People v. Filson, No. A058813

• Court: California Court of Appeals
• Writing for the Court: POCHE; ANDERSON, P.J., and PERLEY
• Citation: 22 Cal.App.4th 1841,28 Cal.Rptr.2d 335
• Parties: The PEOPLE, Plaintiff and Respondent, v. Tommy William FILSON, Defendant and Appellant.
• Docket Number: No. A058813
• Decision Date: 08 March 1994

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28 Cal.Rptr.2d 335 22 Cal.App.4th 1841 The PEOPLE, Plaintiff and Respondent,
v.
Tommy William FILSON, Defendant and Appellant. No. A058813. Court of Appeal, First District, Division 4, California. March 8, 1994.

[22 Cal.App.4th 1845] Gary V. Crooks, under appointment by the Court of Appeal, Sonoma, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Ronald E. Niver, Supervising Deputy Atty. Gen., Margo J. Yu, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

POCHE, Associate Justice.

A jury found defendant Tommy William Filson guilty of one count of committing a lewd or lascivious act upon a child under 14 years of age (Pen.Code, § 288, subd. (a)), but could not reach agreement on two other identical charges. For this offense defendant was sentenced to state prison for the middle term of six years, with a consecutive term of five years for a prior serious felony conviction (Pen.Code, § 667, subd. (a)). Defendant appeals from the judgment of conviction.

The background necessary for disposition of this appeal lends itself to brevity. The three major charges against defendant ¹ were

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that he had committed sexually provocative touching of the two minor daughters of friends [22 Cal.App.4th 1846] at the conclusion of a party. The incident was reported to police after defendant had departed. Defendant was arrested at approximately 1:15 a.m.; taken to a police station where he was interviewed by a Detective Freitas; and then taken to the hospital, where a blood sample drawn at 1:52 a.m. showed defendant's alcohol level was .16 percent. The sole defense asserted was that defendant was too intoxicated to form the specific intent needed for conviction. (See People v. Lang (1974) 11 Cal.3d 134, 141, fn. 5, 113 Cal.Rptr. 9, 520 P.2d 393.)

The trial began with testimony from Marlene L., the mother of one of the alleged victims, and one of the adults present at the party. Among the various points she covered was the fact that defendant had been drinking during the course of the party; although specifics as to what beverage and how much could not be remembered, she did recall that defendant did not appear to be intoxicated. The next witnesses were the two alleged victims (aged seven and ten on the date in question). The final witness was Deputy Sheriff Eric Gelhaus, the officer who arrested defendant. He testified that during the course of effecting the stop and arrest he formed the opinion that defendant was under the influence of alcohol. Defendant had difficulty in keeping his balance and in following the commands of Gelhaus. On the other hand, defendant did follow those commands, did seem oriented to his surroundings, and did appear "to make sense" while talking with Gelhaus.

The first day of trial ended in the middle of Gelhaus's cross-examination. After the jury had been sent home, the prosecutor moved for a ruling directing defense counsel "not ask any witnesses that might be called ... whether or not Mr. Filson made a statement to them." The prosecutor feared that should "I object because it is hearsay ... then I am in the position of looking like I am holding out something from the jury." Defense counsel objected on the ground that the prosecutor's motion was untimely: "They opened the door to it, we have got full range." The trial court granted the motion and recessed for the day.

At the start of the trial's second day, out of the jury's presence, defense counsel addressed the court as follows: "Your Honor, the Court made a ruling last evening as we concluded outside the presence of the jury pursuant to a motion made by the People in limine that any statement made by Mr. Filson not be made reference to by the defense.

"It has come to my attention that there were two separate taped recorded statements in this case. I didn't realize it yesterday. On the evidence sheets [22 Cal.App.4th 1847] there is reference to a tape recorded statement, I have a transcript of a statement made by Mr. Filson, and I felt our discovery was complete[.] Now I realize at within minutes of his arrest while at the hospital extracting blood from his arm the night that he was arrested, shortly before that, perhaps that in the patrol car on the way up[,] there was a tape reported statement. I believe that his state of mind, his demeanor, his level of or lack thereof of intoxication is at issue in this case and his demeanor is very relevant. We have the officer's testimony, however, [I] never heard the tape nor do I have a transcript of it[.] I recall Ms. Knotts [the prosecutor] does have [the] copy she has, as well her investigation was not in and of course that was late yesterday.... I found out today from Deputy Gelhaus that he turned it over to Deputy Freitas. I can only assume that it is evidence, we have never heard it and I believe that the demeanor contained within that tape can be very, very relevant in this case. And [ ] first of all I need to hear it, and secondly, we would ask the court to give us a limiting instruction, if need be, that perhaps the jury is not to take the contents of that conversation for the truth of the matter which is asserted or contained therein but for the very demeanor in his speech."

Upon being asked by the trial court to comment, the prosecutor stated: "Yes, Your Honor. One, there is no request by defense

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for these tapes that's why defense doesn't have any, never received any informal discovery request, two, as far as limiting a instruction regarding the tapes, the defense can question the officer as to his intoxication level and through his testimony determine what his intoxication level was at the time of the arrest. The only thing that the tapes--the tapes would be cumulative of that evidence plus it only goes to show how Mr. Filson was at one in the morning when he was arrested and was at the hospital, where these events occurred at 11:30 midnight, around that time period. It would not go to show that he was intoxicated at the time that the events occurred[,] which is incumbent in order to even get an instruction[ ] regarding voluntarily intoxication, that intoxication should be shown at the time of the offense. [p] Under 352 of the Evidence Code such a hearing, the tape even with the limiting instruction, the bell is rung, the prejudicial effect outweighs the probative value of that tape." The court then announced that "The ruling will stand."

Deputy Gelhaus then resumed his testimony, which was concluded after about 30 minutes. The defense presented no evidence before resting. The case was sent to the jury at 3:00 in the afternoon. The jury deliberated for the rest of the second day, all of the third, and half of the fourth day. During their deliberations they asked to have certain testimony from both victims, as well as defense counsel's closing argument, read back to them. They also asked for additional instruction as to how the intent required for conviction [22 Cal.App.4th 1848] was defined and when it could be shown. At approximately 1:45 in the afternoon of the third day of its deliberations the jury returned its verdict finding defendant guilty as charged with respect to the count relating to one of the victims; a mistrial was declared as to the two counts concerning the other victim after the trial court accepted the jury's report of deadlock.

It is clear that two tapes were made on the night of defendant's arrest. One, recording defendant's interview with Detective Freitas, was provided to the defense. It is the second, apparently made earlier by Deputy Gelhaus, which is at the heart of defendant's contention that the trial court's refusal to order it produced by the prosecution amounted to a violation of defendant's due process rights. This contention has merit.

"Under the due process clause of the Fourteenth Amendment to the United States Constitution, the prosecution has a duty to disclose all substantial material evidence favorable to an accused, including evidence bearing on the credibility of a prosecution witness; the duty exists whether or not the evidence has been requested, and it is violated whether or not the failure to disclose is intentional." (People v. Hayes (1990) 52 Cal.3d 577,...