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People v. Verdugo

August 2, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
NATHAN VERDUGO, DEFENDANT AND APPELLANT.



Los Angeles County Super. Ct. No. BA105622, Curtis B. Rappé.

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

Defendant Nathan Verdugo was convicted of the first degree murders of Yolanda Navarro and Richard Rodriguez. (Pen. Code, §§ 187, 189.)*fn1 The jury also found true the multiple-murder special-circumstance allegation, as well as allegations that defendant personally used a firearm, i.e., a shotgun, in each crime. (§§ 190.2, subd. (a)(3), 12022.5, former subd. (a).) At the penalty phase, it returned a death verdict, and the trial court entered a judgment of death. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); Pen. Code, § 1239, subd. (b).) We affirm the judgment.

I. Factual Background

A. Guilt Phase

1. Prosecution Evidence

a. Events on October 22 and 23, 1994

On October 22, 1994, defendant went to a Halloween party at the home of Hector Casas in the Glassell Park neighborhood of Los Angeles. The party was well attended, and guests included Lisa Ruvalcaba, Raymond Muro, Paul Escoto, defendant's friend Michael (Mike) Arevalo, and victims Rodriguez and Navarro. Defendant wore wire-rimmed glasses and drove a black Honda CRX, which had tinted windows and a loud exhaust system.

At one point Lisa Ruvalcaba -- who resembled victim Yolanda Navarro -- attacked Michael Arevalo, hitting him in the face with a beer bottle. Arevalo, who was bleeding and enraged, yelled, "Fucking bitch." He had to be restrained from retaliating by a group of approximately seven people. Someone in the group yelled, "Shoot the bitch." Arevalo was taken to the hospital, where he received over 50 stitches.

After the attack, defendant left the party and ran to his car. Raymond Muro followed. Defendant opened his trunk and showed Muro a pump-action shotgun with a pistol grip. Defendant told Muro he was going to "get that girl" or "get those people." Muro responded, "just calm down,... there is no need for that." Defendant then put the shotgun away, and he and Muro returned to the party.

Rodriguez and Navarro left the party in Rodriguez's burgundy Honda Civic. Another car, resembling defendant's black Honda CRX, pulled out and followed them.

About 2:00 a.m., Alex Quintana of the Los Angeles Fire Department heard voices and someone running outside the window of the fire station at Huntington Drive and Monterey Road. Firefighter Donald Jones heard an argument. Quintana then heard what sounded like a shotgun blast. About 10 seconds later he heard a second shotgun blast, and three to five seconds after that a third blast. Quintana then heard a woman "begging for her life." She said: "No, no, please don't do it. Please, please, don't." Quintana heard another shotgun blast. He looked out of the window and saw a man "standing over the girl holding a shotgun" six to 12 inches from the woman's head. The woman was facedown, lying on her side on the sidewalk. The man inserted another round into the chamber of the shotgun, which Quintana identified by sound as a "pump action." The man then shot the woman in the head.

Firefighter Jones saw the gunman, who he said looked like defendant, run to a car with a louvered rear window. Firefighter Quintana saw a black Honda with tinted windows and a loud exhaust system "come out from around the fence and head north."

The firefighters left the station. They found two bodies: the woman whose death Quintana had witnessed (later identified as Navarro) and a man (later identified as Rodriguez). Rodriguez's car was parked, but it was still running, with its lights on. It had sustained collision damage. About a car's length behind this vehicle, Firefighter Jones found a pair of wire-rimmed eyeglasses on the ground. The lenses in these glasses matched a prescription defendant had received about a year earlier. Also found in the area were five 12-gauge Fiocchi shotgun shells. There were skid marks behind the vehicle, and the distance between the skid marks matched the wheelbase on defendant's Honda CRX. The marks had been made by a front-wheel-drive car such as defendant's.

The firefighters blocked the streets with their fire engines. As they did so, Jonathan Rodriguez*fn2 arrived at the scene and told firefighters that he thought the deceased woman on the sidewalk was his sister. Firefighter Quintana questioned his identification because part of the woman's face was missing. Jonathan called his mother from the fire station and asked her to page his sister. A pager lying next to the woman began vibrating.

The autopsies showed that Navarro and Rodriguez died from gunshot wounds to the head, inflicted by a weapon held two to four feet away. Navarro suffered a single gunshot wound. Rodriguez suffered a gunshot wound to the head and three gunshot wounds to his foot and leg; the latter were consistent with being shot while attempting to run away. Toxicology analysis of Rodriguez's blood did not show the presence of alcohol or drugs.

Michael Arevalo was discharged from the hospital between 2:20 and 2:40 a.m. on October 23. He was taken back to Hector Casas's house. Arevalo, Arevalo's father, Arevalo's father's girlfriend, and Raymond Muro then drove to Muro's house, which was located directly in front of Arevalo's father's house. As they pulled into the carport, Muro saw defendant. Muro heard defendant tell Arevalo that "the situation had been handled," and Arevalo and defendant embraced. Defendant spent the night at Muro's house.

In the morning, defendant, Arevalo, and Muro went out to breakfast. Defendant was wearing sunglasses that were different from the wire-rimmed glasses he had worn to the party the night before. While they were at the restaurant, Arevalo's mother arrived and spoke with Arevalo privately, telling him about the double homicide. When Arevalo returned to the table, he relayed this information to defendant and Muro.

b. Defendant's Statements

Donna Tucker, who was married to defendant's brother Michael, had known defendant since he was three years old. In the summer or fall of 1993, defendant told Tucker that he and Arevalo were like brothers and that they would do anything for one another.

On October 23, 1994, in the morning of the murders, defendant called Tucker, who lived about a quarter of a mile from the murder scene. Defendant excitedly asked Tucker: "Did you hear the shots in the neighborhood? My friend Mikey told me that there were shots fired in your neighborhood." Sometime between October 23 and November 2, Tucker asked defendant to help move items out of storage to her house. Defendant refused, saying he could not "come into the area" because "[i]t was too dangerous."

Tucker testified that on November 2, 1994, defendant was working with Tucker and his brother Michael Verdugo at a construction site in Van Nuys. Tucker let defendant use the phone to return a page from his brother Paul. Paul told defendant that the police wanted to speak with him about a fight at a party. Defendant then called the police.

During this telephone conversation, Tucker heard defendant say that he had left the party early and had not seen a fight. He said that he was calling from Las Vegas, where he was working on a construction site, and that he could not give his address or telephone number. Detective Andrew Teague of the Los Angeles Police Department testified about the same telephone conversation. He said that he received a call from defendant, who said he was living in Las Vegas and working for "TG&E Construction Company." Defendant sounded nervous during the conversation and refused to give Teague his address or telephone number.

After defendant completed the telephone conversation, he told Tucker that on his way to Magic Mountain he "killed two guys." He said the homicides occurred after he left a party. Gang members chased his car and crashed into him at Huntington Drive and Monterey Road. Then a man with tattoos from "head to toe" shot at him. Defendant said he shot the man because it "was him or me." He said there was "a girl" with the man, and he "shot her because she saw everything." Defendant said that the police would be after him and that he was going to flee.

On November 9 or 10, 1994, Tucker and defendant met so she could return some equipment from the November 2 construction job. Defendant told Tucker that he could not go to her neighborhood, so they met in a Bank of America parking lot in South Pasadena. At this meeting, defendant said that the police and the Federal Bureau of Investigation were after him, and he kept looking around. Tucker showed defendant a newspaper story about the murders. She asked him, "Is this the one you were talking about?" Defendant read the article and replied, "Yeah, that's the one," but he added, "that's not the way it happened." He then gave a description of the killings that was similar to the one he had given on November 2 and said about the killings that "he got a rush off of that, that it felt really good." During this conversation, defendant was smiling and seemed excited. Defendant said that his brother Paul helped him get rid of his bloody clothes and the shotgun.

At some point before defendant was arrested, Tucker showed him a different newspaper article about the murders and asked him if he had committed them. Defendant said he had. Tucker asked him whether he was sorry, and he said he was not. Defendant said that the firefighters "in the upper floors saw him, that his fingerprints were on the shotgun shells, [and that] they had his eyeglasses." He also said that, contrary to what the newspaper article said, there was no traffic at the time of the murders. Defendant told Tucker that he had been in Mexico, but was forced to return when a local newspaper "show[ed] him with a beard." Defendant then wrote a letter to his sister Pauline, which Tucker agreed to send. Defendant, who was shaking, wrote that he was sorry for what he had done, that things did not look good for him, and that he would wait to see her.

Tucker subsequently received another letter that defendant had written to Pauline, postmarked April 14, 1995. In the letter, defendant said: "The [p]olice have shotgun sh[e]lls that have my prints on them and a pair of glass[es] that I have on in the photo." He also enclosed a copy of a newspaper article about the murders.

A relative of defendant's, Juan Carlos Enciso, made a tape-recorded statement to police on December 15, 1994. This statement was played for the jury. Enciso told police that defendant had told him during the first week of November 1994 that he had recently "bl[o]w[n] away" two people. Defendant claimed there had been a chase on the freeway, that the people chasing him were shooting at him, and that he had to kill them or be killed.

In addition, Detective Teague and Detective Charles Markel of the Los Angeles Police Department testified about an untaped interview with Enciso. Enciso said that defendant had told him that his Honda CRX had "crashed" during the shooting incident and that it needed to be repaired.

At the time of his arrest, defendant was carrying a letter he had written to his sister Pauline, telling her to "[b]urn all paper from me."

c. Other Evidence Linking Defendant To The Murders

In November or December 1994, defendant, defendant's uncle Daniel Cuevas, and defendant's brother Paul Verdugo took defendant's Honda CRX to a shop to be painted yellow. After the painting was completed, the shop called Cuevas four or five times, and he in turn contacted defendant's brother Paul, but the car was never picked up. On April 15, 1995, police located and impounded the vehicle.

The murder weapon was not introduced at trial, but the prosecution introduced evidence that on September 19, 1990, defendant purchased two Mossberg 12-gauge shotguns from a Big 5 Sporting Goods store. On April 16, 1992, he reported them stolen to the police. On January 17, 1993, police recovered one of the shotguns, which had a pump action, and on January 28, 1993, they released it to defendant.

Defendant was arrested on April 27, 1995. He was found hiding in a secret compartment behind the linen closet in his father's home.

2. Defense Evidence

Defendant testified that he was born on September 5, 1972, and had no criminal record. He completed the 10th grade in high school. He denied murdering Navarro and Rodriguez and claimed that Raymond Muro and Paul Escoto had committed the murders.

Defendant testified that in February 1994 he was stabbed, and his Honda CRX was damaged. After this incident, he began carrying a shotgun in his car.

Defendant admitted that Arevalo was a good friend but, contrary to the prosecutor's assertion, defendant denied Arevalo was as "close as being a brother" or that defendant "would do anything for him." Although defendant had known Arevalo as a child, they had become friends less than a year before defendant was stabbed.

Defendant testified that he and Arevalo attended the Halloween party on the night of the murders, at which Arevalo was hit with a bottle. Defendant was in the kitchen at the time, and Arevalo was outside. Defendant did not see Arevalo after he was hit, and defendant left the party because he did not want to get involved. He found the driver's door to his car open and noticed that his shotgun and a jacket were missing. Also missing was a key to his vehicle, which he said he had hidden under the fender. A pair of defendant's eyeglasses, similar to the ones he had worn that night, were in the missing jacket. Defendant testified that he had shown the hidden car key to several individuals, including Arevalo, Muro, and Escoto.

Defendant stated that he returned to the party after discovering his car open and the items missing. Defendant believed that Arevalo had taken the shotgun, because Arevalo knew about the hidden key and had taken defendant's shotgun out of the car on another occasion. In addition, he heard Arevalo shout at the party: "Fuck you, bitch. You're going to get it." Defendant could not locate Arevalo at the party and went to Arevalo's father's house looking for him. On cross-examination, defendant said that Arevalo arrived at the house shortly after defendant,*fn3 accompanied by his father, his father's girlfriend, and Muro. He said that Muro was "jittery." Defendant spent the night at Muro's house. He said that Muro acted nervous, could not sleep, and drank heavily.

Defendant testified that later the same morning, defendant, Arevalo, and Muro went out to breakfast. Arevalo's mother arrived, and Arevalo left the restaurant to speak with her. Defendant told Muro that he believed Arevalo had taken defendant's shotgun, and Muro said: "No. Me and Paul did." Muro also said he and Escoto "took care of things." Defendant asked Muro what he meant, and Muro, who had been a Marine, said that "his training paid off." Defendant then said: "I don't care what you did. I just want my gun back."

Defendant testified that he did not report the shotgun theft to law enforcement officials because he was concerned about the risk to his family. He lied to Detective Teague about being in Las Vegas, because he did not want to get involved regarding the events that had taken place at the Halloween party. He said that his family had to move after he was stabbed, implying that he lied because he did not want to go through a similar situation again. Defendant said that he was afraid Arevalo and his friends would hurt defendant and his family.

Defendant testified that he fled when he learned he was a suspect in the murders. He changed his appearance, used aliases, and stayed in motels. He said that he lost the wire-rimmed glasses he had worn to the Halloween party.

Defendant admitted that he lied to police during an interview after his arrest. He testified: "I'm a liar, a storyteller, but I'm not no killer."

Defendant also testified that he never got along with Donna Tucker. He said that he never spoke with Tucker and that she had lied when she testified about conversations between herself and defendant after the murders.

Defendant discussed defense exhibit B, which was a pair of eyeglasses. He said that they resembled, but were not, the pair of eyeglasses that he wore to the Halloween party. Defendant explained that he asked someone to purchase the exhibit B eyeglasses while he was in jail and then falsely informed his attorney that they were the glasses he had worn to the party.*fn4 He said he lied about the eyeglasses because others had lied. Defendant said: "I panicked, felt like I was being framed, no one was going to believe me, that I lost the glasses, so I had those purchased."

Mary Alice Baldwin, defendant's sister, testified that defendant was born in Pasadena. Their mother died in 1982, when defendant was a boy, and Baldwin, who was 15 years older than defendant, assumed a maternal role in his life. Baldwin testified that defendant had a learning disability that affected his comprehension of English and his ability to spell.

Baldwin further testified that defendant told her around Thanksgiving 1994 that "Ray" and "Paul" had committed the murders after taking defendant's shotgun. They had also threatened to kill defendant, and defendant feared they would kill his family. Baldwin further testified that defendant's Honda CRX did not have louvers on the back window.

The defense also presented expert testimony describing the effect to a human head when it receives a shotgun wound at close range.

3. Prosecution Rebuttal Evidence

Mary Alice Baldwin, defendant's sister, testified about statements defendant had made to her, which she had earlier related to detectives. Defendant had told her of a time when he was driving home on the Long Beach freeway and "they were shooting at me." Defendant had told her that he tried to get away.

Detective Markel testified about a telephone conversation he had with Baldwin on May 23, 1995, in which she described the statements defendant had made to her. Baldwin told Markel that she had seen defendant about a month earlier. At that time, defendant told her about a time when he was going home on the Long Beach freeway and certain individuals shot at him and it was either "him or me."

Detective Teague testified that louvers could be applied to the rear window of a car, either by drilling holes into the metal of the vehicle or by using double-sided adhesive. The latter method allowed the louvers to be easily removed, and the glue also could be removed with a solvent.

B. Penalty Phase

1. Prosecution Evidence

Relatives of the victims testified about the effect the murders had on their lives. The jury heard testimony from Rodriguez's mother, two cousins, and his aunt and uncle, and also from Navarro's mother, sister, and brother.

2. Defense Evidence

William Wright testified that he and defendant had been friends for about 23 years. He met defendant when defendant was between five and seven years old, at which time Wright was 17 or 18 years old. As a child, defendant was quiet, very respectful, and industrious. He was also extremely close to his family. Wright had never seen defendant bully anyone or known him to be violent. Wright did not know any of the details of defendant's crimes. He offered his opinion that prosecution witness Donna Tucker was not a credible person. He also testified that, if defendant were allowed to live, he would be productive in prison.

Michael Verdugo, defendant's brother, testified that he was 12 to 13 years older than defendant. He and defendant were close, as was defendant to other family members. Michael stated that defendant worked for him on construction sites. Defendant followed directions well and was good with his hands. Michael also said that defendant avoided criminal street gangs.

Mary Alice Baldwin, defendant's sister, testified that she was 23 and defendant was seven when their mother died. After his mother's death, defendant became quieter and grew closer to Mary Alice. She testified that defendant had difficulty understanding his school work and, in particular, learning to spell. She also stated that defendant was always very helpful, loving, and friendly. She did not believe he was guilty of the murders.

II. Discussion

A. Guilt Phase Issues

1. Denial of Keenan Counsel

Defendant, who was represented by retained counsel, contends that the trial court erred under state law by refusing to appoint Keenan counsel and that the error violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution, and article I, sections 7 and 15 through 17, of the California Constitution.*fn5 (See Keenan v. Superior Court (1982) 31 Cal.3d 424, 430 (Keenan) [trial court has discretion under statutes governing appointment of counsel to appoint a second attorney to assist in the defense of a capital case].) We disagree.

Defendant was represented by retained counsel George Hernandez. Before trial, he filed a confidential application for Robert Beswick to be appointed as second counsel under section 987, subdivision (d). The trial court denied the motion for second counsel, stating (1) that "[t]here is nothing presented to this Court that would indicate the agreement between defendant and counsel was for anything less than full representation of the defendant during all proceedings," and (2) that Hernandez's declaration was "insufficient" in that "[t]here appear to be neither specific facts nor complexity of issues that require such appointment."

Section 987, subdivision (d), provides in relevant part: "In a capital case, the court may appoint an additional attorney as a co-counsel upon a written request of the first attorney appointed. The request shall be supported by an affidavit of the first attorney setting forth in detail the reasons why a second attorney should be appointed." Even assuming without deciding that section 987, subdivision (d), authorized the trial court here to appoint second counsel, the trial court did not abuse its discretion in finding defense counsel Hernandez's declaration insufficient to justify such an appointment.

" 'The initial burden... is on the defendant to present a specific factual showing as to why the appointment of a second attorney is necessary to his defense against the capital charges.' (People v. Lucky (1988) 45 Cal.3d 259, 279.) An 'abstract assertion' regarding the burden on defense counsel 'cannot be used as a substitute for a showing of genuine need.' (Id. at p. 280; People v. Jackson (1980) 28 Cal.3d 264, 287 [no abuse of discretion in denying application for second counsel when counsel merely relied on the circumstances surrounding the case].)" (People v. Staten (2000) 24 Cal.4th 434, 447 (Staten).) In addition, " '[t]he appointment of a second counsel in a capital case is not an absolute right protected by either the state or the federal Constitution.' " (People v. Lancaster (2007) 41 Cal.4th 50, 71.) We review the trial court's decision denying a request to appoint second counsel for abuse of discretion. (People v. Roldan (2005) 35 Cal.4th 646, 688 (Roldan).)

Here, in his declaration, Hernandez stated that the "facts and issues involved in this case are sufficiently complex to necessitate the appointment of second counsel," that counsel anticipated "many lengthy pre-trial motions, hearings and writs," that investigation of the guilt phase would cover "an extensive period extending both before and after the date of the crime," that the penalty issues were "highly involved and complex" and that investigation into these issues should "be commenced without delay." Hernandez also specifically requested the appointment of Robert Beswick, whose "defense talents compl[e]ment my skills,... his strengths offset my weaknesses, and... his perceptions of evidence and tactics are sufficiently divergent from my own to provide both a broader and more objective viewpoint from which to make defense decisions and to formulate trial strategy."

Counsel's declaration did not, however, provide any specific information justifying appointment of second counsel. Thus, unlike in Keenan, on which defendant relies, counsel did not state that he needed to interview more than 100 witnesses, that the case involved complicated scientific and psychiatric testimony, that trial would occur soon after counsel was appointed, or that other criminal cases were pending against defendant and that the prosecution intended to rely on evidence related to those cases here. (See Keenan, supra, 31 Cal.3d at pp. 432-434.) Rather, counsel's declaration is comparable to those we have found inadequate in other cases. (See, e.g., Staten, supra, 24 Cal.4th at p. 447 [the defendant's application consisted of "little more than a bare assertion that second counsel was necessary" and "presented no specific, compelling reasons"].) Nor does our review of the record substantiate defendant's assertion that the case "was extremely complex."

Defendant further contends that he was prejudiced by the denial of his application for appointment of second counsel, because "the instant case was trial counsel's first capital trial" and counsel "lacked the ability to properly object or to conform his conduct to that expected of capital counsel, as evidenced by the innumerable reprimands and sanctions imposed by the trial court." To the extent defendant is arguing that the inexperience of retained counsel in trying capital cases is a sufficient reason for appointment of second counsel, this argument was not presented to the trial court, and hence cannot be raised on appeal. (Roldan, supra, 35 Cal.4th at p. 688, fn. 13.)

2. Alleged Failure To Disclose Brady And Section 1054.1 Material

Defendant contends that the prosecution engaged in prejudicial misconduct by failing to disclose material it was required to provide to the defense under Brady v. Maryland (1963) 373 U.S. 83 (Brady) and section 1054.1. Defendant asserts a violation of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution, article I, sections 7 and 15 through 17, of the California Constitution, and state statutory rights. We disagree.

"Pursuant to Brady, supra, 373 U.S. 83, the prosecution must disclose material exculpatory evidence whether the defendant makes a specific request (id. at p. 87), a general request, or none at all." (In re Brown (1998) 17 Cal.4th 873, 879.) "For Brady purposes, evidence is favorable if it helps the defense or hurts the prosecution, as by impeaching a prosecution witness. [Citations.] Evidence is material if there is a reasonable probability its disclosure would have altered the trial result. [Citation.] Materiality includes consideration of the effect of the nondisclosure on defense investigations and trial strategies. [Citations.] Because a constitutional violation occurs only if the suppressed evidence was material by these standards, a finding that Brady was not satisfied is reversible without need for further harmless-error review. [Citation.]" (People v. Zambrano (2007) 41 Cal.4th 1082, 1132-1133 (Zambrano); see also Cone v. Bell (2009) 556 U.S. __, __ [129 S.Ct. 1769, 1782-1783].)

Section 1054.1 (the reciprocal-discovery statute) "independently requires the prosecution to disclose to the defense,... certain categories of evidence 'in the possession of the prosecuting attorney or [known by] the prosecuting attorney... to be in the possession of the investigating agencies.' " (Zambrano, supra, 41 Cal.4th at p. 1133.) Evidence subject to disclosure includes "[s]tatements of all defendants" (§ 1054.1, subd. (b)), "[a]ll relevant real evidence seized or obtained as a part of the investigation of the offenses charged" (id., subd. (c)), any "[r]elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts" (id., subd. (f)), and "[a]ny exculpatory evidence" (id., subd. (e)). "Absent good cause, such evidence must be disclosed at least 30 days before trial, or immediately if discovered or obtained within 30 days of trial. (§ 1054.7.)" (Zambrano, at p. 1133.)

Upon a showing both that the defense complied with the informal discovery procedures provided by the statute, and that the prosecutor has not complied with section 1054.1, a trial court "may make any order necessary to enforce the provisions" of the statute, "including, but not limited to, immediate disclosure,... continuance of the matter, or any other lawful order." (§ 1054.5, subd. (b).) The court may also "advise the jury of any failure or refusal to disclose and of any untimely disclosure." (Ibid.) A violation of section 1054.1 is subject to the harmless-error standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (Zambrano, supra, 41 Cal.4th at p. 1135, fn. 13.)

a. Prosecutor's Notes Regarding Raymond Muro Interview

(1) Factual Background

Raymond Muro testified that after the Halloween party, he went home with Arevalo, Arevalo's father, and Arevalo's father's girlfriend. As they pulled into a carport by Muro's house, Muro saw defendant. Arevalo and defendant had a conversation. Without objection, Muro testified that defendant told Arevalo that "the situation had been handled" and that Arevalo and defendant embraced.

After a recess, defense counsel informed the court that he had spoken to the prosecutor about Muro's testimony, asking if defendant's statement "the situation had been handled" was in a written report. The prosecutor told the court that his interview with Muro had taken place a few months earlier and that he had told defense counsel about the statement at that time, either in court or in a telephone conversation. The prosecutor said, "I told him that the only thing different that I recall from the interview was this new statement." The prosecutor added that "the only notes taken of the interview were notes that I took myself that I have combined with questions that I have been asking the witness in court." The trial court ordered the prosecutor to give defense counsel a copy of these notes, after redacting any attorney work product. The prosecutor agreed to do so.

Defense counsel suggested that the court had a "couple of remedies" for the discovery violation, one of which was to strike the statement. The court said it did not see any harm to defendant from failure to disclose the notes, because the prosecutor had told defense counsel the substance of the statement. Defense counsel said: "[H]e may have, your honor.... I don't know if he has anything in his notes where he told me that." The court found no discovery violation, but the court offered to recess until the following afternoon, so that defense counsel would have additional time to ...


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