CALIFORNIA COURT OF APPEAL
SECOND APPELLATE DISTRICT
DIVISION FOUR
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
DARRELL WILLIAMS,
Defendant and Appellant.
No. B120730
Superior Court No. GA032223 (Los Angeles County)
Appeal from Superior Court of California, County of Los Angeles, Hon. Terry Smerling, Judge Presiding
APPELLANT'S OPENING BRIEF
MARTIN KASSMAN
ATTORNEY AT LAW
State Bar No. 136326
[Contact information, no longer current, appeared here.]
Attorney for Defendant and Appellant DARRELL WILLIAMS
TABLE OF CONTENTS
TABLE OF AUTHORITIES (omitted from Web version)
A. Cases Under California's Former Requirement of Transactional Immunity
C. Implications of the Change in California's Immunity Requirement
E. The Erroneous Refusal to Instruct Was Not Harmless Beyond a Reasonable Doubt.
I. Introduction
Defendant and appellant Darrell L. Williams appeals from the Superior Court's order sentencing him to 25 years to life in prison. (SCT(1) 43.) A jury found Mr. Williams guilty of second-degree robbery and found true two prior "strike" conviction allegations. (SCT 33-35.)
The trial court erred in admitting, over Mr. Williams' objection, evidence of his codefendant's post-arrest statement to police, claiming that the codefendant obtained the gun and ski mask he used in the robbery from the trunk of a car driven by Mr. Williams. The admission of this incriminating hearsay statement in a joint trial, with the declarant legally unavailable for cross-examination, violated Mr. Williams' Sixth Amendment right to confront the witnesses against him.
The trial court also erred in refusing Mr. Williams' request for an instruction that the testimony of an immunized witness was to be regarded with distrust. Under California's new law requiring only use immunity, rather than transactional immunity, for witnesses forced to testify over claims of self-incrimination, such an instruction is both legally correct and necessary for a jury's proper assessment of witness credibility. The denial of such an instruction in this case, where the credibility of an immunized witness (Hope Ritter) was crucial to Mr. Williams' conviction, violated his Fourteenth Amendment due process right to a fair trial.
The codefendant's confession and the immunized witness' testimony constituted the entire case against Mr. Williams. It is not evident beyond a reasonable doubt that the trial court's errors did not contribute to the verdict. The errors were, therefore, prejudicial, and this Court should reverse Mr. Williams' conviction.
II. Statement of Appealability
This appeal is from a conviction following a jury trial, a final judgment disposing of all issues between the parties, and is authorized by Penal Code section 1237, subdivision (a).
III. Procedural History
On August 29, 1997, the People filed in Los Angeles County Superior Court an Information charging Mr. Williams and a codefendant, Charles Hampton, Jr., with second-degree robbery (Pen. Code, § 211) (Count 1), felony second-degree burglary (Pen. Code, § 459) (Count 2), and felony false imprisonment (Pen. Code, § 236) (Count 3). As to all three counts, the Information alleged that Mr. Hampton had personally used a firearm (Pen. Code, § 12022.5, subd. (a)(1)) and that a principal was armed with a firearm (Pen. Code, § 12022, subd. (a)(1)). The Information also alleged that Mr. Williams had suffered two prior convictions of serious felonies (Pen. Code, §§ 667, 1170.12). (CT(2) 58-60.)
Jury selection began on December 1, 1997, but a mistrial was declared the next day. (SCT 9-10.) The new trial commenced on December 8, 1997. (SCT 12; RT(3) 172.) On December 16, 1997, the jury found Mr. Hampton guilty on all three counts and found the personal use allegations true. (CT 143-145; RT 646-648.) It found Mr. Williams guilty on Count 1, second-degree robbery, and found true the allegation that a principal had been armed with a firearm. (SCT 33; RT 646.) The jury was deadlocked on Counts 2 and 3 as to Mr. Williams; the trial court declared a mistrial on those counts. (SCT 36-37; RT 652.) Also on December 16, 1997, the jury found true the two prior conviction allegations against Mr. Williams. (SCT 34-35; RT 697-698.)
At a sentencing hearing on February 17, 1998, the trial court declined Mr. Williams' request to dismiss one of his "strike" priors. (RT 713-717.) The court sentenced Mr. Williams to a "Three Strikes" sentence of 25 years to life in prison. (SCT 43; RT 717.)(4) The court then announced: "On People's motion remaining counts are dismissed." (RT 720.)
Both defendants filed notices of appeal. (SCT 44; CT 151.)
IV. Facts
On April 27, 1997, Hope Ritter, then an employee of a Burger King restaurant in Pasadena, was cleaning the dining room after its closing time, between 10 and 11 p.m. (RT 239-241, 374.) She saw a car flash its headlights from the parking lot and knew that her boyfriend, Darrell Williams, had arrived. He had used that signal in the past when he had arrived to pick her up. (RT 375, 378-379.) She had asked him earlier that evening to give her a ride home from work. (RT 377.)
Donna, a friend of Ms. Ritter's, appeared at the restaurant's window and asked to join her inside. Ms. Ritter asked her boss, Keith Clark, for permission to let Donna in. Mr. Clark granted permission, Ms. Ritter opened the door, and Donna came in. (RT 241, 244, 257, 379-380.) As Ms. Ritter continued to clean, Mr. Williams came to the window and asked Ms. Ritter who was "closing" the restaurant that night. She answered that Mr. Clark was. (RT 381-382.) Some minutes later, Mr. Williams re-appeared, this time accompanied by Charles Hampton. One of the two men asked who was closing. Ms. Ritter responded, "Keith. Why?" At trial, she did not recall any response on their part. (RT 382-384.)(5)
When Ms. Ritter had finished her work, she and Donna left the restaurant. As they were departing, Mr. Hampton pulled a ski mask (or "beanie") down over his face and, with a gun in his hand, rushed past the women, through the open door and into the restaurant. (RT 385-388, 415-418, 453-455.) Mr. Hampton threatened Mr. Clark with the gun and forced him to put the restaurant's paper money and change -- approximately $170 -- into a bag, then to get down on the floor. (RT 247-253, 256, 311, 313.)
Meantime, in the parking lot, Mr. Williams hurried Ms. Ritter and Donna into his blue four-door car.(6) Ms. Ritter, who was "pissed off," began cursing. According to her testimony, she asked Mr. Williams, "Why are you guys doin' this to me?" She also told him, "You fucked up my life."(7) Mr. Williams would say only, "It's gonna be okay." (RT 390-391, 409, 420-421, 476-478.)
Mr. Hampton, after ordering Mr. Clark to the floor, walked out of Burger King with the bag of money. (RT 253-254, 314.) A Burger King employee, Carlos Hicks, followed the robber and ultimately saw him approach a small two-door(8) car that had a gray or rust "primer" color, "like when you're . . . about to repaint the car." The car's driver got out, and both he and the robber appeared to pick something up from the street. Then they jumped in the car and drove away. (RT 318, 327-331, 333-335, 338.)
Ms. Ritter testified that Mr. Williams was the driver and that, after opening the left rear passenger door behind him, he exited the car to help Mr. Hampton pick up change the latter had dropped.(9) (RT 395-397.) This was not, however, her original story. On the night of the robbery, she voluntarily came back to the Burger King, where she told the police that she and Mr. Williams had driven straight to her home from Burger King. (RT 422-423.) Two days later, when two police officers came to Ms. Ritter's home and questioned her, she repeated that story. Then the police searched her home and discovered that she possessed a wallet that belonged to a Burger King customer and that she had telephone service in the customer's name. The police arrested Ms. Ritter, took her to the police station, and questioned her about the misappropriated wallet, the phone service and the Burger King robbery. They told her that she was a suspect in the robbery. She then changed her story, implicating Mr. Hampton as the robber and Mr. Williams as the getaway car driver. (RT 402-403, 423-426, 471-472.) She testified at trial under a grant of immunity by the People. (RT 404, 431.)
The police arrested Mr. Hampton, then questioned him in a police interview room on May 4, 1997. The interview was taped. For at least 45 minutes, Mr. Hampton denied being involved in the Burger King robbery. Finally, he admitted committing the robbery. (RT 491-495; CT 76-80.) Excerpts of the taped interview were played for the jury at trial, including -- over Mr. Williams' objection -- Mr. Hampton stating that he obtained the ski mask and the gun from the trunk of the car. (RT 156-161, 438-441, 494-495; CT 79-80.)(10)
I. The Trial Court Prejudicially Violated Mr. Williams' Confrontation Clause Rights by Admitting a Codefendant's Extrajudicial Statements That Inculpated Mr. Williams.
Thirty years ago, the U.S. Supreme Court held that a defendant's constitutional right "to be confronted with the witnesses against him" (U.S. Const., 6th Amend.) is violated "where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial." (Bruton v. United States (1968) 391 U.S. 123, 135-136 [20 L.Ed.2d 476, 88 S.Ct. 1620].)(11) The Bruton rule applies to state criminal trials in California, both because the Fourteenth Amendment makes the Confrontation Clause applicable to the states and because the California Constitution has its own confrontation clause (Cal. Const., art. I, § 15), which is to be construed in accordance with the federal provision. (People v. Fletcher (1996) 13 Cal.4th 451, 455; Cal. Const., art. I, § 24.)
The constitutional problem is not cured by a limiting instruction:
If the two defendants are tried together, the trial court may instruct the jury to consider the confession in determining the guilt only of the declarant, but it may be psychologically impossible for jurors to put the confession out of their minds when determining the guilt of the nondeclarant.
(Fletcher, supra, 13 Cal.4th at p. 455.)
As the U.S. Supreme Court explained in Bruton, this is a context in which
the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. . . . Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed.
(Bruton, supra, 391 U.S. at pp. 135-136, fn. omitted; accord Gray v. Maryland (Mar. 9, 1998) ___ U.S. ___, ___ [140 L.Ed.2d 294, 118 S.Ct. 1151].)
B. The Objection Below and the Trial Court's Ruling
In the instant case, Mr. Williams objected on Confrontation Clause grounds, both before trial and during trial, to the introduction of Mr. Hampton's statements that he obtained the ski mask and the gun used in the robbery from "the trunk" of "the car." (RT 156-157, 160-161, 438-441.) As Mr. Williams' trial counsel explained during the trial:
The testimony so far indicates that Mr. Williams was driving the car and had control of the car. By Mr. Hampton stating that he got the weapon and the mask from the trunk of the car, I think the jurors could infer, by inference think Mr. Williams had something to do -- supplied him with a gun or in this way aided him in getting the mask and the gun from the trunk.
(RT 440.)(12)
The trial court overruled the objection. That part of the interview was included in the tape heard by the jurors and in the transcripts viewed by them. (RT 441, 493-495; CT 76-80.)(13) Shortly after the tape was played, the trial court told the jury that the statement was being admitted only against Mr. Hampton and had no bearing on the case against Mr. Williams. (RT 496.) Later, during their deliberations, the jurors asked to see the transcript again. In response, the trial court allowed the jurors to hear the tape and read the transcript a second time. (CT 83-84; RT 633-634.)
C. Mr. Hampton's Statements About Where He Obtained the Gun and the Ski Mask Were Not Trustworthy and Were Not Declarations Against His Own Penal Interest.
In a recent opinion, People v. Greenberger (1997) 58 Cal.App.4th 298, this Court announced a severe limitation on Bruton. Greenberger held that a codefendant's extrajudicial statement may be admitted -- and, moreover, may be admitted against all defendants, without giving the jury a limiting instruction -- so long as the statement satisfies the "declaration against interest" exception to the hearsay rule and is trustworthy. (Greenberger, supra, 58 Cal.App.4th at p. 334.)(14) The extrajudicial statements admitted over Mr. Williams' objection in the instant case do not satisfy even these minimal requirements.
Under Greenberger, the inquiry into whether a statement is trustworthy and satisfies the declaration against interest exception is fact-intensive:
The trial court must look to the totality of the circumstances in which the statement was made, whether the declarant spoke from personal knowledge, the possible motivation of the declarant, what was actually said by the declarant and anything else relevant to the inquiry.
(Greenberger, supra, 58 Cal.App.4th at p. 334.)(15)
Mr. Hampton's statements about where he obtained the gun and the ski mask were made in what this Court and others have recognized as "the least reliable" of circumstances: "one in which the declarant has been arrested and attempts to improve his situation with the police by deflecting criminal responsibility onto others." (Id. at p. 335; see id. at p. 338 [contrasting "noncoercive atmosphere" in Greenberger with situation "in which an arrestee attempts to shift responsibility to another and curry favor with the police"]; Lee v. Illinois (1986) 476 U.S. 530, 541 [90 L.Ed.2d 514, 106 S.Ct. 2056] ["arrest statements of a codefendant have traditionally been viewed with special suspicion"]; cf. People v. Leach (1975) 15 Cal.3d 419, 440, fn. 16 ["enhanced unreliability" of co-conspirator's post-conspiracy declaration against penal interest "is further compounded when the declaration is a confession elicited in the wake of the declarant's arrest"].)
The fact that Mr. Hampton inculpated himself during the same post-arrest interview does not mitigate the untrustworthiness of his statements implicating Mr. Williams.
[A] statement's content is most reliable in that portion which inculpates the declarant. It is least reliable in that portion which shifts responsibility.
(Greenberger, supra, 58 Cal.App.4th at p. 335; see Lee v. Illinois, supra, 476 U.S. at p. 545 ["a codefendant's confession is presumptively unreliable as to the passages detailing the defendant's conduct or culpability because those passages may well be the product of the codefendant's desire to shift or spread blame, curry favor, avenge himself, or divert attention to another"]; Fletcher, supra, 13 Cal.4th at p. 460 [admission of defendant's extrajudicial statement against him or her at joint trial requires deletion of "'not only direct and indirect identifications of codefendants but any statements that could be employed against nondeclarant codefendants once their identity is otherwise established'"], quoting People v. Aranda, supra, 63 Cal.2d at p. 530.)
Even apart from their inculpation of Mr. Williams, the contested statements were not declarations against Mr. Hampton's penal interest. Finding a gun and a ski mask in the trunk of someone else's car is not a crime. The declaration against interest exception is "inapplicable to evidence of any statement or portion of a statement not itself specifically disserving to the interests of the declarant." (Leach, supra, 15 Cal.3d at p. 441, italics added; see Greenberger, supra, 58 Cal.App.4th at p. 329 [rationale supporting declaration against penal interest exception "only applies to declarations within a confession that are individually self-incriminatory and not to statements that are collateral to them"], italics added; cf. Williamson v. United States (1994) 512 U.S. 594, 600-601 [federal evidentiary rule on statements against penal interest "does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory"].)
Thus, the totality of the circumstances in which Mr. Hampton's statements about the gun and the ski mask were made rendered them even more untrustworthy than the "inevitably suspect" garden-variety extrajudicial statement by a codefendant. (Bruton, supra, 391 U.S. at p. 136.) Their introduction in this joint trial, even with a limiting instruction, violated Mr. Williams' Confrontation Clause rights.
D. Even Assuming That Mr. Hampton's Statements Were Declarations Against His Own Penal Interest and Were Relatively Trustworthy, Their Introduction in This Joint Trial Violated the Confrontation Clause.
The erroneousness of the trial court's admission of the challenged statements is even more clear when judged by the standards articulated in cases other than Greenberger. With all due respect, Greenberger seriously misread the U.S. Supreme Court's Confrontation Clause jurisprudence. That Court has rejected the argument that statements which constitute declarations against penal interest do not violate the Confrontation Clause. It has held steadfastly to the "time-honored teaching that a codefendant's confession inculpating the accused is inherently unreliable, and that convictions supported by such evidence violate the constitutional right of confrontation." (Lee v. Illinois, supra, 476 U.S. at p. 546.)
The Greenberger analysis of the joint trial problem began with a flawed premise: that, outside the joint trial context, "the determination that the statement falls within this hearsay exception also satisfies the requirements of the confrontation clause." (Greenberger, supra, 58 Cal.App.4th at pp. 329.) That conclusion, in turn, rested on faulty analysis of two U.S. Supreme Court decisions.
Greenberger cited Ohio v. Roberts (1980) 448 U.S. 56 for the proposition that hearsay is admissible, despite the Confrontation Clause, if the "necessity" of introducing it is established and there are "adequate indicia of reliability to justify dispensing with the requirement of confrontation." (Greenberger, supra, 58 Cal.App.4th at p. 327.) The Court then discussed declarations against penal interest, quoting extensively from Williamson v. United States, supra, and concluded that such declarations meet the Roberts requirements:
In order for a statement to qualify as a declaration against penal interest the statement must be genuinely and specifically inculpatory of the declarant; this provides the "particularized guarantee of trustworthiness" or "indicia of reliability" that permits its admission in evidence without the constitutional requirement of cross-examination.
(Greenberger, supra, 58 Cal.App.4th at p. 329.)
The primary flaw in the Greenberger analysis is this Court's failure to recognize what the U.S. Supreme Court determined 30 years ago: that the extrajudicial statement of a codefendant implicating another defendant, even if the statement also runs against the declarant's penal interest, is inherently unreliable. The evidence at issue in Bruton was a postal inspector's testimony that a codefendant, Evans, had confessed to the postal inspector that Evans and Bruton had committed an armed robbery together. (Bruton, supra, 391 U.S. at p. 124.)
The Supreme Court recognized that Evans' confession "was legitimate evidence against Evans." (Id. at p. 127.) But it was "clearly inadmissible against [Bruton, the codefendant] under traditional rules of evidence." (Id. at p. 128, fn. 3.)(16) Moreover, as an incriminating extrajudicial statement of a codefendant, it was "inevitably suspect," and its unreliability was "intolerably compounded" because it could not be tested by cross-examination. (Id. at p. 136.) Thus, even though the trial court instructed the jury not to consider Evans' confession against Bruton, its introduction violated Bruton's Confrontation Clause rights. (Id. at pp. 125, 135-136.)
In the 30 years since Bruton, the U.S. Supreme Court has never backed away from its conclusion that codefendants' extrajudicial statements implicating both themselves and other defendants are inherently unreliable and cannot be admitted in a joint trial without violating the Confrontation Clause. Certainly, Ohio v. Roberts did not suggest any such retreat. That case did not involve an extrajudicial statement, a joint trial, or a confession. Roberts held that admitting the preliminary hearing testimony of a witness who had been subjected to "the equivalent of significant cross-examination" did not violate the Confrontation Clause. (Roberts, supra, 448 U.S. at p. 70.) It cited Bruton only once, in passing, as part of a string citation in a footnote. (Id. at p. 63, fn. 6.)
Nor did Williamson v. United States signal any change in the Bruton rule. In fact, the Williamson court expressly declined to reach the Confrontation Clause issue, because it found the evidence in question inadmissible under the Federal Rules of Evidence. (Williamson, supra, 512 U.S. at p. 605.)
Moreover, the U.S. Supreme Court has explicitly rejected an argument that declarations against penal interest are, as a class, so reliable as to satisfy the Confrontation Clause. "That concept defines too large a class for meaningful Confrontation Clause analysis." (Lee v. Illinois, supra, 476 U.S. at p. 544, fn. 5.)(17) A case the Court has accepted this Term may present an opportunity to revisit the question. (Lilly v. Commonwealth (1998) 255 Va. 558 [499 S.E.2d 522] [admitting unavailable declarant's statement which implicated both himself and defendant did not violate Confrontation Clause, because statement against penal interest is "firmly rooted" hearsay exception in Virginia], cert. granted Nov. 9, 1998, ___ U.S. ___ [1998 U.S. LEXIS 7261] (Dock. No. 98-5881).)(18)
Thus, in the instant case, even if this Court concludes that Mr. Hampton's statements about where he obtained the gun and the ski mask were declarations against his own penal interest and were relatively trustworthy, that does not resolve the question whether their admission in this joint trial violated Mr. Williams' Confrontation Clause rights. Instead, that question turns on whether the jurors could "reasonably be expected to obey the instruction" to disregard Mr. Hampton's confession in deciding Mr. Williams' guilt. (People v. Fletcher, supra, 13 Cal.4th at p. 465.)" In turn, the jurors' ability to obey the instructions depends upon how directly and how forcefully the codefendant's confession incriminates the nondeclarant defendant." (Ibid.)
Mr. Hampton's statements were redacted so that they did not mention Mr. Williams by name. But as defense counsel pointed out, by the time the jury heard the Hampton interview tape, it already had heard evidence that Mr. Williams was in control of the car. (RT 440.) Mr. Hampton's obtaining the gun and the ski mask from the trunk of Mr. Williams' car strongly suggested to the jury that Mr. Williams not only knew that Mr. Hampton was going to rob the Burger King but gave him the means to do it.
The challenged post-arrest statements by Mr. Hampton were forcefully incriminatory of Mr. Williams. There was no opportunity to cross-examine Mr. Hampton about the statements. Under these circumstances, the Confrontation Clause forbade the statements' being admitted in a joint trial, even with a limiting instruction. The trial court erred in overruling Mr. Williams' objection.
E. The Erroneous Admission of the Inculpatory Hearsay Statements Was Not Harmless Beyond a Reasonable Doubt.
The U.S. Supreme Court in Bruton "acknowledge[d] the impossibility of determining whether in fact the jury did or did not ignore Evans' statement inculpating petitioner in determining petitioner's guilt." (Bruton, supra, 391 U.S. at p. 136.) There was no "harmless error" analysis; the Court simply reversed the conviction. (Id. at p. 137.)
Attractive as that precedent is, Mr. Williams must acknowledge that subsequent cases have applied the "harmless beyond a reasonable doubt" standard of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824] to Confrontation Clause violations. (E.g., Harrington v. California (1969) 395 U.S. 250, 253-254 [23 L.Ed.2d 284, 89 S.Ct. 1726] [holding Bruton error harmless on "special facts" of case, wherein evidence was "so overwhelming that unless we say that no violation of Bruton can constitute harmless error, we must leave this state conviction undisturbed"]; People v. Leach, supra, 15 Cal.3d at p. 446 [citing Harrington].)
In this case, as against Mr. Williams, there was no "overwhelming" evidence of the kind discussed in Harrington and Leach. The evidence made it clear that Mr. Williams did not directly participate in Mr. Hampton's holdup of the Burger King manager, Mr. Clark. The determination of Mr. Williams' guilt depended on whether or not the jury believed that he aided and abetted Mr. Hampton. (See RT 558-561 [prosecutor's argument on Mr. Williams' guilt rests on aiding and abetting theory].)(19)
Without Mr. Hampton's statements, the only evidence implicating Mr. Williams would have been Hope Ritter's testimony that he drove the getaway car -- testimony that flatly contradicted her first two statements to the police. Moreover, that testimony came from an immunized witness. (See ante, pp. 6-7.)(20) This evidence surely did not constitute "overwhelming proof" of Mr. Williams' guilt. (Leach, supra, 15 Cal.3d at p. 447.)
The prosecutor's closing argument as to Mr. Williams, while not explicitly mentioning Mr. Hampton's statements about where he got the gun and the mask, focused the jury's attention on what happened before Mr. Hampton ran into the Burger King. (RT 560 ["All those actions should lead you to conclude that he knew what Charles Hampton was going to do, because it's obvious from the evidence that Donna Statten, Charles Hampton, and Darrell Williams planned this before this whole thing happened."]; see ibid. [Mr. Williams was "clearly at a vantage point to see Mr. Hampton go in with a ski mask and a gun"].)
Under these circumstances, this Court cannot be certain, beyond a reasonable doubt, that the evidence of Mr. Hampton's confession played no part in the jury's conviction of Mr. Williams. (See People v. Maurer (1995) 32 Cal.App.4th 1121, 1129 [test is "whether it appears 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained'"], citation omitted.) The conviction must, therefore, be reversed.
II. The Trial Court Prejudicially Erred in Refusing to Instruct the Jury That the Testimony of an Immunized Witness Should Be Regarded With Distrust.
Mr. Williams asked the trial court to instruct the jury that the testimony of an immunized witness should be treated with distrust. (RT 512.)(21) The trial court refused, noting that the prosecutor had "included within 2.20 credibility language concerning the fact Ms. Ritter was immunized, and I think that's the appropriate place to raise that subject in the instructions." (RT 513.)(22)
The trial court's reference was to CALJIC No. 2.20 (6th ed. 1996), which offers the jury a list of factors it may consider in determining the believability of a witness. In the instant case, the trial court included the following in the long list recited to the jury: "Whether the witness is testifying under a grant of immunity." (RT 526; CT 103.)
This instruction did not adequately communicate to the jury that it should view Ms. Ritter's testimony with greater suspicion on account of the fact that she was immunized. It may even have had the opposite effect. The trial court should have given the instruction Mr. Williams requested, which was a correct statement of law. Because Ms. Ritter's credibility was crucial to Mr. Williams' conviction, the trial court's error was prejudicial.
This Court's review of the trial court's ruling is de novo:
Against a claim of this kind, which involves the determination of applicable legal principles, an appellate court reviews a trial court's instruction independently.
(People v. Alvarez (1996) 14 Cal.4th 155, 218 [reviewing claim that trial court erred by instructing that testimony of accomplice which tends to incriminate codefendant should be viewed with distrust].)
A. Cases Under California's Former Requirement of Transactional Immunity
In a 1984 decision, Division One of the Fourth District Court of Appeal opined that there was "no question" that a criminal defendant was entitled, on request, to a jury instruction stating that because a witness received immunity from prosecution in exchange for his testimony, that testimony should be viewed by the jury with distrust. (People v. Harvey (1984) 163 Cal.App.3d 90, 112.)(23) The court explained:
[I]t is highly unlikely that a witness whose testimony does not implicate the charged defendant will be afforded immunity. And once a witness has received immunity in the expectation that his testimony will implicate the defendant, contrary testimony at trial -- regardless of its truth -- will subject him to possible perjury charges. Thus, an immunized witness has a considerable interest in testifying in a manner which is acceptable to the prosecutor.
(Ibid.)
Five years later, the California Supreme Court -- without disapproving Harvey or even citing it -- upheld a trial court's refusal of a criminal defendant's requested jury instructions "stating that the testimony of immunized witnesses must be viewed with 'suspicion' and examined with 'greater care and caution' than the 'testimony of an ordinary witness.'" (People v. Hunter (1989) 49 Cal.3d 957, 976.) The court acknowledged that federal appellate courts that held that defendants were entitled to such an instruction. (Id. at p. 977.)
No California decision has adopted or applied the federal rule, however, and the reason is not difficult to perceive. Under federal law the prosecutor cannot grant transactional immunity. [Citations.] Thus, the government remains free to prosecute the witness after he testifies, as long as the prosecution is not based on the witness's testimony. The grant of immunity therefore does not totally eliminate the witness's incentive to testify falsely. [Citation.] California law, however, provides that a witness ordered to testify over a claim of self-incrimination shall be given transactional immunity. ([Pen. Code,] § 1324; [case citations].) The prosecution's leverage over the witness is thereby sharply diminished, as is the witness's motive to falsify.
(Id. at pp. 977-978.)(24)
B. California's New Requirement of Use Immunity
The California immunity statute cited in Hunter was changed by the Legislature, at the urging of the California District Attorneys Association, in 1996. (Senate Floor Analysis, AB 988, 1995-1996 Session, pp. 1, 3 [CDAA cited as "source" of bill].)(25) The statute now confers only use immunity(26) upon a witness compelled to testify over a claim of self-incrimination:
After complying [with a court order to testify], and if, but for this section, he or she would have been privileged to withhold the answer given or the evidence produced by him or her, no testimony or other information compelled under the order or any information directly or indirectly derived from the testimony or other information may be used against the witness in any criminal case.
(Pen. Code, § 1324.)(27)
This change was intended to bring California in line with the federal practice distinguished in Hunter. The author of the bill amending section 1324 stated:
I believe that California law should be amended to adopt the federal immunity standard so that, if the prosecution can prove independent of the compelled testimony, that the witness committed a crime related to his/her testimony the prosecution shall not be precluded from bringing charges against the witness pertaining to the crime.
(Senate Floor Analysis, AB 988, op cit. supra, at p. 3.)
C. Implications of the Change in California's Immunity Requirement
No published California opinion has addressed whether, in light of the amendment to section 1324, a criminal defendant is now entitled to have the jury instructed to view the testimony of an immunized witness with distrust. This Court should declare that a defendant is so entitled, both for the reasons stated in Harvey (ante, pp. 26-27) and because of the implications of California's new use immunity rule.(28)
An immunized witness in a California criminal trial now has an additional, powerful motive to testify favorably to the People: the fear that the witness might herself be prosecuted for the crime in question if she does not convince the jury that the blame belongs squarely on the defendant's shoulders. Like an accomplice who testifies against a defendant, an immunized witness "has the motive, opportunity, and means to attempt to help himself at the other's expense." (People v. Alvarez, supra, 14 Cal.4th at p. 218.) Accordingly, the testimony of an immunized witness, like that of an accomplice, should be viewed "with distrust." (See CALJIC 3.18 (6th ed. 1996).)
D. The Trial Court's Ambiguous, One-Line Immunity Instruction Was Not an Adequate Substitute for the Pinpoint Instruction Requested by Mr. Williams.
When a defendant requests an instruction that correctly states the law and pinpoints the defendant's basis for attack on a witness' credibility, the instruction should be given. (See People v. Barnett (1976) 54 Cal.App.3d 1046, 1052.) So it was with Mr. Williams' proposed instruction in the instant case, which pinpointed the grant of immunity to Hope Ritter as a basis for attacking her credibility.
The trial court's solution, adding a line mentioning immunity to CALJIC 2.20, has some case support, albeit in cases decided when California conferred only transactional immunity. In People v. Echevarria, supra, the Court of Appeal conceded "the logic behind the concept that an immunized witness's testimony may not be as trustworthy as a nonimmunized witness's testimony." (Echevarria, supra, 11 Cal.App.4th at p. 450.) But the court rejected the argument that this logic required a special instruction:
[I]t is a better practice to include factors such as immunized testimony to [sic] the list of considerations contained in CALJIC No. 2.20 rather than telling the jurors which witnesses they should or should not trust because, as they are specifically instructed, they "are the sole judges of the believability of a witness and the weight to be given the testimony of each witness."
(Ibid., quoting CALJIC No. 2.20.)
With due respect to Echevarria, simply adding immunity to CALJIC 2.20's laundry list of factors that have "a tendency to prove or disprove the truthfulness of the testimony of the witness" hardly communicates to the jury what it needs to know about immunized testimony. Such an instruction does not even tell the jury whether immunity is a positive or negative factor in believability. A person unfamiliar with the intricacies of California immunity law -- as most jurors surely are -- might, upon hearing such an instruction, think that immunized testimony is more trustworthy, because the immunized witness has nothing to lose by telling the truth. Jurors will not know what the witness knows: that if the witness does not testify in the way the prosecutor expects, the witness may later find herself on trial for the crime, or for perjury.
The trial court was required to give Mr. Williams' instruction on immunized testimony, not only as a matter of California evidence law but as a matter of due process. Hope Ritter's testimony was crucial to Mr. Williams' conviction.(29) The trial court's refusal to caution the jury about its untrustworthiness deprived Mr. Williams of "a fair opportunity to defend against the State's accusations." (Chambers v. Mississippi (1973) 410 U.S. 284, 294 [35 L.Ed.2d 297, 93 S.Ct. 1038].) This deprivation of a fair trial violated the due process clause of the Fourteenth Amendment.
E. The Erroneous Refusal to Instruct Was Not Harmless Beyond a Reasonable Doubt.
A denial of federal due process invokes the Chapman "beyond a reasonable doubt" standard for assessing prejudice. (People v. Maurer, supra, 32 Cal.App.4th at p. 1128.) Reversal is required unless the evidence against Mr. Williams was of such compelling force as to show beyond a reasonable doubt that the instructional error made no difference in reaching the verdict obtained. (Id. at p. 1129.)
In order for the People to prove their case against Mr. Williams, it was critical that the jury believe Ms. Ritter's testimony -- i.e., believe that she was telling the truth at trial and had lied to the police, rather than the reverse. The trial judge's instructing the jury that immunized testimony was to be viewed with distrust certainly could have affected the jury's decision whether to believe Ms. Ritter. The instructional error was not harmless beyond a reasonable doubt. Mr. Williams' conviction must, therefore, be reversed.
For the foregoing reasons, the Court should reverse Mr. Williams' conviction.
Dated: November 23, 1998.
MARTIN KASSMAN
ATTORNEY AT LAW
[signed by Martin Kassman]
Attorney for Defendant and Appellant DARRELL WILLIAMS
1. "SCT" refers to the Supplemental Clerk's Transcript.
2. "CT" refers to the Clerk's Transcript.
3. "RT" refers to the Reporter's Transcript of Proceedings in Mr. Williams' appeal. For the convenience of the Court and opposing counsel, Mr. Williams notes that the reporter's indices of witnesses and exhibits are inaccurate, perhaps because they are keyed to the reporter's transcript in codefendant and appellant Charles Hampton's case.
4. Mr. Hampton was sentenced on December 16, 1997, to seven years in state prison. (CT 150; RT 709-710.)
5. Ms. Ritter testified on direct examination that she could not remember whether it was Mr. Williams or Mr. Hampton who asked her who was closing. (RT 384.) In cross-examining Ms. Ritter, Mr. Williams' counsel appeared to assume that it was Mr. Williams who asked the question, and Ms. Ritter did not correct her. (RT 414-415.)
6. Although Mr. Williams drove the car, Ms. Ritter -- who had thought that the car belonged to Mr. Williams' aunt -- later learned, to her upset and anger, that it belonged to another woman whom Mr. Williams was seeing. (RT 430.)
7. Mr. Williams objected to this testimony on hearsay grounds. The trial court overruled the objections. (RT 390-391, 476.)
8. Mr. Hicks specifically recalled that the driver pushed his seat forward and that the robber climbed into the back seat of the two-door car. (RT 341.)
9. Mr. Hicks, who knew Mr. Williams from the latter's coming to Burger King in the past to pick up Ms. Ritter, testified that he did not see Mr. Williams with the getaway car. He could not say whether the driver was male or female. (RT 330, 340-341.)
10. The trial court instructed the jury not to consider Mr. Hampton's taped statement against Mr. Williams. (RT 496.)
11. The California Supreme Court had already prohibited the use of such statements, on non-constitutional grounds. (People v. Aranda (1965) 63 Cal.2d 518, cited in Bruton, supra, 391 U.S. at p. 129.)
12. This inference was precisely what Mr. Hampton's trial counsel wanted. As he stated before trial: "I'm also going to ask the Court to allow in that portion of the transcript which counsel wants redacted that reflects where the gun came from. [¶] . . . The idea [to rob Burger King] came from Mr. Williams. Mr. Williams told him to do it . . . . [¶] The idea, the gun, everything came from Mr. Williams." (RT 147.)
13. The excerpt in question comprises the last five lines on CT 79 and the first line on CT 80.
14. The Court made contradictory statements as to whether a statement's being a declaration against interest, without more, provides the "trustworthiness" necessary to satisfy the Confrontation Clause. (Compare Greenberger, supra, 58 Cal.App.4th at p. 329 [statement's qualifying as declaration against interest guarantees trustworthiness; "[t]herefore, the determination that the statement falls within this hearsay exception also satisfies the requirements of the confrontation clause"] with id. at p. 334 ["declaration against interest may be admitted in a joint trial so long as the statement satisfies the statutory definition and otherwise satisfies the constitutional requirement of trustworthiness"], italics added.)
15. The trial court's determination is reviewed by an abuse-of-discretion standard. (Greenberger, supra, 58 Cal.App.4th at p. 335.)
16. Greenberger cites this passage (Greenberger, supra, 58 Cal.App.4th at p. 332) but fails to grasp its import: that under traditional rules of evidence, one person's declaration against his own penal interest is not admissible against another person.
17. The Court held in Lee that a state trial court violated the Confrontation Clause by considering a defendant's confession as evidence against a codefendant in a bench trial. (Lee, supra, 476 U.S. at pp. 531, 547.)
18. A case pending in the California Supreme Court -- involving a former codefendant's statement to police, which was admitted against a defendant -- also may have a bearing on the instant case. (People v. Duarte (S068162, review granted April 15, 1998).)
19. The fact that the jury convicted Mr. Hampton not only of robbery but also of burglary and false imprisonment, but deadlocked on whether to convict Mr. Williams of aiding and abetting those two crimes, suggests that the jury was less than fully convinced of Mr. Williams' complicity. (RT 650-652.)
20. As Mr. Williams argues in the next section, the jury should have been instructed to regard the immunized witness' testimony with distrust. The trial court's failure to do so compounded the Confrontation Clause error.
21. Mr. Williams asked the trial court to adapt CALJIC No. 3.18, which provides: "You should view the testimony of an accomplice with distrust. This does not mean that you may arbitrarily disregard that testimony. You should give that testimony the weight you think it deserves after examining it with care and caution and in light of all the evidence in the case." (CALJIC No. 3.18 (6th ed. 1996).)
22. The reporter's transcript erroneously attributes the comment to Mr. Hampton's counsel, but the context makes it obvious that the judge was speaking. (RT 512-513.) Mr. Williams suggests that this Court order the record to be corrected. (Cal. Rules of Court, rule 12(b).)
23. The point was dictum, because the defendant in Harvey had not requested such an instruction. The Court of Appeal held that a sua sponte instruction was not required. (Harvey, supra, 163 Cal.App.3d at p. 112.)
24. In a 1992 decision, Division Two of the Second District Court of Appeal, citing Hunter, upheld a trial court's refusal to instruct a jury to regard an immunized witness' testimony with distrust. (People v. Echevarria (1992) 11 Cal.App.4th 444, 450-451.)
25. The cited analysis is available on the Legislative Counsel's Web site (http://www.leginfo.ca.gov). The specific Web address for the analysis is http://www.leginfo.ca.gov/pub/95-96/bill/asm/ab_0951-1000/ab_988_cfa_960701_122733_sen_floor.html. (The address, of course, does not contain a line break, but it cannot fit on a single line here.)
26. "Use immunity protects a witness only against the actual use of his compelled testimony, as well as the use of evidence derived therefrom. Transactional immunity protects the witness against all later prosecutions relating to matters about which he testifies." (Hunter, supra, 49 Cal.3d at p. 973, fn. 4.)
27. Before this change, and at the time Hunter was decided, the statute provided that the witness "shall not be prosecuted or subjected to penalty or forfeiture for or on account of any fact or act concerning which, in accordance with the order, he was required to answer or produce evidence." (See 1996 Deletes, Standard California Codes, Penal Code (Matthew Bender, 1997 ed.), Pen. Code § 1324, p. 623.)
28. The Court has the inherent power to judicially declare rules of criminal procedure. (See People v. Martin (1986) 42 Cal.3d 437, 449.)
29. Aside from Ms. Ritter's testimony, the only evidence against Mr. Williams was Charles Hampton's statement to the police that he had obtained the gun and the ski mask from the car. As Mr. Williams argued in the previous section, that evidence should have been excluded. Assuming arguendo that the instructional error alone did not deprive Mr. Williams of a fair trial, the cumulative effect of the two errors did.