Shepherd v. Superior Court

• Citation: 17 Cal.3d 107,130 Cal.Rptr. 257,550 P.2d 161
• Decision Date: 11 June 1976
• Docket Number: S.F. 23334
• Court: United States State Supreme Court (California)
• Parties: , 550 P.2d 161 Mattie Guyton SHEPHERD, Individually and as Administratrix, etc., Petitioner, v. The SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; D. Lowell JENSEN, as District Attorney, etc., et al., Real Parties in Interest.

Page 257

130 Cal.Rptr. 257

17 Cal.3d 107, 550 P.2d 161

Mattie Guyton SHEPHERD, Individually and as Administratrix, etc., Petitioner, v. The SUPERIOR COURT OF ALAMEDA COUNTY, Respondent D. Lowell JENSEN, as District Attorney, etc., et al., Real Parties in Interest.

S.F. 23334.

Supreme Court of California In Bank.

June 11, 1976.

Lew M. Warden, Jr., San Leandro, for petitioner.

No appearance for respondent.

Russ, McConnell & Tarkington, Chris A. Tarkington, San Francisco, Patrick J. Becherer, Crosby, Heafey, Roach & May Oakland, Gordon, Waltz, DeFraga, Watrous & Pezzaglia and James A. Pezzaglia, Martinez, for real parties in interest.

SULLIVAN, Justice.

Petitioner Mattie Guyton Shepherd, individually and as administratrix of the estate of Tyrone Guyton, deceased, seeks a writ of mandate directing the entry of various discovery orders compelling answers to questions propounded in depositions and the production of things and documents (Code Civ.Proc., § 2034) in the underlying action for wrongful death.

Petitioner and her former husband, John Guyton (hereafter plaintiffs), commenced against real parties in interest City of Emeryville and certain of its employees (hereafter defendants) the underlying action for damages for the alleged wrongful death of their son Tyrone Guyton. The first amended complaint, filed on February 13, 1974, alleges in substance that on or about November 1, 1973, at a location in the City of Oakland, Tyrone Guyton--then 14 years of age--was caused to suffer death as a result of gunshot wounds inflicted by one or more of defendants Dale Phillips, Thomas Mierky, and William Mathews, all of whom were police officers employed by the City of Emeryville; that plaintiffs were uncertain as to which wounds were inflicted by which officers because (1) the officers had refused to answer any questions propounded in depositions relative to the event at issue on the ground that such answers would tend to incriminate them, although each had given statements on the matter to the Alameda County District Attorney, the Alameda County Grand Jury, and other investigative agencies, and (2) the district attorney had refused to institute criminal proceedings against the officers by way of complaint, and the grand jury, after hearing evidence presented by the district attorney, had refused to return an indictment against them; that claims of damage against defendants had been duly filed and had been rejected; that the gunshot wounds causing the death of Tyrone Guyton were inflicted negligently and with a willfull and wanton disregard for the life and safety of the deceased; and that plaintiffs were therefore entitled to compensatory and punitive damages.

A second cause of action, incorporating the essential allegations of the first, alleged as to defendants Mayor, Councilmen, and Chief of Police of Emeryville that they knew or should have known that defendants Phillips, Mathews, and Mierky 'were vicious and unfit to be given the responsibilities of law enforcement officers or to be permitted to be armed with and use deadly weapons,' but that said defendants negligently and with a wanton disregard for public safety employed and supervised the officers, and so proximately caused the death of Tyrone Guyton, entitling plaintiffs to compensatory and punitive damages.

A third cause of action, also incorporating the essential allegations of the first, alleged that one of the two projectiles found in the body of the deceased was fired as the minor lay prostrate on the ground, and that the officer who fired that shot--whose identity was uncertain for the reasons stated in the first cause of action--did so with the deliberate and premeditated intent to kill, and that the two remaining officers, together with certain fictitiously named defendants, negligently and wantonly permitted said officer to fire this shot, which proximately caused the death of the deceased, all of which entitled plaintiffs to compensatory and punitive damages.

The fourth cause of action, which incorporated essential portions of the first and second causes, alleged that the defendants referred to in the previously stated causes were acting within the scope of their authority as agents subject to the direction and control of the defendant City of Emeryville, entitling plaintiffs to compensatory and punitive damages against said city.

As suggested in the complaint, it appears that following the incident which resulted in the death of Tyrone Guyton and Oakland Police Department and the District Attorney of Alameda County conducted an extensive investigation. They collected all the physical evidence and conducted several scientific tests, interviewed all persons who were found to be anywhere near the vicinity of the incident, and took photographs of the scene. In the course of this investigation defendant police officers gave several oral and written statements. All of this evidence, along with the personal testimony of the officers, was presented on two occasions to the Alameda County Grand Jury as well as once to a federal grand jury, but no indictments were returned. The district attorney has announced that the investigation on the part of his office is closed and that no further action will be taken by him.

In the course of pretrial discovery plaintiff Mattie Guyton Shepherd ¹ sought the depositions of the three defendant police officers; each of them, however, invoked his privilege against self-incrimination and refused to answer any questions relative to the incident. She also secured the issuance of subpoenas duces tecum against a captain and the Chief of the Oakland Police Department and against the district attorney in order to obtain the materials and information in their possession; apparently it turned out that all of the items sought were then in the possession of the district attorney, and the latter asserted various privileges and statutory protections in refusing to deliver them. Finally she sought to obtain photographs of defendant police officers in the clothes worn by them on the night of the incident so that she could use such photographs in interviewing of witnesses; the officers, however, refused to be so photographed without a court order.

Her discovery efforts being thus frustrated, plaintiff proceeded to seek orders pursuant to section 2034 of the Code of Civil Procedure compelling answers, production of things, and sanctions against defendants and the district attorney. Voluminous memoranda by all parties to the motions followed, and after a hearing the trial court made an order which essentially denied all relief. As reflected in its written notice of ruling, the court ordered specifically: (1) that the motion for an order to require the district attorney to produce the documents, records, and tangible objects sought under the subpoena duces tecum directed to him was denied 'without prejudice to Plaintiff in seeking access to have examination made of weapons, ammunition remnants or other tangible instrumentalities employed at the time of the shooting in question, provided a proper showing of the identity and the need therefor is made and appropriate arrangements for the safeguarding and preservation of such items are afforded'; (2) that the motion for an order directing the district attorney to answer further questions at depositions was denied; (3) that the motion for an order directing defendant police officers to answer questions 'to which they have, or may, assert a privilege against self-incrimination under the U.S. Constitution, the California Constitution or Section 940 of the Evidence Code' was denied; (4) that the motion for an order permitting plaintiff to photograph defendant police officers was denied; and (5) that the motions for sanctions and the scheduling of further discovery were denied.

Plaintiff now seeks a writ of mandate directing the trial court to enter orders granting the relief sought in each of the motions involved in items (1) through (4) above. The district attorney has filed a demurrer and answer by way of return to the alternative writ, as has defendant Mathews; defendants Phillips and Mierky, represented by separate counsel, have filed an answer by way of return. (See Code Civ.Proc., § 1089; Cal. Rules of Court, rule 56(c).)

I

We first turn to the matters relating to defendant police officers.

It is contended that the court manifestly abused its discretion in refusing to enter an order precluding defendant police officers from asserting their privilege against self-incrimination in deposition proceedings. ² Although at one point in her petition plaintiff, in stating the contention, asserts that '(t)here is no privilege against self-incrimination in civil matters,' such a proposition is clearly without support in the law (see generally Witkin, Cal. Evidence (2d ed. 1966) § 917, pp. 851--852, and cases there cited), and we have therefore looked beyond this heading for a clearer statement of the contention sought to be raised. The argument, then, as we understand it, is as follows: Whereas the privilege of a criminal Defendant not to be called as a witness and not to testify (Evid. Code, § 930) may be invoked in a criminal proceeding without adverse evidentiary affects (see generally, Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106), the privilege of a Witness to refuse to disclose matter that may tend to incriminate him (Evid. Code, § 940) does not include this protection. Such a refusal on the part of a witness, although it may be properly sustainable on constitutional grounds, may also be accompanied by what plaintiff terms 'appropriate juristic consequences.' Such 'consequences,' it is urged, should have been made to attend defendant officers' invocation of the privilege in the course of the instant discovery proceedings.

Plaintiff correctly understands the legal principles underlying her contention. When a claim of privilege made on this...