People v. Brister

California Court of Appeal May 17, 1961 No. Crim. 7245Published

Before: Fox

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Holding. The court held that the evidence was sufficient to sustain a conviction for selling narcotics where the defendant acted as the seller through a third-party intermediary, and that the prosecution was not required to produce the intermediary as a witness.

Issues

Whether the evidence was sufficient to support a conviction for the sale of narcotics when the transaction involved a third-party intermediary.
Whether the uncorroborated testimony of an undercover officer is sufficient to sustain a conviction.
Whether the prosecution is required to produce all witnesses present at the time of the crime for confrontation by the defendant.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is not necessary that the buyer deal directly with the seller. The fact that the parties deal with each other through a third party is sufficient to sustain a conviction.”

“The uncorroborated testimony of the officer, if believed, as it was in view of the verdict, was sufficient.”

“there is no compulsion on the prosecution to call any particular witness.”

FOX, P. J.

Defendant was indicted for the crime of selling a narcotic, to wit, heroin, in violation of section 11501, Health and Safety Code. A jury returned a verdict of guilty. Defendant's motion for a new trial was denied. He has appealed from the judgment and the order.

On the evening of October 14, 1959, Officer Tusan, of the Los Angeles Police Department, was in the Normandie Club with a parolee known to him as “Ernie,” who had been with the officer for some time as an undercover man, when defendant entered the club. These three persons engaged in a general conversation during the course of which Ernie asked the defendant if he knew where they could score (purchase) some papers (bindles) of heroin. Defendant replied that he did and that the papers were $10 apiece. Thereupon the officer, Ernie, and the defendant left the club and entered the officer’s automobile. The defendant directed the officer to drive to the 2600 block on Dalton, where he parked. At that time the officer handed defendant $20. Defendant left the car and walked towards 27th Street and passed out of the view of the officer. Defendant returned in approximately five minutes and entered the car. He then asked Ernie to accompany him to the corner, which was only about three car-lengths away. The officer observed that defendant “leaned over.” Ernie and he remained at the corner for several minutes before they returned to the automobile. After entering the car, Ernie handed Officer Tusan two red balloons, the contents of which

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proved to be heroin. As Ernie and defendant entered the ear, Ernie said that he did not appreciate the way in which the transaction was handled since the balloons were given first to him and then to Officer Tusan. Defendant stated that he did this because he did not know Tusan, and that if he (Tusan) returned at a later date he would deliver the balloons directly to him. The officer and Ernie let defendant out at the corner of Normandie and Adams. Officer Tusan then proceeded to the Police Administration Building where he marked and booked the two small red balloons as evidence in order that their contents might be chemically analysed.

Defendant denied having any part in this transaction. He did state, however, that he occasionally visited the Normandie Club, and that he lived nearby.

People v. Brister

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FOX, P. J.

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