Opinion
G036389
5-2-2007
THE PEOPLE, Plaintiff and Respondent, v. MUHAMMAD HAFEEZ, Defendant and Appellant.
Dacia A. Burz, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Erika Hiramatsu, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Defendant Muhammad Hafeez challenges his conviction for rape and false imprisonment. He contends the prosecution committed Brady error by not disclosing the victims pretrial statement to the prosecutor. We see no error. The statements substance was disclosed on the trials first day. And the statement was immaterial. We affirm.
Brady v. Maryland (1963) 373 U.S. 83 (Brady).
FACTS
The victim had recently met two men called "Harris" through an Internet website. She liked one of the men, but did not like the other one — namely, defendant. The victim, trying to set up a date with the man she liked, inadvertently called defendant instead.
The victim drove to defendants Fullerton apartment to pick him up for dinner. He met her outside his apartment. When she saw him, she realized she had called the wrong man. Defendant told her he needed to change his clothes for their date, and asked her to come back with him to his room. She reluctantly agreed to go, largely because he said his friends were there watching television. When they got to his room, no one else was there.
The victim tried to leave after a few minutes, but defendant grabbed her and threw her down on the bed. He began undressing her. The victim kicked at him and yelled for help. Defendant pressed his forearm against her throat and told her to shut up. They continued struggling. Defendant stopped to let the victim go to the bathroom; she took her cell phone with her. She quietly called a friend for help. Defendant ordered her out of the bathroom. He then raped her.
The victims friends knocked at the front door. Defendant gave the victim her clothes and ordered her back into the bathroom. The friend asked for the victim. Defendant said he was alone. The victim ran out of the bathroom and fled with her friends.
The victims friends drove her to the Fullerton Police Department, where she reported the rape. She next went to a hospital, where a forensic nurse conducted a rape exam. The nurse found bite marks on the victims breast, arms, and thigh. She also found bruising inside the victims mouth, as well as tearing and dried blood on her genitalia. The bruising and tearing were consistent with forceful contact with a penis or foreign object.
The police helped the victim make recorded telephone calls to defendant. Defendant repeatedly apologized to the victim. He claimed he was very drunk, did not know what he was doing that night, and did not remember what had happened.
Next, the police interrogated defendant. He claimed he was too drunk that night to remember exactly what had happened. He acknowledged kissing and touching the victim, conceded he may have forced her to take off her clothes, and confirmed she told him she did not want to have sex. Because his room was "messed up" when he awoke the next morning, he concluded they may have been "fighting about something." He stated, "I even dont know if I fuck her or not to tell you the truth."
The People filed an information charging defendant with one count of forcible rape (Pen. Code, § 261, subd. (a)(2)), two counts of forcible oral copulation (§ 288a, subd. (c)(2)), one count of forcible sexual penetration by a foreign object (§ 289, subd. (a)(1)), one count of false imprisonment (§§ 236 & 237, subd. (a)), and one count of assault with the intent to commit a sexual offense (§ 220)). Defendant was tried before a jury, which found him guilty of forcible rape and false imprisonment. The court sentenced him to a total term of three years in state prison.
All further statutory references are to the Penal Code.
DISCUSSION
The Prosecution Did Not Violate Its Brady Obligation
The victim made two pretrial statements to the prosecution team about the other man she had met called Harris. First, the victim told the police that "`she went to meet a friend for a blind date . . . . She said the subject who ha[d] come down to meet her was not the person she was looking for, but stated he was up in his apartment. . . . When they entered the apartment she did not see anyone else in the apartment. The subject then said, "I am Harris, what do you think?" She did not believe that he was Harris. She had only met Harris one time briefly, and that she did not recognize the subject as Harris immediately." The prosecution disclosed this statement to the defense before trial.
The victim later told the prosecutor she met another man named Harris through an internet website, and tried to call him to set up a date but instead inadvertently called defendant. The prosecution did not disclose this statement to the defense.
Nonetheless, during opening statement, the prosecutor related the Peoples intent to call the other Harris. The next day, during a break in the victims cross-examination, defense counsel asked the court to order the victim to provide contact information for Harris. The prosecution gave the victims only contact information for Harris — his website mailbox address — to the defense the following day. The defense eventually located and interviewed Harris after trial. Defendant moved for a new trial based on newly discovered evidence. He later supplemented his motion with a declaration from Harris. The court noted the prosecution violated its statutory duty to disclose all victim statements to the defense, but denied the new trial motion. It found the victims statement and the Harris declaration would not reasonably lead a jury to a different result.
The prosecution has a statutory obligation to disclose to the defense all "[r]elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial." (§ 1054.1, subd. (f).) The phrase, "reports of the statements of witnesses," includes the witnesses oral statements directly to counsel. (See Roland v. Superior Court (2004) 124 Cal.App.4th 154, 165-168 & fn. 1 [construing defendants discovery obligation pursuant to § 1054.3, subd. (a), but noting its analysis applies equally to § 1054.1, subd. (f)]; but see 5 Witkin & Epstein, Cal. Crim. Law (3d ed. 2000) Crim. Trial, § 45, p. 94. ["The criminal discovery statute permits discovery of defendants statements, regardless of whether they are written or oral. [citations.] Statements of prosecution witnesses must be written or recorded"].) Thus, as the Attorney General conceded at oral argument, the prosecutions failure to disclose the victims statement to the defense was not its "best practice."
On appeal, defendant contends the prosecution violated its Brady obligation by failing to disclose the victims statement to the prosecutor about the other Harris. "To merit relief on this ground, the evidence a prosecutor failed to disclose must have been both favorable to the defendant and material on either guilt or punishment. Evidence would have been favorable if it would have helped the defendant or hurt the prosecution, as by impeaching one of its witnesses. Evidence would have been material only if there is a reasonable probability that, had it been disclosed to the defense, the result would have been different. The requisite reasonable probability is a probability sufficient to undermine confidence in the outcome on the part of the reviewing court. It is a probability assessed by considering the evidence in question under the totality of the relevant circumstances and not in isolation or in the abstract." (People v. Dickey (2005) 35 Cal.4th 884, 907-908 (Dickey).)
Defendant maintains the victims statement to the prosecutor materially impeached her credibility. He asserts it contradicts the victims earlier statement to the police, in which she failed to mention the other Harris by name. In addition, he claims the statement led to the Harris declaration, which contradicted her testimony.
We reject defendants Brady claim for three reasons.
First, the prosecution disclosed Harriss existence at the trials start. The prosecutor mentioned Harris during his opening statement, and asked the victim about Harris during direct examination. (See People v. Wright (1985) 39 Cal.3d 576, 591 [no reversal where "defendant discovered the [suppressed] evidence before a verdict had been reached, indeed before the jurys deliberations had begun"].) A day after opening statements, defense counsel cross-examined the victim about Harris and her statement to the prosecutor. He could have asked for a continuance to give him additional time to find and interview Harris, but he chose not to seek one. (Cf. People v. Sanchez (1998) 62 Cal.App.4th 460, 474, fn. 8 [any Brady error harmless where prosecution disclosed exculpatory evidence during trial and defense failed to request continuance]; accord OHara, supra, 301 F.3d at 569 [continuance is the proper remedy for delayed disclosure of Brady material].)
(Accord U.S. v. OHara (7th Cir. 2002) 301 F.3d 563, 569 (OHara) ["Delayed disclosure of evidence does not in and of itself constitute a Brady violation"]; U.S. v. Gonzales (8th Cir. 1996) 90 F.3d 1363, 1368 ["[w]here the prosecution delays disclosure of evidence, but the evidence is nonetheless disclosed during trial, Brady is not violated"].)
Second, the victims statement to the prosecutor is immaterial because it does not contradict her earlier statement to the police. In her earlier statement, the victim told the police that "`the subject who ha[d] come down to meet her was not the person she was looking for, but stated he was up in his apartment," and that "`she did not believe that he was Harris." This statement implies the victim had confused defendant with another man she knew as Harris. Thus, the victims statement to the prosecutor was consistent with her earlier statement to the police. While the victim included some additional detail in her statement to the prosecutor — e.g., noting she met the other Harris over the internet and had intended to call him instead of defendant — these minor additions do not call into question her earlier statement. The background story of how she met the other Harris is not the "gotcha" stuff from which meaningful impeachment is made. No reasonable probability exists that defendant would have fared differently at trial had this information been disclosed earlier to the defense. (See Dickey, supra, 35 Cal.4th at pp. 907-908.)
Third, the Harris declaration is immaterial because it differs only marginally from the victims testimony. Defendant notes the victim testified she learned that she and the other Harris attended the same mosque, she met with the other Harris three times, she met with the other Harris in public places to obey Muslim sexual restrictions, she confused defendants and Harriss accented voices when she mistakenly called defendant to set up the date, she stayed in defendants room as long as she did because she believed he would follow Muslim sexual restrictions, and generally portrayed herself as a chaste Muslim woman. In his declaration, Harris states he never saw the victim at his mosque, he met with her only one time, he speaks "clear English," and the victim called him on the telephone and sent her computer messages. The variance between these accounts is minimal. The victim never testified she met with Harris at their mosque, just that they attended the same one. Harris concedes he met with the victim once, although she remembered two more meetings. Harriss untested, subjective assertion that he speaks "clear English" does not rule out the victims claim she confused his voice with defendants voice over the telephone. And even if the victim initiated contact with Harris, that does not reasonably tend to show she is unchaste. It certainly does not imply the victim consented to have sex with defendant. While the victims testimony does differ from Harriss declaration in some respects, the differences are relatively minor and concern tangential matters. No reasonable probability exists that the trial result would have been different had the defense obtained the declaration earlier. (See Dickey, supra, 35 Cal.4th at pp. 907-908.)
The Harris declaration is also immaterial for other reasons. Defense counsel effectively cross-examined the victim about her devoutness and truthfulness. The declaration would be cumulative of other evidence which impeached her credibility, and therefore not material. (People v. Hayes (1990) 52 Cal.3d 577, 612; accord Allen v. Woodford (9th. Cir 2005) 395 F.3d 979, 997.) In addition, the declaration is immaterial given the strong evidence of guilt. The victims testimony, the forensic evidence, and defendants apologies and admissions to the victim and the police strongly support the convictions. What little impeachment value the declaration might have would not "undermine [our] confidence in the outcome" of the trial. (Dickey, supra, 35 Cal.4th at p. 907.)
The Court Did Not Abuse Its Discretion by Denying Defendants New Trial Motion
Defendant further contends the court erred by denying his new trial motion based on newly discovered evidence. "In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: "`1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits."" (People v. Delgado (1993) 5 Cal.4th 312, 328.) "`"The determination of a motion for a new trial rests so completely within the courts discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears."" (Ibid.)
Defendant shows no manifest abuse of discretion. Harriss testimony, as indicated by his declaration, would not likely lead to a different result in a retrial, and was cumulative of other impeachment material, as shown ante. The court did not abuse its discretion by denying defendants new trial motion.
DISPOSITION
The judgment is affirmed.
We concur:
RYLAARSDAM, Acting P. J.
OLEARY, J.