People v. Smith

• Decision Date: 16 February 1970
• Docket Number: Cr. 16856
• Citation: 4 Cal.App.3d 403,84 Cal.Rptr. 412
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Ernest SMITH, Defendant and Appellant.

Page 412

84 Cal.Rptr. 412

4 Cal.App.3d 403

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ernest SMITH, Defendant and Appellant.

Cr. 16856.

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

Feb. 16, 1970.

Hearing Denied April 15, 1970.

[4 Cal.App.3d 405] Charles Hollopeter, Pasadena, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., James H. Kline, Deputy Atty. Gen., for plaintiff and respondent.

WRIGHT, Associate Justice.

By information defendant Ernest Smith was charged with the murder of Louis Michael Turpin, a violation of Penal Code section 187. On November 14, 1968, after arraignment and entry by defendant of a plea of 'not guilty', on motion of defendant the cause was set for trial for January 6, 1969. On that date at the request of the People the trial date was continued to January 13, 1969. A further continuance to February 3, 1969 was granted at the request of defendant and on that date a motion was made by the People to amend the information by adding the phrase 'in the second degree' after the word 'murder.' After the motion was granted defendant personally and all counsel waived trial by jury. The defendant was found guilty as charged. Motion for new trial and application for probation were denied and defendant was sentenced to the state prison for the term prescribed by law. The appeal is from the judgment and sentence.

I THE CONFRONTATION ISSUE

The principal issue raised by the defendant on appeal is that he was denied his constitutional right to be confronted by witnesses against him as guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States. This claim of error is based upon a ruling by the trial court which permitted the testimony given at the preliminary hearing of a key prosecution witness to be read into evidence at the trial. Defendant contends that the People failed to demonstrate a good faith effort to obtain the presence of the witness at the trial. We do not agree.

1. The Testimony of The Missing Witness.

At the preliminary hearing Janet Earl (Janet) was called as a witness for the People and after refusing to testify on the grounds of possible self-incrimination she was granted immunity pursuant to the provisions of section 1324 of the Penal Code. Thereupon she testified as a witness for the prosecution.

As the content of Janet's testimony generally is not at issue but only the receipt into evidence of the same at the trial of defendant, it is unnecessary to set forth at considerable length the sordid narrative she related to the magistrate. Briefly summarized, Janet (who was a prostitute) testified that she had been furnished by defendant with a key to his apartment and was permitted to use the same for the purpose of engaging in acts of sexual intercourse upon the understanding that she would pay defendant $2.00 each time she visited his dwelling for the purposes indicated. ¹

Janet testified further that shortly before 10:00 p.m. on October 3, 1968, while she was a patron in the 145 Club in Pasadena, defendant approached her and advised her that he had a 'customer' for her. The 'customer' was Louis Michael Turpin (Turpin). Janet and Turpin were driven by defendant in his car to the latter's apartment and after payment by Turpin to Janet of the sum of $20.00, the pair engaged in an act of sexual intercourse. Afterwards Janet and Turpin left the apartment and as they were walking through an alley to the rear of the building defendant approached them and struck Turpin over the head with some unidentified object. A struggle ensued and after the defendant made repeated stabbing motions, Janet observed

considerable bleeding from Turpin's chest area. Eventually Turpin ceased struggling and defendant then placed Turpin's body in a trash can located in the rear of the apartment building. Defendant then drove Janet to her home.

2. Applicable Law.

We first examine the applicable law on this issue. The Sixth Amendment of the Constitution of the United States provides in part that: 'In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * *' In Pointer v. Texas, 380 U.S. 400 at 403, 85 S.Ct. 1065 at 1068, 13 L.Ed.2d 923, the Supreme Court of the United States held '* * * that the Sixth Amendment's right of an accused to confront the witnesses against him is * * * a fundamental right and is made obligatory on the States by the Fourteenth Amendment.'

In Pointer, the defendant was arrested on a robbery charge and at the preliminary hearing the complaining witness testified against him. The defendant, who was not represented by counsel, did not cross-examine. At trial the transcript of the preliminary was read as the witness, having moved to another state, was not available. The Supreme Court in reversing the state conviction held that the transcript of the witness' statement had not been taken at a time and under circumstances which afforded the defendant through counsel an opportunity to cross-examine and such amounted to a denial of the privilege of confrontation guaranteed by the Sixth Amendment. In Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934, decided during the same term (October, 1964) as Pointer, the court stated 'Our cases construing the clause (confrontation clause) hold that a primary interest secured by it is the right of cross-examination; an adequate opportunity for cross-examination may satisfy the clause even in the absence of physical confrontation.' (Douglas, at page 418, 85 S.Ct. at page 1076; emphasis added.) The court then quoted from its earlier decision in Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 4 09 as follows: "The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits * * * being used against the prisoner in lieu of a personal examination and cross-examination of the witness * * *" (Douglas, 380 U.S. at pp. 418--419, 85 S.Ct. at p. 1076.)

The landmark opinion of Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255, followed in 1968. Without reciting in detail the facts of that case, it is sufficient to indicate that at trial the state made no effort to secure the presence of a witness who had testified at the preliminary hearing and the court permitted at the trial the introduction into evidence of the transcript of the earlier proceeding. The reason for the failure to compel the appearance of the witness was that he was incarcerated in a federal prison outside the state wherein the trial took place. The court at pages 724--725, 88 S.Ct. at page 1322, noted that '* * * a witness is not 'unavailable' for the purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.' (Emphasis added.) The court in reversing concluded that: 'While there may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demands of the confrontation clause where the witness is shown to be actually unavailable, this is not, as we have pointed out, such a case.' (Barber, at pages 725--726, 88 S.Ct. at pages 1318--1322.) ² In short, the issue in the cause before this court is whether the witness Janet was in fact unavailable and whether the People made a good faith effort (due diligence) to secure her presence at trial.

3. The Good Faith Effort.

At the outset it should be mentioned that section 1291 ³ of the Evidence Code Specifically permits the introduction of the former testimony of a witness under circumstances similar to those presented in the cause before us. We, however, are concerned primarily with the constitutional aspect of the right of confrontation and not with problems a statutory interpretation.

Prior to the beginning of the trial the People called a number of witnesses for the purpose of proving not only that Janet was unavailable but that considerable time and effort had been expended by the prosecution in an unsuccessful attempt to locate her and compel her attendance in court. The hearing on this limited issue consumed the goodly portion of two trial days, February 3rd and 4th, and at the request of the defendant the trial judge adjourned proceedings until March 24th to afford the defendant an opportunity to petition the Court of Appeal for a writ of prohibition. The application for the writ was denied without opinion and on the date to which the trial had been continued the People produced additional evidence showing what efforts had been made during the intervening seven week period. At the conclusion of the hearing the trial judge ruled that Janet was not available and that the prosecution had demonstrated a good faith effort in their attempts to locate her. The transcript of her testimony given at the preliminary hearing was then read into evidence.

Realizing that even a limited recital of the evidence produced at the pretrial hearing would unduly lengthen this opinion, we have set forth in an appendix, ⁴ which by this reference is made a part of this opinion, a brief summary of the testimony adduced at that proceeding. A review of the entire record on appeal convinces us that the prosecution made an overwhelming showing of a good faith effort prior to the February 3rd trial date as well as prior to the continued date of March 24th. Under the circumstances there was no abuse of discretion on the part of the trial judge in permitting the testimony of Janet given at the preliminary hearing to be read into evidence at the trial.

We are not persuaded by defendant's argument that the showing of a good faith effort is determined as of the time the cause was set for trial originally, to wit, January 6th, and not as of the actual date when proceedings began. As previously...