THE PEOPLE, Plaintiff and Respondent, v. KENNETH JACKSON, JR., Defendant and Appellant.
No. A048169
First Dist., Div. Four.
Nov. 20, 1991.
2 Cal.App.4th 1670
THE PEOPLE, Plaintiff and Respondent, v. KENNETH JACKSON, JR., Defendant and Appellant.
Dale Dombkowski, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, John H. Sugiyama, Assistant Attorney General, Ronald E. Niver and Mary A. Roth, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
POCHE, Acting P. J.—Defendant, Kenneth Jackson, Jr., appeals from a judgment of conviction entered on a jury verdict finding him guilty of
The incident giving rise to the charges occurred late in the evening of October 1, 1988, on the campus at the University of California at Berkeley. The victim, Joel Dickson, was a Berkeley football player, who with other members of the team was attending a postgame dance at the Bear‘s Lair. Defendant, who was not a student at the university, came to the dance where he met some friends, specifically Lamont Butcher, Carlos Garcia, Greg Tolbert, and Ferris Foreman.
Defendant and another acquaintance initiated a conversation with a young woman who turned out to be the pregnant wife of one of the football players, James Devers. Words were exchanged and the two groups continued to keep an eye on one another. Devers enlisted the support of Joel Dickson, his 262-pound teammate, in case the situation escalated into a fight.
After the dance ended both groups moved outside onto a plaza area. Once they were outside Dickson was approached by a very skinny man who wanted to know if Dickson had any “static” with him. Dickson said only if the skinny fellow wanted some. Dickson was also challenged by Garcia who wanted to know why Dickson was looking at him. Another man standing on a nearby planter box joined in the conversation telling Dickson, “No, we have no problem with you.” Moments later Dickson was shot twice with .32-caliber bullets.
The Trial
The prosecution presented numerous witnesses who identified defendant as having been at the dance and invоlved in the altercation with Devers. Some of those witnesses positively identified defendant as holding the gun from which two shots were fired. Other witnesses placed defendant in the vicinity of the source of the gunshots, but were unable to identify him as the shooter. Another witness saw a man on the planter box with an Uzi, but could not identify the shooter, though he believed the Uzi was not the source of the shots.
The prosecution also offered the testimony of Sheila Fields. According to Fields defendant had told her in a phone call that he and Tolbert and two friends had gone to a party where a football player grabbed Tolbert and defendant had shot and then Tolbert had shot.
Defendant‘s version of events was that while he had been present, Gregory Tolbert, not he, was responsible for the shooting. He acknowledged his presence at the dance and testified that he was sitting on a planter box at the time of the shooting. According to him, whilе the exchange with Dickson was taking place a companion handed defendant an Uzi. Having taken the large gun, defendant tried to keep it from view by holding it down at his side. By his account the .32 bullets which struck Dickson, came not from the .9 millimeter Uzi he held, but from a revolver fired by Gregory Tolbert. Tolbert was killed in an unrelated incident prior to trial.
Discussion
On appeal defendant contends that the judgment must be reversed because of the cumulative impact of several errors, the net effect of which was to deny him a fair trial. The first of these errors was the prosecutor‘s failure to disclose the statement of a witness, Dana Dorhan, who belatedly came forward to tell the Berkeley campus police that he had witnessed the shooting and that the shooter was Gregory Tolbert. Dorhan claimed to have known both defendant and Tolbert casually. He explained that he had not come forward sooner because he feared retaliation from Tolbert, but after reading a campus newspaper account of the trial he decided he needed to talk with the authorities.
Dorhan came to the police at 2 p.m. on August 23, 1989. The campus police told the prosecutor about Dorhan‘s statement at 5 p.m. that same day.1 About an hour earlier the jury had begun deliberating. It returned its verdicts the following afternoon. Only on September 7, 1989, did the prosecutor disclоse to the defense the existence of Dorhan and his statement.
At that juncture the defense moved for a new trial, basing its motion in part upon the prosecution‘s failure immediately to disclose Dorhan‘s statement. The motion for new trial was denied and defendant was sentenced.
The People contend that the statement offered by Dorhan as of August 23 when the prosecution learned of it was not evidence but was merely a lead or clue which had not been adequately investigated or substantiated. The gist of the argument is that the prosecution had no duty to disclose Dorhan‘s statement until the campus police officers had an opportunity to investigate its reliability. We reject this contention out of hand. The statement of an alleged eyewitness to the shooting who knew both defendant and Tolbert by sight and who asserted Tolbert was the shooter, was evidence reasonably favorable to the accused which triggered the prosecutor‘s duty to disclose.3
On appeal, however, the question before us is whether Dorhan‘s statement was material evidence. “[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” (United States v. Bagley, supra, 473 U.S. at p. 682 [87 L.Ed.2d at p. 494].) Exculpa-
Tolbert‘s Admission
Defendant sought to introduce evidence that some 30 minutes after the shooting he was in a Richmond bar with Gregory Tolbert, Petey Ferris Foreman and Lamont Butcher, all of whom had been at the dance. Defendant said to Tolbert, “Greg, ‘You shot that guy.‘” To which Tolbert replied, ” ‘No, I don‘t think I hit him.‘” The defendant persevered, ” ‘No, I think you shot the guy. He was a big brother.‘” Tolbert responded, ” ‘Well, I don‘t care. He was a bully.‘” Defendant offered his own testimony and that of Lamont Butcher to this conversation.
In order to admit evidence that a third party committed a crime the evidence needs to be such as to raise a reasonable doubt as to defendant‘s guilt. (People v. Edelbacher (1989) 47 Cal.3d 983, 1017 [254 Cal.Rptr. 586, 766 P.2d 1]; People v. Hall (1986) 41 Cal.3d 826, 833 [226 Cal.Rptr. 112, 718 P.2d 991].) “The evidence must meet minimum standards of relevance: ‘evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant‘s guilt: there must be direct or circumstantial evidence linking the third person to the аctual perpetration of the crime.’ [Citation.]” (People v. Edelbacher, supra, 47 Cal.3d at p. 1017.) Such evidence, however, may still be excluded under
Evidence of declarations against penal interest is admissible as an exception to the hearsay rule. (
Whether a statement is one against penal interest is a preliminary fact to be determined under
However, the trial court also excluded the evidence under
Just as obviously the trial court was incorrect as a matter of law in concluding that the evidence was prejudicial. “[A] defendant‘s due process right to a fair trial requires that evidence, the probative value of which is stronger than the slight-relevancy category and which tends to establish a defendant‘s innocence, cannot be excluded on the theory that such evidence is prejudicial to thе prosecution.” (People v. Reeder (1978) 82 Cal.App.3d 543, 552 [147 Cal.Rptr. 275].) Here, evidence of Tolbert‘s statements made some 30 minutes after the shooting in the presence of 3 other people was prejudicial only in the sense that it cast doubt on the prosecution‘s case against defendant.
The court also found Tolbert‘s statement to be prejudicial because it was cumulative to defendant‘s assertion that Tolbert did the shooting.7 As the dissent concedes even the prosecution acknowledged there was evidence Tolbert was present at the crime scene and might have fired. Thus the issue of whether Tolbert or Jackson shot Mr. Dickson was the heart of the case. We find exclusion of Tolbert‘s statemеnt under
The dissenting opinion would authorize the keeping of this testimony from the jury on three grounds. The first is the testimony could be a lie that could not be refuted by the declarant who had died before the trial. We know of no rule that excludes testimony on the ground that it could be a fabrication, nor are we aware of any rule that buries declarations with the declarant. Nor, given the obvious talent of the prosecutor in alerting the jury in respect to the credibility of witnesses, is this well settled state of the law of evidence a matter of concern. It is the duty of the trier of fact to assess credibility. “Objection, your honor, this could be perjury!” has not yet made it into the Evidence Code.
The second reason suggested in the dissenting opinion for exclusion is that “a reasonable person in Tolbert‘s position would not have necessarily considered that the statement subjected him to the risk of criminal liability.” (Dis. opn., post, at p. 1686; italics added.) The dissent argues that because the statement “was made to two members of the group that had forced a
The final reason given by the dissent is that the motivation Tolbert had in speaking may have been to exculpate himself from criminal liability. Tolbert‘s statement can be read as exculpatory only if both defendant and Tolbert shot at Dickson. Assuming that set of facts, Tolbert‘s comment still was a concession that if his shot did hit Dickson, he didn‘t care because Dickson was a bully. Tolbert was, at most making a claim of provocation, but he was definitely not making a statement which was “exculpatory in the sense that [he] . . . blamed a coparticipant for the commission of the greater offense while admitting complicity to some lesser degree.” (People v. Shipe, supra, 49 Cal.App.3d 343, 354.) Nor, of course, was the statement a self-serving confession made only after declarant was in custody. (Ibid.)
Testimony of Raymond Hawkins
Finally, defendant objects to the exclusion of testimony from Raymond Hawkins that Gregory Tolbert told Hawkins to convey a threat to defendant. Hawkins was the brother of a close friend of defendant.
Defendant offered the evidence not for the truth of Tolbert‘s statement, but for the nonhearsay purpose of showing Tolbert‘s consciousness of his guilt for the shooting. Defendant contends that the trial court erred by excluding this evidence under
Because the evidence was offered for a nonhearsay purpose it was not subject to the factual determination of
Here the appropriate inquiry by the trial court was “whether this evidence could raise a reasonable doubt as to defendant‘s guilt and then [whether] section 352 [applied].” (People v. Hall, supra, 41 Cal.3d at p. 833.) Hawk-
Conclusion
While the evidentiary errors we have identified, might not, standing alone, be sufficient to require reversal of defendant‘s conviction (
Because evidence corroborating defendant‘s version of events was excluded and because defendant never learned of the existence of Dana Dorhan, the one other eyewitness who claimed to have seen Tolbert commit the shooting, we can only conclude that there was a miscarriage of justice such as to require reversal of this conviction. (
The judgment is reversed.
Reardon, J., concurred.
In my opinion the majority‘s statement of facts places more emphasis than is justified on an equal responsibility for the confrontation which led to Dickson being shot. Certainly, the football players, their friends, relatives and supporters wеre at the dance to celebrate the victory of the Berkeley football team. On the other hand, the defendant, Greg Tolbert, Lamont Butcher, Carlos Garcia, and Ferris Foreman were not students at the university or ardent supporters of the team and their actions indicate that they came as a group with the intent to cause trouble.
Thus, they brought at least two guns, a .32-caliber handgun and an Uzi. Further, they openly and deliberately sexually harassed a woman who was seven months pregnant, while she was peacefully dancing with a man who identified himself as her husband. When the married couple moved to the other side of the room, defendant‘s group continued to behave in a confrontational manner toward the football players until the shooting occurred. One member of defendant‘s group, Carlos Garcia, also harassed another woman at the victory party.
I further believe that the majority opinion fails to sufficiently emphasize that the bulk of the nine-day trial consisted of conflicting identification testimony regarding whether defendant was one of the persons who fired at Dickson.
As stated by the prosecutor in his opening statement: “As anyone might expect in a tragic shooting incident of the type of facts that I have outlined to you the testimony will establish, there are bound to be some people who are able and some people who are unable to identify positively the defendant as being the person that shot Mr. Dickson. There is also some evidence that in addition to the defendant, there was yet another man, a friend of the defendant‘s who was at the scene who had a gun and who also shot at Mr. Dickson.” Thus, the prosecution conceded that Tolbert might also have fired at Dickson. The defense was that Tolbert alone fired.
A key prosecution witness testified that in a telephone conversation defendant told her that he and Tolbert shot a football player at a party.
In other prosecution evidence, four eyewitnesses identified defendant as the shooter, in court, in the following manner. Outside linebacker Albert D. Odom identified him without qualification. Defensive back John Hardy testified that two shots came “[f]rom the hand of the defendant.” The victim, defensive tackle Joel Dickson testified that he was shot by a man standing on a planter box and he was “[a] hundred percent sure” that defendant was on
At a live lineup prior to trial Odom, Hardy, and Johnson identified defendant without qualification as the shooter. Dickson was 70 percent to 80 percent sure. Each of these witnesses had earlier selected defendant‘s picture when shown a group of polaroid photographs taken at the Bear‘s Lair on the night of the shooting. Odom was 50 percent sure; Dickson “said he looks like the one who shot me.”
Johnson tracked down a photograph of defendant at his high school. However, the four witnesses were not always able to identify defendant in photographic lineups using different pictures of him.
The defense presented three eyewitnesses who contradicted the prosecution identifications. Defendant testified that he observed Tolbert fire two shots at Dickson. Defendant did not fire any shots although one of his group handed him an Uzi at the time of the incident.
Latitia Bradford saw a man on the bench with a shiny metal object that appeared to be a weapon and heard a clicking noise. When she started to walk away she heard shots. Bradford did not see defendant outside at that time. Bradford was shown the series of Polaroid photographs and she selected Tolbert as the man on the bench. Keith Hodges, a friend of the football players, appears to have seen two guns and two or three people around the planter boxes. Hodges observed two shots being fired and while he was running from the scene he heard one or two more.
Turning to the legal issues, the majority opinion may well be correct in holding that the potential evidence of Dana Dorhan should have been disclosed at once. However, the “real issue” is whether dеfendant was prejudiced by the absence of the evidence. (People v. Frohner (1976) 65 Cal.App.3d 94, 108 [135 Cal.Rptr. 153].) No reversal is called for unless defendant suffered prejudice; no prejudice occurs if the evidence was cumulative. (People v. Morris (1988) 46 Cal.3d 1, 34-35 [249 Cal.Rptr. 119, 756 P.2d 843].)
“To entitle a party to a new trial on the ground of newly discovered evidence, it must appear, . . . 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause. . . .” (People v. Steele (1989) 210 Cal.App.3d 67, 73 [257 Cal.Rptr. 687], citations and quotation marks omitted.)
In the present case the jury had to choose between conflicting identification testimony. Four eyewitnesses identified defendant. One witness testified to the effect that defendant and Tolbert fired. Two eyewitnesses identified Tolbert. One eyewitness testified to the effect that there were two shooters. Two of the three defense witnesses were completely impartial. Thus, any additional eyewitness testimony would be cumulative.
Turning to Tolbert‘s alleged statement. In order to be admissiblе the statement would have to be a declaration against penal interest under
The full test enunciated in Jefferson is: would a reasonable person “in declarant‘s position” have considered that the statement subjected him to the risk of criminal liability. (1 Jefferson, Cal. Evidence Benchbook (June 1990 Supp.) pp. 98-99.) Sevеral guiding principles have been developed by the cases to assist courts in applying this somewhat nebulous test.
“The focus of the declaration against interest exception to the hearsay rule is the basic trustworthiness of the declaration. [Citations.] In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant‘s relationship to the defendant. [Citations.]” (People v. Frierson (1991) 53 Cal.3d 730, 745 [280 Cal.Rptr. 440, 808 P.2d 1197].)
A statement will not be admitted if under all the circumstances the declarant‘s reasonаble motivation was to exculpate himself even if the
“The litmus test of determining the admissibility of the extrajudicial statement under section 1230 is whether the declarant should have realized or did realize that the statement when made was distinctly against his penal interest [citation].” (People v. Johnson (1974) 39 Cal.App.3d 749, 761 [114 Cal.Rptr. 545], italics in original.) A trial court‘s ruling will be upheld “absent a clear error of law or manifest abuse of discretion.” (People v. Love (1977) 75 Cal.App.3d 928, 941 [142 Cal.Rptr. 532].)
These rules have been applied to facts similar tо the facts herein in the following cases.
In People v. Chapman, supra, 50 Cal.App.3d 872, the defendant was convicted of murder. He testified to the effect that Banks had killed the victim. (Id. at p. 876.) Statements by three witnesses that Banks had admitted the killing were excluded. Two witnesses heard the admission while they were in jail with Banks and the third was the defendant‘s uncle. The prosecution had evidence that Banks had also stated that “he would take the beef because he is going to the YA and he couldn‘t get hurt” and that Banks had been pressured to testify by threats from the defendant. (Id. at pp. 877-878.)
The Court of Appeal affirmed because the “record here strongly suggests the existence of a plan by three fellow prisoners to have one person take the blame for аnother‘s crime under circumstances where the one taking the blame could not suffer any real detriment to his own interests.” (People v. Chapman, supra, 50 Cal.App.3d at p. 880.)
In People v. Love, supra, two codefendants were convicted of robbery. One testified that Walton committed the robbery. (75 Cal.App.3d at p. 932.) Testimony of two witnesses that Walton admitted the robbery to them was excluded. (Id. at pp. 934-935.) The judgment was affirmed because one witness was a friend of defendant and Walton, the statement to the witness was incomplete, and it was not made until two months after the robbery. Walton owed money to the other witness and “a likelihood existed that any such confession, even if made, would have been fabricated by Walton to avoid his payment of his debt.” (Id. at pp. 940-941.)
Herein, the alleged statement from Tolbert was suspect on at least two grounds. First, since Tolbert was dead by the time of the trial, defendant and his friend Butcher could have easily made it up in order to protect defendant without jeopardizing any of the living members of their group.
Second, taking the statement at face value, a reasonable person in Tolbert‘s position would not have necessarily considered that the statement subjected him to the risk of criminal liability. It was made to two members of the group that had forced a confrontation at a party and defendant was holding an Uzi at the time of the shooting. Thus, neither one of these persons was likely to report Tolbert to the authorities.
Finally, the motivation for the statement appears to be exculpatory. Approximately 30 minutes after Tolbert left a place where one of his group had shot another person, defendant accuses him of the crime. Tolbert denies the accusation. When pressed by defendant, Tolbert gives an evasive answer. Under all the circumstances a reasonable view of the colloquy is that defendant is attempting to divert suspicion from himself by blaming Tolbert while Tolbert is maintaining his innocence.
Accordingly, the trial court did not abuse its discretion in rejecting the evidence and there was no clear error of law. In support of their opinion the majority state: “Nor is it self-evident that such statements made very shortly after the crime to a group of friends all of whom had been at the scene are inherently unreliable.” (maj. opn., ante, at p. 1678.) Metaphysically speaking the majority may be correct, but this court‘s burden is not to determine self-evident truth, but rather to determine whether an abuse of discretion occurred.
The final conclusion by the majority opinion was that evidence of a threat by Tolbert was improperly excluded. Here again I disagree. Defendant‘s girlfriend, Sheila Fields, testified that in October 1988, she was threatened over the telephone that if she testified against defendant she would be killed. Defendant was not the caller. In July 1989, her door was kicked in and two
Further, it is undisputed that Tolbert was present at the scene of the crime and might have fired shots at Dickson. Thus, he would have sought to keep his name from the police whether or not he actually fired the shots which hit Dickson.
Accordingly, I would affirm the judgment.