People v. Parham

Decision Date12 September 1963
Docket NumberCr. 7428
Citation33 Cal.Rptr. 497,384 P.2d 1001,60 Cal.2d 378
CourtCalifornia Supreme Court
Parties, 384 P.2d 1001 The PEOPLE, Plaintiff and Respondent, v. Alvin Maurice PARHAM, Defendant and Appellant.

Paul Robbins, Oakland, under appointment by the Supreme Court, for defendant and appellant.

Stanley Mosk, Atty. Gen., John S. McInerny, Eric Collins and Albert W. Harris, Jr., Deputy Attys. Gen., for plaintiff and respondent.

TRAYNOR, Justice.

Defendant was convicted on three counts of first degree robbery. (Pen.Code, § 211a.) He appeals from the judgment and from the order denying his motion for a new trial. The appeal from the order denying a new trial is dismissed. (Pen.Code, § 1237.)

Defendant contends that he was denied the right to inspect the signed statements of several witnesses and therefore was denied a fair trial, that he was placed in an improperly conducted lineup and therefore his identification by several witnesses was unreliable and prejudicial as a matter of law, that he was arrested without probable cause and therefore the search incident to his arrest was unreasonable, and that when he was arrested the police forced evidence from his mouth by unconstitutional methods.

Defendant was arrested on July 21, 1961 and on the same day was placed with five other men in a police lineup at the Berkeley Police Station. During the lineup, each man in turn tried on defendant's hat and coat. After observing the lineup several witnesses of the three bank robberies for which defendant was convicted identified defendant as the robber. These witnesses also identified defendant at the trial. Defendant contends that his hat and coat did not fit any of the other men in the lineup and that therefore the witnesses' identification of him was unreliable and prejudicial. This contention is without merit. The manner in which the lineup was conducted affects only the weight of the witnesses' testimony, not its admissibility. The witnesses were thoroughly cross-examined concerning the lineup. It was the jury's function to consider the circumstances of the lineup in weighing the witnesses' testimony. The jury's implied finding that identity was established is supported by the evidence.

At the trial most of the identifying witnesses testified that after the lineup they gave signed statements to agents of the Federal Bureau of Investigation. Defendant moved for production of the statements. The prosecution responded that the statements were not available to it. Inspector Young of the Berkeley Police was present when the witnesses were interviewed by the F.B.I. and took notes of the interviews but did not take signed statements. Defendant was given a copy of Inspector Young's notes and also the statement of one identifying witness taken by the Berkeley Police.

In chambers the prosecutor stated that he had been permitted to examine the statements taken by the F.B.I., that he had tried to obtain the statements but that the F.B.I. had rejected his request, and that he did not have the statements in his possession and no longer had access to them. Upon the trial court's suggestion defendant then obtained a subpoena duces tecum directing Special Agent Buchanan of the F.B.I. to appear with the investigative file on the bank robberies. Agent Buchanan appeared with an assistant United States attorney who advised the court that Agent Buchanan could not produce the investigative file because of order No. 3229 of the Attorney General of the United States. Agent Buchanan testified that he had delivered the file to the assistant United States Attorney and that he could not testify concerning the contents of the file because of order No. 3229. Defendant's motion that Agent Buchanan be held in contempt was denied. The court also denied defendant's subsequent motion to strike the testimony of all witnesses whose signed statements had not been produced.

Order No. 3229 compelled Agent Buchanan to refuse to produce the F.B.I. file. 1 That order is valid and has the force of federal law. (United States ex rel. Touhy v. Ragen, 340 U.S. 432, 71 S.Ct. 416 95 L.Ed. 417; Jackson v. Allen Industries, Inc., 6 Cir., 250 F.2d 629.) The trial court was therefore bound by the executive order and properly refused to hold Agent Buchanan in contempt. (See Boske v. Comingore, 177 U.S. 459, 20 S.Ct. 701, 44 L.Ed. 846; Appeal of United States Securities & Exchange Comm., 6 Cir., 226 F.2d 501, 516-520; Ex parte Sackett, 9 Cir., 74 F.2d 922; In re Valecia Condensed Milk Co., 7 Cir., 240 F. 310; Stegall v. Thurman, D.C., 175 F. 813; In re Weeks, D.C., 82 F. 729; In re Huttman, D.C., 70 F. 699; Hubbard v. Southern Ry. Co., D.C., 179 F.Supp. 244.)

Defendant contends that because the signed statements were not produced he was deprived of a fair trial by the denial of his motion to strike the witnesses' testimony. Had the witnesses' statements been in the possession of the prosecution an order to produce would have been proper. (People v. Estrada, 54 Cal.2d 713, 716, 7 Cal.Rptr. 897, 355 P.2d 641; People v. Chapman, 52 Cal.2d 95, 98-99, 338 P.2d 428; People v. Riser, 47 Cal.2d 566, 585-588, 305 P.2d 1.) Moreover, had defendant been prosecuted under federal law the statements could have been produced under the Jencks Act. (18 U.S.C.A. § 3500.) It does not follow, however, that the use of the witnesses' testimony even though their prior statements were unavailable deprived defendant of a fair trial. The prosecution die not withhold the statements, but on the contrary made every effort to obtain them from the F.B.I. The prosecution cannot be penalized because those efforts failed. The prosecution is not penalized if, through no fault of state officials, a material witness for the defense is unavailable at trial. (People v. Wade, 118 Cal. 672, 673, 50 P. 841; People v. Williams, 168 Cal.App.2d 624, 626-627, 339 P.2d 245; see People v. Collins, 195 Cal. 325, 333, 233 P. 97.) It does not appear that the statements were unavailable because of any improper activity by state officials. The police were under no compulsion to take statements from the witnesses. (See People v. Tuthill, 31 Cal.2d 92, 97-98, 187 P.2d 16.) There is nothing to show that the police conspired with the federal agents to deprive defendant of the statements. The prosecution was therefore entitled to use the testimony of the witnesses even though their signed statements were unavailable.

The evidence concerning defendant's arrest shows that while on patrol on the afternoon of Friday, July 21, 1961 Officer Donovan of the Emeryville Police drove to a parking area at the foot of Powell Street in Emeryville and there saw defendant standing between a line of parked cars and the bay. He asked defendant 'if he had some trouble,' and defendant replied that he was on his lunch hour. Defendant also said that he worked at the San Pablo Cleaners, and that his lunch hour ended at one p. m. It was then one-eighteen. Officer Donovan asked for identification, and defendant took a money clip from his pocket and produced a temporary driver's license. Officer Donovan saw in the money clip a red or maroon bank passbook and a folded pink piece of paper that he thought was a check. He then wrote the name, address, and description from the driver's license on a field interrogation card.

Officer Donovan connected the description on the driver's license with a Berkeley Police bulletin that he had in his car and that he had seen several times. The bulletin gave an account of one of the bank robberies for which defendant has been convicted and contained a description and composite sketch of the robber. On the morning of July 21 Officer Donovan had looked at another copy of the bulletin posted at police headquarters. Officer Donovan was also aware that there had been a bank robbery on a previous Friday afternoon and that a stolen car used in the commission of the robbery had been abandoned afterward at the foot of Powell Street.

When Officer Donovan completed the field interrogation card, defendant told him that his car was parked up the street and that he had additional information in it. Defendant then voluntarily rode with Officer Donovan to defendant's car. On the way Officer Donovan radioed headquarters for assistance. The patrol car was parked behind defendant's car, both men got out, and defendant entered his car through the right front door and sat on the seat while Officer Donovan stood outside the open door. Defendant then took out his money clip, removed the pink paper, an put the paper in his pocket. Officer Donovan asked what the paper was, and defendant said that it was a check. After Officer Donovan asked to see the check, defendant withdrew it from his pocket, put it in his mouth, and rolled over face down on the seat of the car. After a struggle Officer Donovan arrested defendant, and both defendant and his car were searched. Incriminating evidence obtained in the search was admitted at the trial over defendant's objection.

Defendant's contention that he was arrested without probable cause cannot be sustained. The knowledge that a stolen car had been used in a bank robbery and abandoned in the Powell Street parking area and the unlikely explanation defendant gave for being there justified Officer Donovan's asking defendant for identification. (See People v. Mickelson, 59 A.C. 465, 467-468, 30 Cal.Rptr. 18, 380 P.2d 658.) Officer Donovan did nothing unreasonable in taking defendant to his car, since defendant said he had further information there and voluntarily rode in the patrol car. Having connected defendant's description with the description on the police bulletin, Officer Donovan was justified in asking to see the check that defendant put in his pocket. With his suspicion thus already justifiably arounsed, Officer Donovan had probable cause to make an arrest when defendant began chewing the check. The search that followed was incident...

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