People v. Green

Decision Date29 January 1971
Docket NumberCr. 12753
Citation3 Cal.3d 981,479 P.2d 998,92 Cal.Rptr. 494
CourtCalifornia Supreme Court
Parties, 479 P.2d 998 The PEOPLE, Plaintiff and Respondent, v. John Anthony GREEN, Defendant and Appellant.

Cooney & Cooney, Terrence W. Cooney, Sherman Oaks, and Harold Ephraim Hanson, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and David B. Stanton, Deputy Atty. Gen., for plaintiff and respondent.

MOSK, Justice.

Defendant was convicted, in a trial to the court, of the crime of furnishing marijuana to a minor. (Health & Saf.Code, § 11532.) We reversed the judgment on federal constitutional grounds hereinafter discussed. (People v. Green (1969) 70 Cal.2d 654, 75 Cal.Rptr. 782, 451 P.2d 422.) The People's petition for certiorari was granted, and the United States Supreme Court vacated our decision. (California v. Green (1970) 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489.) In so doing, the high court raised but did not decide issues which it invited us to resolve (Id. at pp. 168--170, 90 S.Ct. 1930), and remanded the case to this court for further proceedings. We recalled our remittitur, requested and received helpful supplementary briefs, and had the matter reargued.

The chief witness for the prosecution was Melvin Porter, the 17-year- old minor to whom defendant furnished marijuana. Because of his hostility and the apparent changes in his testimony, the prosecution was allowed to impeach him by the introduction, as prior inconsistent statements, of two other versions of the events previously given by Porter: the first was his testimony at the preliminary hearing in this case, and the second was an oral statement he made to Officer Wade at the juvenile hall after his detention.

Evidence Code section 1235 provides in effect that a prior inconsistent statement of a witness is admissible not only to impeach his credibility but also to prove the truth of the matters asserted therein. 1 In the case at bar we noted (70 Cal.2d at p. 658, fn. 2, 75 Cal.Rptr. 782, 451 P.2d 422) that Porter's statements were specifically admitted for the latter purpose, and constituted a substantial proportion of the People's evidence against defendant. Developing the line of reasoning we first expounded in People v. Johnson (1968) 68 Cal.2d 646, 68 Cal.Rptr. 599, 441 P.2d 111, cert. den. (1969) 393 U.S. 1051, 89 S.Ct. 679, 21 L.Ed.2d 693, we held that the admission of Porter's statements for the truth of the matters asserted violated defendant's right of confrontation guaranteed by the Sixth Amendment. (70 Cal.2d at pp. 659--665, 75 Cal.Rptr. 782, 451 P.2d 422.) The United States Supreme Court disagreed, and ruled that the admission of a prior inconsistent statement for this purpose does not violate the confrontation clause provided that (1) the statement was made by the declarant in testifying as a witness at the preliminary hearing or (2) the declarant testifies as a witness at the trial, regardless of the circumstances in which the prior statement was made. In each case, the high court stated, the defendant's opportunity to cross-examine the witness in the particular setting is sufficient confrontation to satisfy the requirements of the Sixth Amendment. 2 The mission of the confrontation clause, said the court in Dutton v. Evans (1970) 400 U.S. 74, 89, 91 S.Ct. 210, 220, 27 L.Ed.2d 213, 'is to advance a practical concern for the accuracy of the truth determining process in criminal trials by assuring that 'the trier of fact (has) a satisfactory basis for evaluating the truth of the prior statement.' California v. Green, 399 U.S., at 161, 90 S.Ct., at 1936.'

I

In our prior opinion (70 Cal.2d at p. 657, fn. 1, 75 Cal.Rptr. 782, 451 P.2d 422) we assumed for purposes of discussion that Porter's preliminary hearing testimony--and the same applies to his extrajudicial statement to Officer Wade--was in fact 'inconsistent' with his testimony at trial. As that evidence would be inadmissible even under state law if it was not inconsistent, it is now necessary to determine whether our assumption is supported by the facts.

According to the excerpts read into the record at trial, Porter testified at the preliminary hearing substantially as follows: about January 5 or 6, 1967, defendant had a conversation with Porter at the latter's house; at that time defendant told Porter he had a kilo of marijuana which he wanted Porter to sell for him; the marijuana was packaged in 29 'Baggies' (i.e., small, transparent plastic bags) inside a large shopping bag; defendant told Porter where the shopping bag was hidden at his father's house; defendant then directed Porter to go to that location and get the bag, and Porter did so the same night. In his extrajudicial statement to Officer Wade, Porter recounted that one morning between January 1 and 10, 1967, defendant called him on the phone and told him he had a kilo of 'stuff' or 'grass' 3 which he wanted to leave at Porter's house; Porter replied he could bring it over later in the day; defendant did so, arriving with a shopping bag containing 29 plastic bags of a green, leafy material which Porter recognized as marijuana.

Although the two prior statements were thus inconsistent with each other in certain respects, the issue is whether they were inconsistent with Porter's testimony at the trial. In that testimony Porter admitted he had known defendant for some four and a half years; sometime between January 1 and 10, 1967, defendant called him on the phone and said he had some 'stuff' that he wanted Porter to sell; Porter understood 'stuff' to mean 'grass or pot, marijuana'; and Porter agreed to sell the marijuana for defendant.

At this point in the proceedings, however, Porter's testimony suddenly became curiously vague. When asked what happened after the phone conversation, Porter claimed he was no longer 'absolutely sure' that defendant had come to his house later that day, adding, 'I think, but I'm not positive.' Asked if defendant brought anything to the house, Porter replied, 'Not that I recall.' To explain this apparent lapse of memory, Porter said he had taken LSD about 20 minutes before defendant phoned him.

Porter's preliminary hearing testimony, summarized above, was then read to him. Once again he equivocated, claiming 'I can't absolutely say' that after making the phone call defendant came to his house and brought him anything. Nevertheless, Porter then admitted that the same night he had in his possession a shopping bag containing 29 'Baggies' of marijuana, although he alleged he could not recall 'how I actually did get them.' 4

When asked if someone had told him where to find the shopping bag, Porter conceded, 'I suppose someone did tell me,' but reiterated that 'I can't say absolutely' who it was. When asked whether he obtained the bag at the house of defendant's father, he replied, 'I might have. You know, I knew John (i.e., defendant) called, and I mean. * * *' He was interrupted by an objection which was overruled. The prosecutor then asked when was the next time he saw defendant after the phone call, and Porter replied, 'I think I might have seen him that day, but I couldn't be positive.'

Additional preliminary hearing testimony by Porter was then read, and he grudgingly agreed that it refreshed his recollection. The prosecutor then asked again where he obtained the shopping bag of marijuana, and Porter answered, 'Well, I guess I got it from (defendant's) back yard.' In the same reluctant terms Porter agreed that it was defendant who pointed out the location of the marijuana, that Porter received money for selling some of the marijuana, and that he gave the money to defendant.

On cross-examination defense counsel sought in effect to 'rehabilitate' Porter's asserted lapse of memory by inquiring whether the reading of the preliminary hearing testimony refreshed the witness' recollection as to that testimony or as to the actual event. Porter replied, 'Mostly my testimony, I guess.' When counsel asked if he was still unsure of what happened after defendant's phone call, Porter claimed that 'I'm not positive now.' Counsel also caused Porter to testify that taking LSD made him hallucinate and that the effect lasts from 12 to 14 hours; yet when pressed on the point by the court, Porter also claimed that apart from the LSD 'I have always had a not very good memory.'

A dispassionate appraisal of the foregoing testimony, which we previously characterized as 'markedly evasive and uncooperative' (70 Cal.2d at p. 657, 75 Cal.Rptr. 782, 451 P.2d 422), leads to but one conclusion: the trial court could properly disbelieve Porter's claim that he no longer remembered how the marijuana came into his possession. Porter's reluctance to testify against defendant was apparent from the outset, as it was necessary to repeatedly warn him to make his voice more audible. When he reached the critical point in his testimony--i.e., whether defendant did in fact give him the marijuana as he agreed to do--Porter first hesitated by saying, 'I just messed around for a while. * * * Well, you know, I mean he didn't come over right away.' Finally Porter unmasked his apparent motive when he protested, 'Like I already said, I mean I've got a conscience, and I don't want to. * * *' His voice trailed off, and he was told once again to speak up.

Thereafter Porter adopted a technique of refraining from flatly denying that defendant either brought the marijuana to his house or pointed out its hiding place to him; instead, the witness evaded all questions to that effect with such equivocations as 'I'm not absolutely sure' and 'I'm not positive.' As the trial court indicated, these evasions are, in the circumstances, inherently incredible. Porter admitted in open court that he 'clearly remembered' every event Before his acquisition of the marijuana, including the highly incriminating phone call by defendant, and every event After that acquisition,...

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