People v. Nudd

Decision Date21 August 1973
Docket NumberCr. 5787
Citation33 Cal.App.3d 1052,109 Cal.Rptr. 634
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Benjamin Lawrence NUDD, Defendant and Appellant.

Robert V. Fullerton, San Bernardino, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Mark L. Christiansen and Harley D. Mayfield, Deputy Attys. Gen., for plaintiff and respondent.


KERRIGAN, Acting Presiding Justice.

Defendant was tried by jury and found guilty of two violations of section 4573.6 of the Penal Code: possession of narcotics (demerol) 1 by an inmate of a state prison and possession of narcotic paraphernalia (a hypodermic injection kit) by an inmate. He appeals from the judgment sentencing him to state prison, the sentence to run consecutively with any other sentences he is serving.


Resolving all conflicts in favor of the People, the evidence may be summarized as follows:

On Sunday, February 20, 1972, about 1:45 p. m., Warren Wenzel, a correctional officer at the California Institution for Men at Chino (C.I.M.), was checking the West Dorm. As he passed defendant's cell, he noticed that there was a blanket over the window, and that defendant was sitting at a table toward the rear of the cell, with his back toward the cell door. Officer Wenzel could not see what defendant was doing. Inmates often cover their windows with blankets to keep out the light when they sleep, but it is unusual for an inmate to be sitting at his table with a blanket over the window. The officer walked on past, then came back and passed the cell again on his way to the guards' office to perform an errand. Thinking he had better check on defendant's activity, Wenzel abandoned his errand and returned to defendant's cell to see what he was doing.

Wenzel walked in. He saw defendant sitting at the table with his left arm on the table and his right arm by his thigh, with his right hand clenched. On the table were a rag and a small empty vial labeled 'Demerol.' Wenzel asked defendant what he had in his right hand; defendant said, 'Nothing.' Defendant started pushing Wenzel toward the door of the cell, keeping his right hand tightly clenched. A struggle ensued, in which some of the lockers in the cell were pushed out of their normal positions. Wenzel sat on the toilet lid and pushed defendant into the corridor. No one else was in the corridor at the time and there was nothing on the corridor floor.

As the struggle continued, Wenzel slipped. Defendant went over him and back into the cell, kicked the wooden cover off the toilet, made a throwing motion toward the toilet with his right hand, and flushed it twice. Wenzel did not actually see anything in defendant's hand, and did not see anything thrown into the toilet.

Starting to leave, Wenzel saw on the corridor floor about 12-18 inches from the door of defendant's cell an eyedropper with a hypodermic needle attached, wrapped with a rubber band, containing a small amount of a clear fluid. No one else was in the vicinity. He picked up the eyedropper and took defendant to the office, locking the cell as he left.

A few minutes later, Wenzel took defendant to Lieutenant Keser, the watch commander. A skin search was conducted. No contraband was found, but a red spot, approximately one inch in diameter, was observed on the right leg of defendant's undershorts, which were seized as evidence. Lieutenant Keser advised defendant of his Miranda rights and asked if, with his rights in mind, he wished to talk. Defendant asked if he would be charged with a felony. When Keser said, 'You probably will be,' defendant said, 'Well, then, I don't have anything to say.' 2

Keser, concerned about the physical encounter between guard and inmate, then initiated an 'off-the-record' conversation in which defendant indicated he had struggled with Officer Wenzel because he 'had to get rid of the stuff,' which was 'speed.' 3 Confronted with the eyedropper and needle, defendant consistently denied any knowledge of them. None of these statements were reduced to writing or otherwise recorded in any form before trial.

At 2:05 defendant was taken to the dispensary where he was examined by William G. Ham, a registered nurse on the prison hospital staff. Ham had defendant strip. He found no sign of an injection, and observed that defendant's eyes, speech and gait were normal. He did not notice any blood.

He testified that the vial found in defendant's cell by Officer Wenzel is the usual package for demerol, which comes in vials of 25-100 milligrams; that 100 milligrams would have 'some euphoric effect'; that it would take 25-45 minutes to feel the effect of an injection of demerol, and one to one and a half hours for the full effect; that he would expect demerol to have very little effect on eyes, speech and gait.

Sometime on the day of the incident, Ezekiel Hernandez, an employee of C.I.M., tested a sample of the liquid from the eyedropper with a Valtox Kit, a field narcotics tester. The test indicated the presence of cocaine. The kit contained no specific test for demerol. Subsequent testing at the San Bernardino County Sheriff's Crime Laboratory by criminalist Sandra Rakestraw showed positively that the fluid in the eyedropper was demerol. Mrs. Rakestraw performed additional tests which showed that the Valtox Kit gives identical indications for cocaine, demerol, and about 20 other drugs.

When she examined it, the eyedropper was 1/4 to 1/3 full. She did not measure the quantity, but estimated it to be about 1/4 to 1/2 a cubic centimeter, which would amount to 12 1/2 to 25 milligrams of demerol. She did not test the contents of the vial because there was not enough in it to test. She estimated the volume of the vial as two cubic centimeters. 4

Although defendant and two other inmates testified that Officer Wenzel had a special animosity toward him and had threatened to 'get him,' Wenzel denied any such threats and said he thought he got along well with defendant, but that he had to reprimand him at times to get back to his job.

Defendant's contentions on appeal will be considered in the order in which he raises them: (1) Admission into evidence of his statements to Lieutenant Keser was prejudicial error requiring reversal; (2) the trial court should have declared a mistrial because the prosecution deliberately suppressed defendant's statements to Keser; and (3) the evidence was insufficient to support the conviction.


Defendant testified in his own behalf and denied the offense. On cross-examination, the district attorney asked if he had not told Lieutenant Keser that he had flushed the contraband down the toilet. Defendant said he did not remember such a statement.

Defendant's attorney objected to any evidence of conversations with defendant after he had invoked his Miranda rights, and moved for a mistrial on grounds of inadequacy of discovery, in that the prosecutor had not previously informed him of defendant's extra-judicial statements. The motion was denied.

The following morning the court held an in camera hearing on admissibility of the statements. Lieutenant Keser testified that he had warned defendant per Miranda; that defendant had said he understood his rights and that if he were to be charged with a felony, he had nothing to say; that he, Lieutenant Keser, was worried about the physical encounter between defendant and Mr. Wenzel and initiated an 'off-the-record' conversation to find out why the struggle occurred; that in his conversation defendant said he 'had to get rid of the stuff,' which was 'speed.' 5 Defendant testified that the conversation took place but denied making any of the admissions recited by Lieutenant Keser. The court ruled that the statements were admissible.

In open court, Keser testified on rebuttal essentially as he had in chambers, Mr. Wenzel also gave his version of the conversation, which differed in detail, but not in any essential facts. Lieutenant Keser testified that although the conversation with defendant was held in confidence, he felt justified in violating that confidence because defendant's testimony in his own behalf tended to 'degrade or question the integrity' of the officers. 6

Defendant's objection to the admission of his extra-judicial statement to Keser is predicated on two grounds: (1) violation of the rules set down in Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 and (2) voluntariness. All the witnesses to the statements--defendant, Keser and Wenzel--agreed that the statements were made immediately after defendant had been warned of his Miranda rights and had declined to talk. The statements, therefore, were inadmissible for any purpose unless the rule of Harris v. New York, infra, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, applies. (Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; People v. Fioritto (1968) 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625.) The court's ruling necessarily implies findings that defendant's statements were voluntarily given and that the Harris rule applies. (Evid. Code, § 402, subd. (c).)

The Harris Rule

In Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, the Supreme Court held that incriminating statements made by an accused who had not been warned of his right to counsel were admissible to impeach him when he made contrary statements at his trial, where there was no claim that the statements were coerced or involuntary, and where the jury was instructed that the extra-judicial statements were to be considered only on the issue of defendant's credibility and not as evidence of his guilt, even though such statements would be inadmissible in the...

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  • People v. Nudd
    • United States
    • California Supreme Court
    • 31 Julio 1974 test created by the majority, the statement here used for impeachment could not be deemed voluntary. The Court of Appeal majority, 109 Cal.Rptr. 634, analyzed this issue thoroughly and in a thoughtful opinion written by Acting Presiding Justice Kerrigan, concurred in by Justice Tamura, ......

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