Opinion
A121901 No. 201265 A126649
07-30-2010
THE PEOPLE, Plaintiff and Respondent, v. JAMEL DURDEN, Defendant and Appellant. In re JAMEL DURDEN, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
INTRODUCTION
Richman, J.
Jamel Durden appeals from his conviction of sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a)) in No. A121901, claiming that one of the police witnesses who identified him at trial was improperly allowed to assert a surveillance location privilege under Evidence Code section 1040 as to the vantage point from which he made his observations, without imposition by the court of an adverse finding under Evidence Code section 1042. He further requests that we review the sealed record of an in camera review of documents pursuant to a motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531.
In a related petition for writ of habeas corpus, No. A126649, Durden claims that his trial attorney provided ineffective assistance of counsel by allowing the prosecution to introduce a mug shot of him, without redacting information on the photograph revealing that it had been taken in connection with a prior arrest. (Strickland v. Washington (1984) 466 U.S. 668 (Strickland).) Defense counsel also failed to object when the prosecutor and police witnesses repeatedly referred to the photograph as a "mug shot" in front of the jury, and he failed to request a jury instruction limiting the inferences the jury could draw from the mug shot.
We agree that defense counsel performed incompetently and the error was prejudicial. We therefore will grant the petition for writ of habeas corpus, reverse the judgment of conviction, and dismiss the appeal as moot.
FACTS
Prosecutions evidence
Petitioner allegedly sold a $20 rock of crack cocaine to an undercover police officer on February 7, 2007, as part of a "buy-walk" operation by the San Francisco Police Department. In that operation, rather than conducting an undercover drug transaction and then arresting the guilty participant, the police made an undercover buy, followed shortly thereafter by observation and identification of the drug dealers by police patrol officers familiar with the neighborhood. There was no immediate arrest. After such activities had been conducted for two or three weeks, the police had identified multiple suspects and obtained arrest warrants for them. Petitioner was arrested 15 days after the drug transaction in which he allegedly acted as a seller. He had no drugs or indicia of sales when he was arrested. The case therefore hinged on accurate identification testimony by the police officers involved in the buy-walk operation.
The undercover operation began with Officer Rodney Fitzpatrick driving in an unmarked car to the Alemany Housing Project in the 900 block of Ellsworth Street, a high narcotics trafficking area of San Francisco inhabited largely by African-Americans. After parking his car, Fitzpatrick saw two men sitting in a parked car and called out to them that he needed "a 20," meaning $20 worth of crack cocaine. The two men got out of the car and told Fitzpatrick to follow them between two buildings. There, each of them sold Fitzpatrick a $20 rock of cocaine. The transaction lasted 20-25 seconds.
Fitzpatrick then returned to his car, signaled his close cover officers that he had made a buy, and drove off. Less than two minutes had elapsed since he first arrived on the scene.
Fitzpatrick radioed a description of the two drug sellers and their clothing to other officers, who conveyed that information to Officers Luis DeJesus and Kirk Yin and Yins partner, Sergeant Jim Miller. Fitzpatrick described petitioner as a skinny black male with brown twisty hair, wearing a black hooded sweatshirt and dark pants.
Officer DeJesus was one of several "secondary surveillance" officers who observed the transaction, and the only one of those officers to testify. DeJesus watched the transaction through binoculars from an elevated, undisclosed surveillance location approximately 60 feet north of the street where Fitzpatrick met petitioner and Mays. His job was to serve as back up if the close cover officers lost sight of Fitzpatrick.
DeJesus described Fitzpatricks meeting with the two men and their trip between the two buildings, although he lost sight of them for two or three seconds when they were near the rear of the buildings. DeJesus did not see or testify about the actual sale of drugs. He continued to monitor the movements of petitioner and Mays after Fitzpatrick drove off. He identified petitioner at trial as one of the men who interacted with Fitzpatrick.
Officer Yin and Sergeant Miller arrived at the area some ten minutes after Fitzpatrick left. This was their area of routine patrol, so their part in the operation was to walk or drive through the area to locate the suspected sellers based on the description given over the radio, and to identify them for later arrest. In this case, Yin got out of the car and encountered petitioner and his companion, Mark Mays, who was in the "roughly in the same area." Miller stayed behind, either in the patrol car or on the street.
DeJesus testified that he "could just see Sergeant Miller and Officer Yin speaking with the two individuals. Thats kind of all they were doing." This is somewhat inconsistent with Yins testimony that Miller remained distant while Yin contacted the suspects.
Yin could not recall whether he stopped and questioned petitioner and Mays, but they were dressed as described over the radio, and Yin knew them by name from prior contacts. Yin had contacted petitioner at least 30-40 times and had a conversation with him approximately ten times before the buy-walk transaction. He knew petitioner and Mays were friends.
When DeJesus saw Yin make contact with petitioner and Mays, he told Miller by radio that those were the two people who had been in contact with Fitzpatrick. Yin could not recall whether he made contact with any other individuals as possible suspects; he testified that petitioner was the only person in the area who matched the description that had been relayed from Fitzpatrick.
Yin later returned to the narcotics office and printed out a mug shot of petitioner, which had been taken some 19 months earlier, and showed it to Fitzpatrick. Fitzpatrick confirmed that petitioner was one of the sellers, although his hair style appeared different in the mug shot from the way it appeared at the time of the drug transaction. The mug shot was published to the jury and admitted into evidence without defense objection. Fitzpatrick also identified petitioner at trial as one of the sellers.
The police later obtained an arrest warrant for petitioner, and he was arrested 15 days later. At the time of his arrest petitioner had no drugs, paraphernalia, or indicia of sales in his possession, nor did he have the marked $20 bill Fitzpatrick had given him.
The defense
The defense was one of misidentification. Petitioners mother testified on his behalf that she and petitioner had lived in the Alemany Housing Project for 16 years. Drug dealing was common at the housing project, but she said her son did not use or sell drugs and that she had never seen him with expensive possessions typical of drug dealers. She testified he had never been convicted of a crime. He had been attending a charter school prior to his arrest, but after the arrest she and petitioner had moved out of the housing project and had ended up homeless.
In addition to the mothers testimony, defense counsel pointed out in argument to the jury several reasons to doubt the identification testimony, emphasizing that petitioner was a "young man with no record" and no police "contacts for selling or using drugs," who had "never been convicted of a crime, let alone a felony." He criticized the strength of the evidence, calling the police operation "slip sho[d]." The operation was not photographed or video-taped, which he argued would have been a surer way to corroborate the identification. In addition, Yin did not show Fitzpatrick a six-pack of photos to choose from at the station house identification, thereby increasing the risk of a suggestive identification. Defense counsel had elicited testimony that many young men wear dark clothing and hoodies, such as petitioner was wearing, raising the possibility that Yin picked out the wrong man. And, of course, there was the fact that no drugs, paraphernalia or indicia of sales were found on petitioner.
Despite these arguments, the jury convicted petitioner of sale of a controlled substance (cocaine base) (Health & Saf. Code, § 11352, subd. (a)) on the second day of deliberations, after a readback of portions of Yins and DeJesuss testimony.
DISCUSSION
Ineffective assistance of counsel
Petitioner claims his trial attorney provided ineffective assistance of counsel under the Sixth Amendment by failing to prevent the use at trial of Exhibit 3A, the unredacted mug shot of petitioner from an arrest 19 months earlier, when he was still a juvenile. The document shown to Fitzpatrick and introduced at trial was not just a photograph, but was specifically labeled a "mug shot profile." It also contained other printed information, including an "arrest date" of " Jul 17 2005" and a "top charge" of "F/12031(2)." Thus, the jury was irresponsibly and unnecessarily exposed to evidence that petitioner had previously been arrested on a felony charge.
Petitioner does not claim admission of the actual photograph included on the 2005 mug shot was improper, and concedes that the handwritten signatures of Fitzpatrick and Yin on the document, showing that Fitzpatrick identified petitioner from that photo, were also admissible.
The 2005 "mug shot" was evidently taken in connection with a juvenile arrest, as to which no petition was sustained.
The photo was also referred to repeatedly during the trial as a "mug shot," without defense objection, and testimony confirmed that it was taken at "an earlier time period" "prior to [this] incident." This reinforced the jurys awareness that petitioner had previously been in trouble with the law. Defense counsel himself referred to it as a "booking photograph." Finally, petitioner faults his trial attorney for failing to request a jury instruction limiting use of the mug shot to consideration of whether Officer Fitzpatricks identification of petitioner was accurate, which he claims compounded the other errors.
A second booking photograph taken at the time of petitioners arrest on the current charge was also admitted into evidence and also referred to as a "mug shot." Petitioner does not contest admissibility of this second mug shot. (See People v. Bracamonte (1967) 253 Cal.App.2d 980, 985.)
Performance
To establish ineffective assistance of counsel, petitioner must demonstrate both deficient performance by counsel and resulting prejudice. (Strickland, supra, 466 U.S. at pp. 687, 691-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) On the first prong he must show that "counsels representation fell below an objective standard of reasonableness.... [¶] under prevailing professional norms." (Strickland, supra, 466 U.S. at p. 688.)
The Attorney General concedes that defense counsels performance in this case was deficient. We agree.
It is undeniable that evidence of a prior arrest, including in the form of a mug shot, can be extremely prejudicial. (People v. Cook (1967) 252 Cal.App.2d 25, 27, 29-30 [court erred in admitting photograph "in the familiar and unmistakable format of a police mug shot"]; People v. Vindiola (1979) 96 Cal.App.3d 370, 383, fn. 4, 384 disapproved on other grounds in People v. Carter (2003) 30 Cal.4th 1166, 1197 ["booking photographs taken in prior years carry the inevitable implication that [defendant] suffered previous arrests and perhaps convictions"]; United States v. Harrington (2d Cir. 1973) 490 F.2d 487, 495-496 [introduction of booking photos, even though "masked" to hide evidence of the prior arrest, was prejudicial]; Barnes v. United States (D.C. Cir. 1966) 365 F.2d 509, 510 [introduction of "typical mug shot from a police department rogues gallery " was prejudicial error, even though "a wide strip of adhesive tape cover[ed] the prison numbers on the bottom half of the photographs"]; United States v. Harman (4th Cir. 1965) 349 F.2d 316, 319-320 [admission of photo showing defendants prison number was reversible error].)
The mug shot did not indicate petitioner was actually convicted of a prior offense, but that does not eliminate the problem, and may have exacerbated it. Evidence of a prior arrest is inadmissible either as proof of guilt or as impeachment, and such evidence is highly prejudicial because of propensity inferences that may be drawn from it. (People v. Medina (1995) 11 Cal.4th 694, 769; People v. Anderson (1978) 20 Cal.3d 647, 650-651.) In fact, there is authority that a jury, informed that a defendant has committed a past crime for which he was not punished, may be more inclined to convict on the current charge in part to punish him for his prior misconduct. (People v. Ewoldt (1994) 7 Cal.4th 380, 405; People v. Williams (2009) 170 Cal.App.4th 587, 609-610.)
In a declaration attached to the habeas petition, defense counsel expressly admits he had no tactical reason for failing to object to the admission of the unredacted 2005 mug shot. He gives no sensible explanation, saying only that he "may have missed the opportunity to object and assumed the trial court clerk would redact" the arrest information from the mug shot, "as [had] happened in other cases" he had tried. He also offers no explanation for his failure to object to use of the term "mug shot" at trial or his failure to request a limiting instruction regarding use of the evidence. Here, too, he admits he had no tactical purpose.
Defense counsels explanation is woefully unsatisfactory. We also find it curious that he now says he relied on the clerk to redact the mug shot, when he made no objection throughout the trial to the witnesses and prosecutors repeated references to it as a "mug shot." We infer that counsel simply failed to appreciate the prejudicial impact of the prior arrest evidence, although it seems elementary. In any case, to suggest that he could rely on the court clerk to protect his client from the prejudicial effect of the mug shot is not simply to shirk his own duties as an advocate, but to endow the clerk with a presumed authority not properly exercised by such an employee. The redaction of the document was not a ministerial duty, but one properly assigned to the courts discretion.
Still, we see no reason why the court would not have, upon request, ordered the mug shot redacted. We are also confident the court would have ordered the prosecutor to have his witnesses use the term "photograph" instead of "mug shot" if the defense had so requested.
Aside from counsels admissions, we cannot imagine a legitimate tactical explanation for what appears to have been an inexcusable blunder by defense counsel. The prosecutions use of the mug shot could not have come as a surprise to defense counsel, since it was also used at the preliminary examination more than a year before trial (with the same attorney representing petitioner), where it was also referred to as a "mug shot." Thus, counsel had plenty of time to think about how the mug shot exhibit should be handled. We therefore have no trouble declaring that counsels failure to object to the unredacted mug shot, or to take other precautions to protect petitioner from its effect, constituted deficient performance.
His concomitant failure to object to the repeated references to the photo as a "mug shot," both by witnesses and the prosecutor, also fell below Stricklands objective standard of reasonableness. In fact, to obviate the need for objection before the jury, counsel should have moved in limine to require the witnesses and attorneys to refer to the exhibit with a neutral term, such as "photograph." That such a course was not taken suggests again that counsel failed to recognize the need to avoid such prejudicial language, an inference that is reinforced by defense counsels own reference to Exhibit 3A as a "booking photograph."
In other ways, too, defense counsel arguably made matters worse. He had told the jury in his opening statement that petitioner had "no convictions." He later attempted to elicit from Fitzpatrick testimony that petitioner had never before had "prior drug contacts with law enforcement." But Fitzpatrick said he did not know whether that was true because he had not "looked at [petitioners] rap sheet." Defense counsel then proceeded to ask more questions about the "rap sheet," and handed petitioners juvenile "rap sheet" to Fitzpatrick, asking whether he had "pulled" it in preparing his report. Although the rap sheet was never offered in evidence, defense counsels own cross-examination clearly let the jury know petitioner had a "rap sheet," if they had not gleaned that already from being shown his "mug shot." Though counsel had a tactical purpose in trying to establish that petitioner had no prior convictions, his tactic backfired with Fitzpatrick, who never testified to petitioners lack of prior drug offenses. Ultimately defense counsel was forced to call petitioners mother to testify to her sons lack of a criminal record.
A "rap sheet" is defined as "a police arrest record." (Websters Collegiate Dictionary (10th ed. 2000) p. 965.) Tellingly, the prosecutor offered to stipulate to admission of the rap sheet.
In questioning Officer Yin, defense counsel also elicited the names of several of petitioners friends and then asked Yin if those individuals had ever been arrested. Yin responded in the affirmative. Although this line of questioning was evidently intended to back up counsels claim in his opening statement that the police were "targeting African-American men" in the housing project, he never established that the friends named by Yin were African-Americans. Informing the jury that petitioners friends had been arrested simply compounded the prejudice of the mug shot by allowing the jury to infer that petitioners friends were people of bad character.
The seeming inconsistency between the mothers claim that petitioner had never been convicted of a crime and the "mug shot" showing an arrest left the jury to speculate either that petitioners mother was lying about her sons conviction record or else that petitioner had somehow escaped punishment for his prior offense. In the latter event, the jury may have been more inclined to convict him if for no other reason than to punish him for his past misconduct. (People v. Ewoldt, supra, 7 Cal.4th at p. 405; People v. Williams, supra, 170 Cal.App.4th at pp. 609-610.) In the former, the jury may have simply disregarded the only evidence presented by the defense.
Finally, defense counsel failed to request an instruction limiting the jurys use of the mug shot to its relevance in assessing of the accuracy of Fitzpatricks identification. This omission left the jury free to use the mug shot for any purpose, including drawing inferences of petitioners bad character and criminal propensity. This failure by counsel further confirms our suspicion that he did not know the printed matter on the mug shot was inadmissible or did not appreciate its inherently prejudicial impact which caused him to miss opportunities to eliminate or minimize its impact.
Prejudice
The real question before us is whether petitioner has established the second prong of the Strickland test, namely that in the absence of the error it is reasonably probable that a result more favorable to the petitioner would have obtained. (Strickland, supra, 466 U.S. at p. 694.) Under Strickland, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome.... [Because] [v]irtually every act or omission of counsel would meet that test [citation], and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding." (Id. at p. 693.) On the other hand, Strickland specifically rejected as too stringent an "outcome-determinative" test which would have required the petitioner to show "that counsels deficient conduct more likely than not altered the outcome in the case." (Id. at pp. 693-694.) Instead, Strickland held that "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.) "[T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results." (Id. at p. 696.)
While Stricklands "reasonable probability" standard uses language similar to the Watson test for state law errors (People v. Watson (1956) 46 Cal.2d 818, 836), the Strickland test has been called "a sort of middle ground among the available tests for prejudice," requiring "[i]n statistical terms,... a significant but something-less-than-50 percent likelihood of a more favorable verdict." (People v. Howard (1987) 190 Cal.App.3d 41, 47, fn. 4, 48.) Even in applying the Watson standard, however, the Supreme Court has "made clear that a probability in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility." (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.)
We conclude defense counsels failures in this trial did result in and from a "breakdown in the adversarial process" and the result of the trial was rendered "unreliable" as a consequence. (Strickland, supra, 466 U.S. at p. 696.) Indeed, we find it baffling how these errors could have occurred without intervention by the court or prosecutor. Every legal professional in the courtroom had a duty to ensure petitioner a fair trial, yet no one acted to protect him. The defense lawyer seemed oblivious to the problem, the prosecutor overstepped the bounds of fairness, and the court sat on its hands.
The prosecutor, as well as defense counsel, has a duty to ensure that a criminal defendant receives a fair trial. "The criminal trial should be viewed not as an adversarial sporting contest, but as a quest for truth." (United States v. Kattar (1st Cir. 1988) 840 F.2d 118, 127.) The prosecutors goal must be "not simply to obtain a conviction, but to obtain a fair conviction." (Brown v. Borg (9th Cir. 1991) 951 F.2d 1011, 1015; see also, ABA Standards for Criminal Justice (1986 supp.) The Prosecution Function, Standard 3-5.6(b), p. 3-81 ["It is unprofessional conduct for a prosecutor knowingly and for the purpose of bringing inadmissible matter to the attention of the judge or jury to offer inadmissible evidence"].)
A public prosecutor "is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." (Berger v. United States (1935) 295 U.S. 78, 88; see also, e.g., People v. Hill (1998) 17 Cal.4th 800, 819-820; People v. McCracken (1952) 39 Cal.2d 336, 349; People v. Talle (1952) 111 Cal.App.2d 650, 677-678.)
Some jurisdictions have distilled "three prerequisites to a ruling that the introduction of mug shot type photographs does not result in reversible error: [¶] 1. The Government must have a demonstrable need to introduce the photographs; and [¶] 2. The photographs themselves, if shown to the jury, must not imply that the defendant has a prior criminal record; and [¶] 3. The manner of introduction at trial must be such that it does not draw particular attention to the source or implications of the photographs." (United States v. Harrington, supra, 490 F.2d at p. 494; accord, Bishop v. United States (D.C. Ct.App. 2009) 983 A.2d 1029, 1034.)
This case unquestionably fails the second of these requirements (which are listed in the conjunctive), and we find it fails the first and third as well. The photograph contained within the mug shot could have been introduced without the surrounding hearsay printed matter, which would have satisfied any governmental need to introduce the photo. Moreover, the prosecutors and witnesses repeated references to the "mug shot" and the prosecutors exhibition of the mug shot during rebuttal argument to the jury demonstrate that "particular attention" was drawn to its "source" and "implications." (United States v. Harrington, supra, 490 F.2d at p. 494; accord, Bishop v. United States, supra, 983 A.2d at p. 1034.)
We do not accuse the prosecutor of intentional wrongdoing, nor do we suggest his introduction of the mug shot was "calculated to produce a wrongful conviction." (Berger v. U.S., supra, 295 U.S. at p. 88.) We are concerned, however, that intentionally or not his use of the mug shot led to the violation of the constitutional rights of a defendant whose attorney had failed him. (Cf. People v. Cook, supra, 252 Cal.App.2d at p. 31.)
And, of course, the trial court could have ordered the exhibit redacted on its own motion to protect petitioner from the obvious prejudicial effect of the unexpurgated mug shot. (People v. Manson (1976) 61 Cal.App.3d 102, 161 [it is the trial courts "obligation and province to regulate the conduct of proceedings to exclude inadmissible matter from the hearing of the jury"]; People v. Johnson (1964) 229 Cal.App.2d 162, 168-170 [where prosecutor asked witness improper questions relating to prior criminal conduct of defendants, court should have excluded testimony even without objection]; People v. Arends (1957) 155 Cal.App.2d 496, 508 [trial judge "should have stopped" witnesss prejudicial testimony, even without objection by opposing counsel].) "The trial judge has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice." (ABA Standards for Criminal Justice, supra, Special Functions of the Trial Judge, Standard 6-1.1(a), p. 6-6.) The rights of the accused were here blatantly violated, and the interests of the public, while including the conviction of the guilty by all lawful means, do not include resort to unduly prejudicial hearsay.
The Attorney General admits this was "[a]rguably a close case." Indeed, it was too close to give us assurance that use of the prejudicial mug shot and the exacerbating errors referenced above did not affect the outcome. A linchpin of defense counsels argument to the jury was that petitioner had "never been convicted of a crime, let alone a felony." We find it particularly disturbing that the mug shot and discussion of petitioners "rap sheet" may have led some jurors to believe petitioners attorney was lying about his conviction record. If the jury distrusted defense counsels closing remarks, his effectiveness as petitioners advocate in court was further undermined.
The evidence of petitioners guilt was not overwhelming and hinged largely on Fitzpatricks identification of petitioner as the same man who had sold him drugs earlier in the day. In the typical "buy-bust" operation, identification of the seller is not a pivotal issue. The arrest occurs immediately after the drug transaction, and the seller often has drugs and/or marked funds, paraphernalia, indicia of sales, or some other tangible evidence in his possession to substantiate the police testimony that he or she had been involved in a drug transaction.
In the "buy-walk" scenario, however, the officers identification testimony is far more crucial, since the drug transaction and the arrest are separated by a substantial period of time, and accurate identification of the seller requires participation by several officers. The identification testimony in such a case comes under even closer scrutiny if, as here, the person ultimately arrested has no drugs or other evidence of drug involvement at the time of arrest.
Obviously, Fitzpatricks identification of petitioner was crucial to the case. He testified he was able to identify petitioner from the 2005 mug shot by his facial features, having received training in facial recognition as a police officer. He did not, however, specify any particular facial features that assisted in the identification.
In the absence of physical evidence connecting petitioner to drugs, we are loathe to place too much reliance on a single eyewitness identification, especially because Fitzpatrick had only 20-25 seconds to observe both drug dealers. Moreover, having been personally involved in the undercover purchase, Fitzpatrick had a professional and personal interest in seeing that it led to an arrest and conviction. When Yin showed him the mug shot, with the annotations of a previous arrest, Fitzpatrick may have been unconsciously swayed to agree with the identification because of a belief that petitioner, even if not guilty of this particular sale, was probably involved in some form of illegal activity. Though the jury may not have known the details of petitioners prior arrest, Fitzpatrick, simply by reviewing the printed notations on the mug shot (i.e., "F/12031(2)"), presumably would have inferred that petitioner had previously been arrested for possession of a loaded firearm. (Pen. Code, § 12031.) Knowing this,
In recent years, psychologists and social science researchers have conducted studies suggesting that eyewitness identification is far less reliable than most jurors assume. "[T]hese studies demonstrate the fallibility of the human mind in the context of eyewitness identification, and cast a shadow of doubt over trials that rely on eyewitness testimony." (Note: Long on Substance, Short on Process: An Appeal for Process Long Overdue in Eyewitness Lineup Procedures (2002) 53 Hastings L.J. 681, 687.) Indeed, "mistaken eyewitness identification is the single largest source of wrongful convictions." (Wells & Seelau, Eyewitness Identification: Psychological Research and Legal Policy on Lineups (1995) 1 Psych. Pub. Pol. & L. 765, 765.) Accordingly, courts are encouraged to admit expert testimony on the psychological factors affecting eyewitness identification in cases where the prosecution depends heavily on such testimony. (People v. Jones (2003) 30 Cal.4th 1084, 1111-1112; People v. McDonald (1984) 37 Cal.3d 351, 367-369, overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896.) No such expert testimony was offered in this case.
Fitzpatrick may have been unconsciously inclined to confirm petitioners identity as the drug seller, even if he was unsure of the identification. And since Yin was also the beat cop for the housing project, Fitzpatrick may have assumed Yin would not show him a photograph of anyone whom Yin did not already suspect of being involved with drugs.
We do not disparage Officer Fitzpatricks integrity, but given the brief opportunity for observation, the cross-racial identification, the natural temptation for an officer in Fitzpatricks position to want to make a positive identification, and the information conveyed by the mug shot about petitioners past weapons arrest, we cannot rely upon his testimony alone to defeat a finding of prejudice resulting from defense counsels errors.
This view appears to mirror that of the jury, which insisted upon corroboration of Fitzpatricks testimony before reaching its verdict. Of course, Officer DeJesus provided that corroboration and thereby became a critical link in the prosecutions case. In fact, the prosecutor emphasized in his rebuttal argument the significance of DeJesuss role in making sure the drug dealers were correctly identified, telling the jury that DeJesus had maintained constant observation of the two men with whom Fitzpatrick had interacted. During deliberations, the jury requested a readback of DeJesuss testimony to determine "whether or not DeJesus had continuous surveillance from [b]uy to identification team and how... DeJesus describe[d] that period." That it reached a verdict shortly after hearing the readback suggests the jury expressly relied on DeJesuss observations. The jury also asked for a readback of Yins testimony, asking "were defendant and Mark Mays found together at the time of identification[?]"
The jurys questions, taken together, suggest that at least some jurors questioned whether DeJesus could have kept both suspects under constant surveillance if the two men did not remain together after the undercover transaction. DeJesus maintained virtually constant surveillance of Fitzpatrick while he was on the scene because his primary duty was to protect Fitzpatrick. But DeJesuss testimony was less precise as to whether the other two men remained constantly together after the undercover transaction and whether they were visible at all times from DeJesuss surveillance post. Yin testified that Mays and petitioner were "roughly in the same area" when he contacted them, which was also somewhat ambiguous. Therefore we have doubts about the strength of the evidence introduced to corroborate Fitzpatricks identification testimony.
And although DeJesuss testimony turned out to be essential to the conviction, he refused to disclose the vantage point from which he made his observations, asserting what is sometimes called the surveillance location privilege under Evidence Code section 1040. (See, e.g., People v. Lewis (2009) 172 Cal.App.4th 1426, 1431-1432.) Petitioner raised on appeal the propriety of DeJesuss assertion of that privilege without an adverse finding by the court under Evidence Code section 1042. He claimed at trial and on appeal that DeJesuss assertion of the privilege prevented him from fully cross-examining DeJesus about his observations. We need not decide the privilege was improperly asserted, nor find any error in the courts ruling, to conclude that the probative value of DeJesuss testimony was reduced by his assertion of the privilege.
It appears that a different police officer, who had not intended to assert a surveillance location privilege, was originally scheduled to corroborate Fitzpatricks identification of petitioner, but DeJesus replaced him at the last minute.
Without knowing the location from which DeJesus observed the two men who interacted with Fitzpatrick, defense counsel was hindered in investigating visibility from that vantage point to determine whether DeJesus would, in fact, have been able to keep both drug dealers in sight simultaneously. Assertion of the privilege also interfered with counsels ability to conduct a thorough and detailed cross-examination. Therefore, we have less confidence in DeJesuss testimony than we would if it had been tested in the "crucible of cross-examination" by a fully informed defense attorney. (Crawford v. Washington (2004) 541 U.S. 36, 61-62; see also, California v. Green (1970) 399 U.S. 149, 158 [calling cross-examination the " greatest legal engine ever invented for the discovery of truth "]; Hines v. Superior Court (1988) 203 Cal.App.3d 1231, 1235 [due process concerns].)
Thus, not only was petitioners right to effective representation by counsel implicated, but his right to an impartial jury was compromised, the presumption of innocence undermined, his constitutional right of confrontation restricted, and in sum, the fairness of the trial called into doubt. (U.S. Const., 6th & 14th Amends.; People v. Montgomery (1988) 205 Cal.App.3d 1011, 1018 [assertion of the surveillance location privilege may imperil defendants due process right to fair trial]; United States v. Reed (7th Cir. 1967) 376 F.2d 226, 228 [photograph and testimony showing defendant had been in prison "vitiated his right to be presumed innocent until proven guilty"].)
We also consider the jurys own difficulty in reaching a verdict. The jury deliberated for more than two hours over two days before reaching its verdict. Since all of the testimony in the case lasted a little over three hours, this was a rather lengthy deliberation in a simple one-count case. The request for a rereading of testimony further suggests the jury did not have an easy time reaching a verdict. Indeed, the jury also asked if it could consider petitioners "reaction" in court, in that "[w]hen Fitzpatrick was testifying defendant had very strong reaction facial expression, body language to parts of testimony." This inquiry implies that at least some members of the jury were having a difficult time basing their decision on the evidence alone and were inclined to consider extraneous matters.
The Attorney Generals argument that the mug shot was not prejudicial is very weak. His chief response is that, because Yin testified he previously had contact with petitioner 30-40 times, the jury would already have known petitioner had been in trouble with the law, regardless whether the mug shot had been introduced at trial. He also points to the mothers testimony that the police had been "harassing [her] son since forever" as informing the jury of petitioners prior trouble with the law.
We cannot agree. For a patrolman to testify that he has had "contact" with residents on his beat does not raise in our minds the inference that such residents have criminal tendencies or criminal records. Yin himself testified that he "enjoyed a good relationship with the community" and did "outreach" in the neighborhood in an effort to help young residents find jobs or other resources. We hope it is not unusual for a patrol officer to have friendly or neutral interactions with residents of the neighborhood, without implying that every person he "contacts" has a criminal record. The mug shot was far more damaging than Yins neutral statement about his past contacts with petitioner. Likewise, the mothers complaint that the police had been "harassing" petitioner "forever" suggests unjustified interference by police, not a criminal record on petitioners part.
For these reasons, we cannot say with confidence that defense counsels admitted failure to prevent introduction of the prejudicial unexpurgated mug shot together with the related errors discussed above did not affect the outcome of the trial. Since the reliability of the verdict is called into doubt, we reverse the judgment. This disposition makes it unnecessary for us to address the issues raised in the appeal.
DISPOSITION
The petition for writ of habeas corpus is granted, and the judgment of conviction is reversed. In light of our resolution of this matter, the related appeal in No. A121901 is dismissed as moot. Pursuant to Business and Professions Code section 6086.7, subdivision (a)(2), a copy of this opinion will be sent to the State Bar for such disciplinary action, if any, it may deem appropriate.
Richman, J.
We concur:
Kline, P.J.
Haerle, J.