Opinion
E031521.
7-21-2003
THE PEOPLE, Plaintiff and Respondent, v. DONSHAEL DOMINIQUE CLARK et al., Defendants and Appellants.
Greg M. Kane, under appointment by the Court of Appeal, for Defendant and Appellant Donshael Dominique Clark. Elizabeth A. Missakian, under appointment by the Court of Appeal, for Defendant and Appellant Ahmand Rashad Williams. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Randall D. Einhorn and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants Donshael Dominique Clark and Ahmand Rashad Williams were convicted of robbery, and Clark was convicted of felony witness intimidation, based almost exclusively on the testimony of Jodie Basse. As a discovery sanction, the trial court precluded defendants proffered alibi witnesses from testifying. The People concede that this was error. They further concede that the Chapman harmless error standard applies. (See generally Chapman v. California (1967) 386 U.S. 18, 24 [87 S. Ct. 824, 17 L. Ed. 2d 705].) They argue, however, that even under this exacting standard the error was harmless.
We cannot agree. There was no physical evidence linking defendants to the crimes. Basses testimony was significantly impeached by the testimony of her former close friend, Deborah Doucakis. On this record, we cannot say beyond a reasonable doubt that defendants would have been convicted even if their alibi witnesses had been allowed to testify. We must reverse. Defendants other contentions are moot.
I
FACTUAL BACKGROUND
Because the facts developed at trial are crucial to the question of harmless error, we discuss them in some detail.
On October 20, 2000, around 8:00 or 8:15 p.m., two Black men robbed a Kmart in Hemet. They were both wearing dark ski masks and gloves. One of them jumped over a counter; he took about $ 300 from Monica Espinozas register and put it in a backpack (or duffel bag). The second robber stood nearby, holding a silver-colored revolver. Espinoza testified that the robber who jumped the counter was about five feet seven inches tall and heavy set; the robber with the gun was taller and thinner.
Kelly Smith was in the parking lot and saw the robbers running from the store. One of them was limping. He could tell they were both Black males but could not see their faces and could not tell if they were wearing masks. They jumped over a wall at the side of the store.
June Vrablic was also in the parking lot. She was a passenger in a car her son was driving. She, too, saw the robbers run from the store and jump over the wall. They were wearing ski masks and gloves. One of them was "a little bigger than the other."
Vrablic had her son drive around to the other side of the wall. They did not see the robbers; however, they did see a car pull out from the curb "really fast." It went down a side street, then into an apartment complex. Minutes later, it came back out of the side street, once again going fast.
Vrablic described the car as "smaller." It was a light color — not white, but possibly silver, gray, or yellow. One headlight and one taillight were both out. There were "definitely" two people in the front; there was a shape in the back that could have been a third person, or a coat and wig.
Only one witness could identify defendants as the robbers: Jodie Basse. She testified that she met Clark for the first time two days before the robbery. At that time, Clark had a limp. Within those two days, they began having sex.
Basse owned a silver-gray 1985 Toyota Tercel. It had a broken headlight and a cracked taillight; Basse was not sure whether the taillight was working at the time of the robbery. Vrablic testified that Basses car looked "very familiar," but she could not positively identify it.
Defendant Clark and defendant Williams are stepbrothers. On the day of the robbery, at 4:00 or 5:00 p.m., Basse testified, she drove Clark in her car to a house on Wood Road in Riverside, where they picked up Williams. According to Basse, Clark was "a little bit bigger" than Williams.
They then went to Perris, to defendants cousins house. Defendants told Basse to stay in the car while they got out and talked to a Black man. Basse noticed a white Chevrolet Caprice, possibly a 1978, at the house.
Next, they went to Hemet, supposedly to visit friends of defendants. Williams was driving. Once in Hemet, they stopped at a McDonalds so Basse could use the restroom. When she came out, her car was gone. She made a collect call to her friend, Deborah Doucakis. They spoke for about 15 minutes. Basse told Doucakis what had happened. Toward the end of the conversation, Doucakis told her to call the police. Defendants then returned, in Basses car; she told Doucakis, "Theyre back," and hung up.
Basse was angry, but she got back in. Both defendants insisted that she drive. Clark said they had robbed a Kmart. (The distance between the Kmart and the McDonalds was two and a half miles; this could be covered in a five-minute drive.) Williams was holding a silver-colored revolver. Each defendant threw a dark ski mask or beanie out the window. They also threw out a white bag with a big red "K" on it. Clark said "it was a dry run, that they didnt get shit for this, and they got maybe about $ 400, if that." Later, Williams said they had gotten only $ 450.
Defendants had Basse drive them to a Motel 6 in Riverside. Clark told Basse not to worry, because nobody had seen them; before the robbery, he had parked in a "lot complex" next to the Kmart. He warned her that Williams was "a cold-blooded killer Crip" and would kill her if she ever said anything. Defendants were then picked up by the same white Caprice Basse had seen earlier, driven by the same Black man.
Basse told her counselor about the robbery. However, she did not tell the police or anybody else, because she was scared.
Two weeks later, Clark came to the apartment where Basse was staying. He told her once again not to say anything because "[Williams] is a cold-blooded killer, hes still out on the streets, and [she]ll be dealt with."
About a month after the robbery, Basse heard that the police were looking for her. At her counselors urging, she talked to Hemet Police Detective Jim Anderson. Later, the police placed her in a witness protection program. Otherwise, according to Basse, they did not offer her or promise her anything. She denied knowing about the robbery in advance or being involved in it in any way.
On December 5, Detective Anderson interviewed Basse. Basse admitted she had heard details of what happened inside the Kmart from her counselor, who had gotten them from an acquaintance who worked there and who had seen the robbery.
Doucakis had known Basse for about two years. However, they had had a falling out. At trial, Doucakis admitted, "I dont care for Jodie Basse." She also testified, "You cant believe a word [Basse] says." According to Doucakis, Basse once told the police that her boyfriend had beaten her. As a result, he went to jail. Later, she admitted to Doucakis that she had lied so she could get some "money that [the boyfriend] had saved and stuffed in a mattress."
Doucakis confirmed that on October 20, about 7:00 p.m., Basse called her collect. The conversation lasted about 15 minutes. Basse was crying and upset. She said she was in Hemet because she had been taking Clark to his mothers house (i.e., not to visit friends). She said her car had been stolen. She wanted Doucakis to come and get her. Doucakis repeatedly told her to call the police, but Basse did not want to. Toward the end of the conversation, Basse claimed that she had already called the police, and they had told her to wait there because "her car could come back." Never in this conversation did Basse say that her car had in fact come back.
About 10:00 p.m., Basse called Doucakis again. She said she had found her car in the parking lot of either a Kmart or a Wal-Mart. When she started to drive it away, she said, she saw "two dark figures coming fastly upon her." These turned out to be Clark and his "cousin." They stopped in front of the car and "kind of commandeered" it.
The next day, Basse came to Doucakiss house. She said that, the night before, she had been in jail because of a robbery Clark had committed, but "[Clark] had called the police department and gotten her off the hook." She also said that, while she was in the McDonalds getting food (i.e., not using the restroom), Clark and his "cousin" had taken her car to a Kmart and robbed it. Basse never told Doucakis who the "cousin" was.
About 10 days later, Basse came to Doucakiss house again. When Doucakis walked Basse out to her car, she saw two Black or navy blue knitted ski masks in the back seat. Basse laughed "a guilty type of laugh" and said they belonged to Clark. Doucakis also saw a "very large" gray Kmart bag.
Doucakis had first seen Clark with Basse "somewhere around" October 15, when she bought a sofa from Basse. She confirmed that Clark had a limp.
At some point, Basse told Doucakis that Clark had threatened her. After the robbery, however, Doucakis saw Basse and Clark together "maybe twice." They seemed to be on friendly terms; Basse did not seem to be afraid of Clark.
Initially, Doucakis testified that she called the police within a day after Basse told her about the robbery. Later, however, she admitted she actually did not call them until a month later. She spoke to Corona Police Detective Ron Anderson (Jim Andersons brother). She said she had information about a robbery that had taken place on October 20 in either Corona or Norco. She reported that a friend of hers had called her collect and said that she and two Black men had stopped at a McDonalds to get food. When the friend came out, her car was gone; they had taken her car, robbed a Kmart, then returned and picked her up. One of the two men was named Donshael.
There had been no such robbery in Norco or Corona. Doucakis, however, gave Ron Anderson her phone bill. It showed that at on October 20, at 7:50 p.m., Basse had called her collect from Hemet. He therefore passed this information along to his brother Jim.
Detective Jim Anderson interviewed Doucakis twice. Ultimately, he spoke to her 10 or 20 or maybe even 40 times. However, she never told him she saw ski masks or a bag in Basses car. She likewise did not tell this to a defense investigator who interviewed her, nor did she testify to it at the preliminary hearing.
Detective Anderson admitted that Williams and Clark were roughly the same height. A courtroom demonstration showed that Clark was only a quarter to half an inch taller than Williams. As of December 2000, Williams was thinner than Clark, which may have made him appear taller. By the time of trial, Williams had put on weight, but Clark was still heavier, stockier, and more broad-shouldered. According to booking sheets, Clark was five feet six inches tall and 180 pounds; Williams was five feet seven inches tall and 175 pounds. Anderson testified, however, that suspects are not actually weighed or measured when booked. Height and weight information on booking sheets may come from prior arrest records or may be supplied by the arrestees.
According to Detective Anderson, both Clark and Williams were "documented" Crips.
Clark testified that he met Basse for the first time on October 4 or 5. They had sex that night. He began staying with her — initially at her apartment, but, after she was evicted, at several motels.
On October 17, Clarks friend Kristin Ritt came to visit him. Basse got angry and checked out of the motel room. Clark then began staying with Ritt at her home in Riverside.
Clark denied participating in the robbery. On October 20, he testified, he was with Ritt at her house. Between 4:00 and 5:00 p.m., they went to a Wal-Mart; they were there for "maybe an hour." They spent the rest of the night at Ritts house.
Clark denied having any family members who lived in either Perris or Hemet. He admitted that, on or about October 22, he went to see Basse to get some of his clothes. She did not seem upset with him or afraid of him. He denied ever threatening her. He denied that Williams was a gang member, and he denied telling Basse that Williams was a gang member. Clark admitted that he himself had once been an "active" member of the Crips but testified that he was not "active" any more.
As of the time of the robbery, Clark was on parole. He had violated his parole by going to Las Vegas and then by failing to report to his parole officer, so the police were looking for him. When he found out he was a suspect in the robbery, he did not come forward because "[he] was already running from the police." When arrested, he gave "a fake name" for the same reason.
Clark claimed Basse was lying. He admitted he did not know why she was lying. She knew he was in violation of his parole, so she could have gotten him in trouble just by calling the police and telling them where he was.
Clark also admitted that, when the police interviewed him, he told them that at the time of the robbery he was with friends. He did not tell them he was with Ritt.
In 1994, Clark and a second Black man had robbed a bank in Riverside. They wore masks made from the sleeves of a sweatshirt or tee shirt. The second man had what appeared to be a dark, semiautomatic handgun. Both of them jumped over a counter; they took money from several tellers drawers and stuffed it into their pockets. They fled in a car parked around the corner. Clark had stolen the getaway car the day before. He told police the gun his accomplice had was only a BB gun.
When Clark testified, he admitted the 1994 robbery. He identified his accomplice as Mike Morris, a "childhood friend, [I] grew up with him." He testified that it was Morris who stole the getaway car. After the robbery, there was a high-speed chase; the getaway car crashed, and Clarks left arm and left leg were broken. He testified, however, that as of the time of trial he did not have a limp.
II
THE PRECLUSION OF THE TESTIMONY OF DEFENDANTS ALIBI WITNESSES AS A DISCOVERY SANCTION
Defendants contend the trial court erred by barring them from calling certain witnesses as a sanction for a discovery violation.
A. Additional Factual and Procedural Background.
The prosecution made an oral motion in limine to preclude defendants from calling nine witnesses — including Kristin Ritt and Dametrie Williams — based on defendants failure to provide discovery regarding those witnesses. The prosecutor represented that Clarks counsel had notified her of eight of the witnesses just two days before trial, and Williamss counsel had notified her of the ninth just one day before.
By way of explanation, Clarks counsel stated: "The problem at the time was we werent sure which trial was going to go forward, whether the Byrd trial was going to be going forward or this trial. [P] I was putting my case together as fast as I could . . . . I had three other cases that I was working on at the time. I know thats not an excuse but, again, I anticipated the Byrd trial going first . . . ."
Williamss counsel, in turn, explained: "We became aware of [Dametrie Williams] in August. We werent sure we were going to use her or not as an alibi witness. I will concede its a very — a somewhat weak affirmative defense . . . . [P] After the 402 rulings, and after getting hit with a prosecution . . . witness list that swelled from 10 to 13, we decided to go ahead and use [her]."
The trial court granted the motion and excluded the witnesses.
After Basse had testified, Clarks counsel asked the trial court for leave to call Kristin Ritt to impeach Basse or, alternatively, to corroborate Clark. The trial court responded: "I have made my ruling already, and shes been excluded."
B. Analysis.
Each defense counsel was required to disclose "the names and addresses of persons . . . he or she intends to call as witnesses at trial . . . ." (Pen. Code, § 1054.3, subd. (a).) Absent a showing of good cause, this disclosure had to be made at least 30 days before trial. (Pen. Code, § 1054.7.) We may assume, without deciding, the defense counsel violated these provisions.
On that assumption, the trial court was authorized to "make any order necessary to enforce these provisions . . ., including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order." (Pen. Code, § 1054.5, subd. (b).) However, it could "prohibit the testimony of a witness . . . only if all other sanctions had been exhausted." (Id., subd. (c).)
An order precluding a defendant from calling a witness encroaches on various constitutional rights, including the right to compulsory process, the right to confront witnesses, and the right to present a defense. (Michigan v. Lucas (1991) 500 U.S. 145, 149 [111 S. Ct. 1743, 114 L. Ed. 2d 205]; Taylor v. Illinois (1988) 484 U.S. 400, 407-409 [108 S. Ct. 646, 98 L. Ed. 2d 798].) Accordingly, "preclusion sanctions may be imposed against a criminal defendant only for the most egregious discovery abuse. Specifically, such sanctions should be reserved to those cases in which the record demonstrates a willful and deliberate violation which was motivated by a desire to obtain a tactical advantage at trial . . . ." (People v. Edwards (1993) 17 Cal.App.4th 1248, 1263.) Moreover, "even where an intentional violation is shown, the discovery statute allows use of a preclusion sanction only as a last resort." (Id. at p. 1264, italics omitted.)
Here, the discovery violation was arguably willful, in the sense that defense counsel knew of certain witnesses more than 30 days before trial yet knowingly failed to disclose them. There was no evidence, however, that defense counsel delayed disclosure to obtain some tactical advantage. In addition, the trial court failed to consider any lesser sanctions. It could have prevented any prejudice to the prosecution by granting a short continuance. Jury selection had begun but had not yet been completed. It also could have instructed the jury that it was allowed to draw an adverse inference from defendants delayed disclosure. For purposes of punishment, it could have held defense counsel in contempt.
We therefore conclude that the trial court erred. Indeed, the People do not argue otherwise. They merely argue that the error was harmless. Because an erroneous preclusion order violates the defendants federal constitutional rights, the applicable harmless error standard is that of Chapman: the error is harmless if, and only if, it appears beyond a reasonable doubt that it did not contribute to the verdict. (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1759; People v. Edwards, supra, 17 Cal.App.4th at p. 1266.)
Precisely because the erroneously precluded witnesses did not testify, we cannot say beyond a reasonable doubt that their testimony would not have changed the outcome. Both Kristin Ritt and Dametrie Williams were offered as alibi witnesses. The People argue that, even if these witnesses had testified, in light of the other evidence, the jury would not have believed them. This is not clear beyond a reasonable doubt.
Doucakis testified that Basse was a liar: "You cant believe a word she says." In particular, she testified, Basse had been willing to send her former boyfriend to jail for a crime he had not committed. And this testimony came from Basses former close friend — a person Basse herself had chosen to call when she needed help.
The evidence was consistent with a scenario in which Basse conspired with two different Black men to commit the robbery. Unlike Clark and Williams, one was significantly taller and thinner than the other. Basses involvement was shown by the fact that she knew many of the details of the robbery, including that the robbers wore ski masks and got only $ 300 to $ 400; her car inferably was used as the getaway car; Vrablic thought she saw three people in the car; and Doucakis saw ski masks and a Kmart bag in Basses car. Basse then blamed the robbery on Clark and Williams, partly because she was angry at Clark and partly to deflect suspicion from the actual perpetrators. Under that theory, she phoned Doucakis to establish the cover story that her car had been stolen. Interestingly, in Doucakiss account of the phone call, Basse never said it was Clark (or Williams) who had stolen it; she did not supply that little detail until the following day. But, even had she implicated Clark and Williams in that first phone call, that would merely mean she had already formed her plan by then.
The People argue that Ritts claim to remember where she was and with whom on a seemingly ordinary night over a year earlier would have been unbelievable. Perhaps, however, she had some way of remembering the date. Or perhaps she could have testified that, when Clark was at her house, they always spent the evenings there. And even without such an explanation, a reasonable jury might have found that her claim was credible.
The People also argue that Basses testimony implicating Clark and Williams was corroborated. The fact that Basse phoned Doucakis shortly before the robbery was corroborated, by Doucakis herself as well as by telephone records. Doucakis and Basse differed, however, over multiple details of this conversation. Also, according to Doucakis, Basse later gave her other conflicting accounts — some, such as her claim that she had been arrested for a robbery Clark had committed, obviously made up.
Basse and Williams may have had some past history together. Basse claimed she had never met Williams before the robbery. Doucakis testified, however, that months earlier Basse had mentioned that she knew someone called "Mondo," which was Williamss nickname. From such a previous acquaintance, Basse could have known that Williams lived on Wood Road and that he was a gang member. Alternatively, she could have learned these matters from Clark; Clark testified that Basse knew that his family lived on Wood Road and had once met Williams.
To the extent that Basses testimony implicated Williams (as opposed to Clark), Doucakis did not corroborate it at all. According to Doucakis, Basse told her the robbery had been committed by Clark and his "cousin"; Basse never identified the "cousin" as Williams. Williams, of course, was Clarks stepbrother, not his cousin. Also, even according to Basse, Clark had a cousin who apparently was an accomplice in the robbery; Clark stopped at the cousins house just before the robbery, and the cousin picked Clark up after the robbery.
Finally, the People cite the concession by Williamss trial counsel that his alibi defense was "somewhat weak." "Somewhat weak," however, is not the same thing as "certain to fail." The very fact that trial counsel wanted to call Dametrie Williams indicates that, in his professional judgment, there was a possibility that her testimony could result in an acquittal.
Certainly counter-arguments could be made — e.g., Clark did have a limp; and it was Doucakis, not Basse, who went to the police first. Indeed, the weight of the evidence probably supports the conviction. Nevertheless, we cannot say, beyond a reasonable doubt, that if Kristin Ritt and Dametrie Williams had testified that defendants were with them when the robbery was committed, the jury would still have returned a guilty verdict.
For these reasons, we must reverse defendants convictions.
III
DISPOSITION
The judgments are reversed.
We concur: Ramirez, P.J., King, J.