III. THE TRIAL COURT ERRED IN REFUSING THE DEFENSE REQUEST TO MODIFY CALJIC NO. 2.13 TO SPECIFICALLY INFORM THE JURORS THAT IF THEY BELIEVED MS. S’S TESTIMONY THAT SHE NO LONGER REMEMBERED CERTAIN EVENTS, THEN THEY SHOULD DISREGARD HER EXTRAJUDICIAL STATEMENTS REGARDING THOSE EVENTS
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A. Procedural Background
Trial counsel for appellant asked the court to give the following modified version of CALJIC No. 2.13. The language concerning honest failure of recollection, which appellant presently asserts the court erred in omitting, is set forth in brackets and underlined:
Evidence that at some other time a witness made a statement or statements that are inconsistent or consistent with his or her testimony in this trial, may be considered by you not only for the purpose of testing the credibility of the witness, but also as evidence of the truth of the facts as stated by the witness on that former occasion.
If you disbelieve a witness’ testimony that he or she no longer remembers a certain event, such testimony is inconsistent with a prior statement or statements by him or her describing that event.
[If you believe witness Ms. S’s testimony that she no longer remembers a certain event, you must disregard the prior statement or statements by her regarding that event.]
(CT 215 [with language omitted by
the court bracketed and underlined].)
The court refused this instruction and, instead, provided the jury with the standard CALJIC No. 2.13 instruction, omitting the third paragraph above. (CT 150; 4 RT 716-717.)
During the conference between the court and counsel regarding jury instructions there was the following exchange regarding this issue:
THE COURT: . . . You have 2.13 modified. I think — I’m not inclined to give that instruction, Ms. Van Dam. I’ll hear you on it. I think 2.13 adequately states the law in the case, particularly the last sentence I think is kind of confusing. [¶.] But you may be heard on it.
[DEFENSE COUNSEL] VAN DAM: The purpose was that if they believed Ms. S when she said she had no memory of anything having to do with ’91 — witnessing the homicide or giving the statement, if they believe that statement, then as a matter of law they can’t consider that statement, the 1991 statement. [¶.] So that was the purpose of that.
[D.A.] MODDER: I don’t think that is the law.
THE COURT: It’s not. I’ll put that down as refused by the court, Ms. Van Dam . . . .
(4 RT 689.)
B. The Refusal to Instruct in Accordance with Appellant’s Request was Error
The trial court’s refusal to modify CALJIC No. 2.13 as requested was error. As discussed below, this instruction was a correct statement of law. Furthermore, it was pertinent to the state of the evidence, given Ms. S’s repeated testimony as to her lack of recollection, and the jurors were not adequately informed by any given instruction that if they believed Ms. S’s testimony regarding her lack of recollection then they could not use her corresponding out-of-court statements as evidence. It was therefore error for the court to refuse this instruction. (§ 1127; People v. Wilson (1967) 66 Cal.2d 749, 761-763; People v. Pitts (1970) 223 Cal.App.3d 606, 880-881.)
As part of the standard CALJIC No. 2.13 instruction, as given herein (CT 150; 4 RT 716-717), the jury is called upon to determine if it “disbelieve[s] a witness’ testimony that he or she no longer remembers a certain event” and, if the answer is affirmative, the jury may consider that witness’ prior out-of-court statement concerning that event “as evidence of the truth” in accordance with the prior statement. This is a correct statement of law. (Evid. Code §§ 770 & 1235; People v. Arias (1996) 13 Cal.4th 92, 152; People v. Green (1971) 3 Cal.3d 981, 988-989.)
However, it is also a correct statement of law that truthful “testimony of a witness to the effect he does not remember an event is not ‘inconsistent’ with a prior statement by him describing that event.” (People v. Simmons (1981) 123 Cal.App.3d 677, 681.) Under those circumstances, the prior statement may not be admitted for its truth under California’s rules of evidence. (Id. at 681-682; People v. Cummings (1993) 4 Cal.4th 1233, 1294; see Evid. Code §§ 770 & 1235.) The purpose of excluding the prior extrajudicial statement of an amnesiac witness is because the adverse party would then “lack either contemporaneous cross-examination or the ability to meaningfully confront and cross-examine the witness at trial.” (People v. Simmons, supra, 123 Cal.App.3d at 681.) Therefore, contrary to the stated belief of the court below (4 RT 689), defense counsel’s proposed addition to CALJIC No. 2.13 was a correct statement of law.
The proposed instruction was supported by evidence presented at trial. Ms. S testified that she had no recollection of the day of the crimes or ever having met appellant. (2 RT 408-409; 3 RT 485.) She further testified that she had no recollection of being interviewed by Detectives Felix and Boatwright. (3 RT 472.) Ms. S testified that after these events she had been shot in the head; at the request of counsel she displayed her consequent scar to the jury. (2 RT 409-410.) Therefore, the jury could have reasonably made a factual finding that Ms. S’s professed lack of memory was genuine.
No given instruction explained to the jurors that if they believed Ms. S’s testimony regarding her memory loss then they should disregard her prior tape-recorded statement. Although CALJIC No. 2.13, as given, told the jury that a witness’ dishonest testimony as to lack of recollection of an event should be seen as inconsistent with a prior statement describing that event, the jurors were given no guidance regarding what to do if they believed a witness’ testimony attesting to lack of recollection. In fact, the first sentence of CALJIC No. 2.13, as given, told the jury:
Evidence that at some other time a witness made a statement or statements that are inconsistent or consistent with his or her testimony in this trial, may be considered by you not only for [credibility purposes], but also as evidence of the truth of the facts as stated by the witness on that former occasion.
(CT 150 [emphasis added].)
This certainly would not convey to the jury that they should disregard Ms. S’s prior statements if they believed her present testimony attesting to her lack of memory. The most likely conclusion that a reasonable juror would draw from the court’s CALJIC No. 2.13 instruction is that the prior statements of Ms. S, whether “inconsistent or consistent” with her trial testimony, could properly be considered “as evidence of the truth of the facts” as stated in her prior statements, and that this was so regardless of whether Ms. S was presently telling the truth about her lack of memory.
For the reasons stated above, the trial court committed error in refusing to give defense counsel’s requested CALJIC No. 2.13 instruction. (§ 1127; People v. Wilson, supra, 66 Cal.2d at 761-763; People v. Pitts, supra, 223 Cal.App.3d at 880-881; see Evid. Code, § 403, subd. (c)(1).)
C. Prejudice
The trial court’s refusal to instruct the jurors to disregard Ms. S’s out-of-court statements if they believed that she honestly had lost her memory of the corresponding events deprived appellant of his due process right, under the Fifth, Sixth and Fourteenth Amendments of the federal constitution, to have the jury determine each and every fact relating to the charged offenses. (Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278 [124 L.Ed.2d 182, 113 S.Ct. 2078]; In re Winship (1970) 397 U.S. 358, 364 [25 L.Ed.2d 368, 90 S.Ct. 1068].) This error also violated appellant’s constitutional due process right to have the State follow its own established criminal procedural rule of not allowing an extrajudicial statement to be used substantively in the case of an amnesiac witness. (Hicks v. Oklahoma (1980) 447 U.S. 343 [65 L.Ed.2d 175, 100 S.Ct. 2227].) Where, as in the present case, error serves to effectively deprive a defendant of constitutional safeguards, review is required under the standard of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824] — reversal is mandated unless the State can prove beyond a reasonable doubt that the error did not contribute to the verdict. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 684 [89 L.Ed.2d 674, 106 S.Ct. 1431]; People v. Bolton (1979) 23 Cal.3d 208, 214-215, fn. 4.) The inquiry is therefore whether this error was “harmless beyond a reasonable doubt.” (Delaware v. Van Arsdall, supra, 475 U.S. at 684.)
Respondent cannot meet this substantial burden. If the jurors had been instructed as defense counsel requested it is very likely that they would have concluded that Ms. S was being truthful in testifying that she had no recollection of the events at-issue. Ms. S testified that she had been shot in the head sometime after she gave her statement to Detectives Felix and Boatwright. To authenticate this, Ms. S revealed a scar to the jury. (2 RT 409-410.) Ms. S was consistent in her testimony that she no longer remembered the day in question or her subsequent interview at the police station. Therefore, jurors instructed in accordance with the defense modification of CALJIC No. 2.13 likely would have disregarded Ms. S’s extrajudicial statements. Apart from Ms. S’s extrajudicial statements, the only evidence directly linking appellant to the crimes was Mr. J’s relatively weak eyewitness identification of appellant [Footnote 1] at the scene of the Hong robbery-murder. Therefore, if the jury had disregarded Ms. S’s tape-recorded statement as being consistent with her present testimony of lack of recollection, the likely result would have been appellant’s acquittal on all charges.
In sum, respondent cannot establish beyond a reasonable doubt that had the jury been instructed in accordance with the defense modification of CALJIC No. 2.13 that the jury would not have applied this instruction to disregard Ms. S’s out-of-court statements and acquit appellant of all charges.
Reversal is required as to all counts.
OPENING BRIEF FOOTNOTES:
Footnote 1: When asked in court if he could identify someone in the courtroom as one of the perpetrators, Mr. J tentatively replied, “I think so” and then indicated appellant. (2 RT 341-342.) Shortly after the shooting, when he was interviewed by Detective Felix, Mr. J selected a photo of Mr. G, a man who had never been considered a suspect with respect to the present crimes. (3 RT 616, 622-623.) At Mr. H’s trial, Mr. J had not been able to make any identification. (2 RT 360-363.) Mr. J’s deficiencies as an eyewitness should not be surprising: the shooting took place at night, he observed the perpetrators for only a brief space of time and under conditions of great stress, Mr. J had not had any prior contact with the perpetrators and his identification was cross-racial in nature. (See CALJIC No. 2.92.) Therefore Mr. J’s identification of appellant as one of the three Hispanic robbers must be seen as relatively weak.
COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION THREE
_____________________________________
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent, B121272
v. (Los Angeles County
Superior Court
JOHN DOE, No. BA158704)
Defendant and Appellant.
_____________________________________/
On Appeal from the Superior Court of the State of California
in and for the County of Los Angeles
Honorable Morris B. Jones, Judge
APPELLANT’S REPLY BRIEF
RICHARD L. RUBIN
4200 Park Blvd., Ste. 249
Oakland, CA 94602
(510) 339-9552
State Bar No. 87666
Attorney for Appellant
John Doe
III. THE TRIAL COURT ERRED IN REFUSING THE DEFENSE REQUEST TO MODIFY CALJIC NO. 2.13 TO SPECIFICALLY INFORM THE JURORS THAT IF THEY BELIEVED MS. S’S TESTIMONY THAT SHE NO LONGER REMEMBERED CERTAIN EVENTS, THEN THEY SHOULD DISREGARD HER EXTRAJUDICIAL STATEMENTS REGARDING THOSE EVENTS
In his opening brief, appellant asserted that the trial court erred in refusing defense counsel’s request to modify CALJIC No. 2.13 to instruct the jurors that if they believed Ms. S’s testimony that she no longer recalled certain events then they were to disregard her prior out-of-court statements regarding those events. (See CT 215; 4 RT 689.)
Respondent responds by distorting appellant’s position. Respondent incorrectly states that “[a]ppellant argues that CALJIC No. 2.13 is an incorrect statement of the law.” (RB 31 [emphasis added].) However, appellant does not claim that CALJIC No. 2.13 incorrectly states the law, only that this instruction, given the circumstances of this case, failed to provide complete guidance to the jury, specifically with regard to the treatment of Ms. S’s out-of-court statements in the event the jury believed her testimony that she honestly could not remember certain events.
Respondent is likewise wrong in stating “nothing in appellant’s argument supports the conclusion that the jury should have disregarded Ms. S’s statements made to Detective Felix on October 26, 1991, if she honestly did not remember the events of October 11, 1991, at the time of trial.” (RB 32.) Apparently respondent’s counsel completely overlooked the following paragraph contained in appellant’s opening brief:
However, it is also a correct statement of law that truthful “testimony of a witness to the effect he does not remember an event is not ‘inconsistent’ with a prior statement by him describing that event.” (People v. Simmons (1981) 123 Cal.App.3d 677, 681.) Under those circumstances, the prior statement may not be admitted for its truth under California’s rules of evidence. (Id. at 681-682; People v. Cummings (1993) 4 Cal.4th 1233, 1294; see Evid. Code §§ 770 & 1235.) The purpose of excluding the prior extrajudicial statement of an amnesiac witness is because the adverse party would then “lack either contemporaneous cross-examination or the ability to meaningfully confront and cross-examine the witness at trial.” (People v. Simmons, supra, 123 Cal.App.3d at 681.) Therefore, contrary to the stated belief of the court below (4 RT 689), defense counsel’s proposed addition to CALJIC No. 2.13 was a correct statement of law.
(AOB 34.)
Thus, contrary to respondent’s contention, the modification to CALJIC No. 2.13 which defense counsel requested was a correct statement of controlling law.
Respondent states that “[a]ppellant fails to cite even one case in which the modified version of CALJIC No. 2.13 requested by his trial counsel was provided.” (RB 32.) To which appellant replies, “So what?” It should be pointed out that respondent correspondingly fails to “cite even one case” in which such a modified version of CALJIC No. 2.13 was found to be improper. Contrary to respondent’s implication, there is no purported rule of law that whenever an appeal presents a question of first impression the defendant always loses. As appellant explained in his opening brief, if a requested instruction represents a correct statement of law, which is not conveyed to the jury by means of any given instruction, then controlling authority dictates that the requested instruction should be given. (Pen. Code, § 1127; People v. Wilson (1967) 66 Cal.2d 749, 761-763; People v. Pitts (1970) 223 Cal.App.3d 606, 880-881; see AOB 33, 36.)
Predictably, respondent recites the litany that the prosecution presented “overwhelming evidence of guilt” and thus any error in this regard was harmless. (RB 33.) However, positing the existence of “overwhelming evidence” does not make it true. Furthermore, it must kept in mind that in evaluating a claim of instructional error, such as this, a reviewing court must assume the jury could have believed the evidence of the party claiming error if such rose to the level of substantial evidence. (See Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 673-674; Clement v. State Reclamation Board (1950) 35 Cal.2d 628, 643-644; Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 322.) At trial, Ms. S testified that she had no recollection of the day of the crimes or of ever having met appellant. (2 RT 408-409; 3 RT 485.) Ms. S explained that after these events she had been shot in the head. At the request of counsel she displayed her consequent scar to the jury. (2 RT 409-410.) Therefore, the jury could have reasonably concluded that Ms. S’s professed lack of memory was genuine. Had the jurors been instructed with the modified version of CALJIC No. 2.13, then it is reasonably probable that one or more jurors would have disregarded Ms. S’s out-of-court statements based upon a factual finding that Ms. S honestly could not recall what occurred on the day of the crimes. As explained in appellant’s opening brief, absent Ms. S’s out-of-court statements there was little evidence tying appellant to the crimes he was charged with. (See AOB 37-38.)
Accordingly, appellant’s convictions should be reversed on the basis of this error.
