 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Gaines4/28/1997
POCHE, Acting P. J.
In this case we hold that a prosecutor commits misconduct when he purports to tell the jury why a defense witness did not testify and what the testimony of that witness would have been.
BACKGROUND
The victim, John Rutledge, testified that he was riding his bicycle home from work about midnight. Near the corner of Tennessee and Tuolumne streets in Vallejo, two young Black men on foot approached him. The men began punching Rutledge in the face, knocking him off his bike. The hitting continued as the men demanded that Rutledge "Give me the bike." The men took his bike and went down Tennessee Street. Within five minutes Rutledge found Officer Delagadillo several blocks down Tuolumne Street and reported the theft.
Within a minute of hearing a radio broadcast about the attack, Officer Herndon saw two Black men riding bikes turn off Tennessee Street. Defendant Maurice Gaines was one of the two. When the two riders separated, Herndon stopped the one who was not defendant. Shortly thereafter Officer Delagadillo drove over with Mr. Rutledge, who identified the suspect as one of the attackers. Rutledge also identified as his the bike the man had been riding. Just then another officer radioed that he had stopped someone who might be the other attacker. Delagadillo drove Rutledge back to Tuolumne Street, where Rutledge identified defendant.
Defendant's version of events was that he was on his way home from his girlfriend's house, riding her brother's bicycle, when he was stopped by police. He tried to avoid the police because there was an outstanding warrant for his arrest on a drunk driving charge.
A jury found defendant guilty as charged of second degree robbery (Pen. Code, § 211). He perfected this timely appeal after the trial court admitted him to probation upon specified conditions.
REVIEW
Defendant testified that one Ray Hicks had been with him up until the point at which defendant started home. The following occurred during the prosecutor's cross-examination:
"Q. Hicks is the gentleman that has been sitting . . . in the back of the courtroom here from time to time throughout this trial over the last couple of days; isn't that right?
"A. Yes.
"Q. Mr. Hicks here to testify for you?
"A. Yes.
"Q. He is?
"A. Yes.
"Q. He's going to testify for you?
"Mr. Gladstone [defense counsel]: Objection.
"THE COURT: Sustained.
"[THE PROSECUTOR]: Do you know if he's been subpoenaed to testify for you?
"Mr. Gladstone: Objection.
"THE COURT: Sustained."
After defense counsel in his closing argument told the jury "So if you want to know . . . what Ray Hicks would have said, . . . the responsibility lies with the District Attorney," THE PROSECUTOR RESPONDED:
"Mr. Gladstone actually stated that if there's a witness missing that you would like to hear from, it's my duty to bring that witness here, whether that witness is somebody who would prove my case or tend to prove his. Why did Mr. Gladstone make those remarks? They don't seem to follow common sense and, indeed, they don't. Mr. Gladstone was sensitive to something. He was worried about the inferences we are going to draw from the absence of one of his alibi witnesses, Mr. Hicks. . . . If Mr. Hicks were here, he could corroborate that [defendant's] story. . . . This friend of the defendant, this person that presumably would like to help him out, could help the defendant. Where is Mr. Hicks? We know about Mr. Hicks. Mr. Hicks was sitting in this courtroom. M
Page 1 2 3 California DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|