THE PEOPLE, Plaintiff and Respondent, v. WINFRED SADDLER, Defendant and Appellant.
Crim. No. 20657
Supreme Court of California
July 25, 1979
24 Cal. 3d 671
Quin Denvir and Paul Halvonik, State Public Defenders, under appointment by the Court of Appeal, Charles M. Sevilla, Chief Assistant State Public Defender, Harold E. Shabo and H. Elizabeth Harris, Deputy State Public Defenders, for Defendant and Appellant.
Evelle J. Younger and George Deukmejian, Attorneys General, Jack R. Winkler, Chief Assistant Attorney General, Daniel J. Kremer, Assistant Attorney General, Michael D. Wellington and Jesus Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
MANUEL, J.—Defendant Winfred Saddler appeals from a judgment entered on a jury verdict finding him guilty of robbery in the first degree (
Since the instruction at issue provides that adverse inferences can be drawn if a defendant fails to explain or deny evidence or facts against him which he can reasonably be expected to explain or deny, we set out the prosecution‘s case against him in detail: Constance Overfield, night desk clerk at Howard Johnson‘s Motor Lodge in Barstow, testified that approximately 1 a.m. on December 23, 1976, she noticed a light colored compact car come into the parking lot; immediately thereafter she opened the locked door of the motel to a young man who approached the desk, stated that his wife was a guest, and asked for her room number. He gave the name “Saddler.” When Mrs. Overfield indicated that she could find no guest by that name, the man suggested that his wife could be with somebody else or was registered under her maiden name. The man was at first unable to recall the maiden name, then stated it was “Brown.” Mrs. Overfield described the man as black and wearing a stocking (knit) cap, drab or tan jacket, and a sweater that was stretched at the neck.
After their conversation, the young man commenced to smoke a cigarette, and Mrs. Overfield turned away; when she next looked at the man, he was holding a knife and pointing it over the desk at her. He asked for money from the register and came around the desk to stand beside her. He again demanded the money from the register and then put his cigarette out on the floor in order to take the money she gave him. After forcing Mrs. Overfield to lie on the floor and threatening her, the assailant left, telling the woman not to scream or call the police or he would “get” her.
Mrs. Overfield called the police; Officers Jones and Sanders arrived promptly and she related the details of the incident to them. She identified defendant at the trial as her assailant.
Detective Sessions testified that shortly after the robbery he brought a book of 60 mug shots to Mrs. Overfield; she selected none as that of her assailant. Later that same morning she was shown two more photographs and did not select either of them. Defendant‘s picture was not among those sets of pictures. About two weeks later she identified defendant from a six-photograph lineup. Defendant was arrested the following day and, after Miranda warnings, told Sessions he had been drinking heavily during the Christmas holidays and was not sure of his activities on the night in question; thereafter, however, he unequivocally denied involvement in the robbery. Sessions also testified that he clocked the time it took to go from the motel to defendant‘s nearby residence, nine minutes with brisk walking and three to four minutes by car.
Defendant presented an alibi defense. He testified that on the night in question he was at a local park drinking with a friend until after midnight. They walked together to defendant‘s house, arriving about 12:30 a.m. Defendant went to the kitchen and got something to eat. In accord with a habit of reading in the bathroom, defendant then went to the bathroom where he remained for about 30 minutes. During that time Officer Sanders, whom defendant knew and whose voice he recognized, came to the house, asked for defendant, and spoke with him momentarily through the closed bathroom door.
Defendant also testified that he never owned or wore clothes matching the description given by Mrs. Overfield, that he owned a switchblade knife but did not think he was carrying it on December 22-23,2 and that he knew several persons who had small white compact cars, listing two persons. Defendant admitted to being “high” and “feeling good” on the evening in question, but denied that he told Detective Sessions that he
Defendant‘s mother and sister testified to substantially the same sequence of events after defendant‘s arrival at home, although the sister estimated that Officer Sanders arrived at 12:45 a.m.
Officer Sanders testified for the defense that he and Officer Jones arrived at the motel at 1:26 a.m. and, when Mrs. Overfield mentioned that her assailant had given the name “Saddler,” he immediately went to the home of defendant, whom he knew, to see if he was there. It took him four minutes to drive to the Saddler residence. In the immediate vicinity of the house was a white Buick compact car. Sanders touched the hood and radiator area to find if it had been recently driven. The car was cold to the touch. The officer entered the house and, as testified by the occupants, called for Saddler and conversed momentarily with a male in the back of the house who stated he was in the bathroom. The officer then left.
The jury was instructed as to credibility of witnesses in general (CALJIC Nos. 2.20 and 2.21) and, over defense counsel‘s objection, was instructed as to the testimony of defendant in particular as follows: “If you find that he failed to explain or deny any evidence or facts against him 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 be reasonably drawn therefrom those unfavorable to the defendant are the more probable.”4
Comment on a criminal defendant‘s failure to testify was held violative of the Fifth Amendment privilege against self-incrimination in Griffin v. California (1965) 380 U.S. 609. California constitutional (former art. I, § 13) and statutory (former
Defendant argues that the changes in these provisions indicate legislative disapproval of comment on a defendant‘s testimony when he takes the stand on his behalf as well as when he does not and invalidates CALJIC No. 2.62. We disagree. If the Legislature so intended, it would have modified other statutes which permit comment on a testifying defendant‘s failure to explain or deny. The Legislature did not modify
Although the permissible scope of cross-examination in California is restricted to the scope of the direct examination (
In the instant case, defendant presented an alibi defense, undertaking to explain fully his activities during the period of the crime. He thereby waived his privilege against self-incrimination to the extent of the scope of cross-examination, and he makes no claim that there was evidence beyond the scope of relevant cross-examination that he failed to deny or explain which would have rendered the challenged instruction violative of Griffin and the Fifth Amendment.
It is claimed that the instruction denies to a defendant the presumption of innocence and places in its stead an “inference of guilt.” Since principles of due process protect the accused against conviction except upon proof beyond a reasonable doubt (In re Winship (1970) 397 U.S. 358), an instruction to the
Speaking to the comment rule previously contained in article I, section 13, this court stated in People v. Modesto (1965) 62 Cal.2d 436, 449-450: “The comment rule does not relieve the prosecution of its burden of proving every essential element of the crime and the defendant‘s guilt beyond a reasonable doubt. No presumption of guilt or of the truth of any fact arises. No inference can be drawn if defendant does not have the knowledge necessary to explain or deny the evidence against him. (People v. Adamson, 27 Cal.2d 478, 489-490; Adamson v. California, 332 U.S. 46, 55-56.)” Despite subsequent limitations placed upon the comment rule by Griffin in 1965 and by this court in 1967 (People v. Modesto (1967) 66 Cal.2d 695, 709-712), the quoted language of the first Modesto decision has continued validity insofar as due process is concerned.
Defendant also suggests that principles of fairness require that he and the jury be given notice of the precise evidentiary facts upon which the inference of guilt shall be drawn and that he was denied due process in that he and the jury were not so informed. Under the instruction, however, inferences are permissible only if the jury finds that defendant failed to explain or deny facts or evidence that he could be reasonably expected to explain or deny. Implementation of defendant‘s suggestion would constitute an obvious invasion of the jury‘s province as the finder of fact and would impermissibly restrict defendant‘s right to trial by jury.
Defendant also argues that the challenged instruction should never be given because it impermissibly singles out a defendant‘s testimony and unduly focuses upon it. The same argument was rejected in People v. Mayberry, supra, 15 Cal.3d 143, 161. We noted there that the instruction
Having determined that CALJIC No. 2.62 suffers no constitutional or other infirmity and may be given in an appropriate case, we reach the question whether it was proper to give it in this case. The trial court has the duty to instruct on general principles of law relevant to the issues raised by the evidence (People v. Sedeno (1974) 10 Cal.3d 703; People v. Hood (1969) 1 Cal.3d 444; People v. Graham (1969) 71 Cal.2d 303, 318) and has the correlative duty “to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.” (People v. Satchell (1971) 6 Cal.3d 28, 33, fn. 10.) “It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference (People v. Carmen (1951) 36 Cal.2d 768, 773).” (People v. Hannon (1977) 19 Cal.3d 588, 597.)
Giving of the instruction was upheld in People v. Ing, supra, 65 Cal.2d 603, where the defendant took the stand and denied committing three charged rapes but failed to mention or refer to uncharged offenses which the court had determined were relevant to show common scheme or plan. In People v. Perez, supra, 65 Cal.2d 615, unexplained offenses (two charged robberies and an uncharged robbery) were held within the scope of proper cross-examination and the instruction appropriate when the defendant testified and presented an alibi as to only two of the four charged robberies. In People v. Thornton, supra, 11 Cal.3d 738, the instruction was again held to be properly given when the defendant testified and denied committing one charge of rape but did not testify concerning the two uncharged sexual assaults which had been admitted as relevant to the issue of identity.
Our duty then is to ascertain if defendant Saddler failed to explain or deny any fact of evidence that was within the scope of relevant cross-examination.8 The issues before the jury depended to a large extent on the relative weight and credence the jury would give to the conflicting testimony of the principal witnesses, Mrs. Overfield and defendant Saddler. Mrs. Overfield testified in detail to the conduct and activity of her assailant in the period before and during the robbery; Saddler by his testimony attempted to account for his whereabouts in the critical time established by the People‘s evidence. Thus, the propriety of the instruction is not controlled or limited, as in Tealer, by the scope of permissible cross-examination.
There appear no facts or evidence in the prosecution‘s case within Saddler‘s knowledge which he did not explain or deny. There is no indication that he failed to disclose any facts within his knowledge that would have shed further light on the robbery. There were contradictions between Saddler‘s testimony and that of the prosecution witnesses, but a contradiction is not a failure to explain or deny. Thus, Saddler‘s testimony that he sometimes smoked Kool cigarettes if offered to him but never “requested” them and Officer Session‘s testimony that on occasion Saddler requested a Kool cigarette from him establishes a clear conflict in
The People‘s contention that the instruction was proper because Saddler never denied on the stand that he committed the robbery appears a hypertechnical view of the evidence. The defendant testified to an alibi, to being elsewhere; he gave a full testimonial account of his whereabouts in the critical time and, thus, in effect denied the charged offense. (See People v. Perez, supra, 65 Cal.2d at p. 621.)
Since there were no facts or evidence in the People‘s case which defendant failed to explain that were in his particular knowledge to explain, we conclude that there was no support in the record for an instruction on drawing of adverse inferences from a failure to explain or deny.
There remains the question whether the instructional error was prejudicial and requires reversal. (People v. Watson (1956) 46 Cal.2d 818, 836.) There was clear conflict between Mrs. Overfield‘s identification of defendant on the one hand and defendant‘s alibi on the other. There was little corroborating evidence other than that defendant sometimes smoked the brand of a cigarette which Mrs. Overfield said the robber left at the scene. Mrs. Overfield‘s identification of defendant, however, was positive. The circumstances of the robbery gave her ample time to observe and study her assailant, and she observed him before she became a victim as well as afterwards. She testified that the motel desk
In a second assignment of error, defendant contends that he was denied due process and a fair trial in that the state did not preserve evidence crucial to the defense, citing People v. Hitch (1974) 12 Cal.3d 641. He refers to the loss or destruction of the Kool cigarette which was turned over to the police by Mrs. Overfield. We need not reach the applicability of Hitch to the instant circumstances for defendant did not raise the issue in the trial court. When the officer testified concerning the cigarette, defense counsel merely interposed a best evidence rule objection.
The judgment is affirmed.
Tobriner, J., Clark, J., Richardson, J., and Newman, J., concurred.
BIRD, C. J.—I agree with the majority that instructing the jury in the language of the fourth sentence of CALJIC No. 2.62 (1979 rev.) is permitted by statute (
First, CALJIC No. 2.62 focuses jury attention solely upon the negative, potentially inculpatory aspects of an accused‘s testimony; i.e., it only informs the jurors they may draw inferences “unfavorable to the defendant” from his failure to explain or deny any evidence against him. The instruction omits to point out the reverse side of that coin, i.e., that inferences favorable to the accused may reasonably be drawn if there are no such gaps in his testimony.
Moreover, the negative inferences from an accused‘s failure to explain or deny can be reasonable only if the gaps in his testimony are intentional or knowing. Where a testifying accused has “failed to explain or deny [some] evidence or facts against him ... which he can reasonably be expected to deny or explain” (CALJIC No. 2.62) but that failure is unintentional or could have been remedied if the deficiency had been brought to his attention, then the drawing of “unfavorable” inferences therefrom would be illogical and unreasonable. CALJIC No. 2.62 omits to so inform the jury.1
In view of the shortcomings in CALJIC No. 2.62, trial judges should exercise extreme restraint in giving the instruction in its present form. Moreover, it would be eminently prudent for the distinguished members of the CALJIC Committee to consider either the elimination of CALJIC No. 2.62 altogether or its replacement with a more comprehensive, informative, and balanced instruction.2 (Cf. People v. Phillips (1966) 64 Cal.2d 574, 587-588.)
MOSK, J.—I dissent.
I agree that CALJIC No. 2.62 was improperly given for lack of evidentiary support, but I must depart from the holding of the majority that the error was not prejudicial.
I
The reasonable probability test of People v. Watson (1956) 46 Cal.2d 818, 836, governs, of course, in determining whether there has been a miscarriage of justice requiring reversal of the judgment under article VI, section 13, of the California Constitution. In applying that test, we have often emphasized that when a case is “closely balanced” it is more likely to be “reasonably probable that a verdict more favorable to the [appealing party] might have resulted if the error had not occurred.” (People v. Hannon (1977) 19 Cal.3d 588, 603; accord, People v. Wagner (1975) 13 Cal.3d 612, 621, and cases there cited.)
In Hannon the trial court, over the defendant‘s objection, instructed the jury that it could consider certain evidence as a circumstance tending to show a consciousness of guilt. (19 Cal.3d at pp. 596-597.) On appeal from the conviction, we held there was no evidence in the record to support the disputed instruction and hence the trial court erred in giving it. (Id., at p. 600.) In assessing the effect of that error, we stressed that the People‘s case rested in the final analysis on the strength of the identification testimony of one witness, which the defendant had sought to weaken through cross-examination and presentation of an alibi. (Id., at p. 602.) Because “an impermissible impact may have resulted in the minds of the jurors” from the erroneous instruction, we held the closeness of the case to be determinative of prejudice. (Id., at p. 603; see also People v. Anderson (1965) 63 Cal.2d 351, 360; People v. Underwood (1964) 61 Cal.2d 113, 125-126.)
As shown by Hannon, we must be especially vigilant in appraising prejudice in close criminal cases, where an erroneous instruction might easily tip the delicate balance of evidence against the defendant.
In its discussion of the facts the majority acknowledge the weaknesses of the People‘s evidence, yet decline to hold the error prejudicial. (Ante, pp. 683-684.) My examination of the record persuades me otherwise: if ever there were a close case, this is it.
Remarkably absent from the majority‘s analysis of the evidence is any consideration of the undeniable fact that the robber gave the names “Saddler” and “Brown” to Mrs. Overfield. Yet it is highly unlikely, to say the least, that a person contemplating commission of a crime would volunteer his own name to an eyewitness-victim; and it is equally incredible to conceive that Saddler, after some deliberation, would then offer “Brown” as the alleged maiden name of his nonexistent wife when that name was linked to him through a close relative residing under the same roof as he. This conspicuous fact, I submit, goes far to weaken the credibility of Mrs. Overfield‘s identification of Saddler as the robber.
As in Hannon, the People‘s case ultimately hinged on the strength of the identification testimony of its key witness, Mrs. Overfield. Contrary to the majority‘s characterization of her testimony as “positive,” the record is replete with instances of her acknowledging lack of clear memory of the events in question. She testified on numerous occasions that she simply could not remember because “it‘s been a long time“—seven and one-half months elapsed between the date of the robbery and her appearance at trial—and she frankly admitted she had “been trying to forget this since December.”
The majority next assert the circumstances of the robbery afforded Mrs. Overfield ample time to observe and study the person who robbed her; yet she testified she did not know how long she talked to her assailant, she had “no idea” how often she looked directly at him, and, not being in the habit of staring at people, she merely “glanced” at him “occasionally.” Moreover, Mrs. Overfield admitted she noticed “nothing unusual” about the robber‘s facial features, and supplied Officer Jones with only a general description of his height, weight, and age. Indeed, when asked the question on cross-examination, she conceded she was not a good judge of age or height. In an in-depth interview conducted by Detective Sessions 13 days after the incident, Mrs. Overfield was asked whether her assailant “had any outstanding physical features which would positively or possibly bring a more closer identification to the individual.” She could recall none and allowed that “she did not particularly pay attention to his features or his clothing.”
Finally, the identification testimony was without any corroboration whatever, for no reliance could reasonably be placed on so ambiguous a circumstance as the fact that Saddler occasionally smoked the popular brand of cigarette found at the scene. On the other hand, Mrs. Overfield‘s testimony was directly controverted by Saddler‘s alibi defense, presented by several witnesses. In Hannon the People‘s case likewise rested solely on the identification testimony of one witness, that testimony was weakened on cross-examination, and the defendant presented an alibi. Hannon is therefore directly in point, and I deem it to be persuasive on the issue of prejudice.
III
The prejudicial effect of giving CALJIC No. 2.62 here is dramatically emphasized by the procedural history of the case. Saddler was previously tried on the same charge; after deliberating all of one day and part of the next the jury reported itself hopelessly deadlocked at seven votes to five, and a mistrial was declared. The event is significant because CALJIC No. 2.62 was not given at the first trial, while the remainder of the instructions were essentially identical. The majority acknowledge this difference, but fail to justify their cavalier dismissal of its relevance. (ante, p. 684.) As will appear, the evidence at the second trial was substantially the same as—if not less than—the evidence at the first. Accordingly, the most likely explanation for the verdict of guilt was the giving of CALJIC No. 2.62.
My examination of the record reveals that the People and Saddler presented essentially the same witnesses at both trials. There were, moreover, two witnesses for the People at the first trial who did not testify at the second. Another distinction between the trials was that 22 exhibits for the People were admitted into evidence in the first trial, but only 9 in the second. Notably, a pocket knife belonging to Saddler was admitted in the first trial but excluded in the second: in the absence of a showing that the knife offered closely resembled the knife used in the robbery, the
In view of these differences in witnesses and exhibits between the two trials, a reasonable inference may be drawn that the quantum of evidence at the second trial was no greater, and apparently less, than that at the first trial. Moreover, the three and one-half months intervening between the trials render it probable that the witnesses’ recollection would have been less reliable at the second trial. For this reason their testimony would tend to have been less credible, as evidenced by Mrs. Overfield‘s repeated admissions of a failing memory by the time of her second appearance.
The foregoing unusual procedural history therefore dictates a finding of prejudicial error for reasons wholly apart from the fact this was a close case: it is reasonably probable from the record that the erroneous instruction was the decisive factor in the second verdict. Thus there is present not one, but two, indicia of the “reasonable probability” which requires reversal under the Watson test.
IV
Finally, an error in the majority opinion is its assertion that CALJIC No. 17.31 is relevant in determining whether prejudice resulted from giving an instruction unsupported by any evidence. (Ante, pp. 683-684.) The majority correctly states that CALJIC No. 17.31 would not itself save an otherwise improper instruction; but I disagree that it may be given any weight whatever in this determination.
The majority quote the words of CALJIC No. 17.31 but fail to grasp their true significance. In almost every trial the contending parties introduce different versions of the facts; indeed, a single party may also do so in support of alternative theories of the complaint or the defense. The jury will ultimately believe one of those versions and reject the others; yet because the court cannot ascertain what the jury may find, it must instruct on the legal consequences of every factual determination the record would support—i.e., on “the law applicable to any state of facts that may be logically deducible from any of the evidence, regardless of the weight or credibility of that evidence, which are within the sole province of the jury....” (People v. Spraic (1927) 87 Cal.App. 724, 732-733; accord, People v. Palmer (1946) 76 Cal.App.2d 679, 686.) The sole and simple purpose of CALJIC No. 17.31 is
This purpose is plainly written, moreover, on the face of the instruction itself. It provides in relevant part that “You have been instructed as to all the rules of law that may be necessary for you to reach a verdict. Whether some of the instructions will apply will depend upon your determination of the facts. You will disregard any instruction which applies to a state of facts which you determine does not exist.” (Italics added.) The emphasized language clearly focuses the jury‘s attention on purported facts that it determines from the evidence are not true.
None of this, however, is pertinent to the issue before us. As the majority acknowledge, it is for the court and not the jury to determine whether there is any evidence to support a requested instruction. Here the error occurred when the court gave an instruction devoid of such support—i.e., an instruction on a state of facts that the jury could not have found to be true. In assessing the probability of prejudice from that error, it is obviously irrelevant that the jury was also told to disregard any instruction on a state of facts it could have found true but did not. CALJIC No. 2.62 is simply not such an instruction.
Not only does the majority‘s reliance on CALJIC No. 17.31 contribute to their erroneous affirmance of this tainted conviction, it will return to haunt us in many cases yet to come. The instruction, as noted, is given as a matter of routine in virtually every jury trial. Under the majority‘s view, however, it will inevitably be invoked by the People to minimize the prejudicial effect of any instruction—not simply No. 2.62—given without factual support. In such a context the Watson test is in danger of becoming a casualty.
I would reverse the judgment.