PEOPLE v. BROCK (1984)

Defendant Luther Clayton Brock appeals from a judgment based on conviction by a jury of second degree murder and of unlawful administration of methamphetamine.  (Pen.Code, § 187;  Health & Saf.Code, § 11379.)   He contends the trial court made evidentiary and other errors which deprived him of his constitutional rights of confrontation and due process.   We affirm.

Facts

On August 15, 1980, a doctor informed the victim, Iris Southall, that she had an abscess on her arm which required surgery.   Later that day she was admitted to San Francisco General Hospital where she was placed on Ward 4B in a room with another patient, Mary Williams.

Southall told the surgeon she had given herself an intramuscular injection of amphetamines about three days earlier.   The surgeon's examinations of her before and during the operation on the abscess revealed no symptoms of amphetamine intoxication or poisoning.

Surgery was performed without incident from 10:15 to 11:15 p.m.   Southall was placed in the recovery room.   The surgeon reexamined her shortly before midnight.   Again there were no symptoms of amphetamine intoxication.

An I.V. tube was placed in the patient's ankle through which she received penicillin and clindomycin.   At 4 a.m., she was moved from the recovery room to the room she shared with Mary Williams.   She was awake and alert and her vital signs were satisfactory.   However, at 6:20 a.m., the nurse noted that Southall's vital signs had suddenly taken a turn for the worse.   She could only be aroused with great difficulty.   Her skin was cold and had a “bluish hue” around the extremities—a condition known as cyanosis.   The nurse summoned a medical intern, Dr. Shae Goldstein.   Goldstein asked Southall “if anybody had given her any drugs.”   She replied “yes,” that “her friends did” just before the operation.   After continued efforts to revive Southall, her condition continued to deteriorate and she was pronounced dead at 12:55 p.m. on the day following surgery.

The autopsy on Southall revealed extraordinarily high levels of amphetamine and methamphetamine (a stimulant twice as potent as amphetamine).   The San Francisco medical examiner testified that these levels would have been lethal to any person.   The coroner and other prosecution witnesses concluded the cause of death was a massive overdose of amphetamines and methamphetamines injected through the I.V. bag.   Defense experts suggested several alternative theories.

Inspector Napoleon Hendrix of the San Francisco Police investigated Southall's death.   On August 20, four days after the death, he interviewed Southall's hospital roommate, Mary Williams.

Hendrix' notes from the August 20 interview with Williams stated:  “Mrs. Williams told officers that on 8–15–80 prior to Southall going to surgery, she was visited by an NMA [negro male adult] ․ [w]ho came into the room and talked with Southall until she left for surgery.   Later after surgery, approximately 0400 A.M. the NMA returned and again talked with Southall.  [¶] During the talk, the NMA asked Mrs. Williams for matches which she gave him.   [¶] She then observed him to mix something in a container, then go to the area of Southall's feet.   Mrs. Williams heard Southall say to the NMA, ‘I don't see how shooting in my foot will help;  I don't have a vein in my foot.’  [¶] The NMA then told Southall, ‘you have veins all over.’  [¶] Mrs. Williams then heard what sounded like a syringe being placed on a table.   Later there was more conversation between the NMA and Southall.  [¶] Still later, Mrs. Williams observed the NMA putting wet towels to the body of Southall.   He repeated this act three or four times.  [¶] Later hospital help came into the room and she was moved out of the area and room.   Before Mrs. Williams was removed from the room, she observed the NMA talking to the doctor and after the conversation, he (the NMA) was allowed to stay in the room․”

During the same interview Hendrix showed Williams six photographs.   Hendrix' notes recite that Williams “picked out the photo of Luther C. Brock [and] [f]urther stated that he was the NMA who was in the room and did something to the feet of Southall.  [¶] Mrs. Williams further stated that Brock was wearing this same shirt in the photo that he was wearing while in 4B, 35.”   She signed the back of the photograph.

At the conclusion of the interview Hendrix signed the notes he had made from Williams' statements.   He did not offer them to Williams to read or sign.

The account of events Williams gave Hendrix on August 20 was, for the most part, consistent with the statement she had made to Officer Dennis Bonnel on August 16, the day of Southall's death.   There was one discrepancy.   She had told Bonnel that no words were spoken between Southall and her visitor when he returned to the room around 4 a.m.   Bonnel had taken notes from his August 16 interview and had incorporated these into a police report.

Seth Derish, a private investigator, interviewed Williams in January 1981.   He returned a week later with defense counsel and taped a second interview, during which Williams contradicted some of her earlier statements to Hendrix.   She told Derish and defense counsel that a black man had visited Southall early in the evening but had not returned after Southall came back from surgery.   She also stated that Hendrix' account of his interview with her was incorrect.   She claimed to have heard an “ashtray” not a “syringe” being placed on the table.   Williams also stated Hendrix had displayed only one photograph (Brock's) to her, not six.

The defense theory at trial was alibi.   An acquaintance of Southall and of Brock, Steve Irons, disputed the prosecution witness' account of the hours of Brock's visits to the hospital.   Irons stated that he and Brock were at the hospital from 6 to 9 p.m.   They returned at about 9:30 or 10 p.m. and remained until about midnight, but were unable to see Southall.   Irons testified that he last saw Brock in Hunters Point at 12:30 or 1 a.m., August 16, the day of the death.   Irons admitted that he had been high on amphetamines for several days preceding these events.   A police officer testified that he observed Irons on August 16 at the hospital and that Irons clearly appeared under the influence of drugs.   Two other defense witnesses stated that Brock was at a friend's house from 2 a.m. to about 6:30 a.m.

Procedural Background

The preliminary hearing commenced February 25, 1981.   The second day of the hearing was held in Williams' hospital room.   The People sought Williams' testimony for the purpose of establishing the foundation for introduction under the hearsay exception for past recollection recorded (Evid.Code, § 1237) of Hendrix' notes of his August 20 interview with her.¹  Since the events in August 1980 her physical condition had worsened:  her leg had been amputated, she was suffering from numerous other ailments and was receiving medication.   Dr. George Lampe was present during Williams' testimony to monitor her condition.

On direct examination Williams testified:  “Q.  ․ [D]id you have a time when you talked to Mr. Hendrix, this gentleman right here?   Would you stand up please, sir?  [¶] A.   Yeah, I know Mr. Hendrix good.  [¶] Q.   Sure․  [D]id you tell him what you remembered at that time as to what you saw after Iris came into the room?  [¶] A.   Yes, I'm sure I did because I told him just exactly what I thought I knowed.  [¶] Q.   And you were telling him the truth then, weren't you?  [¶] A.   I was.  [¶] Q.   Now, your memory was good at that time about what happened, wasn't it?  [¶] A.   Right.

“․

“Q. Can you remember now what you saw happen on the day that Iris died, can you remember now what you saw?  [¶] A.   No.  [¶] Q.   Okay.   But what you told Mr. Hendrix what happened, that was the truth, is that right?  [¶] A.   It was the truth what I told Mr. Hendrix.  [¶] Q.   Okay.   Did you pick out a picture at one time when you were talking to Inspector Hendrix?  [¶] A.   I didn't pick out no one particular picture, it was just one picture.

“․

“Q. Do you remember anything at all about any visitors to Iris?  [¶] A.   Any visitors to Iris?  [¶] Q.   That she would have had?  [¶] A.   No, I can't.

“․

“Q. Okay.   Do you remember at all if anybody came in to visit her after ․ she went into surgery?  [¶] A.   No, I don't.

“․

“Q. Okay.   Do you remember at all after they took her out, her coming back into the room?   Them taking her into the room again?  [¶] A.   Unh-unh (no).   [¶] Q.   Do you remember at all?  [¶] THE COURT:  The witness is shaking her head in the negative.

“․

“Q. Mrs. Williams, can you remember anything, any visitors at all to Iris Southall, to Iris, rather, after she came into the room, do you remember anything?  [¶] A.   I don't remember anything.

“․

“Q. Those inspectors who came in, they were trying to find out what caused Iris' death, is that right?  [¶] A.   That's right.  [¶] Q.   And when they were there, they asked you if you could help to tell them some things, is that right?  [¶] A.   Right, right.  [¶] Q.   And you did, didn't you, you told them what you know? ․  [¶] A.   Yes, just like I did Mr. Hendrix and everybody else.  [¶] Q.   Just like you told Mr. Hendrix, okay.  [¶] A.   Yes.  [¶] Q.   What you told them then was the truth, is that right?  [¶] A.   Right.  [¶] Q.   And right now you can't remember what happened very clearly that day, is that right?  [¶] A.   That's right, that is right.”

At this point Williams was experiencing considerable pain.   At the magistrate's request Dr. Lampe described Williams' condition for the record:  “She's just laying flat on her back, with head up about 15 degrees on a gurney, portable bed.”

Defense counsel then began cross-examination:  “MR. MCGRIFF:  Q.   Do you remember the night that Iris was in the hospital, July—I mean August 15th?   [¶] A.  (Inaudible)  THE COURT:  What did you say, Mrs. Williams?  [¶] THE WITNESS:  I say I don't know, I've never answered.  [¶] THE COURT:  You just don't know anything other then what you've already told us?  [¶] THE WITNESS:  Right.  [¶] THE COURT:  All right.  [¶] MR. MCGRIFF:  Q.   Let me try to ask you, did you remember a black male visitor that visited Iris that night?  [¶] THE COURT:  Are you thinking about it, Mrs. Williams?  [¶] THE WITNESS:  Thinking about what?   I don't know.  [¶] THE COURT:  Did you forget that question?   He asked you whether you remembered a black male visitor, coming to Iris' room that night.   If you don't remember, you just have to say so, if you do remember, then tell us.  [¶] THE WITNESS:  I can't remember no black male visitor.  [¶] THE COURT:  She's indicated that she can't remember a male visitor coming to the room.  [¶] THE WITNESS:  The only thing I can say is I just cannot, other than the next day when the other people began to come in, they come in asking me questions.  [¶] THE COURT:  All right.  [¶] THE WITNESS:  That's all I know.  [¶] MR. MCGRIFF:  I don't think there's anything further.”

After Williams was excused the magistrate called Dr. Lampe as a witness.   Lampe testified that, although Williams was under heavy medication, she had appeared alert and lucid immediately prior to her testimony but that “at least in the last part of the questioning” she was especially fatigued and had difficulty understanding and responding.

Defense counsel moved to strike Williams' direct testimony on the ground that her physical condition rendered her incompetent to testify and prevented him from conducting adequate cross-examination.   The magistrate found that Williams was competent and, though noting that defense counsel was “severely handicapped in [his] interrogation of the witness, as was the prosecution,” denied the motion to strike the direct testimony.   Williams' statements to Inspector Hendrix on August 20 were admitted as past recollection recorded.   Her January 1981 statements to private investigator Derish were admitted as inconsistent statements.²  The statements she made to Officer Bonnel on August 16 were also admitted.³  Williams died before the case came to trial.

In superior court Brock moved under Penal Code section 995 to set aside the information on the ground of error in admission of Hendrix' interview notes as past recollection recorded at the preliminary hearing.   The court denied the motion.   Brock raised the same issues in an in limine motion on the first day of trial.

The trial court admitted from the preliminary hearing testimony both the direct and the cross-examination of Williams, under the former testimony exception to the hearsay rule.   Inspector Hendrix was permitted to read the August 20 statements he took from Williams under the exception for past recollection recorded.⁴  The defense introduced the somewhat inconsistent accounts Williams had given Officer Bonnel on August 16, 1980, and defense counsel and his investigator, Derish, in January 1981.

Discussion

I.Admission of Hendrix' Notes1. Past recollection recorded

 Brock first challenges the admission at the preliminary hearing and in superior court of Hendrix' notes from his August 20 interview with Williams.   He contends the foundational elements for the past recollection recorded exception to the hearsay rule were not met.⁵  Section 1237 provides:  “(a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which:  [¶] (1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness' memory;  [¶] (2) Was made (i) by the witness himself or under his direction or (ii) by some other person for the purpose of recording the witness' statement at the time it was made;  [¶] (3) Is offered after the witness testifies that the statement he made was a true statement of such fact;  and [¶] (4) Is offered after the writing is authenticated as an accurate record of the statement.  [¶] (b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party.”

Each of these fundamental elements was met.   Williams testified that her memory of the events she had observed in her hospital room was “good” when she talked to Hendrix four days later.   She specifically recalled her conversation with the inspector (“I know Mr. Hendrix good”) and emphatically averred that she had given Hendrix a truthful account of what she had observed.

Hendrix testified that, although he did not record all Williams' words verbatim, his notes accurately reflected her responses during their interview.   He signed the notes and testified as to their contents.

 The requirement that the witness have “insufficient present recollection to enable him to testify fully and accurately” was also met.   The witness had some limited recollection of the night in question but, as she repeatedly stated, her memory failed her as to what actually occurred in the hospital room.   It is not necessary that a witness have no recollection whatever of an event before past recollection recorded is admissible.   Indeed, in such a situation the totality of the absence of memory would render the evidence inadmissible.  (People v. Simmons (1981) 123 Cal.App.3d 677, 682–683, 177 Cal.Rptr. 17.)

 The existence of foundational elements for the admission of evidence under a hearsay exception is a question of preliminary fact to be determined by the court.  (See legis. committee com., 29B West's Ann.Evid.Code (1966 ed.) § 405, p. 277.)   Substantial evidence supports the conclusion of the magistrate and of the trial court that the provisions of section 1237 were met.

2. Right to confrontation

 Brock next contends that the physical condition of Williams at the preliminary hearing constrained defense counsel's ability to cross-examine her as to the pertinent foundational elements of section 1237, thereby rendering admission of Williams' statements to Hendrix violative of his right to confront witnesses under the Sixth Amendment of the United States Constitution and article 1, section 15, of the California Constitution.

Our review of these overlapping attacks is assisted by various rulings of the magistrate.   The flavor of the preciseness of his rulings jumps from the record:  “I'm going to deny the motion to strike her testimony for the following reasons:  one, I believe that the witness ․ understood what she was here for, and her recollection of the events ․ and her response to questions was sufficiently responsive that she should be found competent for certain purposes.  [¶] I further think she was competent enough in the one area where she was clear and rational was that she was aware of Inspector Hendrix, she on a couple of occasions indicated that police persons had come and asked her questions, and that to those questions she had given truthful answers.   About that she seemed fairly lucid and clear.   When questions were asked to her about the specific events in the hospital room, then she became distressed, somewhat confused, and then would recede into a statement that she just didn't remember and that she was confused about them.   She did appear to be clear and unequivocal about the fact that a statement was taken from her, she told them what she knew and it was truthful and she couldn't remember it now.  [¶] So I'm going to deny the motion to strike her testimony at this time.   I think for those purposes she's competent.  [¶] As to anything which she testified to about that event, I have some serious question about her competency to testify based only on her state of mind at this time, because her memory is so clouded as to those events, but not regarding the taking of a statement from her and Inspector Hendrix, not only did she identify him, but indicated she knew him by name and referred to him by name.”

We read the various rulings of the magistrate as including three determinations.

First, the magistrate determined as a matter of fact that the witness was competent to testify on direct and on cross-examination as to the foundational elements of the past recollection recorded and had with respect thereto competently testified.

It bears emphasis that the magistrate at the preliminary hearing was in a far better position than any reviewing tribunal to determine the actual physical and mental condition of the witness with respect to her ability to testify competently.   That first-hand evaluation was assisted by the testimony of a medical expert, Dr. George Lampe, who observed all of Williams' cross-examination.   The record of that hearing is a demonstration of careful and thoughtful consideration by the magistrate of the ability of the witness to respond to questioning.   Those detailed determinations are supported by substantial evidence.

Even if some infirmity could be found in the finding of competency, defense counsel made no contemporaneous motion to continue the preliminary examination to a later hour or a different day to allow the obviously fatigued witness to rest.   Rather cross-examination was concluded with a terse “I don't think there's anything further.”

Second, the magistrate as trier of fact on those foundational fact questions was convinced by a preponderance of the evidence that the requirements of section 1237 had been proved.

Appellant does not dispute the correctness of that determination, but contends that his right to cross-examination was unconstitutionally curtailed.   We disagree.

 Particularly important is that the witness was testifying only for the purpose of satisfying the prosecution's burden of proof as to some of the foundational elements of past recollection recorded.   Since it was the prosecution that was offering Officer Hendrix' notes as past recollection recorded, it had the burden of establishing the existence of the foundational facts prerequisite to admission of Officer Hendrix' notes under 1237.   In other words, the prosecution had the burden of proof with respect to the preliminary facts.   That was the burden of convincing the magistrate at the preliminary hearing of the existence of those foundational facts.  (§ 405.)   That burden required proof only by a preponderance of the evidence.  (§ 115.) ⁶

Thus cross-examination of the witness Williams in the context in which she appeared could only be for the purpose of demonstrating, if possible, that the foundational facts did not exist or had not been proved to a preponderance by the proponent of the evidence.

In that regard the defense well exercised the opportunity it was afforded to shake Williams' testimony on direct:

(a) That when she spoke to Hendrix she had a “good” recollection of the events in the hospital room which had occurred four days earlier;

(b) That the statements she made to Hendrix at that time were true;

(c) That at the time of the preliminary hearing she could not testify about the events in the hospital because she had insufficient present recollection of them.

In a sense, then, appellant is accurate in stating that the witness Williams was incapable of testifying on cross-examination about the events in the hospital room.   But that very inability to remember is itself a prerequisite to the admission of the past recollection of Williams which was recorded by Officer Hendrix.   As noted earlier, for those notes to be admissible the court had to have been convinced by a preponderance of the evidence that Williams at the time of the preliminary examination had “insufficient present recollection to enable [her] to testify fully and accurately” concerning the matter contained in her statement to Hendrix.  (§ 1237.)   If she had possessed a full recollection at the time of her testimony, use of the hearsay exception would have been unnecessary.   In this limited sense, the incompetency of the witness was necessary if by incompetency is meant inability to remember.

Third, the magistrate determined that “[a]s to anything which she [Williams] testified to about that event” her competency was irrelevant.   On this last point, too, we also agree.   It is not a violation of any right to cross-examination or confrontation that appellant was not able to get answers from the witness Williams about what happened in the hospital room.   Since such a demonstrated lack of recollection as to such matters is a precondition to use of the hearsay exception known as past recollection recorded, if appellant were correct this hearsay exception itself would be unconstitutional as a violation of confrontation.   Appellant makes no such attack.

II.–III.7

The judgment is affirmed.

I respectfully dissent.

I agree with the majority's conclusion that Inspector Hendrix' notes met the foundational requirements of past recollection recorded and that appellant's contentions of other alleged evidentiary errors and due process allegations are without merit.   I disagree with the majority on the confrontation question.

The critical question in this case is whether Williams' preliminary hearing testimony was properly admitted at trial.  Evidence Code section 1291 ¹ governs the admission of former testimony of an “unavailable” witness.   Williams' unavailability at trial was proven in court through the introduction of a certified copy of her death certificate.   Consequently, the sole question is whether, at the former proceeding, appellant “had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he [had at trial].”  (§ 1291, subd. (a)(2).)   This question raises issues of constitutional significance.  (Ohio v. Roberts (1980) 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597;  California v. Green (1970) 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489.)

It is the adequacy of the opportunity for cross-examination at the previous proceeding, rather than the extent to which the defendant took advantage of that opportunity, which is determinative.  (People v. Green (1971) 3 Cal.3d 981, 990, 92 Cal.Rptr. 494, 479 P.2d 998, cert. den., 404 U.S. 801, 92 S.Ct. 20, 30 L.Ed.2d 34 on remand after California v. Green, supra, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489.)   Reviewing courts have repeatedly emphasized that the opportunity for cross-examination must have been “meaningful” (People v. Sul (1981) 122 Cal.App.3d 355, 369, 175 Cal.Rptr. 893;  Stevenson v. Superior Court (1979) 91 Cal.App.3d 925, 929–931, 154 Cal.Rptr. 476;  People v. Johnson (1975) 46 Cal.App.3d 701, 704, 120 Cal.Rptr. 372);  consequently, close scrutiny of the record of a preliminary hearing is necessary to determine whether judicial rulings or other conduct beyond the control of defendant and his counsel hampered effective cross-examination.

Preliminary hearing testimony has been held properly admitted at trial where an “adequate opportunity” for cross-examination was “fully exploited” through searching questioning (People v. Maxwell (1979) 94 Cal.App.3d 562, 572, 156 Cal.Rptr. 630), the prior cross-examination was “thorough” and “extensive” (People v. Rodriguez (1971) 18 Cal.App.3d 793, 797, 96 Cal.Rptr. 162), or free from “interference or abridgment.”  (People v. Palacios (1968) 261 Cal.App.2d 566, 574, 68 Cal.Rptr. 137, disapproved on other grounds in People v. Navarro (1972) 7 Cal.3d 248, 271, fn. 20, 102 Cal.Rptr. 137, 497 P.2d 481;  see also People v. Trunnell (1971) 19 Cal.App.3d 567, 570–572, 96 Cal.Rptr. 810 [no prejudicial error from magistrate's restriction of defense counsel's “inflammatory, humiliating, and unnecessary” questioning during otherwise “extensive” cross-examination “on each aspect” of witness' preliminary hearing testimony].)

The factors pertinent to evaluation of the adequacy of a prior opportunity for cross-examination are summarized in People v. Gibbs (1967) 255 Cal.App.2d 739, 63 Cal.Rptr. 471:  “Bare existence of an opportunity for cross-examination in a prior proceeding supplies only a limited indication of the opportunity's adequacy․  The presence and participation of counsel ․ do not necessarily ensure the opportunity's adequacy.   Qualitative factors play a role.   The nature of the proceeding;  the character of the witness and his connection with the events;  the extent and subject of his direct testimony;  the time and preparatory opportunities available to the accused and his attorney—these are some of the influential factors.”  (Id., at p. 743, 63 Cal.Rptr. 471;  Stevenson v. Superior Court, supra, 91 Cal.App.3d at p. 929, 154 Cal.Rptr. 476.)  Gibbs held preliminary hearing testimony inadmissible at trial where the defendant's attorney had been appointed only minutes before the hearing and, due to lack of preparation and investigation, was therefore able to conduct only perfunctory cross-examination.

In People v. Johnson, supra, 46 Cal.App.3d 701, 120 Cal.Rptr. 372, admission of preliminary hearing testimony constituted reversible error where the trial court refused to first conduct a hearing into the competence of the interpretor who translated the testimony of a Spanish-speaking prosecution witness during the former hearing.   As the defendant's attorney in that hearing was not fluent in Spanish and the trial court barred subsequent attack upon the competence of the interpretor, the reviewing court could not determine from the record whether defendant's counsel had had “a meaningful opportunity of cross-examination at the earlier proceeding.”  (Id., at p. 704, 120 Cal.Rptr. 372.)

Similarly, in Stevenson this court refused to presume the adequacy of preliminary hearing cross-examination in the face of circumstances which could have inhibited defense counsel's effectiveness on that occasion.   Where defendant was incompetent at the time of his first preliminary hearing and thus inferably unable to assist his attorney in representing him, the court would not “speculate” that cross-examination was nonetheless effective.  (91 Cal.App.3d at pp. 930–931, 154 Cal.Rptr. 476.)   This court held:  “The appropriate test is not merely whether defendant was represented by counsel who had an opportunity to cross-examine the witness at the preliminary hearing.   It must be determined whether there was a real opportunity of cross-examination.”  (Id., at p. 930, 154 Cal.Rptr. 476.)

In Gibbs, Stevenson and Johnson, there was no “error” as such in the magistrate's supervision of direct and cross-examination;  yet in each there was an extraneous circumstance which could have hampered effective cross-examination.   In each case the danger that there had been interference with the opportunity for cross-examination precluded subsequent use of the preliminary hearing testimony.

Here, the grounds for exclusion are even stronger.   The magistrate, while denying the motion to strike the direct testimony, stated for the record that Williams' infirmity and the deterioration of her condition during the course of her testimony had in fact substantially restricted the opportunity of the defense to confront the witness:  “During the taking of the testimony of Mrs. Williams, because of her state of distress and some obvious pain, [defense counsel] was not in a position to object to questions as he would normally be able to in a courtroom․  I know there were a couple of times where you were beginning to object where I stopped you because I thought the mere intrusion of a legal argument at that time might disorient the witness even further, so I think the record should reflect that․  [¶]  [Defense counsel] was given an opportunity to cross-examine her, that opportunity was clearly curtailed by the fact that the witness, number one, her recollection was so hazy, and two, she seemed to be in pain, and as some questions were asked of her she appeared to drift and have trouble answering them.”   The magistrate repeated these observations on the final day of the preliminary hearing:  “I think you were severely handicapped in your interrogation of the witness, as was the prosecution, but the prosecution called her, got in a few questions which she seemed to be lucid enough to answer, then she was foggy and drifting off and incoherent at times and coherent at others, and I'm faced with the situation ․ of either recognizing the handicap that counsel had in examining her, or invalidating all of her testimony on the grounds there was not sufficient opportunity to recross-examine her, I have already made a finding that I found that the witness was competent to testify as to the fact that she had made the statements and that they were accurate, and for that purpose admitted certain statements under 1237.  [¶] That being so, I felt that it was my responsibility to indicate that defense counsel was severely handicapped in the range [and] nature of his cross-examination.   The Court therefore has to draw some inferences, make some assumptions or invalidate the entire testimony of the witness, which I don't think is in the interest of justice under all of the circumstances, so that's why I have indicated that the general rules, strict rules of these sections cannot be applied with the exact precision they could be under other circumstances where the parties had all of the opportunities to explore inconsistencies to validate or invalidate prior statements and to have a clear and more thorough record that would be available.”

Both the transcript of Williams' testimony and the testimony of Dr. Lampe confirm the magistrate's observation that Williams was fairly lucid at the beginning of her testimony but later began to “drift” as her discomfort and fatigue overwhelmed her ability to comprehend and respond to questioning.   This was truly the worst of possible situations for defense counsel.

The witness was sufficiently competent to testify for the prosecution.   In recognition of her ailments, the court permitted the prosecutor to conduct direct examination through leading questions and restrained defense counsel from raising evidentiary objections during that examination.   The onset of Williams' inability to respond clearly to questioning appears to have coincided almost exactly with the commencement of cross-examination.   Defense counsel was able to ask literally only a handful of questions of the sole percipient witness against appellant.   The only one to which he received a clear response was his query whether she remembered that he had visited her in her home the previous month.²

Defense counsel was unable to examine Williams with respect to the defense investigator's tape of his conversations with her.   There was no opportunity for the defense to obtain Williams' verification of the truth of her statements to the defense team nor to confront her with respect to the substantial inconsistency between the two interviews, both of which related to her recollection of the events of the night of the homicide.   As the tape captured her actual words, while Hendrix' notes only paraphrased them, it is possible that, given the opportunity, she would have adopted the tape as the more accurate reflection of her memory of the events in the hospital room or that her memory of the events would have been refreshed, thereby undermining the foundational elements of past recollection recorded.   Unfortunately, the subject was never addressed.

It is impossible to characterize defense counsel's opportunity to cross-examine Williams at the preliminary hearing as “meaningful” either as general cross-examination of the only percipient witness to testify against appellant or as more limited cross-examination on the foundational requirements of past recollection recorded.  (People v. Sul, supra, 122 Cal.App.3d at p. 369, 175 Cal.Rptr. 893;  Stevenson v. Superior Court, supra, 91 Cal.App.3d at pp. 929–931, 154 Cal.Rptr. 476;  People v. Johnson, supra, 46 Cal.App.3d at p. 704, 120 Cal.Rptr. 372.)   There was essentially no cross-examination for any purpose.   The majority's assertion that defense counsel “well exercised the opportunity it was afforded to shake Williams' testimony on direct,” in my opinion, flies in the face of the record.

Additionally, the majority's characterization of defense counsel's conclusion of his examination of the witness as a waiver of any claim on appeal seems unreasonable in the circumstances of this case.   In the first place, the actual language used by counsel is more consistent with an exasperated surrender in the face of hopeless frustration than a waiver of such a fundamental right.   Secondly, it was followed immediately by a motion to strike the witness' testimony both on the basis of incompetency and denial of cross-examination.

Inexplicably, in light of Dr. Lampe's testimony, his own observations regarding fatigue, and defense counsel's motion, the magistrate did not explore the possibility of recessing the hearing to permit Mrs. Williams an opportunity to rest prior to cross-examination.   This would have maximized the chance of acceptable cross-examination (People v. Sul, supra, 122 Cal.App.3d at p. 367, 175 Cal.Rptr. 893), and would have been consistent with the role of a judge as more than a “ ‘ “mere umpire presiding over a contest of wits between professional opponents․” ’ ”  (People v. Carlucci (1979) 23 Cal.3d 249, 256, 152 Cal.Rptr. 439, 590 P.2d 15.)

Finally, the majority's interpretation of counsel's conclusion of cross-examination creates an unresolved dilemma:  either there was judicial error or there is a serious question of ineffective assistance of counsel (People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859;  People v. Fosselman (1983) 33 Cal.3d 572, mod. 33 Cal.3d 974a, 189 Cal.Rptr. 855, 659 P.2d 1114 [as modified] ), which has not been addressed on this appeal apparently because appellant's counsel on appeal is the same as his trial counsel.   This raises, in my opinion, grave questions of conflict of interest similar in significance to those recently addressed by the Supreme Court in Leversen v. Superior Court (1983) 34 Cal.3d 530, 194 Cal.Rptr. 448, 668 P.2d 755, and People v. Mroczko (1983) 35 Cal.3d 86, 197 Cal.Rptr. 52, 672 P.2d 835.

Apart from these questions, however, the bar to admission of Williams' and Hendrix' testimony derives from more general principles, rooted in constitutional and common law, governing remedies for deprivation of an opportunity for full cross-examination.  “[W]hen, due to any reason for which he is not accountable, one criminally accused is denied his right of cross-examination, ‘ “he is entitled to have the direct testimony stricken from the record.” ’  (People v. Manchetti (1946) 29 Cal.2d 452, 461 [175 P.2d 533];  see also People v. Barthel (1965) 231 Cal.App.2d 827, 834 [42 Cal.Rptr. 290];  People v. Abner (1962) 209 Cal.App.2d 484, 489–490 [25 Cal.Rptr. 882];  Witkin, Cal.Evidence (2d ed. 1966) Introduction of Evidence at Trial, § 1199, pp. 1107–1108.)”  (Gallaher v. Superior Court (1980) 103 Cal.App.3d 666, 673, 162 Cal.Rptr. 389;  emphasis in original.)   The rule has been frequently applied, in both civil and criminal cases, where a witness' death or illness precludes or frustrates cross-examination.  (E.g., People v. Manchetti, supra, 29 Cal.2d at p. 461, 175 P.2d 533;  State v. Rado (1976) 172 Conn. 74, 372 A.2d 159, cert. den., 430 U.S. 918, 97 S.Ct. 1335, 51 L.Ed.2d 598;  Nehring v. Smith (1951) 243 Iowa 225, 49 N.W.2d 831;  Drescher v. Company (1951) 96 N.H. 508 [79 A.2d 16];  Commonwealth v. Davis (1980) 380 Mass. 1, 401 N.E.2d 811;  Best v. Tavenner (1950) 189 Or. 46, 218 P.2d 471;  Estate of Sweeney (1946) 248 Wis. 607, 22 N.W.2d 657;  see also 5 Wigmore, Evidence (Chadbourn rev. 1974) § 1390, pp. 133–137;  McCormick, Evidence (2d ed. 1972) § 19, pp. 44–46.)

I know of no authority permitting deviation from this rule on the ground a defendant has had an opportunity to impeach the witness' direct testimony through alternative means, such as introduction of prior inconsistent statements.  (See Nehring v. Smith, supra, 243 Iowa 225, 230, 231, 49 N.W.2d 831 [direct testimony properly stricken where witness answered 120 questions on cross-examination before onset of illness but cross-examination was not “substantially complete”].)  Indeed, even proponents of relaxation of this rule of exclusion in civil matters maintain it must be scrupulously observed where the challenged testimony is that of a prosecution witness in a criminal case.   (See McCormick, op. cit. supra, at p. 45.)

I conclude, therefore, that the preliminary hearing testimony was not admissible as former testimony under section 1291, subdivision (a)(2).   As that testimony supplied the foundation for the admission of Hendrix' notes as past recollection recorded under section 1237, that evidence too should have been excluded.   Because the defect in this evidence goes to the very heart of the confrontation clause, the error was unquestionably of federal constitutional magnitude.  (Ohio v. Roberts, supra, 448 U.S. at pp. 68–73, 100 S.Ct. at pp. 2540–2542.)   No “particularized guarantees of trustworthiness” associated with Williams' direct testimony mitigate this denial of appellant's right of confrontation.  (Id., at p. 66, 100 S.Ct. at p. 2539.)   Instead, her testimony, fraught as it was with confusion, incoherence, and leading questions (coupled with restraints on objection by defense counsel) is sorely lacking in trustworthiness and cannot suffice as a foundation for admission of the past recollection recorded or former testimony.

The argument of respondent (made at oral argument) that the Hendrix notes would have been admissible even if Williams had died immediately after direct examination without any cross-examination at all must be rejected.  (This argument seems necessary in light of the fact that Williams appeared virtually incapable of coherent response after the conclusion of direct examination.)   Section 1237, subdivision (a)(3), on its face, the comments of the Assembly Committee on the Judiciary, and People v. Gentry (1969) 270 Cal.App.2d 462, 470, 76 Cal.Rptr. 336, all contemplate cross-examination of the original declarant.

While it is true that the Supreme Court, in Ohio v. Roberts, ruled that “[r]eliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception” (448 U.S. at p. 66, 100 S.Ct. at p. 2539;  emphasis added), the court clearly did not mandate such a result.   In fact, the court engaged in a detailed analysis of the examination of the crucial witness before passing on the admissibility of her testimony.  (Id., at pp. 70–73, 100 S.Ct. at pp. 2541–2542.)   The court found that the original examination “clearly partook of cross-examination as a matter of form”;  was “replete with leading questions, the principal tool and hallmark of cross-examination”;  and “comported with the principal purpose of cross-examination:  to challenge ‘whether the declarant was sincerely telling what he believed to be the truth, whether the declarant accurately perceived and remembered the matter he related, and whether the declarant's intended meaning is adequately conveyed by the language he employed.’  [Citation.]”  (Id., at pp. 70–71, 100 S.Ct. at pp. 2541–2542;  emphasis in original.)   The Roberts court further found that defense counsel was not limited in any way in the “ ‘scope or nature of his cross-examination.’ ”  (Id., at p. 71, 100 S.Ct. at p. 2542, citing California v. Green, supra, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489.)   Such was clearly not the case here.   Williams' testimony, with all of its attendant problems, laid the foundation for yet another layer of hearsay which did not memorialize her exact words and which she herself did not authenticate or adopt.

It is to be noted additionally that while appellant has focused his challenge upon the admission at trial of Williams' former testimony and the contents of Hendrix' notes, it was also error for the superior court to deny his motion under Penal Code section 995 to set aside the information.

The remedy for a denial of the opportunity for cross-examination during the preliminary hearing is the same as that for the denial of such an opportunity during trial—the striking of the witness' direct testimony.   (Gallaher v. Superior Court, supra, 103 Cal.App.3d at pp. 671–674, 162 Cal.Rptr. 389.)   Without Williams' testimony and the past recollection recorded for which it provided foundation, there was insufficient evidence at the preliminary hearing to bind appellant over for trial.   Accordingly, the section 995 motion should have been granted.  (Id., at p. 674, 162 Cal.Rptr. 389;  Stevenson v. Superior Court, supra, 91 Cal.App.3d at pp. 929–931, 154 Cal.Rptr. 476.)

That federal as well as state law error occurred is of little consequence in this case.   Williams' former testimony was the only evidence of the alleged administration by appellant of amphetamine to Southall shortly before her death.   Under the test of either Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, or People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243, cert. den., 355 U.S. 846, 78 S.Ct. 70, 2 L.Ed.2d 55, the judgment should be reversed.

FOOTNOTES

1.   Unless otherwise indicated, all further statutory references are to the Evidence Code.

2.   The statements were admitted under section 1235 as inconsistent with her August 20 statements to Hendrix.   The People do not challenge their admissibility.

3.   These statements, which Bonnel incorporated into the police report, were admitted under section 1235 as inconsistent with some of what she told Hendrix on August 20 and under section 1236 as consistent with the rest of her interview with Hendrix.   No error is assigned to their admission.

4.   In admitting this evidence the trial court stated:  “The court finds that the provisions of 1237 were complied with and it is allowing the testimony to come in even though it was taken under the conditions as reflected in the record, that is, that Mrs. Williams was an elderly lady of approximately 70 years of age and had an amputation of the leg which was the reason she was in the hospital or associated with it.  [¶] And also, apparently she was suffering from the ravages of cancer.  [¶] And the record indicates in the preliminary hearing that in the course of the proceedings that the District Attorney made it clear that he was taking testimony in order to satisfy the requirements of 1237 so that all parties were on notice as to his intended possible use in conjunction therewith.   [¶] And that the parties had the opportunity, both the District Attorney and the defense to interrogate, to confront and to develop the testimony.”

5.   On appeal Brock does not challenge as an evidentiary matter the trial court's admission of Williams' preliminary hearing testimony under section 1291, the statutory hearsay exception for former testimony.

6.   Once the magistrate determined the existence of these preliminary facts and admitted the notes of the officer as past recollection recorded, the admission of those notes was final.   Usually the jury is not told of a judge's determination of such preliminary facts because the jury may not redetermine the question of admissibility of the notes in redetermining the existence or nonexistence of the preliminary facts.  (1 Jefferson Cal.Evidence Benchbook (2d ed. 1982) § 25.3, pp. 716–717;  see § 25.1, pp. 699–702;  § 25.2, p. 713.)

7.   See Footnote *, ante.

1.   Unless otherwise indicated, all further statutory references are to the Evidence Code.

2.   Since it was so brief the entire cross-examination which took place, after counsel introduced himself and was recognized by the witness, is set forth in the majority opinion.

POCHÉ, Associate Justice.

CALDECOTT, P.J., concurs.