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People v. Mayfield1/2/1997
his memory of the traumatic events during the hours after the shooting and before defendant's surrender was largely intact. Despite some lapses of memory, his testimony at the preliminary hearing was lucid and coherent. Under these conditions, the process of direct examination and cross-examination provided the jury with an adequate basis to evaluate Haverstick's credibility. "The Sixth Amendment's confrontation clause requires no more. ( U.S. v. Owens, (supra) , 484 U.S. 554, 559 [98 L. Ed. 2d 951, 957-958].)" ( People v. Cudjo, (supra) , 6 Cal. 4th 585, 622.)
2. Defense Opportunity to Prepare
The events to which Haverstick testified occurred on March 3, 1986. Defense counsel was appointed on March 5, 1986, and Haverstick testified at the preliminary hearing on June 20, 1986. Therefore, counsel had over three months to prepare for the preliminary hearing. Moreover, defendant was present during the events to which Haverstick testified and presumably gave an account of them to counsel. Finally, it appears that counsel had received written reports of statements Haverstick had made to police investigators. Under these circumstances, we are satisfied that defense counsel's opportunity to prepare for the preliminary hearing was adequate to afford meaningful adversarial testing of Haverstick's testimony, and therefore the requirements of both the prior testimony exception to the hearsay rule and the constitutional right of confrontation were satisfied.
3. Objections to Specific Testimony
Defendant contends that the trial court improperly ruled on four defense trial objections to specific portions of the transcript of Haverstick's preliminary hearing testimony.
The first such objection concerns questions by the prosecutor concerning whether Haverstick recalled overhearing defendant say, during one of defendant's telephone conversations, that he had shot a police officer. Initially, Haverstick said he did not recall defendant making such a statement. The prosecutor then asked if, based on what defendant said during these telephone conversations, Haverstick understood that defendant had shot an officer. When the magistrate sustained a defense objection to this form of question, the prosecutor attempted to refresh Haverstick's recollections by reminding him of statements he had made to a police detective . Haverstick answered that he could not recall the interview by the police detective, but he did now remember that defendant had said that "if the dude was dead" defendant was going to let Haverstick die and use the last bullet on himself. Haverstick also testified, without objection, that he understood that defendant was referring to a police officer by the word "dude."
At trial, the defense asked the court to edit out the portion of the transcript containing questions by the prosecutor to which the defense had successfully objected. The trial court declined to do so, remarking that the witness had not answered the questions and that the jury would be instructed that unanswered questions are not evidence.
On appeal, defendant contends the trial court committed prejudicial error in not editing out the prosecutor's questions to which the magistrate had sustained objections at the preliminary hearing. We agree that the trial court should have edited out such questions. Reading the questions served no legitimate purpose and posed a risk, albeit slight, that the jurors would draw factual inferences from the questions despite the instruction that they not do so. But we do not agree that the error was prejudicial. The only factual inference the jury could have drawn from the objected-to questions was that defendant had in fact admitted shooti
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