Perry v. Watts
| Citation | 520 F. Supp. 550 |
| Decision Date | 17 August 1981 |
| Docket Number | No. C-81-670 RPA.,C-81-670 RPA. |
| Parties | Cornelious PERRY, Petitioner, v. Harold E. WATTS, Acting Superintendent, California Medical Facility, Vacaville, California, Respondent. |
| Court | U.S. District Court — Northern District of California |
COPYRIGHT MATERIAL OMITTED
Mark Fogelman, Deputy State Public Defender, San Francisco, Cal., for petitioner.
Kristofer Jorstad, Deputy Atty. Gen., San Francisco, Cal., for respondent.
Petitioner was convicted of violating California Penal Code section 245(a), assault by means of force likely to produce great bodily injury, following a jury trial in a State of California trial court. Petitioner appealed the conviction to the California Court of Appeal contending that the trial judge improperly excluded evidence, pursuant to California Evidence Code section 352, that another person may have committed the offense with which petitioner was charged. The Court of Appeal affirmed the lower court decision in a two to one decision; a vigorous dissent being filed. People v. Perry, 104 Cal.App.3d 268, 164 Cal.Rptr. 522 (1980). The California Supreme Court denied the petition for a hearing, filed by petitioner, with two Justices being of the opinion that the petition should be granted. After requesting a response from the Attorney General of the State of California, the United States Supreme Court denied the petition for writ of certiorari filed by petitioner. Petitioner now brings this petition for writ of habeas corpus alleging that he is unlawfully incarcerated and restrained in a California prison, specifically, the California Medical Facility in Vacaville.
In the afternoon of November 3, 1978, female victim was walking through Golden Gate Park. Victim was to meet a group of college classmates at the Hall of Flowers at 5:00 p. m. Victim was not sure where the Hall of Flowers was, and sought directions from a woman who was jogging with a man with a dog. When victim asked for directions, the man and his dog stopped to assist her, but the woman kept on jogging. The man gave victim directions, and said he would walk with her. Though victim requested that he not walk with her, the man continued to do so. The man asked if victim wanted some money, and pulled out some bills; victim responded that she did not. After victim and the man emerged from a tunnel in the path, the man grabbed victim around the neck. As victim screamed the man tried to pull her up a hill, and then hit her face and banged her head against the trees that she was clinging to so as not to be taken up the hill. Victim's screams brought persons to the scene, and the man fled. One of the citizens who responded to the screams chased the man. As the chase neared the Park Police Station, the citizen went into the station to get assistance. As the citizen and police officers exited the station, the citizen saw the man he believed he had been chasing standing on the sidewalk near the station. The police arrested this man, who was petitioner.
At trial victim identified petitioner as the man that had assaulted her. Her identification was partly based on recognition of a scar on petitioner's forehead. Other witnesses identified petitioner as the man that they had seen watching them play a soccer game shortly before the attack, and the man they saw running from the area of the attack after they heard screams from that area.
Petitioner testified that he did not commit the offense charged, and that he had not even been in Golden Gate Park that day. Petitioner stated that he had parked in a food store parking lot near the park and had taken his dog for a walk at a large grassy area near the police station. He testified that as he was returning to his car from the walk, he was arrested by police.
Prior to commencement of the trial petitioner's attorney sought to introduce, as petitioner's sole defense (besides petitioner's own testimony), evidence that could prove that a Matthew Wolfe had actually been the man who attacked victim. The proffered evidence consisted of two witnesses. The first witness was a victim who had been raped by Wolfe on the same date as the victim attack (November 3), but three years earlier. This rape took place in the same area of the park as the victim attack, and the victim had been engaged in conversation by Wolfe while walking down a path in the park before he grabbed her by the neck, pulled her into the bushes, and raped her. The second witness was the victim of a rape by Wolfe that occurred only an hour prior to the victim's assault. This rape occurred in a nearby area of the park, and the victim was assaulted, robbed, and raped.
Defense counsel recited to the trial judge many facts in favor of allowing the jury to consider the evidence. Among them: both petitioner and Wolfe had sectionally braided hair on November 3, 1978; both men are black and similar in height, weight, and build; on the day of the assault both men were wearing similar clothing (blue pants, brown colored jackets); and the modus operandi of the attacker in the witnesses' crimes was similar to the modus operandi in the attack on victim.
The trial judge refused to admit this evidence pursuant to California Evidence Code section 352.
After the prosecution's case-in-chief had been presented, defense counsel renewed the request to admit the testimony because inconsistencies in the testimony of prosecution witnesses had made the possibility more likely that Wolfe, and not petitioner, had committed the charged offense. Some inconsistencies that developed were: a witness had identified petitioner largely because of his hairstyle and clothing (which were similar to Wolfe); the evidence showed that petitioner had not been carrying a wallet on the day of the attack, even though victim testified that he brought out a wallet when he offered her money.
The trial judge again ruled the evidence inadmissible pursuant to Evidence Code section 352. In support of his ruling the judge stated a number of factors in support of his decision, important among them were that pictures of petitioner and Wolfe indicated that facially the two were not similar, and that only petitioner had the scar identified by victim and the dog identified by victim and other witnesses. The judge found that to admit this evidence would be speculative, would open up collateral issues, and would confuse the jury.
Petitioner was convicted by the jury and sentenced to prison for the middle term of three years.
California Evidence Code section 352 provides:
The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
It is this latter portion of section 352 that the trial judge relied on in making his ruling.
Evidence Code section 352 is the statutory basis for admitting or excluding evidence indicating that a third person actually committed the crime with which a defendant has been accused. But even before the enactment of section 352, California courts developed rules for determining whether to admit such evidence.
In People v. Mitchell, 100 Cal. 328, 34 P. 698 (1893) the California Supreme Court set forth a general rule that "it is always proper to show that some other person, and not the defendant committed the crime with which he is charged." Id. at 333-34, 34 P. 698. This general statement was limited somewhat by People v. Mendez, 193 Cal. 39, 223 P. 65 (1924), overruled on other grounds in People v. McCaughan, 49 Cal.2d 409, 420, 317 P.2d 974 (1957).
In the Mendez case a rancher near the Mexican border was killed and his family assaulted after three Mexicans who had asked for work and been refused had talked with the rancher. At trial the family members identified defendants as the men they had seen with their father asking for work, and as the men that had assaulted them. The trial judge excluded testimony proffered by defense counsel that could show that persons other than defendants committed the charged offenses. This evidence consisted of testimony that the rancher had altercations with several of his Mexican workers in the days before his death, that the workers' descriptions corresponded to those of defendants, and that the day after the rancher was killed the workers quit their jobs and apparently fled. Id. 193 Cal. at 49-50, 223 P. 65.
The California Supreme Court upheld the rulings of the trial judge. Although the Court quoted the Mitchell statement noted above, the Court was concerned about the "kind and quality" of evidence that could be admitted. As to this the Court stated:
It seems clear that a defendant, in order to exculpate himself, should not be required to establish the guilt of a third person with that degree of certainty requisite to sustain a conviction of the latter. On the other hand, it seems equally clear that evidence which simply affords a possible ground of possible suspicion against another person should be inadmissible.
To admit evidence that a third person committed the crime charged, the Court held that there must be some evidence tending to directly connect this other person with the actual commission of the crime. Id. The Court found that the descriptions of the men who had quit their jobs, as the only evidence tending to directly connect them with the commission of the crime, were so general and indefinite that they could apply to hundreds of persons. Id. Thus, the required evidentiary showing was not met to permit introduction of the evidence. See also People v. Buono, 191 Cal.App.2d 203, 12 Cal.Rptr. 604, 617-19 (1961).
In People v. Edmond, 200 Cal.App.2d 278, 228-29, 19 Cal.Rptr. 302 (1962), the trial court struck the testimony of a defense...
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