
    Appellate Department, Superior Court, Santa Barbara
    [Crim. A. No. 116276.
    June 17, 1977.]
    THE PEOPLE, Plaintiff and Respondent, v. CARMON ALUIS LOYD, Defendant and Appellant.
    
      Counsel
    Walter Matthews for Defendant and Appellant.
    Stanley M. Roden, District Attorney, and Patrick J. McKinley, Deputy District Attorney, for Plaintiff and Respondent.
   Opinion

WESTWICK, P. J.

Appellant was convicted by jury of misdemeanor battery, (Pen. Code, § 242). He appeals from the judgment.

Question Presented

Under what circumstances may a court admit a prior inconsistent statement of a witness who claims to be able to recall some, but not all parts of a given event?

Facts

A witness to the encounter testified that the victim was seated next to the defendant on the wall by an auto repair shop. Defendant, who had a wine bottle, stood up, and threw the bottle in the victim’s face, and swore at the victim. The victim was stunned and started bleeding. Defendant then kicked the victim, and a fight ensued. The police arrived after the witness broke up the fight.

The victim testified that defendant and he had “tangled” before while they were drinking. He had been drinking that morning and had a fight with other persons at the park. He recalled meeting defendant, and that he sat on the wall and shared some wine with defendant. However, he did not recall the fight because he had “blacked out.” The next thing he recalled was being taken to the hospital. He didn’t recall having told Officer Pedersen that defendant had lost his temper and hit him over the head with a wine bottle. The victim acknowledged that he had discussed the case with defendant while both were in the county jail.

Officer Pedersen testified that he found the victim covered with blood. The neck of a broken wine bottle was found on the' sidewalk, immediately in front of where the altercation occurred. Over objection, the officer testified that when he accompanied the victim to the hospital, the victim stated that he was sharing wine with the defendant, and suddenly, for no reason, defendant hit him with a wine bottle.

Out of the presence of the jury, defendant moved for a mistrial on the ground that the statement should not have been admitted. In denying the motion, the court opined that it did not believe that the victim failed to recall the incident.

Defendant then testified that he had been drinking all day, and an argument ensued when the victim grabbed his wine bottle. When defendant grabbed the bottle, the victim knocked defendant down. Defendant then hit the victim with a wine bottle fearing that the victim would use a knife as he had done in a prior confrontation. No knife was found.

Discussion

I

A prior hearsay statement is admissible as an exception to the hearsay rule and may be offered in evidence by any party to the action if: a) The declarant testifies at the hearing or trial and the statement is inconsistent with any part of the witness’ testimony given at that hearing dr trial; and b) The witness was so examined while testifying as to give him "an opportunity to explain or deny making the statement; or c) The witness has not been excused from giving further testimony in the action; d) Except that, in the interests of justice, the court may dispense with the requirements of paragraphs (b) and (c) above.

(See Evid. Code, §§ 770 and 1235; Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 1972) § 10.1, pp. 131-143; People v. Williams (1976) 16 Cal.3d 663 [128 Cal.Rptr. 888, 547 P.2d 1000].)

A prior inconsistent statement of a witness is admissible not only to impeach his credibility, but also to prove the truth of the matters asserted therein. (People v. Green (1970) 3 Cal.3d 981, 985 [92 Cal.Rptr. 494, 479 P.2d 998].) The official comments of the Law Revision Commission relating to section 1235, which are declarative of the intent of the Legislature, (People v. Williams, supra, 16 Cal.3d 663, 667-668,) state, in pertinent part: “In many cases, the inconsistent statement is more likely to be true than the testimony of the witness at the trial because it was made nearer in time to the matter to which it relates and is less likely to be influenced by the controversy which gave rise to the litigation. The trier of fact has the declarant before it and can observe his demeanor and the nature of his testimony as he denies or tries to explain away the inconsistency. Hence, it is in as good a position to determine the truth or falsity of the prior statement as it is to determine the truth or falsity of the inconsistent testimony given in court.”

Justice Learned Hand made a similar observation over 50 years ago. (See Di Carlo v. United States (2d Cir. 1925) 6 F.2d 364, 368.)

II

If the witness either admits or denies making a prior inconsistent statement, the prior statement is admissible. (See, e.g., Clifton v. Ulis (1976) 17 Cal.3d 99, 105 [130 Cal.Rptr. 155, 549 P.2d 1251] (The witness stated that defendant’s wife had stated after the accident that she had asked her husband to take a rest, and that he had fallen asleep. Although the wife initially testified that she did not recall the accident, and recalled nothing for 10 days later due to injuries to her head, she subsequently denied making the statement attributed to her and the court held that her statement was admissible).)

Indeed, in a criminal case, the confrontation clause is not violated when the witness admits or denies making the statement. (See California v. Green (1970) 399 U.S. 149, 158-159 [26 L.Ed.2d 489, 497-498, 90 S.Ct. 1930]; Nelson v. O’Neil (1971) 402 U.S. 622 [29 L.Ed.2d 222, 91 S.Ct. 1723]; People v. Barranday (1971) 20 Cal.App.3d 16, 19-22 [97 Cal.Rptr. 345].)

Ill

In enacting section 1235, however, the Legislature retained the requirement that the witness’ statement be inconsistent with the prior statement. A prior statement is not admissible where the witness claims he has no recollection of the event. (Clifton v. Ulis, supra, 17 Cal.3d 99, 104; see e.g., People v. Sam (1969) 71 Cal.2d 194, 208-210 [77 Cal.Rptr. 804, 454 P.2d 700] [It was error to admit prior inconsistent statement of a victim who stated that he was drunk and had no recollection of being kicked by defendant or having registered a complaint with an officer. The statements were not admissible merely because the officer did not believe the victim was drunk]; People v. Parks (1971) 4 Cal.3d 955, 960 [95 Cal.Rptr. 193, 485 P.2d 257] [Defendant’s wife recalled that her husband had behaved irrationally during a short automobile trip, but could not recall the precise threats he had made to her. The court held that it was error to read the exact language she had related to the police where there was no showing that she was being deliberately evasive or that her claimed memory lapse was untrue.] In Sam, the court reasoned that there is no inconsistency, and, therefore, no impeachment value in statements a witness claims to have forgotten. (People v. Sam, supra, 71 Cal.2d 194, 209.)

Similarly, although a prosecutor is not required to accept at face value every claim of privilege asserted by a witness, and he may compel a witness to claim the privilege against self-incrimination on a question by question basis, he may not, under the guise of cross-examination, get before the jury what is tantamount to devastating direct testimony against the accused. (People v. Shipe (1975) 49 Cal.App.3d 343, 349 [122 Cal.Rptr. 701 (Where a witness steadfastly refused to answer inquiries concerning the night of the crime, or any fact or circumstance relating to the crime, there was no occasion to impeach the witness by a series of leading questions implicating defendant in the crime).)

Further, such statements may not be introduced under the guise of impeachment. A party’s right to impeach his own witness, (Evid. Code, §§ 785, 780, subd. (h), 769, 770), is not available where the witness has not testified against the impeaching party at all and there is nothing to counteract. (People v. Newton (1970) 8 Cal.App.3d 359, 385 [87 Cal.Rptr. 394].)

Further, when a witness refuses to answer, or is unable to recall the event, the admission of the prior statement would deny the right to confrontation since the defendant would have no opportunity to cross-examine the witness. (People v. Shipe (1975) 49 Cal.App.3d 343, 349-351 [122 Cal.Rptr. 701]; People v. Newton (1970) 8 Cal.App.3d 359, 385 [87 Cal.Rptr. 394]; Douglas v. Alabama (1964) 380 U.S. 415, 419-420 [13 L.Ed.2d 934, 937-938, 85 S.Ct. 1074].)

Where a witness consistently refuses to testify, or his testimony consists solely of “I don’t remember” answers, the trial judge cannot simply admit the prior statements in a criminal case for to do so would be to deny defendant’s constitutional right of confrontation. (Jefferson, Cal. Evidence Benchbook, supra, § 10.1, pp. 136-137.) Further, the fact that the defendant is given the opportunity to cross-examine the officer to whom the statement was given does not redress this denial of the essential right secured by the confrontation clause for the defendant must be given the opportunity to test the credibility of the declarant. (Douglas v. Alabama, supra, 380 U.S. 415, 419-420 [13 L.Ed.2d 934, 937-938]; People v. Shipe, supra, 49 Cal.App.3d 343, 350-351.)

IV

A far more difficult problem arises when the witness does give some testimony concerning an issue in a case. When courts address this type of problem, they suggest that a trial judge is entitled to doubt the genuineness of a claimed memory lapse, (People v. Petersen (1972) 23 Cal.App.3d 883, 892 [100 Cal.Rptr. 590],) and that inconsistency, in effect, rather than contradiction in express terms, is the test for admitting a witness’ prior statement, and the same principle governs the case of the forgetful witness. (Clifton v. Ulis, supra, 17 Cal.3d 99, 104.) The Supreme Court has implied that the proponent may establish that the claimed memory lapse was untrue. (People v. Parks, supra, 4 Cal.3d 955, 960.) Justice Jefferson, in an attempt to reconcile this ambiguous language states: “It seems to be implicit in the Green case that whenever the Green principle becomes applicable because of both evasive and lack-of-recollection answers by a witness, so that the witness’ prior statements are considered inconsistent with his implied testimony of denial of insinuations in an examiner’s questions, there is deemed present sufficient trial testimony to be contrasted with the witness’ prior inconsistent statements to avoid a criminal defendant’s claim of constitutional witness-confrontation violation.” (Jefferson, Cal. Evidence Benchbook, supra, § 10.1, p. 137.)

Although it appears to be difficult to provide an all encompassing definition, the cases do follow a consistent pattern. (See e.g., People v. Spencer (1969) 71 Cal.2d 933 [80 Cal.Rptr. 99, 458 P.2d 43] [Defendant claimed that she killed in self-defense when victim came at her with a knife. Witness testified that she stopped the fight when the victim was getting the best of a fist fight and then left. The court held that it was proper to admit witness’ prior inconsistent statement that defendant started the fight and was going to get her since such statement was inconsistent with the tenor of her testimony to the effect that victim was the aggressor]; People v. Green, supra, 3 Cal.3d 981, 985-989 [Where witness used language such as “I’m not positive,” “I can’t say so absolutely,” and that he “might have” obtained the contraband from defendant, the court could admit the statements where the witness was being evasive and his testimony was equivocal]; People v. Barranday (1971) 20 Cal.App.3d 16, 19-20 [97 Cal.Rptr. 345] [A witness, who had been given immunity, recalled that he had talked to someone in the sheriff’s office five days after the incident but now categorically denied going by the scene of the crime with defendant, hearing a shot, or that defendant got out of the car and claimed he did not recall the events that morning. The prior inconsistent statement was admitted]; People v. Wheeler (1971) 23 Cal.App.3d 290, 309 [100 Cal.Rptr. 198] [Witness recalled some of the events, but claimed a memory lapse as to one significant event. She also contradicted herself by recalling incidents she previously professed not to remember]; People v. Petersen (1972) 23 Cal.App.3d 883, 891-893 [100 Cal.Rptr. 590] [Although witness had apparent lapses of memory, it only affected certain details, and the witness did recall defendant saying something about dynamite]; People v. Moreno (1971) 32 Cal.App.3d Supp. 1, 6 [108 Cal.Rptr. 338] [A witness who had called the officers to a scene suddenly couldn’t remember who was the aggressor was regarded as the typical evasive, equivocal, and apparently mendacious witness who changed his mind. His testimony constituted implied denials of the officer’s testimony concerning defendant’s behavior and the witness’ previously stated reasons for calling the officers].)

We are persuaded that inconsistency is to be determined, not by individual words alone, but by the whole impression or effect of what has been said or done. The prior statement is admissible if it tends to contradict or disprove the testimony or any inference to be deduced from it. It is enough if the prior statement, taken as a whole, either by what it says, or by what it omits to say, permits the jury to conclude that the witness’ true recollection is different from his or her present testimony. (See 3A Wigmore, Evidence (Chadbourn rev. ed. 1970) pp. 1048-1049; Worley v. Spreckels Bros. Com. Co. (1912) 163 Cal. 60, 72 [124 P. 697]; People v. Spencer, supra, 71 Cal.2d 933, 942.)

The rules may be summarized as follows:

1. A prior statement is not admissible if the witness refuses to testify or, if his testimony consists exclusively of “I don’t remember” answers.
2. A prior inconsistent statement is admissible if the witness admits making the inconsistent statement.
3. A prior inconsistent statement is admissible if the witness denies making the inconsistent statement.
4. A prior statement is admissible if it tends to contradict or disprove the testimony or any inference or impression to be deduced from it.
5. A prior inconsistent statement may be admitted if a witness remembers portions of an event, transaction, or statement, if the proponent of the statement establishes either that the witness is being evasive or that it is implausible that the witness has forgotten the statement after having been reminded that he made it.

Where the witness recalls part, but not all, of a given event or statement, the proponent of the prior inconsistent statement must be given an.opportunity to test the witness’ memory so that the trial judge can determine whether the statement is, in fact, inconsistent with his testimony. In making this determination, the trial judge must base its determination on the credibility of the witness, the tenor of his testimony, and the likelihood that he does, in fact, recall the nature of his earlier

In a criminal case, this type of foundation serves two purposes. First, the testimony is elicited to insure that the statement is admissible under Evidence Code section 1235. Second, the court determines whether the inconsistency has been laid bare, so that the defendant will be given an adequate opportunity to explore the difference between the witness’ current testimony and his prior statement. (See People v. Green, supra, 3 Cal.3d 981, 989-990; People v. Barranday, supra, 20 Cal.App.3d 16, 19-22.) If both requirements are met, the prior statement may be admitted. Whether or not the witness is actually cross-examined is beside the point; the fact that the defendant had an adequate opportunity to carry out such inquiry satisfies the confrontation clause. (People v. Green, supra, 3 Cal.3d 981, 990.)

V

In this case, the prosecutor laid a sufficient foundation to permit the prior inconsistent statement to be admitted by showing that the victim did have a recollection of all events up to the time of the battery. Indeed, the trial court could conclude that the victim’s claimed lack of memory was not due to having “blacked out” but was, instead, due to a recent change in attitude towards the defendant. Further, the defendant was also given adequate opportunity to test the victim’s recollection. The statement was properly admitted.

Disposition

The judgment is affirmed. Defendant, Carmon Alvis Loyd, is directed to be present in the Municipal Court of the Santa Barbara-Goleta Judicial District on July 8, 1977 at 8:30 a.m. in the department of the judge then assigned to hear the criminal calendar. At that time, bail may be exonerated and defendant will be directed to serve the balance of his sentence.

Rickard, J., and Stevens, J., concurred. 
      
       It should be emphasized that where proof of guilt consists principally of a prior unsworn out of court statement given under threat of prosecution and thereafter repudiated under oath, the proof may be so fraught with uncertainty so as to preclude a determination of guilt beyond a reasonable doubt. (In re Eugene M. (1976) 55 Cal.App.3d 650(127 Cal.Rptr. 851].)
     
      
      The determination as to whether the defendant or his counsel actively solicited a witness’ refusal to answer questions propounded by the prosecutor is a question of fact, and the determination to admit the prior statement on that theory must be based on substantial evidence. (People v. Shipe, 49 Cal.App.3d 343, 351 [122 Cal.Rptr. 701].) In this connection, it should be emphasized that a prior inconsistent statement is admissible as an exception to the hearsay rule only when the witness testifies (People v. Rojas (1975) 15 Cal.3d 540, 548 [125 Cal.Rptr. 357, 542 P.2d 229]) at that hearing (People v. Williams, supra 16 Cal.3d 663, 667-669) before a court, sitting as a trier of fact, or before a jury. (Clifton v. Ulis, supra, 17 Cal.3d 99, 105, fn. 2.)
     
      
      Where a prior inconsistent statement is admitted, the jury is instructed to consider such statement in assessing the credibility of the witness. (See CALJIC No. 2.20; Evid. Code, § 780. subd. (h).)
     