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District Court of Appeal, First District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. O'Neal UNDERWOOD, Defendant and Appellant.

Cr. 4148.

Decided: May 15, 1963

Harry E. Rice, San Francisco, (under appointment of the District Court of Appeal), for appellant. Stanley Mosk, Atty. Gen. of the State of California, Albert W. Harris, Jr., Keith E. Pugh, Jr., Deputy Attys. Gen., San Francisco, for respondent.

Appellant and his co-defendant, Marshall Wisdom, Jr., were jointly charged by information with kidnapping, robbery and rape (Pen.Code, §§ 207, 211 and 261, subd. 4). Wisdom, the appellant's 17 year old nephew, testified for the prosecution and the charges against him were dropped. A jury trial of the appellant resulted in a conviction on all counts as charged. On this appeal from the judgment of conviction entered on the verdict, the only contentions are that certain involuntary statements of the appellant and Wisdom were erroneously admitted into evidence. There is no merit in either of these contentions.

As the sufficiency of the evidence is not in question, a very brief summary of the facts will suffice. On the evening of September 30, 1961, the complaining witness, a wife and mother of two children, prepared to attend a dance at a men's social club. As her husband was unable to attend, she had arranged to go with some friends. After 11:00 p. m., just before departing for the dance, the complaining witness left her home to drive to the local grocery store to telephone the friends who were to pick her up as she did not have a home phone. After completing the call, the complaining witness left the telephone booth and entered her car. She noticed another car had parked in front of her. The appellant, whom she had never seen, came up and asked her for directions to Sanford Street. The complaining witness indicated he should follow her car and when she passed Sanford Street, she would honk her horn. When she arrived at Sanford Street, the appellant blocked the progress of her car by parking in front of her, got out and asked for more directions to a particular address on Sanford Street.

The appellant then grabbed her by the neck, threatened her, pushed her across the seat, entered the car and locked the door. He drove for several blocks followed by Wisdom who drove the appellant's car. After stopping the car, the appellant took $3.25 from the complaining witness's purse and searched the glove compartment. He then pushed her into the back seat and attacked her, while threatening her with mutilation if she resisted. Thereafter, he pushed her from the car, dragged her back to his car and forced her into the back seat. The appellant told Wisdom to drive. After they stopped, the appellant again attacked the complaining witness and then forcibly removed three wedding rings from her hand. He then changed places with Wisdom and drove back to the place where the complaining witness's car had been left and let her out. The appellant testified he knew the complaining witness and that she had consented to having relations with him on the evening in question.

The first contention on appeal is that the appellant's statements to the police were erroneously admitted into evidence without a prior showing that they had been voluntarily made and in the face of his uncontroverted testimony that they had been coerced by the police. The statements in question differed somewhat from his testimony at the trial as to the extent of his acquaintance with the complaining witness, etc. However, these statements of the appellant were not admissions but prior inconsistent statements.

As indicated above, the appellant freely admitted having sexual relations with the complaining witness and based his entire defense on her consent. On cross-examination, he admitted making the questioned statements to the police after his arrest but denied that they were inconsistent with his testimony. Appellant finally admitted the inconsistent statements but then testified that they were untrue because his mental condition at the time was poor as a result of beatings received from the complaining witness's relatives before he was arrested and by coercion of the police.

 It is well settled that prior inconsistent statements may be used for impeachment (People v. Southack, 39 Cal.2d 578, 585, 248 P.2d 12), if a proper foundation is laid as was the case here (People v. Singh, 20 Cal.App. 146, 149, 128 P. 420; Code Civ.Proc. § 2052). As the appellant first denied making the statements, the impeaching witness was properly asked to relate the contents thereof (People v. Biggs, 58 A.C. 391, 24 Cal.Rptr. 417, 374, P.2d 257). A preliminary showing of voluntariness must be made only if a prior inconsistent statement also constitutes an admission and the prosecution wishes to use it for the latter purpose (People v. Atchley, 53 Cal.2d 160, 170, 346 P.2d 764).

 An admission is defined as an ‘incriminating statement’ or ‘a recital of facts that tend to establish guilt.’ (People v. Brommel, 56 Cal.2d 629, 632, 15 Cal.Rptr. 909, 912, 364 P.2d 845, 848; People v. Fitzgerald, 56 Cal.2d 855, 861, 17 Cal.Rptr. 129, 132, 366 P.2d 481). In the instant case, the appellant's statement that he had known the complaining witness under a different name and had frequent sexual relations with her is exculpatory rather than incriminating. Furthermore, the record clearly shows that the statements were not used affirmatively but solely for purposes of impeachment. The appellant also did not object on grounds of involuntariness and failed to request a jury instruction on the subject (People v. Hurst, 36 Cal.App.2d 63, 64, 96 P.2d 1003).

The second contention on appeal is that a coerced statement of the witness Wisdom was also erroneously admitted into evidence without a prior showing of the voluntariness. On cross-examination, Wisdom testified that after the appellant and the complaining witness entered the car, appellant drove from the transfer point. The prosecution claimed surprise as this testimony was inconsistent with two prior interviews in which the witness had indicated that he had been driving the car. Thereafter, the court, appellant and the appellant's counsel conceded that the prosecution was entitled to claim surprise. Then Wisdom was examined on voir dire as to the voluntariness of his statements and admitted making the first statement to the police officers but stated that the had been intoxicated and coerced by the police. Wisdom also admitted making the second statement and indicated that no threats were made at that time. Wisdom then again testified that the appellant took over the driving after he and the complaining witness entered the car and that no threats were made and no rings taken. Thereafter, at the request of appellant's counsel, the court immediately instructed the jury regarding the limited use of the statements for impeachment purposes only and not as affirmative evidence.

 It is well established that the prior inconsistent statements of a witness as distinguished from those of a defendant are admissible only for purposes of impeachment and never as substantive or affirmative evidence. Thus, no showing of voluntariness is required (People v. Orcalles, 32 Cal.2d 562, 570–572, 197 P.2d 26). The jury was so instructed in this case. People v. Pickens, 190 Cal.App.2d 138, 11 Cal.Rptr. 795, relied upon by the appellant, is not relevant here. Appellant also attempts to argue that the prosecution could not impeach its own witness in this case. However, a party may impeach his own witness by the use of prior inconsistent statements where he has been surprised and damaged by the testimony (People v. Le Beau, 39 Cal.2d 146, 245 P.2d 302). In the instant case, appellant's counsel stipulated to the surprise. Nor can there be any question that Wisdom's testimony, which directly controverted that of the prosecuting witness as to the second alleged act of sexual relations and the robbery, was damaging to the prosecution (People v. Spinosa, 115 Cal.App.2d 659, 665–668, 252 P.2d 409; People v. Le Beau, supra, 39 Cal.2d pp. 148–149, 245 P.2d pp. 303–304).

Judgment affirmed.

KAUFMAN, Presiding Justice.

SHOEMAKER and AGEE, JJ., concur.

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