People v. Gloria

California Court of Appeal Apr 9, 1975 No. Crim. 6711Published

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Holding. The court held that a trial judge's delivery of a factually unsupported jury instruction regarding witness tampering and evidence destruction, combined with the failure to provide an accurate record of the instructions as orally delivered, constituted reversible error. The court further established that court reporters have a duty to phonographically record oral jury instructions to ensure an accurate record for appeal.

Issues

Did the trial court abuse its discretion by limiting cross-examination of a witness regarding his employment status?
Was the defendant prejudiced by the giving of a factually unsupported jury instruction regarding consciousness of guilt?
Is a court reporter required to phonographically record oral jury instructions to ensure an accurate record for appeal?

Disposition. reversed

Quotations verified verbatim against the opinion

“We hold it is the duty of a court reporter in a superior court criminal jury trial to make phonographic notes of what the judge says when he instructs the jury so an accurate transcript of the instructions as presented to the juiy will be preserved for any appeal.”

“Gloria was prejudiced either by the giving of a factually unsupported instruction which suggested wrongdoing or by the failure of the trial court to provide an accurate record on appeal.”

Opinion

THE COURT

Paul Flores Gloria appeals a judgment, after a jury trial, convicting him of possessing a controlled substance (Health & Saf. Code, § 11350). Gloria was found to be a narcotics addict and was committed to the California Rehabilitation Center (Welf. & Inst. Code, §3051).

On September 14, 1973 Brawley Police Officer Larry Bennett, while patrolling an area of the city known for its high rate of narcotics traffic, saw Gloria drop a round package and continue away from the police car. Bennett stopped Gloria and gave him a cursory search for weapons. A parole officer accompanying Bennett testified he did not see Gloria drop the package. Officer Lara arrived just as Bennett was searching Gloria; he picked up the discarded package and handed it to Bennett. Upon finding heroin in the package, Bennett arrested him for possessing narcotics for sale. Only Officer Bennett actually saw Gloria drop the package. Since no witnesses were called by defense counsel, this testimony is uncontradicted.

Defense counsel sought to cross-examine Bennett as to his employment at the time of trial. Apparently, although this is not clear from the record, Officer Bennett left the police department sometime after Gloria’s arrest but before trial. After an off-the-record discussion in chambers, the trial judge sustained the prosecutor’s apparent objection on the ground such a line of questioning would be immaterial. Gloria now contends this ruling unduly restricted cross-examination. He argues the questioning

might

have established bias, impugned Officer Bennett’s credibility thus constituting his

key

defense since Bennett was the only person to see him drop the heroin.

A trial court should allow latitude in the scope of cross-examination, but a witness cannot be cross-examined as to irrelevant or immaterial matters.

{People

Singer,

217 Cal.App.2d 743, 760 [32

[5]

People v. Gloria

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