People v. Huskins

• Decision Date: 25 October 1966
• Docket Number: Cr. 9256
• Citation: 54 Cal.Rptr. 253,245 Cal.App.2d 859
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Larry Martin HUSKINS, Defendant and Appellant.

Page 253

54 Cal.Rptr. 253

245 Cal.App.2d 859

The PEOPLE of the State of California, Plaintiff and Respondent, v. Larry Martin HUSKINS, Defendant and Appellant.

Cr. 9256.

District Court of Appeal, Second District,

Division 2, California.

Oct. 25, 1966.

Robert Holzhauer, for appellant. ^*

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Harvey D. Unrot, Deputy Atty. Gen., for respondent.

FLEMING, Justice.

Larry Huskins was charged in eight counts with sex offenses against his three natural daughters, ages six, three, and two, and in a nonjury trial was convicted on one charge and acquitted on the others. Sexual psychopathy proceedings were initiated, but a jury found the defendant was not a sexual psychopath. (Wel. & Inst.Code, § 5512.) Thereafter, defendant, whose only prior offense was a 1948 conviction for resorting (Mun.Code 41.07), was sentenced to state prison. At all times, both in court and out of court, Huskins vigorously denied the charges against him. The principal issue is whether his motion for a new trial because of newly discovered evidence should have been granted.

In April 1962, Huskins and his wife, the mother of his three children, had reconciled after a separation. Their children continued to live in separate foster homes, six-year-old Cathy living with foster parents named Jeanette and William White.

On behalf of the prosecution Mrs. White testified that on two occasions, once in February and once in April Huskins had taken Cathy out and returned her in a dishevelled and upset condition, after which the child complained of sexual mistreatment. On both occasions Mrs. White took the child to a doctor three days after the visits, and the doctor found inflammation of the vaginal orifice caused by some foreign object. Mrs. White also testified that Cathy had been playing with herself during this period, which she said, 'is very common in foster children.' Mr. White did not testify.

The child had great difficulty in qualifying to testify, and there were signs she had been coached. ¹ One assignment of error is that she was not competent to testify (Code Civ.Proc. § 1880, subd. 2; People v. Burton, 55 Cal.2d 328, 341--342, 11 Cal.Rptr. 65, 359 P.2d 433; People v. Banos, 209 Cal.App.2d 754, 756--757, 26 Cal.Rptr. 127), but the trier of fact properly qualified her to testify, and he could reasonably have inferred from the child's testimony that her natural father had molested her during the April visit.

In his defense Huskins testified he never molested any of his children, that on the day in question he and his wife worked around the house while their children played. Huskins' wife testified she had been with her husband and the children during the entire day of the visit and Cathy was undisturbed and in good physical condition when she left the house with her father to return to her foster home.

After the criminal conviction and during the sexual psychopathy proceedings, the defense discovered that Mrs. White had instituted civil commitment proceedings against her own husband in 1951, accusing him of being a sex pervert who had attacked his own daughter and had performed sex acts with animals. These accusations were never proved. Rather Mrs. White herself was found to be suffering from paranoid schizophrenia, and after her attempt at suicide was committed to Camarillo State Hospital, where she remained for a year and a half. The defense moved for a new trial, contending this newly-discovered evidence cast serious doubt on the credibility and motives of Mrs. White, the main prosecution witness, and suggested either that Mrs. White was suffering from delusions and no crime had ever been committed, or that Mrs. White had fabricated the accusations and coached the child in order to keep the child in her family, or that another person, the foster father, might have molested the child.

Penal Code, section 1181, authorizes a new trial on the discovery of material evidence which a defendant could not with reasonable diligence have discovered and produced at the first trial. 'To entitle a party to have a new trial on this ground, it must appear * * * '1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits. " (People v. Sutton, 73 Cal. 243, 247--248, 15 P. 86, 88.) Here, undoubtedly the evidence was newly discovered, was not cumulative, and was the best available evidence. Reasonable diligence is conceded, for it appears that no one connected with the case had any inkling that Mrs. White had made comparable charges in the past. Was a different result on retrial probable? The trial court thought not and denied the motion for a new trial, stating it had tried the case without a jury and did not think a different result on retrial probable. However, the test is not a subjective one whether a particular trier of fact would be persuaded by the new evidence to reach a different conclusion, but rather is an objective one based on all the evidence, old and new, whether any second trier of fact, court or jury, would probably reach a different result. We therefore consider the evidence on the basis of objective probabilities.

Ordinarily, evidence which merely impeaches a witness is not significant enough to make a different result probable, and respondent relies on the rule that '* * * newly-discovered evidence which would tend merely to impeach a witness is not of itself sufficient ground for granting a new trial.' (People v. Long, 15 Cal.2d 590, 607-608, 103 P.2d 969, 978.) But the new evidence in this case does more than merely impeach the main prosecution witness--it tends to destroy her testimony by raising grave doubts about her veracity and credibility. Since Mrs. White was the sole adult witness connecting the defendant with the charged acts, her credibility is central to the proof of the crime. As the Supreme Court said in another child molestation matter, 'In this type of case the broadest latitude in cross-examination and production of rebuttal evidence is required. * * * (E)vidence contradicting the testimony of a witness, even if it consists of proof of other wrongful acts, is proper if it is relevant to an issue in the case.' (People v. Clark, 63 Cal.2d 503, 504--505, 47 Cal.Rptr. 382, 383, 407 P.2d 294, 295.) The defense, because of lack of knowledge, never had an opportunity at the criminal trial to cross-examine Mrs. White about the charges she had made against her husband, her history of mental illness, and her commitment to a mental hospital, or to develop the theory that Mrs. White to serve her own purposes had concocted the charges against Huskins in order to keep his children in her family. Every experienced trial attorney knows the devastating effect which pertinent cross-examination on a vulnerable subject can produce on a witness. On occasion the skillful use against a fabricating witness of ammunition such as that newly-discovered here may even cause the witness to break down...