Deliberate failure to collect evidence violates due process

People v. Fultz (Cal. Ct. App., Sept. 27, 2021, No. C088566) 2021 WL 4398649, at *1–2

Summary: Based on the government’s conduct throughout the investigation and trial, the trial court rejected the prosecution’s innocent explanations for the constitutional violations. The trial court then dismissed the case against Fultz finding there was no possibility he could receive a fair trial considering the nature of the evidence against him and the violations surrounding his accomplices’ pleas and interviews.

This People’s appeal concerns the gamesmanship the prosecutor can engage in during a criminal prosecution before that gamesmanship is so unconstitutional the pending murder charge against a defendant must be dismissed because no fair trial could possibly be held. The standard for dismissal is high. (United States v. Morrison (1981) 449 U.S. 361, 365, 101 S.Ct. 665, [66 L.Ed.2d 564, 568-569] [“Our approach has thus been to identify and then neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel and a fair trial. The premise of our prior cases is that the constitutional infringement identified has had or threatens some adverse effect upon the effectiveness of counsel’s representation or has produced some other prejudice to the defense. Absent such impact on the criminal proceeding, however, there is no basis for imposing a remedy [of dismissal] in that proceeding, which can go forward with full recognition of the defendant’s right to counsel and to a fair trial”].)

Here, the trial court believed no fair trial could be had because the prosecution placed co-defendants  Devencenzi and Philbrook under a strong compulsion to testify to specific facts, thereby tainting their testimony beyond redemption. (People v. Medina (1974) 41 Cal.App.3d 438, 449-456, 116 Cal.Rptr. 133.) The court of appeal rejected that conclusion because the record demonstrates the trial court believed a fair trial could be had in the absence of the Medina error, The court of appeal reversed the judgment and remanded the matter to the trial court to again tailor relief to neutralize the taint resulting from the prosecutor’s other misconduct.

Facts: Isaac Zafft was shot to death when a marijuana grow house he was sleeping in, was robbed. Fultz’s involvement is based on information provided by his accomplices, Nathan Philbrook and Daniel Devencenzi  who stole marijuana from multiple marijuana farms and greenhouses Philbrook’s wife, Amber N., helped locate on Google Earth. Fultz shot the AR-15 rifle he possessed five times. Zafft was hit multiple times and died.Fultz and his accomplices then fled back to Nevada.  Philbrook and Devencenzi used their cell phones and defendant did not. Upon their return to Nevada, defendant admitted to Amber he delivered the fatal shots, and Philbrook made statements inculpating defendant as the shooter. Amber provided information to the police.

Investigation and violation of rights

The investigation took several years and continued during trial. The Nevada County Sheriff’s Department became aware of defendant’s, Philbrook’s, and Devencenzi’s involvement in Zafft’s murder because of an anonymous tip Amber supplied several months after the murder. Deputies subsequently conducted three interviews with her; the recording of the second interview was lost, as were photographs of Amber’s shoes. After defendant’s arrest and the filing of a complaint, the Nevada County District Attorney’s Office placed an undercover officer in defendant’s jail cell for the purpose of eliciting incriminating statements from him concerning the murder, violating his Sixth Amendment right to counsel. Then during a police interview, defendant’s invocation of his Fifth Amendment right to counsel was ignored.

Devencenzi and Philbrook pled guilty in exchange for reduced sentences. The prosecution failed to inform defendant that those bargains were offered as package deals, contingent on both Devencenzi and Philbrook accepting the plea bargains and fulfilling the bargains’ terms for either to benefit. The prosecution also failed to inform defendant the offers were contingent upon Philbrook and Devencenzi including in a written factual statement that they and defendant participated in a robbery and defendant killed Zafft. When making those bargains, Devencenzi and Philbrook agreed to be interviewed by the prosecution, which the prosecution failed to audio record. The prosecution continued its investigation of the case against defendant during trial and did not disclose material it intended to use against him until shortly before it was to be offered into evidence.

The People do not challenge the trial court’s findings that defendant’s Fifth and Sixth Amendment rights to counsel were violated when deputies placed an undercover officer in defendant’s jail cell for the purposes of eliciting incriminating statements after a complaint was filed against him, and thereafter ignored his requests for counsel during an interrogation. The People attack the trial court’s other findings arguing they were either unsupported by substantial evidence or contrary to law.

Substantial evidence standard of review

Under the substantial evidence standard of review the court of appeal role does not  reevaluate o the evidence. Rather, we presume the existence of every fact the court could reasonably have deduced from the evidence. “The standard is deferential: ‘When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination ….’ ” (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681, 76 Cal.Rptr.2d 641, 958 P.2d 393.) The evidence shows Devencenzi’s counsel believed and told Devencenzi his plea bargain was a package deal with Philbrook’s plea bargain.

Failure To Disclose The Nature Of The Prosecution’s Plea Offers And The Emails Violated Brady

The People do not argue the package offers were unfavorable to Fultz or that their suppression occurred through a nongovernment action. The People argue only that the package nature of the plea offers was not material under Brady because the package offers had little impeachment value in light of the extensive cross-examination of Devencenzi and Philbrook, and because their testimony was corroborated by Amber’s testimony and independent evidence.

Evidence is material under Brady “ ‘ “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” ’ ” (People v. Salazar, supra, 35 Cal.4th at p. 1042, 29 Cal.Rptr.3d 16, 112 P.3d 14.) While the favorability of undisclosed evidence is evaluated item by item, its cumulative effect for purposes of materiality must be considered collectively and evaluated in the context of the entire record. (In re Brown (1998) 17 Cal.4th 873, 887, 72 Cal.Rptr.2d 698, 952 P.2d 715.)

“In general, impeachment evidence has been found to be material where the witness at issue ‘supplied the only evidence linking the defendant(s) to the crime,’ [citations], or where the likely impact on the witness’s credibility would have undermined a critical element of the prosecution’s case….” ’ ” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 177, 112 Cal.Rptr.3d 746, 235 P.3d 62.) A new trial is generally not required when other evidence corroborates the witness’s testimony. (Salazar, at p. 1050, 29 Cal.Rptr.3d 16, 112 P.3d 14.)

The Prosecution Did Not Commit Medina Error

Under Medina, the use of coerced testimony results in “a denial of the fundamental right to a fair trial in violation of federal constitutional principles.” (People v. Medina, supra, 41 Cal.App.3d at p. 456, 116 Cal.Rptr. 133.) While a witness presuming an agreement requires testimony to specific facts would impeach that witness’s testimony, it would not violate due process and require exclusion of the witness’s testimony unless the agreement itself required testimony to those specific facts.  To violate due process, “ ‘the bargain [must be] expressly contingent on the witness sticking to a particular version [of her story].’ ” (People v. Reyes (2008) 165 Cal.App.4th 426, 434, 80 Cal.Rptr.3d 619, quoting People v. Garrison (1989) 47 Cal.3d 746, 771, 254 Cal.Rptr. 257, 765 P.2d 419.)

Here,  the emails show the prosecution conditioned the plea itself on defendant’s accomplices relating specific facts, while also requiring they tell the truth at trial. The prosecution’s conduct does not rise to constitutional error. The plea bargains, the emails, and Philbrook’s and Devencenzi’s testimony all confirm the plea deal expressly required them to testify at trial to the truth. There was no explicit mention their testimony would be consistent with the statements attached to their plea agreements, even if those statements were the parties’ understanding of the truth. “[U]nless the bargain is expressly contingent on the witness sticking to a particular version [of events], the principles of Medina … are not violated.” (People v. Garrison, supra, 47 Cal.3d at p. 771, 254 Cal.Rptr. 257, 765 P.2d 419.) Of course, this does not preclude defendant from using the circumstances surrounding Philbrook’s and Devencenzi’s plea negotiations for impeachment purposes.

Substantial Evidence Supports The Trial Court’s Findings Potentially Exculpatory Evidence Was Lost Or Never Retained In Bad Faith

The People argue the trial court’s findings the government unconstitutionally muted interviews with Philbrook and Devencenzi, lost the recording of Amber’s second interview, and lost photographs of Amber’s shoes were erroneous because none of the lost evidence was exculpatory, defendant had reasonable means of obtaining comparable evidence, and none of the evidence was lost in bad faith. The court reviews the trial court’s decision on a Trombetta/Youngblood motion under the substantial evidence standard. (People v. Duff (2014) 58 Cal.4th 527, 549, 167 Cal.Rptr.3d 615, 317 P.3d 1148, citing California v. Trombetta (1984) 467 U.S. 479, 104 S.Ct. 2528, [81 L.Ed.2d 413] & Arizona v. Youngblood (1988) 488 U.S. 51, 109 S.Ct. 333, [102 L.Ed.2d 281].) Under this standard, the court concluded that the trial court’s findings were not erroneous.

The Trial Court Did Not Abuse Its Discretion By Finding A Discovery Violation

Here, the discovery violation was the search of defendant’s cell phone records during trial and disclosure of the fruits of that search the morning it was to be testified to. The prosecution conceded this was a discovery violation and stipulated to exclusion of defendant’s cell phone records. The trial court, however, further excluded the related evidence in Philbrook’s phone records on the theory the discovery violation led to the further investigation of Philbrook’s cell phone records and the incriminating evidence.

The trial court further found significant prejudiced  by the surprise evidence given that reports completed by the prosecution gave the impression nothing of interest concerning defendant had been revealed in the 700 pages of cell phone records already disclosed. The trial court also found the prosecution was seeking a tactical advantage given that this type of search should have occurred long before it was presented as evidence.or the prosecution should have told defendant what it had discovered instead of letting obvious misunderstandings flourish. There was no abuse of discretion in the trial court’s findings and chosen remedy. (People v. Jordan (2003) 108 Cal.App.4th 349, 358, 133 Cal.Rptr.2d 434 [the exclusion of evidence is not an appropriate remedy in the absence of “a showing of significant prejudice and willful conduct motivated by a desire to obtain a tactical advantage at trial”].)

Remand Is Appropriate

The trial court pointed to multiple examples of the prosecution’s conduct as in its summary of violations to show its outrageous character. California Courts of Appeal occasionally have concluded that outrageous government conduct merited dismissal of criminal charges. (See People v. Velasco-Palacios, supra, 235 Cal.App.4th at p. 439, 185 Cal.Rptr.3d 286 [affirming dismissal of criminal charges as sanction for outrageous government misconduct where prosecutor deliberately altered an interrogation transcript to include a confession and that misconduct prejudiced defendant’s constitutional right to counsel]; Morrow v. Superior Court (1994) 30 Cal.App.4th 1252, 1261, 36 Cal.Rptr.2d 210 [“the court’s conscience is shocked and dismissal is the appropriate remedy” where “the prosecutor orchestrates an eavesdropping upon a privileged attorney-client communication in the courtroom and acquires confidential information”]; People v. Guillen (2014) 227 Cal.App.4th 934, 1007, 174 Cal.Rptr.3d 703.)

Where defendant’s right to counsel is not implicated, however, dismissal for outrageous government conduct is warranted only where the conduct impairs a defendant’s constitutional right to a fair retrial. (People v. Uribe (2011) 199 Cal.App.4th 836, 841, 884-885, 132 Cal.Rptr.3d 102 [holding that prosecutor’s false testimony at hearing on motions to disqualify the district attorney and to dismiss did not constitute outrageous governmental conduct in violation of due process where there was no showing that the misconduct prevented defendant from receiving a fair trial]; see United States v. Morrison, supra, 449 U.S. at p. 365, 101 S.Ct. 665, [66 L.Ed.2d at pp. 568-569] [“Our approach has thus been to identify and then neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel and a fair trial …. [T]here is no basis for imposing a remedy [of dismissal] in [a] proceeding, which can go forward with full recognition of the defendant’s right to counsel and to a fair trial”].)

The credibility of Philbrook’s and Devencenzi’s testimony was not tainted beyond redemption but is reasonably left to the jury to determine. (People v. Garrison, supra, 47 Cal.3d at p. 771, 254 Cal.Rptr. 257, 765 P.2d 419; People v. Medina, supra, 41 Cal.App.3d at pp. 454-456, 116 Cal.Rptr. 133.) It appears the trial court believed, as do we, that a fair retrial is possible since it did not order dismissal based on the other violations, but instead granted a mistrial. The court remanded the matter to the trial court because it is in the best position to fashion a remedy adequate to ensure defendant’s fair trial in light of the upheld findings. (People v. Jenkins (2000) 22 Cal.4th 900, 951, 95 Cal.Rptr.2d 377, 997 P.2d 1044.) We note the Supreme Court’s guidepost in this regard is that the trial court “identify and then neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant … a fair trial.” (United States v. Morrison, supra, 449 U.S. at p. 365, 101 S.Ct. 665, [66 L.Ed.2d at pp. 568-569].)


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