Metropolitan News-Enterprise


Wednesday, October 29, 2003


Page 3


Impeachment From First Trial Admissible at Second, C.A. Rules


By DAVID WATSON, Staff Writer


Prior convictions introduced to impeach a criminal defendant’s testimony may be used at a second trial at which the defendant does not testify, the Third District Court of Appeal ruled yesterday.

Sacramento Superior Court Judge Talmadge Jones properly allowed prosecutors to introduce Shawta D. Malone’s testimony from his first trial, which ended with a deadlocked jury, at his second, Justice Ronald Robie wrote in his opinion for the court. The testimony read back to jurors at the second trial included Malone’s admission on cross-examination that he had been convicted of felony burglary and petty theft.

Jones ruled the testimony was admissible under Evidence Code Sec. 1291, which creates an exception to the hearsay rule for prior testimony where the declarant is unavailable. Malone’s exercise of his Fifth Amendment right not to testify at his second trial made him unavailable under that section, the trial judge ruled.

The second jury convicted Malone of possession of a check with intent to defraud and second degree burglary. Jones found one of Malone’s prior offenses qualified as a “strike” and sentenced him to five years in prison.

Quoting the trial judge’s comments, Robie explained:

“The trial court was correct in reasoning that when former testimony is admitted, ‘the defendant takes the bitter with the sweet.’ “

Robie rejected the argument of Malone’s appellate lawyer, John L. Staley of Poway, that the prior convictions should have been excluded under Evidence Code Secs. 788 and 1202.

Sec. 788 permits the use of prior convictions to attack “the credibility of a witness.” Sec. 1202 makes impeachment evidence admissible against a hearsay declarant to the same extent it would be admissible against a testifying witness.

Robie observed:

“On appeal, defendant does not challenge admission of the former testimony. Instead, he argues ‘the structure of section[s] 788 and 1202 suggests felony convictions are not admissible to impeach hearsay declarants who do not testify at trial.’ ”

He noted that in making his ruling Jones relied in part on People v. Jacobs (2000) 78 Cal.App.4th 1444—a case Staley contended was wrongly decided. But Robie pointed out that Malone’s situation differed from that in Jacobs, which “involved an offer by the defendant to introduce his own statements and the prosecution’s request to impeach them.”

The justice declared:

“Here, the evidence the People sought to admit was the defendant’s prior trial testimony that included defendant’s admission of his prior convictions. The prosecution did not attempt to present some other hearsay statement of the defendant and then seek to impeach the defendant with additional evidence of a prior conviction. Section 1291 explicitly allows the trial court to admit this prior testimony and is not constrained by sections 788 and 1202. Once defendant made himself unavailable by invoking his Fifth Amendment privilege, the admission of his former testimony in the second trial under section 1291, subdivision (a) was proper.”

Justice Harry E. Hull Jr. and Presiding Justice Arthur A. Scotland concurred.

Staley said he might ask the state Supreme Court to “take a look at” the court’s ruling.

“The old rule is you have to be a witness to be impeached,” he commented. He added he hoped that if the high court agrees to take the case, it might also consider the merits of the Jacobs decision.

The attorney said the explanation of his conduct Malone provided during his testimony at his first trial with respect to the bad check charge was “probably viewed as not very credible” by the prosecutors, who may have been anxious to place it before the second jury.

The case is People v. Malone, C043173.


Copyright 2003, Metropolitan News Company