IN RE: Jerauld HARRELL

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Court of Appeal, Fourth District, Division 1, California.

IN RE: Jerauld HARRELL, on Habeas Corpus. In re Marlon WILSON, on Habeas Corpus.

Nos. D021040, D021315.

Decided: October 24, 1995

In a joint trial, petitioner Jerauld Harrell as to count one was found guilty of murder in the first degree (Pen.Code,1 § 187, subd. (a)) with a true finding he used a weapon in commission of the offense within the meaning of section 12202, subdivision (b);  as to count two he was found guilty of attempted murder (§ 664/187, subd. (a)) with premeditation (§ 189) with true findings he used a weapon within the meaning of section 12202, subdivision (b), and inflicted great bodily injury within the meaning of section 12022.7.

Petitioner Marlon Wilson as to the murder charged in count one was found not guilty;  as to count two, he was found guilty of attempted murder (§ 664/187, subd. (a)) without premeditation (§ 189) with a true finding he inflicted great bodily injury within the meaning of section 12022.7.

Petitioners Harrell and Wilson argue the prosecution denied them due process when it suppressed evidence favorable to the defense by failing to reveal that prosecution witness Gracie Lankford was a paid government informant.   Both argue such conduct should result in reversal of their convictions.   Wilson additionally argues that since Lankford's status was not revealed before the preliminary hearing, the charges against him should be dismissed.   Wilson also contends Doyle 2 error occurred when the prosecutor commented during trial on Wilson's assertion of his right to silence.

FACTS

A. Prosecution Case

On the evening of August 2, 1991, petitioners Harrell and Wilson with several female companions walked from an apartment located at 3666 43rd Street to a nearby market.   On returning, Harrell went upstairs to the apartment while Wilson and the women remained outside.

At the same time, 15-year-old Angelo Bryant and 20-year-old Vincent Brown were walking on 43rd Street near the apartment.   Bryant and Brown's conversation was liberally spiced with the word “blood” and they referred to each other as “blood.”   Bryant, but not Brown, was a member of the Blood street gang.   Wilson, like Harrell, was a member of a rival street gang, the Crips.   Wilson confronted Bryant and Brown and stated “What's up cuz?”   In the gang culture such words were insulting and provocative.   Wilson pushed Brown aside and struck Bryant in the face.   Bryant struck back and a fist fight began.   Brown was not involved.

One of the women who had been standing on the street with Wilson ran up to the apartment and told Harrell to come out because Wilson was “getting jumped by some slobs.”   Slobs is a derogatory term for Bloods.   Harrell went to the kitchen.   Grace Lankford, one of the women in the apartment, heard a kitchen drawer where knives were kept open and slam shut.   Harrell then ran to the street carrying a knife.   Brown was about to hit Wilson from behind when Harrell confronted Brown and the two began to fight.   Harrell swung at Brown.   Brown backed up and then ran away.

Meanwhile Bryant tried to run.   Wilson tackled him in the middle of the street.   Harrell joined the attack on Bryant, hitting and kicking him.   Lankford tried to pull Harrell and Wilson off Bryant.   She did not join in the attack.

As the fight continued, a car drove up and an individual named Basheer got out of the car and fired four gunshots into the air.   Someone said the police were coming and the persons in the street left.

At approximately 6 a.m., on August 3, 1991, Brown's body was found in the backyard of a house located near the site of the confrontation.   Brown had a stab wound to the upper left chest.   The wound penetrated the lung and caused Brown's death.

Bryant suffered numerous stab wounds to his head, neck and body but survived.

DISCUSSION

A. Suppression of Evidence

Petitioners argue they were denied due process when the People failed to reveal that witness Lankford was a paid informant in other unrelated investigations.

1. Background

At the People's request, two in camera hearings were held before trial concerning whether the prosecution was required to reveal Lankford's status as an informant.   The defense was aware the in camera hearings were held but was unaware of their subject matter.   At the conclusion of the hearings the trial court found Lankford's status as an informant immaterial to Harrell and Wilson's case and stated the People were not required to reveal her informant status.   Transcripts of the hearing were sealed, and we have reviewed them.3

In a declaration appended to Harrell's petition, trial counsel relates the following:  Harrell, based on rumor, believed Lankford might be a police informant.   During a chambers conference counsel inquired if the rumors were true.   Both the prosecutor and the prosecution's gang expert stated Lankford was not an informant.   The trial court instructed counsel not to question witnesses concerning Lankford's status unless he could provide evidence she was an informant.   No questions were asked Lankford or other witnesses concerning her informant status.

In June 1993, Lankford's status as a paid informant was revealed by the prosecution in cases in which she had provided information.

2. Law

The prosecution has a duty to disclose all material evidence favorable to the accused whether requested or not.  “Evidence is ‘favorable’ if it either helps the defendant or hurts the prosecution, as by impeaching one of its witnesses.  [Citation.]

“Evidence is ‘material’ ‘only if there is a reasonable probability that, had [it] been disclosed to the defense, the result ․ would have been different.’  [Citation.]  The requisite ‘reasonable probability’ is a probability sufficient to ‘undermine[ ] confidence in the outcome’ on the part of the reviewing court.  [Citation.]  It is a probability assessed by considering the evidence in question under the totality of the relevant circumstances and not in isolation or in the abstract.  [Citation.]  Further, it is a probability that is, as it were, ‘objective,’ based on an ‘assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision,’ and not dependent on the ‘idiosyncrasies of the particular decisionmaker,’ including the ‘possibility of arbitrariness, whimsy, caprice, “nullification,” and the like.’  [Citation.]”  (In re Sassounian (1995) 9 Cal.4th 535, 543-544 (Sassounian ).)

The materiality inquiry described above subsumes the question of prejudice.   As Justice Mosk neatly stated in Sassounian:  “A showing by the prisoner of the favorableness and materiality of any evidence not disclosed by the prosecution necessarily establishes at one stroke what in other contexts are separately considered under the rubrics of ‘error’ and ‘prejudice.’   For, here, there is no ‘error’ unless there is also ‘prejudice.’  [Citations.]”  (Sassounian, supra, 9 Cal.4th at p. 545, fn. 7.)

3. Discussion

We conclude petitioners were not denied due process when the prosecution concealed the fact Lankford was an informant.   Petitioners argue that had they known of Lankford's status, they could have attacked her credibility by showing she had a reason to give false testimony, could have questioned the police investigation by arguing law enforcement had an interest in shielding Lankford from responsibility for her part in the assaults and could have attacked the credibility of other witnesses by arguing they feared Lankford because of her relationship with the authorities and tailored their testimony to protect her.

First, while the information concerning Lankford's status as a paid informant might have served in some measure to impeach her, it would not have destroyed her testimony nor would it have rendered it without weight.   In any case, Lankford was impeached with the fact of a prior narcotics conviction, with her admission that if she were involved in the attacks her probation would be revoked and with the obvious fact she could be charged with the crimes themselves.

Next, while Lankford had useful information, she was by no means an indispensable prosecution witness.   The general sequence of events and the persons involved in the crime were not in dispute.   Lankford was not a witness to the initial confrontation between Wilson and the victims.   It is true Lankford testified that before Harrell left the apartment, after being told Wilson was involved in a fight, he went to a kitchen drawer and took out a knife.   The fact Harrell was armed with a knife, however, was corroborated by the testimony of two other witnesses who stated the fourth man to join the fight, Harrell, had a shiny object in his hand.   Those witnesses were not friends of Wilson and Harrell nor were they involved in the gang culture.   Those independent witnesses, however, had been threatened in an attempt to dissuade them from testifying.

It is true two gang related witnesses testified Lankford joined Wilson and Harrell in their attack on the surviving victim before telling the men to stop.   It is also true that while denying the truth of the allegations at trial, the two women had stated to officers that Lankford was armed with a knife at the time of the confrontation, and one of the women stated Lankford stabbed the second victim.   No witness, however, claimed Lankford was involved in the attack on Brown.

Lankford herself testified she entered the fray not to assault the second victim but to stop the attack.   This version of Lankford's role in the incident was confirmed by a nongang related witness who testified Lankford tried to stop the fight and did not attack the victim.   In the final analysis even if the defense could have made an argument Lankford was involved in the attack on the second victim, it would have done nothing to lessen the evidence that petitioners were involved in that assault as well.

In argument, the prosecutor did not rely heavily on Lankford and classed her testimony with that of the other gang related witnesses.   The prosecutor noted there was truth and deception in their testimony and the truth had to be found in the testimony of the independent witnesses.

Lankford was a useful but not crucial witness for the prosecution.   The sequence of events and the persons involved were all matters that could be determined from other evidence and testimony.   In any case Lankford was impeached.   The jury was aware she had a serious personal stake in implicating others in the incident and in minimizing her own role.   Petitioners' arguments with regard to a police interest in protecting Lankford is based on mere speculation and there is nothing in the record that would have supported such an argument.   The evidence clearly indicates the assaults were carried out by petitioners.   We conclude while evidence of Lankford's informant status might have been favorable to the defense, it was not material.   We do not find a reasonable probability that had Lankford's status as an informant been revealed, the result in the case would have been different.   It is not unreasonable to believe that had her status been revealed, the People's case would have been stronger since the gang related witnesses might have been seen as having a motive for giving false evidence concerning Lankford's role in the crimes.

While not required, we nonetheless comment briefly on the process undertaken by the prosecutor and the trial court to deal with the informant issue in this case.   The prosecution faced a difficult and sensitive problem.   The People had information about Lankford which they were arguably required to reveal to the defense.   The prosecution believed, however, they were not required to reveal Lankford's informant status since that fact, in their view, was not material.   How were the People to secure a judicial ruling on the issue?   If the prosecution notified the defense it was seeking a hearing concerning whether Lankford's informant status was a material fact, they would reveal the very secret they sought to protect.

In the usual case where the People wish to assert some form of the official information privilege, the defense is aware the People have information they wish to remain confidential.   They know the People have an informant or information which might be useful to the defense.   What the defense lacks is specific information, i.e., the name of the informant or the specific information in the People's possession.

In discussing this usual situation, courts have concluded due process is not denied by in camera procedures when the defense is given an opportunity at an open hearing to express its position on the need for the confidential official information and when a record of the in camera hearing is preserved for appellate scrutiny.  (See People v. Montgomery (1988) 205 Cal.App.3d 1011, 1021;  People v. Levine (1984) 152 Cal.App.3d 1058, 1070;  People v. O'Brien (1976) 61 Cal.App.3d 766, 774-775.)

In the present case, however, the defense, essentially, was unaware the People possessed confidential, potentially useful, information.   Given the dilemma of proceeding without a judicial resolution of their duty to disclose Lankford's status and revealing that status to the defense such that a meaningful reply was possible, the People chose a middle course.   The People sought an in camera hearing without notice to the defense of the subject matter of the hearing.   While this approach insured a judicial determination of the need to reveal Lankford's status, and while a record of the hearing was made for review by this court, it left the defense without the opportunity to state its position on the materiality of the People's confidential information.

It is arguable, but we do not decide, that this approach is a satisfactory one.   The law recognizes the need for the government to maintain confidences.   In the present context the ability of law enforcement to gather criminal intelligence is essential.   Acquiring such information would be impossible, however, if the authorities could not maintain absolute control over the disclosure of the information acquired and its sources.  (See Roviaro v. United States (1957) 353 U.S. 53, 59.)

This legitimate need for secrecy must, however, accommodate a defendant's absolute right to the disclosure of all substantial material evidence favorable to the defense.   Likewise the accommodation of these important societal interests requires, in considering whether disclosure of official information must be revealed, the use of hearing procedures that both protect the secrecy of the People's information and the right of the defense to express its position on the matter.  (Roviaro v. United States, supra, 353 U.S. at p. 59.)

Not only is the ultimate decision of whether official information must be disclosed dependent on the unique facts of a particular case, so too is the precise nature of the process employed to make that determination.   The general guiding principle is that the defense must be given as much information as possible without revealing the very confidence the People believe privileged and nonmaterial.   The procedures in the present case at least attempt to reconcile these interests.

We note that such a procedure places a particular burden on the trial court and the prosecution.   The court must make as detailed a review as possible not only of the People's claim of privilege but must make efforts to understand the part such information would play in the defense case.   Since this review may be incomplete, the trial court and prosecutor should be prepared, as evidence at trial is developed, to revisit the question of disclosure.  (See People v. Seibel (1990) 219 Cal.App.3d 1279, 1297-1298.)

We note in this regard that in Kyles v. Whitley (1990) 498 U.S. 931, the court states that due process does not require the prosecutor maintain an open file policy with regard to discovery.   The court notes that conditioning the requirement for disclosure not only on the favorable nature of evidence but its materiality places on the prosecutor the responsibility of gauging when evidence in its possession, favorable to the defense, has reached the level that it is material.

While we wince at the prospect of ex parte hearings in which the defense is not aware even of the subject matter of the proceeding, it is undoubtedly better to hold such hearings than to require the prosecutor make a determination of its constitutional duty to reveal evidence without judicial input or control.4

B. Doyle Error

Wilson argues he was prejudiced by Doyle error.

The fact of a defendant's post-Miranda silence may not be used against the defendant at trial for any purpose.   This rule is grounded upon the premise that a Miranda warning implicitly assures that silence will carry no penalty.   (Wainwright v. Greenfield (1986) 474 U.S. 284, 295;  Doyle, supra, 426 U.S. at pp. 617-618.)

Wilson argues Doyle error occurred during the examination and cross-examination of one of the investigating officers.   During his direct examination of Officer Wiggins, the prosecutor asked the officer if on August 3 he had a chance to be with and talk to the defendants.   He said he had.   The prosecutor then asked Wiggins if he had noted the respective height of the two men.   The officer stated he had and gave his estimate of their heights.   The officer was asked if during his contact with the men either had complained of any injury or knife wound.   He stated they had not.   Wiggins was then asked if he observed any injuries on the defendants.   He stated he had not.

No objection was made to the prosecutor's questions.

We find no Doyle error.   The prosecutor was not suggesting some inference unfavorable to the defense should be drawn from the defendants' invocation of their right to silence.   Indeed, there was no testimony that the men had declined to speak.

The question concerning the officer being with and talking to the defendants was a foundation for Wiggins's conclusions concerning their height.   While the question concerning speaking to the defendants was not strictly required, neither did it suggest any inference should be drawn from that fact.

The prosecutor's question concerning whether either defendant reported a wound or injury was a sensitive one since the prosecutor was aware the men had invoked their right to silence.   The prosecutor's point, clearly, however, was that one who had suffered an injury would be expected to report that fact to emergency personnel.   The prosecutor also established the officer noted no injury on the men.   We do not believe under the circumstances the prosecutor's question amounted to Doyle error.

In the second instance of claimed Doyle error, counsel for Harrell asked Officer Wiggins if he interviewed the two defendants on August 3.   The officer replied:  “I went to the county jail in an attempt to, but the two of them, after I admonished them, they refused to make a statement.”   There was no objection to the question or motion to strike the answer by either defendant.   No further questions were asked by any party about the defendants' invocations.

It is probably the case, as Wilson argues, that Doyle error may be committed by counsel for a codefendant.  (See People v. Hardy (1992) 2 Cal.4th 86, 175.)   Here, however, we find no attempt by any party to suggest any adverse inference be drawn from the defendants' decision not to speak to the officer.   In any case there was no objection to the question or motion to strike and the issue is waived.   There is no showing of ineffective assistance of counsel in the failure to object since an attorney could reasonably conclude that given the innocuous nature of the officer's answer, it was best simply to ignore it rather than highlight it with a curative admonition.

Finally, Wilson contends the prosecutor committed Doyle error during argument.   First, Wilson complains about the prosecutor's comment that neither defendant felt remorse, that they were glad they committed the crimes and were only concerned with how much time they would get.   There was no objection to the comment.

While the prosecutor's remark might have been irrelevant, it appears to make no comment on the failure of the defendants to either speak to the officers or to testify at trial.   In any event no objection was made to the remark.

Next, Wilson complains about the prosecutor's comment that in assessing self-defense and imperfect self-defense, the defendant's fear had to be genuine and that it could not simply be “a gang member through his attorney arguing to you that it had something to do with the facts that night.”

Counsel for Harrell objected, stating the comment was Griffin and Doyle error since neither defendant testified.   The trial court found the remark “very marginally inappropriate” and admonished the jury by reminding them that the defendants had a right not to testify and that no inference was to be drawn from their decision not to take the stand.

As noted earlier the prosecutor's comment came very close to being Griffin error.   The trial court responded by reminding the jury it was to draw no inference from the defendants' decision not to testify.   In this context we do not believe a juror would take the prosecutor's remark as a comment on the defendants' invocation of their right to silence after their arrest.

Wilson also notes in his argument the prosecutor told the jury it was to rely on all the evidence in reaching its verdict and it was entitled to draw inferences from the facts.   Wilson also notes the prosecutor told the jury the evidence of guilt was unrebutted.

Again, we find nothing in these remarks suggesting the jury should rely in any way on the fact the defendants invoked their right to silence.

Even if we were to assume any of the questions, answers or comments cited by Wilson amount to Doyle error, we would find such error harmless beyond a reasonable doubt.   If any Doyle error occurred in this case, it was oblique and marginal.   The cited questions, answers and comments were fleeting, unexploited and played no central role in the People's case.   Contrary to Wilson's position, we believe the People's case was strong, especially the case against him.  (See People v. Crandell (1988) 46 Cal.3d 833, 879;  People v. Belmontes (1988) 45 Cal.3d 744, 787.)

The petitions for writ of habeas corpus are denied.

I concur in part B of the majority opinion, agreeing with the analysis on the question of Doyle error (Doyle v. Ohio (1976) 426 U.S. 610, 617-618).   As to part A, the question of the means by which Grace Lankford's identity as an informant in other cases was proposed to be kept from defendants herein, however, I write separately to express my concerns because the majority opinion is silent on the following point.

At the in camera hearing on May 18, 1992, the trial judge ruled there was “no significant connection between [Lankford's] statements in this case and her past service as an informant․  I see no benefit at this time to be derived by the defense and the benefits that she would gain are so remote in this case that her disclosure is not required.”

James M.V. Fitzpatrick, the prosecutor, then informed the court one of the defense counsel suspected Lankford was in fact an informant, and also suspected the purpose of the in camera hearing was to deal with that matter, but “I managed to convince [defense counsel] it was not.”   The prosecutor then stated that, in order to conceal the true purpose of the in camera hearing from defense counsel, he would bring an in limine motion the next day in which the prosecutor would “try to artfully word it in some way so [defense counsel] don't think that's what the in camera hearing was about.”

Further, the prosecutor stated that “I'll also, pursuant to your ruling [that disclosure of Lankford's status was not required], instruct Miss Lan[k]ford and any police officers that might know about her informant status to deny under oath that she's an informant because that's based on your ruling, if that's okay with the court.”  (Emphasis added.)   The trial judge responded by stating “the appellate courts may or may not agree with [the nondisclosure] ruling” but “[y]ou can do what you want [about the witnesses].”

The remedies here propounded were wholly unacceptable.   Whatever procedural mechanisms are available to limit disclosure (see, e.g., Pen.Code, § 1054.7), no extended analysis is needed to determine (1) there is no way in which bringing an in limine motion for purposes of deception is ethically proper,1 and (2) the subornation of perjury by a prosecutor and acquiescence therein by the trial judge 2 is not among the available options, here, or in any circumstances whatsoever.3

Here, the judicial approval of a prosecutor's proposed 4 use of perjured testimony can only erode public confidence in the legal system, because the very foundation of the trial process is the requirement that all witnesses must tell the truth.   The court, instead of acquiescing, should have admonished Fitzpatrick that his proposal was both unethical and illegal.

Although the conduct of the prosecutor was inexcusable, I agree, however, with the majority that due process does not require reversal because the matters to which Lankford testified were corroborated by the testimony of others, including an independent witness, and “a constitutional error occurs, and the conviction must be reversed, only if the evidence is [both favorable and] material in the sense that its suppression undermines confidence in the outcome of the trial.”  (United States v. Bagley (1985) 473 U.S. 667, 678 (lead opn. of Blackmun, J.);   see also Kyles v. Whitley (1995) 514 U.S. 419, ---- [131 L.Ed.2d 490, 505-510];  and In re Sassounian (1995) 9 Cal.4th 535, 543-546.)   Under those cases, the intentional nondisclosure herein is not cause for reversal.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   Doyle v. Ohio (1976) 426 U.S. 610, 617-618.

3.   Both Evidence Code sections 915 and 1042, subdivision (d), place restrictions on the power of courts to disclose matters revealed at in camera hearings involving official information.   Petitioners requested, in light of the revelation that Lankford was a police informant, that we unseal the transcript of the in camera hearings.   The People initially objected.   On July 27, 1995, following further briefing on this issue, we ordered the transcripts unsealed and allowed respondent time to seek review of our order.   Respondent informed the court it would not seek review.

4.   Since the issue is not raised we do not consider the impact on these issue of statutory discovery procedures.

1.   See rule 5-200, paragraph (A) of the Rules of Professional Conduct, mandating an attorney employ “such means only as are consistent with truth.”

2.   While it could be argued the judge's remark did not directly approve the proposal to suborn perjury, in two of the declarations the prosecutor filed with this court (on February 8, 1995, and August 23, 1995) he stated “[t]he court approved” his proposal to instruct witnesses to lie about whether Lankford was an informant.

3.   Penal Code section 118 makes it a felony punishable by two, three or four years in prison (Pen.Code, § 126) for any person under oath to “state[ ] as true any material matter which he or she knows to be false․”  Neither a statute providing for nondisclosure of a fact nor judicial acquiescence suffices to condone the recitation under oath of material matters known by the testifying witness to be false in fact.   Nothing more or less than such perjury was both proposed herein by the prosecutor, and acquiesced in by the trial judge.“Every person who wilfully procures another person to commit perjury is guilty of subornation of perjury, and is punishable in the same manner as he would be if personally guilty of the perjury so procured.”   (Pen.Code, § 127.)

4.   As matters turned out, no witness was asked to testify concerning Lankford's status as an informant.

BENKE, Acting Presiding Justice.

DIFIGLIA, J.*, concurs.