DALTON v. SUPERIOR COURT OF SAN DIEGO COUNTY No. D057048.
KERRY LYN DALTON, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
Court of Appeals of California, Fourth District, Division One.
Filed November 23, 2010.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HUFFMAN, Acting P. J.
In this mandate proceeding, Kerry Lyn Dalton, who is under a judgment of death, seeks to compel the San Diego County Superior Court to grant various postconviction discovery requests in connection with her petition for writ of habeas corpus, which is pending before the Supreme Court. Penal Code
Dalton challenges the denial of 50 postconviction discovery requests, including 26 requests that she claims were denied in part or "effectively limited" because the prosecution was required to disclose only material in the possession of the prosecution team. Dalton primarily contends that the court below erred by (1) defining the "prosecution team" too narrowly, and (2) refusing to order disclosure of all materials in the pretrial discovery order made by the judge who presided at trial.
On June 26, 1988, Dalton's ex-roommate, Irene Melanie May, was murdered at the Live Oaks Springs Trailer Park. At the time, May was tied to a chair in JoAnn Fedor's trailer. Fedor was not present. Dalton injected battery acid into May with a syringe. Co-defendant Sheryl Baker hit May with a cast iron frying pan. Baker and another co-defendant, Mark Tompkins, then stabbed May to death. Later, Tompkins and a fourth individual, who was only identified as "George," disposed of May's body, which was never found.
On November 13, 1992, the San Diego District Attorney filed an information charging Dalton, Tompkins and Baker with conspiracy to commit murder (§ 182, subd. (a)(1)) and murder (§ 187, subd. (a)). The information also alleged two special circumstances: (1) intentional killing while lying-in-wait (§ 190.2, subd. (a)(15)); and (2) intentional killing involving the infliction of torture (§ 190.2, subd. (a)(18)).
In July 1993, the trials of the three codefendants were severed. In July 1994, Baker pled guilty to second degree murder, and Tompkins pled guilty to first degree murder. At Dalton's trial, which began in early 1995, Baker was a prosecution witness. Tompkins did not testify, but the prosecution presented statements by him through the testimony of one of his cell mates.
On February 24, 1995, the jury found Dalton guilty of conspiracy to commit murder and murder. The jury also found the two special circumstance allegations to be true. Following the penalty phase, the jury returned a verdict of death. On May 23, 1995, the trial court sentenced Dalton to death.
On June 25, 2009, Dalton filed her postconviction discovery motion under section 1054.9 in San Diego Superior Court.
On March 8, 2010, the motion court granted the postconviction discovery motion in part and denied the motion in part.
On March 29, 2010, Dalton filed her petition for writ of mandate to order the motion court to fully grant 50 postconviction discovery requests that were denied in whole or part.
On May 21, 2010, we issued an order to show cause why the requested relief should not be granted.
The Legislature enacted section 1054.9 in 2002
In Steele, supra,
Although it is clearly more than just a "file reconstruction statute," section 1054.9 "does not allow `free-floating' discovery asking for virtually anything the prosecution possesses." (Steele, supra, at pp. 693, 695.) Furthermore, to obtain postconviction discovery under section 1054.9, the defendant must identify the materials he or she seeks with specificity and show they fall into one of the categories of materials to which the defendant would have been entitled to at trial. (Steele, supra, at p. 688.)
Additionally, a capital defendant seeking postconviction discovery must show a reasonable basis that the requested materials exist. (Barnett v. Superior Court (2010)
As to a capital defendant's constitutional right to postconviction discovery of material exculpatory evidence under Brady v. Maryland (1963)
COMPOSITION OF THE PROSECUTION TEAM
For purposes of Dalton's postconviction discovery motion under section 1054.9, the motion court ruled the prosecution team consisted of the San Diego County District Attorney's Office, the San Diego County Sheriff's Department's investigative unit,
Dalton contends the motion court erred by not including the La Mesa Police Department and El Cajon Police Department as members of the prosecution team, and by excluding the custodial functions of the Sheriff's Department and CDCR from the prosecution team. We agree the two police departments were part of the prosecution team, but find the motion court properly excluded the custodial functions of the Sheriff's Department and CDCR that were not directly involved in the investigation of this case.
Section 1054.9 provides for discovery of "materials in the possession of the prosecution and law enforcement authorities." (§ 1054.9, subd. (b).) The reference to law enforcement authorities is "only to law enforcement authorities who were involved in the investigation or prosecution of the case." (Steele, supra, 32 Cal.4th at p. 696.) Because it is presumed to know about all information gathered in the government's investigation, the prosecution is responsible for the materials possessed by other agencies acting on the government's behalf that were gathered in connection with the investigation as well as the information in its own files. (Ibid.)
As noted by the Steele court, the scope of the disclosure duty under section 1054.9 is consistent with the prosecution's constitutional duty under Brady, supra,
Dalton claims the La Mesa Police Department was a member of the prosecution team because it assisted investigators in this case by directing them to Jeanette Bench, who testified for the prosecution at trial about statements made by suspects and others connected to the case. Bench spoke to a La Mesa police officer about May's murder, and the officer contacted district attorney investigator Richard Cooksey, who interviewed Bench. During the Cooksey-Bench interview, Bench related that she had been interviewed by detectives of the La Mesa police force. Bench also said that she and Lacy Grote had heard Fedor "flippin[g] out" and saying that Dalton and Tompkins "killed that girl at [Fedor's] house." Bench told Cooksey: "[S]ome of the [La Mesa] detectives did go and talk to Lacy after I talked to the people in La Mesa."
Contrary to the motion court's ruling, we find the record shows the La Mesa Police Department assisted the prosecution in this case and should be deemed part of the prosecution team. The prosecution learned of Bench's existence because of the La Mesa Police Department. Dalton also alleged the La Mesa Police Department provided reports to the prosecution. On remand, the motion court shall allow Dalton to make the requisite showing under Barnett, supra, 50 Cal.4th at page 894, that a La Mesa Police Department report about an interview with Bench exists. If Dalton can adequately show the report exists, the prosecution shall be ordered to turn it over to her.
Similarly, Dalton's claim that the El Cajon Police Department was part of the prosecution team has merit. El Cajon police officer Richard Naisith contacted sheriff investigator Terry Wisniewski after discussing May's murder with Chris Dalton, the former brother-in-law of Dalton. Wisniewski then interviewed Chris Dalton, who also provided information about Dalton; the prosecution at one point intended to present this information during the penalty phase.
We also find the motion court correctly excluded the Detention Services Division of the sheriff's department and the CDCR except "to the extent that [they were] directly involved in interviewing witnesses or developing evidence in this case." This court's opinion in Barrett, supra,
In a related argument, Dalton contends the motion court erroneously limited 26 of her postconviction discovery requests by requiring the prosecution to turn over material only if it was in the possession of the prosecution team. This contention is without merit; there was no error. Materials are subject to disclosure only if they are currently in the possession of the prosecution and law enforcement authorities that were involved in the case. (Steele, supra,
REFUSAL TO FOLLOW ORIGINAL TRIAL COURT'S DISCOVERY ORDER
In its statement of decision, the motion court wrote "the trial judge made discovery orders that were far broader than required by the [discovery] statutes and the Constitution" and "exceeded his authority." Accordingly, the motion court rejected several of Dalton's requests for postconviction discovery of materials that she claims were ordered by the trial court and therefore required to be produced under Steele.
In Steele the Supreme Court pointed out that section 1054.9 is broader than a file reconstruction statute and allows discovery of material "`to which trial counsel was legally entitled.'" (Steele, supra, 32 Cal.4th at p. 694.) Section 1054.9 "does not limit [postconviction] discovery to materials the defendant actually possessed to the exclusion of materials the defense should have possessed. If the Legislature had intended to limit the discovery to file reconstruction it could easily have said so." (Id. at p. 693, original italics.) In setting forth what postconviction discovery a capital defendant is entitled to under section 1054.9 beyond file reconstruction, the Steele court listed materials "the prosecution should have provided at time of trial because they came within the scope of a discovery order the trial court actually issued at that time, a statutory duty to provide discovery, or the constitutional duty to disclose exculpatory evidence. (Steele, supra, at p. 697, italics added.)
In our view, by using the disjunctive "or," the Supreme Court intended to designate three distinct, alternative categories of available postconviction discovery materials. (See People v. Moore (1983)
Nonetheless, the motion court chose to disregard this language because (1) it inferred the Steele court was considering only trial court discovery orders that were lawful,
Significantly, the Steele court could have, but did not modify "a trial court's discovery order" by using "proper," "consistent with the law," or any other synonymous adjective. Had the Supreme Court intended to indicate it was discussing only proper, legal discovery orders, it would have done so. Just as we would not add language to a statute, we cannot condone adding language to the Steele court's construction of a statute. Our state's highest court is quite capable of including limiting language when it sees fit to do so.
Furthermore, we disagree that the Steele language at issue, which is part of the Supreme Court's construction of section 1054.9, is strictly dictum. At the beginning of its opinion, the Steele court made it clear that it issued an order to show cause "to resolve important procedural and substantive issues regarding [section 1054.9]." (Steele, supra, 32 Cal.4th at p. 688.) When the Supreme Court takes the task of interpreting a newly enacted statute, it "must make do with those vehicles which fortuitously present themselves in order to accomplish the task." (Jaramillo v. State of California (1978)
Assuming arguendo that the "discovery order actually issued by the trial court" language of Steele is dictum, it is our Supreme Court's dictum, and "commands serious respect" by the inferior courts of this state. (Santa Monica Hospital Medical Center. v. Superior Court (1988)
The motion court also overstepped its bounds by finding the trial court's discovery order was improper. Generally, the law permits a trial court to correct its own prejudgment errors. (In re Alberto (2002)
In essence, that was what happened here, and it constituted error.
Furthermore, whether the trial court's discovery order was proper is essentially a peripheral issue in the context of postconviction discovery and under the circumstances of this case. It is clear that in enacting section 1054.9, the Legislature wanted to allow capital defendants to efficiently reconstruct their defense attorney's trial files that were lost or destroyed after trial. (Steele, supra, 32 Cal.4th at p. 694; Barnett, supra, 50 Cal.4th at p. 897.) Here, the record shows that by the time of the hearing on the original discovery motion none of the parties disputed the prosecution had complied with 11 of 18 categories of evidence requests.
Dalton contends the motion court erroneously denied 11 postconviction discovery requests on the basis the original discovery order was improper. We consider them seriatim.
The motion court denied the request for statements Judy Moran, who was on the prosecution's witness list for codefendant's Baker's trial, made to Baker's defense team to the extent the statements were shared with the prosecution. Dalton claimed that Baker told Moran that Tompkins killed May and made Baker watch, which contradicted Baker's testimony against Dalton and Tompkins's version of the events as testified to by a hearsay declarant. If Baker's defense team shared Moran's statements with the prosecution team, the statements would be discoverable because they were within the scope of the trial court's discovery order. (Steele, supra, 32 Cal.4th at p. 697.) The motion court is to order the prosecution to produce the statements if they are in the possession of the prosecution team.
The motion court denied the request for statements of Roger Tavolazzi, who was not on any of the prosecution's witness lists. Dalton claimed Tavolazzi was a close associate of Dalton, and a district attorney investigator had expressed an interest in interviewing Tavolazzi. Additionally, Dalton claimed that Moran told the investigator that Tompkins had discussed the murder with Tavolazzi. This was an insufficient basis for ordering production of statements by a nonwitness who did not appear on any prosecution witness lists. (See § 1054.1, subd. (f).) The motion court properly denied Dalton's request.
With respect to Dalton's request for a statement by an unknown (confidential informant) white female jail inmate made to a sheriff's deputy, the motion court granted the request to the extent that the prosecution team has any documentation beyond a report prepared by the deputy years after the fact. Dalton has the deputy's belated report. This ruling was correct.
Dalton sought postconviction discovery of all rough or handwritten notes of interviews of "potential or actual witnesses, defendants or suspects by any law enforcement representative involved" in the case. The motion court ruled: "To the extent the witnesses were on the DA's witness list [for Dalton's trial], or actually testified at trial, the DA must provide all reports, including handwritten notes of the witnesses' statements that are in the possession of the prosecution team." We agree with Dalton that the motion court should have also included potential witnesses who were on the prosecution's witness list for Baker's and Tompkins's trials under Steele, supra, 32 Cal.4th at page 697. As to notes of law enforcement interviews of suspects, Dalton would be entitled to any that are in the possession of the prosecution team under Brady, supra,
With respect to Dalton's request for witness statements provided by other defense counsel, the motion court ruled: "For any witnesses who were on the DA's witness list or who actually testified, any reports of statements still in the possession of the prosecution team must be provided. This is so whether the statements were taken directly by the prosecution team or taken by other investigators and then provided to the prosecution team." This ruling was correct.
The motion court denied Dalton's request for an audio recording of an interview of James Wood, who was on the prosecution's witness list for Tompkins's trial. Wood, who at times was in custody with Tompkins, reported Tompkins made statements that were inconsistent with Tompkins's version of the crime that was presented at trial. We find this request similar to Dalton's request for Moran's statements and conclude the prosecution must turn over the audio recording of Wood's interview. (Steele, supra, 32 Cal.4th at p. 697.) On remand, the motion court shall order the prosecution to produce the recording if it is in the possession of the prosecution team.
The motion court denied Dalton's request for statements of Frank Elliott, who had been interviewed more than once, but was not on the prosecution's witness list for any of the codefendants' trials. We find this request, even as modified, similar to Dalton's request for statements of Roger Tavolazzi. The request was properly denied.
The motion court denied Dalton's request for statements of Sheryl Stebbins, who was on the prosecution's witness list for Baker's trial. Dalton has Stebbins's statements from one interview, but was requesting her statements from another interview conducted by law enforcement. We find this request similar to Dalton's request for statements by Moran and Wood, and the court erred by denying it. (Steele, supra, 32 Cal.4th at p. 697.) On remand, the motion court shall grant the second interview request if it is in the possession of the prosecution team.
Dalton requested copies of 911 calls from locations associated with the crime. The motion court ruled that 911 calls made by witnesses or individuals on the prosecution's witness list for Dalton's trial are discoverable and must be provided if they are in the possession of the prosecution team. We modify this ruling to include individuals on the prosecution's witness list for Baker's or Tompkins's trials.
Dalton requested records from the Campo Fire Department involving service calls from the Live Oak Springs Trailer Park near the time of the crime. After correctly finding the Campo Fire Department was not part of the prosecution team, the motion court ruled that if the material is in the possession of the prosecution team and includes statements of witnesses or individuals on the prosecution's witness list, the statements must be provided. However, the motion court's ruling did not take into account the portion of the trial court's discovery order that called for the production of "all reports by government agents generated as a result of this case." Because the fire department reports were covered by the original discovery order at trial, they are covered by section 1054.9. (Steele, supra, 32 Cal.4th at p. 697.) The question therefore becomes whether the prosecution team currently possesses fire department service call reports from the trailer park at the pertinent time regardless of whether the reports include statements of witnesses or individuals on the prosecution's witness lists. On remand, Dalton would be required to make a reasonable showing that such records exist and are in the possession of the prosecution. (Barnett, supra, 50 Cal.4th at pp. 894, 899-900.)
Dalton requested discovery of mental health records of 18 prosecution witnesses and Tompkins.
ADDITIONAL CLAIMED ERRORS
Dalton takes issue with additional postconviction discovery requests denied by the motion court. We consider them seriatim.
Dalton sought postconviction discovery of all communications between Baker's counsel and any representatives of the prosecution team regarding Baker's sodium amytal (truth serum) examination and/or the results. The record is clear that the prosecution team was not aware that Baker underwent this examination, which was kept confidential by Baker's defense team. The court cannot order the prosecution to turn over what it or the prosecution team does not have. Further, the jail personnel who transported Baker to the examination were not members of the prosecution team. The motion court's denial of this request was correct.
Dalton sought postconviction discovery of statements relating to this case made by prosecution witness Patricia Collins while she was incarcerated at Las Colinas and in state prison. At oral argument after Dalton modified the requests, the motion court indicated it would grant these two requests. However, in its statement of decision, the court disregarded Dalton's oral modification and denied the requests as too broad. On remand, the motion court shall grant Dalton's requests as modified.
Dalton sought postconviction discovery of CDCR and parole records of nine individuals, including codefendants Baker and Tompkins. The motion court denied Dalton's request except for the first two pages of a four-page parole adjustment report from 1988 for witness Patricia Collins regarding her positive test results for methamphetamine. The court ruled that if the prosecution was in possession of the two pages, it must provide them to Dalton. The court found the remaining requests were overbroad.
Dalton unsuccessfully sought postconviction discovery of rental receipts for the apartment building in which victim May lived before she was murdered. Dalton claims sheriff investigators obtained the receipts as part of the investigation of this case. Dalton argues that if her attorneys know the identity of the people living in the building, they can better track down "George," an unidentified fourth murder suspect. Dalton also claims the receipts would be relevant to impeach codefendant Baker's statements that she and May met "George" on the day of the murder at an apartment in May's complex. Dalton argues she is entitled to the receipts under Steele, supra,
Dalton unsuccessfully sought postconviction discovery of identifying information (names, addresses and phone numbers) of the tenants of the Live Oaks Springs Trailer Park, where May was killed. The motion court correctly denied the request. Section 1054.9 requires specific discovery requests "and not the proverbial `fishing expedition' for anything that might exist." (Barnett, supra, 50 Cal.4th at p. 894.)
Dalton sought postconviction discovery of records of telephone calls made from three telephones near or at the Live Oaks Springs Trailer Park. For one of the telephones, Dalton requested calls made for a five-day period surrounding the murder of May. For the other two telephones, Dalton sought records of calls made for a three-month period. The motion court denied the request on relevancy grounds. (See § 1054.1, subd. (c); see fn. 19, ante.) Dalton argues the telephone records are relevant because prosecution witness Fedor testified she telephoned from her trailer, the site of the murder, at least once before and after the crime, and this was a disputed issue at trial. We agree the phone records arguably would be relevant for impeachment of Fedor, who was a major prosecution witness. We also find that Dalton would be entitled to the records on this ground under Brady, supra,
Dalton sought postconviction discovery of San Diego County jail records for 16 individuals. The motion court denied the request except for a record concerning visits on a specific date for an inmate whom Fedor claimed she visited. At oral argument, Dalton narrowed her request to the jail records of four women who testified at trial about aggravating events that they claimed took place in jail. Dalton claimed the jail records were relevant to prove or disprove the details of the women's testimony and to challenge their credibility. The requested jail records of the four women are arguably exculpatory evidence under Brady, supra,
Dalton unsuccessfully sought postconviction discovery of "any and all materials regarding any and all other individuals whom law enforcement at any time considered a suspect in the crimes charged other than Kerry Dalton, Mark Tompkins and Sheryl Baker." This request is overbroad, and was properly denied by the motion court with two exceptions. Section 1054.9 requires specific discovery requests "and not the proverbial `fishing expedition' for anything that might exist." (Barnett, supra, 50 Cal.4th at p. 894.) The two exception are Dalton's subrequests for information regarding credit card information for gas stations in three communities near the trailer park on the days surrounding the murder and information regarding guests registered at two nearby motels on the day of the murder and the following day. Codefendant Baker said a fourth suspect named "George" used a credit card to pay for gas at a station in the area and that she, Dalton, Tompkins and "George" rented a motel room after leaving Fedor's trailer. Information falling within these two exceptions, if it exists and is in the possession of the prosecution team, would be discoverable under Brady, supra,
Dalton sought postconviction discovery of the arrest records of Tompkins and Baker. The motion court properly denied these requests. The motion court had already ruled that Dalton was entitled to all prior felony convictions and any prior misdemeanor convictions involving moral turpitude for Tompkins and Baker, among others. Dalton argues she needs the arrest records of her codefendants for the penalty phase to present a "mitigation theme of diminished [relative] culpability" and to contest the prosecution's portrayal of her as the "moving force behind the crime." We disagree. The jury had the trial evidence to consider in evaluating the perpetrators' respective roles in the murder. Further, as to Dalton's potential diminished culpability relative to her codefendants, their criminal histories of felony convictions and misdemeanor convictions involving moral turpitude were adequate to serve this purpose as well as for impeachment purposes during trial. Dalton's arguments that Steele, supra,
Let a writ issue directing the superior court to (1) vacate its order of March 8, 2010 and (2) enter an order directing the District Attorney of San Diego County to provide Dalton, within a reasonable time, the materials specified in this opinion that are currently within the possession of the prosecution team at a cost no greater than the direct cost of duplication. In all other respects, the petition is denied.
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