People v. Sweeney

• Decision Date: 16 December 1960
• Docket Number: Cr. 6708
• Parties: , 357 P.2d 1049 PEOPLE, Respondent, v. Paul Wesley SWEENEY, Appellant.
• Court: California Supreme Court

Page 793

9 Cal.Rptr. 793

55 Cal.2d 27, 357 P.2d 1049

PEOPLE, Respondent, v. Paul Wesley SWEENEY, Appellant.

Cr. 6708.

Supreme Court of California, In Bank.

Dec. 16, 1960.

Rehearing Denied Jan. 10, 1961.

Paul Wesley Sweeney, in pro. per., Harold J. Ackerman, Joseph Flaig, Gerald D Lenoir, Los Angeles, and Crispus A. Wright, Beverly Hills, for appellant.

Stanley Mosk, Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for respondent.

DOOLING, Justice.

Defendant was charged with giving away amidone, a narcotic (Health & Saf. Code, § 11500) and with giving a bribe to a deputy sheriff (Pen.Code, § 67). A jury convicted him of both offenses and he was sentenced to the state prison. He appeals from the judgment, the sentence, ¹ and the order denying his motion for a new trial.

While defendant does not challenge the sufficiency of the evidence to sustain the verdict on the narcotics charge, he makes these assignments of error: (1) the summary dismissal of his affidavit of prejudice; (2) certain rulings on the admission and rejection of evidence; and (3) serious misconduct of both the court and the district attorney. He particularly stresses the impropriety in the admission of evidence and several instances of misconduct to have been so prejudicially erroneous in their cumulative effect as to constitute the denial of a fair and impartial trial. He also argues that the evidence on the bribery charge established the defense of entrapment as a matter of law.

Viewing the record in the light most favorable to the People, as we are bound to do following a guilty verdict (People v. Caritativo, 46 Cal.2d 68, 70, 292 P.2d 513), it appears that defendant, a young Negro lawyer, visited on several occasions one Willie Williams, a female Negro and a narcotic addict, while she was a patient in the Los Angeles County General Hospital. The attendants were suspicious that she was receiving narcotics from someone; on two occasions her withdrawal symptoms were relieved after defendant's visits; and finally on his third visit, defendant was observed handing her an object, which proved to be a pill containing a narcotic, amidone. Defendant was seized by a guard and turned over to Deputy Sheriff Nichols of the narcotic detail. With defendant's permission, Nichols searched his car, a 1957 Lincoln. Nichols told defendant that he was not going to do anything in the case until he had an analysis from the crime laboratory, and released defendant.

Later that same day Officer Nichols, following the order of his superior to contact defendant and learn the source of the narcotics, telephoned defendant and asked defendant if he would like to talk with him. Defendant said that he would; the officer then suggested a certain restaurant for their meeting; and defendant agreed upon being assured that it was not for the purpose of arrest. At the appointed time Nichols was sitting at a table, and two other officers were purposely seated within hearing distance nearby. Defendant, upon joining Nichols, asked if Nichols had discovered the contents of the pill, denied that he knew its contents, suggested that it was only a barbiturate, and stated that Willie Williams had told him she had only swallowed five pills. Nichols then remarked that defendant had a beautiful automobile, to which defendant replied, 'I would sure like to see you driving it.' Defendant inquired if Nichols had noted a little red book with figures in it, when he was examining defendant's effects at the hospital. When Nichols said that he had not, defendant stated, 'Well, if you had seen that book, you would know I am not too wealthy a man * * *. What would be right with you?' Nichols asked, 'Well, what won't hurt you?' and defendant replied, 'Well, how is $500?' Nichols answered, 'Well, that is just fine.' They then arranged to meet the next morning at a designated place, and in the course of exchanging greetings, defendant would hand Nichols five $100 bills. During the entire conversation Nichols wore under his coat a small recording instrument known as a miniphone.

The next day defendant and Nichols met as scheduled and the $500 changed hands as agreed. Nichols then placed defendant under arrest and he was taken before a deputy district attorney. Following some discussion of the incident, the deputy asked defendant who first mentioned the $500 and after expressing some uncertainty, defendant said, 'Well, I guess I did.' Entrapment was one of the issues at the trial.

1. Dismissal of Affidavit of Prejudice.

When the case was called for trial on April 13, 1959, defendant filed an affidavit of prejudice against Judge Bayard Rhone, the trial judge, and moved that he disqualify himself. The affidavit referred to sections 170.5 and 170.6 of the Code of Civil Procedure and merely averred that 'Bayard Rhone the judge before whom the trial of the * * * action is pending, is prejudice(d) against the party or the interest of the party so that affiant cannot or believes that he cannot have a fair and impartial trial before such judge.' The judge denied the motion as 'not setting forth any facts and being frivolous and of no effect,' and proceeded with the trial.

The motion was properly denied. Section 170.5 was declared uncosntitutional insofar as it dealt with a peremptory challenge. Austin v. Lambert, 11 Cal.2d 73, 79-81, 77 P.2d 849, 115 A.L.R. 849; Muller v. Muller, 141 Cal.App.2d 722, 731, 297 P.2d 789. Section 170.6, at the time of defendant's motion, applied only to civil actions and special proceedings, not to criminal actions. Stats.1957, ch. 1055, § 1; Am.Stats.1959, ch. 640, § 1, effective September 18, 1959. Section 170 of the Code of Civil Procedure was therefore the governing statute. Defendant argues that under section 170 the trial judge should have referred the matter of his alleged disqualification to the presiding judge for determination. But section 170 requires the affidavit of bias and prejudice to set forth 'the fact or facts constituting the ground of the disqualification of such (the trial) judge.' A statement that contains nothing but conclusions and sets forth no facts constituting a ground of disqualification may be ignored or stricken from the files by the trial judge. Keating v. Superior Court, 45 Cal.2d 440, 443, 289 P.2d 209; People v. Lyon, 135 Cal.App.2d 558, 585, 288 P.2d 57; Ephraim v. Superior Court, 42 Cal.App.2d 578, 579, 109 P.2d 378. Where the statement is insufficient the judge can so determine, whereupon the procedure provided by section 170 is not applicable. People v. Darby, 114 Cal.App.2d 412, 439, 250 P.2d 743. 'Where no facts are set forth in the statement there is no issue of fact to be determined. It is only where an appropriate issue of fact is presented by the statement that a judge is prevented from passing on the question of his own disqualification under section 170.' Mackie v. Dyer, 154 Cal.App.2d 395, 399, 316 P.2d 366, 369. Defendant's affidavit charging Judge Rhone with prejudice stated no facts but only conclusions, and it was properly ignored.

2. Rulings on Admission and Rejection of Evidence.

(a) Photograph representing the scene of the alleged crime.

Over defendant's objection, a photograph of the hospital room when defendant allegedly handed Willie Williams the amidone was admitted in evidence. The district attorney admonished the identifying witnesses to disregard the people shown in the photograph and stated that its value was only to show bed positions. A proper foundation was laid for admission of the photograph, and the identifying witnesses testified as to its accurate representation. The court instructed the jury that the photograph was admissible for 'purposes of illustration.' The probative value of the photograph was a matter for the court to resolve in the exercise of its discretion (People v. Chavez, 50 Cal.2d 778, 792, 329 P.2d 907) and it appears to have been properly received as a clarifying representation of the essential scene conditions. People v. Atchley, 53 Cal.2d 160, 168, 346 P.2d 764; People v. Brubaker, 53 Cal.2d 37, 48, 346 P.2d 8. (b) Impeachment of Officer Beeton.

Officer Beeton was the guard who seized defendant at the time he handed Whillie Williams the amidone. He was a witness for the People. On cross-examination, in an attempt to show bias and prejudice against defendant, Beeton was asked if he 'had told some witnesses not to discuss this matter with anyone from the defense.' Beeton replied, 'No, never.' Later Dr. Tonge, who had treated Willie Williams at the hospital, was called as a witness for the People. On cross-examination, in an attempt to counteract Beeton's denial, Dr. Tonge was asked if Beeton had told him 'not to talk to the (defense) investigator.' An objection was sustained on the ground a proper foundation had not been laid, the court stating: 'The same rule applies to this as it applies to impeachment. You still have to lay the foundation. You cannot lay it generally; you have to lay it specifically on each witness.'

Defendants argues that the ruling was error; that the appropriate foundation for impeachment had been laid by the general question asked Beeton followed by his denial that he had told anyone not to talk to defense investigators; that 'minor defects in the foundation question should not be seriously considered' (People v. Singh, 20 Cal.App. 146, 149, 128 P. 420, 422); that 'questions as to the making of contradictory or inconsistent statements should be allowed, without laying the formal foundation for impeachment' (People v. Little, 142 Cal.App.2d 513, 517, 298 P.2d 548, 550); and defendant 'should have had the active cooperation of the court in any good faith endeavors to test the credibility of' an opposing witness. People v. Hume, 56 Cal.App.2d 262, 270, 132 P.2d 52, 56. But defendant's position cannot be sustained where there is not even a suggested attempt, in the so-called foundation question asked of Beeton and his categorical denial, to...