People v. Martin

• Citation: 95 Cal.Rptr. 250,17 Cal.App.3d 661
• Decision Date: 19 May 1971
• Docket Number: Cr. 5406
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. George H. MARTIN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 250

95 Cal.Rptr. 250

17 Cal.App.3d 661

PEOPLE of the State of California, Plaintiff and Respondent, v. George H. MARTIN, Defendant and Appellant.

Cr. 5406.

Court of Appeal, First District, Division 2, California.

May 19, 1971.

Frank E. Sieglitz, San Francisco, court appointed for defendant-appellant.

Evelle J. Younger, Atty. Gen. of Cal., Robert R. Granucci, John T. Murphy, Deputy Attys. Gen., San Francisco, for plaintiff-respondent.

TAYLOR, Associate Justice.

This case is before us for a second time. Our original decision was filed on December 21, 1966, and published (People v. Martin, 247 Cal.App.2d 416, 55 Cal.Rptr. 629). On February 17, 1970, we granted appellant's propria persona motion to recall the remittitur, vacated the judgment, and reinstated the appeal to determine it in the light of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, and Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100. Prior to the scheduled hearing, the matter was taken off calendar at the request of the People, recalendered this month, and both sides given time to file additional briefs. Although many additional points have now been raised, no valid reason has been advanced to bring us to a different conclusion, except as indicated below with respect to the reconsideration of the effect of the prior conviction on appellant's sentence.

In 1964, appellant, George H. Martin, and his codefendant, McKinley Lomack, were jointly charged by information with possession of heroin (Health & Saf.Code, § 11500) and possession of heroin for sale (Health & Saf.Code, § 11500.5). Appellant was also charged with a prior conviction for possession of marijuana, which he admitted. A joint jury trial resulted in verdicts of guilty on both counts. Appellant received concurrent sentences.

On this appeal from the judgment of conviction entered on the verdict, appellant argues that: 1) the court erred in permitting Sergeant Hilliard to testify as an expert; 2) the cross-examination of appellant as to his financial condition was improper and prejudicial; 3) the erroneous admission of Lomack's extrajudicial confession deprived appellant of his constitutional right of confrontation; 4) he should have been granted a separate trial; 5) he cannot be convicted of both possession and possession for sale; and 6) he is entitled to a reconsideration of the effect of his prior conviction in October 1954 for possession of marijuana.

Viewing the record most strongly in favor of the judgment, the following facts appear: About 11 a.m. on November 13, 1964, Sergeant Hilliard of the Narcotics Detail of the Oakland Police Department, Officers Alves and Schwedhelm, and Agent Woishnis of the State Bureau of Narcotics Enforcement, began a surveillance of appellant's residence in Oakland. Each of the law enforcement officers was in a separate vehicle. Their attention focused on a white Mustang parked in the area. About 11:15 a.m., a Buick drove up and the driver, one Edward Hamilton, entered appellant's house. Shortly thereafter, Hamilton and appellant left the house. Appellant entered the Mustang and Hamilton returned to his Buick. The Mustang departed, followed by the Buick. Both were followed by the vehicles containing the officers.

The Buick and Mustang stopped in the vicinity of San Pablo Avenue and Haskell Street where appellant parked the Mustang and entered the Buick. Hamilton then drove the Buick and double parked in the area of Hollis and Folger Streets. Appellant and Hamilton left the car and approached a Quonset hut on Folger Street. Appellant looked into the window of this building, then rejoined Hamilton. They returned to the Buick, drove around the area and again double parked near the Quonset hut. This time, Hamilton approached the building, reached into some grass or weeds near a window and ran back to the Buick. Thereafter, Hamilton drove the Buick back to San Pablo and Haskell and appellant re-entered the Mustang.

Appellant, followed by the officers, drove the Mustang to an area near the intersection of 61st and Lowell Streets and parked. Appellant then emerged from the car, threw a shiny object into a bush and drove away. Immediately thereafter, Sergeant Hilliard and Agent Woishnis drove to the bush and noticed a shiny foil-wrapped package about 4 to 5 inches long and 2 inches around. They picked up the package, opened it and found a small brown bag containing seven toy balloons. They removed two of the balloons, and dusted the remaining five balloons, the bag and tin foil with fluorescent powder, reconstructed the package, and returned it to the base of the bush where they had originally found it.

Hilliard took the two balloons that had been removed from the package to police headquarters for a chemical test and concluded that their brown crystalline contents were a narcotic. Thereafter, Hilliard signed a complaint against appellant, filed it, and obtained an arrest warrant. Hilliard then returned to 61st and Lowell where Woishnis and the other officers were continuing their surveillance, Woishnis in a panel truck, and Officers Alves, Carreker and Schwedhelm in a rented house trailer overlooking the bush and the package. Hilliard gave the warrant to Woishnis.

About 7:40 p.m., appellant, driving the white Mustang and accompanied by Lomack, returned to the area. Appellant pointed to the bush. Lomack left the Mustang, walked over to the bush, reached into it, and walked back toward the Mustang. As Lomack was apprehended by Officer Alves, the foil object dropped from his hand. Simultaneously, Officer Schwedhelm entered the Mustang and apprehended appellant, served him with the warrant and ordered him out of the vehicle with his hands in view and his mouth open. As appellant got out of the car, Woishnis discovered a balloon on the ground near the car door. A search of appellant revealed another balloon in his jacket pocket. On subsequent examination, all of the balloons in the original foil package, as well as the two balloons found at the time of appellant's arrest, were found to contain heroin.

Appellant testified in his own behalf. About 10:30 a.m. on November 13, 1964, he received a telephone call from Ed Hamilton, who wanted to see him. Appellant declined, but a few minutes later, Hamilton arrived unannounced at appellant's home. After appellant refused to talk to him, Hamilton left. Then appellant drove his Mustang to San Pablo near Ashby to get some cigarettes. Hamilton pulled up behind him in a Buick. Hamilton indicated that he had some marijuana. Appellant then entered Hamilton's car only because Hamilton offered to show him some marijuana. They drove down Ashby until Hamilton stopped the car. They got out and looked for some marijuana that Hamilton said he had in a matchbox. They walked along the street, turned around and got back into Hamilton's Buick. Hamilton first drove past appellant's car, then stopped and looked again. After saying 'Must not be here,' Hamilton drove appellant back to the Mustang. Appellant returned home before noon.

About 5:30 p.m., appellant was at Stubby's Pool Hall on Sacramento Street and met Lomack. Lomack asked for a ride and appellant agreed. About 7:30 p.m., appellant, who was still at the pool hall, received a telephone call from Hamilton. Hamilton said the 'matchbox' he had been looking for was in a bush near the corner of 61st and Market. Appellant replied that he didn't have any money for marijuana. Hamilton told him to go to 61st and Market Streets and pick up a package of marijuana in a bush near a house trailer. Appellant and Lomack drove to the spot and were apprehended as Lomack stepped out to look into the bush. Appellant denied being at 61st and Lowell prior to 7:30 p.m. that evening. He admitted, however, that if there was a package in the bush, it would contain a small amount of marijuana and that he was willing to buy marijuana from Hamilton. Appellant also denied that anything was taken from his pocket after his arrest.

Lomack testified that he met appellant at the pool hall about 7:30 p.m. when appellant agreed to give him a ride to the San Francisco bus stop at 40th and San Pablo. On the way, appellant stopped by the bush and asked Lomack to pick up a package. Lomack did so and was apprehended as he picked up the silver package. Lomack denied calling appellant that day for the purpose of purchasing heroin, but indicated he had called appellant to talk about a hair piece. Lomack gave conflicting testimony as to whether he had been informed of his right to counsel and to remain silent before recording a statement for Sergeant Hilliard. Lomack admitted he had a conversation with Hilliard but denied that he told Hilliard that he called appellant in order to buy a balloon of heroin for $50 or that appellant had directed him to pick up the heroin from the bush.

After the court admonished the jury that any statement made by Lomack was receivable only against him and not appellant, the prosecution called Sergeant Hilliard as a rebuttal witness. Hilliard testified that Lomack, after having been advised of his rights, admitted that when he was arrested, he was in the process of buying a spoon of heroin from appellant. Lomack telephoned appellant from San Francisco to arrange the transaction. Appellant told him to take a bus to Sacramento and Ashby. When Lomack arrived at the destination, appellant picked him up and drove him to the area of 61st Street, parked opposite a house trailer, and pointed to a bush. Appellant said to Lomack: 'Get out and pick up the package.' Thereafter, Lomack indicated he wanted to talk to his attorney and Hilliard elicited no further information.

Appellant first contends that the trial court erred in permitting Sergeant Hilliard to testify that in his opinion the seven toy balloons originally found in the foil package represented an amount of heroin possessed for sale. The ultimate issue for the jury was whether appe...