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(People v. Gipson )

Evidence-Witness-Testimony-When A person is disqualified to be a witness
(People v. Gipson )

 In his petition for a writ of habeas corpus filed in propria persona, defendant attacks trial counsel’s failure to block the prosecution’s use of the testimony of his drug-using, mentally disturbed brother Wallace to convict him and appellate counsel’s failure to “disclose to the court of appeal’s [sic] the false testimony used by the prosecution while coercing a mental patient to give false testimony to procure an indictment . . . as well as to obtain a conviction.” 

            Neither counsel failed in his or her duty to diligently represent defendant.  Wallace’s mental state was adequately disclosed to the jury via the testimony of defense witnesses (1) Johnny Gipson (Wallace’s and Lonnie’s brother) who advised Wallace to call the police when Wallace called twice around 2:00 a.m. on the morning of the incident to claim he and his niece Lynne Ramblin had been hurt by Lynne’s boyfriend; Johnny testified that Wallace was “a nice guy but unstable”; (2) investigating Officer Michael Soqui who determined from Lynne and her boyfriend that no battery had occurred and who arrested Wallace for being under the influence of heroin and later noticed the smell of alcohol; (3) Lynne, who lived with Wallace, testified to his daily drug use and his temper tantrum that night because she refused to give him back $50 she had borrowed from him; (4) defendant’s and Wallace’s sister Rebecca Ramblin, who testified to Wallace’s mental problems, his seeing things including bats flying through the house, his hearing voices, his drug use, tantrums, stealing, and lying; and (5) Rensley Anthonymuthu who worked at the local Safeway where he saw Wallace panhandling at least twice a day and yelling at customers who failed to donate and getting agitated and angry. 

            A person is disqualified to be a witness if he or she is incapable of expressing himself concerning the matter so as to be understood or is incapable of understanding the duty of a witness to tell the truth.  (Evid. Code, § 701.)  As a general rule, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter.  A person may be disqualified as a witness for one of two reasons:  (1) the witness is incapable of expressing himself or herself so as to be understood, or (2) the witness is incapable of understanding the duty to tell the truth.  The party challenging a witness bears the burden of proving a reason for disqualification, and a trial court’s determination will be upheld in the absence of a clear abuse of discretion.  (People v. Dennis (1998) 17 Cal.4th 468, 525.)  The fact that a witness may have suffered from mental disorders does not by itself support the claim that he is incapable of communicating so as to be understood.  If there is evidence that the witness has the capacities to perceive, recall, and narrate, the determination whether he in fact perceived and does recall is left to the trier of fact.  (People v. Lewis (2001) 26 Cal.4th 334, 356.)

            In the instant case, testimony about factors affecting Wallace’s competency including his drug and alcohol use, past mental hospitalizations and delusions, and his mental state at the time of the incident were adequately disclosed to the jury so as to allow it to judge Wallace’s credibility.  Defendant was not deprived of competent representation by counsel.

People v. Gipson-4/20/2004-CA6-H025783-Three Strikes
 

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