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People v. Vilan10/24/2001
of the confrontation.
Vilan now argues that this evidence was relevant to the defense that Vilan did not hit the victim, as he was unconscious during the melee, having been hit upon arrival with the wrench. Unfortunately, Vilan never advanced this theory of admissibility below. Therefore, he waived it. (Evid. Code, § 354.)
Four defense witnesses testified that they saw Vilan being attacked during the fight but did not see him attack or hit anyone. They also testified that the victim or his cohorts were armed with or used a wrench and/or a pipe. The male co-defendant testified that he pulled out a knife only after he was clubbed in the head. For Vilan to here contend that he was prevented from putting on a defense by the trial court's rulings is absurd.
b. Of Vilan's Lawsuit Against the Family of the Victim of the First Incident
In keeping with the trial court's ruling excluding evidence that Vilan had been hit with a wrench during the first incident and suffered certain injuries as a consequence, the prosecutor moved to exclude evidence that Vilan had filed a lawsuit against the victim and his family based on this. Defense counsel contended that evidence of the suit went to "potential bias, potential changes in testimony, modifications of testimony . . . self-interest." The prosecutor told the court that he anticipated no significant changes in the trial testimony of the family members from their initial statements to the police. The trial court ruled that absent a showing by defense counsel that the family members had changed their versions of what occurred, evidence of the lawsuit was irrelevant.
Vilan here attempts to breathe more life into the objection made below by pointing out that the outcome of the criminal case acts as collateral estoppel on the civil action. Be that as it may, he would still have to create a reasonable inference that the existence of the suit caused the victim's family members to testify at trial in the manner they did. Absent a showing that their pre-suit statements were inconsistent with their trial testimony, he cannot do this. The trial court did not abuse its discretion in making this ruling.
c. Of a Prosecution Witness's Prior Conviction and Probation Status
A prosecution witness testified that on January 9, 1998, while he was leaving his friend's apartment, Vilan brought up an earlier incident during which he had beaten up a friend of the witness. Vilan called the friend names and he appeared to be glad about the beating. The witness gave Vilan a disgusted look, to which Vilan reacted negatively. Vilan then hit the witness. The witness denied hitting Vilan either before or after Vilan hit him. He also denied threatening Vilan before the assault. He admitted that he had had about six beers that night.
During a break in the witness's testimony, the prosecutor sought to exclude evidence that he had been convicted of driving under the influence with injury. The prosecutor contended that the crime did not involve moral turpitude. Defense counsel noted that the witness's consumption of the beers during the incident about which he was testifying occurred the year following his conviction. Counsel assumed that the witness had been placed on probation and required to participate in a program of alcohol education. Therefore, he argued, the previous conviction was more akin to one that follows other such convictions, which would make it an offense involving moral turpitude. Of course, the flaw is this logic is apparent. Unlike cases where the conviction for which admission is sought follows other convictions, this one preceded the incident about which the witness testified. The trial co
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