People v. Jackson

• Citation: 235 Cal.App.3d 1670,1 Cal.Rptr.2d 778
• Decision Date: 20 November 1991
• Docket Number: No. A048169,A048169
• Parties: The PEOPLE, Plaintiff and Respondent, v. Kenneth JACKSON, Jr., Defendant and Appellant.
• Court: California Court of Appeals

Page 778

1 Cal.Rptr.2d 778

235 Cal.App.3d 1670

The PEOPLE, Plaintiff and Respondent, v. Kenneth JACKSON, Jr., Defendant and Appellant.

No. A048169.

Court of Appeal, First District, Division 4, California.

Nov. 20, 1991.

Dale Dombkowski, San Francisco, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Ronald E. Niver, Supervising Deputy Atty. Gen., Mary A. Roth, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

POCHE, Acting Presiding Justice.

Defendant, Kenneth Jackson, Jr., appeals from a judgment of conviction entered on a jury verdict finding him guilty of attempted murder (Pen.Code, §§ 187, 664) and of assault with a firearm (Pen.Code, § 245(a)(2)) with findings on both counts that he personally used the firearm and did so with the intent to inflict great bodily injury (Pen.Code, §§ 12022.5, 12022.7).

The incident giving rise to the charges occurred late in the evening of October 1, 1988, on the campus at the University of California at Berkeley. The victim, Joel Dickson, was a Berkeley football player, who with other members of the team was attending a post game dance at the Bear's Lair. Defendant, who was not a student at the university, came to the dance where he met some friends, specifically Lamont Butcher, Carlos Garcia, Greg Tolbert, and Ferris Foreman.

Defendant and another acquaintance initiated a conversation with a young woman who turned out to be the pregnant wife of one of the football players, James Devers. Words were exchanged and the two groups continued to keep an eye on one another. Devers enlisted the support of Joel Dickson, his 262 lb. teammate, in case the situation escalated into a fight.

After the dance ended both groups moved outside onto a plaza area. Once they were outside Dickson was approached by a very skinny man who wanted to know if Dickson had any "static" with him. Dickson said only if the skinny fellow wanted some. Dickson was also challenged by Garcia who wanted to know why Dickson was looking at him. Another man standing on a nearby planter box joined in the conversation telling Dickson, "No, we have no problem with you." Moments later Dickson was shot twice with .32 caliber bullets.

The Trial

The prosecution presented numerous witnesses who identified defendant as having been at the dance and involved in the altercation with Devers. Some of those witnesses positively identified defendant as holding the gun from which two shots were fired. Other witnesses placed defendant in the vicinity of the source of the gunshots, but were unable to identify him as the shooter. Another witness saw a man on the planter box with an Uzi, but could not identify the shooter, though he believed the Uzi was not the source of the shots.

The prosecution also offered the testimony of Sheila Fields. According to Fields defendant had told her in a phone call that he and Tolbert and two friends had gone to a party where a football player grabbed Tolbert and defendant had shot and then Tolbert had shot.

At the dance, defendant Garcia, and Tolbert had paid a photographer to take Polaroid photographs of them. One of these photographs was in evidence showing how defendant and his friends were dressed. Tolbert was wearing a white sweat suit with black sleeves and had his hair in short jheri curls. According to defendant he was wearing a tan silk suit with cream leather on the shoulders, Bali shoes without socks, and had his hair pulled back into a ponytail.

Defendant's version of events was that while he had been present, Gregory Tolbert, not he, was responsible for the shooting. He acknowledged his presence at the dance and testified that he was sitting on a planter box at the time of the shooting. According to him, while the exchange with Dickson was taking place a companion handed defendant an Uzi. Having taken the large gun, defendant tried to keep it from view by holding it down at his side. By his account the .32 bullets which struck Dickson, came not from the .9 millimeter Uzi he held, but from a revolver fired by Gregory Tolbert. Tolbert was killed in an unrelated incident prior to trial.

Discussion

On appeal defendant contends that the judgment must be reversed because of the cumulative impact of several errors, the net effect of which was to deny him a fair trial. The first of these errors was the prosecutor's failure to disclose the statement of a witness, Dana Dorhan, who belatedly came forward to tell the Berkeley campus police that he had witnessed the shooting and that the shooter was Gregory Tolbert. Dorhan claimed to have known both defendant and Tolbert casually. He explained that he had not come forward sooner because he feared retaliation from Tolbert, but after reading a campus newspaper account of the trial he decided he needed to talk with the authorities.

Dorhan came to the police at 2 p.m. on August 23, 1989. The campus police told the prosecutor about Dorhan's statement at 5 p.m. that same day. ¹ About an hour earlier the jury had begun deliberating. It returned its verdicts the following afternoon. Only on September 7, 1989, did the prosecutor disclose to the defense the existence of Dorhan and his statement.

At that juncture the defense moved for a new trial, basing its motion in part upon the prosecution's failure immediately to disclose Dorhan's statement. The motion for new trial was denied and defendant was sentenced.

The prosecution's duty to disclose "extends to all evidence that reasonably appears favorable to the accused, not merely to that evidence which appears likely to affect the verdict." (People v. Morris (1988) 46 Cal.3d 1, 30, fn. 14, 249 Cal.Rptr. 119, 756 P.2d 843.)

When the prosecution suppresses evidence which is material to guilt or punishment, regardless of whether that suppression is intentional or inadvertent, the defendant's due process rights are abridged. (Brady v. Maryland (1963) 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215; People v. Ruthford (1975) 14 Cal.3d 399, 406, 121 Cal.Rptr. 261, 534 P.2d 1341.) ²

The People contend that the statement offered by Dorhan as of August 23 when the prosecution learned of it was not evidence but was merely a lead or clue which had not been adequately investigated or substantiated. The gist of the argument is that the prosecution had no duty to disclose Dorhan's statement until the campus police officers had an opportunity to investigate its reliability. We reject this contention out of hand. The statement of an alleged eyewitness to the shooting who knew both defendant and Tolbert by sight and who asserted Tolbert was the shooter, was evidence reasonably favorable to the accused which triggered the prosecutor's duty to disclose. ³

On appeal, however, the question before us is whether Dorhan's statement was material evidence. "[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." (United States v. Bagley, supra, 473 U.S. at p. 682, 105 S.Ct. at p. 3383.) Exculpatory evidence, in this case testimony from an eyewitness who knew both Tolbert and defendant and claimed to have seen Tolbert fire the shots, can scarcely be characterized as not material in a case where the defense theory was that Tolbert, not defendant, was the shooter. Furthermore, since Dorhan purported to have known both defendant and Tolbert for some years prior to the incident, his identification of the shooter was potentially more credible and reliable than identifications made by witnesses to whom both men were strangers. We can only conclude that suppression of Dorhan's statement did undermine confidence in the outcome of the trial and was material. We understand the dissenting opinion to agree with this analysis and conclusion. ⁴

Tolbert's Admission

Defendant sought to introduce evidence that some 30 minutes after the shooting he was in a Richmond bar with Gregory Tolbert, Petey Ferris Foreman and Lamont Butcher, all of whom had been at the dance. Defendant said to Tolbert, "Greg, 'You shot that guy.' " To which Tolbert replied, " 'No, I don't think I hit him.' " The defendant persevered, " 'No, I think you shot the guy. He was a big brother.' " Tolbert responded, " 'Well, I don't care. He was a bully.' " Defendant offered his own testimony and that of Lamont Butcher to this conversation.

In order to admit evidence that a third party committed a crime the evidence needs to be such as to raise a reasonable doubt as to defendant's guilt. (People v. Edelbacher (1989) 47 Cal.3d 983, 1017, 254 Cal.Rptr. 586, 766 P.2d 1; People v. Hall (1986) 41 Cal.3d 826, 833, 226 Cal.Rptr. 112, 718 P.2d 99.) "The evidence must meet minimum standards of relevance: 'evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.' [Citation.]" (People v. Edelbacher, supra, 47 Cal.3d at p. 1017, 254 Cal.Rptr. 586, 766 P.2d 1.) Such evidence, however, may still be excluded under Evidence Code section 352. ⁵ (People v. Hall, supra, 41 Cal.3d at pp. 833-835, 226 Cal.Rptr. 112, 718 P.2d 99.)

Evidence of declarations against penal interest is admissible as an exception to the hearsay rule. (§ 1230; People v. Campa (1984) 36 Cal.3d 870, 882, 206 Cal.Rptr. 114, 686 P.2d 634.) Such declarations must be "distinctly" against the declarant's penal interest and must be "clothed with indicia of reliability." (People v. Shipe (1975) 49 Cal.App.3d 343, 354, 122 Cal.Rptr. 701.) The existence of circumstances which make the statement trustworthy is a preliminary factual finding made under section 405. (See Cal. Law Revision Com. com., Deering's Ann.Code Evid., § 405 (1986) p. 152.)

Whether a statement is...