People v. Moore

50 Cal. App. 3d 989, 123 Cal. Rptr. 837, 1975 Cal. App. LEXIS 1831

• Court: California Court of Appeal
• Decided: August 27, 1975
• Docket: Crim. 25616
• Status: Published

Opinions

Opinion

LILLIE, Acting P. J.

Defendant was charged in three counts with violation of section 288, Penal Code, on which he was arraigned on April 8, 1974. On April 30, 1974, his discovery motion was heard, and at the conclusion of the testimony of his witness (Beverly Nelson) the court asked defense counsel if he was satisfied that the People had complied with his request. Counsel responded: “There is one other matter Your Honor, I would make a motion for discovery of, that between the dates of April 8 and April 15, at which time there was a continuance on this particular matter, on the date of April 8, when we were in court for the arraignment, I received information from my client that the parents of the prosecuting witnesses had indicated to him that the girls were not telling the truth. I relayed that information to the district attorney, and the district attorney did not have the file or anything at that time. However, they did indicate that they would talk with these particular witnesses.

“To my understanding, there has been conversation with these witnesses, the four that I previously mentioned, the parents and the two prosecuting witnesses, and/or other witnesses whom I don’t know about, and I would make a motion at this time to request the sum and substance of that particular conversation, if there is any recording taken of it, or any written material, or even a relation of what occurred in that conversation.” The deputy district attorney to whom defense counsel relayed the information on April 8, was the same deputy present in court on the motion. Commenting that it was of the opinion that “the defense would be entitled to the results of that conversation,” the trial court suggested that the deputy submit a memorandum thereof. The deputy refused to disclose the results of his interview with the witnesses in question on these grounds—(1) “if the Court were to grant this motion before each and every trial, we would put the district attorney’s office on the witness stand to testify as to what the witnesses were going to say”; (2) the material sought is the prosecutor’s work product which is not discoverable; and (3) although' he did interview the witnesses in question, he “would have done it on [his] own, so the mere fact that [defense counsel] would request that [he] talk to the witness is of no consequence to the Court.” Thereupon defense counsel moved for disclosure of the “sum and substance of the conversation by the district attorney with the witnesses. I believe their names are Joe Sims, Christine Douglas, Joanna Sims, Sandra Douglas, and any others that I may not know of relative to my initiating the question of the credibility on April 8, 1974, in this courtroom.” Pursuant to the motion the trial court made its discovery order¹ and continued the cause to May 10, 1974. On May 10 defense counsel advised the court he had not been furnished the material ordered; again the deputy district attorney declined to disclose the results of the interview with the witnesses as per the order; and the court dismissed the information.

The People appeal from order of dismissal “for lack of compliance with the court’s discovery order.”

In his appellate brief the district attorney reiterates his position taken at the trial level—that his conversations with the witnesses in anticipation of trial and any memorandum thereof were his work product and not discoverable; the defense cannot cast on the prosecutor the duty to “check into certain facts” and there is no “legal significance” to either such request or his consent to do so (citing In re Ferguson, 5 Cal.3d 525 [96 Cal.Rptr. 594, 487 P.2d 1234]); and defendant failed to make a showing of “good cause,” materiality of the information sought and that he could not have discovered the facts himself.

The deputy district attorney at no time denied the incident of April 8, 1974, as related to the court by defense counsel on April 30, or denied that he indicated to defense counsel he would talk to the specified witnesses, in fact, he did interview them between April 8 and April 15.² No reasonable person can read the record before us and not find in defense counsel’s act of “relay[ing] that information” on April 8 to the deputy district attorney, an implied request that he interview the parents to determine if the girls were telling the truth, and an implied consent on the part of the deputy district attorney to do so, in his “indication] that they would talk to those particular witnesses.” Clearly there was an agreement to interview the witnesses for the defense, yet appellant is reluctant to raise the request and consent to the dignity of an agreement denominating it a consent “informally” expressed and “an apparently casual remark and reply,” and arguing that such a request is of no “legal significance” and “the mere indication that the district attorney would talk with particular witnesses in no way says that he would talk with them solely to check on the allegations made by the defendant or that he would not have talked with them otherwise.” Also we cannot other than read into the agreement to check on the information given to the district attorney by defense counsel, an implied understanding between counsel that the district attorney would disclose to him the results of the interviews. However, we do not base our decision herein on such implied understanding but on other considerations.

Appellant’s position overlooks the salient fact that the discovery order was made pursuant to the agreement between counsel that the deputy district attorney would interview the witnesses. Thus there are before us no real issues arising out of who “initiated” the interview with the witnesses; whether the defendant could “readily obtain the information through his own efforts” (Pitchess v. Superior Court (Echeveria) 11 Cal.3d 531, 537 [113 Cal.Rptr. 897, 522 P.2d 305]), the record having established, and the trial court having impliedly found, that the defense was excused from complying with such an obligation by the prosecutor’s agreement to comply with defense counsel’s request; the policy that the law does not “impose a general duty on prosecutorial officials to serve as defense investigators” (People v. Beagle, 6 Cal.3d 441, 450-451 [99 Cal.Rptr. 313, 492 P.2d 1] [in Beagle no pretrial request was made by defendant; his contention that the prosecution failed to conduct a more complete investigation as to the cause of or reason for the fires and neglected to investigate the possibility that the fires were deliberately set to perpetrate a fraud on insurance companies, was an appellate contention]); whether such order here sanctioned a “fishing expedition” (Pitchess v. Superior Court (Echeveria) 11 Cal.3d 531, 537 [113 Cal.Rptr. 897, 522 P.2d 305]), which clearly it did not, the names of the witnesses having been specified in the request and they having been interviewed pursuant thereto prior to the making of the discovery order; whether there was sufficient showing of “good cause” to justify discovery; and the extent of the applicability, if any, of the “work product” doctrine.

We need not decide the extent to which the doctrine of attorney work product may bar disclosure of the prosecution’s factual investigation in a criminal proceeding. Assuming without deciding that the bar to disclosure may be applicable, here there is an adequate record permitting disclosure despite the bar. Only writings reflecting an attorney’s impressions, conclusions, opinions, legal research or theories are absolutely barred from discovery by the work product rule. (Code Civ. Proc., § 2016, subd. (g).) Other work product is discoverable if the court determines that denial of discovery will unfairly prejudice trial preparation of the party seeking it or will result in injustice (Thompson, Cal. Civil Discovery Practice (Cont. Ed. Bar 1975) § 1.47). Here the trial court could properly find from the prosecution’s agreement to conduct the interviews that denial of their product would unfairly prejudice the trial preparation of the defense or otherwise result in injustice. Moreover, contrary to his repeated insistence that he interviewed the witnesses “in preparation for trial” thus the result constituted his “work product,” the record establishes that the deputy talked to the four witnesses because he was asked to do so by the defense, he acted on information supplied by the defense apd he interviewed the witnesses long before the cause was set for trial³—actually voluntarily assuming the duties of an investigator.

We base our opinion that the results of the interview are discoverable on the fundamental proposition that an accused is entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information. (See Pitchess v. Superior Court (Echeveria) 11 Cal.3d 531, 535 [113 Cal.Rptr. 897, 522 P.2d 305].) “The fundamental responsibility to present material evidence to the court includes a duty to disclose to the defense substantial material evidence favorable to the accused in appropriate cases. (In re Ferguson, supra, 5 Cal.3d 525, 532.) Unless the prosecutor is required to make such disclosures the adversary system of criminal justice would be reduced to one in which the determination of guilt or innocence may be controlled by the prosecuting attorney’s tactical choice to suppress favorable evidence, or his negligent failure to disclose it, rather than by the well-informed decision of the finder of fact. When such conduct hinders the ascertainment of truth, restraints must be imposed to prevent the denial of a fair trial as guaranteed by the due process clause of the Fourteenth Amendment of the Constitution of the United States. . . . [If] We recognize the foregoing cases [Brady v. Maryland, 373 U.S. 83 (10 L.Ed.2d 215, 218, 83 S.Ct. 1194); In re Ferguson, 5 Cal.3d 525, 532 (96 Cal.Rptr. 594, 487 P.2d 1234); Giglio v. United States, 405 U.S. 150 (31 L.Ed.2d 104, 92 S.Ct. 763)] as establishing a duty on the part of the prosecution, even in the absence of a request therefor, to disclose all substantial material evidence favorable to an accused, whether such evidence relates directly to the question of guilt, to matters relevant to punishment, or to the credibility of a material witness.” (People v. Ruthford, 14 Cal.3d 399, 405-406 [121 Cal.Rptr. 261, 534 P.2d 1341].)

We do not know whether the results of the interviews are favorable to the defendant but on the state of the record we assume they constitute substantial material evidence helpful to the defense. If the interview with the parents casts grave doubt on the credibility of the children it cannot be denied that for a variety of reasons and even in the absence of a request therefor, the defense is entitled to its disclosure—whether the deputy investigates further, proceeds with the prosecution “as is” or dismisses the case. If on the other hand the deputy represents that the interview does not reflect adversely on the credibility of the complaining witnesses, so too defendant has the right without request therefor to discover this information, among other things, to determine if the conversation with the witnesses was fairly interpreted and if in light of the indication he had from the parents that the girls were not telling the truth, the interview in fact was unfavorable to him, and to use the information in any manner legally available to aid his defense or attack the credibility of the prosecuting witnesses, a crucial issue in sex offense cases involving young children, or their parents should they testify.

In People v. Johnson, 38 Cal.App.3d 228 [113 Cal.Rptr. 303], expert witnesses testified that bloody palm prints on decedent’s bed sheet were defendant’s, two defense experts said they were not. Defendant moved to discover the identity of any experts to whom the prosecutor admitted he showed the prints whose opinion was that the maker of the prints could not be determined. The court reversed the order denying discovery holding, “Here, Johnson’s requested discovery could have led to information highly beneficial to him.” (P. 235.) After examining the possible conclusions that could be reached by an expert examining the print, the court said at page 236: “Because the state bore the burden of proving Johnson’s guilt beyond a reasonable doubt, proof the print’s maker could not be determined would have been helpful to Johnson, by throwing doubt on the People’s case. The trial court’s refusal to allow discovery denied Johnson valuable information which he could have used to cross-examine, impeach the expert who testified against him, and argue more vigorously the People’s failure to prove guilt beyond a reasonable doubt.”

It is unnecessary to inject in this case the issue of “good cause.” Appellant contends “that no competent evidence was offered to the court to support the request of the defendant” and argues there was no showing of the materiality of the information sought or good cause for discovery. The materiality of the information sought is evident from the record. A showing of good cause appears to have been unnecessary because (1) the prosecutor acceded to defendant’s request, and the discovery order was made pursuant to the agreement to interview the witnesses; and (2) Ferguson and Ruthford place on the prosecutor the obligation to disclose any substantial material evidence helpful to the defense “even in the absence of a request therefor” (People v. Ruthford, 14 Cal.3d 399, 406 [121 Cal.Rptr. 261, 534 P.2d 1341]) which seems to be entirely inconsistent with the concept of good cause. In any case, implicit in the trial court’s order is a finding of good cause, and the record amply supports it.

The order of dismissal is affirmed.

Thompson, J., concurred.

1 Any present objection that the inclusion of “and any others that I may not know of relative to my initiating the question of the credibility on April 8, 1974, in this courtroom” renders the order too broad, is not well taken for no such challenge was before the trial court; this was not one of the grounds for the prosecutor’s refusal to comply with the order. It is obvious that at no time did such a suggestion concern the deputy district attorney in the court below he having already interviewed the witnesses at the time the order was made.

2 During the colloquy between the trial court and the deputy district attorney he was asked if he did interview the witnesses and his answer was “I certainly did, Your Honor. I’m not denying that.” Then asked by the court “but you interviewed them before the discovery motion was completed and between the dates of April the 8th and April 15, correct?” the deputy district attorney answered “Correct.”

3 On April 8 the deputy consented to talk to the witnesses and interviewed them within a short time thereafter, between April 8 and April 15—a bit early for a busy deputy to be engaged in the preparation for the trial of a case that appears from the transcript of testimony taken at the preliminary hearing to be relatively simple, at a time no trial date was known; the cause was not set for trial until April 15.