 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
In re Gay12/24/1998
suggests otherwise with respect to several of the robberies, however.
Three of the robbery counts were based on an April 25, 1983 robbery of the operators of Kenn Cleaners. None of the victims identified petitioner as a participant. Only Pamela Cummings testified that petitioner was present. Pamela Cummings was an accomplice as a matter of law whose testimony identifying petitioner as one of the robbers had to be corroborated. (§ 1111.) Apart from petitioner's admissions there was no direct evidence corroborating her identification of petitioner as one of the robbers. The same is true as to the two robbery counts based on the May 6, 1983, robbery of the operators of the Salads Plus salad bar. None of the three victims of the May 29, 1983, robbery of the operators of the Pizza Man delivery service identified petitioner.
Respondent argues that evidence that Cummings's accomplice was light skinned was sufficient corroboration. We are not persuaded. An inference might be drawn that because petitioner was light skinned and had been Cummings's partner in some of the robberies, petitioner was his accomplice in all of the robberies. Circumstantial evidence is sufficient to corroborate the testimony of an accomplice, and slight evidence may be sufficient corroboration. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1128.) While a court might well recognize this evidence was sufficient if the question arose on appeal after conviction, here we cannot say with assurance that it is probable that a jury would necessarily find the evidence sufficient. If it did not, the jury would not convict petitioner of six of the robbery-related counts had his statement not been introduced.
Even were we to assume that a jury would accept the circumstantial evidence that petitioner was Cummings's accomplice during those robberies as corroboration of Pamela's testimony, Shinn's conduct harmed petitioner. The statement Shinn misled petitioner into making, a stipulation that petitioner was a serial robber, made it unnecessary for the jury to grapple with the question of corroboration. The statement Shinn incompetently elicited from petitioner made the prosecution's case.
There were problems with two of the other counts which might have affected those verdicts also. The victim of the May 20, 1983, Designer Florist robbery was unable to identify petitioner in court. She testified that "Kenneth Gay" had robbed her, but that was after seeing petitioner, whom she did not then recognize, on television. Moreover, the victim of the repair shop robbery on May 13, 1983, was deceased at the time of trial. His identification of petitioner came in the reading of his preliminary hearing testimony. There was no in-court visual identification of petitioner by either of these witnesses.
It is possible, therefore, that but for Shinn's incompetence in inducing petitioner to confess the robberies to the officers investigating the murder, he would not have been convicted of several of the robberies. Moreover, the question of petitioner's guilt might not have been put to the jury at all, if, as did occur on one count, the trial court granted a motion for acquittal. (Pen. Code, § 1118.1.)
The prejudicial impact at the penalty phase of the admission of petitioner's statement confessing to the robberies cannot be understated. Shinn not only acted as a second prosecutor by creating the evidence that led to petitioner's conviction of the robberies, his conduct permitted the prosecutor to portray petitioner as an admitted serial robber who killed a police officer to avoid arrest and prosecution for the robberies. That picture of defendant, absent any substantial mitigating evidence, would be devastatin
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|