People v. Terry

• Decision Date: 19 April 1960
• Docket Number: Cr. 6815
• Citation: People v. Terry, 180 Cal.App.2d 48, 4 Cal.Rptr. 597 (Cal. App. 1960)
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Doyle TERRY, Defendant and Appellant.

Page 597

4 Cal.Rptr. 597

180 Cal.App.2d 48

PEOPLE of the State of California, Plaintiff and Respondent, v.Doyle TERRY, Defendant and Appellant.

Cr. 6815.

District Court of Appeal, Second District, Division 1, California.

April 19, 1960.

Rehearing Denied May 9, 1960.

Hearing Denied June 14, 1960.

Harold J. Ackerman, Los Angeles, Russell E. Parsons, Beverly Hills, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Jack K. Weber, Deputy Atty. Gen., for respondent.

LILLIE, Justice.

Terry was charged by an information filed on August 28, 1958, with three felony counts: (1) violation of Penal Code, Section 288, committed with a child named Richard; (2) another violation of Section 288 involving Richard's younger brother, Timothy; and (3) violation of Section 286(crime against nature) committed on the person of Timothy; all occurring on or about August 1, 1958, in the City of Los Angeles.A jury returned guilty verdicts on all three counts and defendant's motion for new trial was denied.He also filed an application for probation; before ruling thereon, the court committed him to the state hospital for observation as a probable sexual psychopath (Welfare & Institutions Code, Sec. 5504).Returned to court some two months later, following advices from the hospital that he was not a sexual psychopath, defendant was refused probation and sentenced to the state prison.He has appealed from the judgment; an earlier appeal from the order denying a new trial, prematurely filed and prior to disposition of the matter of probation (Rule 31(a), Rules on Appeal), will be dismissed.

Because they concern several of the contentions on appeal, we review the following events.The cause was originally set for trial on October 23, 1958; on motion of defendant, trial was continued to December 4 and again to December 5, 1958.On the latter date a continuance was obtained by the People, defendant agreeing thereto, and the matter eventually proceeded to trial on January 28, 1959.Prior to this, from August 4 to August 30, both minors had been detained in Juvenile Hall; each testified (and was cross-examined) at the preliminary hearing conducted on August 21.On August 30 both were released under an order signed by the judge presiding in juvenile court for transportation to Virginia where their father, a captain in the United States Navy, maintained his residence.Each was absent from the state at the time of the trial, and their prior testimony at the preliminary hearing was introduced pursuant to the provisions of Section 686(3) of the Penal Code.

Defendant's points on appeal may be summarized under the following headings: (1) Foundation evidence for the introduction of testimony under Section 686(3), Penal Code, should not have been taken in the presence of the jury; (2)Defendant was deprived of due process by the order of the juvenile court improperly removing the two witnesses from the jurisdiction; (3)The trial court improperly edited the transcript of the preliminary hearing; (4)The People should have utilized Section 1334 et seq. or Section 879 of the Penal Code before being allowed to introduce the prior testimony; (5) The prior testimony was used as a basis to convict on a charge different from the one at issue in the preliminary hearing; (6) Prejudicial misconduct by the prosecutor; (7) Insufficiency of the evidence as to the violation of Section 286; and (8) Error in the admission of certain other testimony.

Because of their interrelation, the first four of the contentions above stated will be considered collectively; basically they assert that appellant upon the trial was unconstitutionally deprived of the right to confront his accusers face to face and cross-examine them, and that due process of law was thereby denied him (Art. I, Sec. 13, Cal.Const.) The privilege of confrontation by witnesses is 'guaranteed by subsection 3 of section 686 of our Penal Code subject to the limitations there stated.'People v. Valdez, 82 Cal.App.2d 744, 749, 187 P.2d 74, 77.Said subsection provides that a defendant is entitled 'to produce witnesses on his behalf and to be confronted with the witnesses against him, in the presence of the court, except that * * * the testimony on behalf of the people or the defendant of a witness deceased, insane, out of jurisdiction, or who can not, with due diligence be found within the state, given on a former trial of the action in the presence of the defendant who has, either in person or by counsel, cross-examined or had an opportunity to cross-examine the witness, may be admitted'(Emphasis added).The procedure thus authorized has withstood attack on constitutional grounds--it is neither repugnant to the Sixth Amendment to the federal Constitution nor to Section 13, Article I of the Constitution of this state.People v. Hermes, 73 Cal.App.2d 947, 955, 168 P.2d 44.'Due process of law is not denied by the introduction of the deposition of a witness taken upon the preliminary examination before a committing magistrate in the presence of the defendant where he cross-examined or had the opportunity of cross-examining the witness when such witness is absent from the state or the prosecutor has been unable to procure his attendance'(People v. Raffington, 98 Cal.App.2d 455, 458, 220 P.2d 967, 970).

In the case at bar the testimony introduced was first tested by the process of cross-examination which, the record discloses, was utilized at considerable length; therefore, unless there existed other circumstances, to be discussed hereinafter, it would appear that appellant's constitutional rights were not infringed.

Although declining to challenge the unquestioned authority of our Legislature to exercise full control over court procedure in both civil and criminal cases(People v. Bernstein, 70 Cal.App.2d 462, 469, 161 P.2d 381), appellant nevertheless complains that prejudicial error was committed by taking foundation evidence in the presence of the jury which bore on the right to read the prior testimony of the two minors.Parenthetically, while there must be some showing of 'due diligence' when the witness 'could not * * * be found within the state' and the question thus presented 'is largely within the discretion of the trial court'(People v. Thomas, 164 Cal.App.2d 571, 576, 331 P.2d 82, 84), it has recently been restated by our Supreme Court that 'the due diligence requirement is inapplicable' where the witness is absent from the state(People v. Carswell, 51 Cal.2d 602, 605, 335 P.2d 99, 101); hence, while it would seem to have been unnecessary for the foundation to be laid, since it is not seriously urged that the witnesses were in fact absent from the state, testimony of that nature was received and appellant is within his rights in making the point now to be considered.Ordinarily, the better practice requires that all doubtful questions of evidence or procedure should not be proposed or discussed in the presence of the jury (88 C.J.S.Trial§ 84), although there 'is no impropriety in the discussion of the merits of an objection to the admission of evidence in the presence of the jury, unless it appears that there is a possibility that the minds of the jurors may be influenced or prejudiced * * * pro or con, during such discussion, or evidence introduced in its course.'Scott v. Sheedy, 39 Cal.App.2d 96, 103-104, 102 P.2d 575, 579.Should it be claimed that the minds of the jurors were prejudiced, it is incumbent upon an appellant to point out the particular evidentiary matters resulting in prejudice to his case.Scott v. Sheedy, supra, 39 Cal.App.2d 104, 102 P.2d 579.

Appellant has endeavored to comply with the foregoing rule.First, he complains that from the evidence introduced the jury learned there were other defendants similarly involved (but separately tried), particularly one Wilson.However, these same matters were brought out at the trial in the course of the examination of appellant's witnesses and, assuming that it was error to introduce such material, the error was cured by the voluntary presentation of the same evidence by appellant.People v. Healey, 52 Cal.App. 563, 564, 199 P. 551.Too, if the jury was disposed to disbelieve the two minors, it is not likely that they would be deterred from so doing by the fact that the youngsters had made additional accusations.Secondly, there was testimony that the boys had already been caused too much embarrassment and were getting low grades in school; the father gave this additional reason for their failure to return as witnesses.It hardly seems likely that such a circumstance could cause the jury to accord further credence to the victims' testimony; additionally, it is established that both sides are free to produce testimony which explains the absence of a logical witness.In People v. Lyons, 50 Cal.2d 245, 266, 324 P.2d 556, 567, the Supreme Court said: '* * * the prosecution was entitled to explain why Gallo was not produced, to forestall any question which might arise in the minds of the jury as to why Gallo did not testify.'Thirdly, it is urged that the jury learned that the father of the victims was a person of some importance in the nation's capital and that in such capacity he had occasion to confer with the President.By way of set-off, on the other hand, the jury also learned some matters which might be considered derogatory about the family--that there had been a divorce, from which it might be inferred that the youngsters did not have the best parental supervision.Fourth, in the course of testimony explanatory of the minors' absence from the state, the judge of the juvenile court testified that the boys belonged in a non-delinquent group and that their best interests would be served by keeping them in Virginia.This, of course, bore on their credibility, at least to the extent that they had committed no crimes and had not theretofore been arrested.But since the absence of the...