prior police interrogation practices

PEOPLE v. MEMRO, 38 Cal. 3d 658, 700 P.2d 446, 214 Cal. Rptr. 832 (1985) (edited & some footnotes omitted)

OPINIONBY BIRD, J.: This is an automatic appeal from a judgment imposing a sentence of death under the 1977 death penalty legislation. (See Pen. Code, § 1239, subd. (b), former Pen. Code, § 190 et seq., repealed by initiative measure approved Nov. 7, 1978.)

Of the numerous claims made on appeal, this court need consider only one -- that the trial court erred in summarily denying appellant's discovery motion. Decisions of this court, recently codified by the Legislature, require that this contention be sustained and that appellant's convictions be reversed.

I.

A. Procedural History

Appellant was accused by information of murdering Scott F. and Ralph C. on July 26, 1976, and Carl C., Jr. (Carl Jr.), on October 22, 1978. The prosecution also alleged a multiple murder and a felony-murder (lewd or lascivious conduct) special circumstance in connection with the 1978 murder count. (Former § 190.2, subds. (c)(3)(iv) and (c)(5).)

Prior to trial, appellant moved to suppress his confessions as well as certain other evidence relating to the crimes. The motion was premised both on an asserted lack of probable cause for appellant's arrest and on the involuntary nature of his confessions. This motion was denied.

Thereafter, appellant waived his right to a jury trial on the question of guilt, and the case was transferred to a different judge for trial. In an in limine motion under Evidence Code section 405, appellant renewed his motion to suppress the confession on the ground of involuntariness. Although live testimony was presented, the motion was submitted primarily on the transcripts of the pretrial suppression motion and the preliminary examination. This motion was denied.

A trial on the merits was then had based on the evidence presented at the hearing on the in limine motion. After additional testimony from the defense was presented, the court found appellant guilty of (1) first degree murder as to the Carl Jr. and Ralph C. killings and (2) second degree murder as to the Scott F. homicide. The court also found the multiple murder special circumstance allegation true and the felony-murder special circumstance allegation not true.

Appellant waived his right to a jury trial on the question of penalty. At appellant's request and because of disagreements between appellant and his counsel, counsel was relieved. A second lawyer was appointed, but was later permitted to withdraw on his own motion. The penalty phase proceedings were eventually conducted, over appellant's objection, without the presence of an attorney for the defense. No additional evidence was presented. Thereafter, the court imposed a judgment of death for the 1978 Carl Jr. murder. Appellant was sentenced to prison for life and for the term prescribed by law for the 1976 Scott F. and Ralph C. murders, respectively.

B. The Disappearance of Carl Jr. and the Arrest

About 8 p.m. on Sunday, October 22, 1978, the parents of seven-year-old Carl Jr. called the South Gate Police Department to report that their son had been missing since about 6 o'clock that evening. The police quickly began searching for the boy but were unable to locate him. Detective William Sims of the South Gate Police Department was assigned to investigate the disappearance. In the course of his investigation, Sims contacted one Joan Julian, a psychic. Julian helped a police artist prepare a sketch of a person whom she visualized as having been with Carl Jr. at the time of his disappearance.

On Friday, October 27, 1978, Detective Sims went to the missing boy's parents' house and showed them the sketch. They said it resembled "Butch," a name commonly used for appellant. They told Sims that Carl Sr. (the missing boy's father) occasionally repaired cars for appellant and that appellant had dropped off his Volkswagen for repair about 11 p.m. on the night their son disappeared. Having no "good information" with regard to Carl Jr.'s disappearance and wanting to check out all possible leads, Detective Sims decided to talk with appellant "as a witness."

Sims and his partner Detective Louis Gluhak drove to appellant's apartment, which was located about one and one-half miles from Carl Jr.'s home. Sims knocked on the door, and appellant answered. The officers identified themselves and explained that they were investigating the disappearance of Carl Jr. Appellant invited them in. When the officers requested identification, appellant produced his driver's license. At some point, appellant said, "I knew you were coming sooner or later." Stating that the officers were "going to find out anyway," appellant indicated he had previously been in Atascadero State Hospital because he "went into a fit of rage and beat the shit out of a nine-year-old boy" in Huntington Park. Apparently, the officers did not inquire further into this topic.

Detective Sims asked appellant if he "had seen anything unusual in the area of [Carl Jr.'s home] the night he was dropping off his vehicle for Mr. [C.] to repair."

Appellant said no.

While talking to appellant, the officers noticed on the walls and shelves "literally hundreds" of photographs of clothed and partially clad young boys. They also saw numerous "magazine type" pornographic books on the floor and the furniture. The officers testified these items were plainly visible from where they sat in the living room. They denied searching the apartment during this visit. n4

n4 Appellant admitted that photographs of nude boys were in his apartment, but denied they were in plain view. He claimed they were in the bedroom in a manila envelope that in turn was inside a blue document pouch.

The defense argued that it was unlikely that appellant would have had these items plainly visible in the apartment, especially if, as the officers contended, appellant knew they were coming. Instead, appellant claimed that this photographic material was discovered during a subsequent warrantless search of the apartment, conducted while appellant was being interrogated at the jail. The police denied that such a search occurred. Appellant corroborated his claim with the testimony of three witnesses. They had visited the apartment, and had observed no pornographic photographs or magazines on the walls or otherwise in plain view.

The officers then departed. Although appellant had told the officers he was going to purchase the automobile part that Carl Sr. needed to repair his Volkswagen, he remained behind in the apartment.

The officers conducted a relatively brief search of the apartment, but seized nothing. All three then left the apartment together, appellant intending to purchase the part for his Volkswagen. Sims then asked for permission to search the trunk of appellant's Plymouth. Appellant again acquiesced, and a search was conducted. Nothing was seized.

The officers drove back to Carl Jr.'s residence and spoke again with his parents, inquiring primarily about appellant. About 15 minutes later, appellant arrived with the part for the Volkswagen. He delivered it to Carl Sr., who said he would fix the car. As appellant started walking back toward his Plymouth, the officers followed. When appellant and the officers arrived at the Plymouth, Sims asked him to explain what he had seen when he dropped off the Volkswagen on the night of Carl Jr.'s disappearance. Appellant replied, "Oh, yeah. I remember now." He then related that about 6 p.m. on Sunday he had gone to a restaurant located near the C.'s home. The line was too long, so he decided to stop by the house to talk to Carl Sr. about working on the car. When appellant got to the back door of the house, he met Carl Jr. and asked him if he wanted to have a Coke. Appellant then took the boy to a restaurant about three or four blocks away and bought him a soft drink. Appellant indicated that the last time he saw Carl Jr., the boy was walking down the street toward his home. He denied that he had harmed the boy.

After appellant made these remarks, Detective Sims arrested him for "investigation of 207," or "suspicion of kidnaping." Appellant was handcuffed and driven to the South Gate City jail.

Shortly thereafter, Detective Gluhak joined the conversation. One of the officers asked if appellant would be willing to take a polygraph test. After some discussion, appellant agreed. Because of his dinner date, he wanted to schedule the test for the following Monday, but Sims wanted it done that evening. Sims said that it would not take long and that appellant would be on his way quickly. Appellant then agreed, and he was driven -- without handcuffs -- to the police station.

C. The Interrogations

The record contains sharply conflicting versions of what occurred between appellant's arrival at the South Gate City jail and his confessions some five hours later. According to the officers involved, appellant was driven to the jail by Detectives Sims and Gluhak immediately after the arrest. He was placed in an eight-by-twelve-foot interrogation room where he was joined by the two officers. At approximately 5:15 p.m., appellant was advised of and voluntarily waived his constitutional rights. (See Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 1074].) He essentially reiterated what he had told the officers just prior to his arrest.

Appellant returned to his cell. Thereafter, Sims directed two other officers -- Detectives Lloyd Carter and Dennis Greene -- to make some inquiries of people living in appellant's neighborhood. These inquiries did not produce any new information. The officers did not search appellant's home or his Plymouth at that time.

At some point, Sims and Gluhak informed Carter that appellant "was not giving any information about the case." They requested Carter to assist them in the interrogation. About 10 p.m., after Carter and Greene had returned to the jail, appellant was brought into the interrogation room for a second time. Appellant and the four plainclothes officers (Sims, Gluhak, Carter, and Greene) were present. To "explain [Carter and Greene's] presence," Carter told appellant that he (Carter) was "the boss" or "the boss man" and that "what [he] said went." Sims again advised appellant of his Miranda rights, and appellant again waived them. Carter conducted the subsequent interrogation.

Initially, appellant said he would not speak with Carter because he thought the interrogation room might be "bugged." Appellant asked Carter to have the other officers leave the room, and he requested that Carter prove there were no hidden tape recorders or listening devices. The three officers left, and Carter and appellant inspected the room. They found nothing. Appellant also wanted to know whether Carter was going to take notes of the interrogation. Carter indicated he would do what appellant desired, and appellant responded that he did not want any notes taken.

The other three officers then returned to the interrogation room, and appellant proceeded to confess to killing Carl Jr. In addition, when asked whether he was responsible for "other such incidents," he confessed to killing two other youths in Bell Gardens in 1976. The interrogation session ended about 12:30 a.m. Thereafter, while waiting to take the officers to Carl Jr.'s body, appellant agreed to repeat his confessions and to permit Carter to take notes. At no point during the interrogations did appellant request a lawyer, nor did the officers make any express or implied promises or threats during the second interrogation.

Later that night, according to the South Gate officer who transported appellant back to the jail from the area where Carl Jr.'s body was recovered, appellant remarked that Detective Carter had been "a very wonderful person" to him. Appellant further stated that the South Gate officers "had been very, very nice to him, and he couldn't understand how [they] could be so nice to him since he had done such a terrible thing." The following afternoon, appellant told officers from Bell Gardens that he was being treated "fine." He also "made some comment about his admiration for Detective Carter."

The defense version of these events was quite different. According to appellant, there were four separate interrogation sessions, none of them preceded by Miranda warnings. The first two interrogations were conducted by Detectives Sims and Gluhak. At the first session, appellant repeated the story he had told the officers prior to his arrest. (See ante, fn. 6.) At the second, Sims showed appellant some boys' clothing and asked why it had been in appellant's apartment. Appellant denied that the clothing belonged to the missing boy, but Sims appeared to disbelieve him.

Appellant then asked about the delay in setting up the lie detector test. Sims said he was not going to give the test, because he had been informed by the Huntington Park police that appellant was a "sicko." Appellant replied that he still wanted to go home. Sims became angry and told appellant he was under arrest for kidnaping. Appellant was then taken to a small one-person jail cell. Some time thereafter, appellant was brought to the interrogation room for a third time. Detectives Sims, Gluhak, Carter, and Greene were there. Carter stated that he was the "boss man" and that he was going to get some answers. Appellant repeated the story he had told Sims and Gluhak.

Carter was not satisfied with appellant's answers. Carter then made reference to Detective Greene, a large, muscular officer who was sitting on the floor at the interrogation room door, flexing his muscles. Carter noted that Greene was a "pretty big guy" and asked appellant if he thought he could beat Greene in a fight. Appellant said no. Carter indicated that Greene knew how to fight and how to get answers. n9

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n9 Appellant is 5 feet 10 inches tall and weighed 165 pounds. Detective Greene, a weightlifter, is 6 feet 2 inches tall and weighed between 220 and 225 pounds. Greene testified that he spent most of the interrogation either standing or sitting directly against the interrogation room door.

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Carter directed appellant's attention to a portion of the interrogation room wall where the plaster had been broken out. This four- or five-inch wide depression or "hole" was located to appellant's right, about shoulder level as he sat at the table. Carter asked appellant how he thought the hole had been created. Appellant understood that Carter was "either planning on enlarging it or making another one similar with [appellant's] head." Appellant changed the subject.

Appellant asked Carter why he had not been given his rights. Carter said that the police had "intentionally" done a number of things wrong. Carter indicated that he knew appellant was mentally ill and that he could help him return to Atascadero State Hospital if he cooperated. Appellant said he had cooperated when he agreed to take the polygraph test.

The officers then directed appellant to stand up, pull up his shirt, and drop his pants to his knees. One of the officers stated that they had found some pictures, and "were just comparing what they could see against the pictures." Appellant complied.

Appellant said he wanted to talk with a lawyer, but Carter became angry and asked appellant whether he wanted to talk or fight. Carter again asked appellant how he thought the hole in the wall had been created.

Appellant began to cry. Carter again said he would have appellant returned to Atascadero if he cooperated. Appellant asked permission to talk with Linda B., an acquaintance who was also a reserve deputy sheriff and lived nearby. Carter agreed, and appellant was allowed to make two telephone calls.

Shortly after completing the telephone calls, appellant was brought to the interrogation room for the fourth time. The four officers were present. Appellant asked Sims where Linda B. was, and Sims indicated she was out front. Appellant said he wanted to talk with her, but Sims refused, saying appellant should have talked with her on the telephone.

Detective Carter then began intensive questioning about the kidnaping. Appellant was afraid of the four officers in the room, especially Greene. He asked to speak to Carter alone, since he "figured if [he] was talking alone, [he] was less likely to get hurt." All the officers except Carter then left the room.

Appellant asked Carter if the room was "bugged." Carter said no and offered to help check it out. Appellant declined, saying it was not possible to "check it out physically that way." Appellant told Carter that "the reason [he] wanted to talk to him alone, other than being afraid of Greene, was that if [Carter] couldn't, wouldn't, or changed his mind about keeping his promise about sending [him] back to Atascadero, then [he] would deny everything that [Carter] claimed [he] said during that interrogation." Carter agreed to this plan. Appellant then reiterated the story he had been telling throughout the evening. Carter "reminded" appellant that Greene was nearby and that "there were ways of finding out." He said "[maybe] [appellant] would like [his] head to make a matching hole in the wall or something." Appellant began to cry and confessed to killing Carl Jr. Carter said this was not enough to get appellant back to Atascadero and asked if there were other incidents. Appellant said there were none. Carter said appellant would not live long in a state prison and "wondered if Greene could uncover anything else." Appellant then confessed to the 1976 Bell Gardens killings.

The other officers then returned to the room and appellant repeated his confessions.

On many of the critical points, appellant's testimony was contradicted by that of the interrogating officers. In addition to testimony previously mentioned, Detective Carter denied telling appellant he would try to have him admitted to Atascadero State Hospital. Carter and Greene also denied that there was any discussion of a hole in the interrogation room wall or that they ever used such a hole as a threat or an "interrogation tool." Carter remembered that such a hole had existed, but he was unable to recall whether it was still there on the day of appellant's interrogation.

The defense sought to support appellant's testimony in several ways. For example, the defense attempted to photograph the hole in the interrogation room wall. On December 14, 1978, defense counsel sought an ex parte order authorizing his investigator to photograph the hole. In a supporting affidavit, counsel articulated his fear that "if [the police are] given sufficient warning, the hole, if it exists, may be repaired." The trial court declined to issue an ex parte order, but the following day the investigator was allowed to photograph the interrogation room. He found a fresh plaster patch, about 12 inches square, covering the area where appellant testified the hole had been.

In addition, appellant moved the court for discovery of the records of complaints of excessive force and aggressive behavior on the part of the four interrogating officers, as well as twelve other South Gate officers who assertedly trained or supervised them. At the hearing on the discovery motion, defense counsel stated that despite "a limited ability to get witnesses in this regard," he had been able to find three or four persons who had assertedly confessed after being threatened or beaten by South Gate police officers. n12 One of these persons was a man who had allegedly confessed to a murder and led police officers to the victim's body, but whose case was dismissed when the prosecution discovered that the man had been in jail at the time of the killing. The court summarily denied the discovery motion.

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n12 Counsel stated he also had "probably five or six other people" with "similar" experiences with South Gate police officers. In addition, the superior court judge sitting at the hearing on the discovery motion was apparently "in the middle of a hearing where somebody hung himself while being interrogated by the South Gate Police Department or during investigation by the South Gate Police Department." Defense counsel did not specifically correlate any of the various incidents with the officers mentioned in the discovery motion.

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Thereafter, on his own, defense counsel attempted to locate witnesses to other confessions assertedly coerced by threats or violence by South Gate officers. n13 In the 10 months he represented appellant prior to trial, counsel came across 17 such persons, none of whom knew of appellant at the time they made their allegations of mistreatment. Only two of these persons -- Angelina N. and Michael B. -- implicated any of the officers who had interrogated appellant. The trial court permitted them -- but none of the remaining individuals -- to testify at the hearings on appellant's motions. n14

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n13 The size of the South Gate Police Department is not made clear in the record. Defense counsel suggested that the 16 officers mentioned in his discovery motion comprised the department's detective bureau. The prosecutor believed that the 16 officers were "almost the whole department."

n14 Also not permitted to testify were the lawyers who had been in charge of the South Gate branch of the Los Angeles Public Defender's office during the previous two and one-half years. In his offer of proof, defense counsel represented that these witnesses would testify that during their tenure, "neither they nor to their knowledge anybody under them ever received a call from the South Gate Police Department requesting counsel to be present during questioning or prior to questioning of any individual that was in custody."

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Both Angelina N. and Michael B. testified to having been beaten and threatened by Detective Greene. Angelina stated that during an interrogation on November 1, 1978, Greene pointed to a hole in the interrogation room wall and told her he "was going to push [her] head through that hole the same way he did to someone else's." Michael testified that Greene interrogated him on February 2, 1979. During the interrogation, Greene accused Bridges of lying, adding that "if [Michael] didn't tell him what he wanted to know that he would put [his] head through the [interrogation room] wall." Greene also mentioned "something about that they paint the room so often because they be knocking [sic] the paint off the wall."

At the hearing, Greene denied striking Angelina and said he did not interview her alone in the interrogation room as she had testified. Greene did not testify in response to Michael's claims.

II.

Prior to trial, appellant moved to discover information regarding complaints against South Gate Police Department officers -- including the four officers who had participated in appellant's postarrest interrogation. His motion requested the identity of individuals who had filed complaints "relating to unnecessary acts of aggressive behavior, ... violence, and/or attempted violence, and ... excessive force and/or attempted excessive force" against 16 officers in the department. Appellant also sought discovery of investigative reports based on these complaints, including statements of witnesses interviewed, information concerning the officers' use of excessive force or violence contained in personnel files, statements of psychiatrists, psychologists, or other officers contained in such files, and findings of disciplinary actions taken against any officers as a result of their use of force and violence. The purpose of such information, it was alleged, was to enable appellant to bolster his claim that his confession had been coerced. At the hearing on the motion, defense counsel furnished additional information to the court. He revealed statements by four individuals who had asserted brutality and intimidation by South Gate officers during recent interrogations. In addition, counsel presented an affidavit in which the supervising public defender in South Gate indicated the absence of any "Miranda calls" during his tenure in that office. (See ante, p. 673 & fn. 14.)

Following argument by counsel and the prosecutor, the trial court denied the motion. Appellant claims error in this ruling.

The Attorney General posits a number of reasons why this court should uphold the trial court's ruling. First, he maintains that appellate review should be precluded because appellant failed to seek a pretrial writ to overturn the ruling. Second, he contends that the trial court's denial of the discovery motion was proper because appellant failed to personally aver that his confession was the product of excessive police force. Third, even assuming the propriety of a declaration by counsel, respondent claims that the motion was deficient in that it failed to show a "plausible justification" for the desired information. Finally, he asserts that the information sought by the motion was unnecessarily broad to fulfill its intended purpose.

Respondent's first contention is that appellant's failure to seek pretrial review of the discovery ruling precludes this court from reaching the merits of the claim. ...

This argument is without merit. ...

...

Respondent's next contention in favor of the trial court's ruling is that appellant demonstrated no "plausible justification" for the information requested. ...

...

... In his motion, appellant sought to discover nine categories of information relating to conduct on the part of sixteen named South Gate police officers. n21 In the accompanying declaration, counsel alleged that four of the named officers had been present during appellant's confession, which appellant asserted "came after an illegal arrest, promises of leniency, and threats of violence by the officers present." All 16 officers were alleged to have been trained by each other and to "follow the same general interrogation routine."

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n21 The nine categories of information requested in appellant's motion were:

"1. The names and addresses and telephone numbers of all persons who have filed complaints with the South Gate Police Department against Officers Sims, Gluhack, [Greene], Carter, Smith, Simpcoe, Porter, Fitzgerald, Biggins, Kennedy, Nixon, Meyers, Christ, Miller, Brunty, and Troxcil relating to unnecessary acts of aggressive behavior, acts of violence, and/or attempted violence, and acts of excessive force and/or attempted excessive force.
"2. The dates of the filing of the complaints described in item number 1, supra.
"3. The names, addresses, telephone numbers, and any other information which would assist the defense in locating all persons interviewed by the South Gate Police Department, investigators and other personnel during investigations into said complaints as described in item number 1, supra. "4. Verbatim copies of all statements, written or oral, made by persons who have brought complaints as described in item number 1, supra.
"5. Verbatim copies of all statements, written or oral, made by persons interviewed during investigations as described in item number 1, supra.
"6. Verbatim copies of all investigative reports made as a result of the complaints described in item number 1, supra.
"7. Verbatim copies of all records, reports, reports of investigations, and all other writings pertaining to the use of excessive force, aggressive conduct and/or violence, and improper tactics by the above-named officers contained in his personnel files or in the possession of said police agency.
"8. All records of statements, reputations, and opinions, including but not limited to findings, letters, formal reports, and oral conversations made by psychiatrists, psychologists, superior officers, and fellow officers of the above-named officers which pertain to unnecessary acts of aggressive behavior, acts of violence and/or attempted violence and acts of excessive force or attempted excessive force contained in the personnel files of said officers or in the possession of said police agency.
"9. All findings, reports, opinions, and transcripts of disciplinary actions or proceedings commenced or taken against the above-named officers by the South Gate Police Department, relating to said officers['] use of excessive force, aggressive conduct and violence."

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Counsel also alleged that the information "would be used to show a continuing course of conduct by the South Gate Police Department which includes extraction of involuntary confessions or the attempt to extract involuntary confessions from citizens being detained or under arrest by the use of violence or attempted violence or force or threats of force, or unlawful aggressive behavior." In addition appellant hoped that such information would lead to evidence showing that it was the "habit and custom" of the officers to engage in violent behavior. He also sought to use the information to "effectively cross-examine said officers at trial, and for impeachment purposes where appropriate." The declaration further alleged that the South Gate Police Department was in possession of such information, and that the information was "not known to defendant or his counsel ...." The Evidence Code clearly supported appellant's theory of discovery. Discovery might lead to evidence of habit or custom admissible to show that a person acted in conformity with that habit or custom on a given occasion. (Evid. Code, § 1105.) (See fn. 22.) "Habit" or "custom"n22 is often established by evidence of repeated instances of similar conduct. (See, e.g., Dincau v. Tamayose (1982) 131 Cal.App.3d 780, 793-796 [182 Cal.Rptr. 855].) Plainly, evidence that the interrogating officers had a custom or habit of obtaining confessions by violence, force, threat, or unlawful aggressive behavior would have been admissible on the issue of whether the confession had been coerced.

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n22 " 'Habit' means a person's regular or consistent response to a repeated situation. 'Custom' means the routine practice or behavior on the part of a group or organization that is equivalent to the habit of an individual." (2 Jefferson, Cal. Evidence Benchbook (2d ed. 1982) § 33.8, p. 1267.)

Furthermore, evidence of reputation, opinion, and specific instances of conduct is admissible to show, inter alia, motive, intent, or plan. (Evid. Code, § 1101, subd. (b).) Evidence that the interrogating officers had acted according to a plan or with a motive to coerce appellant's confession, or had intended to do so, would have been relevant to appellant's claim of involuntariness. Reputation or opinion evidence would also have been relevant on this issue. (3 Hogan, Modern Cal. Discovery (1981) § 20.03, p. 147; see par. 8 of appellant's request, ante, fn. 21.)

...

Respondent relies on Tyler v. Superior Court, supra, 102 Cal.App.3d 82, for the conclusion that appellant was not entitled to discover evidence pertaining to his coerced confession claim. That decision is neither persuasive nor on point.

In Tyler, the accused sought discovery of information regarding the officers' involvement in false arrests or illegal searches. ( Id., at p. 84.) He alleged "substantial inaccuracies" in the officers' preliminary examination testimony regarding the search and seizure in the case, as well as a "substantial likelihood" of such unlawful conduct in the past. ( Id., at p. 85.)

The Court of Appeal upheld the trial court's order denying discovery. First, the court held specific acts would not be admissible to attack the arresting officers' credibility. (Evid. Code, § § 787, 1101, subd. (a).) Second, assuming the evidence would have been offered to prove a "common scheme or plan" or "habit or custom" on the officers' part, the accused failed to allege sufficient facts about the incident or its relation to other such incidents to establish a "plausible justification" for the discovery. ( Tyler v. Superior Court, supra, 102 Cal.App.3d at pp. 88-90.0

Tyler's "credibility" rationale is unconvincing. It is true that in a voluntariness hearing "the trial court will often have to decide which one of two self-serving accounts to believe, as the testimony presented at [such a] hearing ordinarily consists of conflicting versions by the defendant and law enforcement officers as to what occurred during the interrogation of the defendant ...." ( People v. Jimenez, supra, 21 Cal.3d at p. 606.) However, where self-defense is asserted to a charge of battery on a police officer or resisting arrest, a similar task is performed by the trier of fact. Such cases might also be viewed as credibility contests between the officer and the arrestee. However, Pitchess makes it clear that specific acts of conduct are admissible. Thus, to deny an accused Pitchess-type discovery on the assumption that its fruits would be used for impeachment fails to acknowledge the existence of other admissible grounds for the use of such evidence. On this point, Tyler fundamentally misreads the purpose of Pitchess discovery. To adhere to its premise would contravene well-settled law.

Tyler's second rationale is inapposite here and misconstrues the "good cause showing" requirement in discovery cases. As counsel's declaration in this case alleged, the information was sought to establish the officers' habit and custom for obtaining confessions by the use of force, violence or threats. This was sufficient. Appellant was not required to specify further the details of his claim of coercion in order to obtain the requested information. (See ante, at pp. 682-683.)

Appellant was also not required to furnish additional "foundational facts" about the information he sought in his motion. ( Tyler v. Superior Court, supra, 102 Cal.App.3d at p. 89.) Since appellant did not have access to prior complaints about the officers, he was not in a position to know whether the complaints in fact established the custom, habit, intent, motive or plan which he alleged. (Cf. Pitchess v. Superior Court, supra, 11 Cal.3d at pp. 537-538.) To require specificity in this regard would place an accused in the Catch-22 position of having to allege with particularity the very information he is seeking. Neither the Evidence Code nor Pitchess was intended to be applied in this manner. In sum, under Pitchess and the Evidence Code, appellant demonstrated good cause for the requested discovery. The trial court abused its discretion when it summarily denied his motion.

III.

This court must next determine the consequences of the trial court's ruling. It is settled that an accused must demonstrate that prejudice resulted from a trial court's error in denying discovery....

It is clear that prejudice exists in this case. The trial court was required to determine from the evidence presented at the hearing on appellant's motion to exclude the confession whether it was voluntary beyond a reasonable doubt. ( People v. Jimenez, supra, 21 Cal.3d at p. 608.) Since the denial of discovery deprived appellant of the possibility of presenting evidence on that issue, the trial court did not make as informed a determination as it might have if discovery had been granted. n28

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n28 As noted, evidence of coercion would have been admissible at trial on the question of what weight the trier of fact should have given the confession. ( People v. Jimenez, supra, 21 Cal.3d at p. 607; Jackson v. Denno, supra, 378 U.S. at p. 386, fn. 13 [12 L.Ed.2d at p. 921].) Obviously, the trial court's failure to accord appellant an opportunity to discover evidence of coercion precluded him from presenting any such evidence as to whether the confession should have been believed, even assuming it was properly admitted.

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...

Finally, this court addresses respondent's claim that appellant's discovery request was too broad. In so doing, guidance is given to the trial court for retrial. As will be seen, there is some merit to respondent's claim. As Pitchess makes clear, "the right of an accused to obtain discovery is not absolute." (11 Cal.3d at p. 538.)

On its face, appellant's request for the identities of all complainants of excessive force was overly broad. Since appellant sought the information to bolster his claim of involuntariness in the interrogation setting, only complaints by persons who alleged coercive techniques in questioning were relevant.

In addition, it is necessary to determine whether appellant was entitled to discover information about the 12 officers who were not directly involved in the interrogation. Some Courts of Appeal have restricted discovery to information about the incident which gave rise to the criminal charge. (See, e.g., Reyes v. Municipal Court, supra, 117 Cal.App.3d 771 [entrapment defense in solicitation for prostitution charge; discovery of identities of individuals arrested by officer on same occasion denied].) In the Pitchess context, a few Courts of Appeal have limited discovery to information about the officers directly "involved in the fracas ...." ( Hinojosa v. Superior Court (1976) 55 Cal.App.3d 692, 697 [127 Cal.Rptr. 664]; see also Craig v. Municipal Court (1979) 100 Cal.App.3d 69 [161 Cal.Rptr. 19] [self-defense in resisting arrest and battery case; discovery of identities of all persons arrested by officers on similar charges during preceding two years denied].)

Other Courts of Appeal have not read Pitchess so restrictively. ( Cadena v. Superior Court, supra, 79 Cal.App.3d at pp. 218-221 [complaints against "all the named participating officers" discoverable]; Dell M. v. Superior Court, supra, 70 Cal.App.3d at p. 787 [complaints against officer who acted in concert with arresting officer discoverable]; Kelvin L. v. Superior Court (1976) 62 Cal.App.3d 823, 828-829 [133 Cal.Rptr. 325] [complaints against one of detaining officers not involved in altercation discoverable].) In these cases, the courts have reasoned that even though evidence of prior misconduct may not turn out to be admissible, the accused is entitled to any information which may lead to relevant evidence on an issue raised by the facts of the case. (Id., at p. 828.)

Appellant's discovery claim was more akin to those advanced in Cadena, Dell M., and Kelvin L., since it alleged both direct and indirect involvement by all the officers in the South Gate Police Department. n29 Moreover, Evidence Code section 1045, subdivision (c) also supported appellant's request for information about the noninterrogating officers. That statute expressly recognizes that "the policies or pattern of conduct of [an] employing agency" may be relevant to "the issue in litigation." (See ante, fn. 20.) Counsel's declaration alleged "a continuing course of conduct by the South Gate Police Department which includes extraction of involuntary confessions." Clearly, appellant's purpose in obtaining discovery was to show a "pattern" or "policy" within the department to obtain confessions by unlawful methods. Such a showing could properly be made by evidence of custom or habit (see 2 Jefferson, Cal. Evidence Benchbook, op. cit. supra, § 33.8, p. 1267), or by evidence that the officers were engaged in a plan to obtain confessions by such means. (Evid. Code, § 1101, subd. (b).)

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n29 According to the district attorney, the 16 officers named in appellant's motion comprised "almost the whole [South Gate Police] department."

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However legally sound appellant's theory of discovery of complaints against the 12 noninterrogating officers may have been, there was no foundation to grant it on the evidence before the trial court. Absent a link between any of the noninterrogating and interrogating officers, the relevance of the "policy" or "pattern of conduct" sought to be proven was slight. Therefore, without some showing that any of the noninterrogating officers trained or otherwise had substantial contacts with any of the four interrogating officers, complaints about the former group were not discoverable. Should appellant renew his request for such information, he is required to make such a showing. n30 If evidence of this "link" is not "'readily [obtainable] ... through his own efforts'" ( Pitchess v. Superior Court, supra, 11 Cal.3d at p. 537), appellant is entitled to enlist the trial court's aid through a separate motion for discovery.

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n30 As a preliminary matter, the court should first determine whether information about the "policy" or "pattern of conduct" in the South Gate Police Department "may be obtained from other records maintained by [the department] in the regular course of [department] business which would not necessitate the disclosure of individual personnel records." (Evid. Code, § 1045, subd. (c).)

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Several restrictions on discovery -- which appear in Evidence Code section 1045 -- were also applicable. For example, although reports of internal investigations were "once generally permitted under established Pitchess principles," their disclosure "is now circumscribed under the statutory scheme." ( Arcelona v. Municipal Court, supra, 113 Cal.App.3d at pp. 530-531.) As Evidence Code section 1045, subdivision (b)(2) now provides, the conclusions resulting from internal investigations of citizens' complaints are excluded from disclosure. (See ante, fn. 20.) Thus, appellant was not entitled to such information.

A similar conclusion holds for complaints concerning conduct which occurred more than five years before the interrogation in this case (Evid. Code, § 1045, subd. (b)(1)), or for "[facts] sought to be disclosed which are so remote as to make disclosure of little or no practical benefit." (Id., subd. (b)(3).) However, complaints regarding conduct which occurred after the interrogation in this case may be relevant to coercion. In the event the motion is renewed below, the trial court should exercise its discretion in this regard. ( Dincau v. Tamayose, supra, 131 Cal.App.3d at pp. 795-796; People v. Shoemaker (1982) 135 Cal.App.3d 442, 447-449 [185 Cal.Rptr. 370].)

This court must also determine whether discovery of statements of psychiatrists or psychologists contained in the officers' personnel files was proper. (See par. 8, ante, fn. 21.) At first blush, this information appears to be protected by the psychotherapist-patient privilege. (Evid. Code, § 1014.) n31 However, no privilege applies "if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger." (Evid. Code, § 1024.)

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n31 Evidence Code section 1044 expressly does not affect a party's right of access to a peace officer's psychological records contained in such files if the officer places his mental or emotional condition in issue. (See Evid. Code, § § 996, 1016; Selected Legislation, op. cit. supra, 10 Pacific L.J. at p. 432.) Since none of the officers did so here, appellant's right of access to such records had to be authorized by other provisions of the Evidence Code.

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Two Courts of Appeal have dealt with similar discovery requests in the Pitchess context. In Lemelle v. Superior Court (1978) 77 Cal.App.3d 148 [143 Cal.Rptr. 450], a two-justice majority held that the trial court did not abuse its discretion in refusing discovery of records of psychiatric or psychological opinions regarding a propensity for the officers' violence. ( Id., at pp. 157-162.) However, the court noted that the accused was "not precluded from presenting to the trial court hereafter any appropriate motion ... to test the applicability of Evidence Code section 1024 and for an in camera inspection of these records if they exist." ( Id., at p. 160.)

In Arcelona v. Municipal Court, supra, 113 Cal.App.3d 523, several individuals were accused of felony offenses in connection with a civil disturbance following the verdicts in the homicide trial of former San Francisco Supervisor Dan White. They sought discovery of psychological test results and performance evaluations which showed the officers' tendency to use excessive force or a tendency toward homosexual bias. ( Id., at p. 528, fn. 2.) The court held that the potential probative value of this information for the purpose of demonstrating bias by the officers and self-defense by the accused was "remote and purely speculative." ( Id., at p. 531.) The court further held that the privacy rights of the officers outweighed the value of this information to the accused. ( Id., at pp. 531-532.)

Beyond appellant's allegations that the records sought would possibly demonstrate the officers' custom for unlawfully extracting confessions, his motion did not specify why the mental health records in particular should have been disclosed. Nevertheless, the position of the petitioners in Lemelle and Arcelona is a sound one. In an appropriate case, an individual officer's interest in privacy must give way to the accused's need for information relevant to an issue in his case.

As the late Justice Tamura wrote in dissent in Lemelle, "the peril to which the public is exposed by a police officer who is suffering from a mental or emotional condition which renders him violence prone or causes him to demonstrate racial bias is a danger of sufficient gravity to justify the invocation of the exception provided by Evidence Code section 1024." ( Lemelle v. Superior Court, supra, 77 Cal.App.3d at p. 168 (dis. opn.).) This statement applies with equal force to officers who allegedly obtain confessions by unlawful methods.

As Justice Tamura suggested in Lemelle, the trial court here should order production of the mental health records of the four interrogating officers. As with any of the information which the prosecution is ordered to produce, these records should be examined in camera. If the court concludes that the records are not protected by the psychotherapist-patient privilege, they may be disclosed to appellant in the interests of justice. (Evid. Code, § 1045, subds. (b)(3), (d).) As with any of the information produced under appellant's motion, if the court deems it necessary to protect the officers from "unnecessary annoyance, embarrassment, or oppression" associated with the disclosure of such records, it may fashion an order appropriately directed toward that end. (Id., subd. (d).) n32

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n32 Mental health records of the 12 noninterrogating officers should be produced for an in camera inspection only if certain conditions are met: (1) that no other records of the police department will suffice (Evid. Code, § 1045, subd. (c)); (2) that a sufficient "link" between a particular noninterrogating officer and any of the interrogating officers has been demonstrated (see ante, at pp. 686-687); and (3) that a particularized showing of need for mental health records has been made. These officers were not directly involved in the interrogation. Therefore, without a particularized showing that mental health records are necessary, their right to privacy should be maintained.

One additional point must be made. Evidence Code section 1040 gives the agency in possession of the requested information a "formal privilege to refuse to divulge official information when the need to maintain its secrecy is greater than the need for disclosure in the interests of justice." ( Pitchess v. Superior Court, supra, 11 Cal.3d at p. 538, fn. omitted.)

No such privilege was claimed here since the trial court denied appellant's motion. Therefore, upon appellant's renewed discovery motion, the South Gate Police Department may seek to establish the applicability of the conditional privilege provided for in Evidence Code section 1040. However, as in Pitchess, "the decision on the propriety of such a motion and its possible attendant consequences under Evidence Code section 1042, subdivision (a), will remain in the sound discretion of the trial court ...." ( Pitchess v. Superior Court, supra, 11 Cal.3d at p. 540; see also Kelvin L. v. Superior Court, supra, 62 Cal.App.3d at pp. 830-831; In re Valerie E., supra, 50 Cal.App.3d at pp. 219-220.)

IV.

At the hearing to determine the admissibility of the confession, appellant offered the testimony of 17 witnesses who alleged improper interrogation practices in the South Gate Police Department. Some of the proffered testimony was in specific reference to the use of the interrogation room "hole" as a coercive technique. (See ante, pp. 671-673.) In addition, appellant offered the testimony of three deputy public defenders who would have testified that during the two and one-half years preceding appellant's arrest, the public defender's office had not received any "Miranda calls" (see ante, fn. 14) from the South Gate Police Department.

Since the admissibility of such testimony is likely to be an issue in the event of a retrial, it is appropriate to guide the trial court in ruling on this motion.

As to the testimony of witnesses interrogated by the four officers who also participated in appellant's interrogation, the trial court should, as it did below, permit such testimony. However, whether the testimony from witnesses interrogated by the 12 "noninterrogating" officers is admissible will depend on whether appellant has demonstrated a link between any of those officers and the 4 "interrogating" officers. (See ante, at pp. 686-687.) Once such a link is established, the testimony should be admitted, since neither Evidence Code section 352 nor any other provision of law would prohibit it. (See People v. Castain, supra, 122 Cal.App.3d at pp. 142-143.) Such evidence may be presented on the question of whether the confession is admissible as well as on what weight the trier of fact should give it. ( People v. Jimenez, supra, 21 Cal.3d at p. 607.)

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VII.

The trial court erred in summarily denying appellant's discovery motion. This error requires a reversal of the guilt, special circumstance, and penalty phase verdicts. On retrial, if appellant elects to waive jury on the multiple murder special circumstance allegation, the trial court must take a separate and personal waiver from appellant.

The judgment of the superior court is reversed.

GRODIN, J., Concurring and Dissenting. I concur in the majority's holding that the trial court erred in denying appellant's discovery motion. I withhold my approval, however, from that portion of the majority opinion pertaining to the discovery of psychiatric or psychological statements or reports which may be found in officers' personnel files. (Ante, at pp. 687-689.) Moreover, I dissent from the majority's apparent holding that appellant is entitled to unqualified reversal and a new trial no matter what is revealed by the discovery which will now occur. If that discovery reveals no relevant and admissible evidence bearing upon the voluntariness of his confession, a new trial would be unnecessary and wasteful. In that event, and subject to evaluation of appellant's other assertions of error, his judgment of conviction could and should be affirmed.

I.

In the course of providing guidance for the trial court on retrial, the opinion undertakes to determine "whether discovery of statements of psychiatrists or psychologists contained in the officers' personnel files" is proper. Although the only two Court of Appeal decisions which have considered similar Pitchess ( Pitchess v. Superior Court (1974) 11 Cal.3d 531 [113 Cal.Rptr. 897, 522 P.2d 305]) requests for psychiatric records have found such discovery inappropriate (see Lemelle v. Superior Court (1978) 77 Cal.App.3d 148 [143 Cal.Rptr. 450]; Arcelona v. Municipal Court (1980) 113 Cal.App.3d 523 [169 Cal.Rptr. 877]), the majority proposes to adopt the reasoning and conclusion of Justice Tamura's dissent in Lemelle, directing the trial court to examine the psychiatric records of the four interrogating officers in camera and permitting disclosure if the court finds that the records are not protected by the psychotherapist-patient privilege by virtue of the exception to the privilege embodied in Evidence Code section 1024.

The majority's analysis and conclusion raise a number of questions in my mind. First, although recognizing that the examination of psychiatric records involves privacy concerns of a different nature than other personnel records, the majority imposes no heightened "good cause" requirement for obtaining review of such records but appears to suggest that in camera examination is routinely appropriate so long as the examination is limited to the psychiatric records of the officers directly involved in the alleged police misconduct. Does this mean that whenever a criminal defendant claims that a police officer used excessive force, the officer's psychiatric records will be subject to in camera scrutiny by the trial court, even if there is no indication that the officer has ever engaged in violent conduct previously and there is nothing else to support the defendant's allegation? Before we sanction such broad intrusion into these private records, should not we first determine if the disclosure of the less-private personnel records provides a justification for probing into the officer's psychiatric background?

Second, I have some question whether the exception to the psychotherapist-patient privilege embodied in section 1024 was really intended to authorize the type of discovery that the majority permits. Section 1024 provides that "[there] is no privilege under this article if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger." A number of authorities have recognized that this section was designed "to enable the therapist to initiate commitment proceedings and to testify in those proceedings when he determines the patient may present a danger to himself or others." ( Mavroudis v. Superior Court (1980) 102 Cal.App.3d 594, 603 [162 Cal.Rptr. 724].)

It is difficult to see how this purpose fits into the Pitchess discovery context. The majority -- quoting from Justice Tamura's dissent in Lemelle -- states that "the peril to which the public is exposed by a police officer who is suffering from a mental or emotional condition which renders him violence prone or causes him to demonstrate racial bias is a danger of sufficient gravity to justify the invocation of the exception provided by Evidence Code section 1024." I would imagine, however, that in almost any psychiatric session a patient may reveal something about his mental or emotional condition that may suggest that he could be "violence prone" or a danger to others under some circumstances. Does not the majority's application of section 1024 suggest that a police officer's therapy sessions -- whether included in police files or not -- could be routinely scrutinized for disclosures of such violent tendencies? And if this interpretation of section 1024 is valid, why would this exception not apply to psychiatric sessions of all persons generally, permitting civil plaintiffs in assault actions routinely to have a trial court examine in camera all psychiatric records of the defendant to determine if there are any revelations which demonstrate that he is violence prone?

I think there is a danger in adopting Justice Tamura's suggestion without a fuller consideration of the potential consequences. n1 At the very least we should insist upon some threshold showing before sanctioning wholesale invasion of privacy.

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n1 In Mavroudis v. Superior Court, supra, 102 Cal.App.3d 594, the Court of Appeal considered the application of section 1024 in the context of a discovery request made by a plaintiff in a Tarasoff ( Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425 [131 Cal.Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166]) action. There, the Court of Appeal set forth a rather elaborate procedure for the trial court to follow before authorizing disclosure: (1) The trial court must first examine the psychiatric records in camera to determine if the material reveals that the plaintiff was "readily identifiable" as a victim of the patient; if the plaintiff was not a readily identifiable victim, discovery is to be denied. (2) If the records reveal that the plaintiff was a readily identifiable victim, the court should decide whether the psychiatrist had determined, or reasonably should have determined, that the patient posed a serious danger of violence to the plaintiff. The Court of Appeal recognized that in making this determination, the trial court might have to resort to expert testimony, and it directed the trial court to appoint its own expert if it could not conclude, as a matter of law, that the psychiatrist should not have made such a determination. (See 102 Cal.App.3d at pp. 605-606.)

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If the Mavroudis application section 1024 were applied in the context of a Pitchess request, it seems clear that discovery would almost invariably be denied, because a criminal defendant seeking discovery is unlikely to be the kind of "readily identifiable" potential victim of the police officer to give rise to a Tarasoff duty to warn. At the least, Mavroudis provides some indication of the complex problems posed in attempting to use section 1024 as a basis for discovery, rather than as an authorization for disclosure by a psychiatrist.

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