People v. Johnson

• Decision Date: 11 June 1974
• Docket Number: Cr. 11567
• Citation: 39 Cal.App.3d 749,114 Cal.Rptr. 545
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Floyd S. JOHNSON, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 545

114 Cal.Rptr. 545

39 Cal.App.3d 749

PEOPLE of the State of California, Plaintiff and Respondent, v. Floyd S. JOHNSON, Defendant and Appellant.

Cr. 11567.

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

June 11, 1974.

Hearing Denied Aug. 14, 1974.

Larry Sleizer, Menlo Park, for defendant and appellant (under appointment of the Court of Appeal).

Evelle J. Younger, Atty. Gen. of Cal., Jack R. Winkler, Chief Asst. Atty. Gen.--Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Herbert F. Wilkinson, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

KANE, Associate Justice.

Defendant Floyd S. Johnson appeals from a judgment of conviction entered after the jury found him guilty of second degree murder.

On September 17, 1972, between 6 and 7 p.m., Charles Stark ('Stark') was stabbed to death by appellant in a parking lot adjacent to the Riviera Apartments on McCreery Avenue, San Jose. The altercation which resulted in the stabbing started due to Stark's failure to pick appellant up in the car. Although Stark did not threaten him, appellant slapped Stark several times. Without offering resistance, Stark first backed away, but when appellant continued slapping him, Stark fought back. This was the moment when the fatal struggle began. Appellant attacked Stark with a knife. Stark retreated, and in defense against the knife, took off his coat and wrapped it round his arm. Notwithstanding this defensive measure, Stark was stabbed by appellant three or four times. Although Stark was mortally wounded and dying, appellant continued kicking him until others pulled him away. When Stark was placed into a car to be taken to the hospital, appellant got into the car and beat the unconscious man with a tire iron. The coroner's testimony revealed that Stark's death was caused by a knife wound which penetrated about 2 1/2 inches into his breastbone, piercing his heart.

The testimony was conflicting as to almost all aspects of the case. Thus, for example, while there was detailed evidence that appellant acted normally and did not, by his actions, evidence intoxication, there was also testimony indicating that appellant was 'loaded' or 'wasted' due to the ingestion of secobarbital and alcohol. However, Officer Demkowski, who arrested appellant about six hours after the killing, testified that at the time of arrest appellant appeared coherent, showed no sign of intoxication, and admitted being in the fight contending it occurred because of a $6--7 debt owed by Stark to appellant. The laboratory report indicated that at 1:30 a.m. the next morning appellant's urine showed the presence of morphine, his blood contained four parts per million secobarbital, but no alcohol at all. It was possible, however, that the secobarbital had been taken after the fight.

Expert psychiatric testimony was also conflicting. Dr. Rapaport, testifying for the prosecution, examined appellant the day after the fight and found no memory damage, no mental disease or defect, and nothing to have precluded appellant from forming either malice aforethought or specific intent to kill Stark. He expressed the view that a person who had taken gross amounts of depressants (secobarbital is a depressant) would not remember the fight; indeed such a person would have lacked the requisite control of his muscles to enable him to fight at all. In his opinion, appellant did not consume enough drug and/or alcohol to have obliterated his consciousness and memory. Dr. Rapaport's testimony was corroborated by Brian Smith Finkle, a forensic toxicologist, who stated that if both secobarbital and alcohol are taken in large amounts, the user would not be capable of winning a fight or talking about it afterward, as appellant did here. On the other hand, Dr. Tempey, testifying for the defense, opined that there was a probability that appellant was so intoxicated as to render him incapable of forming intent to kill or malice aforethought. He expressed the opinion that appellant's mental capacity to form intent to kill or to entertain malice aforethought was diminished.

Although the testimony of eyewitnesses was contradictory as to the origin of the knife used to kill Stark and its actual use in the fight, there was overwhelming evidence that appellant possessed the knife before the struggle started.

There was additional evidence introduced to show that the genesis of the fight between appellant and Stark occurred in February 1972, at which time they quarrelled and fought over their respective girl friends. Similarly, evidence was presented proving appellant's state of mind after the fight. Accordingly, appellant bragged that he did not care if Stark died, and emphasized that he would not have pulled the knife unless he meant to use it.

Taking the witness stand on his own behalf, appellant testified that he had not carried a knife; did not have a knife in his hand when the fight started; and did not know how he got the knife. He maintained that his brain 'exploded,' that he did not remember what happened during the fight, and, in particular, he did not remember stabbing Stark.

Right to Confrontation

Appellant first contends on appeal that his statutory and constitutional right to confront witnesses was violated because the prosecution failed to exert due diligence to secure the trial attendance of witness Sullivan and, instead, his testimony given at the preliminary hearing was read into evidence. Appellant's position is not well taken.

Undeniably, in our legal system, a criminal defendant has a right to confront witnesses against him (U.S.Const., 6th Amend.; Pen.Code, § 686). However, the defendant's right to confrontation is not absolute. In Barber v. Page (1968) 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255, the United States Supreme Court recognized that 'there has traditionally been an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant,' but held that a witness is not "unavailable" under this exception 'unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.' (P. 725, 88 S.Ct. p. 1322; see also People v. Rinegold (1970) 13 Cal.App.3d 711, 718, 92 Cal.Rptr. 12.)

The California statutory provisions are in harmony with the foregoing principles. Penal Code, section 686, provides in pertinent part that in a criminal action the defendant is entitled to produce witnesses on his behalf and to be confronted with the witnesses against him in the presence of the court, except that hearsay evidence may be admitted to the extent that is otherwise admissible in criminal actions under the law of this state. Providing for the exception to the hearsay rule, Evidence Code, ¹ section 1291, subdivision (a), sets forth so far as pertinent that 'Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: . . .

'(2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.' (Emphasis added.)

Under statutory definition, "unavailable as a witness" means that the declarant is 'Absent from the hearing and the proponent of his statement has exercised reasonable diligence but has been unable to procure his attendance by the court's process' (§ 240, subd. (a)(5)). At the same time the cases underscore that the interest and motive for the cross-examination of the prosecution witness at the preliminary hearing and at the trial are similar, notwithstanding that the cross-examination at the preliminary hearing may, by the very nature of that proceeding, be less reaching than at the trial (People v. Benjamin (1970) 3 Cal.App.3d 687, 695, 83 Cal.Rptr. 764; People v. King (1969) 269 Cal.App.2d 40, 47, 74 Cal.Rptr. 679).

The pertinent factors to be considered as to whether the requirements of Barber v. Page, supra, and the California statutes have been met were summarized in People v. Benjamin, supra, 3 Cal.App.3d at page 696, 83 Cal.Rptr. at page 768, as follows: '. . . it is not enough to show that the witness is unavailable, that his testimony is necessary at the trial, and that the witness was cross-examined at the preliminary hearing as provided in Evidence Code, section 1291. The burden is on the prosecution to show that it made a good faith effort, with reasonable diligence, to procure the attendance of Guthrie at the trial. (People v. Ward, 105 Cal. 652, 656, 39 P. 33; People v. Horn, 225 Cal.App.2d 1, 4, 36 Cal.Rptr. 898; see People v. Nieto, 268 Cal.App.2d 231, 239, 73 Cal.Rptr. 844.) In establishing 'due diligence' it is not enough to show that the witness has not been found, but there must be evidence of a substantial character to support the conclusion of due diligence. (People v. Redston, 139 Cal.App.2d 485, 494, 293 P.2d 880; People v. Banks, 242 Cal.App.2d 373, 376, 51 Cal.Rptr. 398.) It contemplates something more than a desultory and indifferent search, but connotes persevering application and untiring efforts in good earnest. (People v. McDonald, 66 Cal.App.2d 504, 509, 152 P.2d 448; People v. Redston, Supra; People v. Horn, Supra, 225 Cal.App.2d at [39 Cal.App.3d 756] p. 5, 36 Cal.Rptr. 898.) The term 'due diligence' is, however, 'incapable of a definition so mechanical and precise as to constitute a rule of thumb' (People v. Horn, supra, at p. 5, 36 Cal.Rptr. 898, at p. 901), and is largely within the discretion of the trial court, and depends upon the facts and circumstances of each particular case. (People v. Cavazos, 25 Cal.2d 198, 200--201, 153 P.2d 177; People v. Banks, supra; People v. Horn, supra.)' (Emphasis added. Accord: People v. Rinegold, supra, 13...