THE PEOPLE, Plaintiff and Respondent, v. ROBERT REMINGTON STANLEY, Defendant and Appellant.
Crim. No. 11327
In Bank
Nov. 29, 1967.
812
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and A. Barry Cappello, Deputy Attorney General, for Plaintiff and Respondent.
PETERS, J.—Defendant was convicted, after a trial without a jury, of two charges of violating
Steven was the sole witness for the prosecution. He testified that on the day in question, which was Good Friday, he and Thomas met defendant, who was a neighbor, at 8 p.m. outside a hobby shоp; that after stopping to buy beer they went in defendant‘s truck to the mountains where they parked and drank beer; that they engaged in acts of oral copulation, and that defendant returned the boys to Steven‘s home where the boys spent the night. Steven also testified, over objection, that defendant on several other оccasions had engaged in other sexual misconduct with him and others.
There are many discrepancies and contradictions in Steven‘s various stories. These discrepancies are between the story he told to the police, his testimony at the preliminary, and his testimony on direct and cross-examination. Each of thesе discrepancies is not too important when considered alone, but when considered together they are substantial. They relate to Steven‘s and Thomas’ actions before leaving for the mountains, as to how the claimed acts were performed and what happened then, and as to the location where they are claimed to have occurred. It is of some significance that in asserting each differing version of the facts Steven described the claimed acts in some detail.
He directly contradicted himself in describing where he and Thomas went, and what occurred, after the group returned from the mountains. First, he testified that he and Thоmas returned to Steven‘s home and spent the night there. He described in detail conversations with his older sister and the
At the conclusion of Steven‘s testimony the prosecution rested, without attempting to corroborate his story in any way, and defendant moved to dismiss the counts charging violations with Thomas. The court denied the motion to dismiss. The judge stated that he would excuse Thomas as a witness for the prosecution, but when defense counsel indicated that he would call Thomas as a witness, the judge stated: “I will instruct him to return, but it will be as your own witness, and if you call him you will be bound by his testimony because he will be called as your own witness.”
After a short recess, the defense commenced its case by calling Thomas. The judge stated, “As your own witness?” Defense counsel answered in the affirmative, and the judge said, “Very well.”
Defense counsel asked only two questions which Thomas answered by stating that he was 14, and that he had stаyed at Steven‘s home on the evening of April 16. The prosecution did not cross-examine.
Five character witnesses, including Steven‘s older sister who was 17, testified that Steven‘s reputation for truthfulness was bad. A policeman testified that Steven had told him that the oral copulation incident occurred in a different location than thаt described at trial. A boy, 16, testified that on April 16 he was with defendant at a model racing car store during part of the time that Steven said he was in the mountains.
Defendant, who was employed at the model racing car store, took the stand and denied the charges. He offered to prove by testimony of a private investigator thаt the latter had a conversation with Thomas, that the conversation was tape recorded, and that Thomas said that he and Steven had made an agreement to “get” defendant. The court ruled that such
Defendant contends that the court erred in admitting in evidence over objection Steven‘s testimony as to sexual offenses other than those charged. We agree.
Evidence of other crimes is inadmissible if offered solely to prove criminal disposition or propensity on the part of the accused to commit the crime charged. The evidence is then excluded because its probative value is outweighed by its prejudicial effect. The purposes of the exclusionary rule are to avoid placing the accused in a position where he must defend against crimes with which he has not been charged and to guаrd against the probability that evidence of other criminal acts having little bearing on the question whether defendant committed the charged crime would assume undue proportions and unnecessarily prejudice defendant, as well as to promote judicial efficiency. (People v. Cramer, ante, pp. 126, 129-130 [60 Cal.Rptr. 230, 429 P.2d 582]; People v. Hill, 66 Cal.2d 536, 556 [58 Cal. Rptr. 340, 426 P.2d 908].)
There are, of course, certain situations in whiсh evidence of other crimes is admissible. In cases involving sex crimes, it has been held that evidence of other not too remote sex offenses with the prosecuting witness is admissible to show a lewd disposition or the intent of defendant towards the prosecuting witness. (People v. Sylvia, 54 Cal.2d 115, 119-120 [4 Cal.Rptr. 509, 351 P.2d 781]; see People v. Kelley, 66 Cal.2d 232, 240 [57 Cal.Rptr. 363, 424 P.2d 947].)
Defendant does not dispute the latter rule as a general
This problem is not a new one. In People v. Smittcamp, 70 Cal.App.2d 741, 745-751 [161 P.2d 983], the trial court instructed the jury that evidence of other acts of sexual intercourse and of improper familiarity between the defendant and the prosecutrix wеre received to prove the adulterous disposition of the defendant and to render it more probable that the act of sexual intercourse charged was committed and for no other purpose. The Court of Appeal, while recognizing that in prosecutions for sex offenses evidence of other offenses between the parties is ordinarily admitted, reasoned that the evidence of the other offenses is admitted as corroboration of the testimony introduced to prove the commission of the specific offense charged, that this is the only purpose of the evidence of other offenses, that where the оnly evidence of the other offenses is the testimony given by the prosecutrix herself, her testimony in that regard is only an attempt to corroborate her own testimony, and that the testimony as to the other offenses in such circumstances could not be said to in any way render the guilt of the defendant more probable than if she had tеstified that the act had been done but the once charged in the information. The same reasoning was applied to similar instructions in People v. Vaughan, 131 Cal.App. 265, 275 [21 P.2d 438]; People v. Bell, 96 Cal.App. 503, 507-508 [274 P. 393], and People v. Haugh, 90 Cal.App. 354, 356-357 [265 P. 891].
These cases cannot be distinguished on the ground that they involve instructions to the jury rather than the issue of admissibility of evidence. The cases establish that where the basic issue of the case is the veracity of the prosecuting witness and the defendant as to the commission of the acts charged, the trier of fact is not aided by evidence of other offenses where that evidence is limited to the uncorroborated testimony of the prosecuting witness.
We have been cited to no case, nor have any been fоund, where uncorroborated testimony of the prosecuting witness as
It would not be sound law, or serve the ends of justice, if the courts were to adopt rigid rules for the admission and exclusion of evidence of other crimes. As was said in People v. Sheets, 251 Cal.App.2d 759, 764 [59 Cal. Rptr. 777]: “If both justice and predictability of decision are to be served, rigidity of tests of admission and exclusion, in our opinion, is not the answer. We believe that whenever the quarrel is between relevancy and the policy of the law to protect the accused against bias and prejudice likely to be engendered from the admission of relevant evidence, a balancing process must take place—a weighing of the probative value of the evidence offered against the harm it is likely to cause.” (See also People v. Sykes, 44 Cal.2d 166, 174, 175 [280 P.2d 769]—dissent of Traynor, C. J.)
While probative value and prejudice are not subject to absolute quantitative measurement, some of the pertinent guidelines may be identified. On the issue of probative value, materiality and necessity are important.2 The court should not permit the admission of other crimes until it has ascertained that the evidence tends logically and by reasonable inference to prove the issue upon which it is offered,3 that it
In the instant case, the evidence of the other offenses added nothing to the prosecution‘s case. The case is based solely on the testimony of Steven, and the crucial issue was his credibility. Steven‘s testimony as to the other offenses, which was not corroborated by any other evidence, in no way strengthened his testimony as to the offenses charged. It seems clear that, in light of the issues before the trier of facts, the testimony as to the other offenses was of no proрer benefit to the prosecution. Obviously, testimony that defendant had committed offenses on four other occasions with Steven and other boys involves a substantial danger of prejudice to defendant. When the probative value of the evidence is weighed against the harm caused, the balance clearly falls in favоr of exclusion. The error was obviously prejudicial. The prosecution‘s case depended entirely on the uncorroborated testimony of a 10-year-old boy, and the boy was shown by testimony of his sister and neighbors to have a bad reputation for veracity. The boy contradicted himself in testifying with regard to important matters, but probably even more revealing is that when the boy was shown that his detailed testimony as to certain matters was in conflict with earlier testimony, he changed his story and came forth with a new version also liberally sprinkled with details. Obviously, one of the versions of conflicting statements was false, and the ability of the boy to ornament the false vеrsion with numerous details, seemingly lending credence to it, certainly suggests that he is an accomplished liar and that there is a dangerous possibility that his entire testimony is false. The prosecution did not call Thomas as a witness, and defendant denied the charge and produced a witness who testified to an alibi.
It should be remembered that an accusation of violations of the sections before us is an ” ‘accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent’ ” (People v. McMonigle, 29 Cal.2d 730, 742 [177 P.2d 745]; People v. Peete, 28 Cal.2d 306, 315 [169 P.2d 924];
This, as we have seen, is a case based on the uncorroborated testimony of the prosecuting witness, who has been substantially impeached, and the defendant has taken the stand, denied the charges, and produced an alibi witness. As this court has observed, in a sex case where the only witness is the victim and his story is totally uncorroborated, almost any error is serious and is likely to be prejudicial. (Cf. People v. Adams, supra, 14 Cal.2d 154, 157, 168.)
There is no merit in defendant‘s contention thаt the prosecution was required to call Thomas, the complaining “witness” as to two of the four counts. Thomas, who was 14 years of age at the time of the offenses, was probably an accomplice (cf. People v. McRae, 31 Cal.2d 184, 185-186 [187 P.2d 741]), and he was not concealed from the defense but was present at the trial (cf. People v. Kiihoa, 53 Cal.2d 748, 752 [3 Cal.Rptr. 1, 349 P.2d 673]). The prosecution is not rеquired to call any particular witness, nor to put on all the evidence relating to a charge so long as all material evidence bearing thereon is fairly presented in such a manner as to accord to the defendant a fair trial. (People v. Tuthill, 31 Cal.2d 92, 98 [187 P.2d 16]; see People v. Kiihoa, supra, 53 Cal.2d 748, 752.)
Defendant also attacks the sufficiency of the evidence on the ground that Steven‘s testimony was not corroborated. However, Steven was under the age of 14 years at the time of the commission of the offense and could not have been an accomplice with respect to the charged violations of
The judgment is reversed.
Traynor, C. J., Tobriner, J., Mosk, J., Burke, J., and Sullivan, J., concurred.
MCCOMB, J.—I dissent. I would affirm the judgment for the reasons expressed by Presiding Justice Files in the opinion prepared by him for the Court of Appeal, Second Appellate District, Division Four (People v. Stanley, Crim. No. 11632, filed May 29, 1967, certified for nonpublication).
Respondent‘s petition for a rehearing was denied December 27, 1967.