People v. Lemcke

Citation486 P.3d 1077,278 Cal.Rptr.3d 849,11 Cal.5th 644
Decision Date27 May 2021
Docket NumberS250108
CourtUnited States State Supreme Court (California)
Parties The PEOPLE, Plaintiff and Respondent, v. Desirae Lee LEMCKE et al., Defendants and Appellants.

Sylvia W. Beckham, Carpinteria, under appointment by the Supreme Court, for Defendant and Appellant Desirae Lee Lemcke.

Jeanine G. Strong, Carmel, under appointment by the Supreme Court, for Defendant and Appellant Charles Henry Rudd.

Kramer Levin Naftalis & Frankel, Hannah Lee, Menlo Park, David S. Frankel, John M. McNulty and Aaron L. Webman for The California Innocence Project, The Project for the Innocent at Loyola Law School and The Northern California Innocence Project as Amici Curiae on behalf of Defendant and Appellant Charles Henry Rudd.

Mary K. McComb, State Public Defender, Barry P. Helft, Chief Deputy State Public Defender, and Kathleen M. Scheidel, Assistant State Public Defender, as Amicus Curiae on behalf of Defendant and Appellant Charles Henry Rudd.

Xavier Becerra, Attorney General, Michael J. Mongan, State Solicitor General, Janill L. Richards, Principal Deputy State Solicitor General, Julie L. Garland, Assistant Attorney General, Joshua A. Klein, Deputy State Solicitor General, Steve Oetting and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion of the Court by Groban, J.

Defendant Charles Henry Rudd was convicted of assault and robbery. The prosecution's primary evidence at trial was the testimony of the victim, who identified Rudd as her assailant and confirmed that she had previously identified Rudd during a photographic lineup. The trial court provided the jury an instruction modeled on CALCRIM No. 315 that listed 15 factors it should consider when evaluating eyewitness identification evidence. One of those factors stated: "How certain was the witness when he or she made an identification?" Rudd argues that the certainty instruction violated his federal and state due process rights to a fair trial (see U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, §§ 7, 15 ) because empirical research has shown that a witness's confidence in an identification is generally not a reliable indicator of accuracy.

We reject Rudd's due process claims. When considered in the context of the trial record as a whole, listing the witness's level of certainty as one of 15 factors the jury should consider when evaluating identification testimony did not render Rudd's trial fundamentally unfair. (See Salas v. Cortez (1979) 24 Cal.3d 22, 27, 154 Cal.Rptr. 529, 593 P.2d 226 ( Salas ) ["The touchstone of due process is fundamental fairness"]; People v. Foster (2010) 50 Cal.4th 1301, 1335, 117 Cal.Rptr.3d 658, 242 P.3d 105 ( Foster ) [in determining whether a jury instruction violated a defendant's right to due process, the " ‘instruction "may not be judged in artificial isolation," but must be considered in the context of the instructions as a whole and the trial record’ " (italics omitted)].) As we explained in a prior decision approving CALJIC No. 2.92 ’s similarly worded instruction on witness certainty, the instruction does not direct the jury that "certainty equals accuracy." ( People v. Sánchez (2016) 63 Cal.4th 411, 461–463, 204 Cal.Rptr.3d 682, 375 P.3d 812 ( Sánchez ); see People v. Johnson (1992) 3 Cal.4th 1183, 1231–1232, 14 Cal.Rptr.2d 702, 842 P.2d 1 ( Johnson ) [approving CALJIC No. 2.92 ’s certainty instruction].) Although the language may prompt jurors to conclude that a confident identification is more likely to be accurate, Rudd was permitted to call an eyewitness identification expert who explained the limited circumstances when certainty and accuracy are positively correlated. Moreover, the court provided additional instructions directing the jury that it was required to consider the testimony of the expert witness, that the prosecution retained the burden to prove Rudd's identity as the perpetrator beyond a reasonable doubt, and that witnesses sometimes make honest mistakes.

Despite the absence of a constitutional violation, we nonetheless agree with amici curiae that a reevaluation of the certainty instruction is warranted. Contrary to widespread lay belief, there is now near unanimity in the empirical research that "eyewitness confidence is generally an unreliable indicator of accuracy." ( State v. Henderson (2011) 208 N.J. 208, 27 A.3d 872, 899 ( Henderson ); see Commonwealth v. Gomes (2015) 470 Mass. 352, 22 N.E.3d 897, 912–913 ( Gomes ); State v. Guilbert (2012) 306 Conn. 218, 49 A.3d 705, 721–723 ( Guilbert ); State v. Lawson (2012) 352 Or. 724, 291 P.3d 673, 704 ( Lawson ).) As currently worded, CALCRIM No. 315 does nothing to disabuse jurors of that common misconception, but rather tends to reinforce it by implying that an identification is more likely to be reliable when the witness has expressed certainty. This is especially problematic because many studies have also shown eyewitness confidence is the single most influential factor in juror determinations regarding the accuracy of an identification. (See Lawson , at pp. 704–705.)

Given the significance that witness certainty plays in the factfinding process, we refer the matter to the Judicial Council and its Advisory Committee on Criminal Jury Instructions to evaluate whether or how the instruction might be modified to avoid juror confusion regarding the correlation between certainty and accuracy. (See Cal. Rules of Court, rule 2.1050(d).) Acting pursuant to our supervisory powers, we further direct that until the Judicial Council has completed its evaluation, trial courts should omit the certainty factor from CALCRIM No. 315 unless the defendant requests otherwise.

I. BACKGROUND
A. The Crime and Investigation
1. The assault and initial investigation

In July of 2014, Monica Campusano traveled to a motel to visit a friend. While walking down a hallway, Campusano saw a woman standing outside room 216 and a man standing just inside the doorway. The woman asked if she could use Campusano's cell phone. As Campusano began to retrieve her phone, the man in the doorway suddenly struck her in the face and pulled her into room 216. The man then punched and kicked Campusano repeatedly, causing her to lose consciousness.

When Campusano regained consciousness she was alone and her purse and phone were gone. She immediately went to the motel lobby and called 9-1-1. Ricardo Velasquez, an officer of the Santa Ana Police Department, responded to the call and interviewed Campusano at the motel. Campusano described her assailant as an African-American male, between six feet three inches to six feet five inches in height and weighing 260 to 300 pounds. Campusano described the female who had asked to use her phone as a "heavy set white female," standing approximately five feet six inches in height and weighing over 200 pounds.

After arranging an ambulance for Campusano, Officer Velasquez obtained records from the motel manager that showed room 216 was registered to a woman named Desirae Lee Lemcke. Officer Velasquez ran a records check on Lemcke and determined that she matched Campusano's description of the female standing outside the motel room. The records check also revealed Lemcke had previously obtained a "no contact" order against a man named Charles Rudd, who the order described as an African-American male, six feet three inches in height and weighing approximately 250 pounds.

Later that evening, Officer Velasquez created a six-pack photographic lineup that included an image of Rudd and then drove to the hospital where Campusano was receiving treatment. When Velasquez arrived, Campusano was "under anesthesia," but stated that she could answer questions. Officer Velasquez showed her the photographic lineup and asked whether she saw the person who had attacked her. Campusano pointed to Rudd's photograph and stated that she recognized his nose, mouth and jaw area. She signed her name by the photo but used an incorrect spelling.

2. Follow-up investigation

Approximately three months after Campusano initially identified Rudd, Santa Ana Police Department Detective Adrian Silva contacted her to discuss the details of the assault. Silva showed Campusano a photographic lineup of several females that included an image of Lemcke. Campusano selected Lemcke's photograph. Campusano also mentioned for the first time that the male assailant had a tattoo on his neck.

Based on the information Campusano had provided, Detective Silva prepared a photographic lineup showing images of two neck tattoos. The first photograph showed the neck tattoo of Rudd and the second showed the neck tattoo of Lemcke's current boyfriend. The men's faces were not shown in the photographs.

Silva met with Campusano again six days later and asked whether either of the tattoos resembled the one she had seen on her assailant's neck. Campusano selected the photograph of Rudd's tattoo, explaining that it looked "more like the one that she remembered." Silva then asked Campusano whether she recalled having previously selected an image of an African-American male during a photographic lineup. After Campusano said yes, Silva showed her the image of Rudd that Officer Velasquez had used in the original photographic lineup and asked whether "she remembered that this was [the] ... photo ... that she had already identified." Campusano confirmed it was the same photograph.

Silva then showed Campusano a second six-pack photographic lineup that did not include Rudd. Campusano stated that she did not recognize anyone, and then pointed back to the photograph of Rudd and said, "for sure it was [him]."

In October of 2014, the Orange County District Attorney filed an information charging Lemcke and Rudd with second-degree robbery ( Penal Code, §§ 211, 212.5, subd. (c) )1 and aggravated assault by means of force likely to result in great bodily injury (§ 245, subd. (a)(l)). The information also charged Rudd with battery with serious bodily injury. (§ 243, subd. (d).)

B. Trial
1. Prosecution's witnesses

At...

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