Petition for Writ of Certiorari — Shanker Patel, Petitioner v. California

Supreme Court briefMay 13, 2019

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NO. 18-_____

In the

Supreme Court of the United States

SHANKER PATEL,

Petitioner,

v.

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

On Petition for a Writ of Certiorari to the

State of California, Second District Court of Appeals

PETITION FOR WRIT OF CERTIORARI

COREY EVAN PARKER, ESQ.

COUNSEL OF RECORD

LAW OFFICE OF COREY EVAN PARKER

1230 ROSECRANS AVE, SUITE 300

MANHATTAN BEACH, CA 90266

(424) 456-3193

COREY@COREYEVANPARKERLAW.COM

MAY 13, 2019

SUPREME COURT PRESS

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTION PRESENTED

Where in sixteen States, including California,

whence this present case arises, the law requires corroboration of an accomplice’s testimony to sustain a

conviction, and

When no physical evidence connects a defendant to

the crime and the evidence of the defendant’s guilt

beyond a reasonable doubt is supplied solely by circumstantial evidence, by the trial testimony of an

accomplice, and by the out-of-court statements made

by another accomplice, and

When the defendant requests that the trial court

give to the jury a cautionary instruction about the

care with which the jury should face accomplice corroboration,

THE QUESTION HERE PRESENTED IS:

Whether a trial court violates the jury trial

guarantees of the Sixth Amendment and U.S. Const.

art. III, § 2, cl. 3 by refusing to grant a defendant’s

request that the court instruct the jury that the

evidence of accomplices ought to be received with

suspicion and with the very greatest care and caution

and ought not to be passed upon by the jury under

the same rules governing other and apparently credible

witnesses. See, e.g., Crawford v. United States, 212

U.S. 183, 204 (1909).

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ...................................... iv

OPINION BELOW ...................................................... 1

JURISDICTION.......................................................... 1

CONSTITUTIONAL PROVISIONS INVOLVED...... 1

INTRODUCTION ....................................................... 2

STATEMENT OF THE CASE .................................... 5

A. In States Where a Person Can Be

Convicted of a Crime on the Testimony of

an Accomplice Only When Corroborated by

Evidence Tending to Connect the Defendant

to the Commission of the Crime, It Is an

Abridgement of the Jury Trial Guarantees

of the Sixth Amendment and U.S. Const.

Art. III, § 2, Cl. 3 for a Trial Court to Refuse

to Give a Cautionary Instruction When a

Defendant Requests It ..................................... 5

B. Evidence of an Accomplice Should Be

Received with Great Caution and Scrutinized with Great Care and the Lack of an

Instruction to That Effect Is Unjust ............... 13

REASONS FOR GRANTING THE PETITION ....... 28

CONCLUSION.......................................................... 33

iii

TABLE OF CONTENTS – Continued

Page

APPENDIX TABLE OF CONTENTS

Opinion of the Court of Appeal of the State of

California (November 14, 2018) ......................... 1a

Order of the Supreme Court of California

Denying Petition for Review

(November 13, 2019) ........................................ 45a

Abstract of JudgmentPrison Commitment-Indeterminate

(March 6, 2017) ................................................. 46a

iv

TABLE OF AUTHORITIES

TABLE OF AUTHORITIES

CASES

Page

Adams v. State,

2003 WY 152, 79 P.3d 526 (Wyo. 2003) ............ 22

Ali v. United States,

581 A.2d 368 (D.C. 1990) .................................. 21

Bacon v. State,

22 Fla. 51 (1889) .................................................. 6

Barco v. Tilton,

694 F.Supp.2d 1122 (C.D. Cal. 2010) ............... 11

Bohnert v. State,

312 Md. 266, 539 A.2d 657 (1988) .................... 17

Bouaily v. United States,

483 U.S. 171 (1987) ........................................... 10

Boykin v. State,

257 So.2d 251 (Fla. 1971) ............................... 8, 25

Brooks v. State,

40 A.3d 346 (Del. 2012) ............................... 14, 21

Brown v. State,

281 Md. 241 (1977) .......................... 13, 14, 17, 23

Bruton v. United States,

391 U.S. 123 (1968) ........................................... 19

Bryan v. United States,

836 A.2d 581 (D.C. 2003) .................................. 14

Caminetti v. United States,

242 U.S. 470 (1917) ................................. 10, 15, 22

Coleman-Fuller v. State,

192 Md. App. 577, 995 A.2d 985 (2010) ............ 32

v

TABLE OF AUTHORITIES—Continued

Page

Commonwealth of the Northern Mariana

Islands v. Muna, 2016 MP 10 (2016) ...... 9, 23, 26

Commonwealth v. Brown,

617 Pa. 107, 52 A.3d 1139 (Pa. 2012) ............... 22

Commonwealth v. Rega,

593 Pa. 659, 933 A.2d 997 (Pa. 2007) ............... 15

Commonwealth v. Resende, 476 Mass. 141,

65 N.E.3d 1148 (Mass. 2017) ............................ 20

Commonwealth v. Wholaver,

177 A.3d 136 (Pa. 2018) .................................... 25

Cool v. United States,

409 U.S. 100 (1972) ........................................ 4, 17

Crawford v. United States,

212 U.S. 183 (1909) .................................... passim

Dawson v. State,

329 Md. 275, 619 A.2d 111 (1993) ...................... 19

Dennis v. State,

817 So.2d 741 (Fla. 2002) ........................ 8, 14, 25

Dorman v. United States,

491 A.2d 455 (D.C. 1984) .............................. 7, 26

Douglas v. Alabama,

380 U.S. 415 (1965) ............................................. 19

Duncan v. Louisiana,

391 U.S. 145 (1968) ............................................. 3

Evans v. State,

113 Nev. 885, 944 P.2d 253 (Nev. 1997) ........... 21

vi

TABLE OF AUTHORITIES—Continued

Page

Fallin v. State, 460 Md. 130,

188 A.3d 988, 2018 Md. LEXIS 375,

2018 WL 3410022 (July 12, 2018) .................... 17

Fields v. United States,

396 A.2d 522 (D.C. 1978) .............................. 6, 26

Gaskins v. State,

7 Md. App. 99, 253 A.2d 759 (1969) .................. 32

Holloman v. Commonwealth, 65 Va. App. 147,

775 S.E.2d 434 (Va. App. 2015) ........................ 25

Jackson v. Virginia,

443 U.S. 307 (1979) ........................................... 17

Johnson v. Commonwealth,

224 Va. 525, 298 S.E.2d 99 (Va. 1982) ............. 22

Jones v. State,

203 So.3d 600 (Miss. 2016) ......................... 22, 23

Laboa v. Calderon,

224 F.3d 972 (9th Cir. 2000) ......................... 3, 11

Lee v. Illinois,

476 U.S. 530 (1986) ........................................... 19

Linse v. State, 93 Wis. 2d 163,

286 N.W.2d 554 (Wis. 1980) .................. 15, 22, 25

Lowery v. State,

547 N.E.2d 1046 (Ind. 1989) ............................. 21

Luery v. State,

116 Md. 284, 81 A. 681 (1911) .................... 14, 21

M.H. v. State,

382 P.3d 1201 (Alaska Ct. App. 2016) .............. 20

vii

TABLE OF AUTHORITIES—Continued

Page

MacKool v. State,

365 Ark. 416, 231 S.W.3d 676 (Ark. 2006) ....... 20

Martin v. Commonwealth,

409 S.W.3d 340 (Ky. 2013) ................................ 22

McCoy v. State,

112 A.3d 239 (Del. 2015) ......................... 6, 22, 24

McGowan v. State,

990 So.2d 931 (Ala. Crim. App. 2003) .............. 20

Myers v. State,

43 Fla. 500 (1901) ................................................ 6

Osborne v. State,

54 So.3d 841 (Miss. 2011) ................................. 23

People v. Bowers,

801 P.2d 511 (Colo. 1990) .................................. 24

People v. Cobb, 97 Ill. 2d 465,

N.E.2d 31, 74 Ill. Dec. 1 (Ill. 1983) ................ 6, 24

People v. Davis, 28 N.Y.3d 294, 44 N.Y.S.3d 358,

66 N.E.3d 1076 (N.Y. 2016) ................................ 21

People v. Garton,

4 Cal.5th 485 (2018) .............................................. 4

People v. Gomez,

189 Colo. 91, 537 P.2d 297 (Colo. 1975) ........... 14

People v. Lemmon, 456 Mich. 625,

576 N.W.2d 129 (Mich. 1998) ............................ 21

People v. McLaurin, 184 Ill. 2d 58,

703 N.E.2d 11, 234 Ill. Dec. 399 (Ill. 1998) ........ 14

viii

TABLE OF AUTHORITIES—Continued

Page

People v. Nitti,

8 Ill. 2d 136, 133 N.E.2d 12 (Ill. 1956) ............. 21

People v. Romero,

62 Cal.4th 1 (2015) .............................................. 20

People v. Whalen,

56 Cal.4th 1 (2013) ............................................ 20

People v. Young, 472 Mich. 130,

693 N.W.2d 801 (Mich. 2005) .................. 7, 15, 26

Phillips v. State,

553 P.2d 1037 (Wyo. 1976) ................................ 15

Pittman v. State,

300 Ga. 894, 799 S.E.2d 215 (Ga. 2017) ........... 24

Postelle v. State, 2011 OK CR 30,

267 P.3d 114 (Okla. Crim. App. 2011) .............. 21

Robinson v. State,

303 Ga. 321, 812 S.E.2d 232 (Ga. 2018) ........... 20

Rohl v. State, 64 Wis. 2d 443,

219 N.W.2d 385 (Wis. 1974) .............................. 23

Shiver v. State,

41 Fla. 631 (1899) ................................................ 6

Smith v. State,

436 S.W.3d 353 (Tex. Crim. App. 2014) ......... 21, 24

Sparkman v. State, 27 Wis. 2d 92,

133 N.W.2d 776 (Wis. 1965) .............................. 23

State ex rel. Franklin v. McBride,

226 W. Va. 375,

701 S.E.2d 97 (W. Va. 2009) ......................... 7, 27

ix

TABLE OF AUTHORITIES—Continued

Page

State v. Adams, 194 N.J. 186,

943 A.2d 851 (N.J. 2008) ......................... 7, 15, 26

State v. Barnes,

791 N.W.2d 817 (Iowa 2010) .............................. 20

State v. Bey,

217 Kan. 251, 535 P.2d 881 (Kan. 1975) .......... 21

State v. Briggs,

152 Vt. 531 A.2d 779 (Vt. 1989) ........................ 15

State v. Cabagbag,

127 Haw. 302, 277 P.3d 1027 (Haw. 2012) ....... 14

State v. Dana,

59 Vt. 614, 10 A. 727 (Vt. 1887) ........................... 22

State v. Dunkelberger,

2018 SD 22, 909 N.W.2d 398 (S.D. 2018) ......... 21

State v. Everybodytalksabout,

145 Wn.2d 456, 39 P.3d 294 (Wash. 2002) ....... 25

State v. Guzman, 2004 UT App 211,

95 P.3d 302 (Utah App. 2004) ......................... 8, 26

State v. Harris, 290 N.C. 681,

228 S.E.2d 437 (N.C. 1976)....................... 7, 15, 27

State v. Hawkins,

519 S.W.3d 1 (Tenn. 2017).................................. 21

State v. Hicks,

257 S.C. 279, 185 S.E.2d 746 (S.C. 1971) ......... 22

State v. Horst,

880 N.W.2d 24 (Minn. 2016) ............................. 20

x

TABLE OF AUTHORITIES—Continued

Page

State v. Huffman,

222 Neb. 512, 385 N.W.2d 85 (Neb. 1986) ........ 22

State v. Hughes,

943 So.2d 1047 (La. 2006) .............................. 8, 26

State v. Johnson,

434 A.2d 532 (Me. 1981).......................... 8, 21, 26

State v. Keller,

297 N.C. 674, 256 S.E.2d 710 (N.C. 1979) ........ 22

State v. Kills on Top,

243 Mont. 56, 793 P.2d 1273 (Mont. 1990) ....... 20

State v. Klein,

243 Ore. App. 1, 258 P.3d 528 (Or. 2011) .......... 24

State v. Kyles,

233 So.3d 150 (La. Ct. App. 2016) .............. 21, 23

State v. Lankford,

162 Idaho 477, 399 P.3d 804 (Idaho 2017) ....... 20

State v. Little,

174 So.3d 1219 (La. Ct. App. 2015) .................. 24

State v. McKinsey,

116 Wn.2d 911, 810 P.2d 907 (Wash. 1991) ...... 15

State v. McLaughlin,

485 P.2d 1360, 207 Kan. 594 (Kan. 1971)...... 14, 22

State v. Montoya, 2016-NMCA-098,

384 P.3d 1114 (N.M. App. 2016) ....................... 22

State v. Moore, 293 Conn. 781,

981 A.2d 1030 (Conn. 2009) .................... 7, 14, 25

xi

TABLE OF AUTHORITIES—Continued

Page

State v. Morston,

336 N.C. 381, 445 S.E.2d 1 (N.C. 1994) ............. 15

State v. O’Dell, 45 Ohio St. 3d 140,

543 N.E.2d 1220 (Ohio 1989) ............................ 22

State v. Okumura, 78 Haw. 383,

894 P.2d 80 (Haw. 1995) ......................... 8, 14, 25

State v. Padilla, 427 P.3d 542,

2018 UT App 108 (2018) ............................... 15, 22

State v. Pona,

66 A.3d 454 (R.I. 2013) ...................................... 22

State v. Powell,

433 S.W.2d 33 (Mo. 1968) ................................. 23

State v. Prince,

211 So.3d 481 (La. Ct. App. 2018) .................... 15

State v. Quintana, 261 Neb. 38,

621 N.W.2d 121 (Neb. 2001) ......................... 6, 25

State v. Reardon,

486 A.2d 112 (Me. 1984) ..................................... 21

State v. Reddig, 2016 ND 39,

876 N.W.2d 34 (N.D. 2016) ............................... 21

State v. Rowsey, 343 N.C. 603,

472 S.E.2d 903 (N.C. 1996) ........................... 7, 27

State v. Sarracino, 1998-NMSC 022,

125 N.M. 511, 964 P.2d 72 (N.M. 1998)............ 15

State v. Sistrunk,

414 S.W.3d 592 (Mo. Ct. App. 2013) ................. 22

xii

TABLE OF AUTHORITIES—Continued

Page

State v. Spruill,

16 N.J. 73, 106 A.2d 278 (N.J. 1954) ................ 22

State v. Thresher,

122 N.H. 63, 442 A.2d 578 (N.H. 1982) ............... 22

State v. Tressler,

503 S.W.2d 13 (Mo. 1973) ................................. 23

State v. Tyler, 50 Ohio St. 3d 24,

553 N.E.2d 576 (Ohio 1990)................................ 24

State v. Vance, 164 W. Va. 216,

262 S.E.2d 423 (W. Va. 1980) ..................... 15, 22

State v. Washington,

355 Ore. 612, 330 P.3d 596 (Or. 2014).............. 21

State v. West,

112 N.H. 317, 295 A.2d 457 (N.H. 1972) .......... 15

Takacs v. Engle,

768 F.2d 122 (6th Cir. 1985) ............................ 12

Tidwell v. State,

644 N.E.2d 557 (Ind. 1994) ................................. 14

Turner v. Louisiana,

379 U.S. 466 (1965) ........................................... 13

Turner v. State,

294 Md. 416 (1982) ............................................ 16

United States v. Augenblick,

393 U.S. 348 (1969) ........................................... 11

United States v. Fritts,

505 F.2d 168 (9th Cir. 1974)................................ 12

xiii

TABLE OF AUTHORITIES—Continued

Page

United States v. Necoechea,

986 F.2d 1273 (9th Cir. 1993) ........................... 10

United States v. Wood,

299 U.S. 123 (1936) ........................................... 18

Varum v. State,

137 Fla. 438 (1939) .............................................. 6

Via v. Commonwealth,

288 Va. 114, 762 S.E.2d 88 (Va. 2014) ............. 15

Vlahos v. State,

2003 WY 103, 75 P.3d 628 (Wyo. 2003) ......... 8, 26

Washington v. Texas,

388 U.S. 14 (1967) ................................................ 4

Williams v. State,

32 So.3d 486 (Miss. 2010) ........................... 15, 25

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. VI ....................................... passim

U.S. Const. amend. XIV .............................................. 3

U.S. Const. Art. III, § 2, cl. 3 ............................. passim

STATUTES

28 U.S.C. § 1257 .......................................................... 1

Ala. Code § 12-21-222 ....................................... 4, 6, 20

Alaska Stat. § 12.45.020 ................................... 4, 6, 20

Ark. Code Ann. § 16-89-111(e)(1) ........................... 4, 6

xiv

TABLE OF AUTHORITIES—Continued

Page

Ark. Code Ann. § 16-89-111(e)(1)(A) ........................ 20

Cal. Penal Code § 187(a) ............................................... 2

Cal. Penal Code § 190.2(a)(15) ................................... 2

Cal. Penal Code § 1111 (1985) .................... 4, 6, 11, 20

Ga. Code Ann. § 24-4-8 ........................................... 4, 6

Ga. Code Ann. § 24-14-8 ........................................... 20

Idaho Code § 19-2117........................................ 4, 6, 20

Minn. Stat. § 634.04 .......................................... 4, 6, 20

Mont. Code Ann. § 46-16-213 ............................ 4, 6, 20

N.D. Cent. Code Ann. § 29-21-14 ..................... 4, 6, 21

Nev. Rev. Stat. § 175.291.................................. 4, 6, 21

Okla. St. Tit. 22, § 742 ...................................... 4, 6, 21

Ore. Rev. Stat. § 136.440 .................................. 4, 6, 21

Utah Code Ann. § 77-17-7(2) .......................... 8, 15, 26

JUDICIAL RULES

Iowa R. Crim. P. 2.21(3) ............................................ 20

Mass. Gen. Laws ch. 233, § 201 ............................... 20

N.Y. Crim. Proc. Law § 60.22 .................................... 21

S.D. Codified Laws § 23A-22-8 ......................... 4, 6, 21

Tex. Code Crim. Proc. Ann. art. 38.14 ..................... 21

xv

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

2 Wigmore, Evidence

(Little, Brown & Co. 1979) ................................ 20

Christine J. Saverda,

Accomplices in Federal Court: A Case for

Increased Evidentiary Standards,

100 YALE L.J. 785 (1990) ............................. 12, 13

Connecticut Judicial Branch,

Criminal Jury Instructions, § 3.10

(4th ed. 2017) ..................................................... 30

Derek J. T. Adler,

Ex Post Facto Limitations on Changes in

Evidentiary Law: Repeal of Accomplice

Corroboration Requirements,

55 FORDHAM L. REV. 1191 (1987)........................ 20

Jessica A. Roth,

Informant Witnesses and the Risk of

Wrongful Convictions,

53 AM. Crim. L. Rev. 737 (2016) ...................... 13

Maryland State Bar Association’s Criminal

Pattern Jury Instruction 3:11A ........................ 31

Model Criminal Jury Instructions Committee

of the Colorado Supreme Court,

Colorado Jury Instructions—

Criminal, D:05 (2017) ........................................ 29

Roth,

Informant Witnesses,

53 AM. Crim. L. Rev. 760 .................................. 17

xvi

TABLE OF AUTHORITIES—Continued

Page

The Michigan Supreme Court Committee

on Model Criminal Jury Instructions,

Michigan Model Criminal Jury

Instructions, 5.6 (1991) ..................................... 31

Bishop’s Crim. Proc. 2nd Ed., Vol. 2,

Sec. 1169 .............................................................. 9

1

OPINION BELOW

The Court of Appeal of the State of California,

Second Appellate District, Division Eight, issued its

unpublished opinion on November 14, 2018. See App.

1. A timely petition for review was denied without

comment or opinion by the Supreme Court of California,

en banc, on February 13, 2019. See App.45a.

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C.

§ 1257.

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const. Art. III. § 2, cl. 3

“[t]he Trial of all Crimes, except in Cases of

Impeachment, shall be by Jury”

U.S. Const. amend. VI

“[i]n all criminal prosecutions, the accused shall

enjoy the right to . . . trial . . . by an impartial

jury. . . . ”

2

INTRODUCTION

Twenty-one years after the 1991 murder of Usha

Patel, her husband, petitioner Shanker Patel, was

arrested for the crime. Mr. Patel was prosecuted on

a murder-for-hire theory. The jury did not reach a

verdict in defendant’s first trial. In the second, the

jury convicted him of first degree murder (Pen. Code,

§ 187, subd. (a)) and found lying-in-wait special circumstances to be true (§ 190.2, subd. (a)(15)). The trial

court sentenced defendant to life in prison without

the possibility of parole. No physical evidence connected

defendant to Usha’s murder. Evidence of defendant’s

guilt beyond a reasonable doubt was supplied by

circumstantial evidence and the trial testimony of

accomplice Medina and out-of-court statements by

accomplice Garcia.

Petitioner Patel here contends that in states like

California, where a person can be convicted of a crime

on the testimony of an accomplice only when corroborated by evidence tending to connect the defendant

to the commission of the crime, it is an abridgement

of the jury trial guarantees of U.S. Const. art. III, § 2,

cl. 3 and the Sixth Amendment for a trial court to

refuse to give a cautionary instruction when a

defendant requests it, the cautionary instruction

being one to the effect that the evidence of an

accomplice should be received by the jury with “great

caution.” (Hereafter we will refer to such an instruction as the “cautionary instruction.”)

While California’s statutory law prohibiting

convictions based solely on uncorroborated accom-

3

plice testimony is only a state law rule and is not

required by the federal Constitution or federal law

(see Laboa v. Calderon, 224 F.3d 972, 979 (9th Cir.

2000)), petitioner contends that in the absence of a

cautionary instruction when a defendant requests it,

an accomplice’s testimony should be deemed to be not

properly corroborated, thus resulting in abridgement

of the jury trial guarantees of U.S. Const. art. III, § 2,

cl. 3 and the Sixth Amendment. Stated differently,

petitioner contends that when a trial court refuses to

give the cautionary instruction when a defendant

requests it, a constitutional violation occurs because

of a lack of proper corroboration.

While acknowledging that states differ on the

question whether such a cautionary instruction is

required whenever an accomplice testifies, or is required

only when such testimony is uncorroborated, or is

required only when requested by the defendant, or is

left to the discretion of the trial judge, this Court should

grant certiorari and declare that notwithstanding

this diversity of approaches, some measure of protection should in all cases be provided to the defendant—

ensuring that, in all appropriate cases, the jury is

instructed to consider accomplice testimony with an

appropriate amount of skepticism—while also leaving

to the jury its usual role as the trier-of-fact and

assessor of witness credibility.

Consistent with the dictates of the jury trial

guarantees of U.S. Const. art. III, § 2, cl. 3 and the

Sixth Amendment—guarantees made applicable to the

States by operation of the Fourteenth Amendment,

Duncan v. Louisiana, 391 U.S. 145, 149-150 (1968)—

and fitting into this Court’s jury trial guarantee

4

jurisprudence—e.g., Cool v. United States, 409 U.S.

100 (1972); Washington v. Texas, 388 U.S. 14 (1967)—

the State of California, out of which this present case

arises, like some other states, requires corroboration

of an accomplice’s testimony before a person charged

with a crime can be convicted. Cal. Penal Code Ann.

§ 1111 (1985); see also Ala. Code § 12-21-222 (1986);

Alaska Stat. § 12.45.020 (1984); Ark. Code Ann. § 1689-111(e)(1) (1977); Ga. Code Ann. § 24-4-8 (1995);

Idaho Code § 19-2117 (1979); Minn. Stat. § 634.04

(1983); Mont. Code Ann. § 46-16-213 (1985); Nev. Rev.

Stat. § 175.291 (1985); N.D. Cent. Code Ann. § 29-2114 (1974); Okla. St., Tit. 22, § 742 (1969); Ore. Rev.

Stat. § 136.440 (1984); S. D. Codified Laws § 23A-228 (1979).

In this murder case, Michael Garcia committed

the murder and Stanley Medina was the alleged

middleman between Garcia and petitioner Shanker

Patel. Garcia and Medina were, as a matter of law,

accomplices in the murder-for-hire crime with which

Patel was charged and of which he was convicted.

No physical evidence connected Patel to the

murder. Evidence of guilt was supplied by circumstantial evidence, the out-of-court statements by accomplice Garcia and the trial testimony of accomplice

Medina.

Because California law requires corroboration of

an accomplice’s testimony to sustain a conviction,

People v. Garton (2018) 4 Cal.5th 485, petitioner Patel

here contends that in a state where the law otherwise

requires corroboration of an accomplice’s testimony to

sustain a conviction, a criminal defendant has a right

under the jury trial guarantees of the Sixth Amend-

5

ment and U.S. Const. art. III, § 2, cl. 3 to demand

that a trial judge instruct the jury that the evidence

of accomplices ought to be received with suspicion

and with the very greatest care and caution and

ought not to be passed upon by the jury under the

same rules governing other and apparently credible

witnesses. See, e.g., Crawford v. United States, 212

U.S. 183, 204 (1909).

Petitioner requested such an instruction but the

trial court refused it, the trial court failing also even

to instruct the jury that the testimony elicited from

Medina required corroboration.

STATEMENT OF THE CASE

A.

In States Where a Person Can Be Convicted of a

Crime on the Testimony of an Accomplice Only

When Corroborated by Evidence Tending to

Connect the Defendant to the Commission of the

Crime, It Is an Abridgement of the Jury Trial

Guarantees of the Sixth Amendment and U.S.

Const. Art. III, § 2, Cl. 3 for a Trial Court to

Refuse to Give a Cautionary Instruction When a

Defendant Requests It

The common law rule is that an accused may be

convicted upon the uncorroborated testimony of an

accomplice. In many of the states, including the State

of California, this common law rule has been abrogated

by statute, requiring corroboration of the testimony

of an accomplice before a person charged with a crime

can be convicted. 16 C.J. 698; Cal. Penal Code Ann.

6

§ 1111 (1985); see also Ala. Code § 12-21-222 (1986);

Alaska Stat. § 12.45.020 (1984); Ark. Code Ann. § 1689-111(e)(1) (1977); Ga. Code Ann. § 24-4-8 (1995);

Idaho Code § 19-2117 (1979); Minn. Stat. § 634.04

(1983); Mont. Code Ann. § 46-16-213 (1985); Nev. Rev.

Stat. § 175.291 (1985); N. D. Cent. Code Ann. § 2921-14 (1974); Okla. St., Tit. 22, § 742 (1969); Ore.

Rev. Stat. § 136.440 (1984); S.D. Codified Laws § 23A22-8 (1979).

Even in some states that still follow the common

law rule, when a conviction is sought on the testimony

of accomplices, it has been held that a defendant is

entitled to have the court charge the jury that the

evidence of an accomplice should be received by the

jury with “great caution.” See, e.g., Varum v. State

(1939) 137 Fla. 438; Bacon v. State, 22 Fla. 51 (1889);

Shiver v. State, 41 Fla. 631 (1899); Myers v. State, 43

Fla. 500 (1901); McCoy v. State, 112 A.3d 239 at 268

(Del. 2015) (stating “that a trial court must give

a[n] . . . instruction to the jury any time an accomplice

witness testifies”); People v. Cobb, 97 Ill. 2d 465, 455

N.E.2d 31, 35, 74 Ill. Dec. 1 (Ill. 1983) (stating defendant is “entitled” to an accomplice witness instruction

and finding error where it is not given); State v.

Quintana, 261 Neb. 38, 621 N.W.2d 121, 139 (Neb.

2001) (“It is the rule in this state that a defendant is

entitled to a cautionary instruction on the weight and

credibility to be given to the testimony of an accomplice, and the failure to give such an instruction is

reversible error.”).

Some states require such an instruction only when

requested by the defendant. See Fields v. United States,

396 A.2d 522, 526 (D.C. 1978) (“When a witness has

7

a strong motivation to lie, the trial court’s failure to

give a cautioning instruction when requested is reversible error. . . . The failure to give an accomplice instruction, however, is not plain error when the testimony

of the accomplice is corroborated by other evidence”),

disagreed with on other grounds by Dorman v. United

States, 491 A.2d 455 (D.C. 1984); People v. Young,

472 Mich. 130, 693 N.W.2d 801 at 807-08 (Mich. 2005)

(holding that the jury instruction must be requested

by defendant and that an appellate court must conduct

harmless error analysis on a rejected accomplice

credibility instruction); State v. Adams, 194 N.J. 186,

943 A.2d 851 at 864 (N.J. 2008) (“[B]ecause of the

inherent conflict in [an accomplice’s] testimony, a

defendant has a right, upon request, to a specific jury

instruction that the evidence of an accomplice is to be

carefully scrutinized and assessed in the context of

his specific interest in the proceeding”) (internal quotations omitted); State v. Rowsey, 343 N.C. 603, 472

S.E.2d 903, 911 (N.C. 1996) (“An accomplice testifying for the prosecution is generally regarded as an

interested witness, and a defendant, upon timely

request, is entitled to an instruction that the testimony of an accomplice should be carefully scrutinized”) (quoting State v. Harris, 290 N.C. 681, 228 S.E.2d

437, 447 (N.C. 1976)); State ex rel. Franklin v.

McBride, 226 W. Va. 375, 701 S.E.2d 97, 103, 103

n.14 (W. Va. 2009) (stating that the “instruction is

required when an accomplice to the crime testifies for

the State,” but only when requested by the defendant).

And in some states the decision whether to give

such an instruction is left to the discretion of the trial

judge. See State v. Moore, 293 Conn. 781, 981 A.2d

1030 at 1059-60 (Conn. 2009) (indicating that the

8

defendant is entitled to an instruction on the credibility

of accomplice witnesses when “[t]he conditions of

character and interest most inconsistent with a credible

witness” exist); Dennis v. State, 817 So.2d 741 at 751

(Fla. 2002) (not providing the instruction “was not

fundamental error which would justify reversing the

jury’s verdict. It is discretionary”) (quoting Boykin v.

State, 257 So.2d 251, 252 (Fla. 1971), vacated in part

on other grounds by Boykin v. Florida, 408 U.S. 940,

92 S.Ct. 2876, 33 L.Ed.2d 763 (1972)); State v.

Okumura, 78 Haw. 383, 894 P.2d 80, at 105 (Haw.

1995) (holding “that in some cases in which the

testimony of an accomplice substantially aids the

prosecution’s proof, a trial court may act properly

within its discretion if it refuses or otherwise fails to

give an accomplice witness instruction”); State v.

Hughes, 943 So.2d 1047, 1051 (La. 2006) (stating that

“the jury should be instructed to treat the [accomplice’s]

testimony with great caution,” but that “[w]hen the

accomplice’s testimony is materially corroborated by

other evidence, such language is not required”); State

v. Johnson, 434 A.2d 532, 537 (Me. 1981) (indicating

the “failure to give [a] cautionary instruction [is] not

obvious error when not requested and not automatic

error, even if requested”); State v. Guzman, 2004 UT

App 211, 95 P.3d 302, 312 (Utah App. 2004) (explaining

that “a cautionary instruction may be given if the

accomplice testimony is ‘uncorroborated’ and shall be

given if the trial judge finds the accomplice testimony

‘self-contradictory, uncertain or improbable’”) (quoting

Utah Code Ann. § 77-17-7(2)); Vlahos v. State, 2003

WY 103, 75 P.3d 628, 639 (Wyo. 2003) (indicating that

no “clear precedent in Wyoming require[s] cautionary

instructions on accomplice testimony”); Commonwealth

9

of the Northern Mariana Islands v. Muna, 2016 MP 10,

¶¶ 14-16 (2016) (holding that trial courts are not

required to issue accomplice witness instruction sua

sponte, though it is unclear whether the defendant is

entitled to the instruction if requested).

But even at common law, trial courts were very

cautious in their application of the rule; frequently,

without warrant of law, modifying it in actual practice.

In Vol. 2 of the Bishop’s Crim. Proc. 2nd Ed., Sec.

1169, in commenting on the common law rule, that

author says:

Under the common law, the mere uncorroborated testimony of an accomplice will, if

beyond a reasonable doubt it satisfies the

jury, who are the sole judge of the evidence,

sustain a verdict of guilty. But so manifest

is the danger of convicting men on evidence

from a source confessedly corrupt, and delivered by the witness to shield himself from

merited punishment, that the judges, while

explaining to the jury their right to convict

on it alone, by way of caution advise them

not to return a verdict of guilty unless it is

corroborated by evidence from a purer

source. Yet they are not as of law required

to give this advice.

Petitioner Patel here contends that in states

where a person can be convicted of a crime on the

testimony of an accomplice only when corroborated

by evidence tending to connect the defendant to the

commission of the crime, it is an abridgement of the

jury trial guarantees of U.S. Const. art. III, § 2, cl. 3

and the Sixth Amendment for a trial court to refuse

10

to give the cautionary instruction when a defendant

requests it.

To clarify petitioner’s contention and place it in

context, it is helpful to state what is not petitioner’s

contention. Of course, this Court long ago held that

an appellate court can sustain a conviction based

solely on the uncorroborated testimony of an accomplice.

Caminetti v. United States, 242 U.S. 470, 495-96 (1917)

(“This court does not weigh the evidence in a proceeding

of this character, and it is enough to say that there

was substantial testimony tending to support the

verdicts rendered in the trial courts.”). And of course

appellate judges may not decide the credibility of an

accomplice who testifies as a government witness.

Accordingly, courts of appeals must accept accomplice

testimony as truthful and in the light most favorable

to the prosecution. Such evidence is admissible even

when uncontradicted evidence at trial has demonstrated

that the co-conspirator or accomplice witness was a

criminal of the vilest character or had been promised

immunity or leniency for testifying as a government

witness.

And in Bouaily v. United States, 483 U.S. 171

(1987) this Court reasoned that presumptively unreliable co-conspirator statements “may become quite

probative when corroborated by other evidence.” Id.

at 180. This same analysis may well apply to an

accomplice’s testimony.

And this Court has held that “there is no absolute

rule of law preventing convictions on the testimony of

accomplices if juries believe them.” Caminetti, supra,

242 U.S. 470, 495; see United States v. Necoechea,

986 F.2d 1273, 1282 (9th Cir. 1993) (“The uncorrobo-

11

rated testimony of an accomplice is sufficient to sustain

a conviction unless it is incredible or insubstantial on

its face.”). “When we look at the requirements of procedural due process, the use of accomplice testimony

is not catalogued with constitutional restrictions.”

United States v. Augenblick, 393 U.S. 348, 352 (1969).

Therefore, the requirement of California Penal

Code § 1111 that “‘a conviction cannot be had upon

the testimony of an accomplice unless it be corroborated’

is a matter of state law, which does not implicate a

federal constitutional right” and, for example, in the

federal courts, cannot be the basis of federal habeas

relief. Barco v. Tilton, 694 F.Supp.2d 1122, 1136

(C.D. Cal. 2010).

Indeed, as the Ninth Circuit has explained, California’s statutory law prohibiting convictions based

solely on uncorroborated accomplice testimony is only a

state law rule: it is not required by Constitution or

federal law. See Laboa v. Calderon, 224 F.3d 972, 979

(9th Cir. 2000).

However, petitioner’s contention in this Court is

not grounded, per se, in the state law requirement

that accomplice testimony be corroborated. Rather, it

is founded on the premise that in the absence of a

cautionary instruction when a defendant requests it,

an accomplice’s testimony should be deemed to be not

properly corroborated, thus resulting in abridgement

of the jury trial guarantees of U.S. Const. art. III, § 2,

cl. 3 and the Sixth Amendment. Stated differently,

petitioner contends that when a trial court refuses to

give the cautionary instruction when a defendant

requests it, a constitutional violation occurs because

of a lack of proper corroboration.

12

Comparison can be made to Takacs v. Engle, 768

F.2d 122 (6th Cir. 1985) and United States v. Fritts,

505 F.2d 168 (9th Cir. 1974). In Takacs, 768 F.2d at 127

the court noted that “[i]f uncorroborated accomplice

testimony is sufficient to support a conviction under

the Constitution, there can be no constitutional right

to instruct the jury that it must find corroboration for

an accomplice’s testimony.” And in Fritts, 505 F.2d at

169, the court held on direct review that trial court’s

failure sua sponte give a cautionary instruction on

accomplice testimony did not warrant reversal.

But unlike in Takacs and Fritts, petitioner here

contends that corroborated accomplice testimony may

be sufficient to support a conviction only when a trial

court gives the cautionary instruction when a defendant

requests it and a trial court’s failure to give a requested

cautionary instruction on accomplice testimony does

indeed warrant reversal.

The danger of prejudicial impact on a jury is

manifest when an accomplice testifies against an

accused in exchange for a prosecutor’s promise of

leniency. An accomplice is liable for prosecution for

the crime charged against the defendant. He or she is

usually testifying in the hope of receiving lesser punishment. Thus, “[ilt is in his interest not only to implicate

others but to minimize his own role and exaggerate

the roles of his co-conspirators.” Christine J. Saverda,

Accomplices in Federal Court: A Case for Increased

Evidentiary Standards, 100 YALE L.J. 785, 786 (1990).

Because of an accomplice’s first-hand knowledge of

the details of the criminal conduct charged, his or her

testimony concerning the role played by the accused

may appear quite believable, and its veracity can

13

only be challenged by another accomplice. Id. at 78687.

As stated in Turner v. Louisiana, 379 U.S. 466,

at 472-473 (1965), “[i]n the constitutional sense, trial

by jury in a criminal case necessarily implies at the

very least that the ‘evidence developed’ against a

defendant shall come from the witness stand in a

public courtroom where there is full judicial protection

of the defendant’s right of confrontation, of crossexamination, and of counsel.”

Thus, it is urged that only when a trial court

gives the cautionary instruction when a defendant

requests it should accomplice testimony be deemed to

be properly corroborated and only when a trial court

accedes to a defendant’s request for a cautionary

instruction on accomplice testimony does a conviction

merit escape from reversal.

B.

Evidence of an Accomplice Should Be Received

with Great Caution and Scrutinized with Great

Care and the Lack of an Instruction to That Effect

Is Unjust

An accomplice’s testimony should “be regarded

with great suspicion and caution” because an accomplice

is “admittedly contaminated with guilt” and may turn

State’s evidence “to gratify his malice or to shield

himself from punishment.” Brown v. State, 281 Md.

241 at 244 (1977) (quoting Watson, 208 Md. at 217).1

1 See Jessica A. Roth, Informant Witnesses and the Risk of

Wrongful Convictions, 53 AM. Crim. L. Rev. 737 at 765-84

(2016) (discussing inherent, structural, and societal risks of

accomplice testimony); Christine J. Saverda, Accomplices in

Federal Court: A Case for Increased Evidentiary Standards,

14

Indeed, “the evidence of an accomplice is universally

received with caution and weighed and scrutinized

with great care.” Brown, 281 Md. at 243 (quoting Luery

v. State, 116 Md. 284, 292, 81 A. 681 (1911)).

Even those jurisdictions that allow conviction on

the uncorroborated testimony of an accomplice

express the same concern about the unreliability of

that testimony. E.g., People v. Gomez, 189 Colo. 91,

537 P.2d 297, 300 (Colo. 1975); State v. Moore, 293

Conn. 781, 981 A.2d 1030, 1059 (Conn. 2009); Brooks

v. State, 40 A.3d 346, 350 (Del. 2012) (requiring a

jury instruction stating “the testimony of an alleged

accomplice should be examined . . . with more care

and caution than” that of other witnesses); Bryan v.

United States, 836 A.2d 581, 584 n.3 (D.C. 2003)

(Glickman, J., concurring) (collecting cases for the proposition that accomplice testimony is presump-tively

unreliable); Dennis v. State, 817 So.2d 741, 751 (Fla.

2002) (discussing a jury instruction that directs jurors

to “use great caution in relying on the testimony of a

witness who claims to have helped the defendant

commit a crime”); State v. Okumura, 78 Haw. 383,

894 P.2d 80, 103-04 (Haw. 1995), abrogated on other

grounds by State v. Cabagbag, 127 Haw. 302, 277

P.3d 1027, 1038-39 (Haw. 2012); People v. McLaurin,

184 Ill. 2d 58, 703 N.E.2d 11, 21, 234 Ill. Dec. 399

(Ill. 1998); Brown v. State, 671 N.E.2d 401, 410 (Ind.

1996) (indicating “the danger of convictions resulting

from purchased testimony”) (quoting Tidwell v. State,

644 N.E.2d 557, 560 (Ind. 1994)); State v. McLaughlin,

485 P.2d 1360, 1364, 207 Kan. 594 (Kan. 1971)

100 Yale L.J. 785, 786-87 (1990) (discussing why accomplicewitness testimony should “be afforded special scrutiny”).

15

(quoting favorably the trial court’s jury instruction

that accomplice testimony “should be received with

great caution”); State v. Prince, 211 So.3d 481, 503

(La. Ct. App.), writ denied, 211 So.3d 481 (La. 2017)

& 237 So.3d 1190 (La. 2018), petition for cert. filed,

(No. 17-9016), ___ U.S.L.W. ___ (May 22, 2018); State

v. Jewell, 285 A.2d 847, 851 (Me. 1972); People v.

Young, 472 Mich. 130, 693 N.W.2d 801, 804 (Mich.

2005); Williams v. State, 32 So.3d 486, 490 (Miss.

2010); State v. West, 112 N.H. 317, 295 A.2d 457, 458

(N.H. 1972); State v. Adams, 194 N.J. 186, 943 A.2d

851, 864 (N.J. 2008); State v. Sarracino, 1998-NMSC

022, 125 N.M. 511, 964 P.2d 72, 77-78 (N.M. 1998);

State v. Morston, 336 N.C. 381, 445 S.E.2d 1, 12 (N.C.

1994) (quoting the pattern jury instruction with

approval); Commonwealth v. Rega, 593 Pa. 659, 933

A.2d 997, 1014 (Pa. 2007); State v. Padilla, 427 P.3d

542, 2018 UT App 108, ¶ 13 (2018) (quoting Utah Code

Ann. § 77-17-7); State v. Briggs, 152 Vt. 531, 568 A.2d

779, 784 (Vt. 1989) (quoting the trial court’s jury

instruction with approval); Via v. Commonwealth,

288 Va. 114, 762 S.E.2d 88, 88-89 (Va. 2014); State v.

Harris, 102 Wn.2d 148, 685 P.2d 584, 586-87 (Wash.

1984), overruled in part on other grounds by State v.

McKinsey, 116 Wn.2d 911, 810 P.2d 907 (Wash. 1991);

State v. Vance, 164 W. Va. 216, 262 S.E.2d 423, 42627 (W. Va. 1980); Linse v. State, 93 Wis. 2d 163, 286

N.W.2d 554, 558 (Wis. 1980) (“[A]ccomplice testimony

should be weighed with greater caution than the

testimony of other witnesses”); Phillips v. State, 553

P.2d 1037, 1040 (Wyo. 1976); Caminetti, supra, 242

U.S. 470, 495, (indicating that “it was the better

practice for courts to caution juries against too much

reliance upon the testimony of accomplices, and to

16

require corroborating testimony before giving credence

to such evidence”).

But, as exemplified by the facts of this case, a

rule that accomplice testimony may be deemed to be

properly corroborated only when a trial court gives

the cautionary instruction when requested by a

defendant strikes the best balance between the

potential dangers of accomplice testimony and its

potential value. Turner v. State, 294 Md. 416 (1982)

(indicating the purpose of the rule is to balance the

risk of incarcerating defendants based on untrustworthy testimony with the need to leverage those

“intimately connected with the crime” as sources of

evidence).

The goal of requiring corroboration is to prevent

the conviction of a criminal defendant based on

testimony that is inherently unreliable. The validity

and importance of that goal is unquestionable. And a

rule requiring the giving of a cautionary instruction

when requested by a defendant is well-suited to accomplishing that goal—in other words, it effectively

furthers the goals of assuring that convictions occur

only in those cases in which evidence of guilt is

reliable while distinguishing from cases in which it is

not. Under such a rule, a factfinder’s consideration of

evidence she or he might conclude is highly unreliable

in a given case can be cautioned against in that case,

while in a different case the same fact-finder may be

permitted to weigh a much lesser quantum of much

more suspect evidence, but in both cases be left to

fulfill the role of sole trier of the credibility of the

witnesses, while cautioned about the need to treat

accomplice testimony with due suspicion. See Roth,

17

Informant Witnesses, 53 AM. Crim. L. Rev. at 760-61

(discussing the “anemic corroboration requirements”

in those jurisdictions that do require corroboration of

accomplice testimony).

It is the jury’s role “to resolve conflicts in the

testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate

facts.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

“A basic principle of a criminal jury trial . . . is that

the jury is the judge of the facts. A corollary is that it

is ‘the province of the jury’ to determine the credibility

of the witnesses who provide evidence about those

facts.” Fallin v. State, 460 Md. 130, 188 A.3d 988,

2018 Md. LEXIS 375, 2018 WL 3410022, at *1 (July

12, 2018) (quoting Bohnert v. State, 312 Md. 266,

277, 539 A.2d 657 (1988)); see also Brown v. State,

368 Md. 320, 328, 793 A.2d 561 (2002) (“[T]here have

been numerous cases confirming that in jury trials

the credibility of witnesses is a jury issue.”).

In Cool v. United States, 409 U.S. 100 (1972),

this Court ruled on the constitutionality of a jury

instruction regarding the reliability of an accomplice’s testimony where that testimony tended to

exculpate the defendant. In Cool, the trial court had

instructed the jury to disregard the accomplice’s testimony that exculpated the defendant of counterfeit

charges unless the jurors found that the accomplice’s

testimony was true beyond a reasonable doubt. After

first defining the word “accomplice” and warning that

an accomplice’s testimony is “open to suspicion,” the

trial judge had made the following statement: “However, I charge you that the testimony of an accomplice is competent evidence and it is for you to pass

18

upon the credibility thereof. If the testimony carries

conviction and you are convinced it is true beyond a

reasonable doubt, the jury should give it the same

effect as you would to a witness not in any respect

implicated in the alleged crime and you are not only

justified, but it is your duty, not to throw this testimony out because it comes from a tainted source.”

This court held such instruction violated the Sixth

Amendment.

On the other side of the same coin petitioner

here argues that it is likewise a violation of the Sixth

Amendment for a trial judge to refuse to give a

cautionary instruction in a State where the law

otherwise requires corroboration of an accomplice’s

testimony to sustain a conviction, for a criminal

defendant should be considered to have a right under

the jury trial guarantees of the Sixth Amendment and

U.S. Const. art. III, § 2, cl. 3 to demand that a trial

judge instruct the jury that the evidence of accomplices

that tends to incriminate a defendant ought to be

received with suspicion and with the very greatest

care and caution and ought not to be passed upon by

the jury under the same rules governing other and

apparently credible witnesses.

In Crawford v. United States, 212 U.S. 183, 204,

(1909), overruled by statute on an unrelated point in

United States v. Wood, 299 U.S. 123, 132 (1936), this

Court stated that when an alleged accomplice testifies,

his confession that “incriminates himself together

with defendant . . . ought to be received with suspicion, and with the very greatest care and caution,

and ought not to be passed upon by the jury under

19

the same rules governing other and apparently

credible witnesses.” Id. at 204.2

Courts must be “mindful of the respective roles

of the court and the jury; it is the jury’s task, not the

court’s, to measure the weight of evidence and to judge

the credibility of witnesses.” Dawson v. State, 329

Md. 275, 281, 619 A.2d 111 (1993). The accomplice

2 This court applied this principle to the Sixth Amendment in

Douglas v. Alabama, 380 U.S. 415 (1965), holding that the admission of a nontestifying accomplice’s confession, which shifted

responsibility and implicated the defendant as the triggerman,

“plainly denied [the defendant] the right of cross-examination

secured by the Confrontation Clause.” Id. at 419. And this court

reaffirmed Douglas in Lee v. Illinois, 476 U.S. 530 (1986),

explaining that the holding in Douglas “was premised on the

basic understanding that when one person accuses another of a

crime under circumstances in which the declarant stands to

gain by inculpating another, the accusation is presumptively

suspect and must be subjected to the scrutiny of crossexamination.” 476 U.S. at 541. This is so because

The truthfinding function of the Confrontation Clause

is uniquely threatened when an accomplice’s confession is sought to be introduced against a criminal

defendant without the benefit of cross-examination.

. . . ‘Due to his strong motivation to implicate the

defendant and to exonerate himself, a codefendant’s

statements about what the defendant said or did are

less credible than ordinary hearsay evidence.’“ Ibid.

(quoting Bruton v. United States, 391 U.S. 123 at

141 (1968) (White, J., dissenting)).

Indeed, even the dissenting Justices in Lee agreed

that “accomplice confessions ordinarily are untrustworthy precisely because they are not unambiguously adverse to the penal interest of the declarant” but

instead are likely to be attempts to minimize the

declarant’s culpability. 476 U.S. at 552-553 (Blackmun, J., dissenting).

20

corroboration rule is an exception to that ordinary

division of roles that runs contrary to “a modern

trend towards removing evidentiary disabilities and

permitting the jury to weigh all of the available

evidence.” Derek J. T. Adler, Ex Post Facto Limitations

on Changes in Evidentiary Law: Repeal of Accomplice

Corroboration Requirements, 55 FORDHAM L. REV.

1191, 1205 (1987); see also 2 Wigmore, Evidence

§ 488, at 647 (Little, Brown & Co. 1979) (opining that

the common law rules on witness qualification “were

highly restrictive,” but “came to be recognized as

illiberal and unnecessary in many instances”).

California and fifteen other states have adopted

some form of the accomplice corroboration rule by

statute. See People v. Whalen, 56 Cal.4th 1 (2013)

(citing Cal. Penal Code § 1111), disapproved of on

other grounds by People v. Romero, 62 Cal.4th 1 (2015);

see also McGowan v. State, 990 So.2d 931, 987 (Ala.

Crim. App. 2003) (citing Ala. Code § 12-21-222); M.H.

v. State, 382 P.3d 1201, 1205 (Alaska Ct. App. 2016)

(citing Alaska Stat. § 12.45.020); MacKool v. State,

365 Ark. 416, 231 S.W.3d 676, 688 (Ark. 2006) (citing

Ark. Code Ann. § 16-89-111(e)(1) (A));Robinson v.

State, 303 Ga. 321, 812 S.E.2d 232, 235 (Ga. 2018)

(citing Ga. Code Ann. § 24-14-8); State v. Lankford,

162 Idaho 477, 399 P.3d 804, 834 (Idaho 2017) (citing

Idaho Code § 19-2117); State v. Barnes, 791 N.W.2d

817, 823 (Iowa 2010) (citing Iowa R. Crim. P. 2.21(3));

Commonwealth v. Resende, 476 Mass. 141, 65 N.E.3d

1148, 1158 (Mass. 2017) (citing Mass. Gen. Laws ch.

233, § 201); State v. Horst, 880 N.W.2d 24, 37 (Minn.

2016) (citing Minn. Stat. § 634.04); State v. Kills on

Top, 243 Mont. 56, 793 P.2d 1273, 1294 (Mont. 1990)

(citing Mont. Code Ann. § 46-16-213); Evans v. State,

21

113 Nev. 885, 944 P.2d 253, 257 (Nev. 1997) (citing

Nev. Rev. Stat. § 175.291); People v. Davis, 28 N.Y.3d

294, 44 N.Y.S.3d 358, 66 N.E.3d 1076, 1082 (N.Y. 2016)

(citing N.Y. Crim. Proc. Law § 60.22); State v. Reddig,

2016 ND 39, 876 N.W.2d 34, 36 (N.D. 2016) (citing

N.D. Cent. Code § 29-21-14); Postelle v. State, 2011

OK CR 30, 267 P.3d 114, 126 (Okla. Crim. App. 2011)

(citing Okla. Stat. tit. 22, § 742); State v. Washington,

355 Ore. 612, 330 P.3d 596, 604 (Or. 2014) (citing Or.

Rev. Stat. § 136.440); State v. Dunkelberger, 2018

SD 22, 909 N.W.2d 398, 400 (S.D. 2018) (citing S.D.

Codified Laws § 23A-22-8); Smith v. State, 436 S.W.3d

353, 369 (Tex. Crim. App. 2014) (citing Tex. Code Crim.

Proc. Ann. art. 38.14).

Maryland, in Luery v. State, 116 Ms. 284, 292

(1911), and Tennessee, in State v. Hawkins, 519 S.W.3d

1, 58 (Tenn. 2017), impose the accomplice corroboration

requirement as a judicially-imposed rule.

The rest of the states, plus the federal courts

and the District of Columbia, follow the traditional

common law rule, which does not require corroboration.

State v. Johnson, 178 Conn. App. 490, 179 A.3d 780,

786 (Conn. App. 2017); Brooks v. State, 40 A.3d 346

at 350 (Del. 2012); Ali v. United States, 581 A.2d 368,

377 n.17 (D.C. 1990); Smith v. State, 507 So.2d 788,

790 (Fla. D. Ct. App. 1987); People v. Nitti, 8 Ill. 2d

136, 133 N.E.2d 12, 13 (Ill. 1956); Lowery v. State,

547 N.E.2d 1046, 1053 (Ind. 1989); State v. Bey, 217

Kan. 251, 535 P.2d 881, 888 (Kan. 1975); State v.

Kyles, 233 So.3d 150, 157-58 (La. Ct. App. 2016);

State v. Reardon, 486 A.2d 112, 119 (Me. 1984); People

v. Lemmon, 456 Mich. 625, 576 N.W.2d 129, 137 n.22

(Mich. 1998); Jones v. State, 203 So.3d 600, 607 (Miss.

22

2016); State v. Sistrunk, 414 S.W.3d 592, 598 (Mo.

Ct. App. 2013); State v. Huffman, 222 Neb. 512, 385

N.W.2d 85, 90 (Neb. 1986); State v. Thresher, 122

N.H. 63, 442 A.2d 578, 582 (N.H. 1982); State v. Spruill,

16 N.J. 73, 106 A.2d 278, 280-82 (N.J. 1954); State v.

Montoya, 2016-NMCA-098, 384 P.3d 1114, 1121 (N.M.

App. 2016); State v. Keller, 297 N.C. 674, 256 S.E.2d

710, 714 (N.C. 1979); State v. O’Dell, 45 Ohio St. 3d

140, 543 N.E.2d 1220, 1225 (Ohio 1989); Commonwealth v. Brown, 617 Pa. 107, 52 A.3d 1139, 1165

(Pa. 2012); State v. Pona, 66 A.3d 454, 471 (R.I.

2013); State v. Hicks, 257 S.C. 279, 185 S.E.2d 746,

749 (S.C. 1971); State v. Dana, 59 Vt. 614, 10 A. 727,

729 (Vt. 1887); Johnson v. Commonwealth, 224 Va. 525,

298 S.E.2d 99, 101 (Va. 1982); State v. Vance, 164

W.Va. 216, 262 S.E.2d 423 at 426 (1980); Linse v.

State, 93 Wis.2d 163, 286 N.W.2d 554 (1980); Adams

v. State, 2003 WY 152, 79 P.3d 526, 529, 532 (Wyo.

2003); Caminetti, supra, 242 U.S. at 495.

The states that do not follow the accomplice

corroboration rule have taken different approaches to

the problem of the unreliability of accomplice testimony.

Some that previously followed the rule have revoked

it or limited it to certain types of cases. Four states

have revoked the rule: Arizona, State v. Edwards,

136 Ariz. 177, 665 P.2d 59, 67 (Ariz. 1983); Kansas,

McLaughlin, supra, 485 P.2d at 1363-64; Kentucky,

Martin v. Commonwealth, 409 S.W.3d 340, 344 n.1 (Ky.

2013); and Utah, Padilla, supra, 2018 UT App. 108 at

¶ 13, 427 P.3d 542.

Other jurisdictions allow juries to convict on the

uncorroborated testimony of an accomplice as long as

the testimony is not inherently incredible. See McCoy

23

v. State, 112 A.3d 239, 267 (Del. 2015) (“[I]n the rare

case where there is an irreconcilable conflict in the

State’s evidence concerning the defendant’s guilt, such

as would preclude a conviction beyond a reasonable

doubt, the trial court must remove the case from the

jury’s consideration and grant a motion for judgment

of acquittal”); Kyles, supra, 233 So.3d at 157-58

(allowing conviction on uncorroborated accomplice

testimony “provided the testimony is not incredible

or otherwise insubstantial on its face”); Jones, supra,

203 So.3d at 606 (Miss. 2016) (“[T]he uncorroborated

testimony of an accomplice may be sufficient to convict

an accused” if it is not “unreasonable, self-contradictory or substantially impeached”) (quoting Osborne v.

State, 54 So.3d 841, 846 (Miss. 2011)); State v. Tressler, 503 S.W.2d 13, 17 (Mo. 1973) (defendant may be

convicted on uncorroborated testimony of an accomplice

unless it is “so lacking in probative force as not to

amount to substantial evidence”) (quoting State v.

Powell, 433 S.W.2d 33, 34 (Mo. 1968)); Brown, supra,

52 A.3d at 1165 (Pa. 2012) (jury can convict on the

uncorroborated testimony of an accomplice “except in

those exceptional instances . . . where the evidence is

so patently unreliable that the jury was forced to

engage in surmise and conjecture in arriving at a

verdict based upon that evidence”); Rohl v. State, 64

Wis. 2d 443, 219 N.W.2d 385, 389 (Wis. 1974) (stating

that the uncorroborated testimony of an accomplice

is “competent evidence upon which to base a verdict

of guilty if it is of such a nature that it is entitled to

belief and the jury believes it”) (quoting Sparkman v.

State, 27 Wis. 2d 92, 133 N.W.2d 776, 778 (Wis.

1965)); Muna, supra, 2016 MP 10, ¶ 14 (2016) (“[A]

conviction may be based solely upon an accomplice’s

24

uncorroborated testimony, provided the testimony

is not inherently implausible”) (internal quotation

omitted).

A handful of states allow the testimony of one

accomplice to corroborate that of another. Pittman v.

State, 300 Ga. 894, 799 S.E.2d 215, 218 (Ga. 2017);

State v. Tyler, 50 Ohio St. 3d 24, 553 N.E.2d 576, 589

(Ohio 1990), superseded by state constitutional amend-

ment on other grounds as recognized by State v.

Smith, 80 Ohio St. 3d 89, 1997-Ohio 355, 684 N.E.2d

668, 683 n.4 (Ohio 1997); see also People v. Bowers,

801 P.2d 511, 524 (Colo. 1990) (allowing corroboration

by another accomplice for purposes of avoiding jury

instruction on uncorroborated accomplice testimony);

State v. Little, 174 So.3d 1219, 1227 (La. Ct. App.

2015) (same); State v. Klein, 243 Ore. App. 1, 258

P.3d 528, 534 (Or. 2011) (holding that an accomplice’s

out-of-court statements can corroborate that accomplice’s or another accomplice’s in-court testimony).

In an accommodation that is at least arguably

consistent with the deference generally afforded to

juries to assess credibility, several states allow conviction based on the uncorroborated testimony of an

accomplice but either require or permit the trial

court to instruct the jury as to its inherent unreliability. These courts diverge as to whether such an

instruction is required whenever an accomplice testifies,3 required only when such testimony is uncorrob3 See McCoy, 112 A.3d at 268 (stating “that a trial court must

give a[n] . . . instruction to the jury any time an accomplice

witness testifies”); People v. Cobb, 97 Ill. 2d 465, 455 N.E.2d 31,

35, 74 Ill. Dec. 1 (Ill. 1983) (stating defendant is “entitled” to an

accomplice witness instruction and finding error where it is not

25

orated,4 left to the discretion of the trial judge,5 or

required only when requested by the defendant. See

given); State v. Quintana, 261 Neb. 38, 621 N.W.2d 121, 139

(Neb. 2001) (“It is the rule in this state that a defendant is

entitled to a cautionary instruction on the weight and credibility

to be given to the testimony of an accomplice, and the failure to

give such an instruction is reversible error”).

4 See People v. Petschow, 119 P.3d 495, 504-05 (Colo. App. 2004);

Williams, supra, 32 So.3d at 491 (Miss. 2010) (“[F]or a defendant

to be entitled to a cautionary jury instruction, it is only

necessary that the accomplice’s testimony be uncorroborated”);

Commonwealth v. Wholaver, 177 A.3d 136, 165 (Pa. 2018)

(indicating “that the corrupt and polluted source instruction

pertains only to the uncorroborated testimony of an accomplice”)

(internal quotations omitted); Holloman v. Commonwealth, 65

Va. App. 147, 775 S.E.2d 434, 448 (Va. App. 2015) (“Although

. . . a trial court must warn the jury against the danger of

convicting upon [an accomplice’s] uncorroborated testimony[,]

where [such] testimony is corroborated, it is not error to refuse

a cautionary instruction”) (internal quotations and citation

omitted); State v. Everybodytalksabout, 145 Wn.2d 456, 39 P.3d

294, 307 (Wash. 2002) (“Cautionary instructions must be given

where the testimony of an accomplice is uncorroborated”); Linse,

supra, 286 N.W.2d at 558 (“[I]t is error to deny a request for an

accomplice instruction only where the accomplice’s testimony is

totally uncorroborated”).

5 See Moore, 981 A.2d at 1059-60 (indicating that the defendant

is entitled to an instruction on the credibility of accomplice

witnesses when “[t]he conditions of character and interest most

inconsistent with a credible witness” exist); Dennis, 817 So.2d

at 751 (not providing the instruction “was not fundamental

error which would justify reversing the jury’s verdict. It is

discretionary”) (quoting Boykin v. State, 257 So.2d 251, 252

(Fla. 1971), vacated in part on other grounds by Boykin v.

Florida, 408 U.S. 940, 92 S.Ct. 2876, 33 L.Ed.2d 763 (1972));

Okumura, 894 P.2d at 105 (holding “that in some cases in which

the testimony of an accomplice substantially aids the prosecution’s

proof, a trial court may act properly within its discretion if it

26

Fields v. United States, 396 A.2d 522, 526 (D.C.

1978) (“When a witness has a strong motivation to

lie, the trial court’s failure to give a cautioning

instruction when requested is reversible error. . . .

The failure to give an accomplice instruction, however,

is not plain error when the testimony of the accomplice is corroborated by other evidence”), disagreed

with on other grounds by Dorman v. United States,

491 A.2d 455 (D.C. 1984); Young, 693 N.W.2d at 80708 (holding that the jury instruction must be

requested by defendant and that an appellate court

must conduct harmless error analysis on a rejected

accomplice credibility instruction); Adams, 943 A.2d

at 864 (“[B]ecause of the inherent conflict in [an

accomplice’s] testimony, a defendant has a right,

upon request, to a specific jury instruction that the

refuses or otherwise fails to give an accomplice witness

instruction”); State v. Hughes, 943 So.2d 1047, 1051 (La. 2006)

(stating that “the jury should be instructed to treat the

[accomplice’s] testimony with great caution,” but that “[w]hen

the accomplice’s testimony is materially corroborated by other

evidence, such language is not required”); State v. Johnson, 434

A.2d 532, 537 (Me. 1981) (indicating the “failure to give [a]

cautionary instruction [is] not obvious error when not requested

and not automatic error, even if requested”); State v. Guzman,

2004 UT App 211, 95 P.3d 302, 312 (Utah App. 2004) (explaining that “a cautionary instruction may be given if the accomplice testimony is ‘uncorroborated’ and shall be given if the trial

judge finds the accomplice testimony ‘self-contradictory, uncertain

or improbable’”) (quoting Utah Code Ann. § 77-17-7(2)); Vlahos

v. State, 2003 WY 103, 75 P.3d 628, 639 (Wyo. 2003) (indicating

that no “clear precedent in Wyoming require[s] cautionary

instructions on accomplice testimony”); Muna, 2016 MP 10 at

¶ 14-16 (holding that trial courts are not required to issue

accomplice witness instruction sua sponte, though it is unclear

whether the defendant is entitled to the instruction if requested).

27

evidence of an accomplice is to be carefully scrutinized

and assessed in the context of his specific interest in

the proceeding”) (internal quotations omitted); State

v. Rowsey, 343 N.C. 603, 472 S.E.2d 903, 911 (N.C.

1996) (“An accomplice testifying for the prosecution

is generally regarded as an interested witness, and a

defendant, upon timely request, is entitled to an

instruction that the testimony of an accomplice should

be carefully scrutinized”) (quoting State v. Harris,

290 N.C. 681, 228 S.E.2d 437, 447 (N.C. 1976)); State

ex rel. Franklin v. McBride, 226 W. Va. 375, 701 S.E.2d

97, 103, 103 n.14 (W.Va. 2009) (stating that the

“instruction is required when an accomplice to the

crime testifies for the State,” but only when requested

by the defendant).

All of these approaches provide some measure of

protection to the defendant—by ensuring that, in

appropriate cases, the jury is instructed to consider

accomplice testimony with an appropriate amount of

skepticism—while also leaving to the jury its usual

role as the trier-of-fact and assessor of witness credibility.

Thus, petitioner here contends that in a state

like California, where the law requires corroboration

of an accomplice’s testimony to sustain a conviction,

a criminal defendant—against whom no physical

evidence connects the defendant to the crime and

evidence of the defendant’s guilt beyond a reasonable

doubt is supplied by circumstantial evidence, by the

trial testimony of an accomplice, and by the out-ofcourt statements made by another accomplice—should

be held to have a right under the jury trial guarantees

of the Sixth Amendment and U.S. Const. art. III, § 2,

28

cl. 3 to demand that a trial judge instruct the jury

that the evidence of accomplices ought to be received

with suspicion and with the very greatest care and

caution and ought not to be passed upon by the jury

under the same rules governing other and apparently

credible witnesses. See, e.g., Crawford v. United

States, 212 U.S. 183, 204 (1909).

REASONS FOR GRANTING THE PETITION

Model jury instructions in three states that do

not employ the accomplice corroboration rule nonetheless themselves, by those instructions, further the

goal of helping to prevent the conviction of a criminal

defendant based on testimony that is inherently

unreliable are those of Colorado, Connecticut, and

Michigan. In Colorado, the model instruction provides:

The prosecution has presented a witness

who claims to have been a participant with

the defendant in the crime charged. There is

no evidence other than the testimony of this

witness which tends to establish the participation of the defendant in the crime.

While you may convict upon this testimony

alone, you should act upon it with great

caution. Give it careful examination in the

light of other evidence in the case. You are

not to convict upon this testimony alone,

unless you are convinced beyond a reasonable

doubt that it is true.

29

Model Criminal Jury Instructions Committee of the

Colorado Supreme Court, Colorado Jury Instructions—Criminal, D:05 (2017) (excerpt).

In Connecticut the model instruction provides:

In weighing the testimony of an accomplice,

who is a self-confessed criminal, you must

consider that fact. All else being equal, it

may be that you would not believe a person

who has committed a crime such as this,

involving moral wrong, as readily as you

would believe a person of good character.

The amount of moral wrong involved in the

participation of the witness in the crime

should be weighed. Also, in weighing the

testimony of an accomplice who has not yet

been sentenced or whose case has not yet

been disposed of, or who has not been

charged with offenses of which the state has

evidence, you should keep in mind that he

may, in his own mind, be looking for or

hoping for some favorable treatment in the

sentence or disposition of his own case, and

that, therefore, he may have such an interest in the outcome of this case that his

testimony may have been colored by that

fact. Therefore, the jury must look with

particular care at the testimony of an accomplice and scrutinize it very carefully before

you accept it.

On the other hand, there are many offenses

that are of such a character that the only

persons capable of giving useful testimony

are those who are themselves implicated in

30

the crime. Each accomplice’s testimony is an

admission by him against his own natural

interest in not incriminating himself; and,

therefore, it may itself be evidence of his

testimony’ reliability.

It is for you, the jury, to decide what credibility you will give to a witness who has admitted his involvement in criminal wrongdoing

—whether you will believe or disbelieve the

testimony of a person who, by his own admission, has committed the crime(s) charged by

the state here. Like all other questions of

credibility, this is a question you must decide

based on all the evidence presented to you.

Connecticut Judicial Branch, Criminal Jury Instructions, § 3.10 (4th ed. 2017) (excerpt).

And in Michigan, the model instruction provides:

(1) You should examine an accomplice’s testimony closely and be very careful about accepting it.

(2) You may think about whether the accomplice’s

testimony is supported by other evidence,

because then it may be more reliable. However, there is nothing wrong with the prosecutor’s using an accomplice as a witness.

You may convict the defendant based only

on an accomplice’s testimony if you believe

the testimony and it proves the defendant’s

guilt beyond a reasonable doubt.

(3) When you decide whether you believe an

accomplice, consider the following:

31

(a) Was the accomplice’s testimony falsely

slanted to make the defendant seem

guilty because of the accomplice’s own

interests, biases, or for some other

reason?

(b) Has the accomplice been offered a

reward or been promised anything that

might lead [him/her] to give false

testimony? [State what the evidence has

shown. Enumerate or define reward.]

(c) Has the accomplice been promised that

[he/she] will not be prosecuted, or promised a lighter sentence or allowed to

plead guilty to a less serious charge? If

so, could this have influenced [his/her]

testimony?

[(d) Does the accomplice have a criminal

record?]

(4) In general, you should consider an accomplice’s testimony more cautiously than you

would that of an ordinary witness. You should

be sure you have examined it closely before

you base a conviction on it.

The Michigan Supreme Court Committee on Model

Criminal Jury Instructions, Michigan Model Criminal

Jury Instructions, 5.6 (1991) (excerpt).

In Maryland, where the accomplice corroboration

requirement is a judicially-imposed rule, the Maryland State Bar Association’s Criminal Pattern Jury

Instruction 3:11A covering the accomplice corroboration rule, includes a modest warning regarding the

reliability of accomplice testimony: “If you find that

32

the testimony of (name) has been corroborated, you

may consider it, but you should do so with caution

and give it the weight you believe it deserves.” A trial

court must give the instruction if it is requested and

there is “some evidence” to support it. ColemanFuller v. State, 192 Md. App. 577, 592-94, 995 A.2d

985 (2010); see also Gaskins v. State, 7 Md. App. 99,

104-06, 253 A.2d 759 (1969) (finding reversible error

where trial court declined the defendant’s request for

an accomplice-witness jury instruction).

Petitioner Patel submits that this Court should

grant certiorari to rule that in a state like California,

where the law requires corroboration of an accomplice’s testimony to sustain a conviction, a criminal

defendant—against whom no physical evidence connects the defendant to the crime and evidence of the

defendant’s guilt beyond a reasonable doubt is supplied

by circumstantial evidence, by the trial testimony of

an accomplice, and by the out-of-court statements

made by another accomplice—should be held to have

a right under the jury trial guarantees of the Sixth

Amendment and U.S. Const. art. III, § 2, cl. 3 to

demand that a trial judge instruct the jury that the

evidence of accomplices ought to be received with

suspicion and with the very greatest care and caution

and ought not to be passed upon by the jury under

the same rules governing other and apparently credible

witnesses. See, e.g., Crawford v. United States, 212

U.S. 183, 204 (1909).

33

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

COREY EVAN PARKER

COUNSEL OF RECORD

LAW OFFICE OF COREY EVAN PARKER

1230 ROSECRANS AVE, SUITE 300

MANHATTAN BEACH, CA 90266

(424) 456-3193

COREY@COREYEVANPARKERLAW.COM

MAY 13, 2019

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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