Brief Bank # B-590
NOTE: The text of the footnotes appear at the end of the document.
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
THE PEOPLE OF THE STATE OF CALIFORNIA, Number S000000
Plaintiff and Respondent, Crim. No. 00000
v. Sacramento County
JOHN DOE, Superior Court No.00000
Defendant and Appellant.
_________________________________________/
APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA FOR THE
COUNTY OF SACRAMENTO
Honorable Rothwell B. Mason, Judge
APPELLANT’S OPENING BRIEF
LOUIS N. HIKEN
Attorney at Law
Attorney for Appellant
VIII
THE TRIAL COURT ERRED IN DENYING APPELLANT’S REQUEST TO PRESENT EVIDENCE OF POSSIBLE THIRD PARTY CULPABILITY, GIVEN THE SPARSITY OF EVIDENCE THAT APPELLANT COMMITTED THE CRIMES
A. The Offer of Proof Regarding Third Party Culpability.
At the close of the prosecution’s case, defense counsel made an offer of proof regarding evidence he wanted to adduce during his case in chief. (RT 7299-7312.) He explained:
“First of all, your Honor, I would like to bring police officers from the — from Reno who would testify that on or about March 22nd of 1983, March 21st of 1983, they had obtained information from an informant, admittedly, that two Blacks that [sic] been overheard in a bar in that area to have murdered two White — to have murdered and raped two White women in the Sacramento area, and that they, those two Blacks, were going to take off for places unknown.
“I would like to offer, in addition, evidence from the various detectives in this – in this case, Hash, Machen, Reed, Dean,- that they were indeed aware of that information prior to the time Mr. Doe had formally been arrested, that they had been in contact with an Officer Eubanks, specifically.
… [T]he additional information that I would attempt to elicit from those officers is that they were informed by either Hash or Reed or Biondi, or one of our officers, that they need not attempt to locate those two Blacks or the source of the information because they had made an arrest in this case, and as far as they were concerned, it was closed.”
(RT 7299A-7299B.)
Secondly, counsel wanted to offer evidence of a previous rape case in Sacramento involving a victim by the name of Ms. H. (RT 7299B-7300.) Ms. H had been bound up with a telephone cord (as the prosecutor alleged Ms. P was) at the time she was raped, and appellant had been a prime suspect in the case. The semen and fingerprint evidence proved that appellant was not the perpetrator of that crime, and charges had been dropped against him.
Thirdly, counsel wanted to offer testimony concerning the lesbian relationship between Ms. B and Ms. C, not to suggest that Ms. B was in any way responsible for the homicides, but rather to suggest the possibility that Ms. B was the source of the hair fragments located at the crime scene. (RT 7300-7301; see Argument IV, supra, for a full discussion of this aspect of the offer of proof.)
Finally, counsel wanted to:
” . . .go into . . . great detail with regard as to those three to five blacks who are known to have sexually – verbally harassed Ms. C.”
(RT 7303.)
Counsel was referring to the testimony and potential testimony of several witnesses who alluded to the fact that Ms. C had been harassed by several unidentified Black men in the neighborhood. (See, for example, RT 5455; 6694; 6701; 7221; 7360.)
In response to appellant’s offer of proof, the District Attorney filed points and authorities supporting the exclusion of any evidence suggesting third party culpability. (CT 788-794.) The District Attorney argued that the proffered evidence was too speculative to be probative, and that it should be suppressed under Evidence Code § 352 grounds.
The trial court ruled in favor of the prosecution, grouping all of the third party culpability issues together:
“As to three of the four, I grouped them together as one type of proffered testimony. The Reno Police Department informant hearsay-on-hearsay report about two Blacks bragging about a rape of White women in Sacramento or something to that effect, coupled with that, Ms. H the victim of a rape in Sacramento who also was tied up by phone cords, and coupled with that, your general indication you’d like to pursue in more depth the three to five unidentified Black males who had been harassing – put all those three in the general category of what we discussed yesterday as the Perry case type thing.”
(RT 7455.) [Footnote 1]
The court cited People v. Arline (1970) 13 Cal.App.3d 200, People v. Mendei (1924) 193 Cal. 39, and People v. Perry (1980) 104 Cal.App.3d 268 as authority for the proposition that such evidence should be excluded unless the defendant could “directly” connect the third person with the crime charged. (RT 7455-7456.)
B. Admissibility of Third Party Culpability Evidence.
In People v. Hall (1986) 41 Cal.3d 826, this Court outlined the judicial history of the Mendez-Arline test for admitting testimony regarding third party culpability. In Mendez, this Court held that the minimum threshold for admitting such evidence was that it constitute
… substantial evidence tending to directly connect that person with the actual commission of the offense. (People v. Green (1980) 27 Cal.3d 1, 22; see generally Garcia, Third Party Culpability Evidence: A Criticism of the California Mendez-Arline Exclusionary Rule – Towards a Constitutional Standard of Relevance and Admissibility (1983) 17 U.S.F. L.Rev. 441.)”
(People v. Hall, supra, at p. 831.)
Then, in Arline, the Court of Appeal enunciated the even stricter standard that:
” . . . evidence implicating a third party in lieu of the defendant must rise to the level of ‘substantial proof of a probability that this happened.”‘
(Id., at p. 832.)
This Court examined the weakness of the Mendez-Arline line of authority and explained why a reinterpretation was necessary:
“As expressed in the Arline opinion, the basis for excluding evidence of third-party guilt is ambiguous. On the one hand, the opinion purports simply to apply section 352 [citation omitted]; on the other, there is language clearly calling for a threshold showing of ‘substantial proof of a probability’ of such guilt [citation omitted]. We believe the latter language sets too high a standard. As Justice Poche noted in his criticism of Arline, it improperly ‘tends to exclude evidence of third party culpability on all but extraordinarily strong showings.’ (People v. Perry (1980) 104 Cal.App.3d 268, 276 (dis. opn. of Poche, J.)
(People v. Hall, supra, 41 Cal.3d at p. 833.)
This Court then enunciated the proper standard for evaluating such evidence:
“To be admissible, the third-party evidence need not show ‘substantial proof of a probability’ that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant’s guilt.
(Id., at p. 833.)
The Hall decision did not require that “any evidence, however remote, must be admitted to show a third party’s possible culpability.” (Ibid.) Rather, in order to be admissible, the evidence must constitute “direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” (Ibid.) In Hall, at Page 835, this Court alluded to the fact that the wrongful suppression of third-party culpability evidence implicated not only state law, but federal constitutional standards as well (citing Alexander v. United States (1891) 138 U.S. 353).
It is obvious that the trial court could not have anticipated the precise language of the Hall case when he ruled on defense counsels motion. Nonetheless, the court’s ruling on any Evidence Code § 352 matter, should take into account the heightened due process rights of a defendant facing a possible death sentence. Such a concern should have led the trial court to a more critical interpretation of the Arline-Mendez rule in the context of this case.
While the evidence proffered by defense counsel might not have constituted “substantial proof of a probability” that someone other than appellant committed the crimes in question, it just as certainly raised a reasonable doubt of his guilt. There had been many instances at trial where witnesses testified to the dangerous neighborhood in which the victims lived. Furthermore, there were allusions to previous burglaries at their house, to the presence of unidentified, ominous-looking men seen standing in front of the condominium, and other evidence suggesting that appellant was not the only potential source of violence to the two sisters. (See for example, RT 5398, 5454-5456, 6324-6326, 6737.)
In addition, the testimony surrounding the security alarm system in the house reflected the ongoing concern that the victims had for their safety. While the prosecutor did everything within his power to limit the testimony at trial in such a way as to suggest that nobody other than appellant really posed a threat to the victims, the record reflected otherwise. In that context, it was highly probative that a witness in Reno might have been able to identify two Black men who stated that they had raped and murdered two White women in Sacramento on the very night that the instant crime was committed. Testimony concerning the missing suspects would have filled a major gap in the defense case, namely who, other than appellant, might have committed these crimes.
C. The Sparsity of Evidence Against Appellant.
In evaluating the importance of the third-party culpability evidence, it is important to understand the extent to which the prosecution’s case lacked substance in this case. Had appellant not been coerced (see Argument III, supra) into making a statement to the police that he was at the victim’s residence on the night in question, and that he purportedly heard a scream (the latter fact is highly questionable in light of the testimony of Ms. D (RT 5487-5490)) the evidence linking him to the offense was virtually nonexistent. The fact that his fingerprints were found in the car and house only confirmed that he knew the women and had visited their home. Moreover’, there were numerous unidentified fingerprints found throughout the crime scene. The hair fragments, if placed in a proper light, would have done little to implicate him further. (See Argument IV, supra.)
In fact, the actual evidence linking appellant to the instant offense is even slighter than that discussed in two recent decisions, one from this Court and one from the Supreme Court of Florida. In People v. Coleman (1988) 46 Cal.3d 749, Justice BROUSSARD, in his dissenting opinion pointed out the sparsity of evidence linking Coleman to the offenses:
“The evidence in this case to identify defendant as the perpetrator of the crime is so weak that the error must be held prejudicial. The evidence to connect defendant to the crime was the presence of his thumb print and palm print in the bungalow, his false statement to the homicide inspector denying that he had been in the bungalow, and the sperm tests. In finding the error nonprejudicial, the majority omit a crucial item of evidence, place undue weight on the sperm tests, and erroneously claim that the prosecution significantly undermined the alibi evidence.11
(Id., at p. 789.)
In appellant’s case, also, the prosecutor had fingerprints, questionable hair and blood evidence, and appellant’s false statements to the police. While this evidence might have been sufficient to establish his presence at the victims’ residence, even on the night of the homicides, it was certainly not so weighty as to rule out the possibility that other persons were also there that night, and that they, and not appellant, were responsible for the crimes. In that regard, the testimony of the Reno witness was particularly crucial.
In the other case, Thompson v. State (Fla. 1986) 494 So.2d 203, at p. 205, the dissenting opinion of Justice BOYD points out parallel weaknesses in the prosecution’s case against Thompson:
“The weakness in the state’s case against appellant is clearly stated in the majority opinion.
“Appellant’s fingerprint on the box could have been placed there before he discarded the box in which the victim’s body was found, or he could have touched the box inadvertently while throwing trash, into the dumpster.
* * *
“Testimony of a witness who said she saw appellant with the victim talking beside her car showed there were no signs of violence. Appellant lived in the area and could have been there without criminal intent.
“Thompson smoked Marlboro cigarettes. Finding an abandoned Marlboro cigarette near the murder scene did not show he killed the victim.
“The hair found in the victim’s vaginal area was the same type as appellant’s hair, but many other people have the same type of hair.
“I fully recognize that juries are charged with the duty of finding guilt or innocence, and verdicts based on competent and sufficient evidence should not be disturbed by trial or appellate courts. In this case the evidence was not competent and sufficient for conviction.
“The principle argument made against capital punishment is the possible execution of innocent people. To prevent such miscarriage of justice this court must review each trial court record before affirming death penalties.
“Since there is not sufficient competent evidence here to meet the requirements of law, I would reverse the conviction.” (Id., at p. 205.)
D. Conclusion.
In both Thompson and Coleman, as in the instant case, there is the very real fear that sympathy for the victims and the victims’ families, prejudice against an unpopular defendant, and circumstantial evidence of the flimsiest sort can result in an unwarranted imposition of a death penalty. Confronted with such cases, trial courts should admit testimony raising a reasonable doubt that the defendant was the perpetrator of the crime, even if that evidence does not raise the “probability” that a specific third party was responsible for it. In the instant case, the suggestion that appellant’s motive for killing two women he had known for years, merely because they would not have sex with him, was, and is at best, sheer speculation. Evidence suggesting that other persons might have been responsible for committing the crimes was particularly crucial in that context.
The question of motive was the weakest link in the prosecution’s evidence. Appellant’s inability to show that someone else committed the crime was the weakest link in his defense. Both parties should have had the opportunity to present evidence as to these questions, and not just the prosecutor. By unduly limiting appellant’s ability to show that other individuals had been harassing Ms. C and/or Ms. P around the time of the murders, or showing that there were two men in Reno who admitted to having committed the murders of two White women in Sacramento on the night of the instant offenses, the trial judge created prejudicial error which could not be rectified through argument of counsel. In addition to violating the statutes and cases cited above, the asserted errors violated appellant’s rights to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution, and the cruel and unusual punishment clause of the Eighth Amendment. The error requires reversal.
FOOTNOTE:
Footnote 1: The trial court failed to mention the fact that defense counsels offer of proof indicated that the suspects not only said they had raped the women, but had murdered them, as well.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE OF THE STATE OF CALIFORNIA, No. H000000
(Santa Clara County
Plaintiff and Respondent, Sup. Ct. No. 000000)
v.
JOHN DOE,
Defendant and Appellant.
_______________________________________/
APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT OF
THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA
HONORABLE JOHN SCHATZ, JUDGE
APPELLANT’S OPENING BRIEF
SIXTH DISTRICT APPELLATE PROGRAM
in association with
CHARLES M. BONNEAU
Attorney at Law
2631 K Street
Sacramento, CA 95816-5178
Attorneys for Defendant and
Appellant, JOHN DOE
ARGUMENT
IT WAS ERROR TO REFUSE APPELLANT’S PROPOSED INSTRUCTION THAT EFFORTS BY A WITNESS TO SUPPRESS EVIDENCE MUST BE CONSIDERED AS A CIRCUMSTANCE TENDING TO SHOW A CONSCIOUSNESS OF GUILT OF THE CRIME CHARGED AGAINST APPELLANT.
Appellant offered the following instruction, a modified version of CALJIC 2.06:
“If you f ind that a witness attempted to suppress evidence against [himself] [herself] in any manner, such as [by destroying evidence] [by concealing evidence], such attempt may be considered by you as a circumstance tending to show a consciousness of quilt. However, such conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are matters for your consideration.”
(CT 467.)
After argument over the proposed instruction, in which the purpose of the instruction was stated to be a reference to Ms. S’s hiding of the gun found in Mr. T’s apartment, the instruction was denied. (RT 1671.) This was error, since appellant was entitled to an instruction directing the jury’s attention to evidence of another’s guilt.
CALJIC 2.06 is drafted to refer to destroying or concealing of evidence by a criminal defendant. Whether or not any given set of facts may constitute suppression of evidence from which a trier of fact can infer a consciousness of quilt is a question of law. Before CALJIC 2.06 is read to the jury, there must be some evidence in the record which, if believed by the jury, will sufficiently support the suggested inference. (People v. Hannon (1977) 19 Cal.3d 589, 597.)
In the present case there was evidence which could easily have supported the suggested inference. Ms. G testified that she was in Mr. T’s apartment with Ms. E and Ms. S when Ms. E found a small handgun. (RT 1264.) Ms. G stepped out of the room, and Ms. S went into the room where Ms. E was holding the gun. Ms. G reported the incident to the district attorney investigator, but the gun was never located. (RT 1266.)
A criminal defendant is entitled to an instruction on his theory of the case as disclosed by the evidence. Even weak defense evidence requires an instruction based on the hypothesis that it is entirely true. (People v. Clark (1962) 202 Cal.App.2d 513, 517, citing People v. Carmen (1951) 36 Cal.2d 768.)
Although Ms. G believed the gun was a revolver whereas the gun which killed Mr. T was apparently an automatic, she could have been mistaken. More to the point, the hiding of the gun by Ms. S may well have evidenced a consciousness of guilt even if it was not the murder weapon. If Mr. C shot Mr. T, and Ms. S was his accomplice, she may not have been aware of what kind of gun was used. She may have concealed the gun in order to protect herself and Ms. C. Accordingly, there was support in the record to support a reading of modified CALJIC 2.06.
Evidence tending to inculpate a third party is no longer subject to the former rule restricting its admissibility. To be admissible in a criminal prosecution, evidence that a third party committed the crime with which the defendant is charged need not show substantial proof of a probability that the third person committed the act; it need only be capable of raising a reasonable doubt of the defendant’s guilt. Courts should simply treat third-party culpability evidence like any other; if relevant it is admissible unless its probative value is substantially outweighed, by the risk of undue delay, prejudice, or confusion. (People v. Hall (1986) 41 Cal.3d 826, 833-834, overruling People v. Mendez (1924) 193 Cal.39 and People v. Arline (1970) 13 Cal.App.3d 200.)
Consistent with the holding of People v. Hall, supra, a criminal defendant is entitled to not only introduce evidence of third-party culpability, but is also entitled to an instruction on consciousness of guilt if there is evidence that a third party concealed evidence. There was substantial evidence that Ms. S was in San Jose with Mr. C the day of Mr. T’s death (RT 1436), that she later concealed her relationship with Mr. C from police investigators (RT 1356, 1555), that her mucous was on a pillow case stained with Mr. T’s blood (RT 1000) , and that a man and woman matching the general description of Mr. C and Ms. S were seen outside Mr. T apartment at about the time of the shooting. (RT 1073, 1094.) This evidence not only supported an inference that Ms. S was involved in the shooting, but rendered the denial of the consciousness of quilt instruction an abuse of discretion and prejudicial error. Accordingly, appellant’s conviction must be reversed.
LAW OFFICES OF THE PUBLIC DEFENDER
MARK WINDHAM, Deputy Public Defender
State Bar No. 112865
210 West Temple Street, Los Angeles, 90012
Telephone: (213) 974-3062
Attorney for Defendant
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
THE PEOPLE OF THE STATE OF CALIFORNIA, No. BA000000
Plaintiff,
v.
JOHN DOE,
Defendant.
______________________________________/
MOTION IN LIMINE TO ADMIT EVIDENCE OF MR. Z’S CONVICTION
OF MOLESTATION OF ROGER G.
TO THE HONORABLE JUDGE OF THE SUPERIOR COURT, AND TO IRA REINER, DISTRICT ATTORNEY FOR THE COUNTY OF LOS ANGELES, AND/OR REPRESENTATIVE:
By this motion, defendant seeks to admit evidence of Mr. Z’s conviction of molestation of the victim in this case, Roger G.
This motion is based upon the attached Memorandum of Points and Authorities, exhibits, and the files and records of this case, and such further evidence and arguments as may be received at the hearing of this motion.
Dated this 21st day of September, 1992.
Respectfully submitted,
WILBUR F. LITTLEFIELD,
PUBLIC DEFENDER
By
MARK WINDAM
Deputy Public Defender
INTRODUCTION
After defendant Doe successfully moved to sever his trial from that of co-defendant Mr. Z, Zamora entered a guilty plea to the count alleging molestation of the alleged victim in this case, Roger G. The defense will argue that Mr. Z’s molestation of Roger G., which has been proved beyond a reasonable doubt, explains Roger’s injury, raising a reasonable doubt that defendant Doe is guilty. Presentation of this defense requires admission of Mr. Z’s guilty plea and conviction.
POINTS AND AUTHORITIES
I.
EVIDENCE OF THIRD PARTY CULPABILITY THAT
TENDS TO RAISE A REASONABLE DOUBT OF
DEFENDANT’S GUILT IS ADMISSIBLE
People v. Hall (1986) 41 Cal.3d 826, 844, held it was error to exclude evidence that a particular person other than the defendant may have been the killer: shoe prints, left-handedness and that party’s knowledge of unique particulars tended to connect him to the murder. The Court held: “To be admissible, the third party evidence need not show “substantial proof of a probability” that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant’s guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party’s possible culpability…. [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt; there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” In the case at bar, proof beyond a reasonable doubt that Mr. Z actually molested Roger G. on or about the time Mr. Doe is alleged to have done this clearly would satisfy Hall.
People v. Kaurish (1990) 52 Cal.3d 648, 685, upheld exclusion of evidence that a third party had a motive to kill the victim because there was “nothing to link” the third party “to the actual perpetration of the crime.” In the case at bar the defense offers more than mere motive or opportunity: an actual conviction of another person in the identical case. Clearly the facts of this case are closer to those of Hall, Supra, rather than Kaurish, supra and in fact are even stronger than in Hall, Supra.
In People v. Leonard (1983) 34 Cal.3d 183 admission of a co-defendant’s guilty plea over the defendant’s Evidence Code § 352 objection was prejudicial error, but of course that is the opposite situation to the case at bar. There, proof of an accomplice’s guilty plea was offered to show defendant’s guilt in a prejudicial fashion far outweighing the probative value of that conviction. When evidence is offered to prove that another person committed the crime, rather than the defendant it is error to exclude evidence meeting the standard of Hall, supra. For example, in People v. Jackson (1991) 235 Cal.App.3d 1670, evidence of a third party’s admission of-guilt thirty minutes after the offense, was excluded upon the People’s Evidence Code § 352 objection. This was reversible error:
The trial court was certainly correct in determining that the evidence was strongly probative. It met the requirements of section 350 and People v. Hall, supra …. Just as obviously the trial court was incorrect as a matter of law in concluding that the evidence was prejudicial. “[A] defendant’s due process right to a fair trial requires that evidence, the probative value of which is stronger than the slight-relevancy category and which tends to establish a defendant’s innocence cannot be excluded on the theory that such evidence is prejudicial to the prosecution.” (People v. Reeder (1978) 82 Cal.App.3d 543, 552, 147 Cal.Rptr.275.) Here, evidence of Tolbert’s statements made some 30 minutes after the shooting in the presence of three other people was prejudicial only in the sense that it cast doubt on the prosecution’s case against defendant.
235 Cal.App.3d at p.1680.
In the case at bar the probative value of a conviction is even stronger than the mere admission in Jackson, supra. Accordingly, the conviction must be admitted.
Admission of this evidence is required not only by California law but also by the United States Constitution’s Due Process Clause, which guarantees the right to present exculpatory evidence. Davis v. Alaska (1974) 415 U.S. 308, Olden v. Kentucky (1988) 109 S.Ct. 480, Chambers v. Mississippi (1973) 410 U.S. 284, 299-302. Justice requires no less.
Respectfully submitted,
WILBUR F. LITTLEFIELD,
PUBLIC DEFENDER
By
MARK WINDHAM
Deputy Public Defender
