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People v. Mayfield1/2/1997
nt, as recorded by Deputy Stein, that he shot Sergeant Wolfley because he did not want to return to prison, would be no less inculpatory if it was to some extent paraphrased rather than recorded with complete accuracy. The relevance of the statement lies in its substance, not in the precise words used.
Defendant also relies on the testimony of Sergeant Hankerson, who stated that he was standing near Deputy Stein's patrol car at the time the alleged statements were made, and that he did not hear defendant make any statements other than an inquiry about the condition of Sergeant Wolfley, nor did he see Deputy Stein writing in his notebook. This was a simple conflict in the evidence for the jury to resolve; it was not grounds for excluding the testimony of Deputy Stein.
B. The Jury View
During the prosecution's case-in-chief, the jury was taken to view the scene of the charged offenses. Defendant chose not be present during this part of the trial. Defendant contends: (1) holding the jury view in defendant's absence violated his right to be present at trial under the federal Constitution (U.S. Const., 6th & 14th Amends.), the state Constitution (Cal. Const., art. I, § 15), and sections 977, 1043, and 1119 of the Penal Code; (2) the trial court's active participation during the jury view was misconduct and denied defendant his due process right to a fair trial and his Eighth Amendment right to a reliable verdict; and (3) the actions and omissions of defense counsel during the jury view denied defendant his right under the federal Constitution's Sixth Amendment to the effective assistance of counsel.
1. Facts
After jury selection but before opening statement, defendant's trial counsel, in defendant's presence, stated that the defense would be requesting that the jury be taken to view the scene of the charged offenses. The prosecutor indicated he "would concur with that." The trial court granted the request. The court and counsel agreed that the view should occur after the jurors had heard at least some of the testimony concerning the places they would be viewing.
As the trial unfolded, the court and counsel held further Discussions in defendant's presence about the proposed jury view. On October 1, 1987, during a hearing out of the jury's presence, the court set the jury view for the afternoon and evening of October 14, 1987. The jury would view the various areas in daylight, recess for dinner, and reconvene to view the areas again at night. Defense counsel stated that defendant intended to waive his presence during the jury view. The court indicated that defendant could change his mind at any time before the afternoon of the jury view, and that his waiver would be formally taken on the record at a later time. It was agreed that the court reporter would attend the jury view. The prosecutor indicated his intention to take testimony from the owner of the service station during the jury view. The court asked that police cars be positioned at the service station as they were at the time Sergeant Wolfley was killed. The trial court stated that it would permit jurors to ask questions, and that the court would "rule upon it just like any other questions . . . as if we were in court."
On October 8, 1987, the jury view was again discussed. Defense counsel suggested the court "take a waiver" from defendant that day, but the court suggested they wait until the day of the jury view. The prosecutor stated that arrangements were being made to have demonstration firings of Sergeant Wolfley's gun during the jury view. Defense counsel questioned whether the lighting at the service station was still as it was on the night Sergeant Wolfley was kil
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