Facts
Jose C., a gang-member, and his girlfriend, Cindy C. were walking down a street when Jose was assailed by four members of a rival gang. Jose ran but not fast enough. He was pushed down, kicked and stabbed 14 times before his attackers jumped into a getaway car driven by Lorenzo M.
At trial, Jose C. refused to identify his attackers and upbraided the prosecutor saying "Well, come on, dude, know what I mean?" Cindy was unable to identify anyone except to say that the assailants were members of a rival gang.
Three local residents witnessed the incident and testified that they saw one of the assailants standing over and stabbing or punching the victim. None could identify this person except twenty-two year old Brittany B. who described him as a "very young" and "light skinned" Hispanic.
A local home security video showed four apparently male figures chasing another male, pushing him down and striking before getting into a car that was slowly coursing along the sidewalk.
The attackers were eventually tracked down and arrested on the basis of information provided by Lorenzo M., who had had prior dealings with the police. At trial, Lorenzo M. identified the defendant, Francisco S., as the man who had done the stabbing.
A police gang "expert" testified as to the customs and attitudes of gangs. Among other things, he testified that in order to be accepted into a gang, wannabe gang members, or "pee-wees," ranging from 12 to 15 years of age, are required to commit some crime against a rival gang member. He testified that defendant was a known gang member but that none of the attackers were "pee-wees" although defendant was 17 at the time of the assault.
A partial palm print of defendant's hand was lifted off of Lorenzo's car. Defendant himself was arrested several days after the incident when he attempted to cross into Mexico. According to Lorenzo, defendant called him a "snitch" when they encountered one another at a preliminary court hearing.
Was the evidence of the attacker's identity sufficient to warrant a jury finding beyond a reasonable that defendant had been the person who stabbed the victim?
No. Under the Common Law as embodied in Penal Code § 1111, "a conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense...." The corroborating evidence must tend directly and immediately to connect the defendant with the commission of the offense (People v. Shaw (1941) 17 Cal.2d 778, 802) and must do so without any aid, interpretation or direction from the testimony of the accomplice People v. Lewis (2004) 120 Cal.App.4th 837, 848.) As a matter of law, without corroboration, accomplice testimony is never sufficiently trustworthy to establish guilt beyond a reasonable doubt. (People v. Gonzales & Soliz (2011) 52 Cal.4th 254, 303.)
In the present case, the only evidence implicating Francisco S. as the stabber was the testimony of Lorenzo M., an admitted and undisputed accomplice in the crime. None of the other evidence served to corroborate Lorenzo's testimony because neither directly nor by implication did it connect defendant to the crime.
The most tangible evidence of the crime, the video, showed only that an assault had taken place but not the identity of the assailants.
Brittany's testimony that the assailant was "very young" and Hispanic was also not sufficient because youth and race are insufficiently particular descriptions.
It is true that defendant was Hispanic, light skinned and very -- even angelically -- youthful in appearance. However, this fact failed as corroboration because its implicating significance depended on the assumption that no pee-wees were involved. Put another way: that defendant may have been the youngest looking of the four people involved doesn't prove that he was one of those four.
That defendant was a gang member who had some association with Lorenzo M., as corroborated by the palm print, was not sufficient because association is not guilt.
That defendant may be said to have "fled" to Mexico is also not sufficient because the so-called flight was not immediate and proximate to the crime and because the motive for flight could as easily have been fear of unjust prosecution based on Lorenzo's self-serving and perjured testimony. In all events, consciousness of guilt, such as may be evidenced by flight, is never sufficient to establish guilt.
The long-established test for assessing the sufficiency of accomplice corroboration is to "... eliminate from the case the evidence of the accomplice, and then examine the evidence of the other witness or witnesses with the view to ascertain if there be any inculpatory evidence -- evidence tending to connect the defendant with the offense. If there is, the accomplice is corroborated; if there is no inculpatory evidence, there is no corroboration, although the accomplice may be corroborated in regard to any number of facts sworn to by him." (People v. Shaw, supra, 17 Cal.2d at pp. 803-804 citing People v. McLean, 84 Cal. 480 and additional authorities.].)
The corroboration was sufficient because "the evidence was consistent with, and corroborative of, [Lorenzo M.'s] account regarding defendant's active gang participation, the gang-related circumstances of the crime, defendant's connection to [Lorenzo, M.] and the car that appeared to have been used in the incident... and [with] defendant's quick departure from the area."
In particular, "the video and [Brittany's] testimony each provides some support, however slight, that defendant committed [the] aggravated assault because it was not disputed that the subject person depicted or described had features consistent with defendant's and the events described were consistent with those described by [Lorenzo M.]"
Consistency is not corroboration. The word consistency means: compatible; congruous; uniform; not contradictory or opposed; in agreement with something else; not containing any logical contradictions. The fact that the cited evidence may be consistent with an hypothesis of guilt does not mean that it establishes guilt or any corroborating connection to the commission of the crime in a direct and positive way. To affirm the sufficiency of corroboration on the basis of "consistency" with guilt is to over-ride the presumption of innocence.
However, reviewing courts are simply loathe to find insufficient evidence. They masquerade their loathing in a well-worn tissue of respect for the jury's independence, and they take refuge in the rule that it is not for an appellate court to "re-weigh" the credibility of the witnesses.
Like many legal mantras the rule against "re-weighing credibility on appeal" is a form of mindlessness. Sufficiency is by definition a question of degree, and in order to assess the sufficiency of the evidence the reviewing court must weigh it. To think otherwise is to lapse into babbling nonsense. (Not that the prospect ever deterred a court.)
What the rule against "re-weighing" the evidence means is that a reviewing court does not supplant the jury in determining which of two alternative and contradictory pieces of evidence should be credited. Thus, if a verdict relies on the testimony of Witness A, the court of appeal cannot decide to disbelieve it and rely instead on the contrary testimony of Witness B. But this does not mean that the court does not and should not weigh the credibility of Witness A's testimony in and of itself. It must.
However, nothing exists in isolation and, even here, a reviewing court is not free to disregard any and all contrary testimony. Abraham Lincoln's fabled case proves the point. If a witness testified that he saw the defendant clearly and without doubt "by the clear light of the moon" a court of appeal could not reasonably disregard the contrary evidence of an Almanac showing that the moon was not visible that night. The jury's belief in the testimony simply cannot stand in the face of all reason.
The Court of Appeal's decision, in the present case, is yet another instance of the a reviewing court refusing to abide its obligation to due process under the substantial evidence test.
Indisputably there was ample evidence to suspect defendant of complicity in the assault. And if an accomplice's testimony were sufficient by itself then Francisco was guilty. But in this case the additional evidence required was nothing but a series of inconclusive and/or irrelevant zeroes.
What makes the court's decision even more egregious than the usual faux deference to the jury's verdict and hand-washing against making "credibility" determinations, is its reliance on a new legal excrescence: guilt by consistency.
Consistency with what? "The sum of zeroes is always zero" (People v. Haston (1968) 69 Cal.2d 233 246, fn 15) Excising Lorenzo's testimony from the case, there was nothing to prove defendant's identity as one of the assailants. While there may have been corroboration "regarding defendant's active gang participation, the gang-related circumstances of the crime" the use of Lorenzo's car -- none of those corroborating facts related to the acts constituting the crime. Even less did they connect Francisco to those acts.
There is no dispute, as the Court of Appeal acknowledged that "no one's face can bee seen distinctly in the video" Thus, what the court's opinion held was that Lorenzo's testimony implicating Francisco was "corroborated" because nothing in the tape contradicted it. If one assumed the truth of Lorenzo's testimony -- that is, on the presumption that Francisco was guilty -- it was "sufficient" that nothing contradicted that assumption.
The National Security State does not arise as if by immaculate conception, but is the the result of repeated less remarkable acts inculcating a judicial culture of laxity and expedience.
Jose C., a gang-member, and his girlfriend, Cindy C. were walking down a street when Jose was assailed by four members of a rival gang. Jose ran but not fast enough. He was pushed down, kicked and stabbed 14 times before his attackers jumped into a getaway car driven by Lorenzo M.
At trial, Jose C. refused to identify his attackers and upbraided the prosecutor saying "Well, come on, dude, know what I mean?" Cindy was unable to identify anyone except to say that the assailants were members of a rival gang.
Three local residents witnessed the incident and testified that they saw one of the assailants standing over and stabbing or punching the victim. None could identify this person except twenty-two year old Brittany B. who described him as a "very young" and "light skinned" Hispanic.
A local home security video showed four apparently male figures chasing another male, pushing him down and striking before getting into a car that was slowly coursing along the sidewalk.
The attackers were eventually tracked down and arrested on the basis of information provided by Lorenzo M., who had had prior dealings with the police. At trial, Lorenzo M. identified the defendant, Francisco S., as the man who had done the stabbing.
A police gang "expert" testified as to the customs and attitudes of gangs. Among other things, he testified that in order to be accepted into a gang, wannabe gang members, or "pee-wees," ranging from 12 to 15 years of age, are required to commit some crime against a rival gang member. He testified that defendant was a known gang member but that none of the attackers were "pee-wees" although defendant was 17 at the time of the assault.
A partial palm print of defendant's hand was lifted off of Lorenzo's car. Defendant himself was arrested several days after the incident when he attempted to cross into Mexico. According to Lorenzo, defendant called him a "snitch" when they encountered one another at a preliminary court hearing.
Issue:
Was the evidence of the attacker's identity sufficient to warrant a jury finding beyond a reasonable that defendant had been the person who stabbed the victim?
Argument:
No. Under the Common Law as embodied in Penal Code § 1111, "a conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense...." The corroborating evidence must tend directly and immediately to connect the defendant with the commission of the offense (People v. Shaw (1941) 17 Cal.2d 778, 802) and must do so without any aid, interpretation or direction from the testimony of the accomplice People v. Lewis (2004) 120 Cal.App.4th 837, 848.) As a matter of law, without corroboration, accomplice testimony is never sufficiently trustworthy to establish guilt beyond a reasonable doubt. (People v. Gonzales & Soliz (2011) 52 Cal.4th 254, 303.)
In the present case, the only evidence implicating Francisco S. as the stabber was the testimony of Lorenzo M., an admitted and undisputed accomplice in the crime. None of the other evidence served to corroborate Lorenzo's testimony because neither directly nor by implication did it connect defendant to the crime.
The most tangible evidence of the crime, the video, showed only that an assault had taken place but not the identity of the assailants.
Brittany's testimony that the assailant was "very young" and Hispanic was also not sufficient because youth and race are insufficiently particular descriptions.
It is true that defendant was Hispanic, light skinned and very -- even angelically -- youthful in appearance. However, this fact failed as corroboration because its implicating significance depended on the assumption that no pee-wees were involved. Put another way: that defendant may have been the youngest looking of the four people involved doesn't prove that he was one of those four.
That defendant was a gang member who had some association with Lorenzo M., as corroborated by the palm print, was not sufficient because association is not guilt.
That defendant may be said to have "fled" to Mexico is also not sufficient because the so-called flight was not immediate and proximate to the crime and because the motive for flight could as easily have been fear of unjust prosecution based on Lorenzo's self-serving and perjured testimony. In all events, consciousness of guilt, such as may be evidenced by flight, is never sufficient to establish guilt.
The long-established test for assessing the sufficiency of accomplice corroboration is to "... eliminate from the case the evidence of the accomplice, and then examine the evidence of the other witness or witnesses with the view to ascertain if there be any inculpatory evidence -- evidence tending to connect the defendant with the offense. If there is, the accomplice is corroborated; if there is no inculpatory evidence, there is no corroboration, although the accomplice may be corroborated in regard to any number of facts sworn to by him." (People v. Shaw, supra, 17 Cal.2d at pp. 803-804 citing People v. McLean, 84 Cal. 480 and additional authorities.].)
Court of Appeal Opinion
The corroboration was sufficient because "the evidence was consistent with, and corroborative of, [Lorenzo M.'s] account regarding defendant's active gang participation, the gang-related circumstances of the crime, defendant's connection to [Lorenzo, M.] and the car that appeared to have been used in the incident... and [with] defendant's quick departure from the area."
In particular, "the video and [Brittany's] testimony each provides some support, however slight, that defendant committed [the] aggravated assault because it was not disputed that the subject person depicted or described had features consistent with defendant's and the events described were consistent with those described by [Lorenzo M.]"
Critique
Consistency is not corroboration. The word consistency means: compatible; congruous; uniform; not contradictory or opposed; in agreement with something else; not containing any logical contradictions. The fact that the cited evidence may be consistent with an hypothesis of guilt does not mean that it establishes guilt or any corroborating connection to the commission of the crime in a direct and positive way. To affirm the sufficiency of corroboration on the basis of "consistency" with guilt is to over-ride the presumption of innocence.
Properly understood, there is nothing amiss with the methodological rules for determining the sufficiency of the evidence. They seek to insure that the jury has fulfilled its obligations under the Constitution by double checking the verdict rendered.Background
The rule requiring corroboration of an accomplice's testimony is a specific application of the broader due process principle which requires that verdicts of guilt be supported by substantial evidence.
It is well known that defendants are presumed innocent (In re Winship (1970) 397 U.S. 358) until proved guilty beyond a reasonable doubt. (Taylor v. Kentucky (1978) 436 U.S. 478, 482-484 [burden of proof and presumption of innocence are correlated principles].) It is equally established that in the Anglo-American system of justice it is the sole province of a popular jury to determine whether the prosecution has met its burden of proof.
But what happens when the jury -- either through bias or stupidity -- convicts a defendant without there being any substantial evidence of guilt? The original answer was that a jury verdict must be allowed to stand unless there was no evidence at all of guilt. (Thompson v. Louisville (1960) 362 U.S. 199.)
However, the "no evidence" rule was no rule at all because there is almost always some evidence of guilt. After all, it is generally the case that people aren't accused out of thin air and by chance. But due process doesn't allow convictions on scintillas of straw; it requires that weight and significance of evidence known as proof beyond a reasonable doubt. Thus, in Jackson v. Virginia (1979) 443 U.S. 307, the Supreme Court revised the rule and held that "On appeal, the sufficiency of the evidence is evaluated to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt."
But what is to stop an appellate court from simply substituting its opinion for that of the jury? The question is something of a joke, since acquittals are not appealed and since it has never been the case that courts of appeal were Angels of Mercy waiting in the wings eager to set convicted defendants free. Nevertheless, indulging the question with a straight face, the answer to the supposed conundrum is that "In assessing a claim of insufficiency of evidence, the reviewing court's task is to asses the whole record in the light most favorable to the judgement to determine whether it discloses substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnson (1980) 26 Cal.3d 557, 578.)
In plain English, the reviewing court's task is biased in favour of the judgement rendered (i.e. a verdict of guilt). It starts by looking at that evidence which supports the verdict and ignores evidence which goes the other way. If the supporting evidence (including reasonable inference which might be drawn from primary facts) is substantial and credible then the evidence is "sufficient". If not, then Due Process has not been satisfied. However, in this regard, "it is not enough for the respondent simply to point to "some" evidence supporting the finding, for '[n]ot every surface conflict of evidence remains substantial in the light of other facts.' " (People v. Bassett (1968) 69 Cal.2d 122, 139.) The evidence must be substantial; i.e.: "reasonable in nature, credible, and of solid value” in light of the "whole record". (Ibid.)
However, reviewing courts are simply loathe to find insufficient evidence. They masquerade their loathing in a well-worn tissue of respect for the jury's independence, and they take refuge in the rule that it is not for an appellate court to "re-weigh" the credibility of the witnesses.
Like many legal mantras the rule against "re-weighing credibility on appeal" is a form of mindlessness. Sufficiency is by definition a question of degree, and in order to assess the sufficiency of the evidence the reviewing court must weigh it. To think otherwise is to lapse into babbling nonsense. (Not that the prospect ever deterred a court.)
What the rule against "re-weighing" the evidence means is that a reviewing court does not supplant the jury in determining which of two alternative and contradictory pieces of evidence should be credited. Thus, if a verdict relies on the testimony of Witness A, the court of appeal cannot decide to disbelieve it and rely instead on the contrary testimony of Witness B. But this does not mean that the court does not and should not weigh the credibility of Witness A's testimony in and of itself. It must.
However, nothing exists in isolation and, even here, a reviewing court is not free to disregard any and all contrary testimony. Abraham Lincoln's fabled case proves the point. If a witness testified that he saw the defendant clearly and without doubt "by the clear light of the moon" a court of appeal could not reasonably disregard the contrary evidence of an Almanac showing that the moon was not visible that night. The jury's belief in the testimony simply cannot stand in the face of all reason.
The Court of Appeal's decision, in the present case, is yet another instance of the a reviewing court refusing to abide its obligation to due process under the substantial evidence test.
Indisputably there was ample evidence to suspect defendant of complicity in the assault. And if an accomplice's testimony were sufficient by itself then Francisco was guilty. But in this case the additional evidence required was nothing but a series of inconclusive and/or irrelevant zeroes.
What makes the court's decision even more egregious than the usual faux deference to the jury's verdict and hand-washing against making "credibility" determinations, is its reliance on a new legal excrescence: guilt by consistency.
Consistency with what? "The sum of zeroes is always zero" (People v. Haston (1968) 69 Cal.2d 233 246, fn 15) Excising Lorenzo's testimony from the case, there was nothing to prove defendant's identity as one of the assailants. While there may have been corroboration "regarding defendant's active gang participation, the gang-related circumstances of the crime" the use of Lorenzo's car -- none of those corroborating facts related to the acts constituting the crime. Even less did they connect Francisco to those acts.
There is no dispute, as the Court of Appeal acknowledged that "no one's face can bee seen distinctly in the video" Thus, what the court's opinion held was that Lorenzo's testimony implicating Francisco was "corroborated" because nothing in the tape contradicted it. If one assumed the truth of Lorenzo's testimony -- that is, on the presumption that Francisco was guilty -- it was "sufficient" that nothing contradicted that assumption.
The National Security State does not arise as if by immaculate conception, but is the the result of repeated less remarkable acts inculcating a judicial culture of laxity and expedience.
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