People v. Carter

• Decision Date: 19 March 1975
• Docket Number: Cr. 25326
• Citation: 120 Cal.Rptr. 181,46 Cal.App.3d 260
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Lugene CARTER, Defendant and Appellant.

Page 181

120 Cal.Rptr. 181

46 Cal.App.3d 260

The PEOPLE, Plaintiff and Respondent, v. Lugene CARTER, Defendant and Appellant.

Cr. 25326.

Court of Appeal, Second District, Division 5, California.

March 19, 1975.

Rehearing Denied April 14, 1975.

As Modified April 21, 1975.

Hearing Denied May 14, 1975.

James L. McIntosh, San Francisco, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., and Norman H. Sokolow and James H. Kline, Deputy Attys. Gen., for plaintiff and respondent.

STEPHENS, Associate Justice.

The appeal in this case follows a conviction and sentence for robbery in the first degree. (Pen.Code, §§ 211 and 211a.)

The main thrust of the appeal is that reversal is required, based upon evidence not adduced at trial; that by virtue of the failure to interview a witness and thereafter to exercise a reasonable tactical decision as to whether to call said person to testify, the trial was relegated to a farce and a sham. (People v. Ibarra, 60 Cal.2d 460, 464, 34 Cal.Rptr. 863, 386 P.2d 487.)

The issue was not raised before the trial court by way of motion for new trial, hence determination is properly by way of writ of habeas corpus and not by direct appeal. ¹ (People v. Pena, 25 Cal.App.3d 414, 423, 101 Cal.Rptr. 804.)

There is another contention, however, which has merit and necessitates reversal, i.e., that 'The trial court erred in admitting the testimony of Alex Freedland to a dissimilar robbery from which he could not identify appellant.' The testimony relative to the uncharged crime was admitted under the theory of 'common plan, scheme and design, and further (to) identify' defendant. we conclude that the evidence of the uncharged offense was reversible error. Even were we to concede similarity of the modus operandi (which we do not), in the instant case defendant was identified by the victim of the charged offense (Swislow) as having, on August 25, 1973, robbed him and having threatened him with a knife at the time of the crime. The victim also identified defendant as the perpetrator of the crime when shown four photographs, each of a different person, one of which portrayed defendant.

Mr. Alex Freedland testified as to a robbery which took place on August 26, 1973 in which he was the victim, and that the robbery was accomplished with the use of a gun. 'A day or so after' the robbery, Freedland was shown some photographs for the purpose of possibly identifying the perpetrator of the robbery. Freedland 'recognized the black turtleneck sweater' on one of the depicted persons, but did not recognize the face. ² On the basis of this recognition of clothing only, Freedland told the investigating officers that this was a picture of the person who had robbed him. Freedland also testified that in none of the other pictures exhibited to him were the persons wearing turtleneck sweaters. The witness was not asked to make an in court identification.

Officer Lynn Franklin testified that he had exhibited six or seven photos to Freedland and that Freedland 'picked out the picture of the defendant, stating 'This is one of the persons who robbed me' and 'I am sure this is one of the persons."

The defense was one of alibi, and therefore any evidence bearing upon the identity of the Swislow robber was of importance. It was to provide additional evidence of identity that the Freedland testimony was admitted. It is conceded that, in the proper case, a defendant's commission of another (uncharged) crime is admissible to prove a material fact such as identity, motive, or intent, and modus operandi common to both the charged and uncharged crimes. (Evid.Code, § 1101, subd. (b); People v. Enos, 34 Cal.App.3d 25, 35, 109 Cal.Rptr. 876.) However, the Freedland testimony at the time of trial failed to identify the perpetrator of the uncharged crime. In fact (as we noted), Freedland was not asked if he could identify the perpetrator as a person in the courtroom at that time. ³ Instead, the prosecution was content to rely upon what it considers to be 'impeaching' testimony produced by Officer Franklin. The prosecution relies upon the principle that a contradictory statement may be admitted both for impeachment purposes and to prove the facts therein related (Evid.Code, § 1235; People v. Strickland, 11 Cal.3d 946, 954, 114 Cal.Rptr. 632, 523 P.2d 672) and for the propriety of the admission of the evidence.

Defendant argues that the prior statement by Freedland (as related by Officer Franklin) was not inconsistent with the in court testimony of Freedland. We agree.

Courts in California have consistently adhered to the rule that the "The right of impeachment does not exist where the witness states he has no recollection of the fact concerning which he is examined.' This is not only the rule in California, but according to Wigmore, it is the general English and American rule confirmed by similar holdings in other jurisdictions.' (People v. Sam, 71 Cal.2d 194, 77 Cal.Rptr. 804, 454 P.2d 700.) (Citations and footnotes omitted.)

The single exception to the general sweep of this rule were carved out in People v. Green, 3 Cal.3d 981, 92 Cal.Rptr. 494, 479 P.2d 998, where the California Supreme Court held a witness' deliberate evasion of the question of whether or not the defendant had transferred marijuana to the witness amounted to an 'implied denial that defendant did in fact furnish him with the marijuana as charged.' (Id., at 989, 92 Cal.Rptr. at 498, 479 P.2d at 1002.) However, the Green court reaffirmed the general rule that 'the testimony of a witness that he does not remember an event is not 'inconsistent' with a prior statement by him describing that event.' (Id., at 988, 92 Cal.Rptr. at 498, 479 P.2d at 1002.) Any doubts about the exent to which Green displaced the general rule were resolved in People v. Parks, 4 Cal.3d 955, 95 Cal.Rptr. 193, 485 P.2d 257. There the court held that a witness' prior report about a conversation with the defendant could not be admitted into evidence when, at trial, the witness could not recall what was said. The court found that her lapse of memory '(was not) inconsistent with her original remarks . . . It was not established that she was deliberately evasive or that her asserted lapse of memory was untrue.' (Id., at 960, 95 Cal.Rptr. at 196, 485 P.2d at 260, Citing People v. Green, 3 Cal.3d, at 987, 92 Cal.Rptr. 494, 479 P.2d 998, Supra.) (See: People v. Petersen, 23 Cal.App.3d 883, 892, 100 Cal.Rptr. 590; People v. Wheeler, 23 Cal.App.3d 290, 309, 100 Cal.Rptr. 198; People v. Barranday, 20 Cal.App.3d 16, 22, 97 Cal.Rptr 345; People v. Jackson, 3 Cal.App.3d 921, 925, n. 2, 83 Cal.Rptr. 829.)

In this case, according to his testimony, Freedland never identified defendant; he identified a turtleneck sweater. This explanation at time of trial was entirely consistent with his identification of the photo to Officer Franklin. While the facts of the Freedland robbery were admitted to establish the identity of the Swislow robber, no identification of the perpetrator of the Freedland crime resulted. Certainly, the facts of uncharged offenses cannot be admitted unless the identity of the perpetrator is clearly established. (See People v. Banks, 2 Cal.3d 127, 138, 84 Cal.Rptr. 367, 465 P.2d 263.) This error of admission could not but have adversely affected defendant's trial. (People v. Watson, 46 Cal.2d 818, 835--837, 299 P.2d 243.)

There is another reason why this case should be reversed, though we do not rely upon it to support our decision because it is, at best, but tangentially raised in the briefs and before the trial court. ⁴ Freedland's 'identification' of defendant, if it can be so described, occurred by way of a photographic lineup. Such means of identification is proper where the procedure is not unnecessarily suggestive and conducive to mistaken identification. (People v. Lawrence, 4 Cal.3d 273, 280, 93 Cal.Rptr. 204, 481 P.2d 212.) The totality of the circumstances surrounding the line-up is determinative of its fairness. (People v. Harris, 274 Cal.App.2d 826, 79 Cal.Rptr. 352.) Where an identification procedure is shown to be constitutionally infirm, the prosecution must then establish by clear and convincing proof that the in court identification is not tainted. (People v. Williams, 9 Cal.3d 24, 37, 106 Cal.Rptr. 622, 506 P.2d 998.)

The instant case differs from People v. Hill, 12 Cal.3d 731, 766, 117 Cal.Rptr. 393, 420, 528 P.2d 1, 28, where, of the group of pictures shown to the witness, defendant was the only one depicted wearing a beard and the witness had stated that his assailant 'either wore a mask or had a beard,' the witness nevertheless made his identification solely from the features of eyes, cheeks, nose, and hairline. Here, the sole item...