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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Melvin Ernest RICHARDSON, Defendant and Appellant.

Cr. 38325.

Decided: August 27, 1981

Dennis L. Cava, Beverly Hills, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Robert F. Katz, Richard D. Marino, Deputy Attys. Gen., for plaintiff and respondent.

Defendant was convicted by a jury of first degree murder with special circumstances and was sentenced to life without possibility of parole. He appeals from the judgment of conviction. We affirm.


Viewed in the light most favorable to support of the judgment, as is the usual rule on appeal, the evidence establishes the following. Prior to the date of the homicide, defendant told an acquaintance on several occasions that he was going to kill the victim, one Richard Holley.

On the night of the homicide, Holley was at the home of one Carolyn Brown along with a friend, Donna Simmons. (Both girls testified at the trial.) Defendant, in company with one Lorenzo Cunningham, came to the Brown home and falsely told Holley that his, Holley's brother and mother, had been hurt in an accident and that Holley was wanted at the hospital.

Holley left the house with defendant and Cunningham and they walked to a nearby park where defendant and Cunningham shot and killed Holley with three rounds from a pistol. Later that night defendant admitted to the previously mentioned acquaintance, one Derrick Murray, and to the latter's brother, Robert, that he had shot Holley.

Defendant, in his testimony at trial, admitted going to the Brown residence with Cunningham, leaving the home in company with Holley and Cunningham and walking to the vicinity of the park. He testified, however, that he did not make the false statement concerning Holley's brother and mother, that he and Holley separated on the street and that he went to a nearby bar. He denied the killing.

We observe that while the defense in the nature of an alibi, to wit, that the defendant was elsewhere at the time of the killing. His description of his movements and that of the victim did not negate an opportunity for defendant to have committed the murder.

Defendant's first contention is that it was error for the trial court to instruct the jury in the language of CALJIC 2.621 which in essence tells the jury that if it finds that defendant failed to explain or deny evidence against him, the jury may consider that failure as an indication that the evidence was true.

In support of this contention, defendant argues that there was no evidence which he failed to explain or deny. He asserts, quite correctly, that a mere conflict between his testimony and the prosecution evidence is not a failure to explain or deny. (People v. Ellers, 108 Cal.App.3d 943, 166 Cal.Rptr. 888.)

The instruction in question is not comparable to the now-prohibited instruction which permitted the jury to infer guilt from the failure of a defendant to testify. (See Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.) Where defendant elects to testify he waives his right against self incrimination. (Raffel v. United States, 271 U.S. 494, 496-497, 46 S.Ct. 566, 567, 70 L.Ed. 1054.) Hence this instruction is constitutional. (People v. Saddler, 24 Cal.3d 671, 156 Cal.Rptr. 871, 597 P.2d 130.)

In this case defendant, in electing to testify, did not seek to limit his testimony to a specific point in an effort to limit cross-examination, hence the issue raised in People v. Tealer, 48 Cal.App.3d 598, 122 Cal.Rptr. 144, is not here present. The issue in People v. Tealer, supra, where defendant had attempted to limit his testimony, was whether the cross-examination of the defendant and the giving of CALJIC 2.62, violated the principle of Griffin v. California, supra, and defendant's privilege against self-incrimination.

Here defendant was wide-ranging in his testimony and the prosecutor was not required on cross-examination to give defendant an opportunity to explain or deny matters he may have omitted in his direct examination.

Thus the issue is whether it can be said, after an examination of defendant's testimony in chief, that it was prejudicial error to give the instruction. By force of the instruction itself, as well as the rule applicable to all issues of fact, the question of whether defendant failed to explain or deny matters which were within his ability to do so was for the jury to decide.

To follow defendant's argument would involve this court in a qualitative assessment of the defendant's testimony—an assessment which we are not disposed to make. Such an assessment by us would invade the fact finding powers of the trial jury unless we were prepared to say that, as a matter of law, defendant explained or denied every item of evidence against him. That we cannot do.

In our opinion the giving of this instruction under the circumstances of this case is no different than giving CALJIC 2.21, which tells a jury that it may reject the testimony of any witness, including the defendant, whom it finds to have testified falsely in one material part. The jury there must also make a preliminary determination of whether the witness in fact testified falsely before proceeding to the point of rejecting all or any part of the witness' testimony.

When these instructions are given together, as they were here, they simply tell the jury that if it finds that a defendant has deliberately lied or failed to explain or deny evidence against him, the jury may reject the defendant's testimony and find the evidence against him to be true.

Furthermore, when these instructions are followed by the traditional CALJIC 17.31, as it was in this case, that the jury should disregard any instruction which applies to a state of facts which the jury finds does not exist, we think it would be a rare case in which prejudicial error would be found in the giving of either CALJIC 2.21 or 2.62, in a case where defendant has testified on the merits.

Next defendant complains that the trial court erred when it admitted into evidence a tape recording of a conversation between Derrick Murray and the investigating officer. We disagree.

Derrick Murray was called as a witness by the prosecution, presumptively to testify according to a statement he had given to the investigating officer shortly after the murder. In that statement he said that on the evening of the murder he had seen Cunningham with a gun in his belt and in company with defendant; that defendant stated that they were going to kill Holley and that after the murder defendant admitted they had done so.

On the stand, Murray suffered a severe attack of memory loss. When pressed, he denied that he had seen Cunningham with a gun or that defendant had said that they killed Holley.

Murray did admit making the statements to the officer but said that he had lied and was under the influence of PCP when he did so. The People then produced the officer to testify to the contents of the statement and a tape recording of the conversation was played for the jury.

Murray's prior statement was clearly inconsistent with his testimony at the trial concerning the presence of the gun and the admission of the defendant. The statement was thus admissible to impeach his testimony. (Evid.Code, §§ 1235, 770.) The credibility of a witness may be attacked by any party including the party calling him. (Evid.Code, § 785.)

The witness was given an opportunity to explain his prior statement. The fact that he admitted making the prior statement did not render it irrelevant or inadmissible.

His explanation was that he lied in the previous statement and that he was under the influence of a drug. The jury was then presented with the issue of whether the witness lied at the trial or in the statement to the officer. We can think of no better method for assisting the jury in that determination than permitting it to hear the previous statement in the witness' own voice.

The jury was then able to hear the witness' manner of speaking and the content of his words and draw a comparison with his present testimony. Such evidence provided the jury with a better basis for determining whether the witness was under the influence of a drug and whether he was lying than would have been the case in simply hearing the officer narrate the conversation. The recording clearly was not cumulative and the trial judge was well within his discretion under Evidence Code section 352 in admitting the tape recording.

The defendant was fairly tried. The evidence against him was overwhelming. Any error which may have occurred in the trial was harmless beyond any doubt and no different result would be probable on a retrial. Thus we are bound to affirm the judgment. (People v. Laster, 18 Cal.App.3d 381, 96 Cal.Rptr. 108; Cal.Const., art. I, § 13.)

The judgment is affirmed.


1.  CALJIC 2.62 states:“In this case defendant has testified to certain matters. ¶ If you find that he failed to explain or deny any evidence against him introduced by the prosecution which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable. ¶ In this connection, however, it should be noted that if a defendant does not have the knowledge that he need to deny or to explain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain such evidence. ¶ The failure of a defendant to deny or explain evidence against him does not create a presumption of guilt or by itself warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt.”

COMPTON, Associate Justice.

ROTH, P. J., and BEACH, J., concur.