Waltreus, In re

• Decision Date: 15 January 1965
• Docket Number: Cr. 7932
• Citation: 397 P.2d 1001,62 Cal.2d 218,42 Cal.Rptr. 9
• Parties: , 397 P.2d 1001 In re Eugene R. WALTREUS on Habeas Corpus.
• Court: California Supreme Court

Page 9

42 Cal.Rptr. 9

62 Cal.2d 218, 397 P.2d 1001

In re Eugene R. WALTREUS on Habeas Corpus.

Cr. 7932.

Supreme Court of California, In Bank.

Jan. 15, 1965.

Rehearing Denied Feb. 24, 1965.

Morris Lavine, Los Angeles, for petitioner.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., William B. McKesson, Dist. Atty., and Samuel Mayerson, Deputy Dist. Atty., for respondent.

TRAYNOR, Chief Justice.

Petitioner was convicted of assault with a deadly weapon, using and placing an explosive in or near buildings with intent to destroy them, and conspiracy to commit such acts and to obtain property by means of threats of injury to the owner and his property. ¹ The judgment was affirmed (People v. Darnold (1963) 219 Cal.App.2d 561, 33 Cal.Rptr. 369), petitions for rehearing and for hearing by this court were denied, and the United States Supreme Court denied certiorari (Waltreus v. California, 376 U.S. 959, 84 S.Ct. 981, 11 L.Ed.2d 977). Petitioner now seeks a writ of habeas corpus on the ground, among others, that his conviction was obtained by perjured testimony knowingly used by the prosecution.

It is unnecessary to set forth in detail the evidence reported in about 3,500 pages of transcript. In brief, there was evidence that petitioner induced others to commit an assault upon Joseph Peskin and to place dynamite in his business establishments, that petitioner sought by such means to compel Peskin to return a business to Le Fave, and that petitioner conspired with others to commit the offenses and to obtain property from Peskin by means of threats to his person.

One of the principal prosecution witnesses, Brajevich, testified that at various meetings held at petitioner's office and elsewhere plans were made relating to the assault and the use of dynamite. Petitioner contends that Brajevich's testimony that he 'had been at the office of the petitioner when the alleged arrangements were made' was perjured and was known by the prosecution to be perjured. He alleges that other witnesses testified that petitioner had vacated the office before the dates of the asserted meetings. He also alleges that Brajevich testified that the meetings took place in one of two small offices at the rear of the main office, that no such small offices exist, and that this fact was known or should have been known by the officers investigating the case.

An application for habeas corpus on the ground of perjured testimony must not only set forth the facts that prove perjury and knowledge thereof by the prosecution, but must also show that those facts existed independently of the contraditions appearing at the trial. (In re Manchester (1949) 33 Cal.2d 740, 742, 204 P.2d 881.) It must also appear that the petitioner had no opportunity to present the alleged true matter at the trial; this is, that there was such suppression of the truth by the authorities that he was precluded from discovering it and using it at the trial. (In re Manchester, supra, 33 Cal.2d at p. 742, 204 P.2d 881; Green v. United States (1958) 1 Cir., 256 F.2d 483, 484; see In re Imbler (1963) 60 Cal.2d 554, 565, 35 Cal.Rptr. 293, 387 P.2d 6.)

The allegations regarding the asserted perjury by Brajevich do not warrant the appointment of a referee, for the matters relied on were either brought out at the trial or were known by petitioner at the time of trial and could have been shown.

In claiming that the prosecution knowingly presented perjured testimony, petitioner points to testimony by Brajevich concerning the identity of his employer and payments to a bail bondsman and to contradictory testimony by the purported employer and the bail bondsman. Such contradictions are insufficient to support petitioner's claim. (In re Manchester, supra, 33 Cal.2d 740, 742, 204 P.2d 881.)

A second claim of perjury involved the testimony of a witness named McLin that while listening on an extension telephone, he heard a number being dialed and then a conversation between Le Fave and a man who responded to petitioner's name. Petitioner alleges that a number cannot be dailed while an extension receiver is off the hook, that the prosecution therefore must have known McLin's testimony was perjured and that, when he asked McLin whether he was aware a telephone conversation could not be made if he had lifted the extension receiver, McLin admitted 'he had made a mistake.' It is clear from petitioner's allegations that he had an opportunity to present the alleged true matter at the trial.

A third charge of perjury was based on the testimony of a witness named Bulat. The petition alleges: Bulat testified at the grand jury hearing that he had witnessed several meetings of the defendants in petitioner's office. Before the trial he told petitioner and two attorneys that his testimony was false and that he had given the testimony because state officers had threatened to prosecute him for several burglaries unless he 'testified as the officers stated that he should.' On information and belief petitioner alleges that Bulat made an offer to the district attorney to correct his testimony and was told he should stand by his original story. ² At the trial Bulat, who was called as a prosecution witness, testified that he had 'heard certain conversations' betwen petitioner and other defendants at petitioner's office. Petitioner attempted to introduce evidence of the foregoing alleged facts to impeach Bulat's testimony, but an objection on the ground that a proper foundation had not been laid was sustained, and petitioner, who appeared in propria persona, did not know how to lay the necessary foundation. It is thus clear that petitioner now relies solely on matters known to him at the time of trial.

The petition next alleges that the prosecution suppressed evidence favorable to the defense, namely out-of-court statements by Brajevich that were inconsistent with his testimony at trial. According to the petition, an attorney informed petitioner before trial that a member of the district attorney's staff told him that Brajevich had lied to the grand jury in order to secure an indictment and had made tape recorded statements to the police contrary to his testimony before the grand jury, and that if petitioner could obtain the statements or the tapes 'it would probably win his case.' Petitioner sought to subpoena the statements, but the officials denied that such statements existed, and his motion for pretrial discovery of the statements was dismissed. At trial, however, an officer admitted in response to petitioner's questions that he had 'the documents' containing Brajevich's statements. A document of over 100 pages was then brought into court, but petitioner was allowed to see only one and one-half pages. As the opinion on appeal shows, the trial court was satisfied that it did not relate to the charges in the indictment. In denying a motion for a new trial the court stated that the report contained information furnished by Brajevich 'relating to offenses in other counties as well as in this county, which had nothing at all to do with the case.'' On appeal it was concluded that the court did not err in refusing to permit inspection of the rest of the document. (People v. Darnold, supra, 219 Cal.App.2d 561, 579-582, 33 Cal.Rptr. 369.)

A defendant can compel the People to produce statements of prosecution witnesses relating to the matters covered in their testimony. (Funk v. Superior Court, 52 Cal.2d 423, 424, 340 P.2d 593; People v. Chapman, 52 Cal.2d 95, 98, 338 P.2d 428; People v. Riser, 47 Cal.2d 566, 586, 305 P.2d 1, cert. den. 353 U.S. 930, 77 S.Ct. 721, 1 L.Ed.2d 724.) When, however, the documents contain matters unrelated to the defendant's case whose disclosure would interfere with effective law...