People v. Johnson, Cr. 11964

CourtUnited States State Supreme Court (California)
Writing for the CourtMOSK; TRAYNOR
Citation441 P.2d 111,68 Cal.Rptr. 599,68 Cal.2d 646
Parties, 441 P.2d 111 The PEOPLE, Plaintiff and Respondent, v. Edwin C. S. JOHNSON, Defendant and Appellant.
Decision Date28 May 1968
Docket NumberCr. 11964

Page 599

68 Cal.Rptr. 599
68 Cal.2d 646, 441 P.2d 111
The PEOPLE, Plaintiff and Respondent,
v.
Edwin C. S. JOHNSON, Defendant and Appellant.
Cr. 11964.
Supreme Court of California,
In Bank.
May 28, 1968.
Rehearing Denied June 26, 1968.

Page 600

[441 P.2d 112] [68 Cal.2d 647] Robert Nareau, Woodland, under appointment by the Supreme Court, and Young & Nareau, Woodland, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Edsel W. Haws and Arnold O. Overoye, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

This appeal from a judgment of conviction of incest (Pen.Code, § 285) presents the important question whether section 1235 of the new Evidence Code, making prior inconsistent statements of a witness admissible For the truth [68 Cal.2d 648] of the matters therein asserted, violates the Sixth Amendment's guarantee of the right of confrontation when introduced against a defendant in a

Page 601

[441 P.2d 113] criminal prosecution. We conclude that the statute cannot constitutionally be so applied, and that it was prejudicial error to do so in the case at bar.

The chronology of events is as follows: On February 7, 1964, defendant's wife and 15-year-old daughter Elaine appeared under subpoena before the Yolo County Grand Jury. Defendant, of course, was neither present in person nor by counsel. Elaine testified that defendant engaged in an act of sexual intercourse with her on January 11, 1964, and on a number of earlier occasions; Mrs. Johnson testified that at various times she was present when her husband and Elaine participated in sex play, and acts of intercourse could have taken place. The grand jury returned an indictment charging defendant with incest committed on January 11, 1964. He first entered a plea of guilty; after he had served some two years and eight months in prison, his plea was set aside by order of the federal district court because of constitutionally inadequate representation of counsel. Upon rearraignment defendant entered a plea of not guilty, and the cause went to trial in January 1967.

The prosecution's principal witnesses were to be Elaine and Mrs. Johnson. When called to the stand, however, both recanted and flatly denied that the alleged acts of sexual intercourse had taken place. In particular, Elaine testified that on January 11, 1964, defendant touched her breasts and private parts and she masturbated him, but that she did not engage in sexual intercourse with him on that or any other date. The prosecutor was then allowed to read, in the presence of the jury, those portions of the transcript of Elaine's testimony before the grand jury in which she asserted she had intercourse with defendant on the night in question and the prior occasions. Elaine testified that her grand jury testimony was not true, explaining that it was given when she was only 15 years old and under great emotional stress; that she had become angry at and afraid of defendant because he had severely beaten both her and her mother; that after defendant was arrested on a wife-beating charge the district attorney suggested to her that if she would 'play our game' defendant would be committed to a psychiatric hospital for treatment, but if she refused, 'he will come home and next time anything happens we are not going to help you.'

On cross-examination Elaine testified that she had also [68 Cal.2d 649] become incensed at defendant because in the previous November he had falsely accused her of being involved in a high school sex and narcotics ring, caused her to be physically examined by health authorities for evidence of such activities, and reported this alleged misconduct to the district attorney.

Over defendant's objection, the transcript of Elaine's testimony before the grand jury was admitted into evidence.

When Mrs. Johnson was called to the stand she testified that she had no knowledge of any sexual activities having occurred between defendant and Elaine. Again the prosecutor was allowed to read portions of the testimony given by Mrs. Johnson before the grand jury, in which she described both observing and participating in such activities. Mrs. Johnson testified that her grand jury testimony was not true, explaining that at the time she related it she harbored feelings of jealousy and vindictiveness towards defendant; that she believed he was in need of psychiatric treatment; that the district attorney advised her a simple wife-beating charge would not suffice to have defendant committed to a mental hospital, and 'it would be necessary for me to show that my husband had committed an incestuous act with my daughter.' She added that she had been reluctant to so testify but was repeatedly coached by the district attorney prior to the grand jury hearing, and that during the period of defendant's imprisonment on his invalid plea of guilty she frequently informed the authorities by affidavit that he had not in fact committed any acts of sexual intercourse with Elaine.

Pressed further, Mrs. Johnson conceded that another reason why she had wanted to

Page 602

[441 P.2d 114] have defendant removed from their home was her desire to pursue a budding illicit relationship with a certain family acquaintance, and that the beating she received from defendant on the night of January 15, 1964, was provoked by her admission of this clandestine affair. She acknowledged that she thereupon took refuge at the county receiving home managed by Mrs. Joanne Griffis, but her testimony as to whether she told Mrs. Griffis of any sexual misconduct by defendant was equivocal. 1 She further testified that the idea of accusing defendant of incest was planted in [68 Cal.2d 650] her mind a few days later by Lieutenant Gorman, an investigator for the sheriff's office, who assertedly told her that defendant had made a confession of that crime.

Again over defendant's objection, the transcript of Mrs. Johnson's testimony before the grand jury was admitted into evidence.

Lieutenant Gorman then testified that at an interview on January 16, 1964, Elaine stated to him that she had engaged in sexual intercourse with defendant on January 11 and a number of earlier occasions. He further testified that at an interview on January 17, Mrs. Johnson stated to him that she had observed and participated in sexual activities involving Elaine and defendant. He denied telling Mrs. Johnson that defendant had confessed to the offense of incest.

Mrs. Griffis testified that during the night of January 15, 1964, Mrs. Johnson came to her home and said she had discovered that defendant and Elaine were having intimate relations, and that she herself had subsequently participated in such activities. According to Mrs. Griffis, Mrs. Johnson was in a bruised and frightened condition but appeared neither 'vindictive' nor 'hateful.'

Finally, Thomas Purtell, who had been district attorney at the time of the events in question, testified that prior to the grand jury hearing he had numerous interviews with Mrs. Johnson and Elaine in which both gave him statements similar to their subsequent grand jury testimony. He denied making any suggestions that they testify falsely, or any promises that if defendant were convicted he would receive psychiatric treatment. He acknowledged, however, that throughout these interviews Mrs. Johnson displayed fear of defendant and a concern that he receive such treatment. Similar testimony was given by James Calloway, who had been Mr. Purtell's deputy during this period.

Section 1235 of the new Evidence Code, effective January 1, 1967, provides: 'Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.' 2 Section 1235 thus abrogates the formerly well-settled rule that a prior inconsistent statement of a witness is admissible only for the limited purpose of impeachment (e.g., People v. Orcalles (1948) 32 Cal.2d 562, 572--573, 197 P.2d 26; People v. Ballard[68 Cal.2d 651] (1963) 218 Cal.App.2d 295, 309, 32 Cal.Rptr. 233), and declares such a statement to be substantive evidence of the truth of the matters therein asserted. It is, in short, a new statutory exception to the hearsay rule. 3

Page 603

[441 P.2d 115] The trial court ruled that section 1235 governed in this case, and instructed the jury that 'testimony given by a witness at a prior proceeding has been read to you from the reporter's transcript of that proceeding. You are to consider such testimony in the same light and in accordance with the same rules which you have been given as to testimony of witnesses who have testified here in court.' Although this instruction (CALJIC No. 37 (rev.)) was technically inapposite because it relates rather to the 'former testimony' exception to the hearsay rule, it did serve to present the prosecution's theory that the grand jury testimony of Elaine and Mrs. Johnson was admissible for the truth of the matters therein asserted. 4

Defendant contends that by authorizing the use of the prior inconsistent statements of Elaine and Mrs. Johnson as substantive evidence of his guilt, section 1235 deprived him of his right of confrontation guaranteed by the Sixth Amendment to the United States Constitution. 5

We begin with Pointer v. State of Texas (1965) 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. In that case a preliminary hearing was held at which one Phillips, chief witness for the prosecution, identified Pointer as the man who had robbed him at gun-point; Pointer, for whom counsel had not been appointed, did not cross-examine. Phillips thereafter left the jurisdiction permanently, and at the trial for robbery the prosecution was allowed to introduce a transcript of his [68 Cal.2d 652] former testimony as evidence against the defendant. Pointer's claim of a denial of his right of confrontation was rejected by the trial court on the ground, in part, that his physical...

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100 practice notes
  • People v. Ashford, Cr. 6324
    • United States
    • California Court of Appeals
    • September 16, 1968
    ...(Cf. People v. Redston (1956) 139 Cal.App.2d 485, 494--496, 293 P.2d 880; and see People v. Johnson (1968) 68 A.C. 674, 680--682, 68 Cal.Rptr. 599, 441 P.2d Gordon testified that he parked his car to go to a restaurant for a sandwich. He denied he told defendant that he was looking for a wo......
  • Lance W., In re, Cr. 23551
    • United States
    • United States State Supreme Court (California)
    • February 1, 1985
    ...is not competent evidence in civil or criminal cases is unquestionable." The court confirmed this proposition in People v. Johnson (1968) 68 Cal.2d 646, 657, 68 Cal.Rptr. 599, 441 P.2d 111, [37 Cal.3d 892] emphasizing, however, that the power "remains subject to the restrictions placed upon......
  • People v. Simms, Cr. 7463
    • United States
    • California Court of Appeals
    • August 6, 1970
    ...v. Graham, supra, 71 A.C. 320, 347, 78 Cal.Rptr. 217, 455 P.2d 153), and they apply both to inconsistent statements (People v. Johnson, 68 Cal.2d 646, 658--659, 68 Cal.Rptr. 599, 441 P.2d 111) and consistent statements. (People v. Washington, supra, 71 A.C. at pp. 1120--1121, 80 Cal.Rptr. 5......
  • People v. Washington, Cr. 11991
    • United States
    • United States State Supreme Court (California)
    • September 16, 1969
    ...right of confrontation guaranteed to him by the Sixth Amendment to the United States Constitution. Relying upon People v. Johnson (1968) 68 Cal.2d 646, 68 Cal.Rptr. 599, 441 P.2d 111, defendant argues that the rule we announced in that case with reference to the admission of prior Inconsist......
  • Request a trial to view additional results
100 cases
  • People v. Ashford, Cr. 6324
    • United States
    • California Court of Appeals
    • September 16, 1968
    ...(Cf. People v. Redston (1956) 139 Cal.App.2d 485, 494--496, 293 P.2d 880; and see People v. Johnson (1968) 68 A.C. 674, 680--682, 68 Cal.Rptr. 599, 441 P.2d Gordon testified that he parked his car to go to a restaurant for a sandwich. He denied he told defendant that he was looking for a wo......
  • Lance W., In re, Cr. 23551
    • United States
    • United States State Supreme Court (California)
    • February 1, 1985
    ...is not competent evidence in civil or criminal cases is unquestionable." The court confirmed this proposition in People v. Johnson (1968) 68 Cal.2d 646, 657, 68 Cal.Rptr. 599, 441 P.2d 111, [37 Cal.3d 892] emphasizing, however, that the power "remains subject to the restrictions placed upon......
  • People v. Simms, Cr. 7463
    • United States
    • California Court of Appeals
    • August 6, 1970
    ...v. Graham, supra, 71 A.C. 320, 347, 78 Cal.Rptr. 217, 455 P.2d 153), and they apply both to inconsistent statements (People v. Johnson, 68 Cal.2d 646, 658--659, 68 Cal.Rptr. 599, 441 P.2d 111) and consistent statements. (People v. Washington, supra, 71 A.C. at pp. 1120--1121, 80 Cal.Rptr. 5......
  • People v. Washington, Cr. 11991
    • United States
    • United States State Supreme Court (California)
    • September 16, 1969
    ...right of confrontation guaranteed to him by the Sixth Amendment to the United States Constitution. Relying upon People v. Johnson (1968) 68 Cal.2d 646, 68 Cal.Rptr. 599, 441 P.2d 111, defendant argues that the rule we announced in that case with reference to the admission of prior Inconsist......
  • Request a trial to view additional results

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