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State v. Patubo3/22/2004
Misconduct
Defense counsel did not object at trial to the following acts of alleged prosecutorial misconduct. On appeal, Patubo argues that,
[t]he following acts constituted plain error and should be reviewed by the court. Appellate courts, in the public interest, may on their own motion notice errors to which no exception has been taken if the errors are obvious, and if the errors otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings. (internal citations omitted)
1. Veracity of the Witnesses
Patubo argues that it was improper for the prosecutor during cross-examination to ask Patubo whether certain prosecution witnesses were "lying". The relevant questions and answers are as follows:
***9 Q: Okay. So back then you indicated Sergeant Chung came out with two sets, told you he was gonna take em, made you sign papers; right?
A: Yes.
Q: And now you're telling us that all four sets were gone; right?
A: Yes.
Q: You didn't say anything about that last August; right? You only talked about two sets last August.
A: Yes.
Q: Why didn't you mention all four sets last August?
A: I don't know.
Q: Could it be that you're not telling the truth sir?
A: No, sir, I'm telling the truth.
Q: And you heard Officer Linda D'Aquila come in here and say, no, there was no talk about search warrants; right? You heard that testimony? [FN9]
FN9. In his opening brief, Patubo stated that "an argument occurred between Linda [D'Aquila] and Chung, [D'Aquila] did not get a search warrant." On August 30, 2001, the court heard the Motion to Suppress. Printed below is Patubo's testimony regarding the circumstances leading to his allegedly "unwilling" consent.
Q: You remember Linda [D'Aquila]?
A: Yes.
...
A: They told me they were waiting for her.
Q: Who told you what?
A: Officer Chung told me they were waiting for two people to come to search the house.
Q: What do you mean two people to search the house.
A: He said they were going search and they were waiting for two more people and when they came, he introduced me to Linda ... and he said these are two that were going to search the house.
Q: Did they mention a search warrant?
A: Later I heard--oh, in fact, Officer Chung told me when they came, to wait. Then they went into the house. Then Linda left and when she left, Officer Chung told me oh, they waiting for Linda to come back. She went to go get a search warrant.
Q: Did she come back?
A: She came back, yes.
Q: Did she have a search warrant?
A: No. When she came back, they were kind of like arguing and then Linda left.
Q: Arguing with whom?
A: With Officer Chung.
Q: About what?
A: Something about forgetting the search warrant and she just left.
At trial, Police Detective Linda D'Aquila testified, in relevant part, as follows:
Q: Well, at any time did you have a discussion with Detective Bruchal about obtaining a search warrant?
A: No, sir, I did not.
Q: Did you go at any time to consider a search warrant at the station?
A: Oh, no, sir, I did not.
Q: Was there any discussion among the officers present about obtaining a search warrant?
A: Um, no, sir. I don't recall anything like that.
A: Yes.
Q: And then you're telling this jury, oh, there was, she was talking about a search warrant; right?
A: Um, Officer Chung and--I mean, Sergeant Chung and Detective Bruchal, they both told me that they weren't going into the house yet until Linda comes back with the search warrant.
Q: Okay. And you heard her deny that there was ever any talk about getting a search warrant; right?
A: Yes.
Q: And you heard Detective Bruchal indicate that a search warrant
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