People v. McDonald, Cr. 21770

CourtUnited States State Supreme Court (California)
Citation37 Cal.3d 351,208 Cal.Rptr. 236,690 P.2d 709
Decision Date21 November 1984
Docket NumberCr. 21770
Parties, 690 P.2d 709, 46 A.L.R.4th 1011 The PEOPLE, Plaintiff and Respondent, v. Eddie Bobby McDONALD, Defendant and Appellant.

Dean R. Gits, Los Angeles, for defendant and appellant.

Robert R. Anderson, Deputy Atty. Gen., Los Angeles, for plaintiff and respondent.

MOSK, Justice.

We address here a contention that is increasingly heard in the courts of California and our sister jurisdictions, i.e., that it may be an abuse of discretion to exclude the testimony of a psychologist who is a qualified expert witness on psychological factors shown by the evidence that may affect the accuracy of an eyewitness identification of the defendant. As will appear, we hold that on a proper showing such testimony is admissible, and that it should have been admitted in the case at bar.

Defendant was charged in count I with the murder of Jose Esparza. (Pen.Code, § 187.) As a special circumstance it was alleged that defendant committed the murder while robbing or attempting to rob Esparza. (Id., § 190.2, subd. (a)(17)(i).) In count II defendant was charged with the same robbery of Esparza as a substantive offense. (Id., § 211.) He pleaded not guilty on both counts. The jury convicted him of the murder and found the robbery special circumstance allegation to be true; nevertheless, the jury found defendant not guilty of the substantive charge of robbery in count II. The jury thereafter fixed the penalty at death. This appeal is automatic. (Id., § 1239, subd. (b).)

At trial it was established without dispute that August 20, 1979, was payday for Esparza, a restaurant worker. At 4 p.m. he took a break from his job to cash his paycheck. Shortly after 5 p.m. he was shot and killed by a black man at the intersection of Pine and Seventh Streets in downtown Long Beach. The principal issue was the identity of the perpetrator. The prosecution presented seven eyewitnesses who identified defendant as that person with varying degrees of certainty, and one eyewitness who categorically testified that defendant was not the gunman; the defense presented six witnesses who testified that defendant was in another state on the day of crime. Because of these discrepancies and their bearing on the principal issue, we will set forth the relevant testimony in some detail.

Four prosecution witnesses positively identified defendant in the courtroom as the perpetrator; in the testimony of each, however, there were factors that could have raised reasonable doubts in the minds of jurors as to the accuracy of the identification. Thus Patricia Molinar testified that she was driving home after work on August 20 when she stopped for a red light at the intersection of Pine and Seventh Streets. While waiting at the light she noticed two men standing on the sidewalk diagonally across the intersection; one was Hispanic (Esparza) and the other was black. She testified that they "seemed to be arguing." The black man then grabbed the other "around his hands," and they began to struggle. After a few moments the witness heard a shot and saw the black man pointing a gun at the victim. The latter fell back against a wall, a second shot was heard, and he slumped to the sidewalk. The gunman leaned over him for a few seconds, walked quickly across the street, and ran from the scene. The entire episode took no more than a few minutes. In open court Ms. Molinar identified defendant as the black man in question.

The witness conceded, however, that her view had been partly blocked by cars parked in front of the spot where the confrontation took place. A number of cars also drove through the intersection while she was waiting for the light to change, passing between her and the two men. She testified that during part of the struggle the gunman had his back towards her, and that when he looked in her direction as he left the scene she was "frightened." She acknowledged that after the event she failed to select defendant's picture out of a group of some 10 photographs shown to her by the police. Yet she claimed that a few days later she picked defendant's photograph out of a set of six, saying, "I'm not sure, but from the photograph I can't be completely positive, but I'm more than sure it's him." On cross-examination, however, she admitted that at the preliminary hearing she testified that she had been unable to identify defendant in either photographic display.

David Iglesias testified he was a passenger in the front seat of the car driven by Ms. Molinar, who was his fiancee. His version of the events was essentially the same as hers. He also identified defendant in the courtroom, but conceded that when he picked defendant out of a pretrial photographic display he told the police that although he was "pretty sure" defendant was the gunman, he was "not positive." On cross-examination Mr. Iglesias admitted that in fact he selected photographs of not one but two people (out of six) in the display--the defendant and another--"because they kind of looked alike."

Chad Wise testified he was sitting in his parked car at the intersection in question when he heard a gunshot. He got out of his car and went to the corner, where he saw a black man and a Hispanic who seemed to be fighting; the black man pointed a gun at the Hispanic and fired a second time, reached into the victim's back pocket, then ran down the street. The witness identified defendant in the courtroom. There was no evidence, however, that he had identified defendant before the trial; and defense counsel brought out certain discrepancies between the version that the witness gave on the stand and the statement he furnished to the police on the day of the events. Finally, his estimate of the time that it took the gunman to fire the second shot, bend over the victim, and run from the scene differed drastically from that of the other witnesses: they all testified that no more than two or three minutes elapsed, but he insisted on both direct and cross-examination that it was "almost 25 minutes."

La Wahna Eldred testified she was walking towards the intersection in question when she heard two gunshots in close succession. Looking in the direction of the sounds, she saw a Hispanic struggling with a black man. The latter then stood up and walked across the street towards her, holding his hand at his waistband. She looked away because she was frightened; as he passed by she took a "sideward glance" at him. On this basis she identified defendant in the courtroom as the gunman.

Ms. Eldred conceded that her view of the encounter had been partly blocked by both parked and passing cars. Several days later she was shown a set of six photographs by the police; after studying them for ten minutes, she selected the photograph of defendant as having the most "similarities" to the face she remembered seeing. She told the police, however, that his hairline looked different and she "wasn't totally positive" that defendant was the gunman.

None of the other prosecution witnesses were positive in their courtroom identifications of defendant. Thus the testimony of Erik Soderholm was very similar to that of Ms. Eldred. 1 When asked if he could identify the black man in the courtroom, however, Mr. Soderholm replied only that "I think this is the man," pointing to defendant. He explained that "The feeling I get, looking at his face, are [sic ] similar to the feelings I had when I saw the man go." He conceded there was fairly heavy rush-hour traffic in the intersection at the time of the shooting, and that a number of cars passed between him and the scene as he watched. He also conceded that he had selected not one but two faces out of the set of six photographs subsequently shown to him by the police, and that he told the officer at the time, "I'm not sure. I only saw the side view of him and his back." When defense counsel squarely asked him on cross-examination whether "There is some doubt in your mind" about his courtroom identification of defendant, Mr. Soderholm said, "Yes."

Two other witnesses did not see the actual shooting and were even less certain that the black man at the scene was defendant. Harold Malone testified he was in a hamburger stand on the corner of Pine and Seventh Streets when he heard shots and went outside to investigate. He saw a black man standing over a fallen figure, holding a gun; the man put the gun in his waistband and crossed the street at a fast pace. The witness followed until the man got into a parked car and drove away.

There was no evidence that the witness identified defendant before the trial. When asked on direct examination, "Would you recognize that man if you saw him again?" Mr. Malone replied, "That I'm not sure of, sir." He explained that his attention had been focused on the man's weapon and on the need to follow him, and that at all times he was across the street and behind the man. The prosecutor persisted, asking the witness to "look around the courtroom and tell us if you see that man in court today." Mr. Malone did so, and answered, "I couldn't be positive." The prosecutor then asked if he could see anyone "similar" to the black man in question, and the witness finally pointed to defendant. 2 When defense counsel asked him on cross-examination, "you're not certain it's [defendant], are you?" the witness admitted, "No, sir. I couldn't be positive, no."

Similarly, Richard Kaley testified he was standing near the intersection in question when he heard a shot and saw a man running "lickety-split" towards him. As the man passed him, Mr. Kaley saw that he was holding a gun in his waistband. The entire episode took about 90 seconds. The witness conceded that the police never showed him a photographic display and that he did not testify at the preliminary hearing. At trial he testified the man was black, but added that he (Kaley) was colorblind and was...

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