People v. Petersen, Cr. 9422

• Decision Date: 02 February 1972
• Docket Number: Cr. 9422
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Terrence M. PETERSEN, Defendant and Appellant.

Page 590

100 Cal.Rptr. 590

23 Cal.App.3d 883

PEOPLE of the State of California, Plaintiff and Respondent, v. Terrence M. PETERSEN, Defendant and Appellant.

Cr. 9422.

Court of Appeal, First District, Division 4, California.

Feb. 2, 1972.

R. Corbin Houchins, San Francisco (by appointment of the Court of Appeal), for defendant and appellant.

Evelle J. Younger, Atty. Gen. of California, Edward P. O'Brien, Robert R. Granucci, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

RATTIGAN, Associate Justice.

Count One of an information charged appellant Terrence M. Petersen with possession of an explosive (dynamite) in violation of Health and Safety Code section 12305; Count Two, with reckless possession of the explosive, 'in and near a public building and private habitation,' in violation of Health and Safety Code section 12304. ¹ A jury having found him guilty on both counts, he appeals from the judgment of conviction.

The following facts are not disputed: The explosive in question was found on September 23, 1969, in a ground-level garage which was part of a multiple-building apartment complex in Berkeley. The garage was open and available, for storage purposes, to tenants of the complex. The tenants included appellant, who lived in an apartment above the garage; Frederick M. Connolly; and Arthur J. Roth, who was an Oakland Police Department trainee in September, 1969 (and who was an officer thereof at the time of trial). ²

Called by the People, Roth testified as follows: On September 23, in a driveway near the garage, he engaged in a conversation with Connolly and Saunders. Appellant was not present. In the course of the conversation (which Roth did not quote at this juncture), his attention was directed to the garage. Entering it with Saunders, he looked in a 'desk drawer,' ³ saw several 'sticks' labeled 'Explosive' ⁴ and some fuse material, and seized them. He showed the dynamite to Connolly, conversed with him about it (again, Roth did not quote the conversation at this point), and delivered it to the Berkeley police.

As pertinent here, the next prosecution witness was Connolly. He was notably reluctant to testify (he had attempted to avoid service of a subpoena upon him, and appeared in court only after a bench warrant had been issued for his arrest), and it may fairly be stated that his testimony was contradictory in some respects and uniformly evasive, equivocal and dissembling. Under direct examination by the prosecutor, Connolly first testified to the jury as follows: About two or three weeks prior to September 23, he and appellant had been 'talking to some people.' During that conversation, appellant 'threw in something about dynamite or explosives or something in a joking manner.' Connolly did not now recall that appellant said it was 'his' (appellant's) dynamite or that he 'said it was his dynamite that was in the garage.'

At this point, and pursuant to Evidence Code section 1235, ⁵ the prosecutor commenced to lay a foundation for proof of prior inconsistent statements, by Connolly, as to what appellant had said about the dynamite prior to September 23. Connolly first admitted that he had given a signed statement to Inspector Bergfeld, of the Berkeley Police Department, on September 24. In Voir dire proceedings then conducted before the court alone, and in further testimony to the jury, Connolly testified that his present recollection of the pre-September 23 conversation was 'vague' and 'very limited.' Under both direct and cross-examination, he changed and rechanged his account of the conversation, successively testifying that he could not recall whether it was appellant or someone else who had mentioned dynamite, nor whether appellant had said anything at all at the time; next, that appellant had in fact 'mentioned something . . . explosives or dynamite' during the conversation; again, that he (Connolly) could not 'specifically' remember who had mentioned dynamite, nor 'any mention about where any explosives or dynamite was being kept'; and, finally, that he did not 'know' whether appellant had told him that he (appellant) had dynamite in the garage.

Connolly also gave the following testimony concerning the other events indicated: (1) He again admitted giving and signing the police statement on September 24, and that its contents conformed to his recollections at the time. He denied, however, that it refreshed his present recollection of the pre-September 23 conversation (to which the police statement referred, as will appear). (2) In the driveway conversation on September 23, it 'must have been the case' that it was he who 'mentioned something about there being explosives in the garage.' (3) He had a 'vague' recollection of having said, after the dynamite was discovered, 'Jesus Christ, he wasn't kidding,' and that he 'must have been' referring to appellant. (4) He remembered having had a second conversation with Roth, at his (Connolly's) home on 'the next night or something,' and that 'it had something to do with what had just occurred' and the dynamite, but he could not recall what he had said to Roth at the time. ⁶

As a result of his testimony, the prosecution called Inspector Bergfeld, and recalled Arthur Roth, for the purpose of proving Connolly's prior inconsistent statements pursuant to Evidence Code section 1235. (See fn. 5, ante.) Inspector Bergfeld testified that he interviewed Connolly on September 24 concerning the dynamite and its discovery, and that Connolly's responses were reduced to a typewritten statement which he (Connolly) signed. Two paragraphs of the statement were read to the jury; the same portion, showing Connolly's signature, was admitted in evidence as a document. ⁷

Roth gave this testimony when recalled to the stand: On September 23, after the dynamite had been found in the garage and Connolly had seen it, Connolly said in Roth's presence 'Jesus Christ, he wasn't kidding,' that '(t)his is Terry's (appellant's) shit,' and that 'he (Connolly) had asked Terry and Terry said it was his.' Over an objection by defense counsel, ⁸ Roth was also permitted to testify to a second conversation with Connolly, at the latter's apartment on the night of September 23, in which Connolly said that he (Connolly) 'was informed that it (the dynamite) was there and that he . . . asked Terry, . . . and that Terry said that it was his and that he was going to remove it from the garage. . . . He said he'd get rid of it.'

The cause went to the jury on the foregoing evidence; appellant did not testify, and offered no evidence in his defense. None of his contentions on appeal can be sustained; we affirm the judgment of conviction.

The Hearsay Testimony

Appellant first contends that his conviction rests entirely upon 'inadmissible hearsay.' It is true that the only evidence associating him with possession of the dynamite consisted of his pre-September admission thereof as related by Connolly. It is also true that his admission was proved, in effect, by the testimony of Bergfeld and Roth, which was hearsay evidence. (Evid.Code, § 1200, subd. (a); Witkin, California Evidence (2d ed. 1966 (hereinafter cited as 'Witkin')) § 445, p. 418.) We reject the 'inadmissible hearsay' contention, however, because (1) the evidence was admissible by constitutional standards and under Evidence Code section 1235 as well, and (2), this being so, appellant waived any objection thereto.

Where the prior inconsistent statement of a person is admitted in a criminal case, pursuant to Evidence Code section 1235, the defendant is not denied the right of confrontation guaranteed him by the Sixth Amendment, and is not denied due process under the Fourteenth Amendment, if the declarant testifies at the trial and is thus available for cross-examination. (California v. Green (1970) 399 U.S. 149, 158, 164, 90 S.Ct. 1930, 26 L.Ed.2d 489; People v. Green (1971) 3 Cal.3d 981, 985, 92 Cal.Rptr. 494, 479 P.2d 998.) This is so unless the declarant shows such 'apparent lapse of memory,' at the trial, as to affect the defendant's cross-examination opportunities to the point that his Sixth Amendment right of confrontation is violated by admission of the prior inconsistent statement. (California v. Green, supra, 399 U.S. at pp. 168--169, 90 S.Ct. 1930; People v. Green, supra, 3 Cal.3d at pp. 989--990, 92 Cal.Rptr. 494, 479 P.2d 998.) The perceptible character of the witness' 'apparent lapse of memory' also poses the question (which is not of constitutional dimensions) whether the prior statement is admissible under state law because it is in fact 'inconsistent' with his trial testimony. (People v. Green, supra, at pp. 985--989, 92 Cal.Rptr. 494, 479 P.2d 998. See California v. Green, Supra, 399 U.S. at p. 170 (fn. 19), 90 S.Ct. 1930).

As previously indicated, Connolly was examined and cross-examined concerning his prior extrajudicial statements. Although he professed varying degrees of memory lapse, he admitted that he had in fact made the various statements attributed to him by Bergfeld and Roth; his 'apparent lapse of memory' affected only his recollection of their details. He was cross-examined at length and without limitation concerning them, and the jury was able to examine and evaluate his demeanor as a witness. 'The prescribed purposes of the confrontation clause being thus fulfilled,' we conclude that his extrajudicial statements to Bergfeld and Roth were admissible 'insofar as the Sixth Amendment is concerned.' (People v. Green, supra, 3 Cal.3d 981 at pp. 989--991, 92 Cal.Rptr. 494 at p. 500, 479 P.2d 998 at p. 1004.) Thus, no constitutional objection thereto was available to appellant.

Connolly's testimony concerning appellant's extrajudicial statement (as made prior to September 23, according to the prosecution) was typically evasive and equivocal, and he (Connolly) was shown to have been a reluctant witness from the outset. Moreover, his 'apparent lapse of memory' was not total: despite...