People v. Johnson (1982)

In People v. Johnson (1982) 121 Cal.App.3d 94, the defendant was convicted of raping his best friend's former girlfriend. To impeach her testimony, her former boyfriend, Terry, testified that she asked him face-to-face to tell the defendant that she would drop the charges in exchange for money and his car. Terry testified that she also called him later to see if he had conveyed the demand. (People v. Johnson, supra, 121 Cal.App.3d at pp. 97-100.) On cross-examination, the prosecutor asked Terry if he remembered their prior conversation about the extortion demand. Terry said he did. The prosecutor asked if he remembered saying that the victim spoke to him only once and that was on the phone. Terry said he did not recall saying that. The prosecutor continued, " 'Well, you never mentioned to me any discussion you had with her personally, did you, when we talked on the phone?' " (People v. Johnson, supra, 121 Cal.App.3d at p. 100.) However, Terry responded, " 'Yes, I did, because you asked me--you quoted the same words that I just said to you, and you asked me, did she say those words, and I told you yes, she did.' " (Id. at p. 101.) In argument to the jury, the prosecutor noted that defense counsel never asked the victim about the alleged attempt to extort money and property from the defendant. The prosecutor then focused on Terry, saying, "I had talked to him, as you well know, he's testified to that, that we discussed it. Whether you believe what he said on the stand is entirely up to you. Suppose you did believe it. Wouldn't it again appear to be more--and unfortunately I shouldn't be talking about this, because I think I'm dignifying what to me is an outright lie.' " (People v. Johnson, supra, 121 Cal.App.3d at p. 102.) Concerning Terry's testimony about the extortion, the prosecutor further argued, " 'Well, I'm not going to, as I say, it bothers me to bring this up, because it tends to dignify the fact that you may think that there is some truth toward his statement. I'm not going to bring the victim all the way here just to say, did you say that, and have her say no.' " (Id. at p. 102.) On appeal, the court concluded that the prosecutor's argument was improper and compelled reversal. (People v. Johnson, supra, 121 Cal.App.3d at pp. 103-105.) The court noted that although there was no evidence that the victim would have denied making the extortion demand, the prosecutor nevertheless informed jurors that she would have done so. The court noted that the prosecutor told jurors that he personally believed that Terry's testimony was an outright lie. In doing so, however, the prosecutor was not simply offering an interpretation of Terry's testimony; rather, the prosecutor expressly reminded the jury that he had personally investigated the matter and had personally spoken to Terry, and thus he had direct, personal knowledge based on their conversation that Terry was lying. (People v. Johnson, supra, 121 Cal.App.3d at pp. 102-103.)