Record and brief — Lewis v. California

-uonned

51-1442

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

PHIL DARNELL LEWIS

and

O. C. NEAL,

Petitioners,

vs.

STATE OF CALIFORNIA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT

PETITION FOR WRIT OF CERTIORARI

LUKE McKISSACK

9911 West Pico Boulevard

Suite 1000

Los Angeles, California 90035

(213) 557-1226

Attorney for Petitioner

5 SS Se ees ee ee 2

Dean-Standefer, 1340 W. Sixth St., Corona, Ca. 91720 - (714) 734-0811

QUESTION PRESENTED

Can a trial court interrogate a crucial defense witness,

inform her that she may incriminate herself and that she

should have counsel, but, because she was not indigent, make

her seek out and hire her own attorney, which she did, only

to learn, not surprisingly, that he was unable to come to court

on such short notice to represent her; all of which resulted in

depriving the defense of its witness?

TABLE OF CONTENTS

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I 0 ee ae Dag ee ing oe a ey

Dn <cecsuusneddiessskekevecsakens

Petitioners were denied due process of law

and a fair trial, under the Sixth and Four-

teenth Amendments to the United States

Constitution, when the trial court, in a case

of first impression, on its own motion, order-

ed a witness, who was about to testify for

the defense, to hire private counsel, an act

which ultimately resulted in the petitioners

being deprived of the witness’s testimony

ES pie ee eee eee ee Cee eee ae.

Appendixes “A” and “B”

15

23

TABLE OF AUTHORITIES CITED

Cases Page

Brookhart v. Janis, 384 U.S. 1 (1966) .......... 17

Douglas v. Alabama, 380 U.S. 415 (1965) ...... 17

In re Mosley, 1 Cal. 3d 919(1970) ............ 17

Pointer v. Texas, 380 U.S. 400 (1965) ........ 17

Washington v. Texas, 388 U.S. 14(1967)....... 17, 18, 19

Webb v. Texas, 409 U.S. 95 (1972) .......... 17, 18, 19

United States Constitution

Ne ee oe or eeee enna 2, 15, 17, 18

Fourteenth Amendment ................00- 2, 15, 17

United States Code

SE SEED. ceeccceccccdceseseceeees 2,6

Statutes (California)

Health & Safety Code

BERNET eecevesecciccoccesccescceovs 5

BRUNE « cceccccececsecccceseeveens 2

Li!) BPPPPererreeseeceereeereerrreee 2

NO, .cccceee

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

PHIL DARNELL LEWIS

and

0.C. NEAL, «

Petitioners,

VS.

STATE OF CALIFORNIA,

Respondent.

ON PETITION FOR WRIT OF CERTIOr ARi

TO THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA, SECOND APPELLATE D!STRICT

PETITION FOR WRIT OF CERTIORARI

Petitioners, Phil Darnell Lewis and O. C. Neal, respect-

fully pray that a writ of certiorari issue to review the judg-

ment of the Court of Appeal of the State of California, Sec-

ond Appellate District, filed September 8, 1981.

*There are no other parties to this proceeding.

OPINIONS BELOW

The trial below was by jury. The decision of the

Court of Appeal of the State of California, Second Appel-

late District Division Two, affirming the judgment, as

modified, is contained in Appendix “A” hereto (appendix

pp. | - 7). A timely Petition for Hearing was denied by

the Supreme Court of the State of California on Novem-

ber 27, 1981, and a copy of the post card notice thereof

is contained in Appendix “B”’ hereto (appendix p. 8).

JURISDICTION

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. § 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

Sixth Amendment:

“In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial,

by an impartial jury of the state and district where-

in the crime shall have been committed, which

district shall have been previously ascertained by

law, and to be informed of the nature and cause

of the accusation; to be confronted with the wit-

nesses against him; to have compulsory process

for obtaining witnesses in his favor, and to have

the assistance of counsel for his defense.”

Fourteenth Amendment:

“All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and

of the state wherein they reside. No state shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any state deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction

the equal protection of the laws.”

STATEMENT OF THE CASE

Petitioners, Phil Darnell Lewis and O. C. Neal, were

charged by information with possession of piperidine and

cyclohexanone, and a combination product thereof, with

intent to manufacture phencyclidine, in violation of Califor-

nia Health & Safety Code 8 11383(b) (count I) and with

possession of phencyclidine for sale, in violation of Califor-

nia Health & Safety Code § 11378.5 (count II). (C.T.! 1 -

2.) With the exception of a Motion to Reduce Defendant

Neal’s Bail, no pretrial motions were made on behalf of either

defendant.

Trial by jury commenced on September 17, 1980 (C,T.

17). After the prosecution had rested its case, defense counsel

informed the court that they intended to call three civilian

witnesses. The court, on its own motion and out of the

presence of the jury, advised each of the three prospective

ICitations to "C.T." refer to Clerk's Transcript on Appeal.

witnesses of their privilege against self-incrimination and

the distinct possibility that their testifying might lead to

the filing of criminal charges against them. (C.T. 21.) No

prosecution witness was so treated! The court advised the

defense witnesses that they were entitied to be represented

by counsel who could advise them as to whether or not it

would be in their best interests to testify and, further,

that if they were unable to afford private counsel, the

court would appoint an attorney to represent them at no

cost. (R.T.? 253.)

Two of the witnesses waived their right to be represent-

ed by counsel; however, the third witness, Ms. Dorothy

Marset, stated that she wanted to be represented by an attor-

ney (R.T. 258). The court then questioned Ms. Ma ‘et

about her finances and concluded that she was not eligible

to be represented by the public defender. Ms. Marset was

ordered to obtain private counsel and return to court on

the following Monday morning. Because this incident

occurred on a Friday afternoon and Ms. Marset was intend-

ed to be the defendants’ first witness, the trial had to be

recessed at 2:35 p.m. on Friday. (R.T. 260 - 262.)

On Monday morning, September 22, 1980, Ms. Marset

appeared and informed the court that she had consulted

an attorney named Armstrong; that Mr. Armstrong was will-

ing to represent her, but that he was unable to appear with

her in court at that time due to a conflict in his calendar and

wished to have her testimony postponed to another date.

(R.T. 263.) The court declined to delay the trial any further

and instructed the defense to proceed with its other witnesses.

2Citations to "R.T." refer to Reporter's Transcript on Appeal.

That afternoon, defense counsel, who had been unable to

reach her attorney, permitted the court to dismiss Ms. Marset.

The defense proceeded with its remaining witnesses and

the cause was submitted to the jury on the afternoon of Sept-

ember 23, 1980 (C.T. 23). After two days of deliberation,

the jury requested that the testimony of three witnesses be

re-read in its entirety. (R.T. 457.) Shortly thereafter, the jury

found defendants guilty on both counts of the Information

and also found the defendants to be guilty of violating

§ 11377 of the Health & Safety Code, illegal possession of a

controlled substance, a lesser and necessarily included offense

charged with count II of the Information. (R.T. 460 - 461.)

The jury was polled at the request of counsel; however,

the jurors were not separately polled as to each verdict. (R.T.

462 - 463.)

At the time of sentencing, however, the court ordered

the verdicts of guilty as to the lesser included offense of

simple possession stricken and allowed the guilty verdict

on count II, possession for sale, to stand. (R.T. 476.) De-

fendant Lewis was sentenced to a mid-base term of imprison-

ment of four years (C.T. 74) and defendant Neal was sen-

tenced to an upper term of five years imprisonment (C.T.

76). The defendants received sentences of four years and

five years respectively on count II, to run concurrently with

those imposed on count I.

Notice of Appeal was timely filed (C.T. 78). Defend-

ant Neal is presently at liberty on bond. Defendant Lewis is

in custody. On September 8, 1981, the Court of Appeal of

the State of California, Second Appellate District, Division

Two, rendered its opinion attached as Appendix “A,” affirm-

ing the judgment, as modified. On November 27, 1981, the

California Supreme Court denied a Petition for Hearing (Ap-

pendix “B’’). This petition is timely before this Court (28

U.S.C. § 1257(3) ).

STATEMENT OF FACTS

Officer Steven Foster of the Los Angeles Police Depart-

ment was responding as a back-up unit to investigate a possible

homicide at approximately 4:30 p.m. on the afternoon of

December 29, 1979. He was northbound on Broadway Avenue

in his patrol car, approaching 87th Street, when he detected a

strong chemical odor in the air. (R.T. 10- 11.) He recognized

the odor as the kind which is emitted by PCP laboratories. (R.T.

12.) Officer Foster and his partner, in full uniform, continued

on their way to the scene of the homicide, determined that their

presence was not necessary there, and returned to the area of

Broadway and 87th Street accompanied by four other uni-

formed officers. (R.T. 13.) They began searching the area to

determine the origin of the chemical odor and determined

that its source came from within an empty building at 8705

South Broadway which had previously been a furniture store.

(R.T. 14.) The store was in a business area and other businesses

adjacent to the premises were open. There were a number of

people on the sidewalk. (R.T. 14.)

There were large padlocks on the doors of the business,

front and back, and there were metal grating protecting both

the front and back doors. The windows had been painted over

with white paint, so that the officer was not able to view the

interior of the building. (R.T. 15.)

Officer Foster peered through a crack between the front

doors and was able to see a bench at the rear of the building.

He went to the rear of the building, stuck his head through

a small corner of a window which had been broken out,

and saw two dark objects inside. He heard noise and de-

tected a strong chemical odor coming from within the build-

ing. (R.T. 15.) It was very dark within, and he could see two

shadows moving at the bench. (R.T. 16.)

Officer Foster immediately advised the officers with

him that the suspects were inside the building, and that the

area should be secured. Through traffic on Broadway was

blocked in both directions, and the sidewalks were cleared.

(R.T. 17.) The fire department and a police helicopter were

summoned to the scene. (R.T. 18.) After the building had

been cordoned off and secured, Officer Foster noticed some-

one looking out of the window from the upper story of the

building. This person appeared to be wearing a gas mask.

(R.T. 18.)

For the next 30 minutes, the officers attempted to

get the individuals within th> building to come out, using

the public address systems built into their patrol cars. (R.T.

20.) They received no response. All of the entrances to

the building were locked, and the officers were unable to

gain entrance. (R.T. 21.) Ultimately, however, Officer

Owens walked up to the front door and yelled to the persons

inside that if they did not come out, he would throw a

cigarette in. (R.T. 109.) At that point defendant Neal

opened the front door and tossed a key ring through the

metal grate onto the sidewalk. The defendants were arrested

and handcuffed to the grate while the officers attempted to

unlock the grate by means of the keys. (R.T. 24.) In the

meantime, the fire department had cut the locks off another

door at the front of the building, and the door at the rear.

(R.T. 24.) Officer Foster and five other officers then went

inside the building, after donning respirators borrowed from

the fire department. (R.T. 24.)

Officer Roger Gilbert was one of the first to enter.

He found that there was a haze and a strong chemical odor

permeating the entire building. (R.T. 144-45.) He found

paint cans, paint rollers and bottles on the ground floor.

Downstairs he observed shelves with various containers on

them, and the toilets in the bathrooms were overflowing

with a milky-white substance. (R.T. 145.) When his respira-

tor ma!functioned, he smelled an extremely strong chemical

odor, which caused pain in his iungs and made him light-

headed. (R.T. 146.)

Officer Foster, after taking the defendants into custody,

noticed that their clothing was very damp and emitted an

odor which he associated with PCP. (R.T. 25.) It was stipu-

lated that both of the defendants had PCP on their pants.

(R.T. 181.)

Defendants were transported to the station and book-

ed. Officer Foster returned to the location at 8705 South

Broadway and found that the chemical odor coming from

within was too strong to permit him to enter. The fire de-

partment was ventilating the building with large fans. The

police officers assembled were required to wait for two and

one-half to three hours to conduct a thorough search of the

building. (R.T. 27.) After the fumes had dissipated, Officer

Foster and others went into the vacant building and retrieved,

from the wooden bench, two gas masks, a paint roller and

roller tray, numerous bottles, and a piece of paper bearing a

formula for manufacturing PCP. (R.T. 28.)

Downstairs, in the basement of the building, Officer

Foster observed numerous wooden shelves and drying racks

with white crystal-like formations on them, numerous bottles

and buckets, a crystal-type material on the floor, and various

liquids in containers. Within the bathroom, there were sinks

and toilets clogged with a crystal-like material which emitted

a very strong chemical odor. (R.T. 29.)

Richard Bingle, Chief Forensic Chemist for the City of

Los Angeles, was also present to take inventory of the build-

ing’s contents. He conducted a general search for flamable

or toxic chemicals and took photographs and samples of most

of the chemical substances he found. (R.T. 195 - 215.) He also

testified that the piperidine cyclohexane carbonitrile is an in-

termediate product in che manufacture of PCP. (R.T. 216.)

It was stipulate’ -hat substantial quantities of piperidine

cyclohexane carbonitrile, otherwise known as PCP, as well as

30 milliliters of phencyclidine, or PCP, were found upon the

premises. (R.T. 222 - 23.)

Virtually all of the bottles, cans and buckets found in

the otherwise empty building were dusted for latent finger-

prints. (R.T. 218 - 19.) However, only one print was obtain-

ed linking either of the defendants with the containers. That

was the palm print of defendant Lewis lifted from a five-gallon gas

can. (R.T. 187.)

Officer Joseph Stanley of the Los Angeles Police Depart-

ment’s Administrative Narcotics Division testified an an expert

in the field of manufacturing, packaging, sale and distribution

of PCP. He testified that the two main ingredients in phen-

cyclidine are piperidine and cyclohexanon. (R.T. 228.) He

testified as to the manner in which they are combined to

create the final product, which is a PCP crystal. (R.T. 228 -

29.) He explained how the piece of paper found on the bench

oft.

constituted a formula or recipe for the manufacture of PCP

and stated that based upon the types of chemicals and quan-

tities found in the premises he formed the opinion that the

building was being used as a PCP laboratory. (R.T. 230 - 34.)

Thomas Lander testified that he was the manager of

the business located next door to the former furniture store

at 8705 South Broadway. (R.T. 172.) Around the beginning

of December, 1979, he noticed an unusual odor coming from

the building next door. It smelled like ether. (R.T. 172 - 73.)

He also noticed two black males at the back of the builidng

who appeared to be loading or unloading a station wagon,

but he could not identify the defendants as the persons whom

he saw. (R.T. 174- 75.)

Donald Taylor, a young man who was receiving radio

installation training at Mr. Lander’s business, also testified

that prior to the last week of December, 1979, he smelled

an odor which he associated with PCP emanating from the

building next door. He went inside the building and looked

around but did not see anything. (R.T. 128 - 29.) During

December, the odor was, at times, strong enough to make

him feel sick. (R.T. 130.) He also saw two males sitting in

a dark station wagon at the rear of the buildimz, but he

could not identify them. (R.T. 131 - 32.)

DEFENSE:

There was never any question or dispute about the fact

that the building contained many chemicals which are the

precursors of PCP, a large quantity of PCC, an intermediate

compound which, when combined with a cyanide, yields

PCP, as well as a relatively small amount of PCP itself (30

milliliters). The defendants never contended that the base-

sities

ment of the building was not being used by someone to

manufacture PCP. The defense was that they were not

the “chemists,” and had no knowledge of the illegal oper-

ation.

Robert Watson, a journeyman carpenter, testified

that on or about December 19, 1979, he leased the build-

ing at 8705 South Broadway. (R.T. 266.) It was his inten-

tion to rennovate the building and turn it into a restaurant

and discotheque. (R.T. 266.) On the day that he executed

the lease, he was given a key to the building and inspected

the premises for ten or fifteen minutes. (R.T. 267.) The

interior needed alterations, painting, and there was a great

deal of clean-up work to be done both inside and out.

Mr. Watson contacted Mr. John Henry, a contractor

experienced in building the kinds of clubs he was interested

in, and he sought Mr. Henry’s advice and assistance in per-

forming the construction. (R.T. 269.) He gave Mr. Henry

a key to the premises and showed him the debris, both inside

and outside the building, which needed to be cleared away.

(R.T. 269 - 70.) He did not detect any unusual odors when

he visited the premises on December 19. (R.T. 272.) He

advanced the sum of $75.00 to John Henry to pay someone

to clean up the building. (R.T. 284.) He was not personally

acquainted with either of the defendants. (R.T. 276 - 77.)

John Henry testified that he is a contractor, and that

he was asked by Mr. Watso: to assist in the construction

of a restaurant and disco club at 8705 South Broadway.

(R.T. 306.) He met with Mr. Watson at the location around

December 20, and saw that there was a great deal of debris,

inside and out, which needed to be cleaned up. There were

many containers, varnishes, cans, boxes, bottles and buckets

ti.

on the ground floor and in the basement. (R.T. 310.) It

also appeared that transients had been living in the building.

(R.T. 311.)

Mr. Henry attempted, without success, to get a num-

ber of persons to undertake the clean-up chores. He happen-

ed to have one of defendant Neal’s business cards identifying

him as a “handyman,” and when he called Neal on December

29, 1979, Neal accepted the job. (R.T. 316-17.) Neal had

never worked for or met Mr. Henry before that day. (R.T.

317-18.)

Mr. Henry met Mr. Neal for the first time at the rear

of the building at approximately 12:45 or 1:00 p.m. Mr.

Lewis arrived shortly thereafter. Mr. Henry told the defend-

ants that he wanted all of the junk and debris inside and

outside the building cleaned up and hauled away and paid

them $50.00 as an advance on the agreed price of $150.00

for the work to be performed. (R.T. 317 - 18.) He also

instructed them to paint the windows with the paint and

rollers, which he himself had brought to the building that

day, so that transients would not be able to see throuzh the

windows and be tempted to steal the equipment which he

planned to store within. (R.T. 320-21.) He gave them a

key to the lock on the front door and instructed them to

throw the key through the grate at the back door after they

had locked up and before leaving. (R.T. 322 - 25.)

Mr. Henry also noticed a strong chemical odor origi-

nating from the basement. He suspected this was caused by

varnish or lacquer left over from the furniture store, and he

told the defendants to clean up the basement. (R.T. 323.)

He then left the premises.

Mr. Henry returned to the location around the 2nd of

afi...

January, 1980, and discovered that the clean-up work had

not been completed. He had no knowledge of what had

occurred at the premises and assumed that the men he had

hired had simply taken the $50.00 advance and walked off

the job. (R.T. 328.) He did not see either of the defendants

again nor did he learn what had actually happened until he

was contacted by defendant Neal in July of 1980. (R.T. 327.)

Each of the defendants testified on their own behalf.

They stated, in essence, that they had no dealings with each

other or Mr. Henry prior to December 29, 1979; that on the

morning of that day, Mr. Neai received a telephone call from

Mr. Henry who offered to pay him for cleaning up the build-

ing; that Mr. Neal met Mr. Lewis at a gym in Lynwood and

asked him (Lewis) to assist in the clean-up operation; and

that they both arrived at the building, in separate vehicles,

at about 1:00 p.m. (R.T. 361 - 65, 410- 12.) Mr. Henry

showed them around the building, told them to clean up

the junk and haul it away, handed them a key and the sum

of $50.00, and then left the premises. (R.T. 361 - 71, 413.)

The defendants proceeded to the basement where they

found many cans, bottles, plastic buckets and the like, and

they started dumping the contents of these containers down

the toilets, but then the chemicals started to give off such

strong odors that the defendants were forced to abandon

the basement and go up to the ground level where they com-

menced painting the windows. (R.T. 372 - 77, 413 - 17.)

They also piled up various pieces of debris so that they could

be hauled away.

While the defendants were in the clean-up process, they

heard a helicopter overhead and noticed a number of police

officers in the area. They did not hear any commands to come

—~14—

out of the building. Mr. Neal tried to get the attention of

an officer at the back door to find out what was going on,

but the officer drew his gun, and this frightened Mr. Neal

back into the building. All of the other entrances were

locked, so that there was no other way defendants could

get out of the building. Fearing for their safety, they went

to one of the front doors. They were met at the locked

metal grate by police officers, who placed them under arrest.

(R.T. 377 - 80, 417 - 20.)

The defendants denied that they wore any gas masks

and further denied any knowledge of the character of the

chemicals found within the building.

REASONS FOR GRANTING THE WRIT

This Court is here presented with a case of first impres-

sion and one which concerns a problem occurring with great

frequency in criminal trials. The trial court below—in a case

wherein the evidence was so close that the trial, which lasted

but two days, required jurors deliberating an equal length of

time, sua sponte—admonished all three defense witnesses

(excepting the defendants) that they were likely to incrim-

inate themselves and should seek counsel prior to giving

testimony. No admonitions were given any prosecution

witness. A crucial defense witness, Ms. Marset, was declared

ineligible for court-appointed legal counsel because she was

not an indigent witness. The court recessed proceedings on

Friday afternoon, and they resumed the following Monday

morning, at which point the trial judge interrogated Ms. Marset

concerning the whereabouts of her retained legal counsel. She

informed the court that she had hired an attorney to represent

niin

her, but that the attorney was engaged elsewhere and would

the court advise him when he should be available. The court

declined to do so, and the witness was excused, thus depriving

the defendants of her vital testimony.

What is not at issue here is the right of a state to refuse

to provide legal counsel to defendants or witnesses who have

the necessary funds to employ their own. What is at issue

here is the court’s right to disrupt a trial in progress and

effectively elimiiate a witness’s testimony because the witness

is told she should consult an attorney and have him present

before testifying; then requiring the witness to (1) locate an

attorney and set up an appointment with him; (2) keep the

appointment, ascertain his advice and his fee; (3) pay the fee;

and (4) guarantee that the attorney can discard all prior com-

mitments and be present with the witness in court immediately.

In the present case, the failure of the witness to accom-

plish all of the above between Friday afternoon at 2:35 p.m.

and the commencement of court proceedings the following

Monday morning resulted in her being dismissed and the loss

of her testimony by the defense.

The approach utilized by the trial court in this case

allows the court to effectively intimidate defense witnesses

and prevent their testimony, in violation of Sixth Amendment

rights. Now, through the process of imitation, many defendants

are losing these precious rights and more will do so as time goes

on unless this Court forestalls this type of abuse.

ARGUMENT

Petitioners Were Denied Due Process Of Law And A

Fair Trial, Under The Sixth And Fourteenth Amend-

=" Ss

ments To The United States Constitution, When

The Trial Court, Jn A Case Of First Impression,

On Its Own Motion, Ordered A Witness, Who Was

About To Testify For The Defense, To Hire Private

Counsel, An Act Which Ultimately Resulted In

The Petitioners Being Deprived Of The Witness’s

Testimony.

After the prosecution rested, the defense announced

that it would call as its initial witness Dorothy Marset. She

was in court and ready to testify. She had a possessory

interest in the property at 8705 South Broadway—where

the crime was committed—during the criminal activity

conducted there and remained the owner at the time of trial.

Also, during the crucial time period, she actually visited the

premises. The trial judge, on his own motion, admonished

her that if she had a possessory interest in the property she

might incriminate herself. (R.T. 257 - 60.) The court, despite

the in-trial situation, proceeded to interrogate her concerning

income and property holdings (including a self-incriminatory

question to which she responded in the affirmative concerning

ownership of the premises where the contraband was seized),

then concluded that, because she was not sufficiently impov-

erished, she would have to hire her own attorney rather than

to be able to utilize the services of the public defender or a

private attorney usually obtainable from the same or a near-

by courtroom, which is the common practice. (/bid.) Of

course, when she was compelled to hire a criminal lawyer, his

services were not necessarily available in an instant and, addi-

tionally, financial remuneration had to be considered. The

trial was then recessed for the remainder of the afternoon

- =

(Friday).

Ms. Marset returned on Monday morning and inform-

ed the court that her attorney, Mr. Armstrong, had another

matter in another courtroom and could not be present to

represent her but would if the court would call his office

for a suitable date. (R.T. 263.) An irate court then in-

structed Mis. Marset to have her attorney contact the court

to arrange a time when he could be present for her testi-

mony and ordered the defense to proceed with its other

witnesses at 10:35 a.m. At 1:57 p.m., the same day, the

attorney for Mr. Neal advised the court that he had been

unable to speak with Mr. Armstrong but that he had no

objection to Ms. Marset’s being excused until he contacted

him, which neaver happened. (R.T. 315.) The witness never

did testify.

The best method of highlighting what was egregiously

wrong with the trial judge’s unprecedented procedure is to

assess the practical considerations against a backdrop of

appropriate constitutional concerns like the right to a fair

trial and to present and confront witnesses as enshrined in

the Sixth Amendment and rendered applicable to the states

through the Fourteenth Amendment. See, e.g., Washington

v. Texas, 388 U.S. 14, 19 (1967); Webb v. Texas, 409 U.S.

95 (1972); Pointer v. Texas, 380 U.S. 400 (1965); Douglas

v. Alabama, 380 U.S. 415 (1965); Brookhart v. Janis, 384

U.S. 1 (1966); In re Mosley, 1 Cal. 3d 919 (1970).

It is fundamentai that a defendant whom the state seeks

3 all three of the defendants’ witnesses (apart from the defendants

themselves) were admonished as to possible self-incrimination by the

trial judge. No prosecution witness was so treated.

attin

to deprive of his liberty be accorded a fair trial, which

encompasses the right to summon witnesses in his behalf.

Webb v. Texas, supra; Washington v. Texas, supra. This is

frequently the most responsible and necessary means of

defending one’s self. In the present case, the issue of who

had control of the premises and the dimensions and variety

of that control was of decisive significance.

In Webb v. Texas, supra, the trial judge, on his own

initiative, during a recess, singled out the only prospective

defense witness for a lengthy admonition on the dangers of

perjury. Not only warning the witness of his right to refuse

to testify, and of the need to tell the truth, the judge went

on to imply that he expected the witness to lie, and that, if

the witness did so, he would be prosecuted and probably

convicted of perjury. The witness then refused to testify

for any purpose. This Court held that the threatening remarks

effectively drove the witness off the stand and deprived the

defendant of due process of law.

In Webb, the failure of the defense counsel to offer a

timely objection and the total lack of an offer of proof to

demonstrate damage to the defendant’s case were deemed

insignificant given the nature of the constitutional right

denied. The Court relied upon the Sixth Amendment to

the United States Constitution, which explicitly provides

for the defense to call witnesses in its behalf.

“In all criminal prosecutions, the accused shall

enjoy the right . . . to have compulsory process

for obtaining witnesses in his favor, and to have

the assistance of counsel for his defense.”’ (Em-

phasis supplied.)

Moreover, this Court reaffirmed the wisdom contained

—19~—

in the case of Washington v. Texas, supra, 388 U.S. at 19,

as follows:

“The right to offer testimony of witnesses and

to compel their attendance, if necessary, is in

plain terms the right to present a defense, the

right to present the defendant’s version of the

facts as well as the prosecution's to the jury

so it may decide where the truth lies. Just as

an accused has the right to confront the prose-

cution’s witnesses for the purpose of challeng-

ing their testimony, he has the right to present

his own witnesses to establish a defense. This

right is a fundamental element of due process

of law.”

Webb admittedly involved an extremely hostile act

of intervention by the trial judge; however, the principle

should not be devoured by its foremost example.

In this case, the court had no duty to obtain “waivers”

of Fifth Amendment rights from defense witnesses before

they testified. By doing so, the court interfered with the

orderly presentation of the defendants’ evidence, and by

ordering Ms. Marset to obtain private counsel (an unprecedent-

ed move), ultimately deprived the defense of Ms. Marset’s testi-

mony altogether. The ruling placed the defendants at the

mercy of the witness and her attorney, thereby encumbering

and delaying the trial. The trial court could have corrected

its initial error by appointing the public defender to advise

the witness on Monday, when her attorney could not appear,

even though she was not indigent. The interests of the defend-

ants in exercising their constitutional riglit to put on a defense

clearly would have outweighed any minor expense to the

=~ =

state in appointing an attorney to advise the witness. Such

a practice would have a beneficial effect on the administra-

tion of justice, in that it would expedite trials and preserve

the constitutional rights of criminal defendants as well as

potential witnesses.

Given the preceding observations, what should the trial

judge have done, bearing in mind that an appellate statement

of what procedure is most salutary addresses a problem which

asserts itself with great frequency but low visibility because

it has always been handled by appointing the public defender

or a nearby attorney. To begin with, neither the Attorney

General nor the Court of Appeal of the State of California

cited any authority which required the trial judge to admon-

ish a witness to dread incriminating herself or himself,

because there is none, although arguably it is a healthy

proposition—but not if it disrupts the trial and results in

denying the defendant the benefit of testimony. Secondly,

given the fact that a defense to a trial may take no time at

all because the defense can rely on the prosecution’s failure

to prove a case—or may last merely a day or two, as in this

case, it is essential that if a judge chooses to advise a witness

of his fears concerning the prospects of self-incrimination,

that he couple that fear with some satisfactory mechanism for

resolving it which does not unduly intimidate the witness or,

because of practicalities of stress, time and money, deter the

witness from giving presumably helpful, often decisive testi-

mony. Consequently, we must compare the usual technique

of calling upon the public defender for assistance or appoint-

ing a private attorney to give independent advice, with the

one invoked in this case of asking a witness in court to hire

an attorney on her own, who must be almost instantly

==

reachable, and set up an appointment, discuss the fee, raise

the money for the fee, pay the fee, discuss availability, etc.

It is a precept fraught with difficulty which requires

the trial judge to make a defense witness in court enter upon

a private quest for a lawyer and cope with all of the foresee-

able problems. If that approach can be utilized in this case,

it can be utilized in others; and the counsel seeking the witness's

testimony which will prove heipful to the accused can ill afford

to demand that a witness not consult private counsel once the

awesome authority of a judge delivers that unmistakable message.

What kind of result could we expect if the defense attorney

responded with: “We don’t have time for her to seek out an

attorney of her own choosing, Judge. How about appointing

one? In fact, my friend, Mr. Smooth, is down the hall in

Department Heaven, and he could use the money!”

When Ms. Marset located a private attorney, he, not

surprisingly, left a message that he was presently unavailable

but to have the court contact him for a suitable date. This

angered the trial judge so that he expressed his consternation

by stating that he would not contact the attorney; that the

attorney should contact the court. (R.T. 263.)

But none of this counterplay was of any assistance to

Ms. Marset, much less the defendants on trial who were

desirous of producing an unintimidated witness. And, giving

everyone the benefit of the doubt, counsel may have conceived

of his chore as a favor to the court, because the circumstances

surrounding the visit to his office by an obviously confused

Ms. Marset required him to sail in uncharted waters. The court,

on the other hand, obviously conceived of the situation as the

routine hiring of an attorney and so, understandably, bristled

at the thought that he was obliged to contact defense counsel

—22—

to agree upon an appropriate “date.”

The well-intentioned trial judge created a fiasco which

resulted in the defendants’ being deprived of what might

have been crucial evidence. This was, after all, a very close

case. The jury deliberated for two full days, the same amount

of time it took to present the evidence; and then the verdicts

were reached only after all of the testimony of Officer Foster,

defendant Neal, and Mr. Lander was re-read. The evidence of

guilt clearly rested on a hairline, and we are in no position to

speculate concerning the impact of testimony.

Obviously, ““what’s sauce for the goose is sauce for the

gander,” so, if the trial court’s decision to send Ms, Marset on

a wild goose chase for an attorney made to order for the press-

ing predicament was correct, this Court must condone the

same conduct if requested by the defense. If it appears that

a prosecution witness might incriminate herself, it is uncum-

bent upon defense counsel to:

(1) Ask that she be warned that she should not testify

unless she has been advised by legal counsel as to whether she

might incriminate herself, or after consultation with counsel

elects to waive her Fifth Amendment rights;

(2) Insist that the trial judge inquire as to the state of

the witness’s finances before appointing the public defender or

private counsel to handle a task demanding immediate atten-

tion (presently done as a matter of routine);

(3) If it appears that the witness is not impecunious,

remind the judge that in the Lewis and Neal case the court

was right in declaring the witness ineligible for the public

defender or court-appointed counsel and that it would be

improper and also a denial of Equal Protection of the Law

to do either with a prosecution witness.

alin

This, then, would require that the courts have some

reasonable notion about what a counsel would charge to

represent a witness in such a proceeding on such short

notice. This counsel has performed an identical service

perhaps twenty times as an officer of the court, without

remuneration, but has never heard of a going rate for such

a service. Further, defense counsel has the right to object

to anything more than a temporary recess in the trial, be-

cause there is no authority which permits the prosecution

to seek and obtain recesses so that its witnesses can obtain

private counsel to ponder with them about jeopardizing

their constitutional rights or appearing in court. Of course,

if a prosecution witness incriminates himself, it is less likely

that he or she would experience prosecution than a defense

witness who is always a threat to destroy the prosecution’s

case.

This case was so evenly balanced that Ms. Marset’s past

and present possessory interest and visit to the premises

during the critical time period shouid suffice to warrant a

new trial, and in this case of first impression, wherein a trial

judge’s benign concern that a witness might incriminate

herself led him to compel her to seek unavailable counsel

due to lack of indigence and therefore effectively eliminated

her as a witness, warrants review by this Court.

CONCLUSION

For the foregoing reasons, the writ of certiorari should be

granted.

Respectfully submitted,

LUKE McKISSACK

Attorney for Petitioners

“Sac

INDEX TO APPENDIXES

Opinion of the Court of Appeal of

the State of California, Second Appel-

late District, Division Two, filed Sept-

GT SUE 0.60 6% 0666000dees se

Denial of Petition for Hearing in the

Supreme Court of the State of Calif-

ornia, filed November 27, 1981

Page

APPENDIX “A” l.

OPINION BELOW

NOT TO BE PUBLISHED

In the Court of Appeal of the State of California,

Second Appellate District, Division Two.

THE PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Respondent, v. PHIL DARNELL LEWIS and

O. C. NEAL, Defendants and Appellants.

2D CRIM. NO. 38984.

(Superior Court No. A617415).

[Filed September 8, 1981]

Phil Lewis and O. C. Neal appeal from the judgments

entered following a jury trial in which they were found

guilty of possessing piperidine and cyclohexanone and a

combination product thereof with the intent to manufac-

ture phencyclidine (PCP) (Health & Saf. Code, § 11383,

subd. (b), count I) and possessing PCP for the purpose of

sale (Health & Saf. Code, § 11378.5, count II).! They con-

tend: “I. The unexplained failure of defense counsel to

move for suppression of evidence under Penal Code § 1538.5

and to object to obvious irregularities in the proceedings

amounted to a denial of the defendants’ Sixth Amendment

right to the effective assistance of counsel. II. Defendants

were denied due process and a fair trial when the court, on

lin count II the jury returned guilty verdicts to both possessing PCP

for purpose of sale and the lesser included offense of possessing PCP.

This forms the basis for appellants’ third contention, infra.

Appendix 2.

its own motion, ordered a witness, who was about to

testify for the defense, to obtain private counsel, an act

which ultimately resulted in the defendants’ being depriv-

ed of the witness’ testimony. III. The inconsistent and

uncertain verdicts returned by the jury on count II compel

a ruling that defendants have been acquitted of the greater

offense of possession of a controlled substance for sale and

convicted only of the lesser included offense of simple pos-

session. IV. The concurrent sentences on count II were

imposed in violation of Penal Code § 654.”

Viewed in the light most favorable to the judgment

as is required by the usual rule governing appellate review,

the evidence established that at approximately 4:10 p.m.

on December 29, 1979, Los Angeles Police Officers Steven

Foster and Thomas Owens detected the strong odor of

ether associated with PCP coming from an abandoned

furniture store. Peering through a broken window partial-

ly covered with boards and an area between two doors

where the weather stripping had worn away, Officer Foster

observed two figures at a work bench. For approximately

30 minutes the officers unsuccessfuily ordered the occupants

of the building to exit. They finally did so only after Officer

Owens shouted that he would throw a cigarette inside.

Several officers with gas masks then entered the build-

ing and observed that it was full of mist and an overpowering

odor of ether. After approximately two to three hours dur-

ing which the fire department ventilated the building, police

officers reentered and on the basement level discovered that

the toilets and sinks were overflowing with chemicals which

had been dumped into them. They recovered containers

of PCP, piperidine cyclohexanone carbonitrile (PCC, a

Appendix 3.

chemical intermediate step in the making of PCP), piperi-

dine, hydrochloric acid, sodium cyanide, sodium bisulphate,

petroleum ether, ethyl ether, cyclohexanone, and sodium

hydroxide, all ingredients used in making PCP. Two gas

masks and the formula for producing PCP were also found

on the premises.

It was appellants’ defense that they were only handy-

men who had been hired to clean the building and they had

not been manufacturing PCP.

Appellants’ first contention is based upon their claim

that trial counsel should have moved to suppress the proofs

of their guilt on two theones: (1) the police entry after the

building had Seen ventilated was not an emergency and (2)

their reasonable expectation of privacy had been violated

when the pohce looked through the window and cracks in

the doors. However, incompetency is never shown by a

trial Counsel's failure to make patently meritless monons.

(Un re Frank G. (1980) 104 Cal. App. 34 $93, 595; People

v. Bokstrom (1974) 43 Cal. App. 34 995, 1003.) The police

were, of course, required to investigate to discover the source

of the extremely dangerous contraband and the exigent cir

cumstances Continued to exist even Two or three hours after

the initial discovery since a large Quantity of dangerous

chemicals were on the premises and potentially volatile.

(Cleaver v. Superior Court (1979) 24 Cal. 3d 297; Peomie

v. Patterson (\ 97) 94 Cal. App. 3d 456, 465; see Guidi v.

Superior Court (1973) 10'Cal. 3d 1, 17, fn. 18.)

Appellants’ second contention t squally meritiess.

When the People had rested, anneliant Neal's counss!

stated that he would be calling two men to testify they

had heen in possession of the building durme the month of

Appendix 4.

December of 1979. The court advised these witnesses of

the possibility that their testimony could be self-incrimin-

ating and of their right to consult an attorney. Nonethe-

less, each of them decided to testify without such represen-

tation. Later that day, counsel also informed the court

that he would call as witness one Dorothy Marset who

apparently owned the building. The following occurred:

“THE COURT: Dorothy Marset. Miss Marset, I

have been informed by both defense attorneys that it is

your intent to testify in this matter this afternoon, and

that it is your intent to testify that you had a possessory

interest in the premises of 8705 South Broadway, at least

from December Ist to December 29th, 1979, and that on

a particular date during that period, that you actually

visited the premises.

“Now, the Court is advising you at this time that

if it is your intent to testify in that manner, admitting those

facts, it may very well be that you will incriminate your-

self. Not only that, that the testimony that you give may,

and probably will be used against you, which means that

you could have charges filed against you, and you could

be prosecuted.

“Before you take that witness stand and testify,

the Court is advising you that you have a constitutional

right to be represented by an attorney, and if you do not

have the money or means with which to hire an attorney,

the Court will appoint an attorney to represent you at no

present cost to you. .

“Do you understand that?

“MS. MARSET: Yes.

“THE COURT: Now, is it your desire to be repre-

Appendix 5.

sented by an attorney so that an attorney can advise you

as to your personal interests prior to taking the witness

stand?

“MS. MARSET: Yes.

“THE COURT: Do you have the money and means

with which to hire an attorney?

“MS. MARSET: No. Well, see, I didn’t know that I

would have to have an attorney. I was just coming to - -

“THE COURT: Explain. I understand. But, the fact

is that if you testify as to what I have been advised that you

are going to testify to, that could incriminate you to the

point where charges could be filed against you, and you

could be prosecuted.

“So, before you do that, this Court has to be

sure that you understand what you are doing.

“MS. MARSET: Well, I don’t understand what I am

doing.

“THE COURT: So, again, do you have the money or

means with which to hire an attorney?

“MS. MARSET: No.

“THE COURT: Are you employed?

“MS. MARSET: Yes.

“THE COURT: What is your salary?

“MS. MARSET: Eight hundred a month.

“THE COURT: Do you currently own the premises,

8705?

“MS. MARSET: Yes.

“THE COURT: Can I assume that you own other

property?

“MS. MARSET: Yes.

“THE COURT: You are not going to qualify for the

Appendix 6.

services of the public defender. So, you would be required

to hire your own attorney.

“MS. MARSET: Well, could I speak with Mr. Byers?

“THE COURT: You can speak with him, but I have to

advise you that each attorney represents one of the defend-

ants. You have to keep in mind they represent these two

defendants. They don’t represent you, and their first

interest is their clients.

“My advice to you would be to hire an attorney

that would be representing your interests.

“MS. MARSET: I see.

“THE COURT: Do you understand?

“MS. MARSET: Yes.”

On the next court date Ms. Marset advised that she had

retained an attorney. The following is then reported:

“MR. BYRON [defendant Neal’s counsel]: Mrs. Mar-

set is here, and I haven’t spoken to counsel. I would have no

objection to her being excused, Your Honor. When and if

I do make contact with her counsel and I decide the diffi-

culty, then I can call her.

“THE COURT: Very well.

“Is U ore any objection on the part of the People?

“MR. HODGMAN [deputy district attorney]: No,

Your Honor. Whatever they can work out is fine with me.

“THE COURT: Mrs. Marset, you are excused at this

time. You do not have to remain any longer.

“MRS. MARSET: Okay. Thank you.”

No further mention was ever made of Ms. Marset or

her testimony.

It is manifest that the trial court did not deprive

appellants of the testimony of Ms. Marset by merely warning

Appendix 7.

her of the dangers inherent in her testifying. Defense

counsel was not prohibited from calling her as a witness

and why he did not do so is not revealed by the record.

Nothing in Webb v. Texas (1972) 409 U.S. 95 would

require a contrary conclusion.

Appellants’ third contention also fails. Since the

jury expressly found appellants guilty of both the greater

offense of possessing PCP for sale as charged in count Il

and the lesser offense included therein of simple posses-

sion (Health & Saf. Code, § 11377), the trial court appro-

priately struck their convictions for the lesser included

offense. (People v. Moran (1970) 1 Cal. 3d 755, 763.)

Although of no pragmatic significance since the

adoption of the determinate sentencing law, appellants’

final contention that even concurrent sentences should

not have been imposed is meritorious. That is to say, it

is clear, as respondent concedes, that appellants’ manufac-

turing and possession for sale of PCP were but parts of one

criminal enterprise.

The sentences imposed on each appellant as to count

II are stayed pending completion of their sentences on

count I and thereafter permanently. In all other respects,

the judgments are affirmed.

NOT TO BE PUBLISHED.

BEACH,

J.

We concur:

ROTH, P.J.

COMPTON, J.

APPENDIX “B”

DENIAL OF PETITION FOR HEARING

(Post Card Notice)

Clerk’s Office, Supreme Court

4250 State Building

San Francisco, California 94102

NOV 27 1981

I have this day filed ORDER

HEARING DENIED

In re: 2 Crim. No. 38984

People v. Phil Darnell Lewis & O. C. Neal

Respectfully,

Clerk

PROOF OF SERVICE BY MAIL

STATE OF CALIFORNIA )

)

County of Riverside )

I, the undersigned, say: I am and was at all times herein mentioned, a citizen

of the United States and employed in the County of Riverside, California, over

the age of eighteen years and not a party to the within action or proceeding; that

My business address is 1340 West Sixth Street, Corona, California 91720,

thaton JANUARY __, 1982, I served the within PETITION FOR WRIT OF

CERTIORARI to the Court of Appeal of the State of California, Second

Appellate District, on the following named parties by depositing the designated

copies thereof, enclose 4 in a sealed envelope with postage thereon fully prepaid

in the United States Post Office in the City of Corona, County of Riverside,

State of California:

Attorney General, State of California

3580 Wilshire Boulevard

Los Angeles, California 90010 (3 copies)

District Attorney

County of Los Angeles

210 West Temple Street

Los Angeles, California 90012 (1 copy)

Court of Appeal, Second App ellate District

3580 Wilshire Boulevard (Ref. No. 24 Crim. 38984)

Los Angeles, California 90010 (1 copy)

Clerk of the Superior Court

200 West Compton Avenue .

Compton, California 90220 (1 copy)

Ref. Super. Ct. No. A617415)

I declare under penalty of perjury that the foregoing is true and correct.

Executed on JANUARY _, 1982, at CORONA,

Dean-Standefer,1340 West Sixth St., Corona, Ca. 91720

(714) 734-081 1