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Court of Appeal, Second District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Henry HALL, Defendant and Appellant.

Cr. 17251.

Decided: March 30, 1970

Richard S. Buckley, Public Defender, Herbert Barish and James L. McCormick, Deputy Public Defenders, for defendant and appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Melvin R. Segal, Deputy Atty. Gen., for plaintiff and respondent .

Appellant appeals from a conviction of violation of Health and Safety Code section 11501, the unlawful sale of heroin.


Viewed in the light most favorable to the judgment, the record discloses the following. On February 19, 1969, appellant sold .3 gram of heroin to W. D. McIntosh, an undercover officer of the Los Angeles Police Department. On that date, Officer McIntosh was directed by Royal Wilson, a narcotics addict and police informant, to appellant's house located at 1711 East 102nd Street in Los Angeles. At 10:10 a.m., Officer McIntosh and Wilson entered the house and inquired as to the possibility of purchasing heroin. In response to Wilson's request for a ‘dime bag’ of heroin, appellant handed him a balloon containing .3 gram of heroin which he passed on to Officer McIntosh. Wilson gave appellant a ten-dollar bill he had received from McIntosh. Two or three women and another man were present in the house at the time of the transaction.

Appellant was arrested at the same house about one month after the transaction. Appellant's defense is alibi. He testified that he was not at 1711 East 102nd Street at the time of the sale but was engaged in bookmaking activities at 109th and Wilmington. His testimony on cross-examination on race track conditions at the time of the crime, conditions very significant to a bookmaker, was proved false.

Issues on Appeal

Appellant contends the following: (1) it was improper for the prosecution to impeach appellant's testimony through introduction of a prior felony conviction; (2) an order compelling appellant to disclose alibi witnesses he intended to call violated his rights to effective counsel and his privilege against self-incrimination; (3) it was improper for the trial court to refuse to allow appellant to call alibi witnesses after his refusal to disclose them; and (4) the prosecution made improper comments in its final argument.

Prior Felony Conviction

At trial, appellant moved to exclude evidence that he had previously been convicted of a felony and that the nature of the felony was possession of heroin. The motion was not grounded upon any claimed infirmity in the conviction but was based upon appellant's contention that the disclosure of the conviction and its nature by way of impeachment would be inherently improper. The trial court denied the motion. The evidence of the prior conviction was used to impeach appellant's testimony.

Appellant now argues that the use of the impeaching evidence at trial was prejudicial error. California statutory and decisional law impels us to reject that argument. The Evidence Code specifically allows the introduction of a prior felony conviction for impeachment purposes. (Evid.Code § 788; People v. Smith, 63 Cal.2d 779, 48 Cal.Rptr. 382, 409 P.2d 222.) The nature of the conviction may be ascertained regardless of the similarity of the prior offense with that charged. (People v. Smith, supra; People v. Miller, 196 Cal.App.2d 171, 16 Cal.Rptr. 408.)

Disclosure of Alibi Witnesses

Over appellant's objection, the trial court granted respondent's motion to compel the disclosure of those persons appellant then intended to call as alibi witnesses. Appellant was warned that if he did not comply with the order, the trial court would sustain an objection to the introduction of the testimony of such witnesses.1 Appellant did not comply with the order. At trial, he offered to prove that two alibi witnesses, if called, would testify that while they were not aware of appellant's exact location on the day of the charged sale of heroin, they knew that normally appellant spent the morning hours in front of a house on 109th and Wilmington. The trial court sustained an objection to the testimony of the two witnesses by reason of appellant's failure to comply with its discovery order.

Appellant now contends that the discovery order of the trial court and the barring of evidence pursuant to that order constitutes prejudicial error. Controlling precedent requires that we reject the contention.

Pretrial discovery is recognized and approved in California as a valuable and constitutional procedure in criminal trials. The defendant in a criminal proceeding may properly be required to disclose the identity of witnesses whom he intends to call to testify affirmatively in his defense. (Jones v. Superior Court, 58 Cal.2d 56, 22 Cal.Rptr. 879, 372 P.2d 919.) The names of alibi witnesses are a proper subject of pretrial discovery. (People v. Dugas, 242 Cal.App.2d 244, 51 Cal.Rptr. 478; People v. Lopez, 60 Cal.2d 223, 32 Cal.Rptr. 424, 384 P.2d 16.)

The sanction here imposed by the trial court for disobedience of its discovery order is proper. Logic dictates that the power of a trial court to order discovery carries with it the power to impose an appropriate sanction if discovery is refused. The sanction of the barring of evidence of witnesses whose names are withheld in violation of a discovery order is a particularly appropriate one. It is directly related to the purpose of the discovery order, the prevention of surprise, and the encouragement of the ascertainment of the truth at trial.

Appellant argues that the order of the trial court and its enforcement violated his privilege against self-incrimination and deprived him of effective representation by his counsel. Neither argument is tenable. The order, as it was enforced, did not require that appellant disclose anything he did not wish eventually to disclose. Assuming for the purposes of argument that the Fifth Amendment and attorney-client privileges, under some circumstances, protect against the disclosure of the names of witnesses, the order here did not compel disclosure. To the contrary, it in effect required that if appellant intended to waive whatever privileges there might be by calling the witnesses at trial, he announced his waiver early enough in the proceedings so that they could be conducted fairly to all parties.

The facts of the case at bench distinguish it from Cantillon v. Superior Court, D.C., 305 F.Supp. 304, upon which appellant relies. Cantillon holds that counsel for a defendant in a criminal case cannot be held in contempt for refusing to obey a discovery order where to do so would violate his client's Fifth Amendment rights and the attorney-client privilege. That case does not, as does the one at bench, involve a discovery order which provides in effect that a defendant may not first avoid pretrial discovery by asserting a privilege and then take unfair advantage by waiving the privilege at the time of trial.

Nothing in the trial court's order deprived appellant of effective representation by his counsel. Appellant seems to contend that if his counsel had disclosed the names of his alibi witnesses, it would have been possible for the prosecution to obtain evidence that the alibi testimony was false. The right to effective representation by counsel, however, does not include a privilege insulating a party from the consequences of eliciting perjured or other false testimony.

Prosecutor's Argument

Appellant contends that the prosecuting attorney was guilty of misconduct because he ‘criticized defendant for not calling his witnesses whose testimony had been excluded.’ The argument ignores the record. No such comment was made by the prosecutor. He did refer to evidence in the record to the effect that other persons were at the house when appellant was alleged to have sold the heroin. He also commented on the failure of appellant to call any of those persons to testify to the fact that appellant was not there at the time of the alleged crime in spite of appellant's apparent familiarity with persons who frequented those premises. None of those persons can be said to be alibi witnesses. If they were at the place of the crime, they would be in no position to testify of their own knowledge that appellant was at a different place when the crime was committed. Comment on a defendant's failure to call logical witnesses is proper. (People v. Burns, 270 Cal.App.2d 238, 75 Cal.Rptr. 688; People v. Hardy, 271 Cal.App.2d 322, 76 Cal.Rptr. 557.)


Our examination of the record leads us to conclude that if any error was committed, it was nonprejudicial beyond a reasonable doubt. Appellant committed the crime of sale of heroin in the presence of a police officer. He tendered as a defense an alibi that was destroyed when he was cross-examined. His rejected offer of proof would not have established his alibi if the evidence contained in it had been accepted. At most, that evidence would have established that usually appellant was not present during the morning hours at the house where the crime was committed. The evidence would have fallen far short of stating that appellant was not in fact present the morning the crime was committed.

The judgment of conviction is affirmed.


1.  Due notice of the court's intention is conceded by appellant.

THOMPSON, Associate Justice.

WOOD, P. J., and GUSTAFSON, J., concur.