife, Gerald Williams and the cabdriver.

The telephone conversation occurred shortly before Dandridge entered defendant's apartment. One of the officers placed the call, listened in, and narrated it as follows: 'A voice said, 'Hello?' * * * Mr. Dandridge said, 'Hello, is that you Jesse?' The answer was: 'Yes.' He said, 'Is anything happening?' to which the reply by Mr. Lawrence was, 'Yes.' He says, 'Well, I'd like to get something. Can I come by?' And the voice on the other end of the line said, 'Yes." Those words indicate that defendant was at home and that Dandridge was welcome to visit him. What more, if anything, they meant, is too speculative to constitute a link in a chain of evidence competent to convict defendant of selling Dandridge a package of heroin.

If the presence of some of the state money in the box on the bedside table points to defendant as the seller, that very circumstance points with equal accuracy to his wife whose apartment also it was. In her case there was the added circumstance that she had some of the money upon her person and used it in making certain purchases. There is the possibility, too, that if Williams had been searched the missing $20 of the money might have been found. Nor is it beyond the realm of the possible that Dandridge paid the money to Williams who transferred it to defendant in payment of a debt. None of these mutually inconsistent possibilities rises to the dignity of proof that defendant or his wife or Gerald Williams effected the sale.

Nor was defendant's admission that some of the heroin found in his apartment belonged to him and was used for his asthma, tantamount to an admission that he had sold some heroin to Dandridge. He said, as to the heroin on hand, that he had it there for his own use, a fact corroborated to some extent by one of the officers who testified that in his opinion defendant was under the influence of narcotics at the time of his apprehension. It is unlike the statement defendant Palacio made in People v. Valencia, 156 Cal.App.2d 337, 319 P.2d 377. The officer and his informant sought to purchase narcotics from one Valencia, who took them to a certain hotel, went in alone and then returned saying that his 'connection' wanted $120 for six grams. The officer gave $150 to Valencia who reentered the hotel and came back with Palacio. A conversation concerning narcotics ensued, in which the officer indicated hesitancy in letting Palacio have the money. Palacio replied: 'That's not the way I work. I always give something in return.' The officer then asked if the narcotics were good and Palacio said, 'I have real good stuff.' Thereupon, Valencia handed Palacio the $120. These and other circumstances were deemed sufficient supporting proof even though the officer did not see Palacio hand the narcotics to the informer. Those facts bear no real similarity to the facts of our case.

The facts here presented bear a marked resemblance to those in People v. Barnett, 118 Cal.App.2d 336, 257 P.2d 1041. There, the informant-participant was out of sight and hearing of the officer-witness for one and a half hours, during which time contact with others than the defendant was possible. Another similar case is People v. Morgan, 157 Cal.App.2d 756, 321 P.2d 873, in which there was no proof that the informer-participant contacted no one in going to and returning from the defendant's apartment. Similarly, in People v. Richardson, 152 Cal.App.2d 310, 313 P.2d 651, there was at least one person in addition to defendant with whom the informant made contact and from whom he might have made the purchase.

People v. Holland, 158 Cal.App.2d 583, 322 P.2d 983, invoked by plaintiff, is altogether different from our case. There the informant-participant was in plain view and under continuous observation of various officers from the beginning to the end of the sale transaction and had no contact with any other person than the defendant. So, too, in People v. Alvidrez, 158 Cal.App.2d 299, 322 P.2d 557, the informant-participant in the sale transaction was, an examination of the record of the case indicates, under constant visual observation of the officers and had no contact with any other person than the defendant.

As to the charge of unlawful possession of heroin, defendant's conviction is amply supported by the evidence: Heroin found in various places in his apartment, coupled with his admission to an officer that some of it belonged to him, that he realized it was heroin, and that he used it for his asthma. Defendant argues that the things found during the search of his premises were illegally admitted in evidence, upon the theory that the arrest which preceded the search was illegal. Defendant unsuccessfully urged this point upon the former appeal. People v. Lawrence, 149 Cal.App.2d 435, 443-445, 308 P.2d 821. The pertinent evidence upon retrial was substantially the same as upon the first trial. We concur in the analysis made and the views expressed by the reviewing court upon the former appeal.

Defendant claims he was erroneously deprived of the testimony of Dandridge to defendant's prejudice and that this requires reversal in respect to his conviction of possession as well as for the sale of heroin. Upon the voir dire examination conducted before the court outside the presence of the jury to determine the admissibility in evidence of packages of narcotics that had been seized, Dandridge testified on behalf of the defendant. His testimony was consistent with and substantially the same as that given by him during the voir dire examination upon the former trial. Summarized on pages 447-448 of 149 Cal.App.2d, on pages 827-828 of 308 P.2d.

The trial court found the seizure legal and declared the evidence admissible, whereupon the trial before the jury was resumed. When Dandridge was again called by the defendant, he refused to answer certain questions, invoking the privilege against self-incrimination. The court ruled he need not answer. Defendant questions this ruling upon the ground (1) it was not a proper claim of the privilege against self-incrimination and (2) Dandridge waived the privilege by testifying upon the voir dire.

It is, of course, the function of the trial court, not of the witness, to determine whether a question tends to incriminate. The test is "whether any direct answer to a proposed question has a tendency to criminate' the witness which is but another way of saying that the court must determine that no direct answer which the witness may make can tend to criminate him.' In re Berman, 105 Cal.App. 37, 49, 287 P. 125, 130. The court properly takes into consideration all of the circumstances of the case in determining whether there is a real danger that a direct answer to a question may incriminate. Overend v. Superior Court, 131 Cal. 280, 283, 63 P. 372.

In the Berman case, the witness had previously given testimony upon deposition, to which his attention was directed. As to each of 12 questions and answers appearing in the deposition, this 'question was put to him: 'I ask you whether the answer just read is not a true statement of fact in response to the question just read?'' 105 Cal.App. at page 39, 287 P. at page 126. Of this, the reviewing court said 'if he had answered 'No,' he would have given evidence, which beyond...