People v. Graves

411 P.2d 114, 64 Cal. 2d 208, 49 Cal. Rptr. 386, 1966 Cal. LEXIS 249

• Court: California Supreme Court
• Decided: February 23, 1966
• Docket: Crim. 9318
• Status: Published

Opinions

TRAYNOR, C. J.

Defendant appeals from a judgment of conviction entered upon a jury verdict finding him guilty of three counts of forgery. (Pen. Code, § 470.)

Defendant was charged with forging three cheeks drawn on the Central Valley National Bank. The checks named defendant as payee, and he admittedly endorsed and deposited them, one in his account in the First Western Bank and the others in the Wells Fargo Bank. The Central Valley National Bank had no accounts in the names of the purported makers.

After the checks were returned unpaid, agents of the First Western and Wells Fargo Banks called on defendant at his office. Defendant explained that he had received the checks from three different persons in connection with a real estate transaction and stated that he did not know where these men could be located.

The bank agents then got in touch with Inspector Wiebe of the San Francisco Police Department. At his suggestion the agents and defendant met in the inspector’s office. Defendant repeated his explanation, and at Inspector Wiebe’s request wrote out two pages of handwriting exemplars, duplicating everything written on the faces of the three checks. Inspector Wiebe took defendant to the district attorney ⅛ office, where he again repeated his explanation. Defendant was then arrested.

The cheeks and the' handwriting exemplars were turned over to Criminologist Williams of the San Francisco Police Department for examination. Three or four days later Williams asked Inspector Wiebe to obtain additional exemplars. Williams testified at the trial that the original exemplars were unsatisfactory because some of the writing on the checks was handprinted, and the exemplars were mostly in script. At Inspector Wiebe’s request defendant, who was still in custody, wrote out three copies of each check on specimen check forms. At no time was defendant advised of his right to counsel or of any other constitutional rights.

The handwriting exemplars were introduced into evidence, and Williams testified that the handwriting on the faces of the forged checks matched the handwriting of People’s Exhibit 16 (exemplars given before arrest) and People’s Exhibit 17 (exemplars given after arrest). The exculpatory statements that defendant made before his arrest were also admitted into evidence. They were substantially consistent with his testimony. Defendant contends that both sets of exemplars and the statements should have been excluded under Escobedo v. Illinois, 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977], and People v. Dorado, 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361].

There is no merit in the contention that the exemplars and statements given before arrest should have been excluded. The exclusionary rule of Escobedo and Do-rado applies only when the accusatory stage has been reached, that is, “when the officers have arrested the suspect and the officers have undertaken a process of interrogations that lends itself to eliciting incriminating statements, ...” (People v. Stewart, 62 Cal.2d 571, 577 [43 Cal.Rptr. 201, 400 P.2d 97].) Here defendant had not been arrested, and the purpose of the inquiry was not to elicit incriminating statements. Inspector Wiebe learned the facts of the transaction for the first time at this conference. It was only after the questions had been asked and answered and the exemplars given that the investigation focused on defendant and he was placed under arrest.

The handwriting exemplars furnished after defendant had been in custody for three or four days were also admissible. Inspector Wiebe did not elicit incriminating statements from defendant but only requested and secured additional exemplars to make the handwriting analysis easier. We need not decide whether defendant could have invoked the privilege against self-incrimination and refused to make these exemplars.¹ The right to counsel during police' interrogation established in Escobedo v. Illinois, supra, is designed to prevent the use of coercive practices to extort confessions or other incriminating statements. (In re Lopez, 62 Cal.2d 368, 372-373 [42 Cal.Rptr. 188, 398 P.2d 380].) It does not protect a defendant from revealing evidence against himself in other ways. It applies only when “the police carry out a process of interrogations that lends itself to eliciting incriminating statements, ...” (Escobedo v. Illinois, 378 U.S. 478, 491 [84 S.Ct. 1758, 12 L.Ed.2d 977].) In Escobedo the United States Supreme Court emphasized its concern with the problem of using coercive methods to obtain confessions. (378 U.S. at 490 [dissenting opinion by White, J., at pp. 498-499].) It observed that any system of law enforcement that places primary reliance on confessions may become not only oppressive, but unreliable.

In Escobedo, the court found a remedy in the Sixth Amendment right to counsel for the abuses it deemed inherent in inquisitorial methods. There is nothing in the language or the logic of Escobedo, however, to indicate that this remedy is needed if the police have not carried out a process of interrogation that lends itself to eliciting incriminating statements. Accordingly, we find no support in Escobedo for invoking the right to counsel to block scientific crime investigation. Reliance on handwriting exemplars for expert analysis is not a substitute for thorough scientific investigation of crime but an excellent example of such investigation.² To preclude the police from asking for such exemplars would foster reliance instead on the very inquisitorial methods of law enforcement that Escobedo deems suspect.

The judgment is affirmed and the purported appeal from the nonappealable order denying a new trial is dismissed.

McComb, J., Tobriner, J., Mosk, J., and Burke, J., concurred.

1 Not every aid that a defendant or suspect is required to give the prosecution violates the privilege against self-incrimination. A defendant may be ordered to stand up in court for identification, or to try on items of clothing. (Holt v. United States, 218 U.S. 245 [31 S.Ct. 2, 54 L.Ed. 1021]; People v. Lopez, 60 Cal.2d 223, 244 [32 Cal.Rptr. 424, 384 P.2d 16].) Blood samples may be taken from a suspect without his consent, if the means used to obtain them do not shock the conscience. (People v. Duroncelay, 48 Cal.2d 766, 770 [312 P.2d 690].) Although we have found no case in which an unwilling defendant who has not waived the privilege has been ordered to give handwriting exemplars, statements in some California cases and the opinions of leading writers support the position that the privilege is not applicable. (People v. Matteson, 61 Cal.2d 466, 469 [39 Cal.Rptr. 1, 393 P.2d 161]; People v. Harper, 115 [252 P.2d 950]; People v. Gormley, 64 Cal.App.2d 336, 338 [148 P.2d 687]; People v. Whitaker, 127 Cal.App. 370, 373 [15 P.2d 883]; 8 Wigmore on Evidence (McNaughton rev. 1961) § 2265; McCormick on Evidence (1954) § 126.)

2 “ Handwriting identification is based upon the principle that every person’s handwriting is distinctive. . . . The possibility that one person could imitate the handwriting of another and successfully deceive an expert document examiner is very remote.” (Report of The President’s Commission on the Assassination of President Kennedy, pp. 567-568.)