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.