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People v. Vilan10/24/2001
f the evidence, if he was going to testify, counsel should have so stated to the court, rather than have been equivocal about it. The possibility that Vilan might testify is not a sound basis upon which to admit testimony that might prejudice the jury in favor of the defendant. Moreover, as the trial court noted in another context, there had been no psychological or psychiatric examinations done of Vilan. Therefore, there would be no basis, other than Vilan's self-serving assertions, that the injuries from the first incidents caused any memory problems he might experience while testifying.
As to the second basis, the facts, as they were known to the trial court at the time it ruled, were that the blow with the wrench to Vilan occurred at the end of the attack perpetrated by Vilan and his cohorts on the victim, his brother, mother and friend. Thus, as the prosecutor argued, the blow was irrelevant to any claim that the victim and his allies initiated the attack. The fact that they were willing to use deadly force on Vilan was also irrelevant in light of the timing of the blow.
Finally, as to the last basis, the comments by the prosecutor and the trial court were entirely correct.
The issue resurfaced during the testimony of the victim's mother. She stated that with the level of violence during the melee, she feared that her son would be killed. Defense counsel reiterated his request to have evidence of Vilan's injuries introduced, saying that the mother's testimony had "opened the door." The trial court disagreed and denied the request. Although Vilan here contends that this ruling was in error, it was not.
The issue arose again before the male co-defendant testified. Defense counsel sought permission to have the co-defendant testify that he dropped, rather than threw or tossed, a broken beer bottle during the fight because he got hit in the head with the wrench. The prosecutor said he had no objection to the co-defendant testifying that he dropped the bottle, but he did to testimony that he dropped it because he got hit on the arm with the wrench. He explained that all the prosecution witnesses had stated that the co-defendant had been hit in the arm with the wrench because he was brandishing a knife. He added that it was defense counsel's objection that prevented him from making any reference to the co-defendant having a knife. The prosecutor also asserted that the fact that the co-defendant was hit with the wrench was irrelevant to any self-defense claim Vilan might make. Defense counsel did not state why this evidence was relevant. The trial court ruled that the co-defendant could testify that during the fight he was hit and dropped the bottle, but he could not refer to the wrench. Defense counsel agreed to this. We fail to see how the trial court erred in this regard.
The first time the possibility that Vilan was not hit with the wrench at the end of the melee occurred while a defense witness was testifying on direct examination. When asked whether he saw Vilan hit anyone during the fight, he said, nonresponsively, that as soon as Vilan arrived, he was hit in the head with a wrench. The prosecutor did not object. However, the trial court admonished the witness, and two subsequent ones, not to mention that a wrench had been used on Vilan. Defense counsel never asked the trial court to revisit its original ruling in light of this witness's testimony.
We note in passing that the likelihood of this defense witness being believed about when Vilan was hit with the wrench was zero. Even by his own testimony, Vilan was not unconscious during the melee. None of the other defense witnesses testified that Vilan had been knocked out at the beginning
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