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PEOPLE v. BLAIR (1979)

Court of Appeal, Second District, Division 5, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert G. BLAIR, Defendant and Appellant.

Cr. 32234.

Decided: February 16, 1979

Quin Denvir, State Public Defender, under appointment by the Court of Appeal; Charles M. Sevilla, Chief Asst. State Public Defender, and Donald L. A. Kerson, Deputy State Public Defender, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., William R. Pounders and Michael Nash, Deputy Attys. Gen., for plaintiff and respondent.

Appellant Robert G. Blair appeals from a judgment upon a conviction of two counts of first degree murder in violation of Penal Code, section 187.

On December 14, 1975, Alan and Renate Wellman were brutally murdered, execution-style, in their home on Scadlock Lane in the San Fernando Valley. From the very discovery of the bodies the following day, appellant was the primary suspect. Blair was under indictment by the federal grand jury in Pennsylvania for selling or receiving and concealing a stolen $50,000 United States Treasury Bill, and Alan Wellman was the prosecution's chief witness. The trial was to begin in mid-January of 1976. Appellant was already on federal parole for a 1970 conviction for dealing in securities, and a conviction under the new indictment could have resulted in a possible maximum sentence of 20 years.

The investigation to positively link appellant with the murders stretched between Los Angeles and the east coast, where appellant maintained two residences one in Baltimore, Maryland under the name Robert Bartee, and one in Philadelphia, Pennsylvania. In Los Angeles, at the Wellman residence, a gun belonging to a New Jersey state trooper was found, its one missing bullet having been fired into Alan Wellman's head. The New Jersey officer had reported the gun as stolen in June 1975 from his parked automobile in a lot in Philadelphia. Also in Los Angeles, Rocky Stroud, the owner of a motel about three miles from the Wellman residence, reported to police that on December 14, between 9 and 9:30 p. m., a black man had entered the motel office and asked for directions to Scadlock Lane. Stroud had shown him the way on a map in the office. The police subsequently showed Stroud different groups of mug shots on four occasions, from which he identified appellant in the second and third groups. A neighbor of the Wellman's observed two black men leaving the Wellman home between 10 and 10:30 p. m.

By early January FBI Agent Buchta had been informed of and told to cooperate with the Los Angeles homicide investigation. He then learned that appellant sometimes used the name “Bartee.” Buchta also knew the names of various friends and associates of appellant's. Wishing to establish some contact between appellant and Los Angeles on December 14 (as part of an investigation for obstructing justice) Buchta, in early January, asked United States Attorney Hannum for permission to subpoena certain telephone records. He was, as the court below commented, trying to find a lead. Hannum gave his O.K. Buchta asked Agent Wright to prepare subpoenas. The subpoenas, which were kept at the FBI office in Philadelphia, were typed out by Wright and served on the Philadelphia Bell Company in late January. They were returnable either to the grand jury on February 10 or directly to Agent Wright in which case an appearance was not necessary. Without objection, the telephone company gave the information to Wright.[FN1]

The FBI gave this information neither to the grand jury nor to U.S. Attorney Hannum. From the telephone toll records of an Elaine Vineyard, a known business associate of Blair's, it appeared that around December 14 calls had been made to or from certain numbers in Los Angeles and Oakland. This information was given to Officer Funk of the Philadelphia Police Department who, on February 4, passed it on to Sergeant Helvin of the Los Angeles Police Department.

The Oakland number was the Hyatt House. Officers went to the Hyatt House and were given the Bartee registration forms, billings, and records of telephone calls made from Bartee's room. Another of the calls made from Vineyard's telephone was to the Los Angeles Marriott. This led officers to data similar to that obtained from the Hyatt. The Hyatt and Marriott information, and the Avis car appellant used to get from Los Angeles International Airport to the Marriott, then provided the leads for the various credit cards used. Carte Blanche, Diners Club and American Express eventually furnished the Los Angeles Police Department with appellant's billings and credit applications. Also, it was known that two one-way tickets from Baltimore to San Francisco had been purchased in Philadelphia for a December 11 flight by “R. Bartee” and the tickets were used. Defendant also purchased three tickets from Oakland to Los Angeles on December 14, 1975, by use of an American Express card.

On May 13, 1976, appellant was arrested outside Philadelphia on a fugitive warrant issued by the United States Parole Commission. Three days later, Stroud was flown to Philadelphia to view a lineup and identified appellant as the man that had asked directions to Scadlock Lane on the evening of the murders.

On May 19th, an Officer Smith of the Philadelphia Police Department, narcotics division, applied for a search warrant for the home of Elaine Vineyard based upon information received from Detective Lawrence Gerrard of the homicide division. Detective Gerrard related to Smith that he had been informed by a reliable informant that drug trafficking was taking place in the Vineyard home. Based upon this information, a warrant was issued and three officers from narcotics, including Officer Smith, Detective Gerrard and another officer from homicide, executed the warrant. During the search, various narcotics were found, as well as a letter from appellant to his parole officer detailing with great specificity his whereabouts in Philadelphia on the date of the murders. Prior investigation had revealed, however, that appellant was not in fact in Philadelphia, as stated in the letter, but was in Los Angeles on December 14, 1975. Due to his participation in the homicide investigation, Detective Gerrard knew of the significance of the letter and seized it. Appellant had composed the letter, had it notarized and had taken it to his probation officer, John Smith. During their conversation, appellant brought up the subject of the murders, in which he denied complicity. He asked Smith to keep the letter, but Smith declined.

Appellant was arraigned and pled not guilty.[FN2] Prior to trial, appellant sought to exclude certain evidence under Penal Code section 1538.5, but this motion was denied, as was appellant's motion to suppress identification testimony. During the ensuing trial, the jury was unable to reach a verdict and a mistrial was declared. Appellant's motion for dismissal in the interest of justice was denied and a second trial date was set. The second jury found appellant guilty of two counts of first degree murder.

Appellant raises a number of issues on appeal. His first contention is that the identification techniques used with witness Rocky Stroud were so impermissibly suggestive, considering the totality of the circumstances, as to give rise to a substantial likelihood of irreparable misidentification. (People v. Faulkner (1972) 28 Cal.App.3d 384, 391-392, 104 Cal.Rptr. 625.) Although appellant has identified the proper standard by which such procedures are to be judged, we do not agree that the methods employed here violated his constitutional rights.

The burden is on appellant to show that the identification procedures were so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification and thereby establish that he was denied due process of law. (People v. Hawkins (1970) 7 Cal.App.3d 117, 122, 86 Cal.Rptr. 428.) Further, the trial court's determination that the pretrial identification procedures complied with due process will be sustained on appeal if supported by substantial evidence. (People v. Hall (1973) 34 Cal.App.3d 834, 843, 110 Cal.Rptr. 440.) Also, it has been held that “(t)o sustain his claim of a violation of due process, defendant must show that his trial resulted in essential unfairness ‘not as a matter of speculation but as a demonstrable reality.’ ” (People v. Hernandez (1970) 11 Cal.App.3d 481, 487-488, 89 Cal.Rptr. 766, 770, citing Adams v. United States (1942) 317 U.S. 269, 281, 63 S.Ct. 236, 87 L.Ed. 268.)

Appellant's primary objection to the identification procedures used is that Stroud was shown photographic lineups on four different occasions, three of which contained a photo of appellant. This appellant asserts amounts to a programming of the witness to recognize him as the man. However, a different picture was used in each of the three groups. Appellant's dress and overall appearance varied from photo to photo. In the second group (appellant's picture did not appear in the first group), appellant wore a mustache, short hair and a plaid sports shirt. In the third group, appellant was clean shaven, had longer hair and wore a suit and tie. In the fourth group, although the photo was apparently taken at the same time as the one in the third group, appellant in this shot wore dark glasses, as did all of the other five individuals in this group. From these three groups, Stroud picked appellant's picture in the second and third groups, even though he looked quite different, but did not pick him in the fourth group, although this picture was similar to that used in the third group except for the dark glasses. This would seem to indicate that Stroud was not being programmed, but was attempting to match the pictures of appellant honestly with his recollections of the man he had seen the night of the murders.

Appellant also complains that his picture was the only one repeated in each of the latter three groups. We do not feel that this factor alone would be enough to classify the identification procedures as impermissibly suggestive, particularly when, as here, different photos were used in each group. However, it is also not true that appellant's picture was the only one repeated. In the second and third groups one other individual's picture was not only repeated, but the exact same picture was used a copy. Stroud did not pick the repeated picture in the third group. The mere fact that the photo was repeated did not sway him. Further, he did not pick appellant's picture out of the fourth group in which appellant was wearing dark glasses. This would tend to disprove appellant's contention that Stroud was being programmed, and point instead to the fact that he was carefully looking over each group in an effort to pick out the man he had seen on the night of December 14th, not simply to recognize a face he had seen in other photographic lineups. We find nothing impermissibly suggestive in the procedure used in this case.

Appellant also contends that the corporeal lineup in Philadelphia was impermissibly suggestive in that appellant was the oldest, tallest and heaviest man in the lineup. Appellant points out that although he is 6'1 , and while it is true that another man in the lineup was also 6'1 , appellant is actually closer to 6'3 in his shoes. We would imagine that the other individual is subject to this same phenomenon, as would be the rest of the men. We do not find that the procedures used here “so undermined the reliability of the eyewitness identification as to violate due process.” (Foster v. California (1968) 394 U.S. 440, 443, 89 S.Ct. 1127, 1129, 22 L.Ed.2d 402.)

Appellant's next contention of any real substance is that the seizure of his “alibi letter” in Philadelphia was unconstitutional in that two homicide officers accompanied the narcotics officers in their search of Elaine Vineyard's house. However, this argument can be disposed of by using the very case upon which appellant relies to support his proposition of constitutional violation.

In United States v. Tranquillo (1971) 330 F.Supp. 871, the court held that the plain view doctrine, which allows officers to seize contraband or other evidence which comes into plain view during a valid search but which is not named in the warrant, cannot be used to validate a seizure when the search has “gone so far astray of a search for the items mentioned in the warrant that it (has) become a general exploratory search for any evidence of wrongdoing that might be found.” (United States v. Tranquillo, supra, at p. 876.) What Tranquillo requires is that the items not mentioned in the warrant be found during a good faith search. The officers in Tranquillo admitted that they were “keeping their eyes open for narcotics” during their search for labels from stolen suits. In this case, however, while Detective Gerrard initially testified that he accompanied the narcotics officers because he was looking for evidence in respect to the homicide investigation, he then qualified this answer by saying that he went along to look for narcotics, but was going to talk to Elaine Vineyard about the homicide investigation.

We conclude that the good faith standard was complied with in this case. The letter was found in the top drawer of a dresser in which was also found a large quantity of narcotics. Appellant concedes that if the narcotics officers had found the letter and recognized a nexus between it and a crime, they could have seized it under People v. Hill (1974) 12 Cal.3d 731, 117 Cal.Rptr. 393, 528 P.2d 1. It is the mere presence of the homicide officers that appellant claims turned into a general exploratory search. However, we disagree.

Besides the fact that the narcotics officers could have seized the letter under People v. Hill, supra, if they had recognized a nexus between it and a crime under People v. Murray (1978) 77 Cal.App.3d 305, 310, 143 Cal.Rptr. 502, they could have also called into the station to inquire as to its significance, or under Skelton v. People (1969) 1 Cal.3d 144, 158, 81 Cal.Rptr. 613, 460 P.2d 485, they could have brought with them any investigative reports made by the homicide officers that might have helped identify the letter's importance. Since the search in this case was not extended in either time or scope, but was a good faith search for the narcotics described in a valid search warrant, the alibi letter was properly seized under the plain view doctrine.

Appellant's next contention is that the telephone data was obtained by federal authorities in Philadelphia in violation of his Fourth Amendment rights and should have been suppressed prior to trial.[FN3] He asserts that under California law he had an expectation of privacy in the telephone records and that the gathering of this information without a search warrant constitutes an unreasonable search and seizure.

It is true that California's Supreme Court has provided more protection than the United States Supreme Court for a person's banking records. In Burrows v. Superior Court (1974) 13 Cal.3d 238, 245, 118 Cal.Rptr. 166, 529 P.2d 590, the California Supreme Court recognized an individual's reasonable expectation of privacy in his or her banking records. This rationale was extended a year later to telephone records in People v. McKunes (1975) 51 Cal.App.3d 487, 491-492, 124 Cal.Rptr. 126. The United States Supreme Court, on the other hand, expressly rejected such an expectation of privacy in banking records in United States v. Miller (1976) 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 and has not had the occasion to address the similar question in regard to telephone records.

The Burrows opinion, upon which the court in McKunes relied heavily, was based on the California Constitution (Art. I, s 13), not on the Fourth Amendment. McKunes did not say whether it based its holding on the California or United States Constitution. However, we do not feel that it matters which form of constitutional protection McKunes was invoking. Since the United States Supreme Court has decided that an individual does not have a reasonable expectation of privacy in banking records that could be vindicated by a Fourth Amendment challenge, we feel that it is this standard that must be applied to the telephone records here in question, as they were obtained by FBI agents through the auspices of a federal grand jury in Pennsylvania. We do not feel that we can expect federal agents working in a foreign jurisdiction to adhere to a higher constitutional standard than that laid down by the United States Supreme Court. Furthermore, it should be noted that even in McKunes, the securing of telephone records was held illegal there not only because the court found McKunes' reasonable expectation of privacy had been invaded, but also because not even a subpoena duces tecum was obtained, as was the case here.[FN4]

Appellant also argues that even if the records were obtained legally in Pennsylvania, California should exclude them because of the prevailing “governmental interests” standard in conflict of laws cases. In People v. Orlosky (1974) 40 Cal.App.3d 935, 115 Cal.Rptr. 598, the court concluded that evidence that was obtained during a search of Indiana to which the wife of the defendant had consented should be admitted during the trial in California notwithstanding the fact that Indiana law did not recognize the consent of the wife as a valid means of police gaining entry to conduct a search. The court said that even though Indiana considered the search to be illegal, California's interest in effectively prosecuting a major crime within its boundaries was superior to Indiana's interest in disciplining its police.

However, we do not find Orlosky to be directly applicable to a case where the search is invalid in California but valid in the state where the search took place. On the contrary, the primary purpose of the exclusionary rule, to deter illegal police conduct, would not be served in this case. The police in California are already well aware of the high constitutional standards within this state. The agents in Pennsylvania would not profit by the lesson exclusion would seek to teach them, as under federal standards, their conduct was legal. Therefore, we find that no legitimate purpose would be served by excluding evidence legally obtained in Pennsylvania.[FN5]

Appellant next contends that credit card information obtained in Los Angeles and showing appellant's movements via various airlines from the east cost to Oakland, and then to Los Angeles on the night of the murders, and then back to Baltimore the next day, was protected under Burrows v. Superior Court, supra, 13 Cal.3d 238, 118 Cal.Rptr. 166, 529 P.2d 590, and therefore illegally obtained.

We conclude that credit card companies do not stand in the same position as does a bank. As stated in Burrows (at p. 247, 118 Cal.Rptr. at p. 172, 529 P.2d at p. 596): “For all practical purposes, the disclosure by individuals or business firms of their financial affairs to a bank is not entirely volitional, Since it is impossible to participate in the economic life of contemporary society without maintaining a bank account.” (Italics added.)

This is not equally true as to credit cards, regardless of their ready availability to many and their too easy use. We also believe that the fact that credit card transactions represent unsecured debts from the borrower to the creditor, the card company stands within the ambit of a “non-neutral,” particularly when credit is being extended to a person under indictment for selling or receiving a stolen treasury note of $50,000. It would tax credulity to assume a card company would continue extending credit to a person under such circumstances. Any existing debt would, of course, be subject to considerable question as to collectibility and the “non-neutral” status created.[FN6] In this connection, whether a credit card company is classed as a “non-neutral” party in such circumstances, it is significant to note that the Legislature in the “California Right to Financial Privacy Act” (Gov.Code, s 7460, Et seq.) does not include credit card companies within the ambit of right to privacy of financial records. (See Gov.Code, s 7465.)

As respondent points out, the credit cards in question were all issued in appellant's pseudonym, Robert Bartee. This, respondent maintains, exposed the credit card companies to potential liability for unpaid bills. Appellant attempts to counter this argument by saying that it is “wild conjecture” to speculate that merely because the appellant used his alias he was going to defraud the companies. We disagree.

It would not be over cautious for the credit card companies to consider themselves potential victims of appellant's double identity. Furthermore, in People v. Superior Court (Abrahms) (1976) 55 Cal.App.3d 759, 772, 127 Cal.Rptr. 672, the court held that a bank need not suffer any actual loss to be considered “non-neutral” and thus be able to consent to a search of customer records. Here, although there was no actual loss at the time, lack of knowledge on the part of the credit card companies that they were extending credit to a person under a fictitious name would be enough for them to be considered potential victims and “non-neutral” within the meaning of Burrows.

Appellant also complains that the court failed to give the jury instructions on eye witness identification, which it had a duty to give Sua sponte. He contends that either CALJIC No. 291[FN7] or the type of instruction proposed in People v. Guzman (1975) 47 Cal.App.3d 380, 386-387, 121 Cal.Rptr. 69,[FN8] should have been given by the judge, although neither was requested by defense counsel.

This court recently had occasion to decide whether a judge has a duty Sua sponte, to give the type of instruction appellant here claims should have been given. In People v. Richardson (1978) 83 Cal.App.3d 853, 148 Cal.Rptr. 120, we addressed specifically whether a failure to instruct on the affirmative defense of mistaken identity amounts to a denial of the defendant's constitutional right to have the jury determine every material issue presented by the evidence within the meaning of People v. Stewart (1976)16 Cal.3d 133, 141, 127 Cal.Rptr. 117, 544 P.2d 1317. We held that it was not, since the defense of mistaken identity “is not such an independent affirmative defense; that is, it cannot be considered by itself, but must be considered with all the other evidence. Therefore, in the absence of a request for a specific instruction relating reasonable doubt to identification, it is sufficient that the jury be instructed generally to consider All the evidence in the case.” (Emphasis in original. People v. Richardson, supra, at p. 862, 148 Cal.Rptr. at p. 125.)

Here, although defense counsel did not request a specific instruction relating reasonable doubt to identification, the following instructions were requested and given: CALJIC 2.20 (credibility of witnesses; CALJIC 2.21 (discrepancies in testimony); CALJIC 2.22 (weighing conflicting testimony); CALJIC 2.27 (sufficiency of testimony of one witness); CALJIC 2.90 (reasonable doubt); CALJIC 4.50 (alibi); and a special instruction which read: “Evidence of photographic identification and line-up identification has been presented to you by the People. The defendant has offered to you evidence of unreliability and unfairness in the photographic and line-up procedures. You are to give to this evidence the weight to which you feel it is entitled.” We feel that these instructions adequately instructed the jury to consider all the evidence as required by People v. Richardson, supra, and that the judge had no duty to instruct them further. Certainly the combination of CALJIC 2.90 which instructed the jury that the defendant was entitled to an acquittal unless his guilt was shown beyond a reasonable doubt and the special instruction drawing the jury's attention to the possible unreliability of identification testimony served the same purpose that CALJIC 2.91 would have served and is probably the reason that 2.91 was not requested by defense counsel at trial.

Appellant next asserts that the court erred in denying his motion for judgment of acquittal, primarily because the people's case was based upon circumstantial evidence. However, this fact alone is not enough to support appellant's assertion that there was no solid evidence of appellant's guilt. Under Penal Code section 1118.1, a motion for judgment of acquittal, which tests the sufficiency of the evidence, requires the trial judge to determine “whether there is substantial evidence of the existence of each element of the offense charged.” (People v. Wong (1973) 35 Cal.App.3d 812, 828, 111 Cal.Rptr. 314, 326.) It is not true that circumstantial evidence cannot also be substantial evidence. In this case, although the evidence was circumstantial, we feel that the trial court was correct in holding that it was also substantial evidence of appellant's guilt.

While it is true that, as the trial judge noted, any one of the items of evidence would not be sufficient to convict appellant, that is not the question. The jury was to consider all the evidence before it in order to make its determination. The evidence consisted of the fact that appellant had a motive for wanting Alan Wellman dead and was in Los Angeles on the night of the murders in violation of his federal parole. The Wellmans were last seen by a friend who dropped them off at home at 8:30 p. m. after having dinner with them; appellant spoke to Wellman by phone about 8:30 p. m.; between 9:00 and 9:30 p. m. Rocky Stroud testified that he showed appellant the way to Scadlock Lane; between 10:00 and 10:30 p. m. a neighbor saw two black men leaving the Wellman home; the coroner estimated the time of death as between 7:00 p. m. and 10:00 p. m.; appellant left Los Angeles early the next morning. Once back in Philadelphia, appellant concocted an alibi defense and attempted to get his parole officer to accept the letter that falsely detailed his whereabouts on the weekend of the murders. Further, one of the murder weapons was traced to the Philadelphia area. We feel that this evidence, no matter how circumstantial, is sufficient for the judge to have denied appellant's motion for judgment of acquittal.

Next, appellant contends that the court abused its discretion in allowing collateral impeachment of him regarding possession of a concealed weapon. During direct examination appellant stated that he never carried a gun. This answer was in response to a question by defense counsel regarding appellant's habit of “either carrying or not carrying a gun while doing narcotic transactions.” On cross-examination by the district attorney, appellant answered in the negative to the question “Well, have you ever carried a concealed firearm?”

Subsequently, the district attorney sought to introduce evidence that appellant was stopped in his automobile in 1969 and was in possession of a concealed firearm. In response to defense counsel's objection that this was collateral impeachment, the court said that given the state of the record, the jury would unfairly have in their minds that appellant never carried a gun when this was untrue. The district attorney was allowed to reopen cross examination and the appellant admitted being in illegal possession of a concealed firearm in Philadelphia in 1969.

Respondent asserts that under People v. Gardner (1975) 52 Cal.App.3d 559, 125 Cal.Rptr. 186, the trial judge correctly allowed the district attorney to reopen cross examination in order to elicit the impeaching testimony. We agree.

In Gardner, the defendant was charged with compelling a woman by violence and threats of violence (striking her with his fists) to engage in acts of sexual intercourse and sex perversion. The appellate court held that the trial court had properly permitted the prosecutor to ask the defendant on cross-examination about his conviction of manslaughter of a woman in which he had used only his fists as weapons. The defendant's defense had been that the acts charged were wholly consensual and had stated on direct examination, “I don't threaten people. I never threatened anybody,” and “I am thirty-some years old, and I never first thought about . . . committing any kind of crime against a person.” (People v. Gardner, supra, at p. 561, 125 Cal.Rptr. at p. 187.)

Appellant relies in large part on People v. Lavergne (1971) 4 Cal.3d 735, 94 Cal.Rptr. 405, 484 P.2d 77. However, as pointed out by the court in Gardner, the evidence in this case sought to be rebutted was brought out by appellant on direct examination initially. In Lavergne, on the other hand, the damaging testimony was entirely elicited on cross-examination. Here, defense counsel opened the door by asking appellant if he ever carried a gun on his narcotics deals. On cross-examination, the district attorney generalized the questioning somewhat by asking if appellant ever carried a concealed weapon, period. We feel that for the information to be brought out in this manner, much in the way that it came out in Gardner, brings into play the point quoted in Gardner from People v. Beagle that “(n)o witness including a defendant who elects to testify in his own behalf is entitled to a false aura of veracity.” (People v. Beagle (1972) 6 Cal.3d 441, 453, 99 Cal.Rptr. 313, 320, 492 P.2d 1, 8.) Further, as the court said in Gardner, “(t)o exclude the impeaching evidence would permit appellant, without contradiction, to create just such an aura . . . .” (People v. Gardner, supra, 52 Cal.App.3d at p. 562, 125 Cal.Rptr. at p. 188.)

Finally, appellant claims that he was denied a fair trial by virtue of the exclusion of the tape recording of a statement given by a neighbor of the Wellman's, under hypnosis, regarding the physical description of the two black men she saw leaving the Wellman residence between 10 and 10:30 p. m. the night of the murders. Marie Engle was put into a hypnotic trance by Lt. Henderson, an expert in such techniques with the Los Angeles Police Department, and a tape recording was made of her recollections of the two men. Apparently her description was of two fairly small men, about 5'8 and weighing about 140 to 150 pounds.

Since Ms. Engle could not remember anything about the hypnotic session, the tape recording did not qualify as a past recollection recorded. The judge therefore ruled that it was inadmissible hearsay and excluded the tape.

Appellant concedes that the tape was hearsay not within an exception, but cites Chambers v. Mississippi (1973) 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 for the proposition that technical adherence to hearsay rules cannot be used to deny the defendant his right to a fair trial. However, without determining if that case is applicable or whether the exclusion of the tape was a mechanical hearsay ruling or not, we feel that the trial judge acted soundly within the discretion granted him by section 352 of the Evidence Code.

In People v. Modesto (1963) 59 Cal.2d 722, 732-733, 31 Cal.Rptr. 225, 231, 382 P.2d 33, 39 (overruled on other grounds in People v. Sedeno (1974) 10 Cal.3d 703, 721, 112 Cal.Rptr. 1, 518 P.2d 913) the court said that “the tape recording of defendant's statements while under hypnosis might properly have been excluded in the exercise of the trial court's discretion to weigh its probative value as part of the basis for the expert's opinion against the risk that the jury might improperly consider it as independent proof of the facts recited therein . . . .” In this case, the tape recording was not sought to be introduced into evidence as a basis for an expert's opinion, as Modesto indicates would be a valid use of such evidence, but was sought to be introduced as proof of the truth of the statements recited therein, the risk against which Modesto held the judge's discretion could protect. We feel that hypnosis has not yet risen above a useful investigative tool, as with the polygraph, which is also still considered too unreliable to be admitted into evidence. (See People v. Aragon (1957) 154 Cal.App.2d 646, 657, 316 P.2d 370; People v. Schiers (1971) 19 Cal.App.3d 102, 108-109, 96 Cal.Rptr. 330.)

The judgment is affirmed.

I concur with two mild caveats:

1. I have some doubt concerning the legitimacy of Detective Gerrard's participation in the execution of the narcotics search warrant. Nevertheless, the error, if any, is quite harmless. It uncovered defendant's phony alibi letter. The record, however, contains the testimony of John R. Smith, defendant's federal parole officer, who testified that defendant voluntary brought him the letter on December 23, 1975, and that he, Smith, personally recalled that it outlined “various places and things that were done, activities undergone by Mr. Blair In the Philadelphia area during the entire weekend of December 14-15, 1975 . . .” (Emphasis added.) Smith also recalled that at the same interview defendant denied having been in California.

2. On the basis of the present record which does not indicate that under the Bartee alias defendant was anything but a model credit card customer, I cannot agree that the credit card companies were “non-neutral.” I do, however, agree on the compelling significance of the Legislature's failure to include credit card companies in the definition of “financial institutions” in subdivision (a) of section 7465 of the Government Code. The “California Right to Financial Privacy Act” (Gov.Code s 7460 et seq.), particularly the legislative findings contained in section 7461, indicate that the Legislature is extremely sensitive to the values which the Supreme Court sought to protect in Burrows v. Superior Court (1974) 13 Cal.3d 238, 118 Cal.Rptr. 166, 529 P.2d 590. I fully appreciate that the matter is of constitutional dimensions, and do not suggest that the principle of Burrows is confined to the institutions listed in section 7465, subdivision (a). We are, however, in an area where somebody has to apply ancient constitutional principles to modern minutiae. Since it is clear that the Legislature had these principles in mind when it passed the Privacy Act, I think that its judgment on where to draw the line is entitled to unusual respect.


1.  The pattern in Baltimore was similar. In July 1976, FBI Agent Sterling served subpoenas on the Chesapeake Telephone Company and was, in return, handed the toll records of Janet Bartee.

2.  Appellant's defense consisted primarily of his detailing his movements the weekend of December 14-15, 1975. Contrary to the alibi letter, he said that he flew to Oakland in order to make contact with a heroin supplier on December 11th. The deal was made on December 14th and Blair then called Wellman in Los Angeles, whom Blair claimed was his cocaine supplier. Arrangements were made for a cocaine purchase and Blair, together with two companions, flew to Los Angeles. At 8:30 p. m., he reached Wellman again by phone and arranged to meet Renate on the corner of Sepulveda and Valley Vista. This meeting took place at 9:15 p. m. and Blair purchased one-half pound of cocaine for $10,000. When Blair's rental car wouldn't start, Renate drove him back to the airport Marriott Hotel about 10:20 p. m. Blair returned to Baltimore the next morning.

3.  On February 4, 1977, Dorman (Los Angeles Police Department) received, from Philadelphia, a list of California calls made from or charged to the Vineyard number. Officer Dorman traced one of the numbers to the Oakland Hyatt House and discovered that Bartee, who he knew was Blair, had been registered from December 11 to 14. Dorman went to the Hyatt House, interviewed a clerk and was given the Bartee registration, a credit card billing, and a list of numbers dialed by appellant from his room. The officer admitted that he had no subpoena for any of this material. In that collection of data was the damaging call appellant made to Wellman at 4:17 p. m. on December 14.

4.  Appellant also contends that his reasonable expectation of privacy under McKunes was violated when the Los Angeles Police Department obtained phone records for calls made by him from the Oakland Hyatt House and which disclosed his call to Alan Wellman on the night of the murders. However, we do not believe that the appellant can assert a legitimate expectation of privacy in calls made from a hotel room. Certainly, these records do not amount to “a virtual current biography” as did the bank records in Burrows v. Superior Court, 13 Cal.3d 238, 247, 118 Cal.Rptr. 166, 529 P.2d 590, or the telephone records in People v. McKunes, 51 Cal.App.3d 487, 492, 124 Cal.Rptr. 126.

5.  Although traditionally there have been two reasons for invoking the exclusionary rule deterrence and judicial integrity this later rationale for excluding illegally obtained evidence has been all but forgotten in California. Examples of the emphasis placed on deterrence, to the resultant virtual extinction of judicial integrity, are the cases of People v. Helfend (1969) 1 Cal.App.3d 873, 82 Cal.Rptr. 295 and Dyas v. Superior Court (1974) 11 Cal.3d 628, 114 Cal.Rptr. 114, 522 P.2d 674. In Helfend, the court allowed statements given by a defendant without Miranda warnings in Mexico to be admitted since no California authorities were involved in the interrogation. In Dyas, the Supreme Court addressed the applicability of the exclusionary rule when the search is conducted by a private citizen and held that “(t)he exclusionary rule does not apply to evidence obtained in a search conducted by a person who is truly a private citizen.” (Dyas v. Superior Court, supra, at p. 632, 114 Cal.Rptr. at p. 116, 522 P.2d at p. 676.) Arguably, however, if deterrence was not the only aim of the rule, exclusion in each of the above situations would be justified in order to maintain the integrity of the judicial system. Courts in California, it seems, have abandoned this latter rationale and refuse to exclude evidence if the deterrent element is not present.

6.  We need not determine whether a creditor is Always in a non-neutral position even absent the felony criminal charge.

7.  CALJIC No. 2.91 provides:“The burden is on the State to prove beyond a reasonable doubt that the defendant is the person who committed the offense with which he is charged. You must be satisfied beyond a reasonable doubt of the accuracy of the identification of defendant as the person who committed the offense before you convict him. If, from the circumstances of the identification, you have a reasonable doubt whether defendant was the person who committed the offense, you must give the defendant the benefit of that doubt and find him not guilty.”

8.  In Guzman, defendant requested four special instructions relating to identification testimony. The trial judge refused all four. This court held that it was error for the judge to refuse to give any part of the requested instructions when there were some that were substantially correct and the errors could be easily remedied by refusing the argumentative instructions and changing a word or two in the others. It is important to note, however, that in Guzman we were dealing with requested instructions, not whether such instructions should be given by the judge Sua sponte even though not requested by defense counsel.

STEPHENS, Associate Justice.

HASTINGS, J., concurs.

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PEOPLE v. BLAIR (1979)

Docket No: Cr. 32234.

Decided: February 16, 1979

Court: Court of Appeal, Second District, Division 5, California.

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