People v. Zapien

MOSK, J.

I dissent.

As I shall explain, the trial court committed reversible error when it denied a motion defendant made to dismiss the information on the grounds of gross misconduct by the prosecution.

At a hearing concerning the prosecutorial misconduct in question, most of the basic facts pertinent here were established beyond dispute.

On October 4,1986, Gary A. Van Camp, a deputy district attorney serving under Santa Barbara County District Attorney Thomas W. Sneddon, Jr., and Harry Heidt, a detective sergeant in the Lompoc Police Department, had use of an automobile from the county’s vehicle pool. Van Camp was the trial *999 prosecutor assigned to this matter. Heidt was the chief investigating officer for the Lompoc Police Department. Kenneth R. Ast was his counterpart in the district attorney’s office. Van Camp chose Ast as his main investigator over Heidt. Van Camp was actively directing the investigation of the crimes and was personally preparing the case for trial. Jury selection was in progress.

On the date in question, Deputy District Attorney Van Camp happened to find a legal-size envelope under a seat in the county automobile. The envelope was sealed; it bore the name “Bill Davis”—Assistant Public Defender William A. Davis, who was defendant’s counsel—and the return address of the Santa Barbara County Public Defender’s Office; and it appeared to contain an audiotape cassette in a cassette box. Davis had inadvertently left the envelope in the vehicle some days before; he had already had the contents of the tape transcribed. On finding the envelope, Van Camp’s “eyes kind of light[ed] up,” since he knew that Davis was defendant’s attorney. He handed the envelope to Sergeant Heidt, and told him to listen to the tape and report back what he had heard.

As to its contents, the strategy tape “was not evidence.” That is, it did not constitute information admissible at trial relevant to defendant’s guilt or innocence. Rather, it “was something else, something more sensitive . . . .” It comprised Davis’s detailed, personally dictated concerns about defense strategy at trial, prepared for discussion with certain senior colleagues, reflecting his confidential communications with defendant and also his impressions, conclusions, opinions, research, and theories concerning both the favorable and unfavorable aspects of the case. It bore heavily on the credibility of a number of crucial witnesses named therein. From early in the life of the action, it was apparent that the outcome would turn more on testimony than physical evidence. In transcribed form, the contents filled more than six pages of single-spaced type.

On October 6, Deputy District Attorney Van Camp and Sergeant Heidt spoke about the strategy tape. Heidt told Van Camp that he had thrown away the tape and accompanying materials, and that “as far as [he] was concerned, the tape was never found." Neither Van Camp nor Heidt had any intention of disclosing to anyone what they had done.

During the weeks that followed, Deputy District Attorney Van Camp continued, on a daily basis, to actively direct the investigation of the crimes and to personally prepare the case for trial. His efforts extended into areas covered by the strategy tape, including the credibility of the crucial witnesses named therein.

*1000 On October 24, R. O. Hebert, chief of the Lompoc Police Department, summoned Sergeant Heidt to his office to inquire into reports of an “argumentative” telephone conversation between a member of the department and one of District Attorney Sneddon’s staff. He suspected that Sergeant Heidt and Deputy District Attorney Van Camp were involved. Earlier that month, there had been some discord: Van Camp wanted Heidt to remain available throughout trial, apparently to serve as “something of a go-fer” for Ast, his main investigator; Heidt wished to absent himself for a period to attend a police training program in the investigation of homicides—a program he had had to miss once before when he was called away to investigate an actual homicide. In the meeting with Hebert, Heidt disclaimed knowledge of the “argumentative” telephone conversation. Toward the end, he disclosed the strategy tape incident. At the hearing, he stated that the incident had been “bothering” him since its occurrence. But he also admitted that he “didn’t go” into Hebert’s office “with the intention of divulging that [he] had destroyed” the items in question.

On October 27, the very eve of opening statements, Chief Hebert informed Assistant District Attorney Steven B. Plumer of what he had been told by Sergeant Heidt about the strategy tape incident, and Plumer transmitted the information to Assistant Public Defender Davis.

On October 28, the trial court opened the hearing concerning prosecutorial misconduct.

On October 30, it appears, defendant moved to dismiss the information on the grounds of gross misconduct by the prosecution.

On October 31, Assistant District Attorney Plumer advised the trial court and defense counsel that District Attorney Sneddon had made an “administrative decision,” effective immediately, to remove Deputy District Attorney Van Camp from the case and to substitute himself. Later, Sneddon suspended and demoted Van Camp for his part in the strategy tape incident.

The hearing extended from the end of October through the beginning of December. Many witnesses were called; much testimony was given.

On December 3, the trial court brought the hearing to a close. It then proceeded to deny defendant’s motion to dismiss.

On December 8, District Attorney Sneddon and Assistant Public Defender Davis made their opening statements, and the presentation of evidence commenced.

*1001 The foregoing facts establish gross prosecutorial misconduct beyond any doubt. Deputy District Attorney Van Camp and Sergeant Heidt intentionally invaded the defense camp. Although not premeditated, the violation was indeed deliberate. They then intentionally covered up the invasion. This violation was premeditated as well as deliberate. In the invasion and coverup, they committed divers offenses. For example, at the very beginning of the episode, they appropriated the strategy tape and accompanying materials —property they knew belonged to Assistant Public Defender Davis. (Pen. Code, § 485.) Sometime later, they maliciously destroyed the items. (Id., § 594, subd. (a).) By the end, they had entered into an at least implied agreement to obstruct justice and had acted in furtherance thereof. (Id., § 182, subd. (a)(5).) Indeed, Van Camp persisted in his efforts in this regard throughout the hearing. He denied, under oath, that he told Heidt to listen to the strategy tape. The trial court impliedly found that he testified falsely. (Id., § 118, subd. (a).)

Obviously, the gross prosecutorial misconduct established by these facts infringed protections afforded defendant by the attorney-client privilege (Evid. Code, § 950 et seq.) and the work product doctrine (Code Civ. Proc., § 2018; id., former § 2016, subd. (h), Stats. 1984, ch. 1127, § 1, p. 3805). It also implicated his rights under the United States and California Constitutions, including the guaranties relating to unreasonable searches and seizures (U.S. Const., Amend. IV; Cal. Const., art. I, § 13), the assistance of counsel (U.S. Const., Amend. VI; Cal. Const., art. I, § 15), and due process of law (U.S. Const., Amend. XIV; Cal. Const., art. I, § 15).

Although most of the basic facts pertinent here were established beyond dispute, one was not. Did the prosecution’s unlawful invasion of the defense camp extend to the contents of the strategy tape? The trial court answered the question in the negative. Crucially, it made a finding of fact that Sergeant Heidt had not listened to the tape. It erred.

To begin with, the trial court’s finding does not appear to be supported, as it must be (e.g., People v. Louis (1986) 42 Cal.3d 969, 984-985 [ 232 Cal.Rptr. 110 , 728 P.2d 180 ]), by substantial evidence. The court relied in part on Sergeant Heidt’s testimony at the hearing, and in part on its personal knowledge of him over the years. The former was evidence, albeit of dubious weight. The latter, of course, was not. The majority refuse to hear any complaint from defendant about the court’s “testimony” as an “unsworn witness.” Their refusal, however, cannot transform nonevidence into evidence.

In any event, the trial court’s finding is unsupported as a matter of law. Defendant requested the court to find adversely to the prosecution on the *1002 issue whether Sergeant Heidt had listened to the strategy tape. He argued that Heidt had destroyed the only evidence that could have contradicted his testimony. The condition of the envelope, cassette box, cassette, and tape would have suggested, and perhaps established, the extent of the prosecution’s unlawful invasion of the defense camp. For example, one could have determined whether the envelope had been unsealed, whether the cassette box had been handled, whether the cassette had been removed, and whether the tape had been played. The court refused to make the requested finding. It was in error.

For purely practical reasons, the trial court should have found that Sergeant Heidt had listened to the strategy tape. Had it done so, it would have declared in most effective terms that the prosecution cannot engage in such gross misconduct with impunity. Regrettably, the majority’s discussion upholding the court’s refusal of an adverse finding may be read to deliver an altogether different message: do the deed and then destroy the evidence.

Practical reasons aside, the trial court was required by California law to find that Sergeant Heidt had listened to the strategy tape. Evidence Code section 413 provides: “In determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the party’s failure to explain or deny by his testimony such evidence or facts in the case against him, or his willful suppression of evidence relating thereto, if such be the case.” In People v. Zamora (1980) 28 Cal.3d 88 [ 167 Cal.Rptr. 573 , 615 P.2d 1361 ], we concluded that an adverse finding was required under the circumstances there disclosed: the state had destroyed evidence of official wrongdoing, although not in bad faith. (Id. at pp. 93-94, 99-103 (plur. opn. by Tobriner, J.); id. at p. 106 (conc. & dis. opn. of Bird, C. J.).) A fortiori, an adverse finding was required under the circumstances here: the state had destroyed evidence of official wrongdoing, and had done so in bad faith. Contrary to the majority’s suggestion, Zamora remains good law on this point after California v. Trombetta (1984) 467 U.S. 479 [ 81 L.Ed.2d 413 , 104 S.Ct. 2528 ], and Arizona v. Youngblood (1988) 488 U.S. 51 [ 102 L.Ed.2d 281 , 109 S.Ct. 333 ]. (See People v. Cooper (1991) 53 Cal.3d 771, 811 [ 281 Cal.Rptr. 90 , 809 P.2d 865 ]; People v. Medina (1990) 51 Cal.3d 870, 894 [ 274 Cal.Rptr. 849 , 799 P.2d 1282 ].)

Moreover, the trial court was required by the United States Constitution to find that Sergeant Heidt had listened to the strategy tape. As will appear, an adverse finding was required to remedy the denial of defendant’s right to due process of law under the Fourteenth Amendment.

In California v. Trombetta, supra, 467 U.S. 479 , the United States Supreme Court stated: “Under the Due Process Clause of the Fourteenth *1003 Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense. To safeguard that right, the Court has developed ‘what might loosely be called the area of constitutionally guaranteed access to evidence.’ Taken together, this group of constitutional privileges delivers exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system.” (Id. at p. 485 [ 81 L.Ed.2d at p. 420 ], citation omitted.)

The Trombetta court went on to declare all but expressly that the Fourteenth Amendment’s due process clause imposes on the states a duty to preserve evidence on behalf of criminal defendants. The obligation, however, is not absolute and unqualified. It is “limited to evidence that might be expected to play a significant role in the suspect’s defense.” (California v. Trombetta, supra, 467 U.S. at p. 488 [ 81 L.Ed.2d at p. 422 ].) Such evidence “must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (Id. at p. 489 [ 81 L.Ed.2d at p. 423 ].)

In Arizona v. Youngblood, supra, 488 U.S. 51 , the court “again considered] ‘what might loosely be called the area of constitutionally guaranteed access to evidence.’ ” (Id. at p. 55 [ 102 L.Ed.2d at p. 287 ].) It did not retreat from the core teaching of Trombetta . But it did hold that “unless a criminal defendant can show bad faith on the part of the [state], failure to preserve potentially useful evidence does not constitute a denial of due process of law.” (Id. at p. 58 [ 102 L.Ed.2d at p. 289 ].)

Of course, Trombetta and Youngblood are not directly applicable to the case at bar. In both of those decisions, the evidence of which the court spoke comprised facts bearing on the criminal defendant’s guilt or innocence— specifically, facts generally admissible at trial that might exculpate him of legal responsibility. In this matter, by contrast, the “evidence” with which we are concerned consists of facts relating to the state’s conduct of the criminal proceeding itself—specifically, facts generally inadmissible at trial that might inculpate the prosecution in undermining the system’s integrity.

Although not directly applicable, Trombetta and Youngblood govern by analogy.

As stated, the Fourteenth Amendment’s due process clause imposes on the states a duty to preserve evidence on behalf of criminal defendants. Since the *1004 constitutional guaranty of fundamental fairness seeks to ensure the integrity of the system, the “evidence” to be preserved must include facts inculpating the prosecution. This obligation, however, cannot be absolute and unqualified. It must be limited to “evidence” that might be expected to play a significant role in the proof of prosecutorial misconduct. Such “evidence” must both possess an inculpatory value that was apparent before its destruction, and be of such a nature that the defendant would be unable to obtain comparable material or information by other reasonably available means. If the prosecution acts in bad faith, its failure to preserve “evidence” of this sort constitutes a denial of the defendant’s right to due process of law.

Without question, the “evidence” that the prosecution destroyed in this case—the envelope, cassette box, cassette, and strategy tape—might foresee-ably have established misconduct on the part of the prosecution.

To begin with, the “evidence” possessed an inculpatory value that was apparent before its destruction. The majority disagree. But, as explained, the condition of the items in question would have suggested and perhaps established the extent of the prosecution’s unlawful invasion of the defense camp. Indeed, Sergeant Heidt conceded as much at the hearing. The majority state that “[i]t was reasonable for the trial court to conclude that Heidt had destroyed” the items “without being aware that they later would assume evidentiary significance on the issue whether Heidt had listened to the” strategy tape. (Maj. opn., ante, at p. 965.) Quite the contrary. It was altogether unreasonable for the court to have come to any conclusion other than that Heidt had destroyed the items in order to ensure that the issue would never arise in the first place.

Next, the “evidence” was such that comparable material or information could not be obtained by defendant by other reasonably available means. The majority do not disagree. Nor could they. Sergeant Heidt himself admitted the fact.

Further, the “evidence” was destroyed by the prosecution in bad faith. Here, the majority do disagree. I am at a loss. They cannot seriously mean that Sergeant Heidt acted in good faith. They state that Heidt “did not intend to deprive defendant of exculpatory evidence or to otherwise harm defendant.” (Maj. opn., ante, at p. 966.) Heidt plainly intended to deprive defendant of evidence inculpating the prosecution and thereby to prevent him from uncovering its unlawful invasion of the defense camp. If, in fact, Heidt had not listened to the strategy tape, he would still be guilty of bad faith. In such a situation, he would have destroyed the items in question with reckless disregard of both their nature and their importance.

*1005 Faced with the prosecution’s gross misconduct, the trial court erred when it denied defendant’s motion to dismiss.

Dismissal was required. It was an appropriate sanction and indeed the only appropriate sanction. The prosecution unlawfully invaded the defense camp and unlawfully covered up the invasion. Its object was the strategy tape. The taint introduced into the case must be deemed substantial. From early on, it was apparent that the outcome would largely turn on testimony. The tape bore heavily on the credibility of crucial witnesses. Deputy District Attorney Van Camp’s efforts to investigate the crimes and prepare the case for trial extended into this area. Moreover, the taint would have been difficult to purge. It would have been hard to detect: it affected not the main lines of the case, but the interstices. If detected, it would have been hard to remove: it spread throughout the case. True, District Attorney Sneddon himself appears to have taken no part in the misconduct. But he was practically compelled by the shortness of time between hearing and trial to take Van Camp’s investigation and preparation as he found them. Only by dismissal could the court have effectively prevented harm to defendant.

On this record, however, dismissal with prejudice was not required. District Attorney Sneddon should have been allowed to investigate the crimes and prepare the case anew. An absolute bar to further prosecution would have been uncalled for.

Relying basically on United States v. Morrison (1981) 449 U.S. 361 [ 66 L.Ed.2d 564 , 101 S.Ct. 665 ], the majority reject dismissal as a sanction. Morrison , however, is inapposite. It deals only with the appropriateness, under federal criminal procedure, of dismissal with prejudice. I agree that the prosecution should not have been put in a worse position than it would have occupied had it not engaged in misconduct. But it would simply not have been put in such a position by dismissal without prejudice.

Clearly, the trial court’s erroneous denial of defendant’s motion to dismiss requires reversal of the judgment. No other result is reasonable. Surely, harmless-error analysis is not available. Such analysis attempts to determine the outcome of the trial under review in the absence of the error complained of. But in the absence of the error committed by the court in this case, the trial that the record discloses would not have been held in the first place. 1

For the reasons stated above, I would reverse the judgment.

In passing, I make the following observation. In my concurring opinion in People v. Gallego (1990) 52 Cal.3d 115 [ 276 Cal.Rptr. 679 , 802 P.2d 169 ], I stated that a “jury should be able to identify the . . . circumstances” specified in the standard penalty instructions “as ‘aggravating’ or ‘mitigating’ by itself’ because “their nature is ‘self-evident.’ ’’ (Id. at p. 208 *1006 (conc. opn. of Mosk, J.), italics added.) Whether any given jury is actually able to do so depends on the peculiar facts of the individual case. If it is not, it may be without the guidance demanded by the Eighth Amendment as construed in Stringer v. Black (1992) 503 U.S. _ [ 117 L.Ed.2d 367 , 112 S.Ct. 1130 ]. It is true, as the majority state, that “the constitutional prohibition on arbitrary and capricious capital sentencing determinations is not violated by a capital sentencing ‘scheme that permits the jury to exercise unbridled discretion in determining whether the death penalty should be imposed after it has found that the defendant is a member of the class made eligible for that penalty by statute.’ ” (California v. Ramos (1983) 463 U.S. 992, 1009, fn. 22 [ 77 L.Ed.2d 1171, 1185-1186 , 103 S.Ct. 3446 ].) But it is not true, as the majority suggest, that the California “scheme” allows “unbridled discretion.” In Stringer, the United States Supreme Court held that “if a State uses aggravating factors in deciding . . . who shall receive the death penalty”—as does California (Pen. Code, § 190.3)—“it cannot use factors which as a practical matter fail to guide the sentencer’s discretion” in contravention of the Eighth Amendment. (Stringer v. Black, supra, 503 U.S. at p. _ [ 117 L.Ed.2d at p. 381 , 112 S.Ct. at p. 1139 ].)