People v. Jackson

• Citation: 83 Cal.Rptr. 829,3 Cal.App.3d 921
• Decision Date: 28 January 1970
• Docket Number: Cr. 7670
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Paul JACKSON, Defendant and Appellant.

Page 829

83 Cal.Rptr. 829

3 Cal.App.3d 921

PEOPLE of the State of California, Plaintiff and Respondent, v. Paul JACKSON, Defendant and Appellant.

Cr. 7670.

Court of Appeal, First District, Division 1, California.

Jan. 28, 1970.

Hearing Denied March 25, 1970.

Paul A. Dezurick, San Francisco, by appointment of the Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Horace Wheatley, Deputy Attys. Gen., San Francisco, for respondent.

SIMS, Associate Justice.

Defendant has appealed from his conviction, following a jury trial, of statutory rape (Pen.Code, § 261, subd. (1)) of his eight-year-old mentally retarded stepdaughter. In proceedings under former sections 5500 et seq. of the Welfare and Institutions Code, the defendant was found not to be a mentally disordered sex offender; his motion for a new trial was denied; and he was sentenced to state prison as recommended in the jurys' verdict (see Pen.Code, § 264), with an admitted prior conviction in 1958 of assault with a deadly weapon in violation of section 245 of the Penal Code. ¹

Defendant contends that prejudicial error occurred in admitting evidence of prior inconsistent testimony and extrajudicial statements of his wife, the mother of the victim, for proof of the truth of what was therein asserted, and in admitting in evidence his clothing which had been taken into legal custody when he was arrested for another offense. No error is found in the latter connection. Developments in the law since the time of trial demonstrate that there was error in the unqualified admission of the prior inconsistent statements. The record fails to establish that this error was not prejudicial under standards applicable to a deprivation of a constitutional right.

Shortly after taking a drive with the defendant on the night of June 30, 1968, the victim was found to be bleeding as a result of a tearing of the vaginal and rectal tissue. She subsequently received extensive remedial surgery. Circumstantial evidence, hereinafter reviewed, pointed to a sexual attack by the stepfather as the cause of her injuries. The testimony and statements set forth below were received in evidence.

Prior Testimony and Statements

In his opening statement the prosecutor stated that the mother of the victim would testify concerning what the defendant at the time had said that he had done in reference to his stepdaughter while he and she were out on a drive together alone. When the witness acknowledged that she had a conversation with her husband concerning the child during the subsequent drive in which all three were present in the car, the defendant's objection on the ground the corpus delicti had not been established was overruled. The witness testified, 'He had told me that the baby had been complaining about her stomach earlier that day and he wanted to know if I had any idea what was wrong with her.' Thereupon the prosecutor inquired, 'Did you have any other conversation with him concerning the child?' The witness responded, 'Not that I know of.' ²

After eliciting further testimony from the witness concerning the events of the evening, the prosecutor referred the witness to her testimony at the preliminary examination on July 19, 1968 in which she had revealed a confession made by the defendant. ³ The witness acknowledged that the questions and answers were recorded as made. Defendant's objection on the basis of People v. Johnson (1968) 68 Cal.2d 646, 68 Cal.Rptr. 599, 441 P.2d 111 was overruled, apparently on the theory that in the instant case, as distinguished from Johnson where the prior testimony was elicited at a nonadversary grand jury proceeding, the defendant had an opportunity to confront and cross-examine the witness at the time the original testimony was given. People v. Green (1969) 70 Cal.2d 654, 75 Cal.Rptr. 782, 451 P.2d 422, although conceived, was almost seven months from accouchement. ⁴ Johnson itself indicated that the principles embodied in former Penal Code section 686, subdivision 3, with reference to the opportunity to cross-examine the witness on the prior occasion (see Evid.Code, §§ 1290--1292) might be determinative on the issue of the use of the prior testimony. (See 68 Cal.2d at p. 653, 68 Cal.Rptr. 599, 441 P.2d 111.) The testimony was offered and received as substantive evidence. Thereupon, it was read to the jury without comment as to its scope or effect.

The witness explained that she had given the prior testimony because on July 5, 1968 when she asked a detective in the sheriff's office, 'What are we going to do when he goes to court?', the detective said, 'You'll have to repeat this in court the same as you have told me here' referring to some notes he had made to what the witness was supposed to have told him at the hospital.

In explaining, she further volunteered, 'Mr. Jackson could have told me that, I do not remember whether he did or did not.' (Emphasis added. Cf. fn. 2, supra.)

She was then confronted with the reported statement made to the detective on July 5th. ⁵ At this point the defendant reopened his objection to the use of the testimony from the preliminary examination and alluded to the references to Barber v. Page (1968) 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 found in People v. Johnson, supra, 68 Cal.2d at p. 659, 68 Cal.Rptr. 599, 441 P.2d 111, fn. 9; and see People v. Green, supra, 70 Cal.2d at pp. 659--662, 75 Cal.Rptr. 782, 451 P.2d 422.) The court adhered to its original ruling and then took up the question of the admissibility of the July 5th statement. In response to the defendant's objection predicated upon People v. Johnson, the prosecutor advised the court that her prior extrajudicial statements were offered for impeachment. Some confusion was manifest as to whether or not Johnson precluded the use of such prior inconsistent statements for impeachment, but the court ultimately permitted the prosecutor to interrogate the witness with reference to passages from that statement.

The witness acknowledged that she had read over the statement before taking the stand at the trial, and that a reporter took down the discussion which had evolved as follows: '* * * he (the detective) had a notebook apparently which was made up of statements that I was supposed to have said at the hospital, and we started discussing that.' In response to a question as to whether she was told what to say, she testified as follows: 'After he had gone down over the notes he wrote down, part of them seemed familiar and part did not, and I told him I'd never been in a courtroom and I said, 'What will happen,' and he said, 'You'll be asking the very same statement and apparently you'll be stating them the same way then as you stated today to me.' Q. Did he tell you what to say? A. He did not tell me in the exact words, no, he said we would be discussing what he had wrote down.' She identified the passage referred to (fn. 5 above) as follows: 'I recall of--of answering somewhat to that' but subsequently she stated, 'I will not definitely say that's the way I answered for I do not remember.'

On redirect examination she reiterated that she could or could not have made the statements attributed to her in the July 5th transcript--that she did not remember. She acknowledged that the detective did not tell her what to say at that time. When pressed concerning the question of whether the defendant did, as she had testified at the preliminary hearing, make a statement about what happened to the child she stated, 'Now I--I won't say he did say it and I will not say that he did not say it. He could of or could have not, I don't recall whether he did or not.' When again asked to explain her testimony at the preliminary hearing, she acknowledged that the prosecutor had told her to tell it as she understood it and not by what somebody else told her or advised her to do, but she reiterated that she then answered 'The way that I understood the statements were donw.'

The prosecutor also proposed to introduce evidence of a statement, undisclosed, allegedly made to the victim's paternal aunt. The witness denied seeing or having a conversation with that individual on the night of the incident. When the aunt was called as a witness she testified that the defendant and his wife, unaccompanied by the child, came to her house on the night of June 30th and remained there for 45 minutes or an hour while the defendant repaired the car. The prosecutor was prevented from inquiring into statements made by the defendant's wife, which were allegedly inconsistent with her testimony, on the basis of a prior ruling of the court that they would be cumulative.

The wife acknowledged that she had seen the detective prior to July 5th. The detective testified that he saw that witness at the hospital and conversed with her, but was precluded from testifying as to alleged inconsistent statements made by her in that conversation by the same ruling as was applied to the testimony of the aunt.

The defendant's sole reference to the alleged conversation with his wife on direct examination was to state that he told her that the child 'didn't feel good.' He reiterated this testimony on cross-examination. He was asked the following question, '* * * Mr. Jackson, there's been testimony to the effect that you told your wife something to the effect that you had broken Kathy's cherry?' He answered, 'I do not remember saying any such thing to my wife.' This equivocal denial was followed by a more direct denial of a related question, as follows: 'Q. * * * did you tell Mrs. Jackson that you had had an affair with Kathy?' to which he answered, 'No, I did not.'

In People v. Johnson, supra, 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) the court ruled that the provisions of sections 1235 and 770 of the Evidence Code which purport to permit the prior inconsistent statement of a witness to be used as...