Opinion
G029976.
11-17-2003
THE PEOPLE, Plaintiff and Respondent, v. EDWARD HARVEY STOKES, Defendant and Appellant.
Law Offices of William J. Kopeny & Associates and William J. Kopeny for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, Janelle Marie Boustany and Marilyn George, Deputy Attorneys General, for Plaintiff and Respondent.
Following a court trial, defendant Edward Harvey Stokes was convicted of sexual battery and forcible oral copulation. (Pen. Code, §§ 243.4, 288a, subd. (c); all further references are to this code unless otherwise noted.) The trial court also found true the allegation that the latter offense was committed while defendant was engaged in the tying and binding of the victim (§ 667.61, subds. (b), (e)(6)). The court found defendant not guilty of kidnapping nor of a charge of forcible oral copulation.
Charges were initially filed against defendant in 1996. After that case was dismissed in 1998, charges were refiled against him in the present case. During the pendency of the first case, the court granted the prosecutions request to take the victims conditional examination. The victim died before the beginning of the trial in the present case and the court admitted the transcript of the conditional examination. Well after the conditional examination was completed, but before the trial in this case, the prosecution supplied defendants lawyer with a supplemental police report that contained statements by the victim. Some of those statements were inconsistent with his testimony at the conditional examination. Thus defendant never had an opportunity to cross-examine the victim about his inconsistent statements.
Defendant contends the trial court erred in granting the prosecutions request to take the conditional examination and that the belated disclosure of the police report prevented him from challenging the victims credibility with his prior inconsistent statements, thus violating defendants due process right to a fair trial. Defendant further argues the dismissal of the first case violated his right to a speedy trial. We conclude defendants speedy trial right was not violated. We further conclude the court did not err when it granted the prosecutions request to take the victims conditional examination, but the failure to disclose the police report until nearly a year later resulted in a violation of defendants due process right to a fair trial. We therefore reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Facts Underlying the Offenses
The victim, Blue K., was a homeless teenager when a mutual acquaintance introduced him to defendant at a coffee house in Seattle, Washington. The victim agreed to accompany defendant on a trip to Disneyland. During the drive to California, the victim used some drugs and fell asleep. When defendant fondled the victims penis, the victim woke up and yelled at defendant. Defendant agreed not to do it again, and they continued onward.
After the pair arrived in Anaheim, defendant rented a motel room with two beds. That night, defendant fondled the victims penis and anus. When the victim indicated he wanted to leave the motel, defendant got angry, pushed him down on to the bed, sat on top of him, and held down his shoulders. Defendant threatened to beat the victim up and told him to drink some alcohol. The victim complied and took 18 to 19 hits of acid as well. Defendant continued to fondle him. The victim felt scared, but once the acid kicked in he felt high. Defendant later offered to drive the victim to a bus station in Reno, Nevada after the victim said he wanted to go to Chicago. Early the next morning, the victim waited in the car as defendant checked out of the motel.
Somewhere near Barstow defendant drove onto a dirt road and later left the car to relieve himself. When he returned, he told the victim he intended to rape him. The victim tried to flee, but defendant caught him and placed chains around his legs which defendant secured with a padlock. Defendant forced the victim to orally copulate him and then unchained the victims legs. As defendant drove back to the highway, the car got stuck in the sand. The victim got behind the wheel and drove while defendant lifted the back end of the vehicle until it was no longer stuck. Although the victim could have driven off without defendant, he was afraid to do so because he did not know the area they were in. After returning to the highway, defendant asked the victim whether he wanted to continue on to Reno or return to Anaheim, and the victim chose Anaheim. The pair checked back into the motel where they had spent the previous night. They later made a brief visit to Disneyland and then went to a laundromat.
The next morning defendant orally copulated the victim against his will. The victim later slipped out of the motel room and hid at a neighboring motel for over an hour before he called his father. The victims father convinced him to go to the police.
Procedural History of the Case
1. Proceedings in the First Case
Charges were first filed against defendant in July 1996 in superior court case number 96NF2002. The case was set for trial on January 26, 1998, when defense counsel moved for a continuance and defendant made a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118). The court continued the trial and, shortly thereafter, the prosecutor moved to take the victims conditional examination.
In an affidavit offered to support the motion, the prosecutor declared: "This case trailed until January 28, 1998. On this date defense counsel stated she had a homicide trial in a different department. It was anticipated that the case would trail until February 9, 1998, for trial. Defense counsel stated that her homicide case may last until February 11th or 12th. After the trial, counsel stated she had a pre-paid seminar [and] she would be gone on February 17th, 18th and 19th. It was anticipated that the first viable trial date would occur on February 23, 1998." The victim, who still "ha[d] no permanent address," had expressed to the prosecutors investigator "that he [was] tired of the delays in th[e] case." The victim "ha[d] also stated on other occasions that he would not make himself available for trial," and two weeks earlier he had "indicated to [the investigator] that if this matter was not completed by February 8, 1998, he was leaving [for] Kentucky." The prosecutor could only communicate with the victim if the victim called the office.
During the hearing on the motion, defense counsel stated: "For the record . . ., were objecting to the [conditional] exam because [defendant] would have a right to be confronted by the witnesses. I do, however, understand the court is going to grant [the] motion. However, we want to put on the record that were objecting to that." In response, the court stated: "Well, [defendant] will be brought over to be present for that examination. So the court is going to grant that motion because of the difficult circumstances. This witness . . . has been difficult to locate . . . ." The court went on to note that the victim had been brought in from out of state and had indicated to the prosecutor that he planned to leave the state. The court granted the prosecutions request.
On the day of the conditional examination, defendant made a renewed Marsden motion. The court did not rule on this motion at the time but took it under submission for consideration "at another time . . . [so] we dont interrupt the proceedings today." The victim did appear for trial a few months later, but, while the trial was in progress and before the victim completed his testimony, the court declared a mistrial; the record does not provide us with a reason for the mistrial. The following September, the court granted the prosecutions motion to dismiss the case in the interest of justice; again, the record is unclear as to the reason for this dismissal. Charges were immediately refiled in the present case.
2. Proceedings in the Present Case
Several years before the present trial, but many months after the conditional examination had been completed, the prosecution disclosed the existence of a supplemental police report. This report contained statements made by the victim that were inconsistent with his testimony during the conditional examination. Several months before the trial started, the victim committed suicide. The trial court admitted the conditional examination taken in the earlier case even though defendant had not had an opportunity to question the victim about the inconsistent statements contained in the supplemental police report.
DISCUSSION
Right to Speedy Trial
Defendant contends the dismissal of the first case violated his constitutional right to a speedy trial and resulted in prejudice to him because the victim and one other witness died before trial. His contention lacks merit.
After the court granted the motion for the conditional examination, the prosecutor proposed a new trial date for February 23, 1998. Defendant agreed to waive his right to a speedy trial, and the court found the waiver to be "knowing, intelligent and voluntary," based on its "past history" of "considerable interaction with [defendant]." Later, the trial date again was continued until August 7, 1998; on that day defendant moved to represent himself and indicated he was ready to proceed to trial. The prosecutor explained the People were not ready to proceed because they understood defense counsel had planned to seek a continuance and therefore had not arranged for the out-of-state witnesses to be present.
Although the court granted defendants motion for self-representation and relieved defense counsel, it found his "effort to go forward" with the case that day to be a "tactical maneuver . . . ." The court also continued the trial date to September 21, noting the prosecutor could not be faulted for failing to subpoena witnesses from out of state. The court further noted defendant had filed a recusal motion, and it set the trial date while the motion was under consideration "only because the 60 days were ticking." Defendant had also been indecisive about whether he intended to continue being represented by the public defender or to obtain other representation.
On September 21, 1998, the prosecutor moved to dismiss the first case in the interest of justice. The court granted the motion. Defendant did not object; rather, he stated: "I had submitted my own [motion] in the same court, and I agree." The second case eventually proceeded to trial on September 4, 2001.
Before trial, defendant moved to dismiss the case on the basis that his right to speedy trial had been violated when the first case was dismissed. The motion solely concerned the failure to proceed to trial in the earlier case. The court denied the motion finding "no prejudice" and "no improper motive on behalf of the People."
The Attorney General argues that defendant waived his right to speedy trial because he agreed to the dismissal of the first case while acting as his own attorney. "Generally it is true that a defendant who elects to be his own attorney may not thereafter seek a reversal of his conviction based on incompetent representation. [Citation.]" (People v. Mendoza (2000) 24 Cal.4th 130, 157.)
But the issue is not whether defendant waived the right to speedy trial in the first case. It is whether his right to speedy trial in the first case, even if violated, precluded the prosecution from refiling the charges against him in the second case. It did not. Dismissal of a criminal action under section 1382 does not preclude the filing of a second complaint charging the defendant with the same felony offenses. (People v. Dawson (1930) 210 Cal. 366, 371; People v. Sorrentino (1956) 146 Cal.App.2d 149, 165.)
Defendant did not contend below that his right to speedy trial was violated in the present case, and he cannot make such a contention now. After the preliminary hearing in February 2000, defendant was arraigned and a new trial date was set for May 30. Between May 26, 2000 and August 27, 2001, the trial date was continued at least nine times at the request of defendant and/or his attorney. On each occasion, defendant waived his statutory right to be tried within 60 days. The delay in proceeding to trial can be attributed only to him.
The Conditional Examination
Defendant contends the court erred in overruling his objections to the conditional examination. We disagree.
The prosecution may seek an order for a conditional examination of a material witness who is about to leave the state. (§ 1336, subd. (a).) The affidavit supporting such a request must include information regarding the offenses charged, the status of the proceedings, the witnesss name and residence, that his or her testimony is material, and that the witness is about to leave the state. (§ 1337.) A defendant may object to a request for a conditional examination, and if it is shown the witness is not about to leave the state, the examination may not take place. (§ 1341.) If a witness later is unavailable to testify at trial within the meaning of Evidence Code section 240, the conditional examination testimony may be used as evidence at trial. (§ 1345.)
In his affidavit supporting the request for the conditional examination, the prosecutor stated the victim had no permanent address, had indicated he would not appear for trial, and planned to leave the state. The prosecutors affidavit constituted a prima facie showing that the witness was about to leave the state. (People v. Feigelman (1924) 65 Cal.App. 319, 322-323.) Defendants failure to challenge or attempt to disprove this fact constitutes a waiver of the issue on appeal. (Id. at p. 323.)
Defendant also contends that, in objecting to the conditional examination, "[t]he grounds . . . included lack of an adequate opportunity to prepare [for] cross-examin[ation] . . . because [his lawyer] was at that precise time trying a murder case in another courtroom . . . ." The Attorney General is correct in stating that the record does not support this contention. In moving for a continuance of the trial date, defense counsel did state that she had other cases going to trial and had not had time to review some tapes with defendant due to a lack of appropriate equipment at the jail. But the court permitted defense counsel to review the tapes with defendant in the jury room several days before the conditional examination.
Defendant next argues the conditional examination should not have taken place while he had a motion for substitute counsel still pending. Before the prosecutions request to take the conditional examination, defendant had sent a letter to the court which his attorney asked be treated as a Marsden motion. Although the record does not indicate when the court decided this motion, it appears that this motion had been ruled on before the conditional examination because on the day of that examination, defendant presented a renewed motion for substitute counsel. The court took the renewed motion under submission for later consideration so as not to "interrupt the proceedings today."
While courts generally must conduct a hearing when presented with a Marsden motion, they also must "balance the defendants interest in new counsel against the disruption, if any, flowing from the substitution. [Citation.]" (People v. Turner (1992) 7 Cal.App.4th 913, 919.) A defendant does not have an absolute right to substitute counsel, and the court need not conduct a hearing when a defendant makes repetitive accusations against his court-appointed counsel that have already been heard. (People v. Clark (1992) 3 Cal.4th 41, 104.) Moreover, as the trial court later concluded when the issue was raised by defendant in this case, the motion was not unequivocal insofar as defendant simply requested a continuance to retain counsel. We therefore conclude the court did not abuse its discretion by taking the motion under submission to avoid delaying the conditional examination.
Late Discovery of Supplemental Police Report
Defendant argues the belated disclosure of an 83-page police report of an interview with the victim violated his due process rights. We agree.
In Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215], the United States Supreme Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." (Id . at p. 87.) Subsequent cases determined that such an error required reversal whether the undisclosed evidence had been requested by the defense or not unless the defendant, in the absence of such evidence, nevertheless "`received a fair trial, understood as a trial resulting in a verdict worthy of confidence. [Citation.]" (In re Brown (1998) 17 Cal.4th 873, 886.) In other words, reversal is required if "`the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. [Citation.]" (Id. at p. 887.)
A few months after the crimes were committed, Detective Milani of the San Bernardino Sheriffs Department contacted the victim to conduct a follow-up investigation. The detective drove the victim around different areas near Barstow to see if he recognized any of the locations where defendant had taken him. The victim told the detective defendant had stopped at a fast food restaurant and the victim had gone into the restaurant alone to use the restroom. Detective Milani later testified that the information disclosed by the victim was essentially the same as that in the police report prepared by Detective Boone of the Anaheim Police Department.
The subject report, which is not part of the record, was disclosed to defendant nearly a year after the victims conditional examination. In a pretrial motion to exclude the conditional examination from evidence, defendant contended the report would have aided his cross-examination of the victim regarding his testimony about defendants conduct in the desert and reasons given by the victim as to why he never tried to escape. Specifically, defendant argued: "The information withheld from the defense includes statements by the victim that he drove from San Bernardino County to Anaheim, that the defendant slept, that at one point the victim pulled into a truck stop, got out of the car, left the defendant asleep in the car, went into the truck stop, used the restroom, returned to the car, and resumed driving to Anaheim. Such statements would have been `ripe for cross-examination if the reports had been provided to the defense." Defendant argued then, as he does now, that dismissal is the only appropriate sanction.
During the conditional examination, the victim testified that he drove the car for about an hour. He never indicated that he drove the entire trip back to Anaheim or that defendant slept in the car when he stopped to use the restroom. Nevertheless, the trial court denied defendants motion after concluding the discrepancies between the victims statements to Detective Milani and his conditional examination testimony were not material. Despite this, before making its ruling, the court noted "[o]f course credibility is always material, . . . [& para;] [and] [i]t is also material to the victims state of mind . . . ."
The Attorney General contends defendant failed to show he was prejudiced by the delayed disclosure since it is evident the trial court took those discrepancies into account when it later found defendant not guilty of the kidnapping charge. The trial courts findings on the charges against defendant essentially indicate the court found the victim credible as to the first act of forcible oral copulation in the motel room and the second act in the desert during which defendant bound the victim with chains. The court further indicated it "believe[d] [the victim] would have and, in fact, did have oral sex with [defendant]. [¶] As long as [defendant] was the actor and [the victim] the receiver, that was all right. But [the victim] certainly . . . didnt want to be the actor in that sort of sexual activity . . . ."
In finding defendant not guilty of the kidnapping charge, the court stated that, despite the victims drug use, "[i]t is perfectly clear from the evidence that [the victim] knew what was going on; knew that [defendant] went into the motel office; knew that he was in the back of the car; knew he was driving; knew they were on a dirt road; knew they were in the desert; watched as [defendant] left the car . . . and relieved himself and then [returned] to the car. [The victim] remembered everything." As to the last act of oral copulation the next morning, the court found "[t]here [was] insufficient evidence that that was against the [victims] will."
We deduce from the courts findings that the victims credibility was a critical issue. But unlike the court below, we do not view the victims inconsistent statements about what occurred during the drive in the desert as being limited to the kidnapping charge or the charge that defendant forcibly orally copulated the victim the next day. Rather, the statements are relevant to the victims credibility as a whole, particularly in assessing whether any of the alleged sexual acts were committed against the victims will.
It is well settled that "`[i]mpeachment evidence, . . . as well as exculpatory evidence, falls within the Brady rule. . . . Such evidence is "evidence favorable to an accused," . . . so that, if disclosed and used effectively, it may make the difference between conviction and acquittal. [Citation.]" (In re Pratt (1999) 69 Cal.App.4th 1294, 1316.) Thus, the belatedly-disclosed police report containing prior inconsistent statements by the victim constituted favorable evidence. And because the entire case hinged primarily on the victims testimony about the incidents, the evidence in question was undeniably material.
Since the evidence at issue was disclosed to defendant before trial, we are not confronted with the typical claim of Brady error. Nevertheless, the unusual facts of the case, namely the victims suicide and the use of his conditional examination testimony at trial, put the belated disclosure at issue here in the same realm as any other Brady claim. We can only speculate as to what impact the report would have had on the victims overall credibility had defendant been afforded the opportunity to cross-examine the victim about his prior statements during the conditional examination. Aside from the victims testimony, little evidence existed to support the charges against defendant. Thus, we cannot profess confidence in the courts guilty verdicts or true finding on the enhancement allegation and conclude defendant was denied the right to a fair trial.
DISPOSITION
The judgment is reversed.
WE CONCUR: SILLS, P. J., and MOORE, J.