Brief Bank # B-814 (Re: F 2.20 n8 [Failure To Request Modification Of CJ 2.20 To Include Consideration Of Immunity May Be Ineffective Assistance Of Counsel].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
V.
JOHN DOE,
Defendant and Appellant.
____________________________________________/
APPEAL FROM THE JUDGMENT OF THE SUPERIOR
COURT OF THE STATE OF CALIFORNIA FOR THE
COUNTY OF STANISLAUS
Honorable Roger Beauchesne, Presiding
APPELLANT’S OPENING BRIEF
JIM FAHEY
State Bar #122029
P.O. Box 4956
Arcata, CA 95518-4956
Telephone: (707) 822-5776
Attorney for Appellant by
Appointment of the Court of
Appeal under the Central
California Appellate Program’s
Independent Case System
ARGUMENT
I
DEFENSE COUNSEL PROVIDED PREJUDICIALLY INEFFECTIVE
ASSISTANCE IN FAILING TO REQUEST A CRUCIAL ADDENDUM TO
CALJIC No. 2.20 CONCERNING IMMUNIZED TESTIMONY.
A. Relevant procedural history
The record shows defense counsel realized how vital Mr. L’s testimony would be to the prosecution. On September 14, 1998, two days before voir dire, she filed a written motion to exclude his testimony on the ground it was illegal under Penal Code section 132.5. (CT 472-477.) In pertinent part, section 132.5 provides as follows:
……………………………………..
(b) A person who is a witness to an event or occurrence that he or she knows is a crime or who has personal knowledge of facts that he or she knows or reasonably should know may require that person to be called as a witness in a criminal prosecution shall not accept or receive, directly or indirectly, any money or its equivalent in consideration for providing information obtained as a result of witnessing the event or occurrence or having person knowledge of the facts.
(c) Any person who is a witness to an event or occurrence that he or she reasonably should know is a crime shall not accept or receive, directly or indirectly, any money or its equivalent in consideration for providing information obtained as a result of his or her witnessing the event or occurrence. (1998 Ed.)
Counsel argued section 132.5 should be interpreted as applying not only to financial compensation, but also to promises of immunity from prosecution, since liberty is an extremely valuable form of consideration. (CT 472-477.)Counsel cited a Tenth Circuit case in support of her motion, and argued the illicit agreement Mr. L had made with the prosecutor required that his testimony be disallowed and that the prosecutor’s office be recuse. (CT 473-478.)
The next day, when the attorneys and court were addressing in limine motions, counsel renewed her argument orally, presenting as an exhibit the written contract the prosecutor had made with Mr. L. (RT 46-61.) The prosecutor replied it was not clear Mr. L had received a promise of immunity in this case. (RT 146-149.)
The court rejected defense counsel’s argument. It ruled she could cross-examine Mr. L about any deal he had made with the district attorney’s office, but that the Tenth Circuit’s decision was not binding and that California law does not prohibit prosecutorial purchases of testimony via immunity. (CT 150-156.) [Footnote 1]
Mr. L’s trial testimony, if deemed credible, was devastating to appellant’s defense. (See pp. 9-10, supra.) At the beginning of his direct examination, however, he acknowledged he had the understanding “[t]hat I wouldn’t be charged with anything for my testimony,” and that “I wouldn’t be charged for what I’m involved in this case.” (RT 717-718.)
On cross-examination, Mr. L admitted he initially told the police he did not know anything about the shooting, then changed his story and told them he did. (RT 780-783.) He said that he recalled the officers’ taking him to the police station for questioning, but that he “couldn’t remember” if the officers Mirandized him or told him he was under arrest for three attempted murders. (RT 783-784, 792.) He added, risibly, that he did not wonder or worry about whether he was under arrest, even though the officers had said they thought he was involved in a shooting. (RT 784, 785, 791.)
On further cross-examination, Mr. L admitted he had previously testified as a prosecution witness in Mr. J’s homicide trial, where he had gotten a similar grant of immunity. (RT 786-790.) Asked if he was happy he would not be prosecuted in this case, he replied, “No. That is up to the DA and the judge. It is not me to decide.” (RT 799.) When counsel retorted, “But now that it has been decided, does it make you feel a little better,” Mr. L answered, “I don’t know,” and added that it did not make him feel better to know another jury would not be figuring out if he was guilty of these crimes. (RT 799.) He answered affirmatively when counsel asked if he felt he had helped in the crimes, but said he was not responsible for them. (RT 800.)
In instructing the jurors, the court did not state that a witness’s receipt of immunity from prosecution should be considered in assessing his/her credibility. It did, however, give instructions on the separate subject of accomplice testimony, telling the jurors that if the charged crimes were committed, Mr. L was an accomplice and his testimony should be viewed with distrust for that reason. (RT 1101; see CALJIC Nos. 3.16 and 3.18.) The court also gave CALJIC No. 2.20, the standard witness credibility instruction, telling the jurors as follows:
Every person who testifies under oath is a witness. You are the sole judges of the believability of a witness and the weight to be given the testimony of each witness. (Par.] In determining the believability of a witness you may consider anything which has a tendency in reason to prove or disprove the truthfulness of the testimony of the witness, including but not limited to any of the following:
The extent of the opportunity or ability of the witness to see or hear or otherwise become aware of any matter about which the witness testified;
The ability of the witness to remember or to communicate any matter about which the witness testified;
The character and quality of that testimony;
The demeanor and manner of the witness while testifying;
The existence or non-existence of a bias, interest or other motive;
The existence or non-existence of any fact testified to by the witness;
The attitude of the witness toward this action or toward the giving of testimony;
A statement previously made by the witness that is consistent or inconsistent with the testimony
of the witness;
An admission by the witness of untruthfulness;
The witness’s prior convictions of a felony. (RT 1084-1085; see CALJIC No. 2.20.)
Unsurprisingly, the attorneys devoted good portions of their closing arguments to Mr. L and his credibility. The prosecutor argued the rest of the evidence was “probably” enough, without Mr. L’s testimony, to convince the jury appellant was guilty. (RT 1115.) He added that Mr. L’s story was corroborated “by almost all the other witnesses” (RT 1117)–an assertion it is difficult to understand, since the issue was who shot the victims, and Mr. K.M. was the only other witness to indicate appellant did so. [Footnote 2]
Defense counsel was less kind in her assessment of Mr. L and his story. After explaining that Mr. K.M.’s testimony should be discounted because of the other eyewitnesses’ inability to identify appellant (RT 1136-1138), she told the jury as follows:
[The prosecutor] told you that when Mr. L first spoke with law enforcement officers back in September of ‘96, he left out details. Well, he did that, I suppose. But more importantly, he distorted the facts. Or he told the truth to the … officers, back in September of 1996, then he didn’t speak the truth when he talked to you folks. [The prosecutor] correctly pointed out that when Mr. L testified in April of 198, he did not have immunity in this case. That was an eleventh hour gift conveyed to Mr. L. But he did, of course, have a deal with the District Attorney’s office. That is significant. (RT 1139-1140.)
Later, after discussing other aspects of the evidence, counsel made a renewed, and much longer, attack on Mr. L. She told the jurors as follows:
Let me get to the matter of Mr. L. For him the question, as you are thinking about his testimony, the question should be in your minds is the old cliche, are you lying then or are you lying now? Because, clearly, if what he told the officers at the time of his arrest, in 1996, was true, then what he told you in court is not. Mr. L is almost a professional witness. He told you he has testified for the prosecution on four separate occasions [Footnote 3] and he admitted that in each and every one of those situations he had some sort of a deal with him and the prosecutor. And he told you specifically that on two occasions the deal was for immunity. The deal was he’ll help you to convict someone else, knowing you are not going to prosecute me. Knowing that even though I might have been involved with the crime, I have [a] get-out-of-jail free card. I will help you Mr. Prosecutor … to win your case. He’s a deal maker and the deals he makes are for his benefit.
… Again, I’m asking you to think back to (Detective] Jolene Gonzales’ testimony. One of the last things that she told you was that after a rather lengthy interview with Mr. L, she and her then partner … came to the conclusion, based on the evidence that they had at that time, that Mr. L was not present when the shooting occurred. That he was not present. And based on reaching that opinion, she at least discussed the matter with a superior officer, who concurred with her assessment, and Mr. L was released.
Let me talk about one of those little details that is so troubling in this case again, with reference to what Jolene Gonzales told us. You will remember she said that she first become aware of this case while she and her partner were out on patrol and she told you that she was in the vicinity of Martin Luther King when they started hearing the broadcast, information about the case. And one of the first bits of information that came into them was that a car drove away after the shooting. Remember hearing her say that?
Okay. Let’s go to the diagram where Mr. L, the little pink square on the intersection of Sandburg and Longfellow, remember he said he pulled in there from the north, made a U-turn,parked his car so he is facing towards Emerald. He told you that what he saw and that eventually he took off. Do you remember where he said he went? He said that he turned down Emerald and eventually parked at the school.
Now… if some one of those people made a 911 call, after seeing or hearing the shooting, was correct about having observed a car at that point, that would suggest that Mr. L drove down Longfellow, not Emerald, as he told you. And a detail? Surely, it is a detail. Is it a significant detail? I say yes, again. One of your threshold questions with respect to Mr. L was, was he ever up there? Did he ever go back to the site? Think about that, did he go back? Then of course, the next question is with whom did he go?
The People have their theory about what happened in this case and what was involved and what their various roles were. The evidence, however, suggests that at least one alternative here, which I’m going to ask you to consider and that is that the one person who was involved in the shooting is not my client at all, but rather it was his brother. That is a hard thing for my client to sit here and listen to, I’m sure, but there is some evidence to support that theory. And what is the evidence? First of all, it comes from Mr. J.M.’s in-court identification.
Now we know that all three of those young men were present. But it was Mr. N who Mr. J.M., and only Mr. N, who he remembered. The shooter was described as being between five-eight and five-ten. I’m sure that you recall I had [appellant] stand up next to me so that you could see how tall he was compared to myself. He was about my height or a little shorter. I had Mr. L stand beside me. Definitely not shorter, and I’m not five-foot-eight. And then I had Mr. N stand up, which I’m sure he was quite a bit taller than myself, and he was, certainly, the tallest of the three. Mr. N fits the description that was given by witnesses at the time of the shooting. And Mr. N’s whereabouts at the time the shooting occurred is undocumented, except by himself.
The court has given you a great number of instructions which deal with witnesses and so many of them because, as I said before, the witnesses play such a crucial role in any trial.
When determining the believability of any witness, you need to consider all of the factors that are laid out in the instruction, plus, of course, what your common sense brings to the task of analysis. And while all of the factors are important, one of them needs some special attention in this case. And that is, the witness’s attitude toward the case and toward testifying. I ask you to remember what Mr. L’s attitude was when he came in here and testified. He claimed to have participated in this crime. But at the same time he made that claim he said, “I’m not responsible, not me. All I did was drive the car, so it is not my crime.” There is a certain arrogance behind that. There is, certainly, a lack of human kindness. And those words should give you some insight into his character; give you some insight into whether or not he should be believed.
[The prosecutor], earlier said something about not being able to catch a sewer rat with a church mouse. I’m not quite sure what he meant by that, but it’s sort of an interesting phrase, and I will give you an interesting phrase about Mr. L. The fact that the People elected to contract with the devil doesn’t mean that you should be bound by their contract.
The court has told you that accomplice testimony is very suspect. The accomplice comes into court with his own agenda, intending to incriminate the co-responsible, to his benefit. And that, of course, is what Mr. L has done in this case. I will point the finger of responsibility in that direction in hopes that I’m not going to get blamed. That’s what he did when he talked with the detectives when he was first arrested. And that’s what he did when he was in court. Blame somebody else, deny responsibility, and go home, waving his get-out-of-jail-free card. That’s what he has done, ladies and gentlemen. That’s why you should not believe him. That’s why you should suspect that this is not actually a situation of telling the truth in one situation and lying in the other. it is probably a situation of lying in all contentions, as Mr. L is looking out for himself. (RT 1150-1154.)
B. Relevant law; application to this case
The Sixth and Fourteenth Amendments promise that a criminal defendant will receive effective assistance of counsel. (Powell v. Alabama (1932) 287 U.S. 45, 71; People v. Pope (1979) 23 Cal.3d 412, 422.) Ineffective assistance may occur in numerous ways, one of which is a failure to request a crucial jury instruction. (People v. Cordero (1988) 46 Cal.3d 161, 189-191, J. Mosk, conc.; Arrowood v. Clusen (7th Cir. 1984) 732 F.2d 1364; Lankford v. Foster (1982) 546 F.Supp. 241, 249-253; People v. Gonzales (1975) 543 P.2d 72, 73-74; 3 A.L.R.4th 601, section 20; see also People v. Sedeno (1974) 10 Cal. 3d 703, 717, n.7.)
In People v. Hunter (1989) 49 Cal.3d 957, 976, defense counsel requested an instruction that an immunized witness’s testimony must be viewed with suspicion, and examined with greater care and caution than that of an ordinary witness. Our Supreme Court examined state and federal law, noted that federal law permits such an instruction, but concluded California law does not. (Id., at 976-978.) The Court summed up its ruling as follows:
We conclude, accordingly, that the trial court did not err in refusing to give verbatim the instruction requested by defendant. The general instruction on witness credibility [i.e., CALJIC No. 2.201, coupled with the modified instruction specifically directing the jury to determine whether the immunized witness’s credibility had been affected by the grant of immunity, adequately informed the jury of the necessity to weigh the motives of the immunized witness. (Id., at 978, italics added.)
Three years later, in People v. Echevarria (1992) 11 Cal.App.4th 444, 449-451, another defendant made a similar argument. In rejecting it, the appellate court made this pronouncement:
In this case, the court did amplify CALJIC No. 2.20 by adding the following language to that instruction: Whether the witness is testifying under a grant of immunity.” The trial court’s decision to give this instruction rather than the proffered defense instruction was correct. (Id., at 450.)
The Use Note to CALJIC No. 2.20 now contains an entry citing Echevarria and stating as follows:
When the prosecution relies on the testimony of an immunized witness, it is appropriate upon request to include the following in this instruction, e.g., “whether the witness is testifying under a grant of immunity.” [Citation.] (Use Note to CALJIC No.2.20 (6th Ed., 1996).)
In view of the above authorities and the prosecutions windfall grant of immunity to Mr. L, appellant was entitled to have CALJIC No. 2.20 modified to include the words “whether the witness is testifying under a grant of immunity.” Appellant’s trial counsel requested no such modification, however, so the court had no duty to make it. (People v. Saille (1991) 54 Cal.3d 1103, 1121.) The question which thus arises is whether counsel rendered ineffective assistance by not requesting the Hunter-Echevarria addendum to CALJIC No. 2.20.
This question is easily answered. The record makes it abundantly clear counsel wanted Mr. L’s story kept from the jury if possible, or to discredit it utterly if not. (See Section A, supra.) Counsel’s examination of Mr. L and argument to the jury further show she wanted his gift from the prosecution to discredit him. (Ibid.) This was a reasonable aspiration on counsel’s part, since Mr. L’s own story showed him to be guilty of three attempted murders as an aider and abettor, yet he was not prosecuted at all.
Under the circumstances, it is inconceivable counsel had a tactical reason for not requesting the Hunter-Echevarria addendum to CALJIC No. 2.20. Moreover, since the addendum and a defendant’s right to it are discussed in CALJIC No. 2.20’s Use Note, it is beyond peradventure that counsel should have known about it. Since the addendum could only have helped appellant, counsels failure to request it was not “an informed tactical choice within the range of reasonable competence.” (People v. Pope, supra, 23 Cal.3d at 425; People v. Fain (1969) 70 Cal.2d 588, 600.) Rather, said omission was ineffective assistance for which the record proves there was no tactical reason. (People v. Pope, supra, 23 Cal.3d at 426.) As such, the omission constituted a violation of appellant’s Sixth and Fourteenth Amendment right to the effective assistance of counsel. (Powell v. Alabama (1932) 287 U.S. 45, 71; People v. Pope, supra, 23 Cal.3d at 422.)
C. Prejudice
A defense attorney’s rendering of ineffective assistance requires reversal unless there is no reasonable probability that, absent the error, the defendant would have received a more favorable result. (Strickland v. Washington (1983) 466 U.S. 668, 693-694 [80 L. Ed.2d 674; 104 S. Ct. 2052].) As appellant will explain, the prejudice question is a close one here, but must be resolved in appellant’s favor for several reasons.
First and foremost, there was the trial court’s statement about the strength of the prosecution evidence other than Mr. L’s testimony. After the prosecutor had called all of his witnesses except Mr. L, defense counsel renewed her request that Mr. L not be allowed to testify, and the court made this statement:
With regard to whether or not Mr. L is a necessary witness, it is not, frankly, for the court to decide, although committing on that issue. It is the court’s view at this point, based on the evidence presented that the issue of identity here is, frankly, not overwhelming at this point in this case, and, obviously, it is not for the court to decide what further evidence may or may not be necessary. (RT 685, italics added.)
Since the trial court was present to see and hear the prosecutor’s witnesses, whereas the attorneys and jurists involved in this appeal were not, the above statement is entitled to considerable weight. Seen in that light, it is a strong indication Mr. L’s credibility was pivotal to the prosecution.
Moreover, the record validates the trial court’s perception. As defense counsel pointed out, Mr. K.M.’s identification of appellant as the shooter was undercut by other eyewitnesses’ inability to identify appellant, and by the fact some of them described the shooter as being taller than appellant is. [Footnote 4] It was also undercut by the fact Mr. J.M. tentatively identified Mr. E, who resembles Mr. L, as the shooter. [Footnote 5] Perhaps most important, it was undercut by a major contradiction between Mr. K.M.’s preliminary hearing testimony and his trial testimony. At the preliminary hearing, Mr. K.M. twice averred he did not see the shooter’s gun. (CT 46, 57.) At trial, he testified he saw the gun after it was raised, adding that it was “shiny” and “silver.” (RT 355-357, 410-411.) When asked about his preliminary hearing testimony, he twice claimed he did not remember having said he did not see the gun. (RT 411-412.) Hence, Mr. K.M.’s testimony was scarcely compelling evidence of appellant’s guilt, especially considering the testimony of the other eyewitnesses.
In light of the above facts, the judge was correct about the closeness of this case prior to Mr. L’s testimony. Mr. L’s credibility was thus of pivotal importance, as was the fact his deal gave him an incentive to dump blame on appellant. For that reason, it was essential that the jury consider carefully the effect Mr. L’s windfall had on his testimony and its believability. The conclusion is thus inescapable that the absence of the HunterEchevarria addendum seriously compromised the defense.
Appellant anticipates the Attorney General may recognize appellant is right about most of the above points, but argue that the absence of the Hunter-Echevarria addendum was harmless for two reasons: first, because defense counsels closing argument stressed the importance of Mr. L’s deal; and second, because CALJIC No. 2.20 told the jurors that, in assessing a witness’s credibility, they should consider his/her “bias, interest or other motive. [Footnote 6]
Such an argument must fail. As to the former point, it is black-letter law that a trial attorney’s partisan arguments are no substitute for proper instruction by a judge. (Carter v. Kentucky (1981) 450 U.S. 288, 304 [67 L. Ed.2d 241]; People v. Mathews (1994) 25 Cal. App.4th 89, 99; Goodwin v. Balkcom (llth Cir. 1982) 684 F.2d 794, 803, n. 8; United States v. Bernard (9th Cir. 1980) 625 F.2d 854, 857.) Hence, defense counsel’s general diatribe against Mr. L, and her specific allusions to his deal, were no substitute for an admonition by the judge that a witness’s grant of immunity should be considered in assessing his/her credibility.
As for the “bias, interest or other motive” language in CALJIC No. 2.20, if it were sufficient to advise jurors about grants of immunity, there would be no need for the Hunter-Echevarria addendum to exist, since CALJIC No. 2.20 is given in all criminal cases. [Footnote 7] Implicit in Hunter, Echevarria and the Use Note therefore, is a recognition that the “bias, interest or other motive” language in CALJIC No. 2.20 is not sufficient to advise jurors about grants of immunity. Since such language is hardly the same thing as a specific admonition about grants of immunity, this recognition is appropriate.
In sum, the case at bar was a close one, and the absence of the Hunter-Echevarria addendum seriously damaged the defense. Under the circumstances, there is a reasonable probability appellant would have received a more favorable result, namely an acquittal, but for counsels ineffectiveness in failing to request the addendum. Appellant asks that this Court reverse his convictions.
FOOTNOTES:
Footnote 1: Appellant does not challenge this ruling on appeal.
Footnote 2: See prosecutor’s extended argument about Mr. L’s credibility at RT 1115-1119. See also his rebuttal argument at RT 1156-1157.
Footnote 3: That is, at Mr. J’s preliminary hearing and trial, and at appellant’s prelimiary hearing and trial.
Footnote 4: See pp. 6-8, supra.
Footnote 5: See p. [not included in this briefing], supra.
Footnote 6: See p. 5, supra.
Footnote 7: See Use Note to CALJIC No. 2.20.
