Brief Bank # B-868 (Re: F 2.92 n16 / F 2.92f / F 2.92i [Failure To Request Expanded Eyewitness Instructions As Ineffective Assistance Of Counsel / Eyewitness Identification: Consideration Of Whether The Witness Changed His Or Her Mind About The Identification])
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Date Of Brief: October, 2000.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA, Case No. C000000
Plaintiff and Respondent, Sacramento County
v. No. 000000
Defendant and Appellant.
APPELLANT’S OPENING BRIEF
On Appeal from the Judgment
of the Superior Court of Sacramento County
the Hon. Gary S. Mullen, Judge
Attorney at Law
Bar No. 128461
419 Merlot Drive
Cloverdale, CA 95425
Tel: (707) 894-9311
Fax: (707) 894-4737
Attorney for Appellant
DEFENSE COUNSEL’S FAILURE TO REQUEST EXPANDED EYEWITNESS JURY INSTRUCTIONS AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL REQUIRING REVERSAL
As the trial court itself stated, “The real issue in the case is one of identity. I don’t believe the defense is disputing that the injury occurred, but rather that it was not his defendant that inflicted it.” (RT 7; see also RT 22.)
The prosecution presented numerous eyewitnesses each of whom had problems identifying appellant at some stage of the proceedings, and the defense’s only witness presented evidence tending to show that appellant was not at the scene of the offense. Therefore, it was critical to appellant’s case that the jury be fully instructed with regard to eyewitness testimony. While standard CALJIC eyewitness instructions were given, appellant’s trial counsel failed to request that said instructions be amplified in order that the jury might better evaluate the most crucial evidence in the case. Considering the problematic nature of the prosecution’s eyewitness testimony, instructions which provided more guidance relevant to the evidence in the case could have resulted in a more favorable verdict for appellant. Counsel’s failure to request such instructions constitutes ineffective assistance of counsel requiring reversal of the conviction.
B. Summary of the Prosecution’s Eyewitness Testimony
The victim, Mr. B, testified that his memory of the assailant’s hair and facial features “was dead certain” even if “still a but [sic] blurry.” (RT 59.) He testified that while he was able to get a good look at the person at the time of the offense, his memory of the event was better at trial than it had been at the preliminary hearing six months earlier. (RT 75-76.) At a photographic lineup shown to Mr. B at the hospital the day after the incident, Mr. B preliminarily identified appellant then changed his choice to another person. (RT 240.) He stated he was sedated at the time. (RT 49-50.) At trial, Mr. B did not recognize the clothing the police had seized from appellant on the day of the incident. (RT 61-62.) He testified that he had appeared at “numerous” previous court appearances and that before testifying at trial the prosecution had permitted him to read his former testimony at the preliminary hearing. (RT 63.)
One of three eyewitnesses to the assault, Ms. C identified appellant from the photographic lineup (RT 129), but was unable to identify him at the trial. (RT 99-100.) Ms. G, who was with Ms. C when the incident occurred, told the police on the day of the incident that she doubted she would be able to identify the assailant (RT 154), and was never shown the photo lineup. (RT 137-138, 153.) Moreover, Ms. G was unable to
to identify appellant as the perpetrator at the preliminary hearing. (RT 141, 153.) Subsequently, at trial Ms. G did not make an in court identification of appellant, but rather testified that photos of appellant shown to her at trial might be the person she saw in the park. She testified that differences in appearance accounted for her inability to make a certain identification. (RT 141-142, 152-154.)
The third eyewitness, Mr. H, stated that he had seen appellant many times in the park prior to the day of the offense. (RT 166.) Further, Mr. H testified that he did not get a good look at the suspect, as he was not watching the whole time and, when he did, he saw the man mostly from his back. (RT 162-163.) When presented with the same photo lineup shown to Mr. B, Mr. H did not identify appellant and, in fact, picked a different person than the victim had. (RT 241.) At the preliminary hearing, Mr. H first identified appellant then withdrew his testimony, stating he was no longer sure, because he had seen appellant so many times before, and his appearance had changed since the incident. (RT 166.) Also influencing his original identification of appellant at the preliminary hearing was the fact that Mr. H had been told he would see sitting at the defendant’s table the person that had been arrested on the day of the offense. (RT 183.) Finally, as with Ms. G, Mr. H was unable to make an in-court identification of appellant, again citing appellant’s changed appearance. (RT 171.)
Mr. P, the paramedic who assisted Mr. B after the assault, testified that at the preliminary hearing he asked Mr. B if appellant, who was present in court, was the man who had attacked him. Mr. B responded that he was. (RT 193-194; see also Mr. B’s testimony at RT 47-48, 69.) Counsel, in his closing argument, highlighted Mr. P’s discussion with Detective Buck wherein Buck indicated “there were ID problems in this case” and that Mr. P then made suggestive comments to Mr. B at the preliminary hearing about identifying appellant. (RT 505-506.) He noted that Ms. C “couldn’t ever make a solid ID in court” and “was at best hazy” about her photo identification of appellant. (RT 515, 517.) Similarly, he argued that Mr. H gave conflicting and dubious identifications of the suspect. In fact, counsel stated, “All these folks in the same spot, there’s never been one true, solid in-court ID.” (RT 517.) Counsel urged the jury to view the case as “an ID case out of the gate” and “as long as this case exists, this will be a case where there are ID problems all over it.” (RT 519.)
The jury deliberated nearly two full days on a factually simple case. (See CT 174, 177, 187.) Tellingly, they requested a readback of both Ms. C’s and Mr. H’s eyewitness testimony, and asked if they could make a conclusion as to whether appellant was left or right-handed. (CT 175-176, 179.)
C. Standard and Modified Eyewitness Identification Jury Instructions
The substantive discussion regarding the selection of jury instructions apparently occurred off the record, but the points of contention were summarized on the record by the court. None of the disputed instructions nor any of the requests by defense counsel concerned eyewitness testimony. (See RT 563-566.)
Two instructions on eyewitness testimony were given: CALJIC Nos. 2.91 and 2.92. [Footnote 1] The instruction critical to appellant’s argument herein was No. 2.92, which, as given in this case, provided as follows:
Eyewitness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crimes charged. In determining the weight to be given eyewitness identification testimony, you should consider the believability of the eyewitness as well as other factors which bear upon the accuracy of the witness’ identification of the defendant, including, but not limited to, any of the following:
The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act;
The stress, if any, to which the witness was subjected at the time of the observation;
The witness’ ability, following the observation, to provide a description of the perpetrator of the act;
The extent to which the defendant either fits or does not fit the description of the perpetrator previously given by the witness;
The cross-racial or ethnic nature of the identification;
The witness’ capacity to make an identification;
Whether the witness was able to identify the alleged perpetrator in a photographic or physical lineup;
The period of time between the alleged criminal act and the witness’ identification;
Whether the witness had prior contacts with the alleged perpetrator;
The extent to which the witness is either certain or uncertain of the identification;
Whether the witness’ identification is in fact the product of his [or] her own recollection;
Any other evidence relating to the witness’ ability to make an identification.
The language is that of CALJIC No. 2.92 (4th ed. 1987 supp.).
Trial counsel could, and should, have requested the following additions to the factors specified in No. 2.92:
1. The length of time the witness saw the perpetrator;
2. The positions and distances between the witness and the perpetrator at various times;
3. Whether the witness’ memory was or was not affected by the intervening time and events.
4. At time of arrest, defendant was not dressed in clothing matching the description of the perpetrator.
(See FORECITE F. 2.92b.) Factors 1 and 2 are more specific than those described in the standard jury instruction and would have keyed jurors toward the eyewitness testimony of Ms. C and Ms. G regarding their positions relative to the incident (Ms. G had her back to the fight) (see RT 100-102, 148), their distance from the altercation (approximately 35 to 50 feet) (RT 103-104, 110), and the fact that neither Ms. G nor Mr. H watched the entire event. (RT 148, 162-163.)
Factors 3 and 4 have no direct or sufficiently similar counterpart in the CALJIC instruction. As shown by the facts described in subsection D, above, much of the eyewitness testimony was affected by intervening opportunities to see appellant in court, and Ms. G and Mr. H both stated the change in appellant’s appearance affected their ability to identify him as the assailant.
CALJIC No. 2.92 was born from the decision in People v. West (1983) 139 Cal.App.3d 606.
The West instruction has been formalized, with the addition of several other factors (including the length of time between the alleged criminal act and the witness’s identification, and whether the witness had prior contacts with the alleged perpetrator) in CALJIC No. 2.92 (4th ed. 1987 pocket pt.), entitled “Factors to Consider in Proving Identity by Eyewitness Testimony.” This model instruction, with appropriate modifications to take into account the evidence presented at trial, will usually provide sufficient guidance on eyewitness identification factors.
(People v. Wright (1988) 45 Cal.3d 1126, 1141.) While Wright noted that CALJIC No. 2.92 “usually” is sufficient instruction on eyewitness evidence, the Court there held it was error to refuse the defendant’s request for three additional factors to be incorporated into the instruction, because the factors were relevant and expressed in a condensed, neutral form. (Id., at 1144.) Those additional factors were “1) the witness’s ability to observe the person being identified at the time of the crime; 2) the reliability of the witness’s subsequent identification of the defendant; and 3) inconsistent or erroneous identifications the witness may have made before trial.” (Id., at 1139.)
People v. Johnson (1992) 3 Cal.4th 1183, 1230-1234, fn. 12, provides further authority for instruction upon several factors not specifically enumerated in CALJIC 2.92, and specifically approved factors 1 through 3 listed above that appellant submits should have been requested by counsel. As to factor 4, see Dey v. Scully (E.D.N.Y. 1997) 952 F.Supp 957.
The Judicial Council of California has recently circulated a draft of an eyewitness identification instruction which includes at least three questions for the jury which counsel should have included here as they are directly related to the evidence in this case:
i. Did the witness ever fail to identify the defendant?
j. Did the witness ever change his or her mind about the identification?
k. How certain was the witness when he or she made an identification?
(See Judicial Council of Cal., Proposed Instruction No. 415, Eyewitness Identification, May 200, www.courtinfo.ca.gov/judicial council.) [Footnote 2] As noted previously, here the witnesses were all unable to identify appellant either at trial (in fact, none were able to make an in-court identification at trial) or in earlier proceedings, or retracted prior identifications, and had varying degrees of certainty about the identifications that they did make.
Finally, another modification which should have been requested was: “You must view eyewitness testimony with caution and evaluate it carefully.” This language was included in the instruction approved by People v. Johnson, supra, 1230, fn. 12. The point was essentially argued by counsel, but he was unable to point the jury to an instruction which supported the argument. This language was important not because it highlighted a particular point of evidence, but, on the contrary, because it put all the eyewitness testimony into a critical context for the jury’s consideration.
The trial court had no sua sponte duty to modify CALJIC No. 2.92, but modifications must be granted where requested and supported by the evidence. (People v. Wright, supra, 45 Cal.3d at 1143-1144; People v. Fudge (1994) 7 Cal.4th 1075, 1110; People v. Palmer (1988) 154 Cal.App.3d 79, 89.) It should be noted that CALJIC No. 2.92 has a “blank” provision for such requests, but in this case nothing was added. (CT 219.)
Thus, it was incumbent on counsel to request tailoring the instruction to the eyewitness testimony adduced at trial and which he argued to the jury. As he noted, there were serious problems with the prosecution’s ability to identify appellant as the suspect in this case. The above described modifications would have greatly increased the chances of a more favorable verdict in this case. As shown, the jury was clearly troubled by the state of the evidence, and an eyewitness identification instruction which was based directly on the evidence, rather than a generic CALJIC instruction, would have made the evidence more understandable and certainly would have put it in a more defense oriented context. The failure to present appellant’s attack on the issue of identification prejudiced his right to a reliable jury determination. “Constitutional guarantees of due process and trial by jury require that a criminal defendant be afforded the full protection of a jury unfettered, directly or indirectly.” (United States v. Spock (1st Cir. 1969) 416 F2d 165, 182.) The failure to instruct on an element of the offense or an instruction directing the jury to find an element against the defendant violates the Sixth Amendment right to trial by jury, applied to the States through the 14th Amendment, and the 14th Amendment right to due process. (See United States v. Caldwell (9th Cir. 1993) 989 F.2d 1056, 1060-61; People v. Cummings (1993) 4 Cal.4th 1233, 1312-14; Carella v. California (1989) 491 U.S. 263, 265-66.)
D. The Failure to Request a Tailored Eyewitness Identification Instruction Constituted Ineffective Assistance of Counsel
The Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution guarantee a criminal defendant the right to the assistance of counsel. Ultimately, the purpose of this right is to protect the defendant’s fundamental right to a fair trial with a reliable result. Viewing the right and it’s purpose together, it must be seen that the right entitles the defendant not to some bare assistance but rather to effective assistance. (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1447.)
While a defendant is entitled to raise a claim of ineffective assistance of counsel on appeal, the appellate court’s review is limited to the record on appeal and it may not speculate about matters outside the record. (People v. Moreno (1987) 188 Cal.App.3d 1179, 1185.) An appellant’s claim of the denial of effective assistance of counsel has two components. First, he must show counsel’s performance was deficient when reviewed by an objective standard of reasonableness under prevailing professional norms. (People v. Ledesma (1987) 43 Cal.3d 171, 216; People v. Fosselman (1983) 33 Cal.3d 572, 583-584.) Second, he must show prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 691-692; People v. Pope (1979) 23 Cal.3d 412, 425; People v. Jackson (1996) 13 Cal.4th 1164, 1217.)
The decisions made by trial counsel are evaluated in the context of the available facts. (Strickland v. Washington (1984) 466 U.S. 668, 690.) Trial counsel’s failure to protect the a client’s interest in fair trial can be shown where there could be no satisfactory explanation for counsel’s performance, or the record on appeal affirmatively discloses that counsel had no rational tactical purpose for the act or omission. (People v. Ochoa (1998) 19 Cal.4th 353, 434; People v. Castillo (1997) 16 Cal.4th 1009, 1015; People v. Sanchez, supra, 58 Cal.App.4th at 1448.)
Prejudice is shown where there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (People v. Sanchez, supra, 58 Cal.App.4th at 1448.)
Here, there cannot have been any rational tactical or strategic purpose in having failed to request the proper eyewitness instructions in what trial counsel and the court expressly described as an identification case. Counsel’s omission constitutes a denial of effective representation sufficient to under-mine confidence in the verdict, and to require reversal.
For the foregoing reasons, appellant respectfully submits that his conviction be reversed.
Dated: 6/25/02 Respectfully submitted,
Attorney for Appellant
Footnote 1: CALJIC No. 2.91, as read to the jury here, provided: “The burden is on the People to prove beyond a reasonable doubt that the defendant is the person who committed the crime with which he is charged. [¶] If, after considering the circumstances of the identification and any other evidence in this case, you have a reasonable doubt whether defendant was the person who committed the crime, you must give the defendant the benefit of that doubt and him not guilty.” (CT 217.)
Footnote 2: FORECITE Note: The proposed Judicial Council instructions are now located at a new web address:
Scroll down to “Criminal Jury Instructions.” The instructions are in Adobe Acrobat format.