People v. Wrigley

PETERS, J.

I dissent.

The majority today has seriously undermined the defense of alibi.

The purpose of the so-called defense of alibi is to set forth facts which if true establish that the accused could not have committed the crime because he was not present at the time of the offense. (People v. Alexander, 78 Cal.App.2d 954, 957 [ 178 P.2d 813 ].) In this sense an alibi is not an affirmative defense ; it is a denial which is proved by affirmative evidence that the accused was at some other place when the offense allegedly occurred. (People v. Bradley, 71 Cal.App.2d 114, 119 [ 162 P.2d 38 ]; People v. Spillard, 15 Cal.App.2d 649, 652 [ 59 P.2d 887 ].) To successfully assert an alibi the defendant need only raise a reasonable doubt as to his guilt. (E.g., People v. Roberts, 122 Cal. 377, 378 [ 55 P. 137 ]; People v. Williamson, *168 168 Cal.App.2d 735, 741 [ 336 P.2d 214 ]; People v. Mercer, 103 Cal.App.2d 782, 790 [ 230 P.2d 4 ]; People v. Lyle, 91 Cal.App.2d 45, 49 [ 204 P.2d 356 ]; People v. Lewis, 81 Cal.App.2d 119, 124 [ 183 P.2d 271 ].)

An alibi can be effective only if the prosecution has specified within particular limits the time and place of the occurrence. Often where the complaining witness identifies the defendant as the person who committed the crime, the only evidence available to the accused in support of his denial is an alibi. The failure of the complaining witness to fix the time and place of the alleged offense deprives the accused of this opportunity. For this reason, the refusal of the trial court to require proof of the date of the offense where the prosecutrix ’ testimony is uncorroborated and inconsistent may alone be grounds for reversal. (People v. McCullough, 38 Cal.App.2d 387, 390 [101 P.2d 531]; Esquibel v. State of Wyoming (Wyo.) 399 P.2d 395 ; cf. People v. Ridout, 154 Cal.App.2d 669, 674-675 [ 316 P.2d 396 ].)

The majority recognizes that when a defendant asserts an alibi and the prosecution has specified the time of the offense, he is entitled to an instruction limiting the inquiry of the jury to “the time that the prosecution evidence points to.” However, the majority holds that it is not necessary to delimit-specific times; it is sufficient to instruct the jury in general terms that it may find that the offense occurred “any time within the time covered within the evidence, ...” The majority reasons that “Requiring the jury to limit its consideration of the time of the offense to that shown by the evidence precludes them from speculating that it may have occurred at a time other than that shown by the evidence, and the instruction given in the present case permitted ho greater latitude than if it had stated the particular months that the evidence showed as the commission of the offense.” (Italics added.)

This is not true; the instruction given did not preclude the jury from speculating nor was it tantamount to restricting the jury to particular months. When a jury is restricted to specific dates, it is not free to consider other times. However, the purported limitation to “any time within the time covered within the evidence, ...” (italics added) is so inherently vague that the jury is actually given uncontrolled discretion not only to speculate as to any time as the time of the crime but also to define and evaluate what it considers to be the supporting “evidence” for that choice. In effect, the instruction enables a jury to circumvent alibi evidence, which it be *169 lieves .to b'e true, on the theory that the prosecution’s witnesses must be mistaken as to the time of the offense, and to speculate that the offense was committed at sometime prior or subsequent to the period covered by defendant’s alibi evidence.

When the prosecution has specified the time of the offense within stated limits, it is improper to allow the jury to speculate as to other times. (E.g., People v. Brown, 186 Cal.App.2d Supp. 889, 892 [ 9 Cal.Rptr. 53 ]; People v. Waits, 18 Cal.App.2d 20, 21 [ 62 P.2d 1054 ] ; People v. Morris, 3 Cal.App. 1, 10 [ 84 P. 463 ].) Too often a jury may believe that the defendant committed the crime, but be unable to convict without disregarding his alibi. The instruction approved by the majority allows a jury to do just that. The jury is free to choose the time of the offense from what it considers to be the “evidence.” Such evidence may be the mere supposition that the complaining witness was mistaken as to the time of the offense and that, therefore, it occurred at some other time. Yet, under the instruction given the jury is not compelled to specify that other time. The jury may literally follow the instruction and find that the offense occurred “any time” within what it deems to be the “evidence.” Clearly, if the jury’s consideration of the evidence was constrained within specified times, it could not so conjecture, and it would be compelled to find that the offense occurred within that time period.

The impropriety of the instruction is not lessened when, as in the instant case, it is apparent from the complaining witness’ own testimony that she is mistaken as to the time of the crime.

In the present ease, no less than 10 times did Jerrine testify that defendant molested her in late May and in early June. At least 13 times she testified that she never visited with defendant until early May, although she indicated that she met him perhaps as early as January. She related the first incident of molestation to the time she was studying for final examinations—in late May. Several times Jerrine pivoted the incidents about defendant’s vacation which she testified was in June, though defendant’s evidence overwhelmingly established his vacation was from May 4 to May 30.

Correspondingly, defendant presented alibi evidence only for the months of May and June.

■ In view of this evidence, the jury might have convicted defendant under three theories. First, narrowly construing the alibi evidence, the jury could have found that the offense. *170 occurred in May or June at a time not covered by such evidence. Second, the jury could have disbelieved portions Of defendant's alibi. Lastly, the jury, under the instruction given, could have believed that Jerrine was mistaken in her choice of dates, and found that the offense occurred before defendant’s vacation in May, a period for which he offered no alibi.

It is this third possibility which discloses the defect in the instruction. Even if, as the majority concludes, the jury could properly find that the offense occurred in April, the instruction did not foreclose other improper alternatives. The evidence indicated Jerrine’s association with defendant as far back as January. The instruction did not prevent the jury from speculating as to any time prior to April. Nor, as discussed above, did the instruction compel the jury to ascertain any particular month. The jury may have merely concluded that the act occurred “sometime” prior to defendant’s vacation.

There is a substantial danger that the jury did actually depart from the evidence in the instant case. Few crimes tend to inflame the passions of a jury as much as where it is claimed that a child has been sexually abused. (See People v. Burton, 55 Cal.2d 328, 340-341 [ 11 Cal.Rptr. 65 , 359 P.2d 433 ].) In such a case, the jury may believe the defendant to be guilty, but be unable to convict him because of a strong alibi. An impassioned jury may seize the slightest opportunity to circumvent the alibi evidence.

In a prior trial of defendant the jury was limited to the specific months of May and June, and could not agree on a verdict. In the instant proceeding, it is apparent that the jury was concerned about the time element for it requested reinstruetion. The jury was again told that it need not be concerned with any particular time, but could find that the offense occurred “any time within the time covered within the evidence, ...” It is quite probable that the jury did just that, found that the offense occurred “any timo” before defendant’s vacation.

Any possibility of error must necessarily be prejudicial. The time element was of paramount importance as indicated by the indecisive jury in the prior trial and obvious concern of the jury in this proceeding. The evidence of defendant’s guilt consisted solely of the testimony of the prosecutrix, an 11-year-old girl. Her detailed and unshakable testimony about her conversations and physical encounters with defendant *171 strengthened her credibility. On the other hand, she demonstrated a knowledge of sex and perversions apart from her contacts with defendant not possessed by most adults. She defined the meaning of obscene terms and related dirty jokes which she heard from a girl friend. She admitted using obscene words while with Mrs. Wrigley, telling her dirty jokes, and typing colorful four-letter words on the Wrigleys’ typewriter. The credibility of her testimony was further eroded by her clearly erroneous determination of defendant’s vacation and the alleged times of the offense. In summary, to convict defendant, the jury would have to accept the extremely detailed testimony of Jerrine as to the occurrence of the offense, but reject her equally definite testimony as to the time of the offense. This became an easy task under the instruction given which is now approved by the majority of this court.

It was not only error to instruct the jury that it could find that the offense occurred “any time within the time covered within the evidence, . . .’’ but it was also error to refuse to limit the inquiry of the jury to the months of May and June, the only months to which Jerrine testified.

The majority asserts that the defendant had the burden of offering alibi evidence for April. However, the majority misconceives the nature of the burden of proof. The prosecution must prove defendant’s guilt, and, where he asserts an alibi, the time of the offense. Jerrine testified that she was molested in May and June, before and after defendant’s vacation. Defendant’s vacation started on May 4. Any time prior to May would be a matter of speculation. Defendant’s guilt cannot be based on conjecture. If the prosecution wanted the jury to consider the month of April, then the People, not defendant, had to offer evidence for that month. This was not done. Defendant was entitled to an instruction delimiting the time of the offense to that shown by the evidence, specifically, May and June.

As discussed above, because of the inflammatory nature of the offense and the questionable credibility of the prosecutrix, any error must be considered prejudicial. Both the instruction given and the failure to instruct as to the specific months of May and June were erroneous, and may have improperly enabled the jury to disregard defendant’s alibi evidence.

I would reverse the judgment.