*1 Dist., Nо. 13945. Fourth [Crim. Div. One. Dec. 1983.] THE PEOPLE, Plaintiff and Respondent,
HERMAN MARTIN, G. Defendant and Appellant. Dist., No.
[Crim. 15681. Fourth Div. One. Dec. 1983.] In re HERMAN G. MARTIN on Habeus Corpus.
Counsel Glazer, Allen,
Gerald Glazer, B. Emry J. Glazer & Allen and Glazer & Allen for Petitioner and Defendant and Appellant. General,
John K. Van de D. Benke and Louis R. Kamp, Attorney Patricia Hanoian, General, for Plaintiff and Deputy Attorneys Respondent.
Opinion STANIFORTH, found Herman G. Martin A jury guilty conspiracy J. (Pen. Code, 1, 518), to commit extortion to com- subd. conspiracy §§ (§§ 245, (a), 182, 1), mit assault with a subd. murder deadly subd. weapon (§ 187), (§ 240). The armed assault found Martin was simple jury also awith firearm the commission of and murder during the conspiracies (§ 12022, (a)). The subd. found the murder be second Mar- jury degree. tin was sentenced to 15 for a enhancement. years 1-year to life murder plus 654). for sentenced Sentencing (§ Martin was conspiracies stayed ato concurrent for a custody deadly six-month assault with county jail instructions, The the trial court’s weapon. issues concern appeal witnesses, discretion in sufficiency examination permitting testimony evidence, dismiss, misconduct. motion pretrial prosecutorial with and has been consolidated appeal accompanied by petition habeas on the to disclose inducements based failure corpus prosecution’s for witness’ of evidence by and the testimony suppression prosecution’s intimidating witnesses.
Facts Powell Andrew James La Jolla Richard Crake was murdered attorney blow to of a severe on 1981. The death was the result May probably the evidence judgment, in the most favorable to the Briefly, head. light a from arising Martin in civil litigation shows and Crake were embroiled over Arena Square shopping a real estate transaction at the dispute Sports dissatisfied with Martin became center. course During discovery had threatened Crake Martin litigation. posture During deposition with violence. was Powell for Martin’s insurance company.
Michelle Goff worked Powell to Martin hired Goff’s and she introduced him Martin. boyfriend child make his support March Martin Powell could not 1981. knew for failure jailed he would be Martin also knew Powell was afraid payments. to Powell he wanted Martin used this and told Powell leverage to as рay. $100,000 to collect Martin told Powell collect Crake owed Martin. money from and to beat him up. Crake When Powell business address.
Martin Powell Crake’s gave picture business, Crake’s home address. not to Martin supplied would Crake’s go no longer Crake to this address but discovered Powell and a friend went him this address Powell distance tell lived there. called Martin long incorrect. Marshal United States contacting obtained new address by
Martin Crake’s papers to serve he the address James needed Murphy telling Murphy ad- Crake’s with Martin with his civil suit. conjunction Murphy provided to Martin’s keys along to Powell with dress. Martin this address gave and a containing gun. car bag They 1981. on May
Powell and a drove to Crake’s house friend gave guard at Powell p.m. arrived at the station guard approximately approximately had from dinner a false name. Crake returned family Powell answered. and Crake Powell and his friend the doorbell p.m. rang to collect he was there and then told Crake sent the friend the car shot Crakе $100,000 Powell Crake into a got fight. for Martin. Powell and the gun the head with hit Crake in in the arm with Powell gun. Martin’s Crake’s death. caused eventually six The blows between and sixteen times. fired the her away but he Crake’s wife Powell stop pushed attempted at Powell. shoes and books at her. threw daughter Crake’s gun drove They friend’s car. to the blood returned covered with Powell Martin, dirty him the telling a toll call where he made house Powell’s
157 work was done. When Goff returned at 10 she found blood the p.m. bathtub, in the carpet, shoes and blood on Powell’s Powell jacket. disposed of jacket the and the in a gun nearby scheduled to be dumpster picked up the following morning.
Discussion
I Jury Instructions Martin raises two challenges to the instructions: first is question whether Martin was in entitled to the instruction v. Yar- People announced (1979) ber 875], 90 895 rather than the standard Cal.App.3d Cal.Rptr. [153 CALJIC instruction No. 3.01. The Court has granted California Supreme in several hearing cases this issue.1 presenting
This court the of follows rule line cases general following long (1978) CALJIC No. finding 3.01 “As is in v. Ott 84 People sufficient. said 118, , at . the Cal.App.3d page 130 . . in commission of crime ‘aiding with of knowledge eo estab wrongful of the purpose perpetrator ipso lishes criminal . intent . . “the criminal intent the aider and abettor of is presumed his with wrongful pur actions the actor’s knowledge from of (italics pose” added)’ We to truths the observa might add these [citation]. tion that since our of system entrusts the vast of justice jurors power drawing any inference evi that can drawn from substantial reasonably be drawn, dence and we foreover bind ourselves those inferences properly them, addition, it be would of instruct demeaning jurors’ intelligence on the clear intent from implication logically necessarily of that flows the words of the standard CALJIC No. instruction. The 3.01 standard (1982) CALJIC No. Flores 128 3.01 is all that is v. (People required.” 512, 525 Cal.App.3d Cal.Rptr.
Yarber, by its own an this holding, exceptions instruction provides rule: general (1962) “The Ellhamer/Ott v. Ellhamer 199 [People 777, (18 v. Ott Cal.App.2d 905); People 118, (148 479)] that intent is inferred Cal.App.3d synthesis from the knowledge the aidеr and abettor perpetrator’s purpose sound, as a matter of human but we cannot generally, experience, extrap therefrom, added], olate as a matter that the inference law [emphasis Beeman, Valenzuela, 22525, 1People 17, 1982, People granted v. hearing Crim. March v. Sims, 1982, 22952, hearing granted Crim. hearing June Crim. granted January 1983. action with from a proved; must be drawn. Intent is what be person’s must crime, his intent aid of a knowledge purpose perpetrator *10 the the contrary, evidence to can be In the absence of perpetrator inferred. inference is be a contrary intent as But where may regarded established. to aid a intended reasonable—where there is room for doubt that a person will not suffice.” of the knowledge purpose perpetrator—his perpetrator’s Yarber, 895, 916; omitted.) v. 90 fn. (People supra, Cal.App.3d an are facts to support Yarber instruction is where there appropriate of the crime in the commission inference defendant aided although actually “no to do Martin produces the defendant did not this action intend so. given. 3.01 was properly or a doubt on.” CALJIC No. hinge loop hang homicide created Martin next the court’s instructions on argues trial theo alternative offering confusion” in the minds of the “hopeless jury by degree ries: murder the of and second felony felony based on conspiracy the for all the criminal conduct murder as result of Martin’s responsibility of his coconspirator.
It is be fundamental rule the instructions must read jury together and understood in context Whether a been as the has presented jury. jury correctly instructed entire court. v. (People depends upon charge (1975) 16, 269]; Mardian 47 46 v. Flo People Cal.App.3d Cal.Rptr. [121 (1981) 67, 365].) res 115 83 We jurors assume Cal.App.3d Cal.Rptr. [171 are instructions. intelligent jury and persons capable understanding correlating (Pe 333, (1979) ople v. Yoder 100 338 Cal.Rptr. Cal.App.3d [161 Flores, 35]; if 525.) 128 at On review even an supra, Cal.App.3d p. erroneous instruction it is included reversal is when only appears required Mardian, the error was have 47 likely to misled the v. jury. (People supra, 46; 143, (1975) at v. 15 Cal.App.3d People Cal.3d 159 p. Mayberry [125 460, 1337]; (1973) 542 Cal.Rptr. P.2d v. Gordon 10 Cal.3d 298].) 516 P.2d [110 re Martin was Here, theory on the the entire case was presented find coerced Powell to Martin Powell’s conduct because sponsible nine Crake, $100,000, pages and beat him up. Approximately collect the abetting, aiding define carefully conspiracy, principals, instructions jury caus etc. The instruction single extent of for accomplices, responsibility inherently felony while committing Martin’s is: “If a complaint person ing death, malice is implied, to human life causes another’s dangerous would not instruction This single crime is murder.” have misled the jury.2 verdict, the correctness did not affect the instruction though we conclude 2Even (People complaint. precludes his error of invited it and the doctrine requested
Martin 545, 549, 591 P.2d fn. Cal.3d Perez The trial court “The specifically instructed: defendant is Count charged III murder, of the Information with the commission of the crime of a vio lation of Section 187 of the Penal Code.
“Ladies and gentlemen, here, as has been and I will argued you, instruct that that has be on the if at And that conspiracy theory all. it has to be a foreseeable I of that defined it for part you.” as have conspiracy,
This comment clarifies for the Martin’s responsibility based on the acts committed in furtherance of course during crimes and not contemplated for the existence of its purely conspiracy *11 elf.3 The trial court did not instruct on a murder. felony improperly
II of on the Defense Witnesses Rulings Testimony Martin he complains was denied his the trial right confrontation court’s limitation of the cross-examination of Powell and Andrew James Murphy. He also the argues court abused its discretion when it failed to grant immunity defense he proposed witnesses. the Finally, challenges trial court’s under ruling Evidence Code section 352 the statement admitting of a former Assistant United States to the effect Martin could Attorney commit рerjury.
Martin claims he should have been allowed to Powell using impeach specific instances in which Powell had lied in the The trial court past. prop erly ruled not be based nor impeachment may acts of misconduct past on collateral matters. The court found the examination would specifically be too time under 352 and Martin could consuming Evidence Code section evidence, did, introduce as he to show Powell’s thus achieving reputation, the same result from Powell’s his former properly. Testimony girlfriend, 3The law not require proof does direct of Martin’s intent murder. The conviction will stand if coconspirator necessary even contemplate did not all the acts achieve the aim conspirator though of coconspirator present even at was not the time the acts (People (1963) were committed and v. Foster did not know of the commission. 223 760]; People Cal.App.2d Brawley Cal.Rptr. (1969) 275 Cal.Rptr. [35 1 [82 v. Cal.3d 277 161, 361].) Superior 675, Castro v. Court (1970) 461 P.2d In Cal.App.3d 9 693 [88 500], Cal.Rptr. (Kaus) the appeal liability court cited: “The stark fact vicarious criminal coconspirators for acts of probable consequences ‘within reasonable and of the common acts, which, such, may may design.’ These be as never been unlawful have [Citations.] ” contemplated by a particular added; (See conspiracy. member (Italics omitted.) fn. People 331, (1907) 861], also liability v. 152 Cal. 334-336 vicarious P. [92 Kauffman People Smith degree (1966) first murder target where crime of conspiracy burglary; v. 779, 382, 222]; People (1969) v. Durham Cal.Rptr. 63 Cal.2d 780-794 [48 409 P.2d cf. 70 171, 262, 198], Cal.Rptr. Cal.2d 181 distinguishing required P.2d the intent of an [74 449 abettor.) aider and
160 Powell officer, wife showed a former and his former
commanding employer in Powell instances which had a Testimony specific as liar. reputation be used to prove and could not unnecessary made untruthful statements was Code, (Evid. trait in this trial. he acted with this character conformity of a 1101, (a).) introduced as may proof subd. Prior acts not be specific § the witness’ or attack honesty veracity witness’ character for to support 79, Code, 787; (1975) 15 Cal.3d 97 (Evid. v. Antick credibility. People § (1979) 475, 98 43]; P.2d v. People Thompson 539 Cal.Rptr. [123 615]; White v. Cal.Rptr. Cal.App.3d [159 of evidence The admissibility Cal.App.3d [95 rulings the trial will not disturb the court’s duty court and we (1976) 61 absent clear error or an abuse of discretion. (People Alfaro or error is 356].) No such abuse Cal.App.3d shown. address Martin obtained Crake’s Marshal testified
Deputy
Murphy
James
On cross-
after
murder.
day
from
talked
Murphy
Murphy
had once asked Mur
examination
to show Martin
attempted
defense counsel
*12
court ruled this
lawsuits. The
to locate a
in one of Martin’s
phy
litigant
unless the
of direct examination and irrelevant
testimony
the
beyond
scope
testi
Martin asserts this
related to Powell’s contact with Crake.
testimony
a lawful purpose,
would
Powell’s
at Crake’s for
mony
explain
presence
i.e.,
the
the
testimony
marginally
to locate
other litigant. Admittedly
the
visit.
However
relevant to contradict
for his
Powell’s explanation
“
elicit
‘any
and this
would not
testimony
cross-examination was of Murphy
оvercome,
testimony given
matter which
or
the
may
explain
tend to
qualify
’
added;
(Gal
(Italics
[citations].)”
a witness
by
on his direct examination.
666,
Cal.Rptr.
671
Superior
(1980)
laher v.
Court
103
[162
Cal.App.3d
389])
from the tes
necessarily
nor would
affect facts or denials
implied
it
(Id.,
in
at
in chief or
facts stated
direct examination.
timony
any
contradict
222,
672;
P.2d
229
(1950)
see also
v. Zerillo
36 Cal.2d
People
[223
p.
380,
881],
P.2d
223];
104
387
People
(1951)
v. Bigelow
Cal.App.2d
[231
681,
301].)
72
cert. den.
161 Amendment testify fused under their Fifth self-incrim- against privileges ination. It is offered Mar- would have corroborated Riley testimony showing tin did not Powell. Gross would have testified Powell supply gun used said Martin was him not involved. Wallace would have testified Powell told not Martin was involved it to extort from and was Powell’s plan money Crake.
Penal Code section 1324 the district request permits immunity attorney. (Daly Superior Court (1977) v. 19 Cal.3d [137 In People Sutter P.2d Cal.App.3d 829], grant the defendant the court has argued jurisdiction judicial in addition to in Sut immunity that the statute. Defendant provided car; ter and codefendant Mayhew committed a Sutter drove the robbery. entered Mayhew and robbed a while Sutter Mayhew guilty store. liquor pled to trial. Sutter proceeded offered would Mayhew’s testimony show Sutter did not know rob Mayhew was store when he went in to going buy beer because Sutter in remained Fifth Amend car. asserted his Mayhew ment privilege shield evidence of a in robbery similar another prosecu tion. The would not request immunity robbery because the second file was still The open. Court affirmed because the issue Appeal immunity Howеver, had not been properly preserved on appeal. response dissent the court went on to state the decision to is discre immunity grant tionary. decision rests first with the district and in limited attorney circumstances with the court. The Sutter also im judge noted dissenting munity is discretionary and must be limited. An factor is clearly important whether the addition, defense witness available to In testify. testimony must be clearly *13 be must exculpatory, testimony must essential and there no be strong contrary Here, all wit governmental interests. three although available, nesses were testimony their is not in that it clearly exculpatory only contradicts Powell’s assertion he received the from Martin and gun Martin coerced him into testimony crime. This was offered performing witness, by another defense and therefore the cumulative statements Aguiar, of three additional ex Finally, witnesses were not essential. the trial court ruled pressly immunity would not be due and grave to serious proper of circumstances this crime. In In re Marshall K. 39], Cal.App.3d said;
the court “The cases no to make hold that the state is under obligation a witness available defendant, to for a or on of the behalf testify matter, (Id., at 99.) that by granting immunity him from p. prosecution.” there for limited
Although is federal California precedent judicially declared use case been would immunity, no has cited which permit a trial court to Fifth a witness after his assertion of a require to testify and the Legislature’s authority In view of this scant
Amendment privilege. to the immunity prosecution, authority grant to express delegation ruling. in the trial court was abuse of discretion there no made these witnesses Alternatively, by Martin insists statements as dec a to the rule investigator hearsay are admissible police exceptions Code section 1230. “Evi larations interest under Evidence against penal dence a of the sub knowledge of statement declarant sufficient by having if the declarant is unavail is not made inadmissible rule ject by hearsay statement, made, to the able as a was so far contrary witness and the when interest, to the declarant’s so far him subjected or or pecuniary proprietary in his would risk of civil or criminal man liability position ... reasonable Here, al not have made the he it to be true.” statement unless believed interest, it their though clearly against penal witnesses’ statements were not made the is not certain a would have reasonable their person position unless court was faced with they allegations statement were true. The trial had witnesses had testimony Martin for this that these bought paid incarcerated on currently to lose virtue of the fact were nothing they other evidence was charges. hearsay The trial court’s exclude this ruling not an abuse discretion. Code under Evidence court’s ruling
Martin next the trial argues At United States of former Assistant admitting testimony section was to commit perjury Martin was willing Robert Knoll to the effect torney go willing Martin was an The statement showed abuse discretion. tended to prove The evidence his interests. assert extrаordinary lengths on his frustration based take law into his own hands Martin’s motive to a balancing 352 requires with the civil Evidence Code section litigation. Martin did not show The evidence value and effect. probative prejudicial was no time, so there testify did not had committed at Martin perjury any only statement and the inference he currently committing perjury unduly It was not criminal behavior. showed a he was possibility capable prejudicial. show- evidence evidence, powerful other more there is without this
Even *14 reasonably probable It is not Crake. to harm motive and plan Martin’s ing were ruling court’s if the trial have been reached a result would different error.
III Mistrial Motion outburst emotional witness had an the trial During prosecution in- each juror court questioned Martin he was The guilty. which she told 163 to dividually determine whether this would affect their unsolicited remark ability and evaluate the case. The court was unemotionally independently satisfied each could juror ignore the remark and admonished the jury against using remark for any Absent evidence we purpose. any contrary, assume the able to follow the trial court’s admonition and disregard the statement. Juries inadmissible often hear unsolicited and comments in order for mistrial, trials without constant it is axiomatic the proceed effect of prejudicial these comments be corrected admon may by judicial ishment; absent evidence to the is deemed cured. contrary (People error Ryan (1981) 168, v. 854]; 116 184 v. Cal.App.3d People Cal.Rptr. [171 (1963) 703, Seiterle 67, 947], 59 Cal.2d 710 381 P.2d cert. Cal.Rptr. [31 116, den. 375 163]; U.S. 887 L.Ed.2d 84 v. Sandoval People S.Ct. [11 (1970) 885, 9 625].) 888 Cal.App.3d Cal.Rptr. [88
IV Substantial Evidence the Verdict Supports urges Martin there is insufficient evidence each count. We to support review the elements each conviction and recite the evidence supporting that element. A an is an to commit unlawful conspiracy agreement and in commission object furtherance of an overt act agreement toward the 43 (1974) achievement that objective. (People Fujita v. 454, 757], 471 421 Cal.Aрp.3d cert. U.S. 964 Cal.Rptr. den. [44 [117 451, L.Ed.2d 95 1952].) by S.Ct. be shown circum may agreement stantial evidence and the their mutual defendant’s conduct out carrying pur (1976) sufficient. 575 pose (People Lipinski Cal.App.3d [135 451]; v. Hardeman Cal.App.2d [53 168], cert. den. 387 87 S.Ct. U.S. L.Ed.2d Powell testified Martin solicited him to collect beat money up Crake. Martin threatened of his he job Powell with and the loss if jail refused to Martin obtained address and it participate. gave Crake’s current to Powell. Powell then house, went to demanded the as money, Crake’s saulted Crake and killed him. Powell’s is corroborated testimony testimony of his evidence is girlfriend Martin’s other This employees. sufficient con extortion and support conviction for to commit conspiracy to commit assault with spiracy deadly weapon.
Martin attempts argue murder and assault were not in furtherance of the conspiracy because had Powell withdrawn from the This conspiracy. argument is directly contradicted by Powell’s the conversation testimony and his activities the of the murder. at night Even times Powell though *15 refused to with comply Martin’s instructions there is no but that question Powell went to murder, Crake’s house the of the the mon- night demanded
164
at various
if
reluctant
Even Powell was
assaulted Crake and killed him.
ey,
crime, it is apparent
of the
stages
the course of the planning
times during
cor-
testified,
testimony
his
is
so
and
as
he
participated exactly
agreed,
he
of
record
and the
of other witnesses
circumstantial evidence
roborated by
of the murder.
night
Martin the
and
day
calls between Powell and
telephone
his confederate
committed
any
A
is
of
crime
guilty
coconspirator
of the conspir
a
act
in furtherance
which is natural or
committed
probable
of
consequence
or
crime which is one of natural and
any
probable
acy
V
Misconduct
Prosecutorial
compel
misconduct
numerous incidents
prosecutorial
Martin declares
argu
the prosecutor’s
first complains
of the convictions. Martin
reversal
rever
thus
testify
requires
his failure to
was a direct comment on
ment
L.Ed.2d
18
(1967) 386 U.S.
v.
Chapman
[17
sal under
State of California
State
v.
1065],
a violation
24
as
87 S.Ct.
A.L.R.3d
Griffin
106,
165
15,
(1973)
959].) Whether
In obvious; this case the prosecution merely stated the he simply noted the difficulty a it proving by that must often be conspiracy proved circumstantial evidence because the do not conspirators frequently testify.5
It is hard to see the argument focused attention on Martin’s failure testify by that asserting even without Powell’s evidence testimony, sufficient supported finding The conspiracy. trial court’s instructions telling Martin’s failure to could be used testify not to infer his would guilt have cured any potential harm from this limited comment.
The record shows several references and innuendos the district attor- by ney Martin’s connection alleged with the Mafia. Martin directs our atten- tion to three instances. The first instance occurred during examination of Deputy District Attorney Charles Hayes:
“Q: Did that deal with in his things background?
“A: That’s right.
“Q: What was Martin’s response? Well, “A: I specifically asked him whether he had connection with any Department Justice. 5The text of the necessary comment is: “Let me proving read an ‘It is not in instruction. a conspiracy to meeting show a alleged conspirators making an express or the or agreement. formal conspiracy may formation and existence of a be inferred from all intent, tending way circumstances may proved show the common be in the same any may as other fact be proved, by testimony either by direct of the fact or circumstantial evidence or both direct and circumstantial Let suggest conspiracy, evidence.’ me that prosecution cases oftentimes include conspirators both defendants and none of the con as spirators testify. suggest you Let me you light in that consider this case that for while. job your Consider finding as whether or not Andrew Powell and Herman G. Martin are I, guilty IV, of Count conspiracy to commit II extortion and Count and Count HI Count
both sitting of them are over testimony here trial. Nеither one of them testified. No from either of coconspirators. you You hear the evidence that heard this case without testimony? Andrew Powell’s you guilty?” Would find him point At this defense counsel asked for a bench prosecutor conference wherein the ex- plained he was attempting argue testimony even without Powell’s sufficient circumstantial evidence could be found conspiracy. to show the The court denied motion for mistrial.
“Q: Did the to that? he tell answer you of said, He with the Department
“A: He he did. was connected yes, in the Mafia activities Justice. I him he with acquainted asked whether was and answer question New and he said—” On defense the Jersey objection stricken, defense motion admonished and the attorney were the district was bell, the unring one a for mistrial was denied. it is true cannot Although which had trial to consider answers they court instructed the were not jury applied understood and been stricken from the record. We assume the jury this instruction. to dis attorney attempted the distriсt
During closing argument cover of the credit the “inspired” by defense an illustration testimony by book The Godfather: Well, for a I to of some witnesses
“Okay. want talk about the credibility while, out few years little I of book that came a and am reminded a popular movie; I ‘The Godfather’. and it was a book called ago, also successful a cover, I book, least, am cover of that book. reminded of that at the the it, the don’t know if the that book has name any of read but cover of you it, a hand or some on and I can’t it is. It is either remember what exactly think, name, I to and the figure, there is down the words strings going like like A vision the a a the on a puppet; strings puppet. person pulling testified cover of that book when defense witnesses came to mind some my in this case.
“For of the defendant. Marcia She is the example, Sharpe. daughter witness, a She on the and the defense Okay. pulled stand as defense got was, 6. Her 6 father was on couch string testimony my April April That is the about 9:30 in his office had be to the doctor. taken 6 response string April got. her, I I her about that.
“Okay. cross-examined tried cross-examine there?’ T an 7th or 6th ‘Who else was string, string. pulled April April ‘When did T remember.’ don’t remember.’ ‘Was Powell around?’ don’t This is because just father come back to work?’ T don’t remember.’ your wrong strings.” person pulling offered may have been unnecessary Even this illustration was though faith, in an intent to bad it not amount to a dishonest act or persuade does 11 (1974) Strickland (People by means. deceptive, reprehensible Furthermore, 672].) Cal.3d 523 P.2d 955 [114 must be made in order to this an objection preserve argument appeal an when the comment is the trial give judge opportunity made order v. Green (People caused comment. cure harm any ob 1, 27, No such P.2d Cal.3d any potential made here and could have cured jection was an admonishment effect the illustration. prejudicial testimony of Powell’s analogy
Martin last complains prosecution’s “So, hard in a case know it is not testimony Jimmy you Fratianno: *18 of, or the this, case, the credibility like in to run down any conspiracy of, who together character one of the People conspire coconspirators. When crimes decent, are not law-abiding, upstanding people.
commit good, their testifies, it is to run down one of them on the gets easy stand credibility. recently.
“Let me an of a who has been in give you guy press example hit The all his He has been a Fratianno. been a crook life. Jimmy guy has He in to defense Okay? response objection man. has testified. this point [At this forego bench conference was held and the instructed to prosecutor illustration.]” and this
This was abandoned after a bench conference incomplete analogy limited comment could not affected the verdict following in have any way this trial. month-long wil
Martin asserts misconduct because prosecutorial prosecutor as material is based on Martin’s fully evidence. This assertion suppressed the three Fifth Amendment defense witnesses whо asserted their sumption did so because arrested. In privileges another defense witness was 1341], 14 Cal.3d P.2d Ruthford the court stated: is or otherwise the evidence which suppressed “[W]hen bears made unavailable to the to the state defense conduct attributable on the is such conduct our initial whether directly question guilt inquiry nor resulted in denial of a fair there offer of trial.” In this case is no proof any evidence the witnesses’ was on conduct testify decision to not based In of the defense attributable to the state. when the court was advised fact arrest, to do with this witnesses’ the court the arrest had “nothing stated Without Court” been “best left undone.” tactically it have although might suppres attributable to the there cannot be wilfull prosecution any conduct sion of evidence. First, during closing a few more complaints.
Martin raises insignificant in the jail black remarked “those argument prosecutor guys upstairs them. His in tried to from get didn’t come that Powell testify gun objection not fruitful.” The defense efforts were regard,, apparently, this comment misstated was Martin complains prosecutor this sustained. court, the law on It conspiracy. is the of the trial not the duty prosecutor, to instruct the on the jury law and the court instructed the jury correctly. The prosecution, defense and court all that jury told the would they receive instruction comment from court. The no legal had prosecutor’s effect on these Finally, instructions. Martin argues prosecutor ques- tioned a witness The privileged objections information. defense were sustained and the not evidence. instructed are No harm questions accrued from these questions.
VI Petition for Writ of Habeas Corpus Martin’s motion to consolidate his for writ habeas with petition corpus the related four appeal granted. petition arguments: presents prose- *19 misconduct, cutorial a fair trial on witness intimida- deprivation of based tion, the failed been prosecutor to disclose inducements had offered to key prosecution witnessеs in for their and discovered exchange testimony newly credible evidence in allegations undermines the entire case. The the petition for writ of habeas corpus concerning misconduct and witness prosecutorial intimidation have been in with on the the dispensed ap- merits opinion (See V, above.) A peal. witness’ of the Fifth part assertion Amend- potential ment self-incrimination the privilege against is not conduct attributable to prosecutor.
Martin next to the failure disclose induce argues prosecutor’s ments made key testimony to in for their prosecution witnesses exchange him a fair deprived trial. This concerns the Powell allegation testimony of and Steven of Jarrett. Martin to show the district attorney offers exhibits fered to intercede on to obtain more Powell’s behalf allow him to favorable treatment in to of Corrections. he offers exhibits Department Similarly show Jarrett at was more favorable treatment and sen promised judgment in tencing another case. Martin concedes such inducements are common and prosecutorial necessarily tools that these were not particular promises however, His to improper. argument, is based on the failure disclose 399, fact inducements were made. v. 14 (People Ruthford, supra, Cal.3d 406, 408; 525, 594, In re 487 Ferguson (1971) 5 Cal.3d 531 [96 1234].) P.2d
A substantial material evidence favorable must disclose prosecutor 14 Ruthford, supra, to the accused even without v. request. (People 406; 533; v. Brady In 5 at supra, p. Cal.3d at re Cal.3d p. Ferguson, 215, 218-219, 83, 83 S.Ct. (1963) 373 87 L.Ed.2d Maryland U.S. [10 104, 150, 1194]; United 405 155 L.Ed.2d (1972) v. States U.S. Giglio [31 169 763]; L.Ed.2d v. 360 U.S. S.Ct. Illinois Napue [3 of an 1217, 1221, evidence is that 1173].) 79 S.Ct. Where the undisclosed this interest both failure to disclose inducement testimony, statement that misleading or the defense the failure to correct a fair trial where “the no inducement was offered the defendant a denies to the credibility evidence thus related suppressed by prosecution or in- whose been key may guilt witness have determinative testimony 406; Giglio citing nocence.” v. 14 Cal.3d at (People Ruthford, supra, p. States, 108-109].) at supra, v. United 405 U.S. at L.Ed.2d pp. p. [31 Powell’s testimony was testimony important, Jarrett’s
Although of lenient denied promises Both witnesses as the coconspirator pivotal. testimony. for their exchange been treatment had made to them record and entered the sat this attorney misleading testimony district as he that was given any is no evidence in the case of Powell “There argued: (1983) 143 Varona (See People deal for testimony.” kind of his accom from the exhibits Aside Cal.App.3d record this conduct it in the for habeas appears panying petition corpus, “The duty benign was more than an and beyond neglect. oversight is not His duty that of an advocate. of the district is not attorney merely evidence convictions, the court the but to fully fairly present obtain trial, it is the material to the which the defendant stands charge upon to the are charge material solemn trial see that facts duty judge *20 com at the In resources fairly presented. light great [Citations.] done to be justice and commitment that mand of the district our attorney com individual, that the him to assure power restraints are on placed in our courts justice mitted to his care is used to further the administration ascertain designed in criminal trials and not to subvert their procedures the truth.
“. . . Although our system administering justice criminal is adversary nature, in a trial is (In not a . . re .” 5 Cal.3d game. supra, Ferguson, 531.) court the
In this case had a to disclose to the duty the prosecutor failure The testimony of the witnesses. misleading prosecution prosecution’s concerning resulted in the evidence substantial material suppression evaluate whether this of chief Nonetheless we must credibility witnesses. known outcome that had the jury affected the of the trial. We are satisfied in exchange the witnesses had been more lenient treatment promised Both witnesses their it not affected the verdict. would have cooperation, intercede and offer to attorney’s faced severe the district sanctions penal had Both witnesses would have the character of sanctions. only changed other motives to testify. Both witnesses’ testimony by was corroborated other direct testimony circumstantial evidence.
Martin’s final argument is new evidence has become available which undermines the entire case of the and could not have prosecution been discovered (In re Hall diligent pretrial investigation.
Cal.3d The P.2d testi proposed is mony that of Wallace Jackson. Jackson Powell’s in cellmate county jail before trial. Martin asserts Jackson would Powell and testify Wallace concocted a scheme to frame him. None of the information supplied by Jackson’s declaration constitutes evidence undiscoverable before trial. Both Jackson’s and Wallace’s declarations state were cellmates they with along Richard Tiebout and Powell during defense The investigation. defense interviewed investigator Wallace and Tiebout and could have just easily interviewed Jackson. No new evidence which would have undermined the case is prosecutor’s and the presented witness was potential discoverable before trial.
VII
Disposition judgment appeal affirmed. The for writ of petition habeas corpus is denied. The defendant’s motion for bail on is denied. appeal J.,
Cologne, P. Acting concurred. WIENER, J., Concurring I concurwith the Dissenting. majority Martin’s affirming extortion, convictions of commit conspiracy conspir- to commit acy assault with a However, deadly assault. weapon simple I believe instructional error reversal of requires Martin’s conviction of sec- ond murder. Martin degree was neither with nor tried for charged conspir- *21 murder, to commit acy the district reflecting attorney’s assessment before trial that there was insufficient evidence to establish an between agreement Martin and Powell that Powell was to murder Crake. The district deputy who attorney tried the case did so but with these consistently, incorrectly, on the pleadings theory that the unintended was the fore- killing objectively seeable of result the charged neither of which conspiracies, can legally sup- a of second port finding murder. degree instructions
Jury may not be considered in the abstract. must be They trial, evaluated in the of context the actual the theories advanced considering and the evidence In presented. the case before us the was directed to jury limit its consideration of Martin’s on the murder count to “the con- guilt effect, the ante, In italics (See supplied.) if at all.” spiracy theory p. as- abetting. My and aiding the instructions on was told to disregard jury “The General who asserts: the Attorney the record is shared by sessment of not to consider was jury indicates of the above instruction language plain murder count.” when evaluated they and aiding abetting theory an theory a using conspiracy the murder count were told evaluate “[They to] ” (Italics exclusively. supplied.) convicted instructions, the jury it appears abetting and Excising aiding Martin was determined The first jury on the instruсtions. following Martin a assault with commit and to commit extortion of the guilty conspiracies told, Martin had the was then the jury As a coconspirator, deadly weapon. is liable of a criminal conspiracy “Each member as Powell: same culpability member of the other every declaration of each act and bound each of the of object in furtherance is if said act or said declaration conspiracy or in furtherance of one conspirator pursuant act conspiracy. [¶] Every the act of all conspirators. of the is design conspiracy of the common that follows for the act of a coconspirator is legally conspirator responsible of the con of the object one of the and natural consequences as probable the original plan not intended as a even it was though part spiracy of such act.” time of the commission he was not at the even though present murder 6.11.) degree in whether second (CALJIC dеtermining No. Finally, of the object conspiracy,” natural “probable consequence was all of CALJIC 8.30 and of CALJIC No. permitted apply part the unlawful is (1981 rev.): “Murder of the second degree [also] No. 8.31 there is manifested when aforethought of a human with malice being killing .[1] Murder human . . . an intention to kill a unlawfully being [¶] the direct human as being of a killing the unlawful degree second [also] that involving high degree probability causal result of an intentional act base, death, for a antisocial purpose which act is done it will result direct is the killing When the wanton for human life. disregard with [¶] to establish that act, necessary an intentional it is not result of such human being.” of a result in the death intended that his act would defendant focus on Mar- informed were to the jury they None of these instructions necessary the malice harbored of mind in whether he determining tin’s state further, the matters murder. To complicate for conviction second degree to substitute the jury which allowed tried and in a manner case was argued of second guilty Mаrtin of mind for of Martin’s in finding Powell’s state that *22 murder. degree 8.30, concluding phrase 1The court omitted the of CALJIC No. as follows: “. . . but the premeditation.”
evidence is insufficient to establish deliberation and The acted district that if the decided Powell deputy attorney argued jury base, life, for a antisocial for human and with wanton purpose disregard then Martin was murder was a natural and as a since guilty coconspirator After he wanted to talk probable consequence saying conspiracy. law,” about “homicide argued: prosecutor
“With to respect [murder], Count III this must decide the case of jury of the State of California versus Andrew Powell. You have to decide without regard Herman Martin or any—just take him out of the picture for a minute. You have seen the evidence about Andrew Powell killing Richard Crake. You have to was, decide what kind of a that killing because that only thing is with important is, this respect conspiracy theory Powell, Andrew his state of mind and what kind of a homicide did he commit when he killed Crake. all,
“First of hear, the only instructions are choices you going only are you going get are between second murder and man- degree voluntary or not slaughter The guilty. evidence is to show this is a second going degree murder. Homicide is the unlawful of someone. . . . killing
“Well, the first two of with. Mr. Crake those don’t have you any problem killed, is, was and it The did an unlawful clearly killing. question Andrew Powell have as malice afore- a state mind that we described Because the difference murder and thought? manslaughter between or unlawful killing absence of malice If it is an presence aforethought. there is malice If no aforethought, it is murder. there is malice aforethought, it is manslaughter. attorney proceed- That is it district simply.” deputy mind, ed to focus on Powell’s state of arguing:
“You tell us what he intended [Andrew to do. Don’t let Andrew Powell] Powell tell you what his state mind was. You tell him. . . . The can tell Herman Martin what Andrew Powell’s state mind was.
“I suggest malice, Andrew you Powell was full of and the that killing resulted this case clearly shows that. This is a secоnd murder. degree Murder a second is the unlawful of a human with degree killing being malice when there is an intention to kill aforethought unlawfully manifested a human That being. is called of the second murder unpremeditated degree. You will that get instruction.
"
“Was there manifested an kill intention on Powell’s to Mr. Crake? part *23 an mean, there I he beat He shot him. That manifested Clearly, was. him. kill. intent to Powell did second murder.” degree ar- with the prosecutor’s the consistent jury,
The court’s instructions to of Martin second to convict inform that in order failed to the jury gument, or either express implied had to act with murder it was Martin who degree malice. to Martin
The in to be attributed court’s error Powell’s malice permitting mur- instructing felony exacerbated the error by was court’s partially The of giving der. The court of CALJIC No. 8.51. inexplicably gave part CALJIC rejected that instruction seems because the court “inexplicable” the second degree Nos. 8.32 and 8.33. basic Those instructions present is done further rule and further that if a felony-murder killing provide inherently common of a a felony danger- the commit purpose conspiracy life, human all of deemed to be equally guilty ous to the are coconspirators intentional, murder of is uninten- killing of the second whether the degree fact or instructions and the tional accidental. The court’s of those rejection theory the was from a prevented felony-murder suggests prosecutor arguing Nonethe- oversight. of of CALJIC No. 8.51 was due to an giving part instructed; less, felony a inher- jury was “If a while person committing death, human is ently dangerous implied, life causes another’s malice misdemeanor inherently crime is If danger- murder. while a committing malice, death, he is ous to human life he there is no causes another’s not (Italics supple- instruction guilty manslaughter.”2 supplied.) mented, been, nor the underlying could it have instructions by defining or to the rationale dangerous felony misdemeanor. Pursuant 580, 188, 450 P.2d (1969) 70 Cal.2d 538-540 Ireland be 1323], cannot weapon 40 A.L.R.3d of assault with a felony deadly the- on felony-murder used to a second murder conviction support degree because it is not Extortion also is as the ory. underlying felony unavailable the above instructions the inherently human life.3 From dangerous Combined have Powell murder. erroneously felony could found guilty 2Although packet requested this instruction is included in the instructions submitted counsel, rejected. actually requested Martin’s the record indicate it was does not whether written, only question requested “rejected” Unlike other is mark upon instructions which appears lawyer on this and/or the question instruction. Whether the mark means defense request reject had or court concern with the or were whether to instruction undecided inap is Accordingly, instruction not clear from the the doctrine of invited error is record. plicable. determining inherently 3In whether a life the elements of felony dangerous human abstract, (People felony particular must be considered in the not the facts case. 1180].) Clearly, obtaining v. Henderson Cal.3d 560 P.2d 93 [137 (Pen. Code, 518) by wrongful from force property another with his use of or fear § consent may accomplished life-threatening inflicting physical be without harm. mortal or
with the preceding and second murder instructions and conspiracy degree the rather than Martin’s prosecutor’s argument focusing Powell’s state mind, of the Martin, then could jury have concluded as Pow- erroneously ell’s was coconspirator, of second guilty implied malice murder. degree and
Courts commentators continue the mechanical question application of artificial formulae to establish criminal For the Cali liability. example, fornia “. Supreme Court . . has the criticized rule repeatedly felony-murder as a artificial’ and ‘highly ‘barbaric’ which ‘. . . “erodes the rela concept tion between criminal and moral . liability " (People .' v. culpability”. (1983) 441, 390, Dillon 34 (conc. Cal.3d 494 668 P.2d [194 697] Bird, J.).) of opn. C. Courts have the of crim historically equated degree inal liability with the actor’s state mind. Mens rea has been always stressed to insure that which a punishment prescribes for society specific crime is (See related to the directly criminal purpose perpetrator. Code, 20; Witkin, (1963, Pen. Cal. Crimes and 1978 Elements § supp.) Crime, 52.) Only this court held the recently, objective § example, standard of CALJIC No. 8.31 for malice implied second murder was degree because the failed to inadequate instruction the defendant require finding acted with a that subjective awareness his conduct the life of endangered another. v. Smith* (People (Cal.App.).)
Paradoxically, here affirms majority Martin’s conviction second murder on a degree which conspiracy theory allowed jury disregard Instead, Martin’s state of mind. was on a based but incorrect guilt simple (of formula: second conspiracy any death murder felony) plus degree equals provided (1) (2) death was an event foreseeable was objectively by caused the coconspirator’s death-resulting act. case,
In this there was evidence to convict Martin of ample aiding abetting Powell’s commission of sеcond murder. The fact that Mar degree tin used as an mercenary rather than himself does not intermediary acting immunize him from culpability. had been asked to Accordingly, jury Martin, circumstances, decide whether under all of acted with implied 4 in malice intentionally a chain of which directly events resulted instigating death, in Crake’s it may well have answered affirmatively. Unfortunately, was never that I conclude Martin’s given Accordingly, opportunity. second degree murder conviction must be of Martin’s Regardless reversed. murder, apparent guilt second he is nonetheless entitled to a fac- degree 22, *Reporter’s Supreme Note: Deleted on order dated December direction of Court 1983. deputy attorney 4The argument acknowledged express district Martin did not with act killed, said malice. He Martin didn’t probably “Herman didn’t want Richard Crake intend happen that to at all.” (See of that crime. tual determination of each of the elements fn. Kent Cal.App.3d 13, 1984, appellant’s January
A for a denied petition rehearing 19, 1984. was denied April for a Court hearing by petition Supreme *25 J., be Bird, Kaus, J., that the should C. petition were opinion granted.