People v. Williams, Cr. 89

• Decision Date: 29 October 1958
• Docket Number: Cr. 89
• Citation: 331 P.2d 251,164 Cal.App.2d Supp. 858
• Court: California Superior Court
• Parties: 164 Cal.App.2d Supp. 858 The PEOPLE of the State of California, Respondent, v. Iverson WILLIAMS and Alton Crowden, Appellants. Appellate Department, Superior Court, Alameda County, California

Page 251

331 P.2d 251

164 Cal.App.2d Supp. 858

The PEOPLE of the State of California, Respondent, v. Iverson WILLIAMS and Alton Crowden, Appellants.

Cr. 89.

Appellate Department, Superior Court, Alameda County, California.

Oct. 29, 1958.

Wilmont Sweeney and Jane H. Van Hook, Oakland, for appellants.

J. F. Coakley, Dist. Atty., and Albert E. Hederman, Jr., Deputy Dist. Atty., Oakland, for respondent.

WAGLER, Presiding Judge.

The defendants were convicted of a violation of Section 11721 of the Health and Safety Code of the State of California. Each has appealed from the judgment of conviction and the order denying him a new trial.

Section 11721 makes it unlawful for anyone to use, be under the influence of, or to be addicted to the use of narcotics except when administered by or under the direction of a licensed person.

It is the contention of each defendant that the admission in evidence of the result of a Nalline test administered shortly following his arrest constituted prejudicial error. Each defendant also contends that proper venue was not shown and that the evidence was insufficient to sustain his conviction.

Following their arrest defendants were taken to the Oakland City Prison. They were there interviewed by police officers attached to the Special Service Detail who testified that each defendant admitted the prior use of narcotics but denied any recent use, and that each had old as well as fresh needle marks on the inside of the left forearm. Each officer also testified without objection that in his opinion, based upon his experience and observations, each defendant was addicted to the use of narcotics and had recently used the same.

A written release and authorization for the administration of a Nalline test signed by each defendant was received in evidence. It is conceded that this consent was freely and voluntarily given.

The Nalline test was administered by Dr. James G. Terry, Medical Officer of Santa Rita Rehabilitation Center. The method used was summarized by him substantially as follows: After a cursory physical examination the suspect is seated in a specially designed barber type chair with a fixed lamp on one side and a steel hand rest on the other. By means of a card containing a series of dots known as a 'pupillometer' the doctor then measures and records the size of the pupil. This is done by using the hand rest to steady the hand and by matching the pupil size with the size of one of the dots on the pupillometer. Thereafter three milligrams of Nalline (N-allylnormorphine, a synthetic opiate antinarcotic in action) is injected under the skin, and the suspect is placed in another room for a period of at least 30 minutes. After the lapse of 30 minutes or longer, the suspect is again placed in the chair and his pupils are again measured in the manner above described.

When tested in the above manner, the pupils of each defendant dilated. This according to Dr. Terry indicated a positive reaction, i. e., the recent use of narcotics.

Based upon defendants' history of prior use, the needle marks which were observed and the results of his Nalline tests, Dr. Terry expressed the opinion that each defendant was at the time of his examination mildly under the influence of a narcotic. It is the admission of this testimony of which defendants complain.

If the above testimony was based upon adequate data it would, of course, fall within a well-recognized exception to the rule which excludes opinion evidence. Wigmore on Evidence, Third Edition, Section 658; C.C.P.1870, Subdivision 9.

However, the results of tests of the type here under attack, as well as opinions based thereon, are admissible only if the tests have gained acceptance in the filed of learning in which they are in use. People v. Carter, 48 Cal.2d 737, 312 P.2d 665; People v. Aragon, 154 Cal.App.2d 646, 316 P.2d 370; People v. Porter, 136 Cal.App.2d 461, 288 P.2d 561; People v. Wochnick, 98 Cal.App.2d 124, 219 P.2d 70; People v. Morse, 325 Mich. 270; 38 N.W.2d 322; Frye v. United States, 54 App.D.C. 46, 293 F. 1013, 34 A.L.R. 145.

Wigmore states the rule as follows: 'When the testimony thus appearing to the ordinary layman to lack a rational basis is founded on observations made with esoteric methods or apparatus * * * the method should be explained by the witness, and if it be vouched for as accepted in his branch of learning, it suffices to admit his testimony.' Wigmore on Evidence, Third Edition, Section 659.

Dr. Terry testified that during the past three years he had carried on experimental work with Nalline at the Santa Rita Rehabilitation Center (Alameda County Jail); that his experimentation had been done by means of controlled tests with approximately 2,300 persons, that some of said tests dealt with non-users, others with moderate users, and still others with addicts; that during this experimental work he had conferred personally with Dr. Victor Vogel, former head of the U. S. Public Health Hospital, at Lexington, Kentucky, a pioneer in the use of the Nalline test, and that Dr. Vogel had participated in the tests with him at Oakland, California; that his experiments had resulted in findings that in small dosage Nalline produced a pupillary reaction; that under controlled conditions, after an injection of three milligrams of Nalline, a non-user's pupils will contract, a mild or moderate user's pupils will remain about the same size, and that the pupils of a person who is using a substantial amount of narcotics tending toward addiction will dilate.

In addition to Dr. Terry, the People called as experts Dr. Joseph Lamberti, a specialist in psychiatry, and Dr. William D. Perry, a specialist in internal medicine.

Each of the experts, including Dr. Terry, testified in substance that he had spent some time...