People v. Robinson, Cr. 560

• Decision Date: 08 April 1970
• Docket Number: Cr. 560
• Citation: 86 Cal.Rptr. 56,6 Cal.App.3d 448
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Willie ROBINSON, Defendant and Appellant.

Page 56

86 Cal.Rptr. 56

6 Cal.App.3d 448

The PEOPLE of the State of California, Plaintiff and Respondent, v. Willie ROBINSON, Defendant and Appellant.

Cr. 560.

Court of Appeal, Fifth District, California.

April 8, 1970.

As Modified on Denial of Rehearing May 6, 1970.

Hearing Denied June 5, 1970.

[6 Cal.App.3d 450] Lloyd L. Hicks, under appointment by the Court of Appeal, Visalia, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., by Edsel W. Haws and Thomas W. Kelly, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

GARGANO, Associate Justice.

Appellant was convicted of assault with a deadly weapon, with intent to commit murder, in violation of section 217 of the Penal Code. He appeals from the judgment entered on the jury's verdict.

The facts, when viewed in the light most favorable to respondent, are these: On June 10, 1967, appellant was playing cards in Harry Player's Card Room when an argument broke out between appellant, Sam Richards and Lee Henderson. Richards was running the game, but Lee Henderson was not playing. Afterward, as Henderson was walking away from the card table, he was hit in the back by a bullet from a gun. Henderson turned around, lunged at appellant and was hit two more times. He was taken to the hospital by his brother-in-law, John Bell.

On the same day, Ivan Kennedy gave appellant a ride in his pickup truck. Appellant told Kennedy that he had shot a person. Kennedy took appellant back to the card room, and from there to the 11--11 Club. At the club appellant began to annoy a woman and was asked to leave by Pearl Hardy, the club operator. Appellant told Miss Hardy he 'just had shot one nigger three times' and that he would shoot her and all of her 'God dam men.'

At the trial, Sam Richards testified that he was not involved in an argument with appellant prior to the shooting, that the argument was between appellant and Henderson, and that appellant and Henderson were off by themselves when the shooting started. He said he did not see who fired the shots because he jumped behind a card table. On the other hand, Henderson testified that the argument was between appellant and Richards, and that he told appellant to leave the old man alone. He said that he was shot in the back after he turned to walk away from appellant's table, and was hit two more times as he lunged at appellant.

Appellant denied shooting Henderson or having a gun in his possession at the time of the shooting. He testified that he was having a discussion with Sam Richards about the way Richards was running the card game and that Henderson threatened him and made an obscene remark. He said he blacked out and did not remember anything else that happened except that he heard one shot. Appellant explained that during the previous year he had been struck in the head with a piece of iron while on a construction job, and as a result of this injury had experienced several serious blackouts.

Appellant's main argument for reversal centers on our Supreme Court's pronouncement that section 1235 of the Evidence Code is unconstitutional to the extent that it allows prior inconsistent statements of a witness to be used as substantive evidence, because such use impinges upon a defendant's Sixth Amendment right of confrontation (People v. Johnson, 68 Cal.2d 646, 68 Cal.Rptr. 599, 441 P.2d 111). Specifically, appellant asserts that the trial court committed prejudicial error by admitting into evidence the prior inconsistent statements of the witness John Bell, without limiting the statements to impeachment. Bell testified for the prosecution. He said he heard the shots and saw Henderson grab appellant but denied seeing appellant shoot Henderson. He also denied seeing a gun in appellant's hand. The prosecutor then called Ed Bennett of the county sheriff's office. Bennett testified that Bell told him that appellant had a revolver in his hand and that he saw appellant shoot Henderson with it.

In rebuttal, respondent does not challenge appellant's right to raise the Johnson error in this appeal, even though appellant's trial counsel did not object to the impeachment testimony of request a limiting instruction or admonition; appellant's trial was concluded before the Supreme Court's opinion in Johnson was filed, and he is deemed not to have waived a substantial constitutional right by his counsel's failure to perform what appeared to be a fruitless or idle act (People v. Vinson, 268 Cal.App.2d 672, 675, 74 Cal.Rptr. 340). Respondent insists that the instant case is distinguishable from Johnson because at the conclusion of the trial the trial judge gave the standard instruction which tells the jury that they can consider prior inconsistent statements of a witness in judging the witness' credibility; he did not, as in Johnson, tell the jury that they could consider Bell's inconsistent statement for all purposes. Respondent also argues that it must have been evident to the jury, from the colloquy between defendant's counsel and the prosecutor, that the prosecutor was offering Bell's statement for impeachment purposes only. According to the record, the following transpired:

'MR. DALY: If the Court please, I am going to object to this question as an improper way of getting the prior inconsistent or consistent statement before the jury.

'MR. McGILLIVRAY: He is an impeachment witness, your Honor, to impeach my last witness, which I believe I am permitted to do under the Evidence Code, and it comes in as an exception to the hearsay rule because it is impeachment.

'MR. DALY: I don't object to the testimony as long as it is limited to the question asked of Mr. Bell.

'THE COURT: Yes, you have to limit it to the same alleged statement, Mr. McGillivray.

'MR. McGILLIVRAY: Okay.'

An argument essentially similar to that made by respondent in this case was rejected by the Supreme Court in People v. Odom, 71 A.C. 735, 741, 78 Cal.Rptr. 873, 456 P.2d 145, and we are bound by that decision. ¹ We therefore turn to respondent's contention that the error does not require a reversal of the judgment. But we shall keep in mind that because the error was of 'federal constitutional dimensions,' it is respondent's burden to prove that it was 'harmless beyond a reasonable doubt.' (Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; People v. Johnson, Supra, 68 Cal. 646, 660, 68 Cal.Rptr. 559, 441 P.2d 111.)

We believe that respondent has met this burden. Lee Henderson was shot while he was in Harry Player's Card Room, and there is not a scintilla of evidence even to suggest that someone other than appellant was the culprit. On the other hand, there is persuasive direct evidence that appellant was the one who did the shooting; Henderson testified that after he was hit in the back by the first bullet, he whirled, saw a gun in appellant's hand and heard two more shots as he lunged at appellant. Moreover, the direct evidence is corroborated by impressive circumstantial evidence. Henderson was shot almost immediately after he made an obscene and degrading remark which implied that he was going to force appellant to commit an act of perversion. Although John Bell denied seeing the gun in appellant's hand or seeing appellant shoot Henderson, he nevertheless said that he saw the two men struggling, heard shots and then saw his brother-in-law fall to the floor seriously wounded. On the same day, appellant told Ivan Kennedy that he had shot someone. ² A short time later appellant told Pearl Hardy that he had just shot a Negro and he would shoot her and all her men too. It stretches the imagination to believe that the jury would have reached a different verdict if the trial judge had instructed them to consider Bell's prior contradictory statements for impeachment purposes only.

Appellant's second contention for reversal is that the court erroneously allowed the prosecutor to impeach Ivan Kennedy with inadmissible prior inconsistent statements under the guise that he was trying to refresh the witness' recollection. Kennedy had testified for the prosecution on several other matters and was asked to recount what happened in the 11--11 Club. Kennedy said he did not remember. Then, the prosecutor asked the witness if he recalled talking to him and a district attorney investigator during the previous week and telling them that he heard appellant tell Pearl Hardy, 'I just shot one nigger three times and I will kill you and all your men.' Kennedy did not remember the conversation.

It is the rule of this state that the credibility of a witness may be attacked by any party, including the party calling him, by proof that the witness made an extrajudicial statement inconsistent with any part of his testimony at the trial (Evid.Code, §§ 780(h), 785). The case of People v. Johnson, Supra, 68 Cal.2d 646, 68 Cal.Rptr. 559, 441 P.2d 111, does not impinge on this method of impeachment (People v. Alvarez, 268 Cal.App.2d 297, 73 Cal.Rptr. 753). While the court held in Johnson that the use of a witness' prior inconsistent statements as substantive evidence interferes with a defendant's Sixth Amendment right of confrontation, the court was careful to point out that such extrajudicial statements are admissible for impeachment purposes. Consequently, while we are inclined to agree with appellant's assertion that the prosecutor attempted to impeach the witness Bell by showing that he made an inconsistent statement, we do not agree with appellant's suggestion that the inconsistent statement was inadmissible for impeachment purposes.

The case of Douglas v. State of Alabama, 380 U.S. 415, 419, 85 S.Ct. 1074, 1077, 13 L.Ed.2d 934, upon which appellant relies, is distinguishable. In that case, the witness was defendant's accomplice, and he refused to testify on the ground that his testimony would tend to incriminate him. Then, the prosecutor, under the guise of cross-examination to refresh the witness' recollection, read statements...