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Prosecutorial Misconduct
( People v. Woods )

Criminal Law-Prosecutorial Misconduct-
(People v. Woods)

Woods contends the prosecutor committed prejudicial misconduct by interfering with his right to call Sheridan as a witness. The record does not bear this out.

The prosecutor originally designated Sheridan as a witness. However, after the jury was sworn, the prosecutor announced he did not intend to call Sheridan after all. This caused the defense great consternation. Claiming Sheridan was the “linchpin” to its case, the defense sought to call Sheridan as its own witness. However, Sheridan’s attorney said he would advise Sheridan to invoke his Fifth Amendment right against self-incrimination because his plea agreement with the prosecution had yet to be consummated.

Under the agreement, the prosecution would dismiss the charge of capital murder in exchange for Sheridan’s guilty plea to manslaughter and other allegations carrying a 20-year sentence. The prosecutor informed the court the agreement was brought about by Sheridan’s willingness to work with authorities and was contingent on his continued cooperation, meaning he would have to testify truthfully if called by the prosecution. The prosecutor made no bones about the fact he was not going to execute the agreement until Woods’ trial was over. Sheridan’s attorney made it equally clear Sheridan would not testify for Woods until Sheridan was sentenced. Believing this presented a potential due process problem, the court invited briefing from the parties and set the matter for a hearing.

The defense papers did not mince words: “In its strategic effort to make Sheridan unavailable as a witness, the prosecutor provided Sheridan and his counsel with a written proposed plea agreement, but has delayed execution of that agreement until after Mr. Woods’ trial . . . thereby technically allowing for the assertion of the Fifth Amendment under just the circumstances that have arisen here. What is implicit in this arrangement is that the prosecution has made Sheridan’s deal contingent upon his not being available to the defense. This is nothing short of misconduct on the part of the prosecution.”

The defense proposed an assortment of remedies to address the situation. First, it asked the court to dismiss the case, declare a mistrial, or exclude Amos’ testimony. Then it suggested various means to secure Sheridan’s testimony, such as granting him judicial immunity or continuing Woods’ trial until Sheridan was sentenced. The defense also argued Sheridan had waived his Fifth Amendment rights by accepting the plea bargain and agreeing to testify for the prosecution.

The court held a lengthy hearing on the matter. Although it did not expressly impugn the prosecutor’s motives, it did recognize Sheridan’s availability “is, to a certain extent, controlled by the People because the People have pending a deal” with him. The court said it would take “an idiot” not to see that “in order for [Sheridan] to protect himself, he’s got to do what will maintain this deal with the prosecution. Which is, if the prosecution is not calling [him], just sit there and shut up.”

While the court believed the prosecution was at least partly responsible for Sheridan’s decision to take the Fifth, it did not believe this warranted dismissing the case, declaring a mistrial, or excluding Amos’ testimony. Nor did it believe a continuance would solve anything, given the prosecutor’s refusal go forward with Sheridan’s plea agreement prior to the completion of Woods’ trial. The court did believe there was a “pretty good case” for granting Sheridan judicial immunity, but in the end it rejected this option as unprecedented.

The court then discussed the prospect of allowing the defense to introduce Sheridan’s statements through other witnesses. To accommodate Woods’ due process rights, the court said it would be willing to relax the hearsay rule and afford the defense wide latitude as far as admitting Sheridan’s statements into evidence. It also promised to instruct the jury Sheridan’s out-of-court statements could be considered for their substantive truth.

When asked about this approach, the defense admitted it would be able to get all of Sheridan’s statements into evidence through other witnesses. However, it insisted this would not be a suitable substitute for examining Sheridan on the witness stand. The court rejected this position, saying, “It is not necessarily a constitutional violation for a defendant not to be able to present their case in the way that they would like to present it, as opposed to getting the substance of the evidence in.” Believing the defense could get the substance of Sheridan’s statements into evidence through other witnesses, the court ruled Sheridan’s unavailability did not amount to a violation of Woods’ constitutional rights.

At trial, the defense was given free reign in terms of admitting Sheridan’s statements into evidence. It used his statements to impeach Amos’ version of events and show Amos and Sheridan had the most to gain from McKenna’s demise. It also used his statements to prove Sheridan and Amos hated Woods so much they would be willing to falsely implicate him in McKenna’s murder. And, as promised, the court instructed the jury it could consider Sheridan’s statements for their substantive truth.

Despite all this, Woods argues his conviction must be reversed because he was not permitted to call Sheridan to the witness stand. While he does not challenge the trial court’s decision on the immunity issue, he does challenge the trial court’s decision on the prosecutorial misconduct issue. In his view, the prosecutor’s actions distorted the fact-finding process to such a degree they undermined his right to present a defense. We do not agree.

“The state and federal Constitutions guarantee the defendant a meaningful opportunity to present a defense. [Citations.] As [our Supreme Court] has observed, ‘A defendant’s constitutional rights to compel the attendance of witnesses, as guaranteed by the Sixth Amendment, and to due process, as guaranteed by the Fourteenth Amendment, are violated when the prosecution interferes with the defendant’s right to present witnesses.’ [Citations].” (People v. Lucas (1995) 12 Cal.4th 415, 456.)

To establish a violation of his compulsory-process rights, a defendant “must establish three elements. ‘First, he must demonstrate prosecutorial misconduct, i.e., conduct that was “entirely unnecessary to the proper performance of the prosecutor’s duties and was of such a nature as to transform a defense witness willing to testify into one unwilling to testify.”’ [Citation.] Second, he must establish the prosecutor’s misconduct was a substantial cause in depriving the defendant of the witness’s testimony. [Citation.] . . . Finally, the defendant must show the testimony he was unable to present was material to his defense. [Citation.]” (People v. Lucas, supra, 12 Cal.4th at p. 457.)

Taking these elements out of order, it is clear the prosecutor’s actions were a substantial cause in keeping Sheridan off the stand. The Attorney General argues Sheridan’s attorney was actually the moving force behind Sheridan’s decision not to testify, but while Sheridan’s attorney did counsel him to take the Fifth, this advice was precipitated by the prosecutor’s decision not to call Sheridan as his own witness. The prosecutor had that prerogative, of course. However, he also said he was going to put off Sheridan’s sentencing until Woods’ trial was over. As the trial court noted, this left Sheridan with little choice other than to “just sit there and shut up,” rather than testify for the defense and risk losing his plea agreement, which enabled him to avoid prosecution for capital murder. Under these circumstances, the requisite link between the prosecutor’s conduct and Sheridan’s refusal to testify was sufficiently established. (See In re Martin (1987) 44 Cal.3d 1, 31 [substantial cause requirement is satisfied when prosecutor’s actions carry “significant coercive force” and are “soon followed by the witness’s refusal to testify”].)

Less clear is whether the prosecutor’s actions were wholly unnecessary to the proper performance of his duties. At first blush, it appears the only reason the prosecutor refused to go forward with Sheridan’s sentencing was to render him unavailable for the defense. But the record reveals another possible motivation. When pressed for an explanation of his actions, the prosecutor told the court, “I can’t let Sheridan plead before Mr. Amos testifies.” This suggests the prosecutor intended to call Sheridan to impeach Amos if Amos lied on the stand. But this would be difficult to do if Sheridan was already sentenced and then, having acquired the benefit of his plea bargain, decided not to cooperate with the prosecution. By keeping Sheridan’s plea bargain on the table until after Woods’ trial, the prosecutor avoided this potentiality. This was a legitimate tactical decision that was reasonably related to the prosecutor’s interest in ensuring that his key witness — Amos — testified truthfully.

However, even if the first two elements needed to establish a claim of prosecutorial misconduct were satisfied, Woods could not prove that Sheridan’s testimony was a material component of his defense. In United States v. Valenzuela-Bernal (1982) 458 U.S. 858, a case involving the deportation of potential defense witnesses, the court explained the materiality requirement is inextricably related to the notion of prejudice. Not only must the defendant provide “some explanation of how [the unavailable witness’s] testimony would have been favorable and material,” no due process violation will be found unless the absence of this testimony “‘fatally infected the trial’” and “‘necessarily prevent[ed] a fair trial.’ [Citation.]” (Id. at p. 872.)

With that in mind, courts have rejected Sixth Amendment/due process claims when the defendant is given the opportunity to present statements of an unavailable witness through other witnesses. For example, in Buie v. Sullivan (2d Cir. 1990) 923 F.2d 10, Buie’s accomplice was expected to testify that Buie was not involved in the subject robberies. However, that expectation was erased when the accomplice was arrested mid-trial and then invoked his right to remain silent. Nonetheless, because the accomplice’s exculpatory statements were admitted through another witness, i.e., because “Buie was able ‘to obtain comparable evidence by other reasonably available means,’” the court found no constitutional violation. (Id. at p. 12.)

The court reached a similar result in United States v. Capozzi (8th Cir. 1989) 883 F.2d 608. Capozzi argued he was denied his right to present exculpatory testimony from certain unindicted coconspirators who pled the Fifth after the government filed a bill of particulars against them on the eve of trial. However, the court found Capozzi’s due process assertion to be “chimerical” because the trial court “permitted Capozzi’s trial counsel to present as evidence relevant portions of earlier sworn deposition testimony given by” those individuals. (Id. at p. 615.) Indeed, as the Capozzi court explained, the trial court “permitted Capozzi’s trial counsel to present to the jury as much of this material as he deemed necessary to his defense. On appeal, Capozzi fails to delineate any suggested testimony over and above that which was presented to the jury. In our view, Capozzi was permitted to present his version of the facts to the jury. There was no violation of appellant’s right to compulsory process.” (Ibid.)

Likewise, here, the defense was given every opportunity to present Sheridan’s statements to the jury, and it took full advantage of that opportunity.

Not only did it elicit Sheridan’s statements from various witnesses, it also confronted many witnesses with statements attributed to Sheridan. As set forth above, these statements effectively allowed for the impeachment of Amos and also provided evidence Sheridan and Amos wanted to kill McKenna for their own reasons.

Woods notes he made a detailed pretrial offer of proof regarding Sheridan’s proposed testimony. But Woods fails to acknowledge that nearly every statement in that four-page document was either introduced into evidence or used by his attorneys in their examination of witnesses. Woods utterly “fails to delineate any suggested testimony over and above that which was presented to the jury.” (United States v. Capozzi, supra, 883 F.2d at p. 615.) From this, we may logically conclude Woods was allowed to present his version of the facts to the jury, and that is all the constitution requires.

We recognize, of course, that the trial court’s ruling deprived Woods of the opportunity to examine Sheridan on the witness stand and use his “live testimony” to undermine the prosecution’s case. But “[t]he right to present a defense, and its concomitant right to compulsory process, are not unqualified . . . .” (Buie v. Sullivan, supra, 923 F.2d at p. 11.) Those rights do not entitle the defendant to compel a witness to waive his Fifth Amendment privilege. (United States v. Moore (9th Cir. 1982) 682 F.2d 853, 856.)

Nevertheless, Woods claims Sheridan voluntarily waived his Fifth Amendment privilege by accepting the People’s plea bargain and agreeing to testify for the prosecution. The position is not well taken. Although Sheridan obviously wanted to accept the plea bargain, that deal had not been struck. As an unconvicted, unsentenced defendant, Sheridan retained his Fifth Amendment rights with respect to the offenses alluded to in the proposed plea agreement. (United States v. Paris (9th Cir. 1987) 827 F.2d 395, 399; Taylor v. Best (4th Cir. 1984) 746 F.2d 220, 222; Mills v. United States (4th Cir. 1960) 281 F.2d 736, 741; People v. Fonesca (1995) 36 Cal.App.4th 631.)

Then there was the issue of Sheridan’s exposure for other offenses. During the pretrial hearing, the prosecutor represented “[t]here’s also other crimes he’s been accused of by defense representatives which they will want to get into, such as being a felon with a firearm or using drugs or being engaged in other murders. So it is not simply the issue of this murder. There’s a whole host of crimes that the defense will want to get into and doors they’ll want to open.” Because Sheridan’s plea agreement did not provide him sanctuary from these crimes, he was entitled to invoke his right against self-incrimination for this reason as well. (United States v. Pierce (9th Cir. 1977) 561 F.2d 735, 738; United States v. Johnson (1st Cir. 1973) 488 F.2d 1206, 1209-1210.)

To summarize, the trial court properly found that Sheridan did not waive his Fifth Amendment rights by agreeing to plead guilty under the government’s proposed plea agreement. In addition, the court properly determined that Sheridan’s unavailability did not deprive Woods of his right to present a defense or due process. No constitutional violation has been shown.

People v. Woods-G030494-7/21/04-Prosecutorial Misconduct

Date Posted	Docket #/ File Format	Description
Jul 21 2004	G030494 [PDF] [DOC]	P. v. Woods 7/21/04 CA4/3

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