Since appellant had an opportunity to cross-examine the witness-turned-codefendant at the preliminary hearing, the court properly admitted the preliminary hearing testimony under Evidence Code section 1291 when the witness became “unavailable” at trial. A prosecution witness who testified under use immunity at the preliminary hearing became unavailable for trial based upon invocation of the Fifth Amendment when he was charged as a codefendant in the victim’s murder and robbery. Appellant argued that since it was the prosecution who made the witness unavailable by revoking immunity, his preliminary hearing testimony should not have been admitted at trial. The court affirmed. Due process requires the defendant have an opportunity to cross-examine the witness with an interest and motive similar to that in the current proceeding. Here, the trial and preliminary hearing involved the same criminal case, the issue and parties were the same, the strategy to discredit the witness and claim innocence was the same, and the potential penalty, namely incarceration, was the same. In addition, after reviewing the preliminary hearing testimony of the witness-turned-codefendant, it shows defense counsel thoroughly and effectively cross-examined him.
The prosecutor did not commit misconduct as a result of refusing to grant codefendant immunity at trial. Appellant claimed prosecutorial misconduct occurred when the prosecutor refused to grant the witness-turned-codefendant immunity at trial thereby making him unavailable to testify. The court rejected the argument because nothing in the record suggested intentionally tried to prevent the testimony at trial. A prosecutor does not have to grant immunity. The witness had previously given false statements that implicated him in the robbery, but not the murder. But, given the witness’s preliminary hearing testimony firmly showing his complicity in the murder, the prosecutor was justified in concluding he was no longer worthy of immunity.
When a defendant’s post-arrest silence in front of a private party is primarily the result of a conscious exercise of constitutional rights, then the principles of Doyle v. Ohio (1976) 426 U.S. 610 barring comment by the prosecutor on the defendant’s silence should apply. Evidence of appellant’s silence about several aspects of the case during taped phone conversations with a close friend while in jail was introduced by the prosecution at trial via the testimony of the friend and that of the officer who listened to the taped calls and interviewed the friend. The prosecutor then argued to the jury that during conversations with his close friend, appellant failed to offer an innocent explanation for incriminating evidence. Appellant argued the prosecutor committed Doyle error when he urged the jury to infer guilt based on his post-arrest silence. The appellate court agreed. The court rejected respondent’s argument that the Doyle rule does not apply to discussions with private parties. Its application depends on whether the circumstances suggest the defendant is consciously exercising his constitutional rights. The facts surrounding the conversations here suggest that was the case since appellant was speaking to his friend from jail on a phone which relayed institutional warnings that the conversations were recorded. But the error was harmless in light of the totality of the evidence and the instructions given to the jury.