Martin, In re

• Decision Date: 09 November 1987
• Citation: 44 Cal.3d 1,241 Cal.Rptr. 263,744 P.2d 374
• Parties: , 744 P.2d 374 In re Herman G. MARTIN on Habeas Corpus. Crim. 24182.
• Court: California Supreme Court

Page 263

241 Cal.Rptr. 263

44 Cal.3d 1, 744 P.2d 374

In re Herman G. MARTIN on Habeas Corpus.

Crim. 24182.

Supreme Court of California In Bank.

Nov. 9, 1987.

Charles M. Sevilla, San Diego, for petitioner.

Louis Hanoian, Deputy Atty. Gen., San Diego, for respondent.

MOSK, Justice.

Petitioner Herman G. Martin was convicted of conspiracy to commit extortion (Pen.Code, §§ 182, 518), conspiracy to commit assault with a deadly weapon (id., §§ 182, 245, subd. (a)), assault (id., § 240), and murder in the second degree (id., § 187); he was found to have committed the conspiracy offenses and the murder while armed with a firearm (id., § 12022, subd. (a)). He was sentenced to a prison term of 15 years to life for the murder with a 1-year firearm enhancement, the sentences for the other offenses being stayed or ordered to run concurrently with the sentence for murder.

Martin petitions for a writ of habeas corpus. He rests his claim to relief on two grounds among others. The first is prosecutorial interference with his constitutional right to present the testimony of witnesses at trial. The second is what may broadly be referred to as the prosecution's introduction of false evidence--specifically, the introduction by the prosecution of false evidence substantially material on the issue of guilt, and the nondisclosure by the prosecution of inducements offered for the testimony of certain witnesses.

To assist this court, we appointed the Honorable Gerald Brown, Presiding Justice of Division One of the Fourth District of the Court of Appeal, Retired, as referee to take evidence and make findings of fact and conclusions of law regarding petitioner's claims. Following a lengthy hearing, the referee filed his report. He determined that the prosecution had indeed interfered with petitioner's constitutional right to present the testimony of witnesses at trial. He also determined that the prosecution had introduced against petitioner false and substantially material evidence and had failed to disclose inducements it had offered certain witnesses for their testimony.

As we shall explain, we adopt the referee's determination that the prosecution interfered with petitioner's right to present the testimony of witnesses, conclude that petitioner has established his claim to relief on that ground, and determine that the appropriate disposition is vacation of the judgment of conviction. Accordingly, we will grant the petition.

I. PRIOR PROCEEDINGS

A. Facts

On the night of May 12, 1981, Kathleen (Cass) Piascik drove Andrew Powell, who was employed by petitioner at Anear Insurance Company, to 2574 Caminito Muirfield in the Windemere Development in La Jolla to visit Richard Crake. Powell was carrying a briefcase which contained a sample insurance policy and a broken, but not inoperable, revolver. Powell and Piascik reached the Windemere security gate about 8:45 p.m., were let in, and followed a car that turned out to be driven by Crake, who was returning home from an early dinner with his wife Katherine and his daughter, also named Katherine.

After the Crakes entered their home, Powell and Piascik approached and rang the bell; Crake opened the door; Powell identified himself and stated he was there on insurance business; Crake asked whether the matter could not be handled at his office in the morning; Powell showed Crake a document he was carrying, Crake remarked it was only a sample insurance policy, and Powell sent Piascik back to the car ostensibly to get the proper documents. After Piascik left, Powell and Crake began to argue and were heard by Crake's wife and daughter, who began to approach the front door from other parts of the house. As Crake's daughter descended the stairs from the second floor, Crake tried to shut the door on Powell; Powell, however, overpowered him and entered the house. The men fought. Powell struck Crake on the head with the gun several times and shot him in the arm.

Having arrived at the scene of the struggle by this time, Crake's wife hit Powell and attempted to stop his attack. Powell lost control of the gun, and the weapon landed on the other side of the room. As he went to retrieve it, Mrs. Crake pushed him, he pushed her back, she fell to the floor, and he picked up the gun and shot at her but missed. Meanwhile, Crake's daughter had been throwing books and shoes at Powell from the stairs. She succeeded in hitting him in the head with her wooden clogs. Apparently staggered by the blows, Powell, who was by now covered with blood, backed out of the house, ran to the car, and was driven away by Piascik. Crake died later that same evening as a result of the injuries he sustained in Powell's attack.

On May 13, 1981, Powell was arrested. He was charged with murdering Crake and with assaulting Mrs. Crake with a deadly weapon. On September 2 and 15, 1981, he made statements to the San Diego District Attorney's office. In those statements he claimed that in doing what he did, he was acting as petitioner's agent.

B. Pretrial and Trial

Evidently on September 15, 1981, as a result of Powell's statements, petitioner was arrested. Charged with conspiracy to commit extortion, conspiracy to commit assault with a deadly weapon, murder, and assault with a deadly weapon, he pleaded not guilty.

Prior to trial petitioner moved to exclude from the prosecution's case-in-chief any evidence that might show he was a federally protected witness. As the record on habeas corpus reveals, petitioner had been a volunteer operative for the federal government, and had spearheaded an undercover operation to penetrate organized crime's infiltration of certain legitimate businesses on the East Coast; as a result of his participation in this operation he entered the Federal Witness Relocation Program, and he and his family were provided with a new identity and were relocated. In response to the motion, the court instructed the prosecutor, James D. Pippin, not to "go ... in detail" into petitioner's status as a federally protected witness in his opening statement. It also instructed him, in effect, to introduce evidence on the point only to the extent necessary.

Trial commenced on February 24, 1982. The sole question seriously at issue was not what Powell did on the night of May 12, 1981, but on whose behalf he acted. Even before trial began it was apparent that Powell's testimony would be crucial: as prosecutor Pippin stated during pretrial proceedings, "[Powell's] credibility is what this case is going to be all about."

It was the prosecution's theory that petitioner had a motive to harm Crake, directed Powell to Crake's home on the night of May 12, 1981, to at least threaten harm, and thereby initiated the chain of events that ended in Crake's death. Specifically, the theory was as follows: for almost four years, petitioner had been embroiled in civil litigation with Crake, claiming that Crake had defrauded him of $100,000 in a real estate transaction in San Diego; by the end of April 1981, the litigation had reached a critical stage and presented petitioner with undesirable options; facing such a situation, petitioner sent Powell to "strong arm" Crake and "collect" the $100,000 "debt"; Powell confronted Crake, Crake resisted, Powell beat him, and Crake died as a result of the blows.

In his opening statement, prosecutor Pippin asserted the evidence would show that in spite of the fact that Powell was a murderer, his testimony was worthy of belief. "The evidence is going to show that ... [Andrew Powell] was prosecuted for the murder of Richard Crake. He has been convicted for the murder of Richard Crake, and the evidence is going to show that it was Mr. Powell's request that he was interviewed by members of the District Attorney's staff, myself included, and that he made a statement that was reported by a court reporter, and that he was going to testify about. He is going to testify why he made that statement, and the evidence is going to show the statement was made not for--not for his benefit, not so that he could get a better deal, not so he could get some favorable treatment for the crimes for which he was being prosecuted, but that his motivation for giving the statement that he gave and that his motivation for testifying as he does is so that everyone responsible for the situation he is in is held responsible.... [p] The evidence will show that at no time was any promise made to him for his testimony or any preferential treatment given him for his testimony."

In attempting to support his theory, the prosecutor presented evidence that falls into two broad categories, viz., evidence that petitioner had a motive to harm Crake (the motive evidence) and evidence that he instructed Powell to "strong arm" Crake and "collect" the $100,000 "debt" (the agency evidence).

The story the motive evidence tells was generally not disputed by petitioner. It runs in substance as follows.

On June 8, 1977, petitioner filed a complaint with the San Diego District Attorney, accusing Crake of defrauding him of $100,000 with regard to the real estate transaction in San Diego. On August 31, 1977, petitioner filed an action for damages in the San Diego Superior Court against, among others, Crake, developer George Friehl, and Friehl's wife Georgeann (No. 403639). He alleged that the defendants had fraudulently induced him to guarantee a $100,000 loan, and sought $100,000 in principal and $50,000 in accrued interest as compensatory damages and $1 million in punitive damages. In October 1977 petitioner mentioned his dispute with Crake to Investigator John Armstrong of the San Diego District Attorney's office.

During the pendency of petitioner's lawsuit, Crake filed a collusive action in Riverside Superior Court against the Friehls's interest in the San Diego property. The Friehls did not appear. A default judgment was entered against them, and their interest in the property was expunged and transferred to Crake.

On December 28,...