People v. Brock

Decision Date28 February 1985
Docket NumberCr. 23650
Citation211 Cal.Rptr. 122,695 P.2d 209,38 Cal.3d 180
CourtCalifornia Supreme Court
Parties, 695 P.2d 209 The PEOPLE, Plaintiff and Respondent, v. Luther Clayton BROCK, Defendant and Appellant.

David D. Salmon, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Cecil L. McGriff, San Francisco, for defendant and appellant.

BROUSSARD, Justice.

Defendant appeals from a conviction of second degree murder and unlawful administration of methamphetamine. The principal question on appeal is whether the trial court erred in allowing the prosecution to introduce the preliminary hearing testimony of a key witness who was unavailable to testify at the trial.

I.

On August 15, 1980, a doctor examined Iris Southall and informed her that an abscess on her arm required surgery. Later that day she was admitted to San Francisco General Hospital and was assigned to a room with another patient, Mary Williams. Southall told the surgeon that she had given herself an intramuscular injection of amphetamines about three days earlier. Surgery was performed without incident from 10:15 to 11:15 p.m. The surgeon's examination of the patient both before and during the operation on the abscess revealed no symptoms of amphetamine intoxication or poisoning. The surgeon reexamined Southall in the recovery room shortly before midnight and 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 Mrs. Williams. She was awake and alert and her vital signs were satisfactory. At 6:20 a.m., however, a 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 to the touch and had a "bluish hue"--a condition known as cyanosis. The nurse summoned a medical intern, Dr. Shae Goldstein. Dr. Goldstein revived the patient and asked her if "any of her friends" had given her any drugs. The victim said only "yes" in response. Southall's condition continued to deteriorate and she was pronounced dead at 12:55 p.m. on the day following her surgery. The autopsy revealed extraordinarily high levels of amphetamine and methamphetamine in the decedent's blood.

On August 20, four days after the death, Inspector Napolean Hendrix of the San Francisco Police Department interviewed Mrs. Williams at the hospital. The inspector's notes from the August 20 interview stated inter alia: "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. [p] During the talk, the NMA asked Mrs. Williams for matches which she gave him. [p] 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.' [p] The NMA then told Southall, 'you have veins all over.' [p] Mrs. Williams then heard what sounded like a syringe being placed on a table. Later there was more conversation between the NMA and Southall...."

According to Hendrix, he showed Mrs. Williams six photographs and asked her if she recognized anyone. On this point his notes stated: "Showed a group of six photos to Mrs. Williams and then she picked out the photo of Luther C. Brock. [p] [Mrs. Williams] further stated that he was the NMA who was in the room and did something to the feet of Southall. [p] Mrs. Williams further stated that Brock was wearing this same shirt in the photo that he was wearing while in 4B, 35." Mrs. Williams signed and dated the back of defendant's photograph as directed by Hendrix. At the conclusion of the interview the inspector signed the notes he had taken from Williams' statements. The notes were neither read nor signed by Mrs. Williams.

The account Williams gave Hendrix on August 20 was similar to the statement she had given San Francisco Police Officer Dennis Bonnel on August 16, the day of Southall's death, except for two significant discrepancies. She told Officer Bonnel that the man visiting Southall asked her for matches before Southall was taken to surgery. She also reported that no words were spoken between Southall and her visitor when he returned to the room around 4 a.m. Bonnel had been called to the hospital to investigate the circumstances of Southall's death. The notes from his investigation were incorporated into a police report before Inspector Hendrix visited Williams on August 20.

Defense counsel and a defense investigator taped a statement by Mrs. Williams on January 26, 1981. This third statement by Williams regarding the events in her hospital room adds further to the confusion created by her earlier contradictory statements to the police. The recording begins with Mrs. Williams' apparent reference to a conversation with Inspector Hendrix sometime in December 1980 in which she disputed the accuracy of his notes of her August 20 statement. Mrs. Williams stated: "I said, 'Well, I didn't say some of the things you guys wrote down on that there ....' " Mrs. Williams also reaffirmed her earlier report to Officer Bonnel that Southall's visitor asked for matches before the surgery: "That's when I give him the match, it was before surgery, they didn't take her out of there until about 9:20 for surgery and then bring back until 4:20." In another part of her taped statement, Mrs. Williams corroborated the other major observation contained in Bonnel's report of her August 16 statement. She stated that she "never heard a word" exchanged between Southall and her visitor about giving her drugs. In her most remarkable statement, Mrs. Williams indicated on the tape that after Southall left for surgery, she never saw the male visitor again.

The recorded statement also includes the following significant colloquy regarding Mrs. Williams' photo identification:

"[MR. DERISH, DEFENSE INVESTIGATOR] How did you identify Luther Brock from the police photos, how many sets of photos did they show you, Inspector Hendrix?

"[MRS. WILLIAMS] They showed me, you know, they take one sideways and one looking at you, I said, 'Now, I see so many of them look like him, but this guy had on a knitted cap,' I say, 'And this picture you have here, he's bare headed.'

"[MR. DERISH] But it was Mr. Brock, or Iris' boyfriend?

"[MRS. WILLIAMS] I couldn't swear it was, because someone tell you the truth, practically everybody you see on the street look just like him.

"...

"[MR. DERISH] How many photos did Inspector Hendrix show you?

"[MRS. WILLIAMS] He just showed me one card.

"[MR. DERISH] One photo?

"[MRS. WILLIAMS] One card.

"[MR. DERISH] It was a side photo?

"[MRS. WILLIAMS] Just about that size.

"[MR. DERISH] He say there were six black fellows pictures that he presented to you.

"[MRS. WILLIAMS] He did not, he showed me one card, and it was about the size of this, if I make no mistake, this one on this side he was facing me and this one on that side--

"...

"[MR. McGRIFF, DEFENSE COUNSEL] Now you say you can't positively say that the picture Inspector Hendrix showed you was the person who was in the room that night?

"[MRS. WILLIAMS] I told him so, I said the party that was in that room had on a, you know, these little knitted caps."

The preliminary hearing was held in four sessions between February 25, 1981, and March 9, 1981. The second of these sessions was held in Mrs. Williams' hospital room. The prosecution sought to establish the foundational elements of Evidence Code section 1237 in order to admit Mrs Williams' August 20 statement to Inspector Hendrix as past recollection recorded. 1 By the time of cross-examination, Mrs. Williams' condition had deteriorated to such an extent that defense counsel terminated his examination after only three questions. He also moved to strike her testimony on the grounds she was incompetent to testify and denial of the right to cross-examination. The magistrate denied the defense motion and admitted Mrs. Williams' August 20 statement as past recollection recorded under section 1237. The August 20 statement was read into evidence by Inspector Hendrix. Mrs. Williams' statement to Officer Bonnel on August 16 was also admitted as past recollection recorded. Mrs. Williams' taped statement was admitted as a prior inconsistent statement under Evidence Code section 1235. 2 The defendant was held to answer.

An information was filed on March 23, 1981, charging defendant with one count of murder (Pen.Code, § 187) and one count of the unlawful administration of methamphetamine (Health & Saf.Code, § 11379). Prior convictions of manslaughter (Pen.Code, § 192) and being an ex-felon in possession of a firearm (Pen.Code, § 12021) were also alleged. Defendant moved to set aside the information under Penal Code section 995 claiming error in the admission of the August 20 statement. The motion was denied.

Mrs. Williams died sometime after the preliminary hearing and before the trial. In the trial court the prosecution moved in limine for admission of Mrs. Williams' August 20 statement under both the past recollection recorded and former testimony 3 exceptions to the hearsay rule. The prosecutor contended that Mrs. Williams' preliminary hearing testimony, together with the testimony of Inspector Hendrix, established the foundational requirements necessary for admission of her August 20 statement at the preliminary hearing as past recollection recorded. The prosecutor also claimed that Mrs. Williams' preliminary hearing testimony incorporating her August 20 statement was admissible at trial as former testimony under section 1291.

Defendant opposed the motion arguing that the...

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