Reset A A Font size: Print

Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Tiny H. ODOM, Defendant and Appellant.

Cr. 446.

Decided: August 28, 1968

Goldberg & Fisher and Arthur F. Fisher, Bakersfield, for appellant. Thomas C. Lynch, Atty. Gen., Daniel J. Kremer and Stephen Cooper, Deputy Attys. Gen., Sacramento, for respondent.

After the above-entitled case was originally calendared for oral argument and argued in this court, an opinion was written. But a petition for hearing was granted to the defendant by the California Supreme Court, and at the same time the case was retransferred to this court for a reexamination in view of the recent decision of People v. Johnson, 68 A.C. 674, 68 Cal.Rptr. 599, 441 P.2d 111, which held that section 1235 of the Evidence Code, making prior inconsistent statements by witnesses admissible to prove the truth of the matters asserted, violates the Sixth and Fourteenth Amendments of the United State Constitution by preventing an accused from being confronted with the witnesses against him in a criminal prosecution.

The case has been reargued by counsel in this forum; this opinion necessarily deals with the many points heretofore urged by counsel for the defendant in their briefs, as well as giving consideration to the applicability of the holding of the Supreme Court in the Johnson case.

In view of the fact that our duty requires us to cover all of these points and that most of the questions involved are not differentiated by counsel from the arguments made by them respectively heretofore, we shall quote liberally from our former opinion, although we recognize that such opinion as an independent entity has been set aside by the Supreme Court and is, therefore, of no validity in and of itself.

‘Tiny H. Odom was charged with the assault of James Lynn Maxwell with intent to commit murder, which occurred during a saloon brawl in Bakersfield on December 5, 1966. The assault was accomplished with the aid of a knife, and Maxwell sustained two deep cuts, one over the heart and one lower down over the intestines; it was only by grace of a strong body and skillful medical treatment that he survived. When originally taken to the hospital, he had no measurable blood pressure and only the faintest possible pulse over his heart. The jury, after a three-day trial, however, was not convinced that the assault had been made with the intent to commit murder and convicted the defendant of the lesser, but necessarily included, offense of assault with a deadly weapon. (Pen.Code § 245.)’

‘The main position of the defendant is that he was not guilty of assault with a deadly weapon in using the knife, but that he employed it only in self-defense.

‘In examining the record, we have necessarily kept in mind that at the appellate stage of a criminal case we are not permitted to retry the accusation or to assume, as a jury must, that proof of essential elements must be made beyond a reasonable doubt; it is only the duty of an appellate court to make sure that there is substantial evidence, if believed, to justify the finding of the jury; in examining the record we are bound to assume that all facts supported by proper evidence at the trial are true and that testimony at variance with such proven facts is untrue.

‘With these principle in mind, we turn to an examination of the evidence which shows that at about 11 p. m., on December 4, 1966, the victim, Maxwell, entered Renie's bar in Bakersfield. He was alone; he sat down at the bar where the defendant and a woman variously called Carlotta and Carla were already sitting. Carlotta was talking pleasantly with the bartender, and this appeared to anger the defendant, who made threatening motions toward him on several occasions, but was restrained by Carla.

‘At that time, Lester Dale White was seated in a booth with two young women. While he and Maxwell had not known each other previously, he nevertheless asked Maxwell several times to join his party; Maxwell did so about an hour after he had entered the bar. Carla served drinks to the people in the booth during which time she spoke to Maxwell and one of the women. White left the bar at one point to take a female companion to her car, but he afterwards returned to the booth. During the evening, Maxwell went from the booth to the bar on several occasions to buy drinks; the last time he did so was at about 10 minutes to 2 a. m. On that occasion, while ordering the drinks, Maxwell leaned against the stool just to the left of Carla, the appellant being seated next to her at her right. Carla spoke to Maxwell, and Maxwell apparently said something in return. In obscene language Odom then told Maxwell to go back to the booth, and the latter replied in a similarly obscene manner. At that point, appellant jumped up, drew his knife which was about eight inches lone with a four-and-a-half-to-five inch blade, made a threatening gesture toward Maxwell, and told him he was going to ‘Cut his guts out.’ At this point, White hurriedly left the booth, approached Odom and asked him to put the knife away. Appellant threatened White, swung his knife and cut White in two places but not deeply. Maxwell then attempted to help White by throwing bar stools at Odom who backed up to the wall at the end of the bar. While moving back, Odom made slashing movements toward Maxwell with the knife. The latter then jumped at Odom and held the hand which grasped the knife with both of his own hands. Appellant transferred the knife to his other hand and stabbed Maxwell once in the stomach and again over and into the heart. Maxwell doubled up from the wounds; he staggered to the end of the bar and asked that an ambulance be called; he was bleeding heavily, fell back into a booth and lost consciousness. At this point, after Carla said to appellant, ‘Let's get out of here before the cops get here,’ she and Odom left the bar and drove away. Within a few days, he was arrested in Arizona where he said he had gone to find work. He then averred that he had not known when he left the bar that he had cut anyone.

‘The police and an ambulance arrived at Renie's shortly after they were called following the assault. Maxwell was taken to a hospital where his serious wounds were treated; he ultimately recovered.

‘The first and most important contention made by the appellant is that the evidence is not sufficient to support a conviction of assault with a deadly weapon for the reason that he used the knife wholly in self-defense. If this were true, as was argued during the trial of the case itself, the point would be sufficient to require a reversal. The trouble is that the record does not bear out the argument for the reason that there is directly opposite evidence, which, as we have already pointed out, the jury had a right to believe. The defendant contends that he did not use the knife against Maxwell until after the bar stools had been thrown at him. However, there is specific testimony that, after the exchange of obscenities, Odom reached into his pocket, pulled out his knife and said he was going to cut Maxwell's ‘guts out,’ and that he then moved toward Maxwell. It was at this point that Lester White made his attempt to prevent a fight. The defendant also argues that, even if he voluntarily began the fight with the knife, he thereafter retreated as far as possible to the end of the bar in order to withdraw; but it is the rule that, if there is an attempt by an aggressor to withdraw, in order for him to have available a claim of self-defense he must inform his opponent of his withdrawal. In this connection, appellant testified that he had so informed Maxwell, but there is a contrary showing, and, in the circumstances, it must be proven that the person attacked understood that the appellant was withdrawing from the fight, and such proof is absent. (See 1 Witkin, California Crimes, § 162, p. 154.)

‘Appellant also complains that there were six people in the bar at the time of the fight and that the prosecution only saw fit to produce two of these persons as witnesses. Defendant argues that if all of the witnesses had been produced their testimony would have been, as a whole, contrary to the prosecution's position. But it is an ‘A –B–C’ of criminal prosecution that it is not necessary to produce all material evidence or to call all persons who might know something about a factual situation in order to accord a defendant a fair trial. (People v. Stanley, 67 A.C. 837, 846, 63 Cal.Rptr. 825, 433 P.2d 913; People v. Tuthill, 31 Cal.2d 92, 98 [187 P.2d 16].) The appellant, furthermore, has not shown that he was prejudiced by the fact that the prosecution failed to call the alleged other four witnesses; he does not say that they were hidden from him or made unavailable to him. As a matter of fact, he did call two of the witnesses who were not put on the stand by the prosecution.

‘Appellant next complains that the court committed prejudicial error by allowing heavily blood-stained clothing of Maxwell to be received in evidence and exhibited to the jury, saying that the clothing had no probative value but was clearly inflammatory. The general rule is that a trial court has broad discretionary power to weigh the probative value of evidence as against its prejudicial or inflammatory nature and to rule whether it should be admitted. (Evid.Code § 352; People v. Ditson, 57 Cal.2d 415 [20 Cal.Rptr. 165, 369 P.2d 714].) There have been instances in extreme cases where the decision of the trial court to admit evidence of this category has been held improper on appeal. (People v. Burns, 109 Cal.App.2d 524 [241 P.2d 308, 242 P.2d 9] and People v. Redston, 139 Cal.App.2d 485 [293 P.2d 880].) However, in People v. Reed, 38 Cal.2d 423 [240 P.2d 590], it was held that even cumulative evidence of an explanatory nature may be proper. People v. Ford, 60 Cal.2d 772 [36 Cal.Rptr. 620, 388 P.2d 892], in reversing a homicide conviction, held that a trial court abused its discretion as a matter of law in failing to weigh the probative value of certain evidence in resolving a material issue as against the danger of prejudice through a needless arousal of the passions of the jurors. However, it seems clear that where, as in the present instance, an appellate court can say that there was no prejudice, even if the evidence was wrongly admitted, it is not necessary to reverse the judgment even though the trial court did not specifically say that it weighed the probative value of the tendered evidence as against any prejudice that might arise. People v. Ray, 252 A.C.A. 1002 [252 Cal.App.2d 932, 61 Cal.Rptr. 1], indicates that a reviewing court need not automatically reverse a case even where the trial judge failed to exercise his duty to weigh the probative value of the tendered evidence as against the prejudice which might be aroused by it. We find no error in the ruling complained of.’

‘Appellant alleges that the trial court committed prejudicial error in giving CALJIC instruction No. 325, which reads:

‘The right of self-defense is not available to a person who has sought a quarrel with the design to force a deadly issue and thus through his fraud, contrivance or fault, to create a real or apparent necessity for making a felonious assault.’

Appellant is in error by apparently believing that this instruction is only applicable where there has been a long-standing quarrel between the assailant and his victim; he argues that, since there was no showing that appellant and the victim had any previous quarrel, this instruction should not have been given. While the cases dealing with this element often involves situations where there has been a longstanding quarrel between the parties involved, there is nothing in the applicable law to indicate that it would be incorrect to give the instruction in a case where the parties were previously strangers. This instruction properly applies to any situation where a person attempts to force a quarrel with another and uses that as an excuse for an assault. It is humanly possible for a person to take a dislike to one who has previously been a stranger; it would follow that there is no reason why the person initiating a quarrel should be entitled to claim self-defense in such a situation.

‘Appellant next contends that the court committed prejudicial error in failing to instruct the jury that evidence of the oral admissions of a party ought to be viewed with caution. The statement referred to here is one made by the defendant to an officer of the Kern County Sheriff's Department as testified to by the latter. It has been held that, generally speaking, any statement by an accused relative to the offense charged is an admission. (People v. Atchley, 53 Cal.2d 160, 170 [346 P.2d 764].) And the instruction should have been given by the court on its own motion. (People v. Ford, supra, 60 Cal.2d 772, 800 [36 Cal.Rptr. 620, 388 P.2d 892].) This instruction was formerly based on Code of Civil Procedure section 2061, which was repealed as of January 1, 1967. According to the comment of the Law Revision Commission, it was felt that section 2061 and similar provisions confused the issue of what instructions must be given by a criminal court on its own motion, and the Commission, therefore, felt that it was best to leave this matter to the case law. But it is clearly established that this instruction should be included in the charge on the court's own motion, and, in fact, the respondent concedes that there was error in not giving the cautionary instruction. However, respondent contends, and we think correctly, that there was no prejudice in view of the facts of this case; respondent points out that the statement containing the admission is really nothing more than a summary of what defendant himself testified to at trial. However, there is one significant discrepancy which should be referred to: the witness, Detective Cooper, said that appellant admitted that he had cut Maxwell. When appellant testified at the trial he stated that originally he was unaware that he had cut either Maxwell or White; when questioned about this inconsistency, he admitted that he did make such a statement to Officer Cooper but only because he had learned from a deputy sheriff in Seligman, Arizona, at the time of his arrest, that he had cut a man; in other words, his explanation of the inconsistent statements was that at the time the fight took place he did not know that he had stabbed anyone, but when he talked to Officer Cooper afterwards he had already been informed by an officer in Arizona that he had cut a man, and therefore in talking to Officer Cooper he so stated.

‘The error alone in failing to give the instruction is insufficient to justify a reversal.

‘* * * the defendant objects to several features of the probation officer's report. There is no detailed requirement as to just how [a] probation officer should investigate or report. The purpose of the report, of course, is to supply the judge with facts which will help him to make a sound estimate of the character of a convicted prisoner in view of his impending duty to sentence him or admit him to probation. A probation officer owes a duty to be fair to both the People and the defendant, and to this end he should, by all readily available means, learn the nature of the crime and the life history of a defendant. As part of such an investigation, the defendant is given an opportunity to name persons who have known him in the past; it is not usual for a prisoner to give such names unless he believes that their letters in response to the probation officer's queries will be favorable to him. It is not required by law, however, that there be included in a probation officer's report anything which his friends or acquaintances may say in his behalf. If this were an iron-clad requisite, it is apparent that in many instances due to many factors there would be regrettable delays in the filing of a probation report; the proper administration of justice requires that the report be filed in a timely fashion. Overall it should be remembered that while a probation officer's report is theoretically, and often actually, helpful to a judge the judge himself has the duty of determining whether probation should be granted or a sentence to the county jail or to the state's prison should be administered.

‘Turning to the specific situation in the present case, it is true that the officer said in his report that the defendant's prior record is ‘quite long,’ while this is not correct. As a matter of fact, the prior record is rather short and contains no felony convictions. But inasmuch as the whole record of the defendant's conflicts with the law was set out in the report it cannot be assumed that the trial judge misapprehended what was said. The appellant complained and the probation officer conceded that he read only the transcript of the preliminary examination and not the transcript of evidence at the trial; usually when a probation officer is asked to report he has a specifically fixed and rather short time to do so; when there is no trial transcript available, the probation officer must learn as best he can the nature of the charges against the defendant; the reading of the transcript of evidence at the preliminary hearing together with his interviews with defendant and the woman, Carla, and his contacts with prosecuting officers apparently were sufficient for the purpose as is shown by a comparision of the basic statements in his report relative to the crime with a present reading of the trial transcript. In this connection, the trial judge who heard all of the evidence unquestionably did apprehend the actual course of the trial.

‘The persons whose names were given as references by the defendant did not have their responses included as exhibits in the probation officer's report itself, but the letters that did come in prior to sentencing were forwarded to the judge, through the clerk's office, or were in the process of being forwarded and were referred to by the probation officer in oral testimony prior to the pronouncement of the sentence. This is an acceptable procedure (People v. Valdivia, 182 Cal.App.2d 145 [5 Cal.Rptr. 832]), and the probation officer indicated that the contents of the late reports would not have changed his opinion. Furthermore, appellant could have presented evidence in mitigation of the sentence if he felt that the report was inadequate or misleading. (Pen.Code § 1204; People v. Valdivia, supra.) Appellant chose not to do this. And counsel for the People and appellant stipulated that the persons whose names have been given by the defendant to the probation officer for a solicitation of their viewpoint would testify that defendant was a man of good character and not known to be violent.’

We now turn to an examination of the effect on this appeal of the decision in People v. Johnson, supra, 68 A.C. 674, 68 Cal.Rptr. 599, 441 P.2d 111. Within a week after the occurrence of the alleged crime, M. A. Stanfill, the barkeeper who was present in the cocktail lounge when the alleged assault took place, appeared voluntarily at the sheriff's office and being questioned about the affair by one of the detectives answered in detail that, after the exchange of insults, the defendant drew from his pocket a knife, which was a deadly weapon, and using it he went into a ‘knife-fighter's crouch,’ that he had no reason to do so, and that, in turn, he wrongfully inflicted cuts on Mr. Maxwell and Mr. White. He was not called to the stand by the People during the trial but turned up as a witness for the defense. At that time the bartender's memory of what occurred on the night of the assault apparently had suffered a complete change; the witness no longer put the blame for the fight on Odom; he swore that he did not see Odom make a thrust with a knife; he said that Odom was backed up against the wall, and Maxwell had begun throwing chairs at him. The effect of Stanfill's testimony was to put the blame for the fight entirely on Maxwell and White and to verify the story of Odom that his only participation in the event was in self-defense. The deputy district attorney then cross-examined the bartender at considerable length in view of what he had said within a week after the fight and later the prosecution introduced the tape then made by the witness at which time the bartender was present in the courtroom. It cannot be maintained that there was anything unfair toward the witness in thus cross-examining him and proving what he unquestionably had said within a short time after the alleged crime was committed.

The gist of the Johnson case is that there was a denial of the right under the Sixth Amendment to confrontation of adverse witnesses in that some three years had passed since the original testimony had been given by the witnesses in court; the California Supreme Court held that as there was no opportunity to cross-examine properly at the time the first statement was made, the constitutional right of the defendant to confrontation of the witness was thwarted, and, consequently, the provision contained in section 1235 of the Evidence Code that the testimony impeaching the witness could be used also as proof of the facts contained in the statement would not be constitutionally permissible. The present situation differs from that outlined in the Johnson case in that the time elapsing in the present instance was five months, instead of three years, and the Johnson case testimony was before a grand jury while the present statement was made to a deputy sheriff.

There is no question but that the evidence was properly admitted in the instant case as it was legitimate from the standpoint of impeachment. At page 687, 68 Cal.Rptr. at page 607, 441 P.2d at page 119 of the Johnson opinion it is said:

‘The issue, then, is whether the substantive use of the prior inconsistent statements of Elaine and Mrs. Johnson, although ‘otherwise admissible’ under section 1235, violated the constitutional rights of this ‘defendant in a criminal action.’ The United States Supreme Court has squarely stated that extrajudicial statements of a witness, while admissible for impeachment purposes, ‘certainly would not be admissible in any criminal case as substantive evidence. [Citations.] So to hold would allow men to be convicted on unsworn testimony of witnesses—a practice which runs counter to the notions of fairness on which our legal system is founded.’ (Fns. omitted.) (Bridges v. Wixon (1945) 326 U.S. 135, 153–154, 65 S.Ct. 1443, 1452, 89 L.Ed. 2103 [2114–2115].)'

The trial court stated at the time the general objection of the defense was made that the evidence was admitted for the purpose of impeachment. In ruling on the admissibility of the tape recording, the court said ‘* * * it is merely for the purpose of impeaching a witness called by the defendant.’ And counsel for the defendant also said in his argument to the jury that the prosecution intended thereby to impeach Mr. Stanfill, saying, ‘So, rather than bringing this man in as a witness to show the facts and circumstances of this case, what do they do? They get him, they bring Mr Stanfill in by way of the tape that they took beforehand. So as to impeach him. Not to prove their case but so as to impeach him and try and destroy our defense.’

Furthermore, while defense counsel objected to the use of the tape on various grounds, principally because it was alleged to be hearsay, there is not in the whole record any objection based on the reasons for reversal stated in the Johnson opinion.

However, if by some process of judicial necromancy the trial judge and counsel had been able to foresee the Supreme Court's ruling in the Johnson case, an objection to the admissibility of the evidence could not have been granted because it was proper as impeachment. Defendant's remedy in such circumstances would have consisted of a request for an instruction limiting the effect of the evidence to impeachment only and telling the jury that they must not consider it in connection with the question of whether the facts stated in the taped statement were primary evidence thereof. (Evid.Code § 355; People v. Sweeney, 55 Cal.2d 27, 42, 9 Cal.Rptr. 793, 357 P.2d 1049; People v. Hawkins, 177 Cal.App.2d 714, 2 Cal.Rptr. 524; Witkin, Cal.Evidence, 2d ed., Introduction of Evidence at Trial, § 1295, pp. 1198–1199.) However, no such limiting instruction was requested by the defendant and normally this properly could be construed as a waiver of the point. The same reflections are apposite as to the unfairness fairness of the trial in permitting the district attorney to argue inferentially, and the jury to assume, that Stanfill's testimony during the taped recording could be considered to establish the truth of what he said as are applicable to a lack of specific objection to this phase of the evidence by defense counsel. It was ‘vital to the correct determination of the case’ that the jury should be set right on this important subject (People v. Hawkins, supra, 177 Cal.App.2d 714, 719, 2 Cal.Rptr. 524, 527), and we feel that the silence of the court in the circumstances constituted prejudicial error.

We do have in mind the familiar rule that if there is no proper objection to offered evidence in the trial court and such evidence is admissible under any theory and is not limited by an appropriate instruction to a specific issue such evidence thereafter is available for use by the contending parties without limitation.

However, the Supreme Court's viewpoint in the Johnson case is, of course, binding upon us (Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937), and is so crucial and important that we feel compelled to take the position that the trial court in the unusual circumstances should have given an instruction on its own motion limiting its effect to the impeachment of Mr. Stanfill, saying that the evidence was received for that purpose only, and that the statement of the facts contained in the taped statement could not be used by the jury to determine what actually happened at the time of the assault. Although in civil cases, if one of the parties does not propose an instruction on a given subject, the failure to give it cannot be used normally in a plea for reversal, the court in a criminal case must, on its own motion, give all instructions necessary to effect a fair trial for the defendant. (Witkin, Cal.Criminal Procedure, § 471, pp. 477–478 and cases cited therein.) In the circumstances of this case, the burden of failure properly to advise the jury as to their consideration of the questioned evidence must be placed squarely on the shoulders of the trial court, even though the Johnson case had not as yet been decided.

It is contended by the People that the error in failing to give such an instruction is of such slight importance in view of other evidence on the subject that a reversal should not follow. Was the failure of the trial court to give such an instruction a source of prejudice? We hold that it was. In the Johnson opinion, at page 689, 68 Cal.Rptr. at page 609, 441 P.2d at page 121, it is said:

‘We turn, finally, to the question of prejudice. Had defendant been denied the right to cross-examine testimony given directly from the witness stand at his trial, the ruling would have been “constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.” (Smith v. State of Illinois (1968) supra, 390 U.S. 129, 131, 88 S.Ct. 748 [19 L.Ed.2d 956, 959], quoting from Brookhart v. Janis (1966) 384 U.S. 1, 3, 86 S.Ct. 1245 [16 L.Ed.2d 314, 316].) But we are dealing here with a witness' prior inconsistent statements, a category of evidence which may run the gamut from extremely damaging to trivial and insignificant. When such statements are introduced for their traditional purpose of impeaching the witness, they may have little effect on the guilt-determining process. Accordingly, the erroneous admission of such a statement as substantive evidence does not automatically deprive the defendant of a fair trial, and the conviction will be reversed only in those cases in which prejudice ensued.

‘Nevertheless the error is of federal constitutional dimensions, and hence the governing test of prejudice is that laid down in Chapman v. State of California (1967) 386 U.S. 18, 87 S.Ct. 824 [17 L.Ed.2d 705]. Applying that test, we find the People have not proved that the substantive use of the prior inconsistent statements here challenged was ‘harmless beyond a reasonable doubt.’ (Id. at p. 24, 87 S.Ct. 824 [17 L.Ed.2d at p. 711].) Indeed, a clearer case of prejudice could not be imagined, for these statements constituted the sole evidence that an act of intercourse had taken place as charged. Not surprisingly, it appears from the face of the record that the People's case presented considerable difficulty to the jury: they consumed many hours in deliberations, called for the transcripts of the grand jury testimony, and returned to the courtroom a number of times, evenly deadlocked, before they were able to reach a verdict. That the jury thus hesitated to convict a man of a serious crime on out-of-court testimony of this nature is a credit to their prudence and good sense.'

Our judicial consciences prevent us from finding that the error was ‘harmless beyond a reasonable doubt.’ (Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.)

We, therefore, reach the conclusion that the judgment cannot stand and that a retrial is necessary.

The judgment is reversed.

CONLEY, Presiding Justice.

STONE and GARGANO, JJ., concur.