THE PEOPLE, Plaintiff and Respondent, v. ROBERT SONNY SAM, Defendant and Appellant.
Crim. No. 13094
In Bank
May 28, 1969.
71 Cal. 2d 194
Thomas G. Lynch, Attorney General, William E. James, Assistant Attorney General, A. Barry Cappello and Lawrence Keethe, Deputy Attorneys General, for Plaintiff and Respondent.
On the evening of November 21, 1966, defendant was visiting his friend Vincent Michel, who lived in the same apartment building as defendant. He, Michel, the wife of Michel, and Jerry Martin, a friend, were talking and drinking together when Salvador Dominguez, a stranger to both Michel and defendant, walked in, somewhat disheveled. Dominguez asked for a drink and was given one, but soon he “started to get mean.” He boasted that he was a professional karate expert and began leaping around the room in a simulated karate demonstration. When he insulted Michel‘s wife he was asked to leave.
Dominguez departed, but about 10 minutes later he returned and stood in the doorway calling defendant foul names and challenging him to fight. Finally defendant, who was apparently intoxicated by this time, lost his temper and chased Dominguez into the hallway. Dominguez ran into another apartment, with defendant in pursuit and Michel and Martin following. When defendant entered the apartment, Dominguez turned and assumed a karate stance with his hands up as if to strike, and leaped at defendant who threw Dominguez down and stomped his foot into the latter‘s stomach. Dominguez rolled over, cursing, and seemed to have the wind knocked out of him. Michel and Martin took defendant back to Michel‘s apartment, leaving Dominguez, apparently conscious, in the care of two men who occupied the apartment in which the altercation occurred.
The next day defendant went to check the apartment where Dominguez had been left. He found Dominguez lying on a bed, and blood over the bed and floor. Defendant immediately phoned for an ambulance, and Dominguez was taken to a hospital, where emergency surgery was performed. It was thought to be successful but Dominguez died two weeks later, apparently of injuries caused by a blunt blow or blows to the abdomen. At the trial there was medical testimony that such injuries would be “most unusual” from only one blow and that Dominguez had been suffering from a diseased liver,
It was not until Dominguez died two weeks after the altercation that the police began to investigate. On December 7, 1966, Police Sergeant Melendres telephoned Mr. Riley, the manager of the apartment house, and was told there had been a fight involving Dominguez, defendant, and Michel. Melendres asked Riley to call defendant or Michel to the phone. Defendant was called, and he told Melendres he had “witnessed” a fight with Dominguez. Melendres asked him to come down to the police station to tell his story. At this time, according to his testimony, the police officer did not suspect defendant of any crime.
Defendant visited the police station, where he related a sketchy version of the incident to Melendres, without indicating that he had struck Dominguez. Defendant was not advised of his constitutional rights prior to this statement. The next day, suspicion now having focused on defendant through Melendres’ subsequent conversation with Michel, defendant was again questioned at the police station. This time he was properly advised of his rights, but he volunteered a statement relating the details of the incident essentially as set out above. Defendant said he did not remember kicking Dominguez but must have done so if Michel said he did because at the time of the fight Michel was less intoxicated than he was.
At the trial, over defendant‘s vigorous objections, the prosecution introduced evidence of two prior acts of defendant purportedly to show his modus operandi, or common plan or scheme. Mrs. June Mary Carmona testified that in October of 1966, while she was living with defendant, she and defendant had a drunken quarrel and defendant kicked her in the ribs. She was hospitalized, and defendant pleaded guilty to assault and battery and disturbing the peace. John Lee Tubby, a long-time friend of the defendant, was questioned about an alleged fight in January of 1965, in which defendant had kicked him. Tubby testified he did not remember the incident, because he was too drunk at the time it supposedly occurred. He also did not remember signing a police report about the fight, even after being shown the report. Officer Meraz, who had investigated the Tubby incident, then was allowed to testify over objection that he had interviewed Tubby in the back of an ambulance, that Tubby had been drinking but did not appear to him to be drunk, and that Tubby signed a police report. Meraz related the details of the report, which indicated that defendant and several others had
Defendant testified in his own behalf. He denied kicking Mrs. Carmona or Tubby, and he asserted that he kicked Dominguez in self-defense when Dominguez seemed about to hit him, defendant being afraid he might be hurt by a karate blow. Louisa Vallejo, Dominguez’ sister, testified that her brother had telephoned her on the Saturday evening prior to the fight, complaining he had been beaten up by “some colored boys” and that his chest hurt and he could not breathe. She said Dominguez sounded as if he were drunk, rather than hurt. Mr. Riley, the manager, testified that defendant did not have a reputation as a vicious person.
Defendant contends the trial court erred in admitting the statements made to Sergeant Melendres and the evidence of the two prior incidents, and in refusing to give certain instructions as to self-defense and causation. We discuss the issues which require reversal, as well as those which will likely arise on retrial.
I
We begin by examining the admissibility of defendant‘s statements to Sergeant Melendres. As indicated, these were made on three occasions: over the telephone on December 7, at the police station the same day, and at the station on December 8. The telephone conversation is not in issue. Prior to the third conversation, defendant was properly advised of his constitutional rights to remain silent and to have counsel, but he chose to tell his story. The statements which followed were clearly admissible.
As to the initial conversation at the police station, during which defendant was given no warnings, the record is incomplete. The prosecution had the burden of proving the statements admissible. (People v. Davis (1967) 66 Cal.2d 175, 180). It is the position of the People that defendant was neither under arrest nor “in custody” at the time of the first station conversation, which was merely a phase of a routine investigation, and therefore no warnings were required under Miranda v. Arizona (1966) 384 U.S. 436. The test of “custody” to be applied in such a situation is whether defendant was “physically deprived of his freedom of action in any significant way or [was] led to believe, as a reasonable person, that he [was] so deprived.” (People v. Arnold (1967) 66 Cal.2d 438, 448.) In Arnold the majority of this court found the question not fully answered by the record and ordered it to be decided on retrial by further evidence of the precise language used in summoning the defendant, the physical surroundings of the interview, and whatever other evidence might bear on the defendant‘s reasonable belief as to her freedom of action. (Id. at p. 449.) The record here is similarly in need of further development on retrial. Fortunately, there is precedent for the trial court‘s guidance.
In People v. White (1968) 69 Cal.2d 751, 761, we stated that there were no “objective indicia of restraint or compulsion” where an officer “‘told [the defendant] that we had talked to several people that were down there, we were trying to determine what had happened the night before, we were taking statements from everybody concerned, and would he give us a statement. He stated that he would.‘” This is essentially what the record shows in the instant case, although the language used is, of course, not identical. Defendant was neither a suspect nor was he apparently made to believe he was a suspect at initial contact. Certainly taking statements from witnesses who were at the scene, in and of itself, is routine police investigatory procedure and not “in-custody interrogation.”
However, in White, the officer later learned of evidence focusing suspicion on the defendant, and thereafter “had no intention of permitting defendant to leave” without an explanation or a confession. (Id.) This was a sufficient showing of “in-custody interrogation” to require Miranda warnings. In the instant case the testimony indicates that defendant, who had informed the officer he had only “witnessed” the incident, was not in fact a suspect during the first two conversations, and, indeed, he came to the station voluntarily and was at all times free to leave. It thus appears that the only relevant evidence yet to be adduced concerns the atmosphere and physical surroundings and the statements of Officer Melendres during the “interrogation.” If these likewise indicate a lack of restraint or compulsion, the prosecution will have successfully carried its burden of the admissibility of defendant‘s statements.
Defendant next contends that the court erred in admitting the testimony of Mrs. Carmona and of Tubby and Officer Meraz relating to prior criminal acts, and that the latter testimony was also improper hearsay evidence. We first discuss whether either incident was admissible in any form.
As we stated in People v. Kelley (1967) 66 Cal.2d 232, 238-239, and later reiterated in People v. Haston (1968) 69 Cal.2d 233, 244-245: “The general rule is that evidence of other crimes is inadmissible when it is offered solely to prove criminal disposition or propensity on the part of the accused to commit the crime charged, because the probative value of such evidence is outweighed by its prejudicial effect. [Citations.] The purpose of the rule is to avoid placing the accused in a position of having to defend against crimes for which he has not been charged and to guard against the probability that evidence of other criminal acts having little bearing on the question whether defendant actually committed the crime charged would assume undue proportions and unnecessarily prejudice defendant in the minds of the jury, as well as [to] promote judicial efficiency by restricting proof of extraneous crimes. [Citations.]
“However, under certain limited circumstances, when the evidence is sufficiently relevant, it may be admitted even though it embraces evidence of the commission of another crime. In People v. Peete, supra, 28 Cal.2d 306, this court pointed out that ‘except when it shows merely criminal disposition [citations], evidence that is relevant is not excluded because it reveals the commission of an offense other than that charged,’ and noted that the general test of admissibility of evidence in a criminal case is whether it tends logically, naturally, and by reasonable inference, to establish any fact material for the People or to overcome any material matter sought to be proved by the defense. (28 Cal.2d at pp. 314-315.) It has frequently been recognized, however, that because of the sound reasons behind the general rule of exclusion, the relevancy of evidence of other crimes, and therefore its admissibility, must be examined with care. (People v. Peete, supra, 28 Cal.2d 306, 316.) The evidence should be received with ‘extreme caution,’ and if its connection with the crime charged is not clearly perceived, the doubt should be resolved in favor of the accused. . . .”
In the instant case the evidence as to prior antisocial acts was offered and admitted ostensibly to prove ”modus operandi, common scheme and plan and design.”1 The court maintained that such common scheme was shown by “the universal tendency here that when there is a confrontation between the defendant and someone else with whom he disagrees that he kicks the person.” When defense counsel objected to this definition of “common scheme,” especially since defendant did not deny that he in fact kicked Dominguez once, the court indicated the evidence might also go to “identity,” because there was some question as to whether the victim had been kicked once or several times, and medical evidence suggested that one kick might have been insufficient to cause death. On appeal the People also attempt to justify the evidence as showing defendant‘s criminal intent and negating his claim of self-defense. We consider these grounds while keeping in mind the presumption for exclusion where there is substantial doubt as to relevance.
Modus operandi is generally a means of proving the identity of the perpetrator of the crime charged, by demonstrating that the defendant had committed in the past other crimes sharing with the present offense features sufficiently unique to make it likely that the same person committed the several crimes. (See People v. Haston (1968) supra, 69 Cal.2d 233, 246-249; People v. Cavanaugh (1968) 69 Cal.2d 262, 273.) That likelihood must then outweigh the prejudicial effect of the evidence. (People v. Haston, supra, at p. 246; McCormick on Evidence (1954) pp. 332-333.) However, there is no question in this case as to the identity of the person who fought with and kicked the deceased, at least once, and there is consequently no necessity to establish defendant‘s somewhat distinctive
On the related issue of whether several kicks were administered to Dominguez, evidence of prior fights in which defendant had kicked his adversary several times might have tended to show similar conduct by defendant on the occasion charged. However, so far as the record discloses, neither of the two prior incidents involved multiple kicks. Mrs. Carmona specifically testified that defendant kicked her “one time.” And according to Officer Meraz, Tubby told him that several persons, including defendant, beat and kicked him, but the officer could not recall any statement that defendant kicked Tubby more than once. The prior incidents thus had no relevance to the issue of multiple kicks.
As indicated, the trial court defined “common scheme or design” as a tendency to act in a certain way under particular circumstances. This is in accord with the customary treatment of the term as identical with modus operandi, which we have already discussed. Insofar as “common scheme or design” perhaps more accurately implies “a larger continuing plan, scheme, or conspiracy, of which the present crime on trial is a part” (McCormick on Evidence (1954) p. 328), no connecting link between the prior and present acts was alleged or could reasonably be inferred. The acts were independent of one another and apparently spontaneous in each instance.
Only one of the bases urged for admissibility of the prior acts has any semblance of validity, and this was not articulated at trial but asserted belatedly on appeal by the Attorney General: to show criminal intent and negate defendant‘s claim of self-defense. But given the nature of the prior acts, even this seems a weak justification for admission.
Defendant alleged he kicked Dominguez in self-defense because of his fear the latter, a stranger to him, might be as proficient in karate as he had boasted. The prior acts established merely that defendant had (1) kicked his mistress during a drunken quarrel a month before the fight with Dominguez, and (2) kicked another man during a brawl more than two years earlier. As to probative value on the issue of self-defense, the factor of kicking was irrelevant as there was no assertion that defendant fought with his hands in self-defense but with his feet when he became an aggressor. In effect, two drunken fights over the past two years, in which defendant may or may not have acted in self-defense, were introduced to
Even if we assume a relevance which we fail to perceive, the evidence would properly have been excludible as unduly prejudicial under the discretion allowed by
We recognize that because the ground of criminal intent and negation of self-defense was not advanced at trial, the testimony and argument did not adequately cover this issue and the court had no opportunity to assess its merits. On retrial the prosecution will have an opportunity to establish,
III
A further source of error pervades the testimony of Officer Meraz regarding the prior inconsistent statements of the witness Tubby. We find this testimony to be inadmissible both for impeachment purposes and as substantive evidence.
There is no longer any doubt in California that the admission against a defendant in a criminal case of prior inconsistent statements as substantive evidence of the truth of the matters stated therein is a violation of the confrontation clause of the United States Constitution. (People v. Johnson (1968) 68 Cal.2d 646, cert. den. (1969) 393 U.S. 1051.) This much is conceded, as it must be, by the People; but it is then asserted that the error was either waived by defendant or was nonprejudicial “beyond a reasonable doubt.” (Chapman v. California (1967) 386 U.S. 18.)
There was no waiver. Although at the time of trial the
We emphasized above the substantial prejudice inherent in the admission of evidence of prior crimes in general, and of the Tubby incident in particular. We are convinced that the prosecution has failed to sustain its burden of showing beyond a reasonable doubt that defendant was not prejudiced by the introduction, as substantive evidence, of Tubby‘s statement to Officer Meraz. (Chapman v. California (1967) supra, 386 U.S. 18.)
IV
Even had Tubby‘s “prior inconsistent statement” been limited to impeachment purposes, however, it is contended that there was in fact nothing in the witness’ trial testimony to impeach. This requires a brief analysis of the very nature of impeachment and of prior inconsistent statements.
Impeachment is the process of challenging or impugning the credibility of a witness. One commonly used method of impeachment is the adducing of evidence of a prior statement by the witness inconsistent with his testimony on the stand, for which purpose the statement is not considered to be hearsay. (3 Wigmore on Evidence (3d ed. 1940) §§ 1017-1018;
V
As a final point defendant contends the trial court erred in refusing to give certain instructions as to causation and self-defense. It was defendant‘s theory that the death of Dominguez was or could have been caused either by a spontaneous hemorrhage due to a diseased liver or by the beating Dominguez took from some boys a few days before the fight with defendant. There was some evidence to support either theory. Although we might agree with defendant that the instruction given on proximate cause7 did not sufficiently
The instructions on self-defense present a different problem. Defendant‘s theory in this respect was that he kicked Dominguez after the latter turned and leaped at him, putting him in fear of bodily harm. The merits of this defense, including the question of whether defendant was, at the time of the kicking, an aggressor with no right of self-defense, are not before us. A defendant is entitled to an instruction on any theory, no matter how remote or incredible, which is supported by “any evidence deserving of any consideration whatsoever” (People v. Carmen (1951) 36 Cal.2d 768, 773), and here the trial court did instruct on self-defense, apparently considering the evidence sufficient to warrant such an instruction. It also instructed on involuntary manslaughter, which became the verdict of the jury. However, the self-defense instruction as given covered only the use of deadly force in defense against a reasonable fear of “death or great bodily injury.”8 Defendant maintains that the evi-
The judgment is reversed.
Traynor, C. J., Peters, J., Tobriner, J., Burke, J., and Sullivan, J., concurred.
MCCOMB, J.—I dissent. I would affirm the judgment for the reasons expressed by Mr. Justice Fourt in the opinion prepared by him for the Court of Appeal in People v. Sam (Cal.App.) 73 Cal.Rptr. 473.