Opinion
Hearing Granted Jan. 21, 1971.
Opinion on pages 1200 to 1211 omitted.
[91 Cal.Rptr. 210]Joseph V. Mazziotta, San Bernardino, under appointment by this Court of Appeal, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Diana C. Woodward, Deputy Atty. Gen., for plaintiff and respondent.
OPINION
TAMURA, Acting Presiding Justice.
Following a jury trial defendant was found guilty of first degree robbery, denied probation, and sentenced to state prison. He appeals from the judgment of conviction.
The charge arose out of a robbery of a Redlands service station committed by two individuals, one alleged to be the defendant. At defendant's trial, the coparticipant who had been previously convicted was called as a prosecution witness. He was uncooperative and failed to answer pertinent questions. The prosecution was permitted to 'impeach' him by introducing his prior statements to the police in which he implicated defendant. The crucial issues on this appeal are whether the use of the prior statements violated defendant's Sixth Amendment right of confrontation and, if so, whether it constituted prejudicial error necessitating reversal.
On the night of September 30, 1967, George Martin and James Shaffer closed the station at about 10:50 p. m. and proceeded to their respective vehicles, Martin to his automobile and Shaffer to his motorcycle. When Martin entered his vehicle he noticed that the ignition key which he had left in place was missing. Assuming he dropped it on the ground, he got out to look for it while Shaffer shined his motorcycle lights to assist. As Martin walked around to the passenger side of his car he saw two men crouched near the front door. The man nearest to him, identified as John Griffin, pointed a revolver at him and said, 'This is a hold-up.' The man behind Griffin had a lady's stocking pulled over his head and part of his face and also held a revolver. He was later identified as defendant. Griffin took Martin's wallet, removed the money, and demanded the cash in the station office. Martin opened the office, the two entered and Martin handed Griffin the money in the cash box. At this point the police arrived in response to a burglar alarm which was activated when Martin opened the station office. Griffin was captured as he ran out of the station office.
While Griffin was forcing Martin to open the station, defendant remained with Shaffer. He ordered Shaffer to go to the rear of the station and to lie face down on the ground. By the time the police arrived, defendant had disappeared.
Defendant was apprehended on October 5, 1967. Following his arrest, he was advised of his Miranda rights and interrogated by a police officer. Defendant stated that on the night of September 30 he was at his girl friend's house until 8:00 p. m., and then went to a pool hall where he remained until midnight. He was unable to give a satisfactory account of his activities after midnight and when pressed stated he felt he should see an attorney. The interrogation was then terminated.
In early November 1967 Officer Halterman of the San Bernardino Police Department, in response to a message from defendant's wife that defendant wished to see him, visited him at the jail. Halterman had previously used defendant as an informer. Defendant asked whether Halterman had received a telephone call from defendant's wife that he was going to be involved in a Redlands service station robbery. When Halterman stated he did not receive such a call, defendant said he had assumed his wife had tipped off the police that he and Griffin were going to rob the station. Defendant stated that during the robbery he was wearing a lady's stocking over his face; that when the police arrived he realized his wife had not alerted Halterman; and that he escaped in his car and drove to Los Angeles. When Halterman asked defendant why he failed to report to him immediately after the robbery if he had merely intended to participate [91 Cal.Rptr. 211]as a police informer, defendant failed to respond. Defendant was later released pending trial and Halterman used him as an informant on another matter. Halterman made no official report of the conversation with defendant but later told another investigator about it.
The prosecution called Griffin who had been previously convicted of the robbery. Upon his failure to answer pertinent questions, the prosecution was permitted to 'impeach' him by reading a transcript of his taped interview with the police. In that interview, Griffin stated: Defendant came to his house about 9:30 p. m. on September 30 and suggested that they go out and make some 'easy money'; the two left in defendant's vehicle and drove to Redlands; as they passed the service station in question, defendant said they could make $150 each by robbing the station; they parked on a side street and walked to the station; defendant removed the ignition key from Martin's vehicle and the two crouched beside it; defendant had tow .38 calibre revolvers in his possession and handed one to Griffin; when Martin came around their side of the car the two pulled their revolvers; defendant directed Griffin to take 'the older guy [Martin.]' The remainder of Griffin's transcribed statements to the police related the details of the robbery substantially as described by Mr. Martin.
Defendant took the stand and testified: On the night of September 30 he went to Griffin's house; from there the two went to a pool hall and met a man known as 'Roberts'; the three left the pool hall in Roberts' car; during the ride Roberts suggested robbing the Redlands gas station; Roberts had three revolvers and gave one to defendant; defendant told Roberts it was unwise for him (defendant) to roberts had three revolvers and gave one to defendant; defendant told Roberts it was unwise for him (defendant) to rob the station because he knew the attendant; defendant got out of the car several blocks from the station and the other two drove back towards it; defendant went to his girl friend's home and did not see Griffin or Roberts again that night; several days later Roberts came to defendant's house and suggested a robbery; defendant declined to participate in it but entered Roberts' vehicle; while riding with Roberts he was arrested on the present robbery charge. Defendant recalled his conversation with Halterman but denied telling him he actively participated in the robbery. According to defendant, Halterman told him if the robbery had been planned as a 'set up' he had nothing to worry about. Defendant testified that after his release from custody, Halterman requested him to serve as an informant and he agreed to do so but when he told Halterman he would not provide information against a specific subject, Halterman intimated defendant would suffer the consequences of his failure to cooperate.
Defendant urges several grounds for reversal but his main contention centers on the prosecution's use of Griffin's prior statements.
Griffin was a recalcitrant witness; he answered some questions but his responses to those which sought to link defendant with the robbery were 'I don't know' or 'I don't remember.' He testified that on the night of the robbery a friend came to his house and the two drove to the Redlands service station in the friend's car. He also admitted he was acquainted with defendant and at one point said the first name of the friend to whom he referred was 'Terry.' When asked whether 'Terry' was Terry Williams, the defendant, he answered, 'I don't know.' He gave similar 'I don't know' responses to questions pertaining to the identity and description of the individual who accompanied him to the service station. Despite the judge's orders to answer, including a contempt threat, he continued to answer, 'I don't know' to pertinent questions. Thereupon the prosecution was permitted, over defendant's objections, to 'impeach' Griffin through prior statements he had given to the police. He was shown a transcript of the taped police interrogation in which he related the details of the robbery and defendant's participation in it and was asked whether he made those [91 Cal.Rptr. 212]statements. Griffin responded, 'I don't remember.' The prosecution was then permitted to read the entire transcript. Griffin was then asked whether he made the statements attributed to him in the transcript. His answer was 'I can't remember.' Defendant's motion to strike the prior statements on hearsay grounds was denied.
Defendant's cross-examination of Griffin consisted of the following :
Defendant urges that in view of the scant testimony elicited from Griffin, Griffin's prior statements, though received under the guise of impeachment, were used as substantive evidence to prove the truth of the matters stated in violation of the principle enunciated in People v. Johnson, 68 Cal.2d 646, 68 Cal.Rptr. 599, 441 P.2d 111. Johnson held that section 1235 of the Evidence Code making a prior inconsistent statement of a witness admissible as substantive evidence violates the Sixth Amendment right of confrontation when the statement is introduced against a defendant in a criminal case. The rationale for the decision was that the right to cross-examine a declarant at the time he made the statement was an essential aspect of the right of confrontation and that opportunity to cross-examine the declarant at trial was not an adequate substitute for contempo-raneous cross-examination.
Pending the present appeal the United States Supreme Court decided California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489. Green disapproved People v. Johnson, supra, 68 Cal.2d 646, 68 Cal.Rptr. 599, 441 P.2d 111. The United States Supreme Court held that section 1235 of the Evidence Code permitting use of prior inconsistent statements as substantive evidence was not violative of the right to confrontation guaranteed by the Sixth Amendment. Following an analysis of the history and purpose of the Confrontation Clause, the Court concluded that 'the Confrontation Clause does not require excluding from evidence the prior statements of a witness who concedes making the statements, and who may be asked to defend or otherwise explain the inconsistency between his prior and his present version of the events in question, thus opening himself to full cross-examination at trial as to both stories.'
Green thus disposes of defendant's broad contention that use of a witness' prior inconsistent statement as substantive evidence is violative of the right of confrontation. However, two further issues remain in the present case: (1) Whether Griffin's prior statements were admissible under section 1235 of the Evidence Code as prior 'inconsistent statements' and (2) whether Griffin's recalcitrance prevented defendant from exercising his right to effective cross-examination thereby depriving him of his right to confrontation.
Noted commentators have espoused a rule which would permit the use of a prior statement of a witness as substantive evidence irrespective of its admissibility for impeachment. (McCormick, Evidence (1954) § 39, p. 82; Model Code of Evidence, Rule 503(b). California has, however, adopted a more restrictive rule of admissibility. To be admissible under section 1235 of the Evidence Code as substantive evidence, the prior statement must be 'inconsistent' with the witness' testimony at trial. (People v. Sam, 71 Cal.2d 194, [91 Cal.Rptr. 213]210, 77 Cal.Rptr. 804, 454 P.2d 700; People v. Woodberry, 10 Cal.App.3d 695, 705-706, 89 Cal.Rptr. 330.) The same requirement exists for impeachment. Section 780(h) of the Evidence Code permits use of a statement 'that is inconsistent with any part of his testimony at the hearing' to determine the credibility of a witness. Thus, if the prior statement is not inconsistent with his testimony at trial, it is inadmissible either for impeachment or as substantive evidence.
Section 1235 of the Evidence Code provides: 'Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.'
In California v. Green, supra, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489, the Court noted that our Supreme Court assumed for the purpose of its decision in that case that the prior statements were inconsistent with the witness' testimony at trial. In vacating the judgment and remanding the matter, the United States Supreme Court noted that our Supreme Court may choose to dispose of the case on other issues raised by defendant but not previously passed upon by the state court, including the question whether the witness' prior statements were admissible under section 1235 of the Evidence Code as inconsistent with his testimony at trial.
In this state reviewing courts have adhered to a liberal rule for determining the degree of inconsistency required for admissibility of a prior statement for impeachment. The test has been said to be one of 'inconsistency in effect rather than contradiction in express terms. * * *' (People v. Woodberry, supra, 10 Cal.App.3d 695, 704, 89 Cal.Rptr. 330, 336; Fibreboard Paper Products Corp. v. East Bay Union of Machinists, 227 Cal.App.2d 675, 699, 39 Cal.Rptr. 64; Witkin, California Evidence (2d ed. 1966) pp. 1156-1158; 3 Wigmore, Evidence (3d ed. 1940) § 1040; McCormick Evidence, § 34, pp. 63-64.) 'It is not necessary that there should be contrariety in terms between the testimony given and the asserted impeaching statement. It is only necessary in order to render it admissible that the statement should have a tendency to contradict or disprove the testimony or any inference to be deduced from it.' (Hanton v. Pacific Electric Ry. Co., 178 Cal. 616, 619, 174 P. 61, 62.)
Tested by the foregoing standard, in our view Griffin's prior statements did not qualify as prior 'inconsistent statements' for impeachment purposes.
A similar issue was recently considered in People v. Woodberry, supra, 10 Cal.App.3d 695, 89 Cal.Rptr. 330. In Woodberry the prosecution called as its witness a co-participant in a service station robbery in which the attendant was killed. After answering a few questions, the witness refused to answer further questions. The prosecution was permitted to 'impeach' the witness by introducing his prior statements to the police in which he described in detail the planning of the robbery and the defendant's participation in it. The reviewing court held the prior statements were inadmissible as 'impeachment'; that they were useful for the prosecution only as proof of the truth of the statements; and that it was evident that the witness was put on the stand, not to impeach him, but in hopes the impeaching evidence would be considered by the jury as proof of its truth. (People v. Woodberry, Supra, 10 Cal.App.3d 695, 704, 89 Cal.Rptr. 330.) In the present case Griffin's answers were 'I don't know' or 'I don't remember' rather than 'I refuse to answer.' But it is apparent from the record, as expressed by the trial judge, that Griffin was simply refusing to answer. While in some circumstances an 'I don't know' or 'I don't remember' answer may justify use of prior statements to impeach the witness by showing that he did in fact know or remember, this is not such a case. Griffin obviously [91 Cal.Rptr. 214]knew but was refusing to answer. Moreover to the limited extent Griffin testified, his answers were consistent with his prior statements. Consequently, there was no inconsistency or impeachment value to Griffin's prior statements. Thus the statements were of value to the prosecution, not to show that Griffin was lying when he testified, but to prove that what he said during the police interrogation was true. Griffin's statements were, therefore, inadmissible under section 1235 of the Evidence Code as 'inconsistent statements,' either for impeachment or as substantive evidence.
In People v. Sam, 71 Cal.2d 194, 210, 77 Cal.Rptr. 804, 454 P.2d 700, the Court, quoting Sponduris v. Hasler. 246 Cal.App.2d 207, 214, 54 Cal.Rptr. 552, held that in California "[t]he right of impeachment does not exist where the witness states that he has no recollection of the fact concerning which he is examined." In footnote 6 at page 210 of 71 Cal.2d, at page 813 of 77 Cal.Rptr., at page 709 of 454 P.2d, the Court noted Wigmore's view that because where a present statement of fact is made, declarant may be impeached by showing prior lack of memory, the reverse should also be true. The Supreme Court declined to follow Wigmore. It stated that logic dictated the correctness of the prevailing view which is followed in California.
Even assuming, arguendo, that sufficient inconsistency existed to warrant admission of the prior statements as substantive proof, Griffin's recalcitrance amounted to a refusal to testify and thereby deprived defendant of the opportunity to exercise his right to effective cross-examination. Griffin's attitude prevented defendant from testing the truth of the prior statements. Physical confrontation is meaningless without the right to effective cross-examination. (Smith v. Illinois, 390 U.S. 129, 131, [88 S.Ct 748, 19 L.Ed.2d 956].) Introduction of prior statements under the guise of impeachment where a witness refused to answer on Fifth Amendment grounds, whether or not the privilege was validly claimed, has been held to constitute a denial of the right to confrontation. (Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934; People v. Harris, 270 Cal.App.2d 863, 866-869, 76 Cal.Rptr. 130.) The fact that Griffin's refusal was not based on a claimed constitutional privilege in not a valid ground for distinction. When a witness refuses to answer, whatever the reason or motive for his refusal, except possibly where such refusal is with the connivance of the defendant (see People v. Harris, supra, 270 Cal.App.2d 863, 869, 76 Cal.Rptr. 130), he is deprived of the right to effective cross-examination. In the present case there is no evidence that Griffin's refusal was procured by defendant.
Having concluded that it was error to permit the prosecution to introduce Griffin's prior statements, we must determine whether the error requires reversal. The error being of constitutional dimension, its prejudicial effect must be measured by the test of Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705. (People v. Woodberry, supra, 10 Cal.App.3d 695, 706; People v. Harris, supra, 270 Cal.App.2d 863, 869, 76 Cal.Rptr. 130.)
The People suggest that it must be presumed the jury followed the court's instruction that evidence of prior contradictory statements was received, not to prove the truth of the matter stated, but only to test the credibility of the witness. The efficacy of such instructions to cure an invasion of the right to confrontation has been questioned. (People v. Aranda, 63 Cal.2d 518, 529-530, 47 Cal.Rptr. 353, 407 P.2d 265 (fn. 8); People v. Pierce, 269 Cal.App.2d 193, 203-204, 75 Cal.Rptr. 257; McCormick, Evidence, § 39, p. 77.) In this respect section 1235 of the Evidence Code, by permitting prior inconsistent statements to be considered as substantive evidence, impliedly rejects the dubious earlier premise that since a prior inconsistent statement be received solely for the purpose of testing the credibility of a witness, an admonitory instruction will insure its consideration for only that limited purpose. Under the facts of the present case, we cannot ascribe to the instruction the magic property claimed for it. Griffin's prior statements had no impeaching value nor did they relate merely to trivial and insignificant matters; if believed, they clearly established defendant's guilt. We conclude that any prejudicial effect of admitting Griffin's prior statements was not cured by the limiting instruction.
[91 Cal.Rptr. 215]We must thus look to the evidence and the entire record to determine prejudice. The record discloses that one of the critical issues in the case was defendant's identity. The robber alleged to be the defendant wore a lady's stocking over his head and part his face. Mr. Martin, one of the attendants, had previously known defendant but was unable to identify him as one of the robbers. Mr. Shaffer, the other attendant, identified defendant at the trial but on cross-examination admitted that defendant's features were not clearly discernible and that he identified defendant from his 'bearing and his voice and what [he] could see of his face.' Shaffer had never seen defendant before. At the preliminary hearing Shaffer was unable to identify Griffin as being one of the robbers.
Other evidence connecting defendant with the robbery included defendant's admissions to Officer Halterman which defendant attempted to explain, albeit unconvincingly, by claiming he was merely acting as an undercover agent for the police. The evidence did show that defendant had previously acted as an informer for Officer Halterman and pending trial, while defendant was on bail, Halterman asked him to act as an informer on another matter.
In the foregoing circumstances, Griffin's prior statements describing in detail defendant's participation in the robbery were obviously most damaging
Moreover, if it had been proper to receive Griffin's prior statements for their truth, the jury would have had to have been instructed on the definition of an accomplice and that the testimony of an accomplice is to be viewed with distrust. Those instructions were not given. When, as in the present case, the evidence clearly shows that the witness called by the People to give testimony implicating a defendant is an accomplice, those instructions must be given on the court's own motion. (People v. Hamilton, 33 Cal.2d 45, 50-51, 198 P.2d 873; People v. Cuellar, 262 Cal.App.2d 766, 770, 68 Cal.Rptr. 846.)
We conclude the People have failed to demonstrate that the erroneous admission of Griffin's prior statements was harmless beyond a reasonable doubt.
Judgment reversed.
KERRIGAN and KAUFMAN, JJ., concur.
'Q. [By MR. KRUG] Mr. Griffin, is Mr. Williams, the man sitting next to me, the one that was with you at the station that night?
'A. I can't remember.
'THE COURT: What's the answer? Speak in the microphone, sir.
'THE WITNESS: I can't remember.
'Q. How many people went over to that station?
'A. I don't know.
'THE COURT: Speak in the microphone, sir.
'THE WITNESS: I don't know.
'MR. KRUG: I have no further questions.'