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District Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Emil John CROVEDI, Defendant and Appellant.

Cr. 172.

Decided: March 03, 1966

Max Solomon, Los Angeles, and Burton Marks, Beverly Hills, for appellant. Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Ronald H. Tochterman, Deputy Atty. Gen., Sacramento, for respondent.

By a grand jury indictment the defendant-appellant, Emil John Crovedi, was charged with the crimes of conspiracy to commit grand thefts in violation of Penal Code, section 182; grand theft in violation of Penal Code, section 487; and burglary of the second degree in violation of Penal Code, section 459. Defendant was tried jointly with a codefendant, Leone Thomas Riccio, before the court and a jury. Upon ample evidence, the sufficiency of which is not challenged by this appeal, defendant was found guilty on all counts. Sentence was imposed for the crime of grand theft. Defendant's motion for a new trial having been denied, he brought this appeal from the judgment.

The theory of the defense was that this defendant acted under duress, in fear of one Guy Phillip Mendolia, who was deceased at the time of trial. In his opening statement, defendant's original trial counsel, Morris B. Chain, told the jurors that the evidence would show that Crovedi had been convicted of a prior felony, namely, stealing merchandise in interstate commerce; that the defendant agreed to drive the getaway car involved in the burglary of a jewelry store and that he did, in fact, drive such car; that after his arrest and while he was free on bail, and at the request of Mendolia, he agreed to transport stolen jewelry to Chicago and deliver it to a ‘fence’; that he was arrested at the airport with the stolen jewelry in his possession; that the defendant helped and assisted in the jewelry store burglary and was therefore a principal under California law; but that he acted throughout under duress and in fear of Mendolia. Thus, all of the material elements of the crimes with which defendant was charged were admitted freely and in detail during his counsel's opening statement to the jury, and evidence thereafter adduced amply supported such admissions. The only question for the jury's consideration as to this defendant was whether or not the defense of duress was available to him. The record discloses that evidence of duress was weak and the jury rejected that defense, finding the defendant guilty as charged.

The primary issues presented by this appeal are these: that the defendant was denied effective assistance of counsel; denial of a fair trial by reason of unfavorable publicity available to the jurors; the erroneous admission into evidence of extrajudicial statements of co-conspirators; error in giving and refusing to give instructions; and denial of discovery of the defense.

The Facts

Since the sufficiency of the evidence to support the judgment is not challenged, the facts may be briefly stated. The evidence shows that defendant was a member of a conspiracy, formed in Chicago and continued and consummated in California. The purpose of the conspiracy was to commit a series of jewel thefts. To that end the conspirators procured three cars registered under fictitious names and specially equipped with sirens, cutoff switches to dim rear lights, and high-powered engines. On January 26, 1964, the Wickersham Jewelry Store in Bakersfield was entered and watches were stolen. Defendant admitted that he acted as lookout and drove the getaway car for this burglary. On February 10, 1964, jewelry was stolen from the automobile of Bernard Dube, a wholesale jewelry salesman. On February 14, 1964, jewelry was stolen from the automobile of William Beasley, a manufacturer's representative in the jewelry field. On July 22, 1964, jewelry was stolen from a jewelry store owned by one Cosmo Autobelli, in North Hollywood. All of these thefts, except the Dube theft, were committed by means of a distinctive modus operandi involving an unusual method of entry, referred to as the ‘straight pulling’ method. A special tool, referred to as ‘nippers' or ‘pinchers' is placed behind the external lip of a lock cylinder and manipulated in such a way as to strip the threads of the cylinder and thus permit its removal.

As to the Dube theft, Mr. Dube parked his car and left it in Inglewood. He did not lock the car door. He left jewelry samples of the approximate value of $15,000 in the trunk, which was locked. The car was stolen and subsequently recovered. It had not been ‘hot wired,’ so apparently a key had been made and used to start it. The lock on the trunk had been broken and the jewelry samples were missing.

Defendant was arrested on February 21, 1964, and was released from custody on bail on February 24, 1964. On July 25, 1964, the defendant was arrested at the International Airport in Los Angeles. His luggage, which had been checked, was recovered and searched, and jewelry taken in the Autobelli theft was found. Defendant testified that this jewelry was given to him by Mendolia with instructions to deliver it to a friend who would meet him at the airport in Chicago.

Argument and the Law

Defendant first contends that he was denied the effective aid of counsel at the trial. His arguments in support of the contention fall into two categories: First, that the court appointed counsel for the defendant after his retained counsel sustained a heart attack during the course of trial, over the objection of both the appointed counsel and the defendant. Second, that the court abused its discretion in refusing to grant a continuance for a period of time sufficient to enable appointed counsel to prepare for the defense. To place the contention in focus, it will be necessary to advert to the facts relating to the appointment of counsel. At some time after his arrest and prior to the commencement of trial, the defendant retained Morris B. Chain, an attorney, to defend him. Subsequent to the retainer, Milton M. Younger, an attorney, entered into a partnership relation with Mr. Chain. Trial commenced on December 1, 1964. Mr. Chain conducted the defense of the appellant through December 4. On December 5th, a Saturday, Mr. Chain sustained a heart attack and was hospitalized. On the following Monday, Mr. Younger appeared in court and requested a two-week continuance to afford the treating doctor an opportunity to complete a diagnosis and report a prognosis on Mr. Chain's condition. The motion, unopposed, was granted. The jurors were ordered to return to court on December 21st. Preparation of a reporter's transcript of proceedings at the trial up to that time was ordered by the court. After granting the motion for a continuance, the trial judge stated:

‘* * * and Mr. Younger, I trust that in the interim either you will be able to ascertain your correct position or shall be able, ready to proceed to the continuation of this case through Mr. Chain, or do whatever arrangements become necessary in the interim.’

On December 14th, Mr. Leddy, the assistant district attorney, after talking with Mr. Chain and ascertaining that the latter would be unable to proceed with trial on December 21st, telephoned Mr. Younger and advised him that the court expected to proceed with trial on the date set and suggested that, if Younger did not expect to represent Crovedi that he advise the defendant to make arrangements for counsel other than Mr. Chain. On December 18th another conversation ensued between Leddy and Younger in which Leddy told Younger that the court was going to appoint him as counsel for the defendant, and again suggested that Younger contact the defendant.

On December 21st, Mr. Younger again appeared in court and advised the trial judge that he was not appearing in behalf of the defendant nor in behalf of Mr. Chain but was appearing as a courtesy to the court. He proffered a medical report which indicated that Mr. Chain would be able to return to part-time office activity in January, with courtroom work contemplated for the middle of February 1965. He asked for a continuance of from six to eight weeks to permit the defendant to be represented by his retained counsel. Over vigorous objections of Mr. Younger and the objection of the defendant, the trial judge appointed Younger to represent the defendant during the remainder of the trial. The defendant was adamant in his position that he wanted Mr. Chain to represent him. When asked by the trial judge if the defendant desired Mr. Younger to defend him, he stated, ‘Your Honor, I paid Mr. Chain to defend me. I want Mr. Chain to defend me.’

After a discussion with Mr. Younger, Mr. Crovedi stated:

‘MR. CROVEDI: Your Honor, I feel that I want Mr. Chain.

‘THE COURT: Well, Mr. Crovedi, I would be quite happy to have Mr. Chain represent you if he were physically able.

‘MR. CROVEDI: That's the way I feel about it.’

The following also occurred:

‘MR. YOUNGER: Mr. Crovedi, have you announced your position?

‘MR. CROVEDI: No, I haven't. I told the Court I wanted Mr. Chain, that's my position, and that's the way it's going to stay.’

The court then appointed Mr. Younger as counsel for the defense. Mr. Younger asked for a continuance of six to eight weeks within which to prepare. The court stated that since Younger was a partner of Mr. Chain and familiar with the case and had the facilities of Mr. Chain's office at his disposal, and the benefit of Chain's file, and since the transcript of the first four days of trial was available and could be read in a matter of hours, a one-week continuance would suffice. He ordered the matter continued until December 28th.

In support of his contention that the trial court erred in appointing counsel other than counsel of his choice to represent him during the course of trial, the defendant relies upon Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Powell v. State of Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158; Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed.4; Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448; and House v. Mayo, 324 U.S. 42, 65 S.Ct. 517, 89 L.Ed. 739. Those cases are not in point, although they deal with the right of a defendant to have counsel during criminal proceedings, and the right of an accused to have ‘a fair opportunity to secure counsel of his own choice.’ (Power v. State of Alabama, supra.) Defendant also refers to People v. Douglas, 61 Cal.2d 430, at pages 434–436, 38 Cal.Rptr. 884, at page 886, 392 P.2d 964, at page 966, where the court said:

‘The right to trial counsel is guaranteed by the Sixth Amendment, which is applicable in criminal trials in the state courts [citation], and by section 13 of article I of the California Constitution. * * * Meaningfully applied, the right to counsel includes the opportunity to receive ‘effective aid in the preparation and trial of the case.’ * * *

‘* * *

‘Of course, a continuance may not be denied if to do so would deprive counsel of reasonably adequate time to prepare a defense. [Citations.]’

What defendant omits from his quotation is this:

‘Of course, the right to counsel may not be used to subvert the orderly and efficient administration of justice [citations], and its utilization as a tool for dilatory purposes may not be permitted.’ (P. 435, 38 Cal.Rptr. p. 887, 392 P.2d p. 967.)

Defendant also argues that when the lack of counsel is excusable, refusal to grant a continuance may be the equivalent of the denial of the right of representation by counsel of one's choice and is then reversible error. (People v. Simpson, 31 Cal.App.2d 267, 272, 88 P.2d 175; People v. Manchetti, 29 Cal.2d 452, 456, 175 P.2d 533.)

Defendant also relies upon In re Masching, 41 Cal.2d 530, 534, 261 P.2d 251, and People v. Palmer, 188 Cal.App.2d 819, 826, 10 Cal.Rptr. 694, for the proposition that illness of a defendant is a good excuse for delay in obtaining counsel during a period which would otherwise be sufficient. It is argued that illness of counsel should compel the same result.

The Attorney General concedes, as he must, that the right to assistance of counsel includes the right to effective assistance, and the right of counsel to a reasonable opportunity to prepare the defense. The question is whether a reasonable opportunity, or a reasonable time to prepare was afforded defense counsel. What is a reasonable time is a matter resting largely in the discretion of the trial court. It depends upon the nature of the crime charged and the intricacies of the defense sought to be established. Each case must stand on its own particular facts. (Avery v. State of Alabama, 308 U.S. 444, 446–447, 60 S.Ct. 321, 84 L.Ed. 377; People v. Douglas, supra, 61 Cal.2d 430, 435, 38 Cal.Rptr. 884, 392 P.2d 964; People v. Shaw, 46 Cal.App.2d 768, 773, 117 P.2d 34; Joseph v. United States, 321 F.2d 710, 712–713 (9th Cir. 1963).)

In this case the crimes charged were complex, especially with reference to the conspiracy count. But the defense of duress removed substantially all of the complicated issues from the case. The defense, as outlined in Mr. Chain's opening argument to the jury and as actually presented by defense witnesses, admitted defendant's participation in the Wickersham theft but claimed the defense of duress. Thus, insofar as this defendant was concerned, the disputed issue for the jury's consideration was whether he acted under coercion or compulsion sufficient to constitute legal duress. The only possible witnesses who could establish duress were the defendant, if he took the stand, and any persons who had heard threats directed to the defendant by Mendolia. Mr. Younger was notified informally that the court intended to appoint him on December 18th, and he was formally appointed on December 21st. He thus had ten days' informal notice and one week after his appointment. The trial apparently consumed fourteen days thereafter and there was additional opportunity to supplement his preparation as the trial progressed. (cf. People v. Douglas, supra, 61 Cal.2d 430, 436, 38 Cal.Rptr. 884, 392 P.2d 964.) Of the 512 pages of transcript covering the trial prior to his appointment, approximately one-half of the first day was devoted to legal arguments and opening statements; and approximately one-half of the fourth day was devoted to a voir dire examination out of the presence of the jury concerning the legality of a search of the home of Riccio, the codefendant, an issue raised by the latter's attorney, and in which Mr. Chain, defendant's then attorney, manifested no interest. Much of the remainder of the testimony adduced during the first four days of trial was as to undisputed facts.

For comparison, in Avery v. State of Alabama, supra, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377, a death penalty case, defense counsel had three days within which to prepare and the Supreme Court held that denial of a continuance granting additional time did not constitute a deprivation of effective assistance of counsel. In People v. Maddox, 65 Cal.App.2d 45, 149 P.2d 739, where the law partner of defendant's counsel appeared in court and requested a continuance of one day on the ground that counsel was engaged in another case, it was held that denial of the motion was not an abuse of discretion, where the defendant had had several previous continuances.

The Attorney General also points out that defendant has made no showing of prejudice. He does not contend that Younger might have obtained additional witnesses, discovered new evidence helpful to the defense, or otherwise been able to present a stronger defense, if additional time had been granted. As was stated in Joseph v. United States, supra, 321 F.2d 710, 712:

‘While no such showing of prejudice is necessary when no time [for preparation] is granted, we think it material in determining how much time is ‘sufficient’, once time has been obtained.'

And in Avery v. State of Alabama, supra, 308 U.S. 444, at page 452, 60 S.Ct. 321, at page 325, the Supreme Court said:

‘That the examination and preparation of the case, in the time permitted by the trial judge, had been adequate for counsel to exhaust its every angle is illuminated by the absence of any indication, on the motion and hearing for new trial, that they could have done more had additional time been granted.’

In People v. Manchetti, supra, 29 Cal.2d 452, 175 P.2d 533, defendant had retained an attorney Coghlan. On the day set for trial Coghlan had another trial scheduled, and was unable to obtain a continuance. On the morning of the Manchetti trial an attorney Andrews appeared and advised the judge of Mr. Coghlan's situation, stated that he was totally unfamiliar with defendant's case and requested a continuance for Mr. Coghlan. A continuance was refused, the court proceeded with the selection of a jury and then recessed until the next day so Andrews could familiarize himself with the facts of the case. The following day, a Friday, May 25th, both Andrews (expressly) and the defendant (impliedly) objected to Andrews' representing the defendant but the court ordered Andrews to proceed with the trial. On Monday, May 28th, Mr. Coghlan appeared and thereafter represented the defendant. The Court said, at page 458, 175 P.2d at page 537:

‘The refusal of Mr. Andrews' request for a continuance in itself was not a denial of defendant's right to be represented by counsel of his choice for defendant had no absolute right to be represented by a particular attorney. It is clear, as the People urge and as this court stated in People v. Dowell, 1928, 204 Cal. 109, 113, 266 P. 807, 809, ‘That the courts cannot in every case await the covenience of some attorney before they can function. Reduced to its lowest terms, this would allow a popular attorney to have the courts marking time to serve his convenience.’ On the other hand, not only the convenience of court and prosecution but also the right of persons accused of crime must be considered. The trial court should exercise care not to handicap to his prejudice a defendant who is not responsible for the fact that his counsel is engaged in trial of another case. [Citation.] Where this court has upheld the denial of a motion for continuance made on the ground that the attorney of defendant's choice was engaged in another trial, it has been careful to point out that defendant was given adequate opportunity to obtain other counsel.'

In People v. Goldenson (1888) 76 Cal. 328, 343, 19 P. 161 (disapproved on other grounds in People v. Stokes, 103 Cal. 193, 197, 37 P. 207, 42 Am.St.Rep. 102), a continuance of five days to allow new counsel appointed by the court to prepare the defense was upheld. In People v. Russell, 156 Cal. 450, 455, 105 P. 416, on the day set for trial, the defendant appeared alone and asked for a continuance, stating his retained attorney was trying a case in Seattle. The attorney had represented the defendant up to the point of trial. The court offered to appoint counsel for the defendant, but the defendant declined, insisting that his original attorney should be present. Defendant represented himself on the trial, but complained on appeal. The judgment was affirmed. In People v. Dorman, 28 Cal.2d 846, 172 P.2d 686, the defendant was charged with (and convicted of) first degree murder, robbery and kidnapping for the purpose of robbery. Counsel was appointed and subsequently the defendant retained counsel. Trial commenced seven days after his employment of private counsel, after a request for a continuance of one week was refused. The trial consumed ten days; the prosecution called thirty-three witnesses, and the defense called three witnesses in addition to the two defendants. At page 852, 172 P.2d at page 690, it was said:

‘Considering the rights of the state as well as of the defendant, the time allowed for preparation was not unreasonable. The record discloses that the defendant was ably and energetically represented by counsel of his choice. Representation was not a mere formality, but was representation in fact. None of the defendant's substantial rights was denied him by the action of the trial judge in refusing to grant a further continuance when the case was finally called for trial. [Citations.]’

As is pointed out by the Attorney General, the record shows that Mr. Younger, a Stanford graduate who had been in practice for several years, conducted a vigorous defense. The verdict resulted, not from lack of preparation on the part of defendant's counsel, but from a wealth of evidence establishing guilt and a weak and unconvincing showing of duress.

Further, there were other factors which the court considered. The case had been tried before this jury for a period of four days and, as the court pointed out, a recess of two weeks awaiting the report of the doctor was bad enough but to recess for an additional month and a half would be unreasonable. On December 21st Mr. Chain was still incapacitated and confined in a hospital, and there was no certainty that the prognosis that he would be able to resume the trial in February would be fulfilled. The prosecution had induced a substantial number of witnesses, who resided beyond the reach of subpoena, to voluntarily attend the trial. Some of these witnesses were from Chicago. The record shows that other prosecution witnesses were brought from Los Angeles, North Hollywood, Richmond, Downey and Pasadena, all in California, and from Washington, D. C.

Trial by News Media

Defendant's contention that the trial court inadequately instructed the jurors not to read or listen to news media concerning the trial is without merit. The trial court denied two motions for a mistrial based on the fact that the trial was attracting wide attention in the news. Defendant relies upon People v. Lambright, 61 Cal.2d 482, 39 Cal.Rptr. 209, 393 P.2d 409. In that case the judge specifically instructed the jury that they had the right to read newspapers, listen to the radio and view television, but in this case the trial judge repeatedly admonished the jury to the contrary, but did adopt the realistic view that the jurors might inadvertently hear or see news comments. In such case the jurors were admonished not to consider such comments. This record discloses the following: At the commencement of trial and prior to the opening argument of the defense, the trial court advised the jury:

‘Also, it has come to the Court's attention that this case is receiving some degree of publicity in the various news media. I want to admonish the jurors that they are not to consider as evidence anything they read, see, or hear outside of this courtroom other than from the witnesses in the witness box or exhibits of one kind or another that are admitted in evidence, so please ignore anything you hear, see or read insofar as the trial of this case is concerned.’

Throughout the trial, at least thirteen admonitions were given, such as:

‘* * * I admonish you not to, to refrain as much as possible from reading anything of that nature or hearing it or seeing it, but if you do read, hear, or see you must place it out of your mind so far as the adjudication of this matter is concerned.’

‘Also, I wish to again caution you that you are to consider and weigh in this matter on those issues only those things which you hear from this witness stand or from the evidence admitted here in court by way of exhibits, and should you be exposed by any publicity, rumor and gossip or idly dropped words, you are to completely disregard them and place them out of your mind so that the matter here will be adjudicated only and solely upon legitimate evidence offered in Court and the law as I shall state it to you.’

‘Avoid all exterior matters such as newspapers, radio, television, concerning this case. If anything of that nature comes to you inadvertently you will place it out of your mind. * * *’

‘And again I would caution you not to read any newspaper or listen to any radio or television reports concerning this matter.’

The jury was adequately warned that it was not to read newspaper articles, view and hear television comments, or listen to radio broadcasts concerning the trial. (See People v. Jacobson, 63 A.C. 335, 341, 342, 46 Cal.Rptr. 515, 405 P.2d 555.)

Defendant also charges that the trial court erred in refusing to poll the jurors on the question of whether or not they had, in fact, heard or read news items regarding the trial. Again defendant relies solely upon Lambright, supra, 61 Cal.2d 482, at page 487, 39 Cal.Rptr. 209 at page 212, 393 P.2d 409 at page 412, where the court stated:

‘In the present case, however, the court's original error of allowing the jury to receive extrajudicial accounts of the trial was compounded by the refusal to poll the jury. Since the trial court expressly authorized the jury to read newspaper accounts of the trial, it is reasonably probable that some of the jurors did so and that their misconduct, even though innocent, affected the result. Accordingly, the error was prejudicial.’

Defendant's reliance is misplaced, for he overlooks or ignores the court's discussion which immediately preceded the language above quoted. At page 486, 39 Cal.Rptr. at page 212, 393 P.2d at page 412, the Supreme Court said:

‘In view of the court's erroneous instruction authorizing them to read newspaper accounts of the trial it was very likely that some jurors did read the article. Defendant's request to poll the jury was therefore proper. [Citation.] In a case where the jury is correctly admonished not to receive newspaper or other extrajudicial reports of the trial, it may be a proper exercise of discretion for the trial court to refuse to poll the jury regarding any specific news media account of the trial. [Citations.] In such a situation it may be presumed in the absence of a showing of misconduct that the jury heeded the court's admonition. [Citation.]’

The court properly and repeatedly admonished the jury not to read newspaper or other extrajudicial reports of the trial; no misconduct was shown; and there was no abuse of discretion in refusing to poll the jury. The general rule is that where, as here, the court has adequately admonished the jury on the subject, its refusal to have the jury polled must be upheld. (People v. Brac, 73 Cal.App.2d 629, 636, 167 P.2d 535; People v. Phillips, 120 Cal.App. 644, 652, 8 P.2d 228; see Annotation, 15 A.L.R.2d 1152, Poll of Jurors During Criminal Trial.)

Rulings Regarding Discovery

Defendant complains of rulings made by the trial judge during the course of trial relating to the defendant's right of discovery. The first incident involved an out-of-court agreement made between Mr. Leddy, the assistant district attorney, and Mr. Chain, defendant's original trial counsel, to the effect that the prosecution would provide the defense with the names of witnesses and copies of statements. After Mr. Younger was appointed ten witnesses testified. He moved to strike their testimony on the ground that he had not been furnished with their names and a statement of their anticipated testimony at least 24 hours in advance; and subsequently moved for a mistrial on the same ground. Both motions were denied, the court stating that there was no court order to that effect and that it would not impose sanctions based upon a private agreement between counsel. The court did make an order, applicable to both defendants, that Mr. Leddy furnish counsel with the names of witnesses he intended to call as well as any written statements, 24 hours before the witness was to be called. During the colloquy between counsel and court Mr. Leddy freely acknowledged that there was an informal agreement that he would provide Mr. Chain with the names of witnesses and any written statements he had; that on Sunday before the trial he telephoned Mr. Chain and advised him that he had the material and asked if Mr. Chain wished to come to his offices that afternoon to go over it. Mr. Chain was reluctant to call his secretary down on a Sunday and inquired if Monday would be all right. Mr. Leddy replied that he would be in trial but would have Mr. Cline go over the details with Mr. Chain. Leddy further stated that he did not personally participate in the conference but had instructed Cline to furnish Mr. Chain with any information he had as to witnesses who would testify for the prosecution.

It is elementary that ‘the state has no interest in denying the accused access to all evidence that can throw light on issues in the case * * *.’ (People v. Riser, 47 Cal.2d 566, 586, 305 P.2d 1, 13.) In a proper case the accused, before trial, may inspect statements of his own in the possession of the prosecution; real evidence or reports of state officers' examination thereof; and statements of anticipated prosecution witnesses (Yannacone v. Municipal Court, 222 Cal.App.2d 72, 74, 34 Cal.Rptr. 838.)

But such rights are not unlimited (People v. Parham, 60 Cal.2d 378, 381, 33 Cal.Rptr. 497, 384 P.2d 1001). And the question of the propriety of particular limitations rests largely in the discretion of the trial court. (People v. Ford, 60 Cal.2d 772, 793–794, 36 Cal.Rptr. 620, 388 P.2d 892; People v. Newville, 220 Cal.App.2d 267, 272, 33 Cal.Rptr. 816.) The right of discovery is a right which may be waived. (People v. Garner, 57 Cal.2d 135, 142–143, 18 Cal.Rptr. 40, 367 P.2d 680; People v. Young, 224 Cal.App.2d 420, 423, 36 Cal.Rptr. 672.) The defendant's right to discover evidence in the possession of the prosecution must be timely asserted by a proper motion for an order of discovery and reasonably pursued; otherwise, it will be deemed waived. (People v. Garner, supra, 57 Cal.2d 135, 142–143, 18 Cal.Rptr. 40, 367 P.2d 680; People v. Young, supra, 224 Cal.App.2d 420, 423, 36 Cal.Rptr. 672.) It is the rule that ‘The district attorney * * * was not required to seek out defendant's trial counsel and present the statements to him for inspection. Rather, it was the duty of defendant's trial counsel to go to the office of the district attorney and inspect the statements available to him there.’ (People v. Garner, supra, 57 Cal.2d p. 142, 18 Cal.Rptr. p. 44, 367 P.2d p. 684.) The record shows, without dispute, that Mr. Leddy performed his part of the private agreement by notifying defense counsel that the names of witnesses and any statements the prosecution had taken were available for inspection in his office and that it was defense counsel who failed to ‘reasonably pursue’ his right to so inspect the statements and obtain the names of witnesses.

Defendant next states as brief facts that a handwriting expert testified that he had sent a report to the district attorney and had refreshed his memory from some materials prior to trial; and that a request for the inspection of these documents was denied. (The record shows that the defense requested only a prior report dated in April.) It is also flatly stated that Mr. St.Vincent, an agent for the Federal Bureau of Investigation, testified that he had refreshed his memory from reports made by agents acting under his supervision; that by reason of an order of the Attorney General he could not produce this material, and the court denied a motion for an order that the witness produce the F.B.I. reports. Defendant then refers to cases dealing with the right of discovery during trial. It is well established that ‘Either before or during trial, an accused can compel the People to produce the written statement of a prosecution witness relating to matters covered in his testimony.’ (People v. Estrada, 54 Cal.2d 713, 716, 7 Cal.Rptr. 897, 898, 355 P.2d 641, 642.) He may compel disclosure, or production or inspection of documents, at the trial, on substantially the same conditions as govern pretrial discovery. (People v. Riser, supra, 47 Cal.2d 566, 305 P.2d 1.) And he may obtain documents used by a police officer to refresh his memory. (People v. Estrada, supra; People v. Silberstein, 159 Cal.App.2d Supp. 848, 323 P.2d 591.)

In this case no specific complaint is made; no prejudice is shown; no argument is advanced as to why this material was necessary to the defense; and the material is not well identified in the brief. It is not suggested that the report made by the handwriting expert, Mr. Sloane, in April prior to the trial was inconsistent with his testimony at the trial, or that the F.B.I. reports would be of assistance to defense counsel. Generally, a mere suggestion of error, without supporting argument and authority, may be disregarded. Furthermore, the record shows that, although the handwriting expert, Mr. Sloane, at first testified that in April of 1964 he had sent a report of his findings, after examining certain documents, to the office of the district attorney and to Mr. Johnson, an investigator, it developed that neither Mr. Leddy, nor Mr. Johnson, nor Mr. Sloane could find a copy of the report, and Mr. Sloane was subsequently of the opinion that he had not sent such a report. Mr. Younger, trial defense counsel, then appeared to be satisfied and requested no further orders of the court.

As to the testimony of Chester E. St.Vincent, the F.B.I. agent, relative to the arrest of defendant on February 21, 1964, the following occurred: Mr. St.Vincent testified, out of the presence of the jury, on the issue of probable cause for the arrest, that he had read F.B.I. memoranda implicating the defendant in the Wickersham theft and indicating state and federal warrants had been issued for the arrest of the defendant. Mr. Chain moved for production of the memoranda. The trial judge expressed doubt as to the power of the trial court to compel production of F.B.I. records. Mr. Chain then asked the witness, ‘If you are able to do so without violating the rules and regulations of the F.B.I. you will have that available, if possible?’ The witness replied, ‘If it's okay with the Attorney General and with our bureau, yes, sir.’ Subsequently Mr. St.Vincent resumed the stand for the purpose of again testifying about the February 21st arrest. Mr. Younger, then defense counsel conducted a voir dire examination out of the presence of the jury, and determined that the witness had refreshed his memory by reviewing F.B.I. reports concerning investigation of the case. He then asked, ‘Do the rules of your organization allow those reports to be produced in court and copied by counsel?’ and the witness replied, ‘There is a department order which forbids me to produce those in court.’ Mr. Younger then requested an order to produce, which was denied.

In a criminal case, the defendant's right to discovery of material in the possession of the prosecution applies only ‘Absent some governmental requirement that information be kept confidential for the purposes of effective law enforcement, * * *.’ (People v. Riser, supra, 47 Cal.2d 566, 586, 305 P.2d 1, 13.) Thus, trial courts are bound by orders of the United States Attorney General restricting release of material in the possession of the Justice Department. (People v. Parham, supra, 60 Cal.2d 378, 381–382, 33 Cal.Rptr. 497, 384 P.2d 1001.)

Escobedo-Dorado Rule

Defendant next complains that extrajudicial statements made by his codefendant Riccio, and by an alleged co-conspirator, but not a codefendant, one Harris, were erroneously admitted in evidence. It is claimed that the statements were made at a time when the declarants were in custody, the investigation had focused upon them, and they had not been advised of their rights to remain silent and to have the aid of counsel. The contention is without merit. First, all of the statements of which complaint is now made related only to activities of Riccio and Harris. None of them amounted to a confession; rather, they were exculpatory in nature insofar as the declarant of each was concerned. In none of the statements was this defendant mentioned; in none of them was he inculpated in any way.

The recent case of People v. Aranda, 63 A.C. 542, 47 Cal.Rptr. 353, 407 P.2d 265, holds that where there is a joint trial, a confession of one defendant which implicates a nonconfessing defendant, and which was illegally obtained, is inadmissible in evidence as against the nondeclarant as well as the confessant; that such a confession is not cured by an instruction limiting it only against the declarant; but since it constitutes an accusation against the nondeclarant, lacking the impact of a self-incriminatory statement, it is not prejudicial per se. By analogy to the development of the Escobedo-Dorado rule dealing first with confessions, then including within its purview incriminatory statements, and finally exculpatory statements, it would seem that the Aranda holding, which now speaks of a confession, would apply in the case of incriminatory statements of codefendants provided they implicated the silent defendant. Here, however, the statements of which complaint is made do not implicate this defendant. There is no case authority to date which sustains his right to complain. He has no such right.

Claimed Error in Instructing the Jury

The defendant lastly makes a broadside attack on the ground that the trial court failed to give certain instructions to the jury. He does not point to evidence which would support the giving of instructions refused by the court, nor to evidence which would require the court to instruct on its own motion. Only one reference is made to the transcript. No showing is made that error, if any was made, in the charge to the jury resulted in prejudice to the defendant.

It is the rule that prejudice will not be presumed on appeal from the fact that error was committed; it must affirmatively appear that the defendant was prejudiced thereby. (People v. McGann, 194 Cal. 688, 696, 230 P. 169.) The burden rests upon an appellant who claims error in failure to give appropriate instructions to show prejudice. Absent such a showing, it must be presumed that such failure was not prejudicial. (People v. Hickok, 198 Cal.App.2d 442, 446, 17 Cal.Rptr. 875; People v. Fink, 121 Cal.App. 14, 18, 8 P.2d 493.) Here, the defendant has failed to meet the burden and the point will be disregarded.

The complaint relates to the failure of the trial judge to give CALJIC No. 29–A.1, which tells the jurors that the evidence shows that the defendant made an out-of-trial admission, defines an admission, and instructs them that they must find that the alleged admission not only was made, but that it was voluntary; and CALJIC No. 29–D (Conformed), which states: ‘The law of this state requires that you view with caution any evidence that purports to relate an oral admission of the defendant.’ Defendant refers to testimony of an F.B.I. agent that the defendant had stated that he is used as a ‘wheel man’ (driver of getaway car). Even assuming that this statement is an oral admission insofar as the crimes of which the defendant is here charged are concerned, the voluntariness of the statement is not challenged, so CALJIC No. 29–A.1 is inapplicable, and the viewing with caution rule stated in CALJIC No. 29–D loses its force under the circumstances of this case where, in the opening statement of the defense, the jurors were told that defendant was, in fact, the ‘wheel man’ on the Wickersham burglary.

Defendant charges that the court erred in instructing the jury in the language of CALJIC No. 23 that neither the prosecution nor the defense is required to call all witnesses or produce all exhibits, when it failed to give the qualifying instruction that ‘If weaker and less satisfactory evidence is offered, when it appears that stronger and more satisfactory was within the power of the party, the evidence offered should be viewed with mistrust.’ This is a bald charge of error offered in a vacuum. In any event, where the sufficiency of the evidence to support the finding of guilt is not challenged, and defendant concedes in his brief that ‘it could be assumed that the jury would have rejected the defense of duress,’ it is difficult to understand how the so-called qualifying instruction, had it been given, would have been of any aid to the defendant.

The judgment is affirmed.

RALPH M. BROWN, Justice.

CONLEY, P. J., and STONE, J., concur.

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