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District Court of Appeal, Fourth District, California.

Walter M. BALLARD, Petitioner, v. The SUPERIOR COURT of the State of California, COUNTY OF SAN DIEGO, Respondent; The PEOPLE of the State of California, by their attorney, James Don Keller, District Attorney for the County of San Diego, Real Party in Interest.

Civ. 7954.

Decided: May 05, 1965

Gostin & Katz and Louis S. Katz, San Diego, for petitioner. James Don Keller, Dist. Atty., and Richard H. Bein, Deputy Dist. Atty., for respondent and real party in interest.

This is a petition for writs of mandate and prohibition seeking the return of certain evidence it is claimed was illegally obtained, to prohibit the introduction of certain evidence at the trial, certain pre-trial discovery, and to restrain the proceedings in the trial court pending the realization of the relief sought. Petitioner is a physician charged with rape under circumstances where the victim was prevented from resisting by his having administered an intoxicating narcotic or anesthetic substance to her.


By his motion to suppress evidence petitioner sought to have certain tape recordings and transcripts of them delivered to him or destroyed on the ground they were the product of an unlawful search and seizure; were obtained in violation of his privilege against self-incrimination; and were obtained in violation of his rights to counsel and silence, since at the time they were made the proceedings against him had reached the accusatory stage, and he had not been cautioned concerning such rights.

The tape recordings instigated and made by the police consist of conversations between the petitioner and the complaining witness. After the complaining witness made her report to the police, after she had been examined by a police physician, and after she had been given a lie detector test, the police requested her to visit the petitioner's office and ask him certain questions about the incident. A small microphone furnished by the police was placed in her purse which transmitted the conversations to a recording device located in a police car outside the office. On later occasions, after her clothing had been examined by police experts who found them to bear semen stains, the police had the complaining witness make telephone calls to the petitioner asking him questions concerning the incident, which were also monitored and recorded by the police. The recordings were made before the case was presented to the grand jury; the last recordings were made at 9:30 a. m., 9:45 a. m. and 1:35 p. m. on November 4, 1964. The grand jury started to investigate this matter at 8:02 p. m. the same day and returned an indictment later in the evening. A reading of the transcripts of these recordings contained in the grand jury transcript indicates petitioner made certain damaging admissions (e. g. the victim need not be worried about pregnancy as a result of the incident; she was mistakenly billed for his services; she should ignore the bill as there would be no charge).

This court cannot now determine the suppression of evidence question. The trial court's ruling on a motion to suppress evidence is treated as a ruling on an evidentiary issue at the trial, an incident of the trial itself rather than a determination in an ancillary proceeding. Since the trial court has jurisdiction to make an erroneous ruling as well as a correct one on evidentiary issues its ruling on a motion to suppress evidence cannot be reviewed either by a separate appeal or an extraordinary writ. (People v. Williams, 218 Cal.App.2d 86, 95, 32 Cal.Rptr. 277; People v. Justice Court, 185 Cal.App.2d 256, 258–259, 8 Cal.Rptr. 176.) Although under some circumstances a defendant is entitled to a writ of mandate ordering the return of illegally seized property other than contraband, which includes the right to have duplicates or records of such illegally obtained physical evidence returned (People v. Berger, 44 Cal.2d 459, 282 P.2d 509), the petitioner's motion to suppress in the instant case was not directed to the return of any property seized from him, anything in which he has a property interest either direct or indirect. Consequently, the petitioner is neither entitled to a review of the court's ruling on his motion to suppress at this time nor to exclusive possession of the tape recordings and transcripts thereof made by the police.


Much of what petitioner sought in his motion for pretrial discovery was granted by the trial court. At the hearing on the petition in this court the District Attorney conceded the petitioner was entitled to a transcript of the testimony of witnesses who appeared before the grand jury after the indictment had been returned, and the questions and answers of the complaining witness on the polygraph examination which had been given to her. The transcript of the grand jury proceedings was delivered in open court and the District Attorney agreed to supply the polygraph examination questions and answers to the defense within 10 days. The petitioner's right to discovery remains in dispute with respect to whether he is entitled to:

A. A psychiatric examination of the complaining witness to determine if she is psychotic or imagined the incident in question.

B. The names and addresses of witnesses who have been interviewed by the police or prosecution.

C. The opportunity to examine the results of the polygraph test that was given to the complaining witness by the police.


Petitioner cites some authority to the effect a complaining witness in a sex crime case should be subjected to a psychiatric examination. (Wigmore on Evidence, Vol. 3, § 924a, p. 460 and material cited therein; United States v. Hiss, D.C., 88 F.Supp. 559; People v. Cowles, 246 Mich. 429, 224 N.W. 387; State v. Wesler, 137 N.J.L. 311, 59 A.2d 834; 26 Ind.Law Journal 98.) There is no authority for such an examination in California. If the complaining witness is willing to submit to such an examination the prosecution cannot impede it. Indeed it would be improper for any person representing the State to suggest that any witness refuse to talk to the defense. (Walker v. Superior Court, 155 Cal.App.2d 134, 140, 317 P.2d 130.) Should the complaining witness be willing to undergo a psychiatric examination there would be no need for an order compelling the witness to do so. Assuming the court could make an order requiring a witness to submit to an examination (see Walker v. Superior Court, supra, where it is said to be well settled a court has no authority to compel a witness to submit to an interview to which the witness objects), where the witness is unwilling to be examined, and submits to the examination only upon the compulsion of a court order, the results of the examination would be questionable at best. We are also concerned with the invasion of the jury's province to evaluate the credibility of the witness by subjecting the witness' testimony to attack by expert opinion based on an interview conducted outside the presence of the jury; the prospect of a parade of experts with conflicting opinions confusing rather than enlightening the jury; the delay of and detraction from the trial of the guilt or innocence of the accused by an excursion into the mental state of the witness; and the reluctance to report such crimes which the proposed rule would instill in the timid or those unwilling to bare their souls to the world. In any event such a fundamental change in policy should come from the Legislature which has the investigative machinery to fully evaluate the proposal, specify its limits and its mode of operation. The trial court properly denied the petitioner's request in this respect.


At the hearing on the discovery motion in the trial court the District Attorney agreed to provide defense counsel not only with the names and addresses but the statements of witnesses he proposed to call. The matter appeared to be settled. Defense counsel's proper remedy should the prosecution fail to honor its commitment would be to apply to the trial court for an appropriate order or amendment to the order already made. The trial court gave every indication it would grant such a request if properly presented. Apparently petitioner also desires the names and addresses of persons other than prospective witnesses interviewed by the police. In the absence of some showing of good cause or authority establishing a right to this information such a general inquiry into the prosecution's case cannot be permitted (People v. Cooper, 53 Cal.2d 755, 770, 3 Cal.Rptr. 148, 349 P.2d 964).


There is no authority either establishing or denying the defendant's right to inspect the results of a polygraph examination given a complaining witness. The results of such an examination may be very important in the instant case in determining whether the accusatory stage had been reached at the time the officers tape recorded the petitioner's conversations with the complaining witness. (See People v. Dorado, 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361.) If the examination raised some doubt concerning the veracity of her report to the police it would tend to show the conversations were recorded during the investigatory stage of the case. If the results of the polygraph examination did not raise such doubt they would tend to show the officers were convinced of petitioner's guilt, the proceedings had ceased to be a general inquiry into an unsolved crime and the officers had focused their attention on the petitioner. Whether the results of the polygraph examination would be admissible for the purpose of establishing the officers' state of mind at the time the conversations were recorded (see People v. Aragon, 154 Cal.App.2d 646, 658, 316 P.2d 370) and under what circumstances they may be admitted, we need not now decide. It is possible neigher party will offer them in evidence, and in any event inadmissibility is no bar to discovery. (People v. Cooper, supra, 53 Cal.2d 755, 770, 3 Cal.Rptr. 148, 349 P.2d 964; Funk v. Superior Court, 52 Cal.2d 423, 340 P.2d 593; Walker v. Superior Court, supra, 155 Cal.App.2d 134, 141, 317 P.2d 130; Louisell, Modern California Discovery [1963], § 13.05, p. 408.)

Discovery in criminal cases is a creature of court decisions; the rules of Civil Procedure are inapplicable (People v. Lindsay, 227 A.C.A. 521, 549, 38 Cal.Rptr. 755). Under the decisions discovery has been permitted of a prosecution expert's reports concerning physical evidence (Walker v. Superior Court, supra, 155 Cal.App.2d 134, 317 P.2d 130). It is difficult to distinguish the defendant's right to discover the prosecution expert's opinion based on an evaluation of physical evidence from discovery of his opinion concerning a complaining witness' veracity based on an evaluation of physical responses recorded on a machine. Since the results of the polygraph examination appear to be the main objective information available to the petitioner on the officers' state of mind at the time the conversations were recorded, it would be difficult for petitioner to properly prepare for trial without them, and consequently, justice requires they not be denied him (Walker v. Superior Court, supra, 155 Cal.App.2d 134, 317 P.2d 130).

The People have argued the rule excluding incriminating statements made while the accused stands unadvised of his right to remain silent and right to counsel set forth in People v. Dorado, supra, 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361 cannot be applied to this case since custody is an essential prerequisite for its application, and the accused was admittedly not in custody at the time the conversations were recorded.

The Dorado case and the cases based on the Dorado rule have involved statements made at a time when the accused was in custody. The cases have held the Dorado rule applies when, among other things, the accused is in custody. It cannot be said that it has been authoritatively determined that custody is essential to the application of the Dorado rule since our courts have not yet been confronted with a case where the accused was not in custody. We do not believe custody is essential to the reason for or application of the rule. (Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246.) The critical determinations are whether the proceedings have ceased to be a general inquiry into an unsolved crime and begun to focus on the accused and whether the authorities have carried out a process of interrogation that lends itself to eliciting incriminating statements. In Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, one of the major premises for the Dorado decision, the court emphasized these two factors in its conclusion as follows:

‘We hold only that when the process shifts from investigatory to accusatory—when its focus is on the accused and its purpose is to elicit a confession—our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.’

(Id. 378 U.S. at p. 492, 84 S.Ct. at p. 1766. Quoted in People v. Dorado, 62 A.C. at p. 359, 42 Cal.Rptr. 169, 398 P.2d 361 and again at p. 360, 42 Cal.Rptr. 169, 398 P.2d 361 and in People v. Stewart, 62 A.C. 597, at pp. 602–603, 43 Cal.Rptr. 201, 400 P.2d 97.)

In Escobedo the court also said:

‘Petitioner had become the accused, and the purpose of the interrogation was to ‘get him’ to confess his guilt despite his constitutional right not to do so. * * * What happened at this interrogation could certainly ‘affect the whole trial,’ * * * It would exalt form over substance to make the right to counsel, under these circumstances, depend on whether at the time of the interrogation, the authorities had secured a formal indictment. Petitioner had, for all practical purposes, already been charged with murder.' [84 S.Ct. 1762.]

If our adversary system had begun to operate at the time these conversations were recorded, if petitioner had, for all practical purposes already been charged with rape, his right to counsel matured. In Massiah v. United States, supra, 377 U.S. 201, 84 S.Ct. 1758, the other major premise for the Dorado decision, the accused was not in custody at the time the incriminating statements were made, but the proceedings had clearly become accusatory since Massiah made the statements after his indictment by a grand jury. Although custody may bear weightily on the issue of whether the accusatory stage has been reached it is clear from Massiah that where the accusatory stage is otherwise evident custody is not essential. At the very least Massiah demonstrates the interest being protected is not one which is only deserving of protection when the accused is in custody; i. e. the reason for the rule is not dependent on custody. In People v. Stewart, 62 A.C. 597, 598, 43 Cal.Rptr. 201, 204, 400 P.2d 97, 100, the court said:

‘Normally ‘the investigation is no longer a general inquiry into an unsolved crime but has begun to forcus on a particular suspect’ (Id. at p. 490 [84 S.Ct. at p. 1765]) at that point when the police officers place that suspect under arrest. But Escobedo indicates that the accusatory or critical stage is not reached unless another event occurs: the police must ‘carry out a process of interrogation that lends itself to eliciting incriminating statements.’ (Id. at pp. 490–491, [84 S.Ct. at p. 1765]; see also Id. at pp. 485, 492, [84 S.Ct. at pp. 1762, 1766].) That process may be undertaken either before or after arrest.'

This language appears to indicate that while under most circumstances the onset of the accusatory stage is evidenced by an arrest, it may precede the arrest. Whether the proceedings here had ceased to be a general inquiry into an unsolved crime, but had begun to focus on a particular suspect at the time the conversations were recorded depends on the quality and extent of the information available to the authorities; the weight of the circumstantial evidence (People v. Dorado, supra, 62 A.C. 350, 359, 42 Cal.Rptr 169, 398 P.2d 361); whether the authorities had probable cause for an arrest (People v. Stewart, supra, 62 A.C. 597, 603–604, 43 Cal.Rptr. 201, 400 P.2d 97).1 Here before the conversations were recorded the authorities had the statement of the complaining witness, the results of her physical examination, the results of her polygraph examination, the statements of other witnesses, and with respect to the later conversations the results of an examination of her clothing bearing semen stains. The last recordings were made the very day the case was presented to the grand jury and the indictment returned. Under such circumstances it could be concluded our adversary system had begun to operate, and for all practical purposes the petitioner had already been charged with the crime. Thus, whether the accusatory stage had been reached depends at least in part on the credibility afforded the complaining witness' statement by the police. Some insight into whether the investigating officers believed the accusation of the complaining witness may be gained by looking at the results of the polygraph examination given to her. Whatever considerations may dissuade our courts from accepting the results of polygraph examinations into evidence, it is clear the police place great credence therein. Otherwise the examination of the complaining witness here would have been a meaningless ritual. We hold the petitioner is entitled to discover these results.

Whether the accusatory stage in fact was reached at the time the conversations were recorded we do not now decide. The issue before us is whether the accusatory stage could have been reached, not whether it, in fact, was reached. We leave the latter determination to the trial court. We have not even considered whether the process of interrogation was one which lent itself to eliciting incriminating statements since that issue has not been presented. In this connection we hold only that under the circumstances of this case the accusatory stage may have been reached at the time the incriminating statements were made.

Let peremptory writs of mandate and prohibition issue directing the respondent court to set aside its order denying petitioner an inspection of the results of the polygraph examination and to issue an order of inspection with the right to obtain copies; and restraining trial until compliance with the order.


1.  In People v. Dorado, 62 A.C. 350, 367, 42 Cal.Rptr. 169, 180, 398 P.2d 361, 372, footnote 9, the court said: ‘According to the Honorable John Nejedly, District Attorney of Contra Costa County, police officers of that county have advised suspects of their right to counsel ‘* * * at the moment that the police intended to arrest and felt that they had the facts sufficient to justify the arrest. * * *’ (Assembly Com., on Criminal Procedure, San Francisco, July 21, 1964, at pp. 15–16.)'

GERALD BROWN, Presiding Justice.

COUGHLIN, J., and FINLEY, J. pro tem.,* concur.