Opinion
D040161.
11-6-2003
THE PEOPLE, Plaintiff and Respondent, v. RICHARD E. MADSEN, Defendant and Appellant.
Richard E. Madsen appeals an order denying a new trial following a prior appeal and remand for further proceedings. (People v. Madsen (Nov. 28, 2000, D033707) [nonpub. opn.].) On remand, the trial court was directed to conduct an evidentiary hearing on a jury misconduct allegation. Madsen contends state action resulted in the unavailability of a material witness and therefore he should be granted the remedy of a new trial. We disagree and affirm the order.
FACTS
On January 22, 1998, Madsen was convicted by a jury of aggravated mayhem (Pen. Code, § 205),[] assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), possession of a sharp instrument by a prisoner (& sect; 4502), and making a criminal threat (§ 422). On November 9, Madsen filed a motion for new trial on various grounds, including juror misconduct. In support of his motion, Madsen submitted his declaration, stating:
All statutory references are to the Penal Code unless otherwise specified.
"After the trial and verdict, I was informed that one of the jurors had expressed some concern over personal safety or fear, and I began to think about which juror that might be. . . . I then recalled that one juror stated that he lived in the Bonita area, where I grew up, and that he worked for Cal-Trans. I became concerned that he might have known me in my youth or had heard something about my past. I remembered that this juror always wore a Harley-Davidson pin at trial, and had somewhat lengthy hair. I recalled that this person identified himself as Mr. Darr. I called my sister and asked her if she remembered a person in the neighborhood named Darr, who worked for Cal-Trans. She immediately identified that person as Gary Darr, whom I had known years ago only as `Fat Dog, and who used to grow marijuana on his property. I then recalled that `Fat Dog was an individual who did in fact know who I was and who had chased myself and others firing a weapon on one occasion because he believed that we had stolen marijuana from his property. I further recalled that `Fat Dog had been arrested on narcotics charges and I asked new counsel, Mr. De Pento, to research the background of that incident."
Madsen also submitted the declaration of James Crowley, stating:
"1. I have known Richard E. Madsen since he was about 10 years old and his whole family.
"2. We all grew up in the same neighborhood together in Bonita, California.
"3. I knew an individual by the name of Howard Darr for many years as well.
"4. Mr. Darr lived in the same area, in the same time period.
"5. He has been affiliated with the Hells [Angels] Motorcycle Club for many years. He threw many parties at his home for his friends.
"6. I remember many years ago that Mr. Darr told me he had shot at Richard Madsen and another person for his belief that Mr. Madsen had stolen marijuana from his back yard [sic].
"7. I remember Mr. Madsen telling me that Howard Darr, that [sic] he knew by the name of `Fat Dog, had shot at him, Bobby Allen and Troy Krumenacher over the incident.
"8. Mr. Darr told me that he was going to get even with Mr. Madsen one way or another if he had the opportunity.
"9. I have recently seen Howard Darr and he has gained 50 [pounds], and looks quite older than when the incident with Mr. Madsen happened when Mr. Madsen was 17 years old."
Madsen also submitted the declaration of John Dillon, which stated:
"1. I have known Richard E. Madsen since 1969.
"2. I lived next door to him and his family in Bonita, California.
"3. He and I and a lot of our friends all went to Bonita Junior High and High School together through those respective years.
"4. I also knew Howard Darr, known as `Fat Dog, in the neighborhood during this same time period. He lived in the neighborhood and always threw big parties.
"5. I remember the police coming several time[s] to stop the parties.
"6. I had known that the general topic was that Darr had marijuana and I heard that Richard Madsen and some of his friends were (as teenagers) going to go take it from his backyard.
"7. I remember the incident of a shooting and Richard Madsen telling me right after it happened that he was shot at while holding onto the plants on his motorcycle.
"8. I dont remember if he told me the name of the shooter, but I assumed it was Darr."
Madsen also argued that during voir dire juror Darr failed to state that he knew Madsen and failed to state that he had prior arrests. Madsen submitted documents showing that in 1986 Darr had been arrested and charged with possession of marijuana for sale pursuant to Health and Safety Code section 11359 and other offenses. Darr pleaded guilty to the possession for sale offense and the remaining charges were dismissed.
The prosecution submitted the declaration by juror Gary Howard Darr, stating:
"In January 1998, I was a juror in the trial of a defendant who was charged with an attack on another inmate at the George Bailey Jail; having a razor blade in jail; and threatening a deputy.
"I was contacted by telephone on November 23, 1998, by [the prosecutor]. [He] told me he wanted to talk to me about my service as a juror. [He] told me I did not have to talk to him and if I did, it would be at a place and time of my convenience. I agreed to talk to [him.]
"During the jury selection process, I do not recall the judge asking me if I had ever been arrested. I never intentionally concealed that information or any other information from the court.
"At the time I sat as a juror, I did not know who the defendant was nor do I currently have any recollection of ever knowing who he was. I was not even aware he was from Bonita until after the trial was over and I read about him in the newspaper.
"If, years ago, I had some previous contact with defendant, I do not recall it and therefore it could not have been considered and was not considered by me and had absolutely no [effect] on me as a juror. Likewise, the fact that I was arrested many years ago was not considered by me in performing my duties as a juror nor did it affect me in performing my duties as a juror in this case.
"My decision as a juror in this case was based on the evidence presented in court and nothing else."
The prosecution also submitted a copy of a superior court order dated February 2, 1990, where Darrs 1986 guilty plea to the Health and Safety Code section 11359 was withdrawn; a guilty plea by Darr to a misdemeanor Health and Safety Code section 11377, subdivision (a) offense was entered; that misdemeanor conviction was set aside; a not guilty plea by Darr was entered; and the 1986 information was dismissed pursuant to Penal Code section 1203.4.
The evidentiary hearing on juror misconduct began about 2:00 p.m. on April 8, 1999. Darr was present. Before Darrs examination began, Madsens counsel informed the trial court of an additional witness:
"The only additional matter that has come to my attention within the last week is that there is a collateral witness by the name of Robert Scott Crowley [hereafter Crowley] who is presently in the air flying down from Oregon."
He represented to the court that Crowley was the brother of James Crowley who had previously provided a declaration in support of the new trial motion. Crowley had told counsel that he had known Darr for many years and had several contacts with Darr after Madsens January 1998 trial because of their mutual interest in motorcycles. On one of those occasions, Darr "acknowledged that he not only recognized Mr. Madsen while he sat as a juror, but he finally `got the little bastard in terms of getting even with him." Madsens counsel learned of Crowleys proffered testimony only a few days before the hearing. Madsens counsel requested that the trial court continue the hearing until later that afternoon or the following day to allow Crowley to testify on Darrs statements to him.
Darr testified that he did not recognize Madsen or his name during voir dire and recognized him only from his service on Madsens jury. He acknowledged that he was convicted of a felony offense in 1986, but because his conviction had been later changed to a misdemeanor and then expunged, he believed it had been taken off his record and that he did not "have to talk about it anymore." He did not recall whether the trial court asked the potential jurors whether they had ever been arrested.
On cross-examination, the prosecutor asked Darr: "So is it your explanation that you did not volunteer your arrest because you were not asked?" Darr replied: "Its been expunged and I really dont think about it anymore." Darr admitted that he had served on four juries prior to the Madsen trial, but he did not recall ever being asked whether he had ever been arrested. He did not recall ever revealing his felony arrest or conviction during those prior trials. Darr denied ever having a prior dispute with Madsen, including a theft of marijuana cultivated in his backyard. He denied chasing Madsen and firing a gun at him. He admitted he knew Crowley who had been a friend and lived near him years ago. Darr stated he probably had not seen Crowley for a couple of years. Darr stated he did not remember whether he had seen Crowley at a motorcycle show after the Madsen trial. He stated he did not remember whether he had seen Crowley in a social setting after the Madsen trial. Madsens counsel asked Darr: "I take it that if you dont remember any contact with Mr. Crowley, then you would not remember any statements to him as to recognizing the defendant Mr. Madsen?" Darr replied, "Thats correct." Darr denied that he stated to Crowley that he had finally gotten even with Madsen.
Madsens counsel argued that Darr intentionally concealed his 1986 arrest and felony conviction. He noted that the jury voir dire transcript showed that the trial court on two or more occasions asked the group of potential jurors whether they had suffered any arrests and at least two jurors admitted and discussed their arrests, making inherently unbelievable Darrs statement that he did not hear other jurors discuss their arrests. He also noted that the trial court neglected to ask potential jurors whether they recognized Madsen. He argued that Darrs testimony was impeached by the proffered testimony of Crowley. He argued that Darrs willful silence regarding his arrest and conviction raised a rebuttable presumption of prejudice to Madsen and because the prosecution had not overcome that presumption, a new trial must be granted.
The prosecutor argued that Darrs failure to acknowledge his prior arrest and conviction was not intentional concealment, but rather was the result of his inattentiveness.
The trial court weighed the evidence on Darrs credibility, including the proffered testimony of Crowley that he had contact with Darr and that Darr told him he recognized Madsen and finally got him. The trial court denied Madsens request that it continue the evidentiary hearing until Crowley arrived and could testify to impeach Darr.
The trial court found:
"Upon consideration of the totality of the circumstances, the court finds that even if I were to find that Mr. Darrs conduct as a juror in this case was willful, I do not find, based upon the entirety of the record in this case, that there was a reasonable probability of actual harm to Mr. Madsen."
The trial court explained its finding to Madsens counsel:
"Im not finding that there was willful silence in the face of inquiry of his prior conviction or willful silence that he knew or did not know the defendant. My ruling was that even if it was willful, it doesnt meet the standard upon review of the entirety of the record.
"[Darr] testified, I believe, credibly that he didnt recognize the defendant, ten years had lapsed and I think you made the argument Mr. Madsen didnt recognize him in return. Its hard for me to conclude that that was willful at the time.
"Now, after he saw the name and maybe made the connection after you showed him the declaration, there may have been some connection. But Im not going to make a finding at this time that either the silence or the failure to disclose information in this case was willful."
Accordingly, the trial court denied Madsens new trial motion.
Madsen appealed. We generally affirmed the judgment, but held the trial court had committed errors as to Madsens motion for a new trial on his jury misconduct claim. We held the trial court had abused its discretion in denying a continuance to allow Crowley to testify, erred by making factual assumptions rather than factual findings, and applied the wrong standard of prejudice. (People v. Madsen, supra, D033707.) We reversed and remanded, stating:
"[T]he trial court should conduct a more complete evidentiary hearing, including allowing Madsen to present the testimony of . . . Crowley on his posttrial conversation with Darr and to further cross-examine Darr after Crowleys testimony. Furthermore, the trial court should make express findings of fact on the credibility of Darr and Crowley and on the issues of whether Darr recognized Madsen during voir dire or trial and withheld that information, intentionally concealed his arrest and felony conviction, and expressed or showed bias against Madsen before, during, or after the trial." (People v. Madsen, supra, D033707.)
We noted that
"[b]ecause Darrs credibility regarding his lack of recollection of any information about Madsen was an issue crucial to Madsens juror misconduct claim, [Crowley]s testimony presumably would have allowed the trial court to more accurately weigh Darrs credibility. By allowing [Crowley] to testify, the trial court could have weighed [Crowley]s credibility and allowed additional questioning of Darr in light of more specific information that [Crowley] presumably could have provided. The trial court therefore would have had a more complete basis on which to make determinations of credibility and questions of fact." (People v. Madsen, supra, D033707.)
Following remand, the court scheduled a hearing for August 8, 2001, but thereafter continued the hearing until November 2001 at the request of the defense, inter alia, to allow Madsen to locate Crowley. The People also attempted to locate Crowley. Beginning in August 2001, an investigator for the district attorneys office used law enforcement and commercial computer programs and located an address and phone number in Douglas County, Oregon. He called the phone number and spoke to a woman who identified herself as Crowleys mother-in-law and gave the investigator an address and telephone number in Colorado for "Bob and Barb." The investigator called the name and spoke to a man who said he was Robert Cowley (with no "r"), claimed he had no connection to San Diego, and that he did not know a Robert Crowley. This man later telephoned the investigator to report that a defense attorney who asked the same type of questions had called him. The investigator, based on his computer searches, concluded that Crowley had used multiple names over the years. As of late October 2001, the investigator was continuing his search for Crowley without success.
Crowley did not appear at the November 2001 hearing nor did Darr.
The court considered Darrs previous testimony and found it credible, i.e., that Darr did not recognize Madsen, did not harbor any bias against Madsen, and did not intentionally fail to disclose his prior conviction. The court found Darrs failure to disclose his prior conviction was not prejudicial given that the arrest occurred 12 years earlier and involved charges completely unrelated to the charges against Madsen. The court indicated that even if it had concluded that Darr had intentionally concealed his conviction (for a reason other than bias against Madsen), it would still find the misconduct nonprejudicial. The court denied the motion for a new trial.
DISCUSSION
Madsen contends he is entitled to a new trial because in our prior opinion we indicated that Crowley was a material witness and that Crowleys testimony should be considered on remand but Crowley was unavailable to testify. Madsen asserts Crowleys unavailability was due to the trial courts abuse of discretion at the 1999 hearing in denying a continuance and that People "must bear the burden of the trial courts original error." Madsen also asserts that the trial courts finding that Darr was credible should be rejected.
Madsen compares his case to those involving the deportation of material witnesses where the charges against the defendants were dismissed because it was "state action [that] initiated and was at least partially responsible" for the unavailability of the material defense witnesses. (People v. Mejia (1976) 57 Cal.App.3d 574, 581; accord Cordova v. Superior Court (1983) 148 Cal.App.3d 177, 186-187; People v. Valencia (1990) 218 Cal.App.3d 808, 825.)[] He argues that, like those cases, Crowley was a material witness and "became unavailable as the result of government action." He asserts "the only reason Crowley did not testify back in 1999 was the result of an abuse of discretion by the trial court — government action." He extrapolates this "government action" in 1999 as causing a denial of Crowleys testimony in 2001.
In People v. Mejia, supra, 57 Cal.App.3d 574, 580, the court explained: "Generally speaking the People may select and choose which witnesses they wish to use to prove their case against a defendant. They are not, however, under principles of basic fairness, privileged to control the proceedings by choosing which material witnesses shall, and which shall not, be available to the accused in presenting his defense." A defendant seeking sanctions for the deportation of witnesses must "`make[] a plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses." (Cordova v. Superior Court, supra, 148 Cal.App.3d 177, 182-183.) Mejias standard of materiality was subsequently abrogated by Proposition 8 (see People v. Valencia, supra, 218 Cal.App.3d 808, 819); however, the standard of materiality is not at issue in this case.
Initially, we note the record does not contain any evidence establishing that Crowleys failure to testify in 1999 was solely the result of the trial courts denial of a continuance. The record contains only defense counsels statement at the 1999 hearing that Crowley was then "in the air" on his way to San Diego from Oregon. There was no declaration submitted at the 1999 or 2001 hearings to support this assertion. Nor were any records (such as airplane tickets or reservations) presented to show that Crowley had, in fact, been on his way to San Diego at the time the trial court denied the continuance in 1999.
Moreover, Crowleys unavailability at the 2001 hearing was not the result of any "government action." The trial court did not prevent Madsen from calling Crowley as a witness at the 2001 hearing. The prosecutor did not prevent Madsen from calling Crowley as a witness at the 2001 hearing. Indeed, the prosecutor made diligent efforts to locate Crowley. Crowleys unavailability for the 2001 hearing was the result of Crowleys own actions in having moved his residence, using different names, and/or his unwillingness to be a witness.
Finally, we find no merit to Madsens last argument that we should reject the trial courts finding that Darr was credible because it "was made in a vacuum of its own creation and cannot stand." Madsen points out the finding was "made without the benefit of hearing from Crowley and [that] this Court specifically intended that the trial court consider Crowleys testimony before making any findings of credibility." He further states that "[a] witness, even after a vigorous cross-examination, may seem credible; however, his/her credibility can be destroyed by the testimony of a contrary witness."
To the extent Madsen may be suggesting that we mandated Crowley testify prior to any ruling by the trial court on remand, he is in error. In our prior opinion we held only that "the trial court should conduct a more complete evidentiary hearing, including allowing Madsen to present the testimony of Crowley on his posttrial conversation with Darr and to further cross-examine Darr after Crowleys testimony." (People v. Madsen, supra, D033707, italics added.) The trial court gave Madsen that opportunity. When Crowley did not testify, the trial courts credibility determination was necessarily limited to the record it had before it. Based on that record, the court was entitled to (and indeed was directed by our prior opinion) to make credibility findings. The court was entitled to find Darr was a credible witness. There was no error here.
DISPOSITION
The order is affirmed.
WE CONCUR: BENKE, J., and HALLER, J.