PEOPLE v. WILLIAMS (1975)

OPINION

Convicted by jury of first degree robbery (Pen.Code § 211) and sentenced to prison for the term prescribed by law, Benny Williams appeals from the judgment. He contends the court erroneously admitted certain hearsay evidence without satisfying the requirements of either section 1291 or section 1235 of the Evidence Code, thereby also depriving him of his constitutional right to confrontation. The trial court first admitted testimony given at the preliminary hearing by a declarant declared ‘unavailable’ (relying on Evid.Code §§ 240 and 1291) and then admitted as substantive evidence (relying on Evid.Code § 1235) a police officer's testimony concerning prior inconsistent statements attributed to the absent declarant, relating alleged admissions by defendant.

In mid-morning on April 8, 1974 a Safeway store in San Diego was robbed at gunpoint by three masked men. The tallest brandished a revolver, while the others were armed with a shotgun and a pistol. The robbers ordered the patrons to lie on the floor, forced the manager to open the safe, removed approximately $1,200 from it and the cash registers, then escaped by automobile.

A week or so later police investigating another crime stopped an automobile defendant was driving, searched it, and found ammunition in the glove compartment and a shotgun in the trunk.

On May 1, police arrested a Thomas Morris as a suspect in the robbery and took him into custody. The following day Morris made statements to Detective Smith which implicated defendant and two others in the robbery, with the result that the charges against Morris were immediately dropped.

On May 7, at a lineup conducted for the purpose of identifying the perpetrators of the robbery, the Safeway manager identified defendant as the shortest of the three robbers, basing his identification upon the similarity of defendant's physical stature and voice. He later repeated his identification of defendant at the preliminary hearing and at trial. No other witness was able to make an identification.

At the preliminary hearing held on May 23, the prosecution called Morris to testify but elicited no testimony from him adverse to the defendant. Morris was specifically asked whether he had told Detective Smith that he had known defendant for several years, that defendant had shown him a shotgun and had asked him to participate in the Safeway robbery, and that later defendant admitted using a handgun during the robbery and, with his accomplices, taking about $1,100. To each question Morris gave an emphatic denial.¹ Morris was never asked whether defendant in fact said and did these things. No questions were asked no cross-examination and then, at the magistrate's suggestion, Morris was excused. Thereupon the prosecutor called Detective Smith to testify that Morris had indeed made these statements to him, this evidence being admitted both as impeachment and as substantive evidence. Defendant was held to answer on the charges, and his later motion under Penal Code section 995 was denied.

The prosecution doubtless expected to repeat the procedure at trial, but this time Morris failed to appear. He had been served with a timely subpoena to testify at trial and had indicated he would do so. He did in fact appear on five separate occasions but each time was requested by the prosecution, or ordered by the court, to return at a later time or date. Once during this period a bench warrant was issued, but the following day Morris appeared voluntarily. His last appearance was shortly before noon on Monday, August 19, at which time the court ordered him to return at 2 p. m. that afternoon. During the noon recess the prosecutor spoke with Morris in the presence of Detective Smith and a patrolman assigned to the area in which Morris allegedly resided. During this conversation Morris claimed he had been threatened, said he feared his life would be in danger if he testified, but nevertheless assured the prosecutor he would testify. However, at 2 o'clock Morris was nowhere to be found, and the court issued another bench warrant. On the following day, Tuesday, the court suggested to the prosecutor that an investigator be used to locate him.

On Wednesday, August 21, Morris had not been located. When the defendant refused to consent to a continuance, the court, over his objection, declared Morris to be an unavailable witness within the meaning of Evidence Code section 240 and admitted into evidence an edited version of Morris' preliminary hearing testimony under the former testimony exception to the hearsay rule contained in Evidence Code section 1291.² Then, over hearsay objections by the defendant, the prosecutor was allowed to call Detective Smith to repeat the prior inconsistent statements Morris had made to him out-of-court. The record shows the court admitted this testimony both to impeach Morris and to prove the truth of the matter stated. The evidence was the sole basis for the later instructions given the jury on the subject of admissions.

During its deliberations the jury requested the rereading of certain testimony, and counsel agreed it could be read in their absence. The court then reread not only what had been requested, but Detective Smith's testimony as well. Soon after this, the jury found defendant guilty of first degree robbery.

DISCUSSION

Since we conclude that Morris' preliminary hearing testimony and Detective Smith's testimony repeating Morris' prior statements inconsistent with what he said at the preliminary hearing were inadmissible on other grounds, we do not reach the defendant's claim that the People failed to use due diligence to produce Morris as a witness at the trial.

Under Evidence Code section 1235,³ the prior inconsistent statement of a witness is admissible not only to impeach his credibility but also to prove the truth of the matters asserted therein (People v. Green, 3 Cal.3d 981, 985, 92 Cal.Rptr. 494, 479 P.2d 998). In the initial Green decision (People v. Green, 70 Cal.2d 654, 75 Cal.Rptr. 782, 451 P.2d 422), the California Supreme Court had held that the admission of a witness' prior inconsistent statements for the purpose of establishing the truth of the matters asserted violated a defendant's right of confrontation guaranteed by the Sixth Amendment. However, the United States Supreme Court granted certiorari, vacated the decision, and ruled that the admission of a witness' prior inconsistent statement to prove the matters asserted therein does not violate the confrontation clause provided that (1) the statement was made by the declarant in testifying as a witness at the preliminary hearing or (2) the declarant testifies as a witness at the trial regardless of the circumstances in which the prior statement was made (California v. Green, 399 U.S. 149, 158–159, 165, 90 S.Ct. 1930, 1935, 1938, 26 L.Ed.2d 489; People v. Green, supra, 3 Cal.3d 981, 985, 92 Cal.Rptr. 494, 479 P.2d 998). The high court remanded the case to the California Supreme Court to make factual determinations unrelated to the issue presented here (see People v. Green, supra, 3 Cal.3d 981, 92 Cal.Rptr. 494, 479 P.2d 998).

Green involved a factual situation significantly different from that presented here. In Geen the witness Porter testified at both the preliminary hearing and at the trial. At the preliminary hearing he testified that defendant Green had furnished him with 29 baggies of marijuana. His testimony at the trial, however, was ‘markedly evasive and uncooperative’ (70 Cal.2d at page 657, 75 Cal.Rptr. 782, 451 P.2d p. 422) and ‘materially inconsistent with his preliminary hearing testimony and his extrajudicial declaration to Officer Wade’ (3 Cal.3d at page 989, 92 Cal.Rptr. at p. 498, 479 P.2d at p. 1002). Because his testimony at the preliminary hearing was adverse to Green, Porter was subject to vigorous cross-examination at that hearing. Because he was a witness at the trial, he was again subjected to cross-examination concerning his change of testimony and the extrajudicial declaration he had made to Officer Wade. In fact, when recalled for further cross-examination, Porter admitted making the statement to Officer Wade and that it had to do with buying the marijuana from Green (3 Cal.3d at page 989, 92 Cal.Rptr. 494, 479 P.2d 998).

Under these circumstances, the three-fold purpose of the right of confrontation was adequately met,⁴ and the use of Porter's preliminary hearing testimony and his extrajudicial statement made to Officer Wade to establish the truth of matters asserted did not violate Green's right to confrontation.

In contrast to the situation presented in Green, Morris did not testify at the trial, and his testimony at the preliminary hearing was in no way harmful to the defendant. As a consequence there was no meaningful confrontation; defendant's counsel had no reason to cross-examine him, and, in fact, asked him no question. Moreover, the inconsistent and damaging statement which the People were permitted to introduce at the trial was not a statement made by Morris under oath at the preliminary hearing but rather a statement made to Detective Smith out-of-court. Since the inconsistent statement was not made by Morris at the preliminary hearing and since Morris did not testify at the trial where he would have been subject to cross-examination, it was error to receive Detective Smith's testimony repeating the statement and to permit its use for the purpose of establishing the truth of the matters asserted therein (People v. Green, supra, 3 Cal.3d 981, 985, 92 Cal.Rptr. 494, 479 P.2d 998).

The erroneously admitted evidence was critical and there can be no doubt its admission was prejudicial. Used as substantive evidence, for all practical purposes it amounted to a confession. Without it, evidence of defendant's participation in the robbery was not strong. It appears reasonably probable that a result more favorable to the defendant would have been reached had the error not occurred. Therefore, reversal of the judgment is required (People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243).

We point out that our holding would make Morris' preliminary hearing testimony and Detective Smith's testimony relating Morris' prior statement inconsistent with it both inadmissible upon retrial unless Morris is produced as a witness. The testimony of a witness may not be offered for the sole purpose of impeaching him, and the rules relating to the admissibility of former testimony presuppose that such testimony is relevant in the first place. Morris' testimony denying he made certain statements to Detective Smith has no relevance whatsoever if his prior statements inconsistent with that testimony cannot be considered as substantive evidence.

The judgment is reversed.

FOOTNOTES

1.  E. g., ‘I did not tell nobody nothing about no shotgun. . . .’

2.  The People's proof of diligence in their effort to locate Morris was limited to showing that commencing about noon on Tuesday several police officers had made occasional checks at two locations where Morris was thought to reside, a warrant had been issued for his arrest and an all-units bulletin had been issued for his apprehension. There was no showing that inquiry had been made of Morris' relatives, friends or acquaintances.

3.  Evidence Code section 1235 provides: ‘Evidence of a statement made by a witness is not made inadmissible by the arsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.’ (Emphasis added)

4.  These purposes were delineated as: (1) to insure reliability by means of the oath; (2) to require the witness to submit to the probe of cross-examination; and (3) to permit the jury to observe the witness while making his statement and assess his credibility (California v. Green, supra, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489; see also People v. Green, supra, 3 Cal.3d 981, 985, 92 Cal.Rptr. 494, 479 P.2d 998).

AULT, Presiding Justice.

GERALD BROWN, P. J., and COLOGNE, J., concur.