THE PEOPLE, Plaintiff and Respondent, v. TINY H. ODOM, Defendant and Appellant.
Crim. No. 12803
In Bank
July 16, 1969
709
Thomas C. Lynch, Attorney General, Daniel J. Kremer and Stephen Cooper, Deputy Attorneys General, for Plaintiff and Respondent.
TOBRINER, J.-An information charged Tiny Odom with assault with intent to commit murder against James Lynn Maxwell. After a trial before a jury, the Kern County Superior Court convicted defendant of the lesser, but necessarily included, offense of assault with a deadly weapon. (
The scene of the alleged crime was “Renie‘s” bar in Bakersfield. On the evening of December 4, 1966, defendant was sitting with a woman named Carla, when James Maxwell sat down next to Carla and ordered drinks. A conversation between Carla and Maxwell soon involved defendant; defendant and Maxwell exchanged obscenities. According to the two “victims,” defendant jumped up, drew a knife, and made threatening gestures toward Maxwell, telling him he was going to “Cut his guts out.” At this point, Maxwell‘s friend Lester White approached defendant and told him to put the knife away. Defendant slashed at White, cutting him slightly. Meanwhile, Maxwell attempted to assist White by throwing bar stools at defendant, backing him up against the wall. Finally, Maxwell jumped on defendant. Maxwell testified at trial that he attempted to seize the hand of defendant which held the knife; that defendant transferred the knife to his free hand and stabbed Maxwell twice, once in the abdomen*
Defendant‘s version of the events at “Renie‘s” was quite different: he claimed he used the knife only in self-defense to protect himself against White and Maxwell. He testified at trial that, when he ran out of the bar with Carla, he was unaware that he had stabbed and seriously wounded Maxwell.
The bartender of “Renie‘s,” Murrill Stanfill, testified for defendant. He characterized Maxwell and White as the aggressors in the brawl; his testimony effectively corroborated and substantiated defendant‘s position that he used the knife in self-defense. On cross-examination, the prosecutor referred to prior statements which Stanfill had made to a deputy sheriff. These statements apparently contradicted, in substance, Stanfill‘s in-court testimony. After Stanfill was excused, the prosecutor put on a rebuttal witness, the deputy sheriff to whom Stanfill had made the statements. The deputy identified a tape recording of the statements, and the prosecutor successfully obtained admission of the tape, which was subsequently played before the jury.
The trial court gave no warning or limiting instruction which could have restricted the jury‘s reliance upon the prior statements to impeachment only. In People v. Johnson, supra, 68 Cal.2d 646, 651 & fn. 4, 658-661, we held that the introduction against a criminal defendant of prior inconsistent statements of a witness without an instruction from the court limiting the jury‘s use of the statements to impeachment violated that defendant‘s right to confront the witnesses against him guaranteed by the
Nevertheless, in the present case the trial court failed to limit the jury‘s use of the statements to impeachment. Without such a limiting instruction, the jury was not informed that it should not rely upon the statements as substantive evidence; thus, susceptible of use as substantive evidence, the admission of the statements against defendant violated the principles set forth in Johnson.
We cannot accept the Attorney General‘s argument that
In the present case, the jury received no instruction limiting such statements to impeachment purposes. In general instructions rendered at the end of the trial, the trial court told the jury that “in determining guilt or innocence of the defendant you are to be governed solely by the evidence introduced in this trial ....” “You are the exclusive judges of the facts and of the effect and value of the evidence, but you must determine the facts from the evidence received here in court.”2 These instructions, in effect, told the jury to consider all the evidence introduced at trial in reaching a decision as to defendant‘s guilt or innocence. In the absence of a specific instruction expressly limiting the jury‘s use of the extrajudicial statements to impeachment, “[a]n assumption that the jury considered this evidence only to measure credibility would be unrealistic.” (People v. Pierce (1969) 269 Cal.App.2d 193, 204 [75 Cal.Rptr. 257]; accord, People v. Vinson (1969) 268 Cal.App.2d 672, 676 & fn. 2 [74 Cal.Rptr. 340].)
The fact that the attorney for defendant, in his closing argument, told the jurors that the People had introduced the extrajudicial statements “not to prove their case but so as to impeach him” does not cure the trial court‘s error in failing to render a limiting instruction. Counsel characterized the prosecution‘s tactics by this remark, implying that the
The Attorney General finally points to a colloquy between the trial court and the prosecutor at the time the court admitted the tape into evidence. The court told the prosecutor: “May the record show, Mr. Allen, that in one sense it certainly is hearsay as to the defendant, it is merely for the purpose of impeaching a witness called by the defendant.” Such a recital of the legal ground for the admissibility of the prior statements was, of course, incorrect at the time, as
Initially, we note that although the court made this comment in the presence of the jury it addressed itself to the prosecutor; the court did not in so doing purport to instruct the jury. Furthermore, despite the fact that the court referred to the purpose of the statements as being merely to impeach, we cannot conclude that the jury understood that its use of the evidence of the statements was limited to impeachment. Indeed, impeaching evidence often constitutes substantive evidence; one witness‘s statements at trial may impeach those of an earlier witness, and the jury may consider the former‘s testimony both for impeachment and as substantive evidence of the truth of the matter asserted in the statements—regardless of the purpose of the attorney who elicited the impeaching remarks.
The trial court‘s comment to the prosecutor is not a competent basis for curing the Johnson error for still another reason. The trial court instructed the jury, “At times throughout the trial the court has been called upon to pass on the question whether or not certain offered evidence might properly be admitted. You are not to be concerned with the
In the absence of an instruction explicitly limiting the jury‘s use of the prior statements to impeachment, the jury had no reason not to consider the statements as substantive evidence for the truth of the matters asserted therein. By reason of
Because of the nature of this right of confrontation, we cannot accept the Attorney General‘s argument that since the purpose of counsel and the court in introducing and admitting the statements was “clearly” limited to impeachment,3 the defendant cannot claim a denial of his right to confrontation under Johnson. The denial of confrontation arises from the jury‘s use of the statements as substantive evidence; thus, the court and counsel‘s intended purpose in submitting the statements to the jury must be irrelevant unless the court expressly limits the jury‘s use of the statements to the purpose for which they were introduced, i.e., impeachment. In the present case, the trial court never expressed this limitation to the jury;4 and its failure to do so constituted error.
Since the testimony goes to the jury without the curative instruction that the testimony cannot be accepted for the truth of its content, the constitutional vice inheres in it; the damage is done, and the only question that remains is whether the damage is sufficiently prejudicial. Because the error is of federal constitutional dimensions, we apply the test of prejudice laid down in Chapman v. California, supra, 386 U.S. 18, 24 [17 L.Ed.2d 705, 710, 87 S.Ct. 824]. Under that test, we have concluded that the People have not proved that the error was “harmless beyond a reasonable doubt“; a reasonable possibility exists that the error might have contributed to the conviction. (Fahy v. Connecticut (1963) 375 U.S. 85, 86-87 [11 L.Ed.2d 171, 172-173, 84 S.Ct. 229].) The main position
The admission of these statements as substantive evidence was clearly prejudicial. Under Chapman it is not necessary to determine whether the jury in fact relied on the evidence erroneously before it, but only whether the jury could have relied upon such evidence to convict the defendant. Nevertheless, the jury in the present case indicated that it attached special significance to the Stanfill statements; while deliberating, the jury requested and obtained permission to replay the recording of the statements. Aside from the three participants in the brawl (defendant, White, and Maxwell), Stanfill was the only eyewitness who stood as a neutral observer of all the events surrounding the stabbing; his version of the relevant facts would necessarily carry great weight with the jury. In view of the close balance of the evidence as to the question of self-defense, we conclude that the introduction of Stanfill‘s statement that defendant was the aggressor must, in the absence of the proper limiting instruction, constitute clear prejudice under Chapman.
The judgment is reversed.
Traynor, C. J., Peters, J., Mosk, J., and Sullivan, J., concurred.
BURKE, J.- I dissent. Petitioner‘s felonious assault was shown by abundant eyewitness testimony wholly independent of the statement used to impeach the witness Stanfill. That petitioner was not acting in self-defense when he commenced his sudden knife attack upon the victim Maxwell was clearly shown by the testimony of the bystanders.
I find no reasonable doubt that the jury‘s consideration of the impeaching statement as substantive evidence was harmless under the application of the Chapman test. (Chapman v. California, 386 U.S. 18, 24 [17 L.Ed.2d 705, 710, 87 S.Ct. 824].)
McComb, J., concurred.