Defendant was convicted, following a jury trial, of first degree murder (Pen. Code, § 187, subd. (a))
During a period of at least one year preceding the May 19, 1984, murder of Ruby Gonzales, she had an affair with Yeyo Blanco, who was married to defendant's sister, Inez Blanco. By April 1984, Yeyo Blanco had moved into Ruby Gonzales's house in Lompoc, in Santa Barbara County. He told his wife that he and Gonzales wanted to get married and that Gonzales was going to have an operation, at his expense, to reverse a tubal ligation so they could have children together.
On several occasions during this period, Inez Blanco had public arguments and physical altercations with Gonzales and threatened to have her
May 18, 1984, the day preceding the murder, was the wedding anniversary of Yeyo and Inez Blanco. Inez Blanco, who lived in Lompoc, twice visited her husband at work in Oxnard that day and attempted to hold his hand, but he refused and asked her to leave.
Later that day, Inez Blanco was in her automobile, stopped at a stop sign in Oxnard, when defendant called to her. She had not seen him for a long time and invited him to enter the vehicle. Defendant, who had "a drug problem," asked his sister to loan him money. She declined. Defendant searched under the automobile's floor mats and found some coins which Inez Blanco said he could keep. They later parted, and Inez Blanco drove home to Lompoc.
Approximately 3 a.m. on May 19, 1984, Inez Blanco was awakened by a telephone call from defendant, who asked for an advance of money from their mother's estate, of which Inez Blanco was executrix. She refused. Inez Blanco later told a police officer that her brother had seemed desperate for money.
Shortly after 5 a.m. that day, Yeyo Blanco left Ruby Gonzales's house to go to work, leaving the front door unlocked. Gonzales was awake but remained in bed. Yeyo Blanco drove by his wife's home and noticed that her Oldsmobile Cutlass automobile was not there.
Soon after Yeyo Blanco left the house, Gonzales's 13-year-old daughter Marci was awakened by the sound of her mother screaming for help. Marci seized a broom and ran into the hallway, where her mother was wrestling with a man whom Marci did not recognize. Marci began hitting the man over the head with the broom handle and then, at the urging of her mother, ran to telephone the police. Her mother was yelling, "Chato, leave me alone. I will give you the money and the jewelry." While Marci was using the telephone, she heard a gunshot. She informed the police her mother had been shot, ran back to the hall, and heard two more gunshots. Observing her three younger sisters standing in the hallway, she pushed them into a bedroom, instructing them to remain there. The assailant ran off. Because it was dark, Marci was unable to describe the attacker in detail, but said he was wearing a long-sleeved plaid shirt, a vest, and a baseball cap. Subsequently, a long-sleeved
An autopsy revealed that Gonzales had been stabbed five times and had been shot three times in the head and once in the shoulder with a .22-caliber firearm. The shots had been fired at close range, and any one of the head wounds would have been fatal and would have rendered the victim immediately unconscious.
Shortly after the murder, police investigators spoke with Inez Blanco, who lived a few blocks from the scene of the crime. She told them that her automobile was missing and that she might have left the keys in the vehicle.
When Yeyo Blanco returned to Ruby Gonzales's house on the day she was murdered, he removed from her bedroom his gold and diamond bracelet and $600 in cash. Upon being told by Marci that her mother had called the killer "Chato," Yeyo Blanco said he might know who that was, instructed her not to repeat that information to the police or to anyone else, and stated he "would work everything out."
Sometime during the month preceding her murder, Ruby Gonzales had been at a restaurant in Oxnard with Yeyo Blanco and happened to meet one of Inez Blanco's brothers, Valentino, who used the nickname Chato. Ruby Gonzales was with Valentino no more than five minutes on this occasion, but evidence was received establishing that, two years earlier, she had worked for a few weeks with Valentino. Valentino was in jail on the date of the murder, but the prosecution introduced into evidence photographs of Valentino and defendant to establish that the two brothers were similar in appearance.
Approximately 9 a.m. on the day of the murder, upon leaving his home in Oxnard (located approximately 100 miles from Lompoc), Pastor Joe Valdez found defendant lying on the seat of an automobile that was parked in front of Valdez's home. For some time, Pastor Valdez had attempted to rehabilitate drug addicts by referring them to Christian homes in various locations around the state. Pastor Valdez had known defendant for 20 years, was aware defendant had "a drug problem," and previously had told him that if he ever felt the need to go to a Christian home, he should see Pastor Valdez. Defendant appeared tired, and Pastor Valdez "assumed" he was under the influence of drugs. Defendant said the vehicle he was in belonged to his sister.
As the men spoke, Pastor Valdez asked defendant whether he was ready to go to a Christian home, and defendant replied he was. Pastor Valdez
About the time of the murder, defendant sometimes slept in a truck parked at his brother's house in Oxnard. He did not inform anyone at that residence of his plans to leave town.
When defendant arrived at the Christian home in Madera, he registered under the false name Jess Pantoja. He appeared to be suffering from drug withdrawal.
On May 22, 1984, Inez Blanco's automobile was found in a parking lot adjacent to the Greyhound bus depot in Oxnard. Defendant's fingerprints were found on the outside, driver's side rearview mirror, the inside rearview mirror, and the gearshift lever. The position of the fingerprints found on the gearshift lever indicated defendant was the last person who drove the automobile. As a result of the foregoing circumstances, a warrant was issued for defendant's arrest on a charge of auto theft.
Defendant remained in Madera for nearly two months and then transferred to another Christian home in Phoenix, Arizona, where he registered under the false name Jess Mejia. He informed the director of the program he was wanted by the police and remained there until the program closed several months later.
During his stay in Phoenix, defendant also used the false name Jess Moran. He used his roommate's Social Security card to obtain employment, from which he subsequently was discharged when it was discovered he had falsified his identity. Defendant told a friend in Phoenix that he had shot someone during a robbery, later adding that defendant was "wanted for murder in California." The witness believed, however, that defendant was referring to a robbery of a fast-food restaurant. Defendant told another friend that he previously had owned a .22-caliber handgun. This witness stated that defendant consistently wore long-sleeved shirts.
In March 1985, police investigators discovered defendant had placed collect telephone calls from Phoenix to his sisters in California. On March
Approximately two months after the murder of Gonzales, Yeyo Blanco resumed living with Inez Blanco. Additional evidence, whose admission defendant characterizes as error, will be summarized in connection with the discussion of defendant's arguments.
Guilt Phase Issues
1. Admission of Multiple Hearsay
Defendant contends the trial court erred in admitting into evidence the testimony and tape-recorded statements of Mariella Perez, because they contain multiple hearsay that does not fall within the hearsay exception, set forth in Evidence Code section 1235, for prior inconsistent statements.
Inez Blanco's 15-year-old daughter, who also is named Inez, testified that, on the morning Ruby Gonzales was murdered, defendant (her uncle) had not come to the house she shared with her mother and sisters. She also denied having told her older sister Juanita that defendant had come to the house on the morning of the murder with blood on his hands and clothing, that he had admitted killing Gonzales, and that he had received from their mother the keys to the Oldsmobile.
Juanita testified she was on a school field trip the day of the murder and returned home the following day. She denied that her sister Inez ever told her that defendant had come to their house on the morning of the murder with blood on his hands and clothing, had admitted having killed Gonzales, and had received from their mother the keys to the Oldsmobile. Juanita also denied having told her close friend Mariella Perez that her sister Inez had made such a statement.
Perez testified that approximately one year after Gonzales was killed, Juanita Blanco visited her and, while they were alone in Perez's bedroom, told her that Juanita had learned from her sister Inez that defendant had come to their house the morning of the murder with blood on his shirt and had spoken to their mother. Perez did not recall Juanita Blanco stating that defendant had admitted killing the victim, or that their mother had given defendant the keys to her automobile.
In the second interview, Perez related a statement made by Juanita Blanco approximately one month prior to the murder, that at least one year earlier her mother had planned to have the victim killed. Shortly after the murder, Juanita Blanco stated to Perez that she suspected her mother had planned the murder, because her mother had not appeared surprised at the theft of the Oldsmobile.
Approximately one week after the murder, Inez Blanco and her three daughters moved out of Lompoc. Sometime long after the murder, Juanita Blanco and her two sisters visited Perez. During that visit, Juanita stated that her sister Inez had seen defendant at the front door of their house on the morning of the murder, "with blood all over him," and that defendant had inquired, "What am I going to do?" Juanita's mother gave defendant the keys to her automobile, and defendant left. When Perez was asked about the man who had entered her house and threatened her, Perez at first declined to discuss the matter, saying it was "not important," and then denied the incident had occurred.
Read together, these two statutes permit admission of multiple hearsay where each hearsay level constitutes a prior inconsistent statement. (Cf. People v. Whitt (1990) 51 Cal.3d 620, 643, fn. 15 [274 Cal.Rptr. 252, 798 P.2d 849].) Such is the situation in the present case.
We are unaware of any published decision addressing the precise question whether multiple hearsay is admissible where each hearsay level constitutes a prior inconsistent statement. But none of the decisions addressing similar questions suggests that such evidence is inadmissible.
This court has upheld the admission of multiple hearsay in appropriate circumstances (People v. Pensinger (1991) 52 Cal.3d 1210, 1266 [278 Cal.Rptr. 640, 805 P.2d 899]), and the Court of Appeal has upheld the admission of multiple hearsay where one of the hearsay levels was a prior inconsistent statement. In In re Ricky B. (1978) 82 Cal.App.3d 106, 112-113 [146 Cal.Rptr. 828], a witness testified he had overheard a conversation between the defendant and another person but denied that the discussion concerned a stolen van. A police officer was permitted to testify that, prior to trial, the witness had stated that during the overheard conversation, the defendant and his companion discussed having stolen a van. The Court of Appeal ruled this multiple hearsay properly was admitted, because the witness's pretrial statement to the officer was a prior inconsistent statement
The situation is no different where, as in the present case, each level of hearsay constitutes a prior inconsistent statement.
Defendant contends the reason for the rule embodied in Evidence Code section 1235, allowing admission of prior inconsistent statements, applies only to single-level hearsay.
Defendant contends the multiple hearsay should not have been received, because each declarant denied having made the alleged prior inconsistent statement.
To be sure, it is possible that Perez lied and the statements never were made. But the possibility of falsehood adheres in nearly all testimony. The jury had a full opportunity to evaluate Perez's testimony and judge her credibility, as well as the credibility of Juanita Blanco and her sister. It would make little sense to hold that Juanita's and her sister's denials of their statements rendered inadmissible Perez's testimony to the contrary. It was for the jury to resolve this conflict and to determine the value of this crucial piece of evidence.
Defendant observes that if multiple hearsay consisting of prior inconsistent statements is admissible, "a single person may by his own testimony introduce statements `inconsistent' with any number of prior declarants, each of whom adamantly deny ever making the statements." To forestall this occurrence, defendant urges that this court "establish a bright-line rule" that a prior inconsistent statement may be used only "to contradict a single prior declarant."
If such a rule is desirable, it must be established by the Legislature, not by this court.
In rejecting the argument that prior inconsistent statements should be excluded because the defendant is denied the opportunity to cross-examine the declarant at the time the statement was made, the United State Supreme Court observed: "The most successful cross-examination at the time the prior statement was made could hardly hope to accomplish more than has already been accomplished by the fact that the witness is now telling a different, inconsistent story...." (California v. Green, supra, 399 U.S. 149, 159 [26 L.Ed.2d at p. 497].) The court explained that the defendant's ability to attack the prior statement may be enhanced, because the witness "should be more than willing to give the usual suggested explanations for the inaccuracy of his prior statement, such as faulty perception or undue haste in recounting the event." (Id. at p. 160 [26 L.Ed.2d at p. 498].) The defendant, however, still must contend with the circumstance that the witness, although
If, as in the present case, the declarant denies having made the inconsistent statement, the defendant has a stronger basis for attacking the earlier statement than would be the case if the declarant had admitted making the inconsistent statement. The declarant's denial that he or she had made the alleged prior statement does not weaken the declarant's credibility as would the declarant's admission of having made a contradictory statement.
In arguing that Perez's out-of-court statements were inadmissible, defendant relies on the following sentence from the decision in California v. Green, supra, 399 U.S. 149, 158 [26 L.Ed.2d at p. 497]: "If the witness admits the prior statement is his, or if there is other evidence to show the statement is his, the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness." Defendant points out that the younger Inez Blanco denied having made the statement attributed to her, and that the "other evidence" suggesting the statement was made consists of the testimony of Perez which, defendant contends, was untrustworthy.
We conclude Perez's testimony constitutes sufficient evidence to support a finding by the jury that the disputed statement was made. Perez's credibility, although challenged, was for the jury to determine. (People v. Barnes (1986) 42 Cal.3d 284, 303-304 [228 Cal.Rptr. 228, 721 P.2d 110].)
It is true that in the present case the use of multiple hearsay, to establish that the inconsistent statement was made, increased "the danger of faulty reproduction" of the declarant's prior statement. (California v. Green, supra, 399 U.S. 149, 158 [26 L.Ed.2d at pp. 498, 497].) But this single factor does not dispositively warrant application of a rule different from that set forth in California v. Green, supra, especially because, as noted above, the declarant's denial that she made the alleged prior statement actually places the defendant in a stronger position to attack the statement than had she admitted making it.
Although the probative value of hearsay evidence decreases with each level of hearsay (People v. Dehnel (1979) 99 Cal.App.3d 404, 408 [160 Cal.Rptr. 279]), one particular instance of multiple hearsay may be more reliable than another instance of single hearsay. The weight to be accorded Perez's statements was for the jury to determine. (People v. Barnes, supra, 42 Cal.3d 284, 303-304.) It is preferable that the jury determine the credibility of hearsay evidence based upon the totality of the circumstances rather
The foregoing rule does not apply to the admission of prior inconsistent statements because, when the declarant testifies in court, the defendant may confront and cross-examine the witness. The admission of prior inconsistent statements does not offend the confrontation clause — not because such statements are so inherently reliable that "adversarial testing" is not needed, but because the declarant is present in court and such "adversarial testing" can occur as the defendant confronts and cross-examines the witness.
In the present case, the prosecution was not required to demonstrate that Perez's testimony bore certain "indicia of reliability." The circumstances
Nor does defendant explain in what respect Perez's testimony was unduly prejudicial, stating only that it is reasonably probable a result more favorable to defendant would have been reached in the absence of Perez's testimony. This is not the sort of prejudice referred to in Evidence Code section 352. (People v. Hole (1983) 139 Cal.App.3d 431, 436-437 [188 Cal.Rptr. 693].)
2. Admission of the Testimony Previously Given by Mariella Perez at the Evidence Code Section 402 Hearing
Evidence Code section 356 provides, in pertinent part: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party...."
The statements introduced by defendant concerned Perez's multiple-hearsay testimony relating Juanita Blanco's repetition of her sister Inez's statement (regarding defendant's visit to the Blanco residence on the morning of the murder) and whether Perez later had been warned not to assist in the murder investigation. Perez's testimony at the hearing comprises less than six full pages of reporter's transcript. Perez first described the nature of her
Defendant states the trial court admitted Perez's testimony "without even reviewing" the transcript. The record does not support this assertion. During argument concerning the prosecutor's request to admit Perez's entire testimony from the prior hearing, the court inquired, "May I see the transcript?" Immediately prior to making its ruling, the court stated: "It appears to me that Miss Perez's testimony in its pertinent part goes up to 128, line 16. The rest is colloquy between counsel and argument." It appears, therefore, that the trial court rather carefully reviewed the transcript before making its ruling.
The record of a ruling based on Evidence Code section 352 "`must affirmatively show that the trial judge did in fact weigh prejudice against probative value....' [Citations.]" (People v. Heishman (1988) 45 Cal.3d 147, 170 [246 Cal.Rptr. 673, 753 P.2d 629].) In the present case, after the trial court had made its ruling, defense counsel reiterated that his objection was based on Evidence Code section 352. The court responded: "Yes. I have thought about whether the jury would be confused by the whole testimony. I don't believe they would." The record thus is sufficient to indicate the trial court understood its duty, and exercised its discretion, pursuant to Evidence Code section 352. (45 Cal.3d at p. 170.)
We observe, additionally, that the admission of the entire testimony given by Perez at the Evidence Code section 402 hearing could not have prejudiced defendant. As he acknowledges, much of this testimony was cumulative to the testimony given by Perez before the jury. Other small portions,
3. The Prosecution's Intentional Destruction of a Tape Recording Prepared by the Defense
After the jury had been selected, but before opening statements were given, Assistant District Attorney Steven Plumer stated at a conference conducted outside the presence of the jury that an audio tape recording belonging to defense counsel had been discovered inadvertently by one of the prosecutors, Deputy District Attorney Gary Van Camp, and his chief investigating officer, Detective Sergeant Harry Heidt, and had been destroyed intentionally by Heidt. Two days after this disclosure, a hearing commenced outside the presence of the jury, revealing the following:
On October 4, 1986, after jury selection had begun, Van Camp and Heidt, while traveling in a "county car," discovered a sealed envelope bearing the name of Assistant Public Defender Bill Davis, the defense attorney in the present case, and a return address of the Santa Barbara Public Defender's Office. From the shape of the envelope, it appeared to contain an audio cassette tape.
According to Sergeant Heidt, he suggested to Van Camp that Heidt prepare a "found property" report for the envelope and its contents, which would be "standard procedure" under such circumstances. Instead, Van Camp opined that the tape might relate to the present case and asked Heidt to listen to it and "report to him what was on the tape." Heidt testified that instead of listening to the tape recording, he threw the sealed envelope into a trash dumpster approximately 15 minutes after the envelope was discovered.
Two days later, Heidt spoke to Van Camp, who inquired whether Heidt had anything to report from listening to the tape recording. Heidt told Van Camp he had not listened to it and "expressed [his] feelings about being placed in that position," explaining at the hearing that Heidt felt it would have been "unethical" for him to have listened to the tape recording. Heidt stated to Van Camp that, as far as Heidt was concerned, "the tape was never found."
Nearly three weeks later, on October 24, 1986, R.O. Hebert, the chief of the Lompoc Police Department, summoned Sergeant Heidt to determine whether Heidt had knowledge of a heated argument alleged to have occurred between Van Camp and a member of the Lompoc Police Department. Heidt
Van Camp's recollection of the discovery of the envelope coincided with Sergeant Heidt's, except that Van Camp denied instructing Heidt to listen to the tape recording, testifying instead that he gave the envelope to Heidt, stating: "I don't want it. You take it and you decide what to do with it."
Assistant Public Defender Bill Davis represented that he had dictated the tape recording in question, which revealed his perceptions of the strengths and weaknesses of the case, in preparation for a meeting at which trial strategy was to be discussed with experienced members of his office. The contents of the tape recording had been transcribed for his use at the meeting. Davis last saw the tape recording after sealing it in an envelope and placing it in a county automobile on September 26, 1986. A sealed copy of the transcription was introduced by defense counsel and was reviewed by the trial court in camera.
Prior to any ruling by the court, the District Attorney of Santa Barbara County, Thomas Sneddon, assumed the role of trial prosecutor, replacing Van Camp. Sneddon later represented to the court that Van Camp had been demoted, resulting in a decrease in salary from $52,000 per year to approximately $27,000 per year.
The trial court found that Van Camp, despite his denial, had instructed Sergeant Heidt to listen to the tape recording but further found that Heidt had not done so and instead had disposed of the recording without listening to it.
In light of the foregoing incident, defendant moved for (1) dismissal of the charges, or other appropriate sanctions, (2) recusal of the entire Santa Barbara County District Attorney's Office, and (3) a continuance to conduct further research and investigation. The trial court denied each of the motions. We shall consider separately whether the trial court erred in each instance, but first we address defendant's contention that the trial court's
A. The Trial Court's Finding That Neither Heidt Nor Van Camp Had Listened to the Tape Recording
Defendant urged the trial court to dismiss the case because the prosecution had "invad[ed] the defense camp" by listening to the tape recording. (See Barber v. Municipal Court (1979) 24 Cal.3d 742, 756 [157 Cal.Rptr. 658, 598 P.2d 818].) The trial court declined to dismiss the case, or impose some other sanction, because it found the prosecution had not listened to the tape recording. At oral argument before us, defendant's counsel conceded that if the prosecution did not listen to the tape, no sanction should be imposed.
Defendant does not assert he was harmed by the destruction of the contents of the tape recording, nor could he. Defense counsel had dictated the contents of the recording, and a transcription had been prepared, thus preserving the contents of the recording despite the destruction of the cassette tape.
In the present case, defendant urges that, had the envelope and the cassette tape it contained been preserved, they could have been tested to determine whether the envelope had been opened and the tape recording had been played. But this "exculpatory value" of the envelope and the cassette tape it contained (as opposed to the contents of the tape recording) was not apparent at the time Sergeant Heidt disposed of them. Although Heidt certainly had
Neither does the destruction of the envelope and the cassette tape themselves, apart from the destruction of the contents of the tape recording, afford a basis for imposing the requested sanction. The record before us supports the trial court's implied finding that the allegedly exculpatory value of the envelope and the cassette themselves was not apparent at the time Heidt threw them away. (See People v. Medina (1990) 51 Cal.3d 870, 893 [274 Cal.Rptr. 849, 799 P.2d 1282] [no sanction for destruction of a bottle bearing a fingerprint, because the officer who destroyed the bottle "could not know at the time the prints were taken whether, or to what extent, the Perrier bottle's print matched defendant's prints"].) It was reasonable for the trial court to conclude that Heidt had destroyed the envelope and the cassette tape without being aware that they later would assume evidentiary significance on the issue whether Heidt had listened to the recording. In other words, the record supports the conclusion that, at the time the envelope and the cassette were discovered and destroyed, Sergeant Heidt had no reason to believe that the envelope and the cassette themselves (apart from the contents of the tape recording) would "play a significant role in the suspect's defense." (California v. Trombetta (1984) 467 U.S. 479, 488 [81 L.Ed.2d 413, 422, 104 S.Ct. 2528].)
Heidt clearly acted wrongly in disposing of the envelope and its contents, but under the circumstances of the present case, this improper act did not deprive defendant of due process of law or otherwise deny defendant a fair trial. The high court has made it clear that the destruction of evidence by law enforcement officials deprives the defendant of due process of law only if the exculpatory value of the evidence was "apparent `before the evidence was destroyed.' [Citation.]" (Arizona v. Youngblood (1988) 488 U.S. 51, 56-57, fn. [*] [102 L.Ed.2d 281, 288, 109 S.Ct. 333], italics in original.) In California v. Trombetta, the high court found no constitutional violation where "[t]he record contain[ed] no allegation of official animus towards respondents or of a conscious effort to suppress exculpatory evidence." (California v. Trombetta, supra, 467 U.S. 479, 488 [81 L.Ed.2d 413, 422].)
We have observed that in the present case, the trial court reasonably found that the exculpatory value of the envelope and the cassette themselves (as so
We agree with the Attorney General that defendant's failure to raise this issue in the trial court precludes his present claim of error. (Guadalupe A. v. Superior Court (1991) 234 Cal.App.3d 100, 108 [285 Cal.Rptr. 570]; Gimbel v. Laramie (1960) 181 Cal.App.2d 77, 85-86 [5 Cal.Rptr. 88].) Had defendant raised the issue in a timely fashion, the trial judge would have had an opportunity to disclose the extent to which his prior contacts with Sergeant Heidt had affected his ruling and, if the trial judge was unable to act impartially and defendant had so requested, the trial judge then could have transferred the determination of Heidt's credibility to another judge. Defendant therefore may not raise this issue for the first time on appeal.
Having concluded the trial court did not err in finding that the prosecution did not listen to the tape, we turn to defendant's contention that the trial court should have dismissed the case as a sanction for Heidt's intentional destruction of the tape recording.
B. Denial of Defendant's Motion to Dismiss
As noted above, the destruction of the contents of the tape recording did not prejudice defendant, because the contents of the tape recording had been preserved by transcription. It would have been inappropriate, therefore, for the trial court to impose sanctions for the destruction of the contents of the tape recording, particularly the severe sanction of dismissal. "[A]bsent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation [of the defendant's right to counsel] may have been deliberate. [Fn.]" (United States v. Morrison (1981) 449 U.S. 361, 365 [66 L.Ed.2d 564, 569, 101 S.Ct. 665].)
Defendant also contends dismissal is an appropriate sanction because the prosecution may have listened to the tape recording. We have concluded, however, that the trial court properly held to the contrary. In denying defendant's motion for dismissal, the court invited defendant to reopen the issue in the event the manner in which the prosecution presented its case reflected an awareness of the contents of the tape recording. Defendant did not move to reopen the issue and made no showing of such awareness on the part of the prosecution. In light of the breadth of discovery common in capital cases, a substantial change in the prosecution's strategy resulting from access to the tape recording most likely would have been apparent to the defense. Thus the record before us affords no basis for the imposition of
Defendant finally contends the case should have been dismissed because of the cumulative effect of prosecutorial misconduct consisting of Van Camp's instruction to Sergeant Heidt to listen to the tape recording, Van Camp's allegedly unethical method of interviewing prosecution witnesses, his copying of a list of defense witnesses from the court file, and his lying under oath in denying that he had instructed Heidt to listen to the tape recording. Defendant has failed to demonstrate, however, that these instances of alleged misconduct, either singly or cumulatively, prejudiced his case. Accordingly, the trial court did not err in refusing to impose sanctions on the prosecution. (United States v. Morrison, supra, 449 U.S. 361, 365 [66 L.Ed.2d 564, 568-569].)
C. Denial of Defendant's Motion to Recuse Santa Barbara County District Attorney Sneddon
The District Attorney of Santa Barbara County, Thomas Sneddon, personally prosecuted this case from its inception until shortly before the preliminary hearing, when he assigned it to Deputy District Attorney Martinez for the preliminary hearing. Later, Sneddon reassigned the case to Deputy District Attorney Van Camp for trial.
As previously noted, when Van Camp's participation in the destruction of the tape recording came to light, Sneddon removed Van Camp from the case and personally assumed the role of trial prosecutor. Defendant subsequently moved to have District Attorney Sneddon recused. The trial court denied the motion.
The trial court concluded there was no evidence Van Camp's misconduct regarding the tape recording would prevent defendant from receiving a fair trial, once Van Camp had been removed from the case. The trial court further found that Inez Blanco's denial that she gave defendant permission to take her automobile constituted a reasonable basis for the filing of a Vehicle Code section 10851 charge but that, even if it was improper for that charge to have been filed, any error was cured when the charge was dismissed. Nothing suggested defendant could not receive a fair trial on the remaining charges. Finally, the trial court ruled that the remaining allegations of misconduct, considered singly or cumulatively, did not create a reasonable possibility that defendant could not receive a fair trial.
In urging that the trial court erred in denying the recusal motion, defendant points to a letter to Van Camp in which Sneddon condemned Van Camp's actions. We fail to perceive how this letter supports defendant's claim that Sneddon should have been recused. Sneddon's condemnation of Van Camp's unethical conduct was entirely appropriate. The letter apparently was an initial step in the imposition of administrative discipline. To the contrary, there would have been cause for concern had Sneddon failed to take such action, or had he otherwise appeared to condone Van Camp's misconduct.
Defendant also asserts Sneddon terminated his internal investigation into Van Camp's misconduct when the trial court required the prosecution to disclose to the defense any information uncovered by that inquiry. Assistant District Attorney Steven Plumer testified that when Van Camp's involvement with the tape recording was disclosed on October 27, 1986, Sneddon instructed Plumer to inform defense counsel and to have district attorney investigator Charles Watkins interview Van Camp, Heidt, and others who might possess relevant information. On October 28, 1986, Plumer appeared before the trial court and related the information he had received concerning the discovery and destruction of the envelope containing the cassette. The trial court scheduled a hearing for the following day.
At the hearing on October 29, 1986, Plumer brought investigator Watkins's handwritten notes of his interviews and provided copies to the defense at its request. The court advised Sergeant Heidt that the hearing would be continued to the next day in order to allow him an opportunity to consult
On October 30, 1986, a hearing was held at which Deputy District Attorney Van Camp, Sergeant Heidt, Chief of Police Hebert, investigator Watkins, and others testified. Following this hearing, Sneddon instructed Plumer that no further investigation be conducted by the district attorney's office, and the matter subsequently was referred to the Attorney General's office. On October 31, 1986, Plumer relieved Van Camp of his duties relating to this case and placed him on "administrative suspension." As noted above, Sneddon represented to the court that Van Camp subsequently was demoted, resulting in a decrease in salary from $52,000 per year to approximately $27,000 per year.
Nothing in the record before us suggests the district attorney had an improper motive in discontinuing the investigation that was being conducted by his office. An evidentiary hearing had been held regarding the destruction of the tape recording, and the matter later was referred to the Attorney General's office. (Cal. Const., art. V, § 13; Gov. Code, § 12550.) Defendant does not explain what purpose would have been served had the district attorney's office continued its own investigation.
The trial court rejected defendant's additional claim that Sneddon acted unethically in filing the Vehicle Code section 10851 charge, knowing it was not supported by substantial evidence, the court instead finding that Inez Blanco's denial that she had given defendant permission to take her automobile constituted a reasonable basis for the filing of the charge. This finding is supported by substantial evidence. The circumstances that Sneddon filed the Vehicle Code section 10851 charge at a time when Inez Blanco's degree of participation in the crimes was unclear, and later moved to dismiss that charge following further investigation, does not constitute unethical conduct or demonstrate that Sneddon had an improper motive in prosecuting the case.
Defendant asserts that Sneddon had a "personal stake" in avoiding negative publicity, and thus was led to attempt to obtain a conviction "at all costs." This improper motive is demonstrated, according to defendant, by
Defendant also makes reference to the fact that on October 31, 1986, the day following the initial evidentiary hearing concerning the destruction of the tape recording, the district attorney's office made a plea bargain offer to defendant of a sentence of life imprisonment without possibility of parole in the event he were to enter a plea of guilty. It was stated this offer would be withdrawn if not accepted that day. This circumstance was not raised as a ground for recusal, and was brought to the trial court's attention only in another context and more than one month after the court had denied the recusal motion. Defendant is therefore precluded from now arguing on this basis that the trial court erred in denying the recusal motion.
We conclude the trial court did not abuse its discretion in denying defendant's motion to recuse District Attorney Sneddon.
D. Denial of Defendant's Motion for Continuance
On Thursday, December 4, 1986, the day after the trial court denied defendant's motion to recuse the district attorney (which was also the day scheduled for opening statements), defendant filed a motion for discovery seeking a list of the names and addresses of all witnesses interviewed by former trial prosecutor Van Camp and of all persons present during those interviews. The motion included a request for "[a] sufficient continuance for the purpose of conducting ... independent interviews." That same morning, the prosecution provided the defense with "a list of between 50 and 60" persons Van Camp had interviewed. The defense stated it wished to interview 24 of those persons. Following further discussions and proceedings, the case was continued to Monday, December 8.
When trial resumed on December 8, defendant filed a motion for mistrial on the ground that, because Van Camp's misconduct was not revealed until after the jury had been sworn, defendant had been denied an opportunity to ask "many critical questions" on voir dire. The motion did not specify the nature of these questions. In a declaration in support of the motion for mistrial, defense counsel stated that interviews of some of the 24 witnesses (on the list of witnesses interviewed by Van Camp) disclosed "at least four
In arguing in support of a mistrial, the defense stated it "basically" was seeking a continuance. The trial court denied both the motion for mistrial and the motion for continuance, stating further: "I will entertain a continuing motion for continuance ... upon a proper showing you need one to investigate certain other witnesses. And we will — I will be sympathetic to your needs. But I don't have enough before me right now to grant the continuance." Following a recess, trial resumed with the prosecutor's and defense counsel's opening statements.
On appeal, defendant does not challenge the trial court's denial of the motion for mistrial, but only its denial of the motion for continuance.
Defendant also has not demonstrated he was prejudiced by the denial of his motion for continuance. Although defense counsel represented that initial interviews had disclosed additional instances of misconduct, the record does
4. Admission of the Preliminary Hearing Testimony of Inez Blanco
A. Alleged Violation of Defendant's Rights of Confrontation and Cross-examination
Before the elder Inez Blanco was called to testify, the trial court, on its own motion, appointed counsel to advise her of her privilege against self-incrimination. Several days later, the prosecutor called Inez Blanco as a witness at a hearing conducted outside the presence of the jury. After answering a few preliminary questions, she declined to testify further, pursuant to the advice of her counsel, on the ground she might incriminate herself.
A hearing was held to determine whether the prosecution would be permitted to introduce into evidence a transcript of the testimony given by Inez Blanco at the preliminary hearing. (Evid. Code, § 402.) Defendant called as a witness David Stanley, the attorney who represented defendant at the preliminary hearing. Stanley testified that because of delays in obtaining discovery from the prosecution, and the press of other work, he had had insufficient time to prepare for the preliminary hearing. Stanley recalled that at the time of the preliminary hearing, the charges against defendant included two alleged special circumstances: murder for hire or financial gain, and murder committed during the course of a robbery. (§ 190.2, subds. (a)(1), (a)(17).) Defendant also was charged, in a separate complaint, with unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a)). One of Stanley's primary goals was to eliminate the special circumstances allegations, if possible, and he believed the allegation of murder for hire or financial gain was "particularly weak." He understood the prosecution's theory to be that Inez Blanco had "procured the services" of defendant to commit the murder.
When the prosecution completed its direct examination of Inez Blanco at the preliminary hearing, Stanley concluded "there was no direct evidence whatsoever which would support an inference that there had been a murder for hire, and only very weak circumstantial evidence that would in any way associate [defendant] with the killing...." Determining, therefore, that there was no need to contest Blanco's credibility, Stanley focused instead (in his cross-examination of the witness) on not inadvertently revealing evidence supportive of the murder-for-hire allegation. Stanley's view was that
Stanley also was aware that, should a penalty phase of the trial ensue, Blanco was as close a family member as defendant had, and it therefore "was very important ... not to alienate her by any kind of rude or roughshod tactics in examining her, but rather to maintain a positive kind of relationship with her in the speculation of maintaining her cooperation...."
At the conclusion of the preliminary hearing, the magistrate dismissed the allegation that the murder was committed for financial gain. Subsequently, the charge of unlawfully taking a vehicle was dismissed on the People's motion.
Based upon Inez Blanco's invocation of her privilege against self-incrimination, the trial court found she was unavailable. (Evid. Code, § 240.) Defendant argued that despite Blanco's unavailability, her preliminary hearing testimony was inadmissible, because that testimony is unreliable and defendant's motive for cross-examining Blanco at the preliminary hearing differed from his motive for cross-examining her at trial. The trial court ruled that the transcript of her testimony at the preliminary hearing was admissible except for her testimony that she did not give defendant permission to take her automobile, because in dismissing the Vehicle Code section 10851 charge the prosecution stated it no longer believed that portion of her testimony was true. Following the Evidence Code section 402 hearing, the transcript of Blanco's preliminary hearing testimony was read to the jury.
Evidence Code section 1291, subdivision (a), provides, in pertinent part: "Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [¶] ... [¶] (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing." Defendant contends that his motive for cross-examining Blanco at the preliminary hearing "differed materially and substantially" from his motives at trial, because (1) defense counsel feared
Defense counsel's testimony that he chose, for strategic considerations, not to vigorously cross-examine Blanco does not render her former testimony inadmissible. As long as defendant was given the opportunity for effective cross-examination, the statutory requirements were satisfied; the admissibility of this evidence did not depend on whether defendant availed himself fully of that opportunity. (People v. Green, supra, 3 Cal.3d 981, 990; People v. Sul (1981) 122 Cal.App.3d 355, 367 [175 Cal.Rptr. 893].)
Defendant relies upon the decision in United States v. Salerno (1992) 510 U.S. ___ [120 L.Ed.2d 255, 112 S.Ct. 2503], in which the trial court precluded
Defendant additionally asserts the trial court's reasoning in overruling defendant's objection to this evidence was "seriously flawed," because the court stated the evidence would be admissible even if defendant's interests in cross-examining Blanco at the preliminary hearing and at trial were "entirely different." We need not, and do not, determine whether this single comment reflects a misunderstanding on the part of the trial court as to the requirements for admission of former testimony of an unavailable witness.
B. Alleged Violation of Defendant's Right to Due Process of Law
A separate felony complaint (amended on Mar. 19, 1985) was filed charging defendant with unlawfully taking Inez Blanco's automobile. (Veh. Code, § 10851, subd. (a).) This complaint was joined, for the purpose of the preliminary hearing, with the complaint in the present case charging defendant with murder.
At the preliminary hearing, which began on September 3, 1985, Blanco testified that her automobile was stolen on the morning the murder occurred, and that she had not given defendant (or anyone else) permission to take the vehicle. As explained above, Blanco went on to testify concerning other matters, testimony which ultimately was introduced at trial. Defendant was
On November 14, 1985, the prosecution filed a motion to consolidate the information charging the unlawful taking of an automobile with the information in the present case. The trial court granted that motion on December 2, 1985. On September 17, 1986, the charge of unlawfully taking an automobile was dismissed on the People's motion, which was premised on the following ground: "the People no longer believe that the defendant actually took or used the vehicle without the owner's permission and therefore lack suffi[cient] evidence to convict."
During a motion to recuse the Office of the District Attorney for the County of Santa Barbara, Deputy District Attorney Eugene Martinez, the prosecutor at the preliminary hearing, testified that at the time of this hearing, he assumed Inez Blanco had induced defendant to commit the murder and "thought there was a good possibility that she was lying" about defendant's having taken her automobile without her permission, believing, however, the remainder of her testimony to be truthful.
The trial court found the prosecutor did not have an improper purpose in introducing Inez Blanco's preliminary hearing testimony that she did not give defendant permission to take her automobile. Nothing in the record before us compels us to reject that finding.
In addition, defendant does not explain why filing the Vehicle Code section 10851 charge against defendant would have induced Inez Blanco to
Finally, nothing in the record would support a finding that the prosecution, knowing Inez Blanco would refuse to testify at trial, induced her to testify at the preliminary hearing.
Defendant relies upon the observation in People v. Trevino (1985) 39 Cal.3d 667, 681 [217 Cal.Rptr. 652, 704 P.2d 719], that "the prosecutor may not bring criminal charges against an individual unless supported by probable cause," and the holding in White v. Ragen (1945) 324 U.S. 760, 764 [89 L.Ed. 1348, 1352, 65 S.Ct. 978], "that a conviction, secured by the use of perjured testimony known to be such by the prosecuting attorney, is a denial of due process. [Citations.]" Neither of these decisions provides a basis for reversal of the judgment in the present case.
We need not, and do not, determine whether the record establishes (1) that Inez Blanco committed perjury by testifying at the preliminary hearing that she did not give defendant permission to take her automobile, and, if so, (2) that the prosecutor knew this testimony was perjured. The charge of unlawfully taking a vehicle was dismissed prior to trial, and the disputed portion of Blanco's preliminary hearing testimony was not admitted into evidence at trial. Nothing suggests that the remaining portions of Blanco's testimony (which were received at trial) were perjured. Accordingly, defendant has failed to establish that perjured testimony was admitted at the trial or was used in some indirect manner to secure his conviction.
5. Admission of Inez Blanco's Prior Inconsistent Statements
In her testimony at the preliminary hearing, Inez Blanco denied that when she saw defendant the day preceding the murder, he was desperate for money, but she admitted he may have driven her automobile on that occasion. After Blanco's preliminary hearing testimony was read to the jury, the prosecution called as a witness Lompoc Police Sergeant Vernon Stevens, who testified without objection that prior to the preliminary hearing, Blanco had told him that the day preceding the murder defendant had asked to drive her automobile but she had refused. Blanco further had stated that defendant had made repeated requests for money, which she also had refused.
Defendant further asserts he did not object to the admission of Sergeant Stevens's testimony because the trial court had stated, in ruling upon defendant's objection to the admission of Inez Blanco's preliminary hearing testimony: "I've made my ruling. That's all the argument I want on the subject." The quoted statement indicates only that the court would entertain no further argument concerning defendant's objection to the admission of Inez Blanco's preliminary hearing testimony; the court did not preclude defendant from raising additional objections to other evidence.
Finally, defendant cites the plurality opinion in People v. Frank (1985) 38 Cal.3d 711, 729, footnote 3 [214 Cal.Rptr. 801, 700 P.2d 415], for the proposition that "On an appeal from a judgment imposing the penalty of death, a technical insufficiency in the form of an objection will be disregarded...." As we noted in rejecting a similar contention, "Here, however, there was not a `technical insufficiency in the form of an objection';
Even if the issue had been preserved for review and the trial court had erred in admitting Blanco's statements, reversal of the judgment would not be required, because any such error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065]; People v. Beyea, supra, 38 Cal.App.3d 176, 194.) Inez Blanco's statement that defendant "may" have driven her automobile the day preceding the murder is significant only to the extent it provided an innocent explanation for the presence of defendant's fingerprints inside the vehicle. The prosecution's fingerprint expert testified, however, that the location of defendant's fingerprint on the gearshift lever indicated defendant was the last person to drive the vehicle. Additionally, Blanco's vehicle was found parked near the bus station from which defendant had left town, and Pastor Valdez testified he had seen defendant driving a similar vehicle, which defendant had said belonged to his sister. Therefore, the admission of Blanco's out-of-court statement that defendant had not driven her automobile the day preceding the murder could not have affected the outcome of the trial.
Similarly, the admission of Blanco's out-of-court statement that defendant had asked her for money could not have affected the verdict, in light of Blanco's testimony at the preliminary hearing that defendant had searched her vehicle for coins and had telephoned her at 3 a.m., requesting an advance of funds from their mother's estate. We conclude any error in the admission of this evidence was harmless beyond a reasonable doubt.
Defendant contends that in the event he is precluded from challenging on appeal the admission of Sergeant Stevens's testimony because the defense failed to object in the trial court, he was denied the effective assistance of counsel and the judgment must be reversed on that basis.
Defendant's claim that he was denied effective assistance of counsel also fails for another reason.
6. Accomplice Instructions
Inez Blanco testified that she met with defendant the day preceding the murder, that defendant repeatedly asked her for money and that, shortly after the murder, she discovered her automobile had been stolen. Her testimony tended to connect defendant with the crime by providing possible motives (defendant's desire for money and for revenge on behalf of his sister) and by establishing that Inez Blanco's automobile, which later was linked to defendant, had been taken from her residence (located a few blocks from the murder scene) near the time of the murder.
Section 1111 defines an accomplice "as one who is liable to prosecution for the identical offense charged against the defendant...." The section
Nonetheless, "the failure to instruct on accomplice testimony pursuant to section 1111 is harmless where there is sufficient corroborating evidence in the record. [Citations.] The requisite corroboration may be established entirely by circumstantial evidence. [Citations.] Such evidence `may be slight and entitled to little consideration when standing alone. [Citations.]'" (People v. Miranda (1987) 44 Cal.3d 57, 100 [241 Cal.Rptr. 594, 744 P.2d 1127].) "Corroborating evidence `must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged.' [Citation.]" (People v. Sully (1991) 53 Cal.3d 1195, 1228 [283 Cal.Rptr. 144, 812 P.2d 163].)
7. Admission of a Photograph of the Murder Victim While Alive
The prosecution offered into evidence a photograph taken of the victim while alive. In the photograph, she was wearing a fur coat and gold jewelry. Defendant objected on the ground the photograph was irrelevant because "[i]dentity is not an issue." The trial court overruled the objection and admitted the photograph.
Defendant asserts the photograph of the victim taken while she was alive was unusually prejudicial in this case, because it showed the victim wearing jewelry and a fur coat, thus suggesting robbery as a motive for the murder, when in fact the victim was not prosperous and was receiving welfare. Rather than establishing prejudice, however, the photograph's depiction of Ruby Gonzales as a likely robbery victim enhanced its relevance and supported its admissibility. Regardless of the victim's economic status, her possession of valuable items of personal property provided a motive for robbery. Defendant was free to offer evidence to the contrary.
In any event, the tendency of the photograph to establish the victim owned expensive furs and jewlery would have been cumulative. Inez Blanco testified she saw the victim wearing a diamond necklace valued at $6,000. It is not reasonably probable, therefore, that a result more favorable to defendant
8. The Special Circumstances Findings
Referring to his argument, discussed above, that the trial court erred in failing to instruct the jury that Inez Blanco was an accomplice as a matter of law and that her testimony required corroboration and should be viewed with distrust, defendant argues that this omission also requires reversal of the jury's findings, as special circumstances, that the murder was committed during the commission of an attempted robbery and a burglary. As explained above, any such error is harmless, because Inez Blanco's testimony was sufficiently corroborated. (Ante, at pp. 981-982.)
Instead, the evidence is sufficient to sustain a finding that defendant intended to rob and then kill his victim. Inez Blanco testified that defendant needed money, and that the victim kept both cash and valuable jewelry in her home. In addition, Ruby Gonzales's 13-year-old daughter Marci testified she heard her mother pleading with her attacker, "I will give you the money and the jewelry." Defendant argues this statement proves that defendant's sole purpose was to kill the victim, because he refused her offer of money and valuables, killed her, and left with nothing. The jury reasonably could have concluded otherwise. An equally plausible interpretation of the victim's statement is that the victim was responding to defendant's demand for money and jewelry. A likely reason defendant fled without completing the robbery was that he knew Marci Gonzales had telephoned the police.
Defendant relies upon the holding in People v. Thompson (1980) 27 Cal.3d 303 [165 Cal.Rptr. 289, 611 P.2d 883]. In that case, the defendant
We held the evidence was insufficient to sustain special circumstances findings that the murder was committed during the commission of a robbery and burglary, reasoning that the defendant's refusal to accept valuables that were given to him was inconsistent with an intent to steal and that the statement made by the defendant just prior to shooting the victims revealed that his true purpose was to shoot the victims. We concluded that the defendant's demand for and acceptance of the key to the victim's automobile, viewed in context, indicated a desire for a means of escape rather than an intent to steal.
The present case is different from Thompson, supra, 27 Cal.3d 303. Gonzales offered to give defendant money and jewelry, but such valuables were not actually produced and refused, as was the case in Thompson. The record supports the inference in the present case that defendant intended first to kill Gonzales and then steal her money and jewelry, but abandoned this plan when the victim's daughter summoned the police. Also, unlike the defendant in Thompson, defendant in the present case did not state that his intention was not to steal.
Defendant contends that his extrajudicial statements (made shortly before the murder), requesting money from his sister, cannot be used to establish the corpus delicti of the alleged special circumstances. Although it is true that "the corpus delicti of felony-based special circumstances must be established independently of an accused's extrajudicial statements" (People v. Mattson (1984) 37 Cal.3d 85, 94 [207 Cal.Rptr. 278, 688 P.2d 887], fn. omitted), no such error occurred in the present case.
Penalty Phase Issues
9. Admission of Evidence of the Circumstances Underlying Defendant's 1973 Conviction of Voluntary Manslaughter
At the penalty phase of the trial, records of defendant's 1978 conviction of robbery and his 1973 conviction of voluntary manslaughter were received in evidence. Sergeant Charles Dunham of the Oxnard Police Department then testified that approximately 3 p.m. on June 20, 1973, upon arriving at the scene of a crime, he witnessed a body being transported to St. John's Hospital. Dunham described the crime scene, which included an automobile with large amounts of blood on the back seat, and identified photographs of the automobile and the surrounding area. A knife of the type used to harvest lettuce was found inside the vehicle. Dunham described the knife as having a blade approximately six inches long "with a sharp curve."
Dr. Roy Levin, a physician, testified he specialized in emergency practice at Ventura County General Hospital when, on June 20, 1973, he treated the victim of a knife wound who was in critical condition. He performed emergency surgery, but the patient died. From an examination of the wound, Dr. Levin concluded the murder weapon was a "thin-bladed sword or bayonet" approximately 12 inches long. Dr. Levin identified an autopsy photograph of the patient he had treated.
Mary Romero testified that on June 20, 1973, she was standing in her front yard near the scene of the crime described by Sergeant Dunham when she heard a scream and observed a fight taking place in the back seat of an
After the prosecutor had rested his case, defendant moved to strike the testimony of Dr. Levin on "[g]rounds of relevance and lack of foundation," because the prosecution allegedly had failed to make "any proper connection between the testimony of the physician and the case...." Additionally, defendant moved for a mistrial of the penalty phase. The prosecutor requested, and was granted, permission to reopen his case to present the testimony of Robert Salas.
Salas testified that on June 20, 1973, he was a homicide detective in the Oxnard Police Department and was called to the scene of a crime. He examined the victim, who was lying on the sidewalk and appeared to have been stabbed. Salas went to the hospital, where he saw the victim and spoke with Dr. Levin. Salas identified the autopsy photograph previously identified by Dr. Levin as depicting the wound suffered by the victim. At the conclusion of Salas's testimony, the prosecution again rested its case. Defendant renewed his motions to strike the testimony of Dr. Levin and for mistrial, and those motions were denied.
Defendant contends the trial court erred in admitting evidence of the circumstances underlying his 1973 conviction of voluntary manslaughter, because that ruling allowed the prosecution to relitigate the circumstances of the crime, violated defendant's constitutional protection against being twice placed in jeopardy, and denied him a speedy trial. We have rejected such claims on several occasions. (People v. Fierro (1991) 1 Cal.4th 173, 231 [3 Cal.Rptr.2d 426, 821 P.2d 1302], and cases cited therein.)
In the trial court, defendant objected only to the testimony of the physician, and solely on the ground that the physician's inability to identify the victim rendered his testimony irrelevant. In response, the prosecutor obtained permission to reopen his case, calling an additional witness who testified that the victim transported from the scene of the crime was the same person treated by the physician. At no time did defendant object on the ground that the crime at issue was not the crime of which defendant subsequently was convicted.
Even had the trial court erred, retrial of the penalty phase would not be required, because there is no reasonable possibility the jury would not have imposed the death penalty had the testimony of Dr. Levin been stricken.
10. Alleged Limitation on Defendant's Right to Introduce Relevant Evidence in Mitigation
In Lockett v. Ohio (1978) 438 U.S. 586, 604 [57 L.Ed.2d 973, 98 990, S.Ct. 2954], the United States Supreme Court ruled "that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind
In the present case, the trial court acted within its traditional authority in excluding evidence relating to Van Camp's alleged prosecutorial misconduct in interviewing a potential witness who was not called to testify, and in excluding evidence of a plea bargain offered by the prosecution but rejected by defendant. The proffered evidence did not bear upon defendant's character, prior record, or the circumstances of his offense and, thus, did not constitute mitigating evidence. (People v. Fauber (1992) 2 Cal.4th 792, 857 [9 Cal.Rptr.2d 24, 831 P.2d 249]; People v. Daniels (1991) 52 Cal.3d 815, 878 [277 Cal.Rptr. 122, 802 P.2d 90]; People v. Wright (1990) 52 Cal.3d 367, 431 [276 Cal.Rptr. 731, 802 P.2d 221]; People v. Thompson (1988) 45 Cal.3d 86, 138-139 [246 Cal.Rptr. 245, 753 P.2d 221]; People v. Belmontes (1988) 45 Cal.3d 744, 811 [248 Cal.Rptr. 126, 755 P.2d 310]; People v. Gates (1987) 43 Cal.3d 1168, 1210 [240 Cal.Rptr. 666, 743 P.2d 301].)
Defendant contends that evidence that Van Camp used improperly suggestive techniques to interview a prospective witness was "relevant to the issue of lingering doubt...." This court has held that at the penalty phase, jurors may consider any lingering doubts concerning the defendant's guilt. (People v. Kaurish (1990) 52 Cal.3d 648, 706 [276 Cal.Rptr. 788, 802 P.2d 278].) But this does not mean that the defendant may introduce evidence, not otherwise admissible at the penalty phase, for the purpose of creating a doubt as to the defendant's guilt.
Defendant relies upon the holding in Jeffers v. Ricketts (D.Ariz. 1986) 627 F.Supp. 1334, 1358, that evidence of plea bargains offered by the prosecution which included lesser punishment "should be considered [as a mitigating factor] under the mandates of Lockett. ..."
11. Constitutionality of Section 190.3
12. Admission of Frank Medina's Testimony
As we held in People v. Boyd (1985) 38 Cal.3d 762, 776 [215 Cal.Rptr. 1, 700 P.2d 782], and People v. Rodriguez, supra, 42 Cal.3d 730, 791, evidence which would be inadmissible at the penalty phase under section 190.3, as part of the prosecution's case-in-chief, may be admissible on rebuttal to counter evidence of good character introduced by the defendant. "`The theory for permitting such rebuttal evidence and argument is not that it proves a statutory aggravating factor, but that it undermines defendant's claim that his good character weighs in favor of mercy.'" (People v. Fierro, supra, 1 Cal.4th 173, 237, italics in original.) "`[T]he scope of rebuttal must be specific, and evidence presented or argued as rebuttal must relate directly to a particular incident or character trait defendant offers in his own behalf.' [Citation.]" (Id. at pp. 237-238.)
Medina's testimony satisfied those requirements. Defendant had introduced evidence that, prior to the crimes, he had overcome his heroin addiction and had converted to Christianity. Medina's testimony tended to cast doubt upon defendant's evidence of his good character by establishing that defendant had used drugs and had stolen to support his drug habit while in Arizona. This was proper rebuttal.
13. The Prosecutor's Argument
A. Victim-impact Argument
Defendant, however, relies upon a concurring opinion in Payne for the proposition that a prosecutor's reference to the impact of the crime upon the victim may, in a particular case, violate the due process clause of the Fourteenth Amendment to the United States Constitution if it "so infects the sentencing proceeding so as to render it fundamentally unfair...." (Payne v. Tennessee (1991) 501 U.S. ___, ___ [115 L.Ed.2d 720, 740, 111 S.Ct. 2597] (conc. opn. of O'Connor, J.).) Defendant did not object at trial to this portion of the prosecutor's argument and, therefore, is precluded from raising this issue on appeal. (People v. Duncan (1991) 53 Cal.3d 955, 976 [281 Cal.Rptr. 273, 810 P.2d 131].) Nothing in our decisions in People v. Miranda, supra, 44 Cal.3d 57, 112-113, or People v. Ghent (1987) 43 Cal.3d 739, 771-772 [239 Cal.Rptr. 82, 739 P.2d 1250], cited by defendant, suggests a contrary rule.
Defendant's contention also fails on the merits. The prosecutor's remarks were not "so inflammatory as to divert the jury's attention from its proper role or invite an irrational response. [Citation.]" (People v. Fierro, supra, 1 Cal.4th 173, 235.)
Defendant further urges us to reconsider our recent holding, in People v. Edwards (1991) 54 Cal.3d 787 [1 Cal.Rptr.2d 696, 819 P.2d 436], that evidence of the harm caused by the defendant's actions is admissible at the penalty phase under section 190.3, factor (a), as one of the "circumstances of the crime." The arguments raised by defendant were considered and rejected in Edwards (see also People v. Fierro, supra, 1 Cal.4th 173, 235), and we have not been presented with any argument that would justify a reexamination of this ruling.
B. Reference to a Cartoon
The prosecutor concluded his opening argument with the following description of a cartoon he had seen in the editorial section of a newspaper: "[T]here's a picture of a hand and a gun, and smoke coming out of the barrel of the gun. And it simply says underneath it, `the murderer did not hesitate to give the death penalty to the victims. Why should you?'"
We also reject the claim on the merits. Urging the jurors not to hesitate to impose the death penalty is not the equivalent of urging them to ignore their responsibility to follow the court's instructions in making their decision. In any event, this isolated remark, even if it had been erroneous, could not have been prejudicial to the defense.
14. Failure to Instruct the Jury Regarding Evidence of Prior Unadjudicated Crimes Admitted at the Guilt Phase
During the guilt phase of the trial, evidence was admitted establishing that, while in Arizona, defendant stated to a friend that "he had shot someone" during a robbery and also had shot an accomplice who "chickened out on him" during an attempted robbery. Defendant told another friend that he had shot two persons and, during a separate incident, had committed a robbery.
"[I]n the absence of a request, the trial court is under no duty to give such an instruction at the penalty phase in regard to evidence received at the guilt phase." (People v. Lang (1989) 49 Cal.3d 991, 1039 [264 Cal.Rptr. 386, 782 P.2d 627].) We therefore reject defendant's claim of instructional error.
15. Refusal to Excuse Juror Schwark
On the fourth day of jury deliberations at the penalty phase of the trial, Juror David Schwark, outside the presence of the other jurors, informed the court that the previous night he inadvertently had overheard a television news report announcing that defendant had made "threats against the guards ... if he were given the death penalty." The court informed the juror that evidence of such a threat "never came before you because it amounted to something probably no more than just a rumor" and asked him whether he could base his verdict solely upon the evidence. Schwark answered in the affirmative and confirmed, in response to an additional inquiry, that he still could be fair and impartial.
Defendant asked that Schwark be excused, and the trial court ruled: "I saw an honest man who said he could be honest with Mr. Zapien, and I have to
In People v. Mincey (1992) 2 Cal.4th 408 [6 Cal.Rptr.2d 822, 827 P.2d 388], a juror brought a Bible into the jury room during penalty phase deliberations and read verses with other jurors. The trial court learned of this misconduct at the end of the court day and, the following day, questioned the jurors individually, admonishing them to decide the case solely on the basis of the evidence received in court and the court's instructions on the law, and not to take any written materials into the jury room. On appeal, we ruled that the presumption of prejudice had been rebutted because "there was no substantial likelihood that the incident prejudiced defendant. [Citation.]" (Id. at p. 467.)
Defendant argues that the juror's answers to questions posed by defense counsel revealed that receipt of the information necessarily affected the role
"[Defense Counsel]: .... Do you feel that you would be able to entirely put that out of your mind as if you had never heard it?
"Q: Okay. Why do you think you could do that? That's a little bit of an unfair question, but —
"A: Obviously, it bothers my conscience, and that's why I'm here. I want you to know it. I want everybody to know it. I recognize it may not be fair to the defendant that I know that. All I can tell you is that any decision that I would make would be based upon whatever was presented in court, and that's all I can say.
"Q: Okay. The next level, of course, past your personal feelings, is, of course, that that can't be communicated to anybody else.
"A: I understand that, and I would pledge that I would not do that.
"Q: Okay. Now, there may be people talking about things that would directly contradict what was said on — what you heard the news people talk about. How does that affect your ability to deliberate?
"A: Obviously, if I am not going to disclose that I have that information, I can't refute if someone were to make that charge. I would not be able to stand up and strongly refute it and say, `I have some other information.' So I would simply have to play a passive role if something like that ever came up. That's all I can tell you.
"Q: Okay. And —
"A: And that has concerned me, is that, what part in the deliberation could I play? I mean, that is a concern. I have to be careful about that."
Defendant focuses on the juror's statement that he would have to play "a passive role" if the subject of defendant's future dangerousness was raised during deliberations. Read in context, however, the juror's remarks indicated only that he would be careful not to reveal to the other jurors the information he received outside the court proceedings. Taken as a whole, the juror's responses support the trial court's finding that no prejudice resulted.
Defendant also stresses the following remark by the court regarding Juror Schwark: "I saw an honest man who said he could be honest with Mr.
Defendant relies upon our decision in People v. Holloway, supra, 50 Cal.3d 1098, which reversed a judgment of death because a juror had read a newspaper article stating that the defendant was on parole from prison after having served time for assaulting a woman with a deadly weapon. After the guilt phase verdicts had been signed, the juror disclosed that he had read this article to a fellow juror. That juror, in turn, had informed the court. The court questioned the juror who had read the article, as well as two other jurors, and ruled that no prejudice had resulted. This court reversed the judgment, noting: "`"A juryman may testify to any facts bearing upon the question of the existence of the disturbing influence, but he cannot be permitted to testify how far that influence operated upon his mind."' [Citation.]" (Id. at p. 1109.)
16. The Trial Court's Alleged Consideration of Improper Matter in Denying the Automatic Motion for Modification of the Penalty Verdict
During argument regarding the automatic application for modification of the penalty verdict pursuant to section 190.4, subdivision (e), the prosecutor referred to a number of citizen petitions (attached to the probation report) urging imposition of the death penalty. Defendant objected, and the court stated: "I'm not going to rule on public outcry. I know that they're there, but I haven't read the names. I just know there's a lot of names there, but I can't sentence Mr. Zapien on public outcry." After further discussion, the following colloquy occurred:
"The Court: I've made my position clear.
"[The Prosecutor]: You're not going to refer to it?
"The Court: I don't think the court can do that. I think unless they were here in court and heard all the evidence, I don't know what they're relying upon. I know what I'm relying upon, that's the law, and that's what I have to do.
"[The Prosecutor]: All right. If you're going to ignore it, that's fine.
"The Court: I didn't say ignore it, I said I knew there were a lot of people who signed the petitions. That's all I know.
"[The Prosecutor]: I'm not trying to put words in the court's mouth. If you don't want me to address it, I won't. I'll move on...."
The court subsequently denied the motion for modification of sentence, making no reference to the citizen petitions.
Relying upon the decision in Booth v. Maryland, supra, 482 U.S. 496, defendant also contends the trial court erred in considering the impact of the murder on the victim's children. (See also South Carolina v. Gathers, supra, 490 U.S. 805.) We have held that "the broad holding of Booth and Gathers does not extend to proceedings relating to the application for modification of a verdict of death under section 190.4(e). [Citation.]" (People v. Benson (1990) 52 Cal.3d 754, 812 [276 Cal.Rptr. 827, 802 P.2d 330].) Moreover, as noted above, "[d]uring the pendency of this appeal both Booth and Gathers were largely overruled. (Payne v. Tennessee (1991) 501 U.S. ___ [115 L.Ed.2d 720, 111 S.Ct. 2597].) We have since held that the injury inflicted by the defendant — including the impact of the crime on the family of the victim — is one of the circumstances of the crime, evidence of which is admissible under section 190.3, factor (a). [Citations.]" (People v. Thomas, supra, 2 Cal.4th 489, 535.) We therefore reject defendant's claim that the trial court committed error in ruling upon the automatic motion for modification of the penalty verdict.
The judgment is affirmed.
Lucas, C.J., Panelli, J., Arabian, J., and Baxter, J., concurred.
As I shall explain, the trial court committed reversible error when it denied a motion defendant made to dismiss the information on the grounds of gross misconduct by the prosecution.
At a hearing concerning the prosecutorial misconduct in question, most of the basic facts pertinent here were established beyond dispute.
On October 4, 1986, Gary A. Van Camp, a deputy district attorney serving under Santa Barbara County District Attorney Thomas W. Sneddon, Jr., and Harry Heidt, a detective sergeant in the Lompoc Police Department, had use of an automobile from the county's vehicle pool. Van Camp was the trial
On the date in question, Deputy District Attorney Van Camp happened to find a legal-size envelope under a seat in the county automobile. The envelope was sealed; it bore the name "Bill Davis" — Assistant Public Defender William A. Davis, who was defendant's counsel — and the return address of the Santa Barbara County Public Defender's Office; and it appeared to contain an audiotape cassette in a cassette box. Davis had inadvertently left the envelope in the vehicle some days before; he had already had the contents of the tape transcribed. On finding the envelope, Van Camp's "eyes kind of light[ed] up," since he knew that Davis was defendant's attorney. He handed the envelope to Sergeant Heidt, and told him to listen to the tape and report back what he had heard.
As to its contents, the strategy tape "was not evidence." That is, it did not constitute information admissible at trial relevant to defendant's guilt or innocence. Rather, it "was something else, something more sensitive...." It comprised Davis's detailed, personally dictated concerns about defense strategy at trial, prepared for discussion with certain senior colleagues, reflecting his confidential communications with defendant and also his impressions, conclusions, opinions, research, and theories concerning both the favorable and unfavorable aspects of the case. It bore heavily on the credibility of a number of crucial witnesses named therein. From early in the life of the action, it was apparent that the outcome would turn more on testimony than physical evidence. In transcribed form, the contents filled more than six pages of single-spaced type.
On October 6, Deputy District Attorney Van Camp and Sergeant Heidt spoke about the strategy tape. Heidt told Van Camp that he had thrown away the tape and accompanying materials, and that "as far as [he] was concerned, the tape was never found." Neither Van Camp nor Heidt had any intention of disclosing to anyone what they had done.
During the weeks that followed, Deputy District Attorney Van Camp continued, on a daily basis, to actively direct the investigation of the crimes and to personally prepare the case for trial. His efforts extended into areas covered by the strategy tape, including the credibility of the crucial witnesses named therein.
On October 27, the very eve of opening statements, Chief Hebert informed Assistant District Attorney Steven B. Plumer of what he had been told by Sergeant Heidt about the strategy tape incident, and Plumer transmitted the information to Assistant Public Defender Davis.
On October 28, the trial court opened the hearing concerning prosecutorial misconduct.
On October 30, it appears, defendant moved to dismiss the information on the grounds of gross misconduct by the prosecution.
On October 31, Assistant District Attorney Plumer advised the trial court and defense counsel that District Attorney Sneddon had made an "administrative decision," effective immediately, to remove Deputy District Attorney Van Camp from the case and to substitute himself. Later, Sneddon suspended and demoted Van Camp for his part in the strategy tape incident.
The hearing extended from the end of October through the beginning of December. Many witnesses were called; much testimony was given.
On December 3, the trial court brought the hearing to a close. It then proceeded to deny defendant's motion to dismiss.
On December 8, District Attorney Sneddon and Assistant Public Defender Davis made their opening statements, and the presentation of evidence commenced.
Obviously, the gross prosecutorial misconduct established by these facts infringed protections afforded defendant by the attorney-client privilege (Evid. Code, § 950 et seq.) and the work product doctrine (Code Civ. Proc., § 2018; id., former § 2016, subd. (h), Stats. 1984, ch. 1127, § 1, p. 3805). It also implicated his rights under the United States and California Constitutions, including the guaranties relating to unreasonable searches and seizures (U.S. Const., Amend. IV; Cal. Const., art. I, § 13), the assistance of counsel (U.S. Const., Amend. VI; Cal. Const., art. I, § 15), and due process of law (U.S. Const., Amend. XIV; Cal. Const., art. I, § 15).
Although most of the basic facts pertinent here were established beyond dispute, one was not. Did the prosecution's unlawful invasion of the defense camp extend to the contents of the strategy tape? The trial court answered the question in the negative. Crucially, it made a finding of fact that Sergeant Heidt had not listened to the tape. It erred.
To begin with, the trial court's finding does not appear to be supported, as it must be (e.g., People v. Louis (1986) 42 Cal.3d 969, 984-985 [232 Cal.Rptr. 110, 728 P.2d 180]), by substantial evidence. The court relied in part on Sergeant Heidt's testimony at the hearing, and in part on its personal knowledge of him over the years. The former was evidence, albeit of dubious weight. The latter, of course, was not. The majority refuse to hear any complaint from defendant about the court's "testimony" as an "unsworn witness." Their refusal, however, cannot transform nonevidence into evidence.
In any event, the trial court's finding is unsupported as a matter of law. Defendant requested the court to find adversely to the prosecution on the
For purely practical reasons, the trial court should have found that Sergeant Heidt had listened to the strategy tape. Had it done so, it would have declared in most effective terms that the prosecution cannot engage in such gross misconduct with impunity. Regrettably, the majority's discussion upholding the court's refusal of an adverse finding may be read to deliver an altogether different message: do the deed and then destroy the evidence.
Practical reasons aside, the trial court was required by California law to find that Sergeant Heidt had listened to the strategy tape. Evidence Code section 413 provides: "In determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the party's failure to explain or deny by his testimony such evidence or facts in the case against him, or his willful suppression of evidence relating thereto, if such be the case." In People v. Zamora (1980) 28 Cal.3d 88 [167 Cal.Rptr. 573, 615 P.2d 1361], we concluded that an adverse finding was required under the circumstances there disclosed: the state had destroyed evidence of official wrongdoing, although not in bad faith. (Id. at pp. 93-94, 99-103 (plur. opn. by Tobriner, J.); id. at p. 106 (conc. & dis. opn. of Bird, C.J.).) A fortiori, an adverse finding was required under the circumstances here: the state had destroyed evidence of official wrongdoing, and had done so in bad faith. Contrary to the majority's suggestion, Zamora remains good law on this point after California v. Trombetta (1984) 467 U.S. 479 [81 L.Ed.2d 413, 104 S.Ct. 2528], and Arizona v. Youngblood (1988) 488 U.S. 51 [102 L.Ed.2d 281, 109 S.Ct. 333]. (See People v. Cooper (1991) 53 Cal.3d 771, 811 [281 Cal.Rptr. 90, 809 P.2d 865]; People v. Medina (1990) 51 Cal.3d 870, 894 [274 Cal.Rptr. 849, 799 P.2d 1282].)
Moreover, the trial court was required by the United States Constitution to find that Sergeant Heidt had listened to the strategy tape. As will appear, an adverse finding was required to remedy the denial of defendant's right to due process of law under the Fourteenth Amendment.
In California v. Trombetta, supra, 467 U.S. 479, the United States Supreme Court stated: "Under the Due Process Clause of the Fourteenth
The Trombetta court went on to declare all but expressly that the Fourteenth Amendment's due process clause imposes on the states a duty to preserve evidence on behalf of criminal defendants. The obligation, however, is not absolute and unqualified. It is "limited to evidence that might be expected to play a significant role in the suspect's defense." (California v. Trombetta, supra, 467 U.S. at p. 488 [81 L.Ed.2d at p. 422].) Such evidence "must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." (Id. at p. 489 [81 L.Ed.2d at p. 423].)
In Arizona v. Youngblood, supra, 488 U.S. 51, the court "again consider[ed] `what might loosely be called the area of constitutionally guaranteed access to evidence.'" (Id. at p. 55 [102 L.Ed.2d at p. 287].) It did not retreat from the core teaching of Trombetta. But it did hold that "unless a criminal defendant can show bad faith on the part of the [state], failure to preserve potentially useful evidence does not constitute a denial of due process of law." (Id. at p. 58 [102 L.Ed.2d at p. 289].)
Of course, Trombetta and Youngblood are not directly applicable to the case at bar. In both of those decisions, the evidence of which the court spoke comprised facts bearing on the criminal defendant's guilt or innocence — specifically, facts generally admissible at trial that might exculpate him of legal responsibility. In this matter, by contrast, the "evidence" with which we are concerned consists of facts relating to the state's conduct of the criminal proceeding itself — specifically, facts generally inadmissible at trial that might inculpate the prosecution in undermining the system's integrity.
Although not directly applicable, Trombetta and Youngblood govern by analogy.
As stated, the Fourteenth Amendment's due process clause imposes on the states a duty to preserve evidence on behalf of criminal defendants. Since the
Without question, the "evidence" that the prosecution destroyed in this case — the envelope, cassette box, cassette, and strategy tape — might foreseeably have established misconduct on the part of the prosecution.
To begin with, the "evidence" possessed an inculpatory value that was apparent before its destruction. The majority disagree. But, as explained, the condition of the items in question would have suggested and perhaps established the extent of the prosecution's unlawful invasion of the defense camp. Indeed, Sergeant Heidt conceded as much at the hearing. The majority state that "[i]t was reasonable for the trial court to conclude that Heidt had destroyed" the items "without being aware that they later would assume evidentiary significance on the issue whether Heidt had listened to the" strategy tape. (Maj. opn., ante, at p. 965.) Quite the contrary. It was altogether unreasonable for the court to have come to any conclusion other than that Heidt had destroyed the items in order to ensure that the issue would never arise in the first place.
Next, the "evidence" was such that comparable material or information could not be obtained by defendant by other reasonably available means. The majority do not disagree. Nor could they. Sergeant Heidt himself admitted the fact.
Further, the "evidence" was destroyed by the prosecution in bad faith. Here, the majority do disagree. I am at a loss. They cannot seriously mean that Sergeant Heidt acted in good faith. They state that Heidt "did not intend to deprive defendant of exculpatory evidence or to otherwise harm defendant." (Maj. opn., ante, at p. 966.) Heidt plainly intended to deprive defendant of evidence inculpating the prosecution and thereby to prevent him from uncovering its unlawful invasion of the defense camp. If, in fact, Heidt had not listened to the strategy tape, he would still be guilty of bad faith. In such a situation, he would have destroyed the items in question with reckless disregard of both their nature and their importance.
Dismissal was required. It was an appropriate sanction and indeed the only appropriate sanction. The prosecution unlawfully invaded the defense camp and unlawfully covered up the invasion. Its object was the strategy tape. The taint introduced into the case must be deemed substantial. From early on, it was apparent that the outcome would largely turn on testimony. The tape bore heavily on the credibility of crucial witnesses. Deputy District Attorney Van Camp's efforts to investigate the crimes and prepare the case for trial extended into this area. Moreover, the taint would have been difficult to purge. It would have been hard to detect: it affected not the main lines of the case, but the interstices. If detected, it would have been hard to remove: it spread throughout the case. True, District Attorney Sneddon himself appears to have taken no part in the misconduct. But he was practically compelled by the shortness of time between hearing and trial to take Van Camp's investigation and preparation as he found them. Only by dismissal could the court have effectively prevented harm to defendant.
On this record, however, dismissal with prejudice was not required. District Attorney Sneddon should have been allowed to investigate the crimes and prepare the case anew. An absolute bar to further prosecution would have been uncalled for.
Relying basically on United States v. Morrison (1981) 449 U.S. 361 [66 L.Ed.2d 564, 101 S.Ct. 665], the majority reject dismissal as a sanction. Morrison, however, is inapposite. It deals only with the appropriateness, under federal criminal procedure, of dismissal with prejudice. I agree that the prosecution should not have been put in a worse position than it would have occupied had it not engaged in misconduct. But it would simply not have been put in such a position by dismissal without prejudice.
Clearly, the trial court's erroneous denial of defendant's motion to dismiss requires reversal of the judgment. No other result is reasonable. Surely, harmless-error analysis is not available. Such analysis attempts to determine the outcome of the trial under review in the absence of the error complained of. But in the absence of the error committed by the court in this case, the trial that the record discloses would not have been held in the first place.
For the reasons stated above, I would reverse the judgment.
In this death penalty case, shortly before trial was to begin, the prosecution gained access to a confidential tape recording that contained details of defense counsel's trial strategy and references to privileged communications between defendant and his attorney. A member of the prosecution team then unlawfully destroyed the tape recording. This act of destruction prevented the defense from showing by expert testimony that the prosecution had listened to the tape. The majority holds that this invasion of the defense camp required no sanction whatsoever, and affirms defendant's sentence of death.
I disagree. As I shall discuss, the precedents of the United States Supreme Court and of this court, as well as basic concepts of fair play, require that the judgment of conviction and sentence of death be reversed, and that the case be remanded for a new trial free of the taint of prosecutorial illegality and unfair advantage.
Defendant's attorney, Assistant Public Defender Bill Davis, dictated a cassette tape recording in preparation for a strategy meeting with other attorneys in his office. The tape revealed his detailed perceptions of the strengths and weaknesses of the case as well as his complete trial strategy, and contained privileged information obtained from defendant. After the tape was transcribed, Davis inadvertently left it in a county car.
After jury selection in this capital case had begun, the prosecutor in this case, Deputy District Attorney Gary Van Camp, and Sergeant Harry Heidt of the Lompoc Police Department found a sealed envelope in a county car. The envelope showed the name of Assistant Public Defender Davis and the address of the public defender's office. The envelope appeared to contain a cassette tape. According to Heidt, Van Camp expressed his belief that the
Three weeks later, during which time the prosecution continued its investigation into this death penalty case, interviewing numerous witnesses and preparing its trial strategy, the chief of the Lompoc Police Department learned of Heidt's destruction of the defense tape. The police chief notified the district attorney's office, which in turn told defense counsel of the incident. District Attorney Thomas Sneddon then began an internal investigation of the misconduct. When the trial court ordered the prosecution to provide the defense complete discovery of information relating to the misconduct, District Attorney Sneddon immediately terminated his internal investigation of the deputy's misconduct. District Attorney Sneddon removed Van Camp from the case, demoted him, and prosecuted the case personally.
Defendant moved for dismissal of the case, recusal of the county District Attorney's office, and a continuance to conduct further research and investigation. The trial court reviewed in chambers a transcript of the defense tape that had been prepared before the tape's destruction by the prosecution.
At the hearing on defendant's motions, defendant argued that Sergeant Heidt's destruction of the tape "deprived the defense of the only physical evidence it could use to impeach Heidt and Van Camp regarding whether they unsealed the envelope and listened to the tape." Defendant presented the testimony of a forensic acoustics expert who stated he could, if he had the tape, determine whether it had been played. Moreover, according to another defense expert, if the tape had not been destroyed by Heidt, fingerprint evidence could determine whether Heidt or Van Camp had taken the tape from its sealed envelope and handled it.
In making his preliminary finding that Deputy District Attorney Van Camp and Sergeant Heidt had not listened to the tape, the trial judge expressly stated that he relied in part on his personal knowledge and opinion of Heidt, with whom he had worked as a deputy public defender and deputy district attorney in the county.
Defendant contends that because the prosecution's destruction of the tape made it impossible to determine whether the prosecution had played the tape, the trial court should, as a sanction, have deemed it established that the prosecution had done so. This argument has merit.
The majority analyzes this contention under California v. Trombetta (1984) 467 U.S. 479 [81 L.Ed.2d 413, 104 S.Ct. 2528] (Trombetta) and Arizona v. Youngblood (1988) 488 U.S. 51 [102 L.Ed.2d 281, 109 S.Ct. 333] (Youngblood). Both of these cases concern the destruction of potentially exculpatory evidence, and, accordingly, they establish a test for determining whether to impose sanctions based in part on the exculpatory value of the evidence destroyed.
This case, however, does not involve the destruction of exculpatory evidence. What was destroyed here was evidence of possible prosecutorial misconduct, which, if it occurred, violated the work-product privilege, the attorney-client privilege, and defendant's Sixth Amendment right to counsel. Although the destruction of such evidence is as much a violation of a defendant's right to due process as is the destruction of exculpatory evidence, the test for determining whether to impose sanctions here cannot turn on the exculpatory value of the evidence destroyed. Were it to do so, no sanctions for the destruction of evidence of prosecutorial misconduct could ever be imposed, because such evidence has no direct bearing on a criminal defendant's guilt or innocence, thus lacking any exculpatory value. The majority, by attempting to apply Trombetta and Youngblood to the facts of this case, tries to force a square peg into a round hole.
But even if one were to apply a test roughly analogous to that set forth in Trombetta and Youngblood to determine whether the trial court here should have imposed some sanction on the prosecution, application of such a test to the facts of this case compels the conclusion that severe sanctions were called for and that the trial court's failure to impose sanctions requires reversal of the judgment against defendant.
Considered together, Trombetta and Youngblood establish three criteria that must be met to establish a violation of a defendant's right to due process of law when exculpatory evidence has been destroyed by the prosecution. First, the evidence destroyed must possess "exculpatory value that was apparent before the evidence was destroyed." (Trombetta, supra, 467 U.S. at
With respect to the first criterion of the Trombetta/Youngblood test, the majority concludes that the "exculpatory value of the envelope and the cassette themselves was not apparent at the time Heidt threw them away." (Maj. opn., ante, at p. 965.) The majority's literal approach to this criterion fails to recognize that, as I noted earlier, the materials on the defense tape that was destroyed by the prosecution contained no evidence that might have exculpated defendant. Thus, it is meaningless to speak of "exculpatory evidence" in this case. In order to give this criterion significance in the context of this case, the concept of "exculpatory value" must be refocused and broadened. Rather than asking whether the "evidence" that was destroyed possessed "exculpatory value that was apparent [to the prosecution] before [it] was destroyed," it is sensible to reframe the inquiry here in this way: Did the material that was destroyed possess importance to the case that was apparent to the prosecution before it was destroyed?
The importance of the defense tape that was destroyed by the prosecution cannot be disputed. Both Deputy District Attorney Van Camp and Sergeant Heidt had strong reason to suspect that the defense attorney's tape or its contents contained important information relating to the case. Indeed, that appears to have been the reason that prompted Van Camp to order Heidt to listen to the tape. On this record, the potential value of the tape was certainly apparent to Van Camp and Heidt before the latter's destruction of the tape.
As to the second criterion of the Trombetta/Youngblood test, here there is compelling evidence of bad faith by the prosecution. Instead of filling out a found-property report and returning the tape to defendant's counsel through the proper channels, Sergeant Heidt, knowing the tape was important, intentionally destroyed the tape by throwing it away. This action violated Penal Code section 594 (it is a crime to maliciously destroy personal property of another). (See also Gov. Code, § 6200.)
With regard to the third and final requirement, that the destruction of the material prejudiced the defendant, the majority denies that the prosecution's destruction of the defense attorney's tape prejudiced defendant. According to the majority, "the destruction of the contents of the tape recording did not
At the hearing on defendant's motion for sanctions based on the destruction of the tape, the defense presented undisputed testimony that if the envelope containing the tape had been recovered, the defense could have produced evidence indicating that the tape had been listened to by the prosecution. Such evidence would include the condition of the originally sealed envelope; the presence of fingerprints on the tape or its container; the position of the tape (wound or unwound); and the presence of other evidence of handling, such as dirt, smudges, rips, breaks or cracks on the tape or its container. Moreover, the defense presented undisputed testimony of a tape-recording expert, Michael Hecker, who said that if the tape had been recovered, it could have been analyzed to determine if it had been played on a machine other than the one used by the defense team, by searching for distinctive mechanical or magnetic characteristics on the tape. Under these circumstances, I am of the view that the prosecution's destruction of the defense attorney's tape prejudiced the defense by depriving it of any opportunity to show that the prosecution had indeed listened to the tape.
Therefore, to the extent the criteria set forth by the high court in Trombetta and Youngblood are applicable to this case, they require a finding that the prosecution's intentional destruction of the defense attorney's tape violated defendant's right to due process. When a court finds that the prosecution has violated a defendant's rights in this manner, "the court must choose between barring further prosecution or suppressing ... the State's most probative evidence." (Trombetta, supra, 467 U.S. at p. 487 [81 L.Ed.2d at p. 821].) Because the misconduct in this case did not concern evidence that might have been introduced at trial, there is no evidence to suppress. Thus, if Trombetta and Youngblood apply, the remedy is reversal of the judgment against defendant, with directions to the trial court to dismiss the case, and to bar further prosecution. Whether this is an appropriate remedy in this case is a question I shall explore below.
This case does not involve the suppression of exculpatory evidence because the defense tape that was destroyed by the prosecution was not itself, and did not contain, evidence of any sort that might have been introduced at defendant's trial, much less evidence that might have exculpated defendant.
As I noted earlier, the destroyed tape contained defense counsel's detailed trial strategy and his perceptions of the strengths and weaknesses of the case
There is no case on point. But this court's decision in People v. Zamora (1980) 28 Cal.3d 88 [167 Cal.Rptr. 573, 615 P.2d 1361] (Zamora) may provide some guidance. There, the defendant was charged with resisting arrest and with battery on a police officer. He sought discovery of past records of unsustained complaints made by citizens alleging excessive use of force by the officers involved. Except for the names of the complainants, all those records had been destroyed about two weeks before the defendant's arrest, depriving him of the opportunity to locate witnesses who might testify about the officers' past use of excessive force.
In Zamora, this court determined that the trial court erred in not imposing any sanction for the destruction of the police records. We rejected the remedy of dismissal, and held that the proper sanction was a jury instruction that the officers "used excessive or unnecessary force on each occasion when complaints were filed against [them], but that the complaint records later were destroyed." (Zamora, supra, 28 Cal.3d at pp. 102-103.) We said, "We would thus tailor the sanction to compensate for the exact wrong done...." (Id. at p. 103.) Our approach to remedial sanctions in Zamora remains good law. (See People v. Cooper (1991) 53 Cal.3d 771, 811 [281 Cal.Rptr. 90, 809 P.2d 865]; People v. Medina (1990) 51 Cal.3d 870, 894 [274 Cal.Rptr. 849, 799 P.2d 1282].)
In determining the proper sanction in Zamora, this court looked to three factors. First, the Zamora court considered "the particular circumstances attending [the] loss or destruction," noting that lawful and proper destruction warranted no sanction, but that illegal and malicious destruction could result in dismissal. (Zamora, supra, 28 Cal.3d at p. 100.) Here, the prosecution's destruction of the confidential tape belonging to the defense attorney was both illegal and done in bad faith, as discussed previously.
Second, the Zamora court noted that "the sanction depends on the materiality of the evidence suppressed." (Zamora, supra, 28 Cal.3d at p. 100.) As I pointed out earlier, this case does not concern evidence that might have been introduced at trial; but taking "materiality" to be a synonym for importance, it cannot be denied that in this capital murder case the tape containing defense counsel's distillation of his trial strategy was of great importance to the case.
Third, the court in Zamora stated that, in arriving at a proper sanction, "the courts must consider the impact of the sanction upon future cases and
In Zamora, the defense was prevented from showing that the records would have led to favorable evidence by the fact of their destruction; this deprivation required a sanction adverse to the prosecution on the issue of excessive force. Here, the defense was prevented from showing that the prosecution had played the tape by the fact of the tape's destruction; this deprivation requires a finding adverse to the prosecution on the issue whether the prosecution had listened to the tape. As in Zamora, the sanction in this case should also be "tailor[ed] ... to compensate for the exact wrong done...." (Zamora, supra, 28 Cal.3d at p. 103.) In light of the applicable case law, the appropriate judicial sanction for the willful destruction of the tape is to deem it established that the prosecution team did in fact listen to it. This sanction parallels that in Zamora.
Based on my conclusion that the trial court should have deemed it established that members of the prosecution team had listened to the defense strategy tape, I turn to the consequences of that conclusion.
A defendant's right to the assistance of counsel free from unreasonable government interference is protected by the Sixth Amendment. (See, e.g., Weatherford v. Bursey (1977) 429 U.S. 545, 558 [51 L.Ed.2d 30, 41-42, 97 S.Ct. 837].) When, as here, the prosecution has unlawfully gained access to confidential defense strategy materials, the prosecution has thereby unreasonably interfered with the defendant's right to the assistance of counsel. In
In this case, did the prosecution's intentional destruction of the defense tape result in prejudice "or substantial threat thereof"? (United States v. Morrison, supra, 449 U.S. at p. 365 [66 L.Ed.2d at p. 569].) This court's decision in Barber v. Municipal Court (1979) 24 Cal.3d 742 [157 Cal.Rptr. 658, 598 P.2d 818] (Barber) is instructive. Although Barber was decided on state constitutional grounds, the facts are comparable to those in this case. In Barber, the defendants had participated in a sit-in at a nuclear power plant, and were charged with trespass. The defendants held meetings with their attorneys to plan trial strategy. Later they learned that a codefendant was an undercover police officer. Although there was no showing that the officer had passed information to the prosecution, this court held that, on the facts of that case, "[t]he only effective remedy is the dismissal of the underlying charges." (Id. at p. 760.)
In Barber, we rejected the prosecution's argument that an exclusionary remedy would suffice. We noted that "the enforcement of an exclusionary rule would involve exceedingly difficult problems of proof for the aggrieved client," and that in such circumstances "[s]ubtle forms of prejudice are nearly impossible to isolate." (Barber, supra, 24 Cal.3d at p. 757.)
The practical problems of showing actual prejudice when the prosecution has illegitimately invaded the defense camp and gained access to attorney-client privileged materials, as happened here, were explained in Briggs v. Goodwin (D.C. Cir.1983) 698 F.2d 486, 494-495 [225 App.D.C. 3200]: "It would be virtually impossible for an appellant or court to sort out how any particular piece of information in the possession of the prosecution was consciously or subconsciously factored into each of those [prosecutorial] decisions. Mere possession by the prosecution of otherwise confidential knowledge about the defense's strategy or position is sufficient in itself to
I find additional guidance in the United States Supreme Court's decision in Arizona v. Fulminante (1991) 499 U.S. ___ [113 L.Ed.2d 302, 111 S.Ct. 1246]. There, Chief Justice Rehnquist, speaking for a majority of the court, distinguished between "trial error" and "structural error" for the purpose of determining whether a federal constitutional violation could be analyzed under the "harmless beyond a reasonable doubt" test enunciated in Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065] to determine prejudice to the defendant, or whether such a violation instead required automatic reversal. "Trial error," the high court explained, would be any constitutional error "which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt." (499 U.S. at p. ___ [113 L.Ed.2d at p. 330, 111 S.Ct. at p. 1264].)
By contrast, the high court said, other errors are "structural defect[s] affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." (Arizona v. Fulminante, supra, 499 U.S. at p. ___ [113 L.Ed.2d at p. 331, 111 S.Ct. at p. 1265].) Such structural defects include denial of the right to public trial, and denial of the right to self-representation. (Ibid.)
When the prosecution unlawfully gains access to defense trial strategy, that violation of the defendant's rights is not curable by an exclusionary remedy, because the harm of the violation is not that it produced evidence that was unlawfully obtained, and there is nothing to exclude. Nor is it susceptible to a harmless error analysis, because the constitutional violation did not occur "during the presentation of the case to the jury," and therefore may not be "quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt." (Arizona v. Fulminante, supra, 499 U.S. at p. ___ [113 L.Ed.2d at p. 330, 111 S.Ct. at p. 1264].) In other words, such a violation of the attorney-client privilege and the Sixth Amendment right to counsel is more akin to a "structural defect" than to a "trial error," to use the phraseology of the majority in Arizona v. Fulminante.
A prosecutor "is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." (Berger v. United States (1935) 295 U.S. 78, 88 [79 L.Ed. 1314, 1321, 55 S.Ct. 629]; accord, e.g., ABA Model Rules of Prof. Conduct, rule 3.8.) "It is as much [a prosecutor's] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." (Berger v. United States, supra, at p. 88 [79 L.Ed.2d at p. 1321].) This court has emphasized that "[i]t is essential that the public have absolute confidence in the integrity and impartiality of our system of criminal justice." (People v. Rhodes (1974) 12 Cal.3d 180, 185 [115 Cal.Rptr. 235, 524 P.2d 363].)
These considerations are always important, but they take on added importance when, as here, society's ultimate sanction of capital punishment is at issue. In a death penalty trial, it is essential that the public have a high degree of confidence that its representatives in court seek conviction and punishment without obtaining any unfair advantage over the defendant.
The prosecution's interference with defendant's right to counsel in this case does not mean that defendant can never receive a fair trial on these charges under any circumstances. At a retrial, both the prosecution and the defense will have the advantage of knowledge of their adversary's strategy, based on the record of the first trial. Thus, a retrial will occur on a "level playing field." This will erase any appearance of impropriety and assure that no unfair advantage had been exploited.
Appellant's petition for a rehearing was denied April 29, 1993. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted.
When the destruction of evidence or critical materials by an adverse party is at issue, a defendant on trial for his or her life, as is the case here, should be entitled to no less protection than a plaintiff or defendant in an ordinary civil case.