People v. Pierce

• Decision Date: 27 January 1969
• Docket Number: Cr. 4699
• Citation: 75 Cal.Rptr. 257,269 Cal.App.2d 193
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Johnny PIERCE, Sr., Defendant and Appellant.

Page 257

75 Cal.Rptr. 257

269 Cal.App.2d 193

The PEOPLE of the State of California, Plaintiff and Respondent, v. Johnny PIERCE, Sr., Defendant and Appellant.

Cr. 4699.

Court of Appeal, Third District, California.

Jan. 27, 1969.

As Modified Feb. 18, 1969.

Hearing Denied March 26, 1969.

Thomas C. Lynch, Atty. Gen., by Gordon F. Bowley and Jack Winkler, Deputy Attys. Gen., Sacramento, for plaintiff-respondent.

Baird B. McKnight, Carmichael, Court Appointed Counsel, for defendant-appellant.

FRIEDMAN, Associate Justice.

Defendant appeals from the judgment after a jury found him guilty of violating Penal Code, section 288. Essentially, the charge was sexual misconduct between defendant and L, his 13-year-old stepdaughter, and T, his 10-year-old stepson, on the night of November 6, 1966. The two children testified that on that night defendant had sexual relations with L and forced her into acts of oral copulation with him and T.

L testified that defendant had indulged in sexual relations with her for several years. N, the 18-year-old sister of L, no longer living in the home, testified that defendant had engaged in sexual relations, including oral activity, with her when she was 11 years old and for several years thereafter. Defendant charges in very general terms that this evidence was irrelevant and 'inflammatory.'

There was no defense objection to the testimony of prior sexual misconduct, hence the evidentiary claim will not be entertain on appeal. (Witkin, Cal.Evidence (2d ed.) § 1285.) Defendant's trial counsel was apparently satisfied (and quite properly so) that L's description of similar misconduct was admissible under such cases as People v. Kelley, 66 Cal.2d 232, 57 Cal.Rptr. 363, 424 P.2d 947, and People v. Sylvia, 54 Cal.2d 115, 4 Cal.Rptr. 509, 351 P.2d 781, that her sister's narration of a similar pattern of activity was admissible under such cases as People v. Covert, 249 Cal.App.2d 81, 57 Cal.Rptr. 220. ¹

Defendant's reliance upon People v. Stanley, 67 Cal.2d 812, 63 Cal.Rptr. 825, 433 P.2d 913, is misplaced. There the defendant was charged with misbehavior with two boys and convicted solely on the testimony of one of them, who testified to other offenses practiced upon both. The boy's testimony of the other offenses was uncorroborated and added nothing to his credibility. Thus its prejudicial effect outweighed its probative value. In this case both victims testified under circumstances in which the credibility of each was challenged. Each corroborated the other and each was corroborated by the testimony of their elder sister. In this case the evidence of prior misbehavior had high probative value.

The trial was featured by evidence of defendant's aggressive and violent behavior toward other members of the family. Another feature was evidence concerning the shooting of Ruda Pierce (wife of defendant and mother of L and T) earlier in the evening of the offense. A little after 8 p.m. Mrs. Pierce suffered a seemingly accidental gunshot wound while handing defendant a pistol she had just cleaned. Police arrived about 8:30 p.m. and took her to the hospital. About 9:30 p.m. defendant's brother, Art Pierce, arrived, together with his wife Carrie and five children. Also was present was Mrs. Easley, defendant's mother, who lived in the household. The Art Pierce family stayed the whole night in defendant's house.

The trial theory of the defense was two-fold: (1) Defendant was bedridden because of a spinal operation approximately five weeks earlier, had a heavily taped back, had to use a bedpan and was physically incapable of being the active partner in sexual intercourse. (2) Although defendant had in his room the hospital bed which he occupied and the double bed ordinarily occupied by his wife, he was alone in his room on the night of the offense, the double bed was empty and both L and T slept in their own room with some of Art Pierce's children. An orthopedic surgeon confirmed the back operation and expressed the opinion that sexual intercourse would have caused back pain and muscle spasm. Defendant denied sexual activities with L, T and their elder sister and testified that the two children had not occupied the bed in his room on the night in question.

According to their testimony Art and his wife remained up all night. One of them would enter defendant's bedroom from time to time during the night to see if he needed anything and each time found him alone. There were two bedrooms in the house, one occupied ordinarily by defendant and Ruda, the other occupied by the children. There was a connecting bathroom between the two bedrooms.

L, the prosecuting witness, and N, her elder sister, testified that defendant drank heavily, beat and threatened members of his family. Defendant now assigns this evidence as error. The evidence was relevant to support the witnesses' testimony that defendant had forced them to submit to his sexual demands. This claim of error represents nothing more than a disagreement between defendant's appeal counsel and his trial counsel. The latter did not object to this admissible evidence and it cannot be challenged on appeal.

Defendant's mother Mrs. Easley, his brother Art, sister-in-law Carrie, and the latters' 14-year-old daughter Alice, were defense witnesses. All testified on direct examination to their presence in the house on the night of November 6. Each testified that L and T had slept in their own room with the Art Pierce children, that defendant had been in his own bed all night and had not gotten up. None of these witnesses testified on direct examination to defendant's general behavior, violent or otherwise. In cross-examining these witnesses, the deputy district attorney was permitted, over objection, to ask whether each had later made certain statements to investigating police officers. Each witness denied having told the officers that defendant was habitually violent, had become enraged on the night of November 6, had arisen from bed and chased his mother through the house, had hurled a knife which stuck in a door and had threatened to knife anyone who left.

Having elicited these denials on cross-examination, the prosecution called two police officers as rebuttal witnesses. These officers testified that they had interviewed the members of the Pierce family as a result of a child molestation complaint against defendant. One officer, Sergeant Stark, testified that Art and Carrie Pierce had told him that on the night in question defendant had threatened his mother with a hunting knife, chased her through the house, threw the knife (which struck in a door), had ordered no one to leave the house; that at other times defendant had made sexual advances to their daughter Alice; that L had complained to them of sexual advances by defendant. Sergeant Stark stated that Art Pierce had told them of defendant's frequent violent behavior and had expressed fear of him.

Sergeant Stark and a woman police investigator, Officer Cracraft, had interviewed Alice Pierce, the daughter of Art and Carrie. These officers now testified to extrajudicial revelations which, on cross-examination, Alice had denied making. According to the officers Alice had told them of sexual advances toward herself by defendant; had told of L's complaints to her of sexual molestation; had related that during the night in question L had asked her to come into her bed in the same room as defendant, because she was afraid of defendant; that while Alice was in defendant's bedroom with L, defendant had displayed his private parts and indulged in obscene remarks and gestures; that earlier that night defendant had threatened the others with a hunting knife if they attempted to leave the house.

Defendant now enumerates the transcript pages on which references to these extrajudicial statements appear, charging generally that these pages contain irrelevant 'inflammatory' evidence. The People justify this evidence on the theory of impeachment by prior inconsistent statements and as proof of defendant's physical ability to perform the acts charged.

Although the defense had objected unsuccessfully to the foundational cross-examination in which the prosecutor had elicited the defense witnesses' denials of statements to the officers, there was no defense objection to the officers' testimony narrating the contents of these statements. ² Thus the trial record does not reveal the theory on which the prosecution offered these statements. The prosecutor's approach supports the view that he was bent upon impeachment, eliciting on cross-examination the witnesses' denials of statements to the officers, then calling the latter to relate prior statements inconsistent with the cross-examination. Under current California law, a trial court has discretionary power to permit impeachment, albeit on somewhat collateral matters extracted on cross-examination. (Evid.Code, §§ 351--352; see Law Revision Com. Comment to Evid.Code, § 780; Witkin, Cal.Evidence (2d ed.) §§ 1224, 1259; cf. People v. Burton, 55 Cal.2d 328, 352--353, 11 Cal.Rptr. 65, 359 P.2d 433.)

An alternative theory is impeachment by evidence of the witnesses' bias in favor of the accused, their close relative. A witness may be impeached by evidence of bias. (Evid.Code, § 780, subd. (f).) 'It is always proper for a party against whom a witness has given damaging testimony to show out of the mouth of the witness himself, if he can, or by other sources, if necessary, that such witness has an unusual interest in the outcome of the case * * *.' (People v. Sacramento Butchers' Protective Assn., 12 Cal.App. 471, 494, 107 P. 712, 722, quoted in Witkin, Cal.Evidence (2d ed.) § 1230; see also 3 Wigmore on Evidence (3d ed.) § 948 et seq.) Defense witnesses, Mrs. Easley, Art and Carrie Pierce and their daughter Alice, all close relatives of defendant, had testified that they had been in the house all night, during which time the two supposed victims of defendant's lust...