Cash v. Superior Court

[74]

GIBSON, C. J.

Petitioner, who is charged by information with attempted burglary and solicitation to commit burglary, seeks a writ of mandate to compel respondent court to issue an order permitting him, prior to trial, to inspect and copy any recordings or transcriptions of conversations between him and Ned Barker, a police officer posing as a prospective accomplice.

At the preliminary hearing Barker testified that other officers told him petitioner had requested a woman named Barbara Hlubek to assist in securing an accomplice to participate in the burglary of a market. On January 7,

1959,

Barker went to Mrs. Hlubek’s home where he met petitioner, who, in a conversation lasting more than an hour, asked him to take part in the crime and set forth a plan for its commission. Petitioner reviewed the plan at a meeting with Barker at Mrs. Hlubek's home on the evening of January 8. During the conversations petitioner drew diagrams which showed the site of the market, the point at which the building was to be entered, and the location of the safe. These diagrams were taken by Barker. Immediately following the second meeting the two men went to the market, and petitioner was arrested by police officers near the planned point of entry.

After being bound over to the superior court, petitioner moved for an order requiring production of any recordings or transcriptions of his conversations with Barker at Mrs. Hlubek’s home.

1

In a supporting affidavit dated February 27, 1959, it was alleged that petitioner did not remember the conversations, that he had reason to believe they were recorded, and that inspection and copies of the recordings are necessary to refresh his memory and to enable him to prepare his defense. The motion was denied without prejudice to its renewal during the trial. The People have taken the position at all times that they neither affirm nor deny the existence of the recordings sought by petitioner.

Several recent decisions have involved production, prior to trial, of written statements or recordings in the possession of the People.