People v. Harris

• Decision Date: 21 March 1969
• Docket Number: Cr. 7141
• Citation: 270 Cal.App.2d 863,76 Cal.Rptr. 130
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Billy Darrel HARRIS, Defendant and Appellant.

Page 130

76 Cal.Rptr. 130

270 Cal.App.2d 863

PEOPLE of the State of California, Plaintiff and Respondent, v. Billy Darrel HARRIS, Defendant and Appellant.

Cr. 7141.

Court of Appeal, First District, Division 2, California.

March 21, 1969.

M. Van Smith, Santa Clara, for appellant.

Thomas C. Lynch, Atty. Gen., of State of California, Robert R. Granucci, Jerome C. Utz, Deputy Attys. Gen., San Francisco, for respondent.

TAYLOR, Associate Justice.

Defendant, Billy D. Harris, appeals ¹ from a judgment of conviction entered on a jury verdict finding him guilty of aggravated assault while confined in a state prison (Pen.Code, § 4501). He contends that: he was deprived of his Sixth Amendment right of confrontation and his right to separate counsel; the prosecution was guilty of several acts of prejudicial misconduct; and the trial court erred, to his prejudice, in the admission and rejection of certain evidence, as well as in its instructions to the jury.

As there are no contentions concerning the sufficiency of the evidence, a brief summary of the pertinent facts will suffice. On August 28, 1967, appellant was an inmate of the Soledad Correctional Facility. At 10:00 a.m., appellant, the codefendant, Clifford Jones (hereafter Jones), George Nick Detervis (hereafter Detervis), and 9 other inmates of the second tier of O Wing were released from their cells for an exercise period. About an hour later, an altercation began at the end of the tier between Jones and Detervis. There was testimony that appellant ran to Jones and Detervis and tried to break up the fight. Detervis ended up on the floor calling for help. Correctional Officers Kennedy and Wimbley testified they saw appellant and Jones strike Detervis with stabbing motions. The officers were about 115 feet away and separated from the men by a grill. They saw no weapon but saw the downward thrusting motions of appellant and Jones as a white cloth streamer came from each hand with each motion. Officer Kennedy twice yelled 'Lock-up,' in an attempt to return the men to their cells, but the altercation continued.

Additional officers were summoned, including McGuire, who opened the grill and threw a tear gas grenade in the vicinity of the struggle. Just before the grenade exploded, McGuire saw appellant astraddle Detervis with his hands around Detervis' neck, attempting to beat the latter's head on the cement floor. After the grenade exploded, vision was obscured by the smoke. The fight broke up and Jones leaped up to the windowsill and threw an object with a white streamer out the window of the cell block. Subsequently, Officer Villegas found a 10-inch-long bloody stiletto-type weapon made from heavy wire with a 4 to 6 foot piece of white cloth directly beneath the window.

After all the men were locked up in their cells, there was blood found on the stairs, the floor and the clothing of appellant and Jones. Detervis was taken to the hospital in shock, bleeding from the mouth and nose as the result of multiple contusions about the face, with puncture wounds on the anterior chest wall, as well as 21 puncture wounds on the posterior chest wall. Some of the punctures had penetrated the chest and caused a partial collapse of both lungs. The puncture wounds were caused by a small instrument about 1/4 to 3/8 inches in diameter.

Appellant's defense was that his only involvement in the altercation between Jones and Detervis was an effort to break it up. The white steamer was from a piece of cloth he was rolling around his hand to be subsequently used to start a fire to heat some coffee. Appellant's version of the incident was corroborated by several inmates. No weapon was seen in appellant's hand. A letter written by Jones, stating that he was glad that he did not kill Detervis as he had wanted to and that he would probably get five to life for it, was admitted.

Appellant and Jones were jointly charged by information. After being informed of their right to counsel, but not of their right to separate counsel, both elected to represent themselves. During the preliminary proceedings, both were assisted by the legal advisor appointed by the court. Jones relied entirely on a defense of insanity and a separate hearing on his sanity was held after the trial of appellant and Jones. This court appointed separate counsel on appeal. Thereafter, at the request of Jones, his appeal was dismissed.

Appellant first contends that the judgment must be reversed because the prosecution's misconduct in attempting to impeach Detervis deprived him of his right to confrontation under the Sixth Amendment to the Constitution of the United States.

The record indicates that Detervis was called as a witness for the prosecution and after identifying himself, indicated he would refuse to answer all questions on the ground of the Fifth Amendment. The trial court explained to Detervis that he was not charged with any offense, could not properly claim the privilege and by refusing to answer, was in contempt of court. Detervis continued to refuse to answer all questions on grounds of the Fifth Amendment.

The prosecution then proceeded to ask questions (set forth in the footnote below) ² that called for hearsay answers concerning statements Detervis had made to various officers about the fight. After the prosecution asked: 'Did you tell Lieutenant Adkinson that Jones grabbed you from behind and started choking you and Harris stabbed you?' appellant's hearsay objection was sustained.

Appellant again interposed an objection when the prosecuting attorney asked Detervis if he had talked to Lt. Adkinson. This objection was overruled. After the court pointed out that under the new Evidence Code the matter was admissible for purposes of impeachment, the prosecution indicated that, indeed, it was laying a foundation to bring Lt. Adkinson in to impeach Detervis. There then followed a series of questions (set forth in the footnote below), ³ each of which was designed to elicit further hearsay statements concerning appellant's participation in the attack on Detervis. Detervis, on grounds of the Fifth Amendment, refused to answer all of these questions, as well as those subsequently posed by the defense. Lt. Adkinson was not called as a witness and investigator Smith was not asked to impeach Detervis.

The procedure here employed by the prosecution is on all fours with that condemned in Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934. ⁴ In that case, Douglas and an alleged accomplice, Loyd, were tried separately for assault with intent to murder. Loyd was tried first, convicted, and subsequently called as a witness as Douglas' trial. Because Loyd planned to appeal his conviction, his counsel advised him to rely on the privilege of self-incrimination. Loyd did so and persisted, even after the court advised him that he could not rely on the privilege because of his conviction, and ordered him to answer.

Thereafter, the court granted the state's motion to declare Loyd a hostile witness and permitted him to be cross-examined. Under the guise of cross-examination, the state read from a purported confession signed by Loyd, asking after every few sentences: 'Did you make that statement?' Each time, Loyd asserted the privilege and refused to answer, but the questioning continued until the whole document had been read. Thereafter, the state called three officers who identified the document as Loyd's confession.

The U.S. Supreme Court, after noting that the Confrontation Clause of the Sixth Amendment was applicable to the states (Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923), held that the procedure violated Douglas' right to cross-examination secured by the Confrontation Clause. The court noted (at 419, 85 S.Ct. 1074) that Loyd's alleged statement that Douglas had fired the shotgun constituted the only direct evidence that he had done so and formed a crucial link in the proof of Douglas' act and the requisite intent to murder. The court also stated that Loyd could not be cross-examined on a statement imputed to but not admitted by him, and continued at pages 419 and 420, 85 S.Ct. at page 1077: 'Nor was the opportunity to cross-examine the law enforcement officers adequate to redress this denial of the essential right secured by the Confrontation Clause. Indeed, their testimony enhanced the danger that the jury would treat the Solicitor's questioning of Loyd and Loyd's refusal to answer as proving the truth of Loyd's alleged confession. But since their evidence tended to show only that Loyd made the confession, cross-examination of them as to its genuineness could not substitute for cross-examination of Loyd to test the truth of the statement itself. Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed. 1150; cf. Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890.

'Hence, effective confrontation of Loyd was possible only if Loyd affirmed the statement as his. However, Loyd did not do so, but relied on his privilege to refuse to answer. We need not decide whether Loyd properly invoked the privilege in light of his conviction. It is sufficient for the purposes of deciding petitioner's claim under the Confrontation Clause that no suggestion is made that Loyd's refusal to answer was procured by the petitioner, see Motes v. United States, supra, 178 U.S. at 471, 20 S.Ct. at 998; on this record it appears that Loyd was acting entirely in his own interests in doing so.'

Similarly here, Detervis was acting in his own interest in asserting the privilege, and there is no suggestion that his refusal to answer was procured by appellant. There was no way for appellant to test the truth of the hearsay statements attributed to Detervis but not admitted by him. There was nothing to impeach. Under the circumstances, the jury could only assume that the hearsay statements must be true as Detervis was held in contempt for failing to answer. We conclude that the district...