Opinion
As Modified on Denial of Rehearing Nov. 28, 1967.
Hearing Granted Dec. 27, 1967.
Gilbert F. Nelson, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Ronald M. George, Deputy Atty. Gen., for plaintiff and respondent.
STEPHENS, Associate Justice.
Defendant Cavanaugh was extradited from Massachusetts on January 7, 1966. By information filed February 4, 1966, he was charged with three counts of robbery (Pen.Code § 211) and in the fourth count, with having committed a burglary (Pen.Code § 459), all occurring on November 12, 1963. The county public defender was initially appointed to represent the defendant, but due to some conflict, private counsel was appointed, and Cavanaugh pleaded not guilty to each count. A motion to dismiss count IV (burglary) was granted.
Motion was made, before Judge Roberts, under Penal Code section 1334.3 to bring defense witnesses from Massachusetts and this was denied on March 8, 1966. However, on that date the court stated interrogatories should be taken of the apparently 11 proposed witnesses. The judge stated that the defendant was to choose the one or two most favorable witnesses, and these or the one world be brought out to testify. The interrogatories and the answers of the others were to be read into evidence at the trial. The matter was continued to March 30. The matter was again continued to April 5 to allow time for preparation of cross-interrogatories. A further continuance to May 5 was ordered to allow time for the commission to issue and the depositions by interrogatories to be accomplished.
Pen.Code § 1334.3: 'If a person in any State, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions or grand jury investigations in this State, is a material witness in a prosecution pending in a court of record in this State, or in a grand jury investigation, a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. This certificate shall be presented to a judge of a court of record in the county of such other State in which the witness is found.
Three subsequent continuances were ordered due to the delay in receipt of the depositions. On June 2, all but four of the depositions had been received by the court, and on that date those received were examined by the district attorney and defense. The court, over strenuous urging by defense counsel to order four witnesses brought to California, determined there would be but two witnesses brought in under the motion, and that the defense was to choose the two. Trial was set for June 13, and the two witnesses selected and ordered brought in at county expense. The case trailed until June 16, at which time trial commenced before Judge Sanchez. The prosecution presented its case, and the defendant called the two witnesses which the court had subpoenaed from Massachusetts and the defendant; a further motion At the close of the presentation of evidence, and out of the presence of the jury, defendant moved to dismiss count IV (burglary), and this was granted. The defendant was convicted on each of the remaining three counts, and the degree of robbery was fixed to be in the first degree. Defendant's motion for new trial was denied, probation was denied, and sentence imposed. The sentence is in obvious error for the defendant was sentenced for violation of count IV (burglary) as well as for the other three counts.
All counts arose out of acts allegedly committed on November 12, 1964 at a Von's Shopping Bag market. On that date, about 9:30 p. m., four employees of Von's were forced to reopen the market which they were in process of securing. They were ordered to take the two persons involved to the store's money room and to open the store's safe. From the sate was taken an unknown but substantial amount of change, which was placed in a gunnysack. Each of the four employees was robbed of his money. The acts of entry and robbery were at gunpoint, and the defendant was identified as one of the two men who committed the robberies. The defendant's sole defense was alibi. He testified, as did his witnesses, that he was in Boston, Massachusetts on November 12 and hence could not have been in Los Angeles.
The court admitted, over objection, testimony of a subsequent crime allegedly committed by defendant on Thanksgiving Day, November 26, 1964, on the theory of modus operandi, and for impeachment of the alibi.
Defendant contends that (1) he was arbitrarily denied the right to the process of the court in procuring the attendance of out of state witnesses; (2) the trial court erred in admitting evidence of the Thanskgiving Day robbery (subsequent to that charged in the information) in that this evidence was improper rebuttal and improper proof of defendant's modus operandi; (3) the trial court's instruction on the evidence of the Thanksgiving Day robbery was misleading and erroneous.
Was the original limitation imposed upon defendant as to the number of witnesses to be brought in under section 1334.3 an abuse of discretion, and, if so, did such abuse of discretion continue at the time of denial of motion be the trial judge to compel the attendance of such other witnesses?
The sole defense was alibi, i. e., that defendant was in Boston, Massachusetts at the time of the crimes charged. Each of the witnesses defendant requested to be brought to California was a material witness to this defense, and though seven persons responded to interrogatories, the defense sought to have four produced as witnesses at the time Judge Roberts limited the number to be authorized. Each substantiated the fact that at various times during the month of November 1964, defendant was known to be in Boston. The judge reviewed the returned interrogatories and answers and ordered that 'In my opinion the witnesses needlessly duplicated each other to a certain extent. I am going to order, at county expense, either Jeanette Sarno or Pat Kane and either Peter Piso or John Ragucci. I think that their testimony is substantially the same and there is no need to have that type of duplication.' This order was guided strongly be the considered factor of expense to the county.
We reduce the evidentiary facts of each of the seven persons whose interrogatories were before the court to the barest essentials to avoid length of analysis. In all, the answers alone to the interrogatories and cross-interrogatories cover 23 typed pages. The initial motion before Judge Roberts sought the production of each of the seven as witnesses. After the declaration of limitation by the court, the request was reduced to four: Ragucci, Piso, Sarno, and Kane. Of these, but two were authorized. At the close of the People's The evidence contained in the interrogatories before Judge Roberts, and before Judge Sanchez during trial, at the time the defendant was limited to but two witnesses to be brought from Boston, was not merely cumulative.
By answers to interrogatories, John Ragucci deposed (1) that he first met defendant on October 31, 1964 at a party; (2) that Cavanaugh lived in an apartment owned by the Piso family, and had a phone, the number of which was Ri. 2-0167; (3) that Cavanaugh was seen daily throughout November 1964; (4) specifically, the dates of November 11 (Armistice Day) and the day following were pinpointed; (5) the defendant was specifically placed in the presence of Patricia Kane and Piso on November 11 or 12, 1964.
By answers to interrogatories, Jeanette Sarno attested that Cavanaugh was in her presence the afternoon of November 11th in her home (near Boston).
By answers to interrogatories, Marie Donelly attested that the defendant was in Boston in the beginning weeks of November 1964 and visited deponent quite a bit during her lunch times, and that she dated defendant twice during that period, though she could not pinpoint November 10, 11, or 12.
By answers to interrogatories, Peter Ronald Piso attested (1) that defendant rented an apartment from deponent's mother; (2) that defendant attended an October 31st party at the Piso apartment; (3) that he saw defendant almost every day (throughout November); (4) that specifically, November 10th, 11th or 12th were days when defendant had been seen in Boston by deponent and in the presence of Joe Mioli and John Ragucci.
The questions as actually put are at best clumsy when phrased in the disjunctive. A fair reading of the questions and answers, from the defendant's point of view, shows that Piso not only saw defendant in the company of any one or more persons on November 10, 11, or 12, 1964, but that he was the one who knew, by observation in Boston, the whereabouts of defendant on November 10, 11, and 12. In determining the meaning to be given answers to interrogatories in the present instance, it was the duty of the court to read the questions and answers in the light most favorable to the defendant.
By answers to interrogatories, Mrs. Evelyn Hoey attested (1) she had heard of defendant, but never had seen him; (2) that Jeanette Sarno had talked to her about defendant after his arrest. (Statement (2) was used as impeachment of the testimony by Sarno denying such communication at defendant's trial.)
By answers to interrogatories, Patricia Kane deposed (1) that she met defendant at the Piso party on October 31, 1964; (2) that she went out with defendant approximately five times in November to about the 18th; (3) that she met the defendant through the Pisos.
By answers to interrogatories, Mrs. Martha Cavanaugh deposed (1) that the defendant was her son; (2) that she saw defendant in Boston on November 14th in company with John Ragucci; (3) that she saw defendant on Thanksgiving Day, November 27, at her home in Boston; (4) that she received a phone call on November 11th and returned it on November 12th by calling the same phone number as testified to by John Ragucci, and talked to defendant.
Thanksgiving was actually November 26, 1964. Obviously the deponent recalled the feast, rather than the date of the month.
As the judge observed, some of the testimony by way of interrogatories was directed to the fact in issue in the location of defendant on November 12th. Direct evidence on that issue was produced, but, through excluded witnesses, corroborative material facts in addition to the ultimate fact were available and not of duplication. One of the most striking facts available and denied proof by an attending witness was that defendant was in Boston at the date of the Section 1334.3 is obviously one that permits judicial discretion even when the requested witnesses are clearly material witnesses. This discretion, however, must be limited by the very constitutional guaranties which the section seeks to implement, namely, to afford the defendant a fair trial and to do justice. We feel that justice was not quite done in this case.
We note the lengths to which the federal courts have gone in expressing a demand for fairness of trial through production of defense witnesses. In Greenwell v. United States, 115 U.S.App.D.C. 44, 317 F.2d 108, 110, Judge Bazelon wrote: 'Thus, if the accused avers facts which, if true, would be relevant to any issue in the case, the requests for subpoenas must be granted [appellant not only averred facts but had the corroborating answers to the interrogatories], unless the averments are inherently incredible on their face, or unless the Government shows, either by introducing evidence or from matters already of record, that the averments are untrue or that the request is otherwise frivolous.'
We do not envision our duty on the question of assuring a defendant a fair trial any less than that described as sought in the federal court. We recognize that the rule (17(b), Federal Rules of Criminal Procedure) under which the United States courts function is a special procedure designed for indigents, whereas Penal Code section 1334.3 is designed to aid all defendants equally in spreading the process of the state court into other jurisdictions.
We also note that the section provides for the tender of funds to pay the witnesses and that the Government Code section 29603 provides that these be county charges. It would appear then that the same questions as to the expenditure of county funds would be taken into account whether the defendant be rich or poor. We acknowledge that at some point in the discretionary determination by the court, consideration of expense is warranted. It is readily imaginable that an alibi might consist of a claim that the defendant was at some event in a distant jurisdiction attended by as many as a thousand or more people. This is not the case before us.
There is no indication that these witnesses in the instant case were unwilling to come to California to testify, and under such circumstances, a well-to-do defendant would not have had to invoke this section at all. In our case, however, it is clear that what was necessarily involved was a procedure for paying the way of these material witnesses. This being so, we must be scrupulously careful to assure that the rights of this defendant are not infringed and that adequate opportunity be provided to avail himself of his right to compulsory process as granted by the statute.
We conclude that here the prime concern of the judge who ruled on the motion was, unfortunately, how much county aid this indigent should have. The transcript makes clear that county expenditure was the court's prime concern in drawing the line in limiting the number of witnesses. We conclude the line was drawn too sharply and did not provide that to which the incarcerated defendant was reasonably entitled.
The abuse of discretion which we conclude resulted could have manifested itself equally had the defendant been able to pay all expenses, but the court limited defendant's choice because the section imposed liability on the county. There is no question but that these witnesses would offer material testimony. The court only indicated it would be cumulative, and then only 'to a certain extent.' With this conclusion there is a divergency of opinion. The prosecution made clear that the efficiency of modern transportation necessitated an accounting for almost every hour of the day in question. This made most We noted also that the witnesses stood in different relationships to the defendant, and that the one who could say that she spent the least time with the defendant was also the one whose testimony was least subject to attack on the basis of friendship with the defendant. The resultant credibility question then was patently present. To force the defendant to make a decision of this magnitude and to sharply limit what appears to us to be a most reasonable request for process under section 1334.3 is grossly inequitable, particularly so since that decision had to be made by defense counsel without the opportunity to speak with the potential witnesses first hand and evaluate which witnesses would constitute the defendant's best witnesses.
We have questioned the accuracy of the limitation order due to 'cumulative' evidence. Former Code of Civil Procedure section 1838 defined cumulative as 'additional evidence of the same character, to the same point.' Since time was of crucial importance here, any overlapping was not 'cumulative,' but rather, 'imperative.' Even if it be to some extent 'cumulative,' we question that it should have been made unavailable. The defendant's defense was based on his claim that he was in Boston at the time of the robbery. The prosecution was allowed to accumulate eyewitness after eyewitness who essentially testified to the same thing, while the defendant had his alibi witnesses limited to bare necessity by the court's order. Where identity is the issue, it is unreasonable to say that the jury could not be influenced by the number of perhaps equally creditable witnesses on each side. It is not disputed that the answers to the interrogatories were not of the same persuasive force as a witness on the stand would be.
Evidence Code section 352 allows the court, in its discretion, to exclude evidence whose admission would 'necessitate undue consumption of time.' But one of the sources of this section was former Code of Civil Procedure section 2044, which said in part that 'The court, however, may stop the production of further evidence upon any particular point when the evidence upon it is already so full as to preclude reasonable doubt.' In the 'discretion' permitted the court under section 1334.3, this was the very discretion which the court was empowered to exercise had evidence so conclusive been established that reasonable doubt was patent.
We conclude that it is an abuse of discretion to so limit a defendant to the use of the process of the court to subpoena material witnesses whose testimony is upon a crucial issue in the case unless the evidence on such issue 'is already so full as to preclude reasonable doubt.' As the jury verdicts depict, such was not the case here on the sole issue of identity of the perpetrator.
The appellant requests that the record on appeal be augmented to include an affidavit of one of the jurors considered by the trial court in the motion for new trial. This request to augment is denied. (People v. Walker, 154 Cal.App.2d 143, 152-153, 315 P.2d 740; People v. McCaffrey, 118 Cal.App.2d 611, 621, 258 P.2d 557.)
Because of our decision on the point felt determinative, it is not necessary to consider other points raised by this appeal, including that raised regarding admissibility of the subsequent event of November 26th, for surely there can be no surprise to defendant as to this upon a retrial.
People v. Perez, 65 Cal.2d 615, 619, 55 Cal.Rptr. 900, 422 P.2d 597.
The judgment is reversed.
KAUS, P. J., and HUFSTEDLER, J., concur.
'If the certificate recommends that the witness be taken into immediate custody and delivered to an officer of this State to assure his attendance in this State, the judge may direct that the witness be forthwith brought before him. If the judge is satisfied of the desirability of the custody and delivery, for which determination the certificate shall be prima facie proof, he may order that the witness be forthwith taken into custody and delivered to an officer of this State. This order shall be sufficient authority to the officer to take the witness into custody and hold him unless and until he may be released by bail, recognizance, or order of the judge issuing the certificate.
'If the witness is subpoenaed to attend and testify in this State, he shall be tendered the sum of ten cents a mile for each mile and five dollars for each day that he is required to travel and attend as a witness. A witness who has appeared in accordance with the provisions of the subpoena shall not be required to remain within this State a longer period of time than the period mentioned in the certificate, unless otherwise ordered by the court. If the witness fails without good cause to attend and testify as directed in the subpoena, he shall be punished in the manner provided for the punishment of any witness who disobeys a subpoena issues from a court of record in this State.'