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People v. Ervine

December 7, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DENNIS NEWTON ERVINE, DEFENDANT AND APPELLANT.



Sacramento County Super. Ct. No. 96F00389. Judge: James T. Ford.

The opinion of the court was delivered by: Baxter, J.

After his motion for change of venue was granted, defendant Dennis Newton Ervine was convicted by a Sacramento County jury of the first degree murder of Lassen County Deputy Sheriff Larry Griffith and the attempted willful, deliberate and premeditated murder of Commander William Freitas, Deputy Wayne Aldridge, and Deputy Henry Mahan, all by use of a firearm. (Pen. Code, §§ 187, subd. (a), 664, subds. (a), (e)(1), 1203.06, 12022.5.)*fn1

The jury found true the special circumstances that defendant murdered a peace officer in the line of duty (§ 190.2, subd. (a)(7)), that defendant committed the murder to avoid arrest (id., subd. (a)(5)), and that defendant committed the murder by means of lying in wait (id., subd. (a)(15)). After a penalty trial, the jury returned a verdict of death on March 6, 1996. The court denied defendant's motions for new trial (§ 1181) and to modify the penalty verdict (§ 190.4, subd. (e)) and sentenced defendant to die. Defendant was also sentenced to three consecutive sentences of life imprisonment without the possibility of parole and an additional term of 16 years.

This appeal is automatic.

We affirm the judgment in its entirety.

I. Background

Commander William Freitas and Deputy Sheriffs Wayne Aldridge, Larry Griffith, and Henry Mahan of the Lassen County Sheriff's Department drove to defendant's residence on the morning of March 2, 1995, following a report of an incident of domestic violence the night before by his wife, Julie Ervine. They were in marked patrol vehicles and in uniform.

Defendant, who had barricaded the downstairs windows and watched the officers' arrival from an upstairs bedroom, responded by firing his .30-.30 Winchester rifle at the officers, killing Deputy Griffith.

Defendant continued to fire his weapon until a bullet from one of the officers grazed his head. After a standoff of several hours, the surviving officers were evacuated under cover of a dump truck. Defendant surrendered several hours after that.

Guilt Phase Evidence

On March 2, 1995, Wayne Aldridge was awakened by a call from the Lassen County Sheriff's Department dispatcher around 3:45 a.m. The dispatcher told Aldridge, the on-call deputy, that a woman had reported a domestic violence situation at her home in Ravendale, during which a gun was fired. Aldridge put on his uniform-dark brown slacks and a khaki-colored shirt with Lassen County Sheriff's Department patches on each shoulder, dark brown epaulets, dark brown pocket covers, and a badge on the upper left chest-and met Deputy Larry Griffith at the sheriff's department in Susanville. Griffith was also in uniform.

The reporting party was identified as Julie Ervine, and the officers were dispatched to meet her at the post office in Ravendale, about 60 miles away. They drove in a marked patrol car-a brown 1994 Ford Crown Victoria with Lassen County Sheriff's Department insignia on each side, a sheriff's logo on the rear, and red and blue overhead lights-and arrived around 5:30 a.m. Julie Ervine (Julie) was there, dressed in a bathrobe and accompanied by her neighbor, John Boske.

Julie reported that defendant had seemed strange when she returned home around 9:00 p.m. the night before. He had been cleaning a semiautomatic rifle, despite the late hour and despite the fact he had recently cleaned it. About an hour later, they argued. He demanded the keys to her car, ostensibly to repair the windshield wiper on the rear window. Julie pointed out that the wiper had been "messed up" for two years.

As the argument escalated, Julie announced she was going to leave him. Defendant entered the bedroom, grabbed her by the neck, and threw her on the bed. He then pulled out a silver-colored semiautomatic handgun and pressed it against her left cheek. When he said he ought to kill her right there, she tried to talk her way out of the situation. He pulled the gun away, fired a round into a stuffed toy dinosaur that was near her head, and left the room. Julie, clad only in her bathrobe, climbed out the bathroom window. However, she made a noise closing the window, and defendant rushed in and saw her escape. She ran towards the rear of the house and hid in the sagebrush. From her position, she could see defendant moving vehicles around at the front of the house, so she crawled to the Boske residence, approximately half a mile away to the south.

Upon hearing this account, Deputy Aldridge decided to call for backup and the two officers, accompanied by Julie and her neighbor, went to the Boske residence to do so. Aldridge parked the patrol car in front, with its rear facing defendant's residence. There was a clear view between the residences. Reached by phone, Commander Freitas instructed Aldridge and Griffith to continue to observe the Ervine residence and said that he would "gather the troops" in the meantime. Through his binoculars, Aldridge saw defendant shuttle back and forth between the Ervine house and a red car, which was the vehicle parked closest to the house. Griffith went outside the Boske house with another pair of binoculars and watched defendant, who in turn was watching the two deputies through his own pair of binoculars. Defendant continued to watch them for about a minute and then went into the house and up the stairs, where he observed them through his binoculars for another minute.

Meanwhile, Commander Freitas tried to telephone defendant's house, but defendant never picked up the phone and the answering machine message was garbled. Freitas and Deputy Henry Mahan then drove to the Boske residence and parked their patrol vehicle directly behind Aldridge's vehicle. They were wearing the same uniforms as Aldridge and Griffith. Julie described to them the weapon defendant had used the previous night, which appeared to be a .22-caliber semiautomatic, as well as other weapons defendant possessed. As to defendant's state of mind, Julie told the officers that he "had lost it." The four officers got back into their vehicles and headed towards defendant's house around 9:00 a.m., intending to arrest him for felony domestic violence.

The deputies proceeded down the Ervines' long driveway towards the Ervines' fenced-in yard, with Freitas's car in the lead. Outside again, defendant watched them for a time and then walked toward and re-entered his residence as the deputies approached, turning once or twice to look back as he did so. Freitas and Mahan stopped at the locked gate and exited their vehicle. They yelled to defendant to come and talk. Aldridge and Griffith parked behind them and at an angle. Aldridge pulled out his binoculars and observed defendant at a second-story window with what appeared to be a weapon. Aldridge warned the others and opened his car door. Griffith exited Aldridge's vehicle on the passenger side and knelt down. Defendant came closer to the second- story window, used his weapon to knock a hole in it, and immediately began firing.

Freitas ducked behind his car door and heard two quick shots fired by defendant, who had a tactical advantage by being able to fire down from above the officers, approximately 187 feet away.

Although there was some dispute at trial over the sequence of the subsequent shots, the record showed that defendant fired in Freitas's direction at least twice; that defendant fired another shot that grazed the top of Mahan's head as well as firing other shots in Mahan's direction; that defendant shot Griffith in the head; and that Aldridge, who tried to find a vantage point but could not because the lead patrol vehicle's rear window and light bar were in the way, took cover in the "V" of his open vehicle door.*fn2

The record also showed that Griffith managed to fire a single round from his M16 rifle before being shot; that Freitas returned defendant's fire using his .45-caliber semiautomatic pistol; and that Mahan used his shotgun to fire once at defendant. After the shotgun was fired, defendant appeared to roll backwards away from the window, leading Mahan to think defendant had been knocked down. The entire encounter lasted about 10 to 15 seconds.

As Commander Freitas moved towards the rear of his vehicle to retrieve his sniper rifle, he saw that Deputy Griffith had been hit in the head. Freitas was sure Griffith was dead and told Aldridge, "We've got an officer down. Call 1199," using an emergency code indicating an officer in trouble. Aldridge thought that Mahan must have been the victim because he did not see Mahan at first, but, as Aldridge grabbed his car radio to report the 1199 call, he saw Mahan do the same thing in the lead vehicle. Aldridge then noticed a piece of skull membrane on his radio and "pink material" splashed on the front seat and elsewhere in the car's interior and called out to Griffith. There was no response. Aldridge dropped down to the ground and saw Griffith lying on the ground on the other side of the vehicle. There was an exit wound at the back of his head.

After the shooting stopped, defendant did not reappear at the window or otherwise communicate with the officers, and they were concerned that defendant, a veteran of the Vietnam War, might come out of the house and pick them off from behind. The patrol vehicles constituted the only cover available to the officers, and they were pinned down, unable to move, for three hours. The sheriff's department finally obtained a dump truck with a snowplow blade on the front. The truck backed down the entire length of the Ervines' driveway, with its bed (filled with sand) tilted up as a shield, and the surviving officers climbed into or onto the vehicle to make their escape. Sniper teams were then set up at the four corners of the house. Several hours later, around 6:00 p.m., defendant surrendered. As he exited his property, he paused for several seconds at Griffith's body, which had remained the entire day where it had fallen.

When taken into custody, defendant had a nonserious puncture-type wound, about two millimeters long, on his upper left forehead.

An investigation at the scene revealed that defendant had placed several five-gallon gasoline cans at various spots in the yard which could be seen from inside the residence, including a can placed on top of the red Toyota in front of the residence, a can placed next to a pickup truck parked near the fence, a can placed near a blue truck west of the residence, and a can placed near an old army ambulance parked near an outbuilding at the front corner of the yard. There was also a five-gallon gasoline can inside the residence near the entry to the living room.

Weapons and ammunition of every variety were found throughout the house. There were cartridges of .30-.30-caliber, .357-caliber Magnum, and .38-caliber ammunition in the living room. In the dining room were found a loaded 12-gauge shotgun and .32-caliber semiautomatic pistol, an unloaded .30-.30 Winchester rifle,*fn3 a .357 Magnum speed loader with six cartridges, a partial box of .357 Magnum cartridges, a box of 12- gauge shotgun shells, a box of .32-caliber automatic ammunition, a box of .32-caliber Smith & Wesson ammunition, and a box of .30-.30 cartridges (and other such cartridges). The master bedroom contained .22-caliber, .30-.30-caliber, .357-caliber, and .38-caliber ammunition, as well as a .22-caliber rifle, a .357 Magnum Colt Python revolver, and a second .30-.30-caliber rifle, this one with a leather sling.

Plywood covered the windows in the living room, dining room, master bedroom, and kitchen, and some of it was buttressed by two-by-four wood boards. Plywood also covered the back door, which led to the kitchen. A stuffed "Barney toy" lay in the kitchen; it had a hole through the head from back to front and the inside material had melted. The screen on the bathroom window had been knocked out and was lying on the ground.

A portion of a south-facing window in the upstairs bedroom had been broken from the inside, and there were a flashlight, a bullhorn, and binoculars on a cardboard box below the window. There were four spent .30-.30 casings on the bedroom floor, as well as some .45-caliber bullets, pellets of double-aught buckshot, and a series of blood drops.

Deputy Griffith died of a gunshot wound to his head. The bullet entered at the hairline on the right side of his head and exited at the left rear of his head; the trajectory was from right to left on a downward path. The size of the entry wound corresponded to a .30- caliber bullet.

Defendant denied knowing that the men arriving at his house were peace officers and denied any intent to shoot them. He believed instead that the visitors were his wife, whom he suspected of having an affair and of taking his life savings, and her boyfriend; he claimed he did not realize that they were from the sheriff's department (and that he had shot one of them) until much later.

Defendant had many complaints about his wife. He had been trying to sell their Sacramento house-the title of which was in her name alone-but she reportedly failed to answer repeated messages on behalf of an interested buyer left on her home phone in Ravendale or at her work at the Lassen County school district. He also had told her a foreclosure notice had been posted on the Sacramento house in December 1994. She promised to straighten it out, but she must not have, since another foreclosure notice was posted on the house a month later. He also learned that the $29,000 he had inherited from his father was gone and that he had less than $120 in his bank account. Julie was supposedly the one who paid the bills.

Defendant had finished moving his belongings from Sacramento to Ravendale on Valentine's Day 1995. In late February, he discovered that the key to the box containing his coin and stamp collections and some cash was missing from its place in the nightstand. Julie claimed that she would find the key, but defendant instead picked the lock and discovered that all but $97 of his $2,500 in cash was missing.

When Julie arrived home around 9:30 p.m. on March 1, 1995, defendant was trying to fix a .22-caliber semiautomatic rifle he had obtained from a friend in a trade. He then put the gun away and asked his wife for a haircut, since he was interested in pursuing some job openings listed in the newspaper and she was the one who ordinarily cut his hair.*fn4 Julie said she was tired and told him the scissors were on the dresser, but he complained that he could not cut his own hair. He also asked her for $10 or $20 to buy gas, but she said she did not have any money.

Defendant returned the gun repair tools to the basement and brought up a wiper blade he had purchased in Sacramento for her car's rear window. He asked where the "arm" for the wiper blade was, since he insisted on getting the chore of changing the blade out of the way, but they got into a heated argument over her privacy, the house in Sacramento, the mail, and his coin collection. When she said, "Fine, I'm leaving," defendant grabbed the Colt Python .357-caliber double action revolver and stuck it in her face. She said, "Go ahead and kill me. Then you really won't have anything." He replied, "I wouldn't kill you. I would make you suffer, but I wouldn't kill you."*fn5 He used the gun to push away a stuffed animal the dog had placed on the bed, and the gun "went off." Defendant checked to make sure the dog had not been shot, and Julie screamed, "I can't believe you shot that F-in' thing next to my head." He told her she could leave, but not with the red car (i.e., her car), which he planned to sell in Sacramento. When defendant discovered that Julie had escaped out the bathroom window, he got into his truck and backed it in front of her car to block its exit.

Once Julie left, defendant entered her car and found bags containing mail from the preceding three months. He also found bottles of prescription pain medicine (many of them in the name of his late father), as well as bills for credit cards in his name that he did not know he had, men's clothing (not his), a shoulder pad for a women's garment with Julie's wedding ring pinned to it, Post-it notes that read "Can you squeeze me?" and "Can you find time for me today, Mike?" and a log of her workdays, the longest of which was 5.5 hours-even though she routinely left for work around 7:30 or 8:00 a.m. and did not return until 8:00 p.m. or later.

While sorting through the mail, defendant retrieved one of his loaded .30-.30 Winchester rifles-the one without the sling-because he planned to go looking for his wife (and "probably" kill her) but, for undisclosed reasons, he did not actually go looking for her. Instead, he went back to her car. When he discovered through bank statements that she had been taking his coin collection and depositing it in the bank and that he had less than $2 left in his bank account, he barricaded all of the first-floor windows (except the mud room window) with plywood: "I was just gonna shut myself off from the rest of the world." Defendant denied erecting the barricades to deflect police bullets. As he was going back and forth to the car, he noticed a brown or beige car at the Boske residence and assumed it was Julie's boyfriend's.

Defendant then brought a number of items upstairs: a flashlight, "because it was just starting to get daylight, and it was dark in the room"; a bullhorn, because he planned to tell Julie, when she came back, to "just take one of those trucks and leave" without letting her back in the house (although, as he admitted, he used the .30-.30 rifle instead of the bullhorn when the deputies arrived and could not say why he did so); and binoculars, so that he could see what was going on across the street and who was there (but, he claimed, these "wouldn't even be good at a football game"). He also took the .30-.30 Winchester rifle upstairs as well as a box of ammunition, but that was "hard to explain. It's-it was more or less like a comfort."

When defendant saw the brown car leave the Boske residence and come towards his driveway, he went inside the house and snuck into the upstairs bedroom to position the rifle next to the window. It was already loaded. Defendant observed two identical cars approach his gate, and even though he had "a pretty good inclination that the police were gonna show up sooner or later," he "expected" that his wife and her boyfriend were in the vehicles now approaching.*fn6 The driver of the lead car exited the vehicle. Defendant could not see the people inside the vehicles, only silhouettes. Defendant said he tried to open the window and could not do so, so he grabbed the rifle and knocked out a pane of glass with the barrel. Then he placed the rifle up to his shoulder, set his finger on the trigger, and twice "shot towards the passenger door" of the lead vehicle, which was where he thought his wife was.*fn7 He did not use the bullhorn, nor did he pick up the binoculars to see who was there, nor did he fire a warning shot, and he "can't really say whether [he] wanted to kill [his] wife or not." Observing that the driver "had got to cover," defendant fired twice at the door on the driver's side.*fn8 Switching back to the other side of the lead vehicle, defendant noticed out of the corner of his eye the bedroom window breaking. Pieces of glass went flying, and he got hit in the head.

He claimed his gun discharged as he fell backwards. When he got back up, blood fell on his hand, his head was ringing, and he felt as though he had been hit in the head with a baseball bat. Defendant also testified that he never aimed at any individual person, never shot at the second vehicle, and never intended to hit anyone, although he knew that a high-powered weapon could shoot through the metal of a car. He did not know why he continued to fire after his first shot, although he testified that he would have kept firing if a bullet had not grazed his head. He "just wanted them to leave [him] alone."

Nonetheless, defendant went downstairs and loaded all his weapons "to the max." He thought he would shoot at anyone's feet that were visible underneath the door of either vehicle; then, when the person or persons fell, he planned to "finish it off." But defendant could no longer see anyone from upstairs, so he planned to escape by rappelling off the west side of the house and then ambushing the cars from behind. As defendant went to retrieve some more ammunition, though, he noticed "this guy's legs sticking out" on the ground. They were not moving. Defendant went back downstairs to get to the phone, "and somewhere between the time I looked out that window, and I finally got somebody on the phone, I realized it was a Sheriff." Defendant then reported, "I shot the Sheriff."

Defendant claimed he told the officer on the phone "that they could get the deputies out of there." He also agreed to allow the dump truck to rescue them. Defendant claimed that he did not see any emblems on the patrol vehicles, did not recognize the uniforms, and thought the light bars were ski racks. "I don't know whether it was when I was just standing there staring at this man waiting for him to move or what, when I realized who he was." He claimed he had never seen a Lassen County Sheriff's Department vehicle before.*fn9

Defendant admitted placing a gas can in front of each vehicle that was close to a building because he did not expect to get out of there and did not want to leave anything standing for his wife. Three of the cans were full of gasoline; the rest contained a couple of gallons each. Defendant planned to shoot the full cans with a rifle, let them drain halfway, and then fire a .357 Magnum hollow-point bullet filled with gunpowder at the flammable liquid. He could see each of the gasoline cans from the upstairs bedroom window, and he also had placed a can inside the house. The thought of committing suicide "crossed [his] mind" when he called the police, and he also wrote out a will. He ultimately agreed to surrender himself. Defendant paused and said a prayer for Griffith as he passed by the body. He felt remorse and wished he could have traded places with Griffith. He could not believe the other officers "left him layin' there" prior to his surrender.

Special Agent Albert Fox of the Department of Justice testified in rebuttal that defendant, during a taped interview the day after the shooting, had said he barricaded the windows " 'cuz I wasn't gonna go to jail, man, you know." During the interview, defendant also said he knew without a doubt that the driver who exited the lead vehicle was from the sheriff's department. Defendant, in surrebuttal, claimed his statements during the interview concerning his awareness that the driver was a sheriff were based on what he had figured out after the shooting.

Penalty Phase Evidence

Julie Ervine recounted the events that led her to flee her home through the bathroom window. Defendant was sitting on the couch, cleaning a rifle, when she arrived home around 9:00 p.m. on March 1, 1995.

Defendant "looked different," but it was hard to explain how, and seemed upset about a lot of things. They discussed his wanting to have a haircut and wanting to repair the wiper on her rear windshield right then, but Julie thought that both of those tasks could wait until the next day.

After she had changed into her bathrobe, he grabbed her, threw her down on the bed, pinned her arms and legs, and shoved a gun into her cheek. He said, "I should shoot you," and added that he wanted to kill her. Then he said, "No, I think that you-that you should suffer," and slid the gun off her face and fired it into the stuffed animal that was next to her.

Julie was afraid defendant was going to kill her and then himself, so she decided to escape and believed the only way out-since he was keeping an eye on the front door and the back door had been sealed shut-was through the bathroom window. She dove out the window in her robe and slippers and crawled to the Boske residence. The journey took her at least two hours and it was very cold. She reported the incident to the sheriff's department and then left the house with Boske, because they were afraid defendant would come over. She and Boske met Deputy Aldridge and Deputy Griffith at the post office and begged them not to go over to defendant's house, but Griffith responded that "that's his job, and that's what they're here for, and that it would be okay, and they would do everything they could to make sure that nothing happened."

Defendant had been a steelworker at the time Julie married him, five years earlier. Defendant then turned to buying and selling government surplus, but he had to give that up for a time to take care of his father, who lived with them and needed round-the-clock care. Defendant received an inheritance of $20,000 to $30,000 after his father died in 1992. Julie had hoped that the move from Sacramento to Ravendale would be helpful to defendant, who was having trouble getting along with people and did not seem to want to work anymore.

The People also presented evidence of the crime's impact on Deputy Griffith's family and co-workers.

Deputy Larry Griffith's wife, Laurie Griffith, testified that she had been uncomfortable when her husband received the call about the domestic violence incident from dispatch around 4:30 a.m. A few hours later, Kay Dieter from the probation department came to the Lassen County credit union, where Laurie worked, to say "they had a situation, and they needed [her] to go down to the Department." Her heart sank: "It was kind of one of those feelings that you always dread." She and Karen Freitas were taken to the sheriff's department and told that there was a deputy "down"-but not which one. Around 12:30 p.m., she found out it was her husband. Her 14-year-old daughter Crystal was there when she learned the awful news. Larry's son David is a deputy sheriff in Florida and has two children, including one that Larry never got to see.

Lassen County Sheriff Ronald D. Jarrell hired Larry Griffith in 1984 and described the sheriff's department as a close-knit group. There was grief and pain everywhere after this incident, and Jarrell brought in two professional counselors for the staff and their families. Jarrell felt helpless upon learning that Griffith had been shot but he also needed to ensure that the remaining officers were safely removed from the situation. It was difficult to deal with his anger and continue to perform his duties as a professional peace officer, and it bothers him still that they were not able to retrieve Griffith's body at the time they rescued the surviving officers. The murder caused some experienced officers to question their own abilities and bred a lack of self-confidence among the more junior officers. In particular, Deputy Aldridge told Jarrell a few days later that he wanted to see his children grow up and decided to quit. The dispatcher still has difficulty dealing with the fact that she sent Griffith to respond to this call. Even at the time of trial, deputies were more likely to request assistance in responding to a domestic violence call, and deputies in the field would respond even out of their areas to such requests.

The defense called a total of 22 witnesses-family members, friends, neighbors, and co-workers-to attest to defendant's character. Defendant had served in the Army in Vietnam and had received a medal for bravery. After he came home, he was in charge of the honor guard at the Presidio in San Francisco and traveled all over the western United States to attend military funerals.

Several of defendant's family members, friends, and co-workers testified that defendant was a hard worker and well liked by his bosses. His niece and nephew testified that he was always there to listen and to help settle differences among the family members. Defendant had helped out by watching his friend Danny Joe "Jake" Jacobsen's sons when he lived at the Jacobsen house between jobs and was considered "family." Peggy Van Ness, too, considered defendant to be "family," and he had dated her sister Denise off and on for seven years. William Enbysk had sent his youngest son to live with defendant for a time, when the boy was struggling through an awkward age; Enbysk said defendant was like "a brother." Robert Harter testified that defendant was his best friend and mentor and also was considered to be part of the family.

Defendant's neighbors in Sacramento testified that he was a very good neighbor and had been helpful on numerous occasions, including repairing (and then replacing) May Belle Oliver's wheelchair and giving her a wheelchair ramp for her house. Bernadette Tuton, another neighbor (and a single parent), said defendant had helped her many times. Tuton also admitted expressing concern to Julie Ervine about her safety if she moved to Ravendale with defendant.

The defense presented two awards defendant had received for bravery during combat in Vietnam in 1969. The People presented evidence of a reprimand defendant received from the Army in 1975 that involved punching a military police officer, as well as a letter of discharge that same year due to defendant's "poor attitude and lack of self- discipline."

II. Pretrial Issues

A. The Intrusion into Privileged and Confidential Defense Strategy Documents by the Sacramento County Sheriff's Department

On January 25, 1996, during jury selection, defense counsel reported to the court that Sacramento County jail personnel had entered defendant's cell while he was in court two days earlier and "read all of his notes which I asked him to prepare for this case which he has in his legal file." The prosecutor, Chief Assistant Attorney General George Williamson, responded that neither he nor Ridgely Lazard, the Lassen County District Attorney, was aware of this cell search and that they never received any information from it.

Six days later, defendant filed a motion to dismiss the indictment, alleging a violation of his right to counsel under the state and federal Constitutions and violation of various state statutes. The motion was supported by declarations from defense counsel and defendant himself, which asserted that counsel had provided defendant with copies of police reports, investigative reports, transcripts of his tape-recorded statements, and other discovery; that defendant had reviewed those materials and had made notes on them to assist in his defense; that defendant provided counsel with copies of these notes; that counsel had initiated investigations based on those notes and commentary; and that members of the Sacramento County Sheriff's Department had apparently read these defense materials during a cell search.

The defense called two witnesses to testify at the hearing on the motion to dismiss: defendant himself and Willy Percy, an inmate in the adjacent jail cell. Percy testified that he had observed jail officers enter defendant's cell and remain for "a good half an hour or more." Percy then announced that he did not wish to testify "as far as anything that [he] may have saw or didn't see"; that he had been told by a member of the sheriff's department "to stay out of this"; that he had been strip-searched and his own cell had been searched "since this has come about"; and that he was afraid of what would happen in his own criminal case as a result of testifying. Defendant testified that when he returned to his cell that day, he noticed that the cell had been searched, but not in a "normal" way. According to defendant, a normal cell search involves stripping the bed covers from the mattress and removing contraband styrofoam cups and extra clothing from the cell, but this time the covers were still on the mattress, his extra sock was still hanging on the sink, and the extra styrofoam cups had not been removed. The only items that seemed to have been disturbed were those on the table, including his legal folders, which were jumbled. The papers in the folders had been turned sideways or backwards, and some pages were bent.

The trial court made a factual finding that Sacramento County jail personnel had read defendant's privileged legal materials. But, in the absence of any evidence that jail personnel had communicated the confidential defense information to the Lassen County prosecution team, the trial court determined that defendant had failed to make out a prima facie violation of his Sixth Amendment right to counsel and denied the motion to dismiss. Chief Assistant Attorney General George Williamson reiterated that he and District Attorney Lazard were willing to take the stand and be asked if they had directed, authorized, or received any information from the search of defendant's cell-although, he added, "I don't think that we'll be able to help him"-but defendant did not accept the invitation.

Defendant renews his constitutional and statutory claims here. Although we certainly do not condone the intrusion on defendant's privileged materials by members of the Sacramento County Sheriff's Department, we agree with the trial court that the record does not establish reversible error.

We begin our analysis of defendant's Sixth Amendment claim with Weatherford v. Bursey (1977) 429 U.S. 545 (Weatherford). Weatherford was an undercover agent for the South Carolina State Law Enforcement Division who, along with Bursey and two other individuals, vandalized a local office of the Selective Service. In order to maintain Weatherford's undercover status, Weatherford was arrested and charged along with Bursey. Prior to trial, Weatherford was invited to meet with Bursey and his attorney on two occasions to discuss " `information, ideas, or suggestions as to [Bursey]'s defense.' " (Id. at p. 548.) At no time did Weatherford discuss or pass on to his superiors or to the prosecuting attorney any details or information he had obtained from those meetings. Weatherford did, however, testify at Bursey's trial as to his undercover activities and his eyewitness account of the vandalism. After Bursey was convicted, he initiated a civil rights action under 42 United States Code section 1983, alleging that Weatherford had communicated confidential defense information to his superiors and prosecuting officials, thereby depriving Bursey of his Sixth Amendment right to the assistance of counsel. (Weatherford, supra, 429 U.S. at pp. 548-549.)

The high court rejected, at the outset, the contention that "whenever conversations with counsel are overheard the Sixth Amendment is violated and a new trial must be had." (Weatherford, supra, 429 U.S. at p. 551.) Rather, "the constitutionality of the conviction depends on whether the overheard conversations have produced, directly or indirectly, any of the evidence offered at trial." (Id. at p. 552.) Given the district court's finding that the undercover agent had communicated nothing at all about the two defense meetings to anyone, there was no "realistic possibility of injury to Bursey or benefit to the State." (Id. at p. 558.) Accordingly, "[a]s long as the information possessed by Weatherford remained uncommunicated, he posed no substantial threat to Bursey's Sixth Amendment rights." (Id. at p. 556.)

Defendant concedes that the trial court here, like the district court in Weatherford, made an explicit finding that no privileged information had been communicated to the prosecution team. He attempts to distinguish Weatherford on the ground that the trial court's finding here was not supported by any direct evidence. Defendant is correct that the People made only an offer of proof that the prosecution team neither instigated nor benefited from the improper conduct of the Sacramento County Sheriff's Department and never actually called any witnesses to the stand to establish that fact. Yet it is also true, as the Attorney General points out, that the record is devoid of any indication that the sheriff's department communicated any confidential information to anyone.

The question, then, becomes which party bears the burden of proof concerning the communication of privileged information to the prosecution team. Is the burden on defendant to establish that the prosecution or its witnesses obtained confidential information? Or is the burden on the People to establish that no confidential information was communicated to the People or its witnesses? Once again, we find Weatherford instructive. In response to Justice Marshall's dissent, which complained about the difficulties of "[p]roving that an informer reported to the prosecution on defense strategy" (Weatherford, supra, 429 U.S. at p. 565 (dis. opn. of Marshall, J.)), the Weatherford majority rejected the contention that "federal or state prosecutors will be so prone to lie or the difficulties of proof will be so great that we must always assume . . . that an informant communicates what he learns from an encounter with the defendant and his counsel . . . ." (Id. at pp. 556-557, italics added.)

Defendant nonetheless insists that where any government agency intrudes on a criminal defendant's attorney-client relationship, a prima facie violation of the Sixth Amendment has been established. In his view, there can and should be a presumption that the offending agency has shared confidential information with the prosecuting entity, and points out that the high court has not explicitly resolved "the issue of who bears the burden of persuasion for establishing prejudice or lack thereof when the Sixth Amendment violation involves the transmission of confidential defense strategy information." (Cutillo v. Cinelli (1988) 485 U.S. 1037 (dis. opn. of White, J., from the denial of cert.).) Some federal circuit courts place the burden on defendant to establish prejudice. (Clark v. Wood (8th Cir. 1987) 823 F.2d 1241, 1249-1250; U.S. v. Steele (6th Cir. 1984) 727 F.2d 580, 586.) By contrast, some circuit courts find a per se violation of the Sixth Amendment once the defendant demonstrates that the prosecution has improperly obtained information concerning confidential defense strategy. (Shillinger v. Haworth (10th Cir. 1995) 70 F.3d 1132, 1141-1142; U.S. v. Levy (3d Cir. 1978) 577 F.2d 200, 209-210.) Taking an intermediate position are the circuit courts which hold that once the defendant has shown that confidential defense strategy was transmitted to the prosecution, the burden shifts to the prosecution to demonstrate there was no prejudice to the defendant from the disclosure. (U.S. v. Mastroianni (1st Cir. 1984) 749 F.2d 900, 907-908; accord, U.S. v. Danielson (9th Cir. 2003) 325 F.3d 1054, 1071-1074.)

Although these federal courts are divided as to whether the defendant or the prosecution has the burden of establishing prejudice arising from governmental intrusion on confidential attorney-client communications, there is no dispute as to the duty of the defense to establish, as part of its prima facie case, that confidential information was actually communicated to the prosecution team. Even those courts that find a per se constitutional violation when privileged information is communicated to the prosecution, and those courts that place the burden on the prosecution of rebutting prejudice in those circumstances, presuppose that the defendant has first established that privileged information was communicated to the prosecution team. (U.S. v. Danielson, supra, 325 F.3d at p. 1074 [the defense established that the privileged information "was told to, and preserved by, members of the prosecution team" and "that the prosecutor in charge of the case kept much (perhaps all) of this information in his private office"]; Shillinger v. Haworth, supra, 70 F.3d at pp. 1134-1136 [the defense established that the prosecution learned about confidential attorney- client discussions from a deputy sheriff and used these confidences at trial]; U.S. v. Mastroianni, supra, 749 F.2d at pp. 907-908 ["the defendant must prove that confidential communications were conveyed as a result of the presence of a government informant at a defense meeting" before the burden shifts to the government to demonstrate the absence of prejudice]; U.S. v. Levy, supra, 577 F.2d at p. 209 ["We think that the inquiry into prejudice must stop at the point where attorney-client confidences are actually disclosed to the government agencies responsible for investigating and prosecuting the case" (italics added)]; see also Briggs v. Goodwin (D.C. Cir. 1983) 698 F.2d 486, 493, fn. 23 ["appellants have demonstrated that the informant may have passed information concerning their case to the prosecution"], vacated on other grounds (D.C. Cir. 1983) 712 F.2d 1444; People v. Knippenberg (Ill. 1977) 362 N.E.2d 681, 682-683 [the prosecution introduced at trial the defendant's statements to the defense investigator]; Manley v. State (Nev. 1999) 979 P.2d 703, 706 [the prosecution introduced at trial the defendant's statements to counsel]; State v. Quattlebaum (S.C. 2000) 527 S.E.2d 105, 107 [the investigator and the prosecuting attorney eavesdropped on confidential attorney-client conversations].)*fn10

Defendant made no such showing here. The agency responsible for intruding on defendant's relationship with his attorney (the Sacramento County Sheriff's Department) was completely unrelated to the agency actually prosecuting defendant (the Lassen County District Attorney's Office). Indeed, defendant makes no allegation that the Sacramento County Sheriff's Department was any part of the prosecution team in this case, nor does he cite even a single authority for his contention that any government agency that intrudes improperly on attorney-client communications automatically should be presumed to have communicated confidential information to the agency or agencies that are actually involved in the prosecution. (Cf. In re Pratt (1980) 112 Cal.App.3d 795, 857 ["there is no showing whatsoever, short of sheer speculation and conjecture on the part of defense counsel, that the prosecuting attorney in the instant case either was aware of the FBI informants in defense camp or received or used any of the knowledge obtained by FBI Cointelpro informants concerning defense tactics or strategy" (capitalization omitted)].)

We have already recognized that " `information possessed by an agency that has no connection to the investigation or prosecution of the criminal charge against the defendant is not possessed by the prosecution team' " with respect to the prosecution's duty to disclose exculpatory information under the federal constitution and state discovery rules. (In re Steele (2004) 32 Cal.4th 682, 697.)

Similarly, we find that misconduct by a government agent who has no involvement in the investigation or prosecution of the criminal charge against the defendant cannot automatically be imputed to the prosecution team for purposes of the Sixth Amendment. (Cf. Steele, supra, at p. 701 ["Prison officials did not investigate or help prosecute any of these crimes. Thus, the prosecution was generally not responsible for information prison officials possessed that might help the defense"].) Whatever civil remedy defendant may have had against the culpable members of the Sacramento County Sheriff's Department, it seems plain that, in the absence of evidence that confidential information was actually conveyed to the prosecution team, defendant has no claim that his Sixth Amendment rights were violated. (People v. Jenkins (2000) 22 Cal.4th 900, 1001- 1003 [court-ordered searches of the defendant's cell, including his legal materials, did not violate the Sixth Amendment where no material observed by sheriff's deputies was introduced at trial or used by the prosecution against the defendant]; People v. Hardy (1992) 2 Cal.4th 86, 181 [the defense allegation that some legal papers were viewed by jail officials during a lockdown and search did not establish a Sixth Amendment violation where "there was no evidence the search was instigated by the prosecutor, or otherwise designed to enhance the prosecution's case"]; see generally Jenkins, supra, 22 Cal.4th at p. 1002 ["conditions of confinement that have not actually affected the defendant adversely are not grounds for reversal of a conviction"].)*fn11

Defendant also asserts that "[a]n inevitable consequence" of the intrusion by the sheriff's department was an "enduring fear" concerning the privacy of his communications with counsel, which impaired his federal right to the effective assistance of counsel. Under our case law, however, a defendant's inability to consult with counsel or to assist in his defense must appear in the record. (People v. Jenkins, supra, 22 Cal.4th at pp. 1002-1005.)

Here, defendant not only fails to identify any instance in which his relationship with counsel was impaired (or, indeed, to claim that more direct methods of communicating with his attorney were inadequate), but he was offered the opportunity, at the time the trial court denied his motion to dismiss, to renew his claim of error and submit additional evidence, but never did so. (People v. Cantrell (1992) 7 Cal.App.4th 523, 551.) Because his claim still is not supported by any reference to the record, we must reject it. (People v. Jenkins, supra, 22 Cal.4th at p. 1005.)

Defendant fares no better with his claim that his right to counsel under article I, section 15 of the California Constitution was violated. He relies principally on Barber v. Municipal Court (1979) 24 Cal.3d 742 (Barber), which considered the proper pretrial remedy when an accused's right to counsel was denied by the actions of an undercover police officer who posed as a co-defendant, attended the attorney-client conferences of the accused, and communicated privileged information to his superiors. (Id. at pp. 745, 749.)

Barber declined to follow Weatherford, noting that "the right to privacy of communication between an accused and his attorney has consistently been grounded on California law" (Barber, supra, 24 Cal.3d at p. 755) and that "the issue of remedy for a violation of the right to counsel in a criminal case was not before the court in Weatherford" since "the court found there had been no violation of the federal Constitution at all." (Id. at p. 758, fn. 19.)

Barber determined that a pretrial remedy barring the prosecution from relying on any evidence obtained by the undercover officer or the fruits thereof would be inadequate under the facts presented, for several reasons.

First, the record demonstrated that the petitioners had been prejudiced in their ability to prepare their defense in that they had become "[d]istrustful of each other and fear[ful] that any one of them might also be an undercover police officer" and thus refused to participate or cooperate in their defense, which "resulted in counsel's inability to prepare adequately for trial." (Barber, supra, 24 Cal.3d at p. 756.)

Second, we were concerned that it would be easy for the undercover officer, as a prosecution witness, to formulate answers and shade testimony with knowledge of the confidential attorney-client communications, but difficult for a defendant to prove the influence of those confidential communications on the witness's testimony. (Id. at p. 757.)

Third, we noted that the accused would be placed "in a Catch- 22 situation" because the full contents of the privileged conversations would need to be disclosed in order for the court to understand what needed to be protected. (Id. at p. 758.)

The circumstances of this case are distinguishable from those in Barber. As stated above, the record contains no evidence that defendant was prejudiced in the preparation of his defense. In addition, no one in the Sacramento County Sheriff's Department was involved in the investigation or prosecution of this case or even testified at defendant's trial. And the trial court could readily have determined what confidences were compromised (because defendant and his attorney had copies of what documents jail personnel had reviewed) and whether disclosure of these confidences could have disadvantaged the defense, but defendant never presented the documents to the trial court for its review or made them part of the record on appeal. (People v. Towler (1982) 31 Cal.3d 105, 122 (Towler).)

Defendant is correct that the record does not reveal "whether the prosecution team-and its witnesses-received information which derived from the government's intrusion into the confidential heart of his defense," but it was defendant who failed to make that record in the first instance. (See People v. Benally (1989) 208 Cal.App.3d 900, 909.)

In that respect, Towler, not Barber, is the closer analogue. In Towler, the district attorney entered the defendant's cell and read a synopsis of the defense prepared by the defendant at counsel's request. The confidential document was never introduced into evidence or made part of the record on appeal, and the defendant never made a motion to suppress the document or to dismiss the case. (Towler, supra, 31 Cal.3d at p. 121.)

We found the record "totally inadequate to determine whether or not dismissal would be an appropriate sanction," inasmuch as "it might have been readily apparent from an examination of the document whether or not the prosecution was actually aided by the information and whether some remedy short of dismissal would be adequate to protect defendant's rights." (Id. at p. 122; see also People v. Fulton (1984) 155 Cal.App.3d 91, 100 [quoting Towler].)

Similarly, here, even if confidential information contained in defendant's notes had been shared with the prosecution, the record here (which likewise does not contain a copy of the documents reviewed by the sheriff's department) is insufficient to demonstrate that defendant was actually prejudiced. (Towler, supra, 31 Cal.3d at pp. 122-123.)

Having already rejected defendant's claims that his federal and state constitutional right to counsel were violated, we have no difficulty rejecting defendant's claim that the sheriff's department's misconduct deprived him of his right to due process. If, as discussed above, there is no evidence that the cell search had any effect on this trial, it follows that the search could not have undermined the fundamental fairness of the trial. (People v. Jenkins, supra, 22 Cal.4th at pp. 1002-1003 [rejecting due process claim based on "allegedly disruptive searches of the defendant's cell and legal materials"].)

Finally, we reject defendant's claim that his conviction must be reversed because of asserted violations of state statutes that protect the right to communicate confidentially with his attorney, such as Evidence Code sections 952 and 954, Code of Civil Procedure sections 2018.020 and 2018.030, and Penal Code section 2601, subdivision (b). Even assuming that one or more of these provisions was violated, defendant still has the burden to show a miscarriage of justice. (Cal. Const., art. VI, § 13.) He has made no effort to do so, and the foregoing discussion shows that he cannot.

B. Shackling of Defendant During a Portion of Voir Dire

There is no dispute that defendant was shackled unjustifiably during a portion of the voir dire. Defendant contends that the error violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution and article I, sections 7, 15, 16, and 17 of the state Constitution and requires reversal of the judgment.*fn12

In our view, the record fails to demonstrate the restraints were visible to the jury and, even if they were, any error in shackling defendant during a portion of the voir dire was harmless beyond a reasonable doubt.

At a pretrial hearing on January 16, 1996, the trial court recounted the discussion that had occurred in chambers concerning "the issue of restraints in this matter." The court stated that it "intends to defer to the Sheriff" and that the assigned deputy had indicated "that no restraints will ever be shown or disclosed to the jury, the jury will never see that." The court added that if a belly chain were used during the trial, "we will dispense with the normal opening so that [defendant] is not in any way embarrassed, or shown not to show respect to the Court."

Defense counsel requested that defendant not be in restraints "during the course of the trial" because counsel feared that, no matter what efforts were made to conceal the restraints from the jury, "eventually in a case that is going to take a little while, the jury is going to recognize the fact that he's in restraints," and because defendant had no criminal history that would justify restraints. The court addressed only the first of these objections:

"If the Court felt in any way the jury would become aware of his restraints, I would be very concerned . . . ; but I am satisfied they will not be.

[¶] I have tried zillions of cases with and without restraints, and I never had an instance in which the jury indicated that they were aware of the use of the type of restraints that we use here." The minute order from that date stated, "The defendant will be seated in a security chair with no restraints visible to the jury."

For the first two days of jury selection, the record does not indicate what restraints, if any, were used in court. On the third morning, the court acknowledged that it had "certainly" erred in deferring to the sheriff's department on the issue of restraints, but stated that "[o]f course we haven't had the use of restraints yet in front of this jury at all, so I suppose that the problem is inapposite up to now." When the bailiff corrected the court and advised that defendant was using a belly chain "right now," the court declared a need for a hearing, at which it would make factual determinations concerning the need for restraints, and proposed to hold the hearing later that morning, since the restraint "is still invisible." Defense counsel objected to the latter characterization, ...


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