Record and brief — Mueller v. Superior Court of California

UONeg

Office - Supreme Court, US.

81-1354 FILED

JAN 2 1982

ALEXANDER L. STEVAS,

CLERK

NO.

SUPREME COURT OF THE UNITED STATES

October Term, 1981

IRENE MUELLER,

Petitioner

vs.

SUPERIOR COURT OF CALIFORNIA, COUNT OF ORANGE

(California, Real Party in Interest)

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE

COURT OF APPEALS

OF THE

STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DISTRICT 1

IRENE MUELLER

1311-B S. Anaheim

Anaheim, California

92805

In Pro Per (714) 772-5120

i

QUESTIONS PRESENTED FOR REVIEW

1. Whether a criminal defendant in a state

prosecution for misdemeanor assault and

battery, and petty theft, was denied due

process of law under the 14th Amendment when

an investigatin policeman, acting as a state

representative, willfully, negligiently or

inadvertantly suppressed a business card

containing at least the name of a material

witness for the defense when such evidence

was required by petitioner as in the meaning

of Brady v. Maryland 373 U.S. 83, 87.

2. Whether evidence which might be helpful

to a criminal defendant and which is sup-

pressed by the police would result in a

denial of due process as in Mooney v.

Holohan 294 U.S. 103, 112.

3. Whether a criminal defendant is entitled

to a dismissal of a criminal case is justi-

fied where the lost evidence is so vital to

ii

the defendant of the case that a fair trial

is impossible without; that the lack of such

evidence deprives the defendant of her funda-

mental constitutional rights to a fair trial.

State v. Heath 147 F.Supp. 877.

iii

Questions Presented for Review...

Opinion Below

Jurisdiction .

U.S. Constitutional Amendments ...

Statement of the Case ....+.-+-«.-«

Argument .

Conclusions

Appendices

Appendix

Appendix

Appendix

Appendix

Appendix

Appendix

Appendix

Petitioner's Superior

Court Opening Brief

Order Denying Motion

to Dismiss

Trial Testimony of

Officer Kenney

Trial Testimony of

Petitioner

Trial Testimony of

Dr. Pennock

Denial, Court of

Appeals

Denial, Petitioner

for Hearing

I ww NS F- F&F &

W

TABLE OF AUTHORITIES

Table of Cases

331 F.2d 846

373 U.S. 83

386 U.S. 18

60 C.2d. 554

294 U.S. 10

360 U.S. 264

1

14 Cal.3d. 3%

317 U.S. 213

147 F.Supp. 877

235 F.Supp. 767

t

439 F.2d. 642

9

14th Amendment .

iv

Page

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- 12,13

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° i

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° 13

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. ll

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1

OPINION BELOW

There was no official or unofficial

report published by the California Court of

Appeals.

JURISDICTION

The grounds upon which the jurisdiction

of this Honorable Court is invoked are:

(i) The date that the judgment which is

sought to be reviewed was entered in August

24, 1981.

(ii) The Supreme Court of California

denies a petition for hearing on October 7,

1981, and all state remedies have been

exhausted. (Exhibit"E".)

(iii) The statutory provision confer-

ring jurisdiction on this Honorable Court is

28 U.S.C. 1257(3) which provides:

. Final judgment or decrees rendered

by the highest court of a State in which a

decision could be had, may be reviewed by

the Supreme Court as follows:

2

-.-By writ of certiorari, where the

validity of a treaty or statute of the United

States is drawn in question or where the

validity of a state statute is drawn in

question on the ground of its being repugnant

to the Constitution, treaties or immunity is

specially set up or claimed under the Consti-

tution, treaties or statutes of, or commis-

sion held or authority exercised under, the

United States. June 25, 1948, c. 646, 62

Stat. 929.

UNITED STATES CONSTITUTIONAL

AMENDMENTS INVOLVED

Fourteenth Amendment -

“All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and

of the state wherein they reside. No state

shall make or enforce any law which shall

abridge the privileges or immunities of citi-

zens of the United States; nor shall any

State deprive any person of life, liberty,

3

or property, without due process of law; nor

deny to any person within its jurisdiction

the equal protection of the laws."

STATEMENT OF THE CASE

WITH FACTS MATERIAL TO THE CONSIDERATION

OF THE QUESTIONS PRESENTED

1. On January 25, 1979, Petitioner

exited a J. C. Penney's store in Orange

County, California, carrying cosmetic items

from the store.

2. Petitioner was confronted by a

security guard for the store, a Miss Carol

Manstrom, and a scuffle ensued between the

two women.

3. Thereafter, a man intervened and

separated the two women. The man's identity

was not discovered before trial, and it

remained unknown at petitioner's hearing to

dismiss charges.

4. The identity of the man remains

unknown to this day and is the issue of this

writ. Credible evidence (Exhibit "A", p. 3

7

and Exhibit "D", p. 3) shows that this uniden-

tified man, referred to from now as witness

"X", escorted petitioner back into the store;

waited with petitioner until the police

arrived; tried to ally petitioner's emotional

distress in being arrested and assaulted by

comforting her with assurances that every-

thing would be all right.

5. Witness "X" having to return to his

occupation, gave his business card to an

arriving police officer who proceeded to give

it to another officer. Witness "X" did not

give a statement to the police but informed

them that if they needed to ask him questions

regarding this case, they could contact him.

6. The second police officer either

willfully or negligently suppressed the card.

Petitioner was unable to secure it from the

police upon request.

THE MEANING AND CONSEQUENCES

OF THE SUPPRESSED CARD

7. At a dismissal hearing, on January

29, 1980, the Honorable Thompson ruled that

Witness "X" was a material witness as to the

assault and battery charges, but not as to

the petty theft. She also ruled that the

business card, which contained the name of

the material witness, was valueless. (Order

denying motion to dismiss: Exhibit "B".)

8. Judge Thompson ruled that since

petitioner had been in the presence of Witness

"X" for a duration of at least 20 minutes,

petitioner should have had ample opportunity

to ascertain the identity of the man. Even

though petitioner had been placed under

arrest and was suffering emotionally and

physically from the anguish of being accused

of a crime and being savagely beaten by a

security guard. (Trial Testimony of Peti-

tioner's Doctor: Exhibit "E".) (Exhibit "D"

a. 3, 3<)

6

9. Since the hearing for dismissal,

Police Officer Kenney has testified at peti-

tioner's trial (Exhibit "C"); where he

states that the business card contained not

only the name of Witness "X", but also his

address and phone number.

10. Since the business card was lost

or destroyed by investigating officers,

Petitioner was unable to secure Witness "X"

as a possible favorable witness to her

defense.

ll. — Thompson ruled, as stated

above, that Witness "X" was not a material

witness as to the petty theft charge. How-

ever, Petitioner unequivocally stated to the

Honorable Judge Frank that Witness "X" was

in her proximity when she placed the $20.00

down on the counter (Exhibit "D", p. 1.)

There was no credible evidence produced by

the prosecutor to refute petitioner's

.

assertion or to establish that the witness

was not in the same areas as petitioner.

12. Officer Kenney testified at peti-

tioner's trial that Witness "X" could have

mentioned to him the possibility of observing

other things. Therefore, creating a major

inference that Witness "X" could have seen

the petty theft incident. (Exhibit "C", p. 5).

ARGUMENT

I

WAS PETITIONER DENIED HER DUE PROCESS

RIGHTS UNDER THE FOURTEENTH AMENDMENT

BECAUSE OF THE FAILURE OF THE INVESTIGATING

OFFICER TO PRESERVE THE BUSINESS CARD CON-

TAINING THE NAME AND ADDRESS OF A POSSIBLE

FAVORABLE WITNESS.

Petitioner's defense rested on the

testimony of Witness "X", who observed the

assault and battery and quite possibly the

petty theft. Petitioner testified that the

8

witness was extremely helpful towards her

during the time after the abrupt encounter

with the security guard (as stated in

Exhibit "D", p. 3).

Petitioner has provided direct evidence

to refute the findings of the Honorable

Thompson as to the materiality of the business

card to the defense. First, one can logically

conclude that Witness "X" gave his card to the

police officer because he wanted to be a wit-

ness; he wanted to inform the police as to

his observation of the incidences.

Secondly, the Honorable Thompson was

misinformed as to the fact that the card only

contained the name of the witness. As Peti-

tioner has shown already, Officer Kenney, who

was the first person to receive the card from

the witness, has testified that the business

card did in fact contain not only the name,

but also the address anc phone number of the

witness.

9

Further, Petitioner IRENE MUELLER, has

testified that the Witness "X" was in her

proximity when she placed the $20.00 on the

counter; therefore, providing direct evidence

that the witness was also material as to the

petty theft charge (Exhibit "D", p. 1).

Consequently, since the Honorable

Thompson in her order to dismiss found the

witness material as to the assault and

battery charges and petitioner has testified

under oath that the witness was near her in

the store, to which the prosecutor could not

refute, a reasonable person could conclude

that Witness "X" was material as to the

petty theft.

In fact, not only was the witness

material as to the petty theft, the business

card that contained the name, address and

phone number of the witness was, and is,

material as to the defense. Without the

business card, petitioner was unabie to

locate Witness "X" as a possible witness for

10

her defense; thereby, denying her a fair

trial.

APPLICABLE LAW

I

The suppression by the prosecutor at the

trial of evidence favorable to an accused

violates due process where the evidence is

material either as to guilt or punishment,

irrespective of the good or bad faith of the

prosecutor. Brady v. Maryland 373 U.S. 83,

10 L.ED2d 215, 83 S.Ct. 1194.

Negligent suppression of material

evidence by the government entitles a defen-

dant to a new trial. State v. Heath 147 F.

Supp. 877:

Heath decision stands for the principle

that an outright dismissal of a criminal

case is justified where the lost evi-

dence is so vital to the defense of the

case that a fair trial is impossible

without it.

In other words, in order for a defen-

dant to be entitled to dismissal of a

criminal charge on the basis of lost or

destroyed evidence he must establish the

critical nexus of materiality...

11

materiality must be shown to the extent

that the lack of such evidence deprives

the defendant of his fundamental Consti-

tutional rights to a fair trial.

In order for a conviction to be voided

on account of suppression of evidence, it

need not appear that the prosecuting attorney

was privy; it is sufficient if the suppression

is by investigating officers. Police are also

part of the prosecution, and the taint on the

trial is no less if they, rather than the

state's attorney were guilty of the nondis-

closure.

Pailure of the police to reveal such

material evidence in their possession is

equally harmful to a defendant whether the

information is purposely, or negligently,

withheld. Barbee v. Warden 331 Fed.R. 846;

Walker v. Bishop 235 F.Supp. 767; Brady v.

Maryland 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.

2d 215; Napue v. Illinois 360 U.S. 264, 79

s§.Ct. 1173, 3 L.Ed.2d 1217.

In United States v. Bryant 439 F.2d 642,

651, it’ was ruled that the government has a

12

duty to preserve evidence that is material.

"Hence, we hold that before a request for

discovery has been made, the duty of disclo-

sure is operative as a duty of preservation.

And if government is violative of that duty,

it is a denial of that defendant's due pro-

cess rights."

Ir

Under California law, it does not make

any difference whether the material evidence

that is suppressed is done so willfully,

negligently, or inadvertently when it is done

by a state agent representative if the

suppressed evidence affects directly the

question of guilt, the degree or amount of

prejudice is not to be weighed or measured by

the federal harmless error rule or Chapman v.

California, 386 U.S. 18, 24, 17 L.Ed2d 705,

87 S.Ct. 824; if the suppressed evidence

affects directly the quest on of guilt, the

sole question is materiality, and if found

13

material, the judgment of conviction must be

reversed.

In People v. Ruthford, 14 Cal. 3rd 399,

406, Chief Justice Wright, speaking for a

unanimous Court, said:

We note, preliminarily, that when the

evidence is suppressed or otherwise

made unavailable to the defense by con-

duct attributable to the State bears

directly on the question of guilt our

initial inquiry is whether such conduct

resulted in denial of a fair trial.

If so, the judgment of conviction must

be reversed without weighing the degree

of the prejudice to the accused.

1942) 317 U.S. 213, 216 87

L.Ed 214, 216, 63 S.Ct. 177; In Re Imbler

(1963) 60 Cal. 2d 554, 567 (35 Cal.Rptr.

293, 387 P.2d 6) wherein we stated:

‘Moreover, suppression by the state of

material evidence alone deprives a defen-

dant of due process of law. It is

necessary in such circumstances, of

course, that the materiality of the

evidence suppressed or otherwise not

disclosed be examined in order that we

may judge whether an accused has been

fairly tried, but that examination is one

which goes to the guestion of the evi-

dence rather than prejudice to the

accused. '

We conclude that the suppression of sub-

stantial material evidence bearing on the

credibility of a key prosecution witness

is a denial of due process within the

meaning of the Fourteenth Amendment.

Chapman _v. California (1967) 386 U.S. 18,

24 (17L.Ed 2d 705, 710-711, 87S.Ct. 824).

14

In the case at bar, investigating Officer

Kenney was given a business card by Witness "X

containing at least the name of a material

witness to the incidences that arose between

the petitioner and the security guard.

Officer Kenney has stated at trial that the

business card contained all the essential

requirements to make the card material: name,

address and phone number.

The card was given to the police officer

and then mysteriously disappeared. Thereby,

depriving petitioner of an essential part of

her defense and also has denied her due

process rights under the Fourteenth Amendment

of the United States Constitution.

We pray that Certiorari be granted to

resolve the serious constitutional issues

presented herein.

Respectfully submitted,

IRENE MUELLER

In Pro Per

APPENDIX A

PETITIONER'S SUPERIOR COURT

OPENING BRIEF

APPENDIX A

IN THE APPELLATE DEPARTMENT OF THE SUPERIOR

COURT, COUNTY OF ORANGE, STATE OF CALIFORNIA

PEOPLE OF THE STATE

OF CALIFORNIA,

Plaintiff and

Respondent,

) Case No. AP-3258

)

) Muni Ct. No. 79CM00607

)

) APPELLANT'S OPENING

Vv. ) BRIEF

)

IRENE DOROTHY MUELLER )

)

)

)

Defendant and

Appellant

STATEMENT OF THE CASE

Appellant was charged in Count I with a

violation of Penal Code sections 484-488 (petty

theft), in Count II with a violation of Penal

Code section 240 (assault), and in Count III

with a violation of Penal Code section 242

(battery) .

On January 29, 1980, a motion to dismiss

for failure to preserve evidence was heard by

the Honorable Barbara Thompson of the Central

Orange County Municipal Court. On January 3l,

1980, Judge Thompson denied appellant's motion

and made specific written findings, a copy of

which is attached hereto as Exhibit "A" and

incorporated by reference as though fully set

A-2

forth herein.

Jury trial in this matter was com-

menced on November 4, 1980, before the

Honorable Karl C. Frank, Judge Presiding.

On November 10, 1980, appellant was found

guilty of all three counts as charged in

the complaint. Notice of Appeal was timely

filed on December 10, 1980.

STATEMENT OF FACTS

On January 25, 1979, appellant exited

J. C. Penney's store in Orange County carrying

cosmetic items from the store in her purse.

A Penney's security agent, Carol Manstrom,

followed appellant and attempted to detain

her for shoplifting the items. Appellant

struck and kicked Carol Manstrom, giving rise

to charges of assault and battery. A scuffle

ensued between the two women, until two men

separated them. Although at the time of the

hearing on appellant's motion to dismiss, the

identity of either of the men was unknown,

Carol manstrom managed with some effort to

A-3

locate one of the men, Michael Anderson, and

he testified at trial. The other man dressed

in a leisure suit, accompanied the two women

back into the store. The appellant asserted

that this unidentified man had been in her

proximity when she allegedly shoplifted the

items, and when she left a twenty-dollar bill

on the counter for the cosmetic shine.

Judge Thompson, however, found that

credible evidence did not demonstrate a reason-

able possibility that this man was a material

witness to the petty theft charge (Exhibit

"A", p. 1, Im. 15-17). On the other hand,

Judge Thompson was satisfied that appellant

demonstrated a reasonable possibility that

this second man was a material witness to thes

assault and battery (Exhibit "A", p. 1, ln.

13-15).

This witness separated the two females

and asked for identification of the security

officer. He then convinced appellant that she

should accompany him and the security officer

A-4 |

He then convinced appellant that she should

accompany him and the security officer back

into the store for further investigation. He

accompanied the appellant to the security

office, and was present in the security office

from the time the appellant arrived there unti

just before the police arrived.

While at the security office in the

store, before any police officer had arrived,

appellant engaged in conversations with the

man over a period of twenty minutes and

learned that he had worked as a teacher in

Pasadena. The man called his place of employ-

ment from the security office in the presence

of the defendant, to explain that he would be

late. As a result of that call, appellant

learned that the man may work at St. Joseph's

Hospital.

By the time a police officer arrived,

the man had to leave, but he gave his business

card to the officer and left without giving

the officer a statement regarding what, if

A-5

anything, he had seen. Because his shift had

ended, that officer waited for another officer

to arrive to take over the investigation of the

case. The first officer's best recollection

is that he gave the second officer the business

card when he arrived. The second officer does

not remember receiving a business card. The

man's card contained no phone number and no

address. The man's name and address were not

included in any police reports. The court

found that the loss of the card was uninten-

tional. He was never found or further iden-

tified.

ISSUES

I. WAS IT ERROR TO DENY DEFENDANT"S

MOTION TO DISMISS ON DUE PROCESS

GROUNDS BECAUSE OF THE FAILURE OF

THE INVESTIGATING OFFICERS TO

OBTAIN THE NAME AND ADDRESS OF AN

INFORMANT WITNESS?

ARGUMENT

THE COURT ERRED IN ITS DEN OF

A-6

DEFENDANT'S MOTION TO DISMISS ON DUE

PROCESS GROUNDS .

The analysis of this first issue must

begin with the specific written findings of

the court below in its "Order Denying Motion

to Dismiss" (attached as Exhibit "A").

It should first be noted that the Supren

Court in People v. Hitch, 12 C.3d 641, set

forth the governing principles concerning the

loss or destruction of evidence by law enforce

ment. The Court first adopted a standard for

determining whether the evidence is sufficient

important to require that it be preserved and

made available to the defendant. The Hitch

Court adopted a standard similar to that appli

cable when a defendant seeks to discover the

identity of a confidential informant. The

Court held that evidence must be preserved anc

disclosed if "there is a reasonable possibilit

that (it) would constitute favorable evidence

on the issue of guilt or innocence (12 C.3d at

p. 649, emphasis added).

A-7

The court below, in denying defendant's

motion, made the following finding (Exhibit

"A", page 1):

The Defense has demonstrated a rea-

sonable possibility that the man ina

leisure suit (hereinafter referred to

as "X") is a material witness to the

assault and battery. Credible evidence,

however, does not demonstrate that there

is a reasonable possibility that X is a

material witness to the petty theft

charge.

The Court's finding as to the materiality

of the witness to the petty theft charge was in

error.

In Eleazer v. Superior Court (1970) 1

Cal.3d 847, the California Supreme Court held

that due process imposed a duty upon the police

or prosecuting authority to “make such

inquiries and arrangements as are reasonably

necessary to enable the prosecution and defense

to locate (an informer who is a material

A-8

witness "whose testimony might conceivably be

favorable to a defendant." (Emphasis added.)

In People v. Goss (1980) 109 C.A.3d 443

at page 455, ln. 7, the Court stated the fol-

lowing:

A showing of materiality is accom-

plished where the appellant demonstrates

a “reasonable possibility" the evidence

would be favorable on the issue of guilt

or innocence. (See Hitch, supra, 12

Cal.3d at p. 649; see also People v.

Nation (1980) 26 Cal.3d 169, 176).

First, as to materiality, there was a

reasonable possibility that the witness, "X",

could have impeached the testimony of the pro-

secution's witness, Carol Manstrom, that defen

dant shoplifted the cosmetic items. Appellant

testified at the hearing that "X" was in her

proximity wher she left a twenty dollar bill oa

the counter for the cosmetic items she alleg-

edly shoplifted. The testimony of witness "X"

would have therefore not only impeached the

credibility of the prosecution's witness (cf.

A-9

People v. Ruthford (1975) 14 Cal.3d 399, 407-

408), but also might have completely exonerated

appellant.

Appellant's testimony establishes the

witness' materiality (People v. Goss, supra,

109 C.A.3d 443, at page 455). In Goss, the

court stated (at page 455):

Appellant testified at the hearing

on the Hitch motion that he never made

the incriminating statements about

Kenny's plan to commit a burglary,

which the officer claimed appellant

had made in both statements. Appel-

lant's denial of these admissions

established the tape's materiality

(citation).

In the present case, witness "X" left

his card, containing his name, with the inves-

tigating police officers but the card was lost

or misplaced by the officer and neither the

mame or address of the witness was recorded.

The witness' potentially favorable testimony

was thereby lost to appellant for trial.

A-10

That the suppression or destruction of

material evidence results in the denial of a

fair trial on due process grounds was indica-

ted by the Supreme Court in People v. Ruthford

(1975) 14 C.3d 399, 407:

As in the case of suppression of

evidence which bears directly on the

question of an accused's guilt, the

suppression of material evidence

bearing on the question of the credi-

bility of the key witness for the

prosecution has also been cast in

language of denial of a fair trial.

And in People v. Nation (1980) 26

C.3d 169, at page 176, the Court noted:

As in Hitch, we are not in a posi-

tion to examine the suppressed

evidence to decide whether or not it

it material. However, evidence lost

to the defense because of its destruc-

tion b the authorities will be deemed

material for the purpose of triggering

the due process concerns of Hitch if

A-1l

there is a reasonable possibility

that it would be favorable to the

defendant on the issue of guilt or

innocence. (12 Cal.3d at p. 649).

The next question concerns the trial

court's fourth finding of fact (Exhibit "A",

p. 2) that the loss of the witness' card was

unintentional thereby precluding the imposi-

tion of Hitch sanctions.

////7/

That this finding and conclusion by the

court is in error is demonstrated by the

opinion of the Appellate Court in People v.

Swearingen, 84 C.A.3d 570, where it rejected

a contention that Hitch is inapplicable to

negligent loss of evidence. The Swearingen

court stated at page 574:

The Attorney General argues that

Hitch is applicable only when there

has been an intentional destruction

of evidence by the police and not

negligent loss of evidence. The

argument fails. . .(T)he Hitch rule

A-12

exists to guarantee a defendant a

fair trial through the preservation

of evidence and not to punish police

conduct. A fair trial is no less

denied by negligent loss of evidence

than it is by nonmalicious destruction.

(Emphasis added.)

The court below was also of the opinion

that the card was valueless because it appar-

ently did not contain an address or telephone

for the witness. Unlikely as it may see that

the card simply had the man's name imprinted

on it, nevertheless, the name alone of the

witness would have been of immense value to

the defendant. A name can be trached through

the telephone directory, or the personnel

records searched at St. Joseph's Hospital

or the Pasadena School District. (See

Engrossed Statement on Appeal, page 3, In. 12-

18.) In short, a name is better than no name

and is not valueless. There was a reasonable

and distinct possibility that the witness

could have been located for defendant's trial.

A-13

The court below further held that the

defendant had ample opportunity to have

obtained the name herself. This fact is

irrelevant in light of these circumstances

since it is not a case of the investigating

officer's neglect to obtain the name of the

witness but the failure to preserve the name

of the witness once obtained. In Peo Vv.

Hitch (1974) 12 Cal.3d 641, 650, the Supreme

Court held that the obligation to disclose the

existence of material evidence places on the

state a correlative duty to preserve such

evidence even without a request therefor, and

directed that in the future law enforcement

agencies take reasonable measures of the prob-

lem covered by Hitch, in that defendant here

was not charged at the time the police obtained

the name of the witness. If arequest were a

condition to the duty to preserve, the duty

might not arise until it became impossible of

performance.

Lastly, the trial court's reliance on

People v. Hernandez (1978) 84 C.A.3d 408 is

A-14

misplaced. Hernandez, at page 41l, stated the

following:

Significant reasons compel the

difference between the duty of

maintenance of contact by the police

with their informant, on the hand,

and the limited duty with respect to

an ordinary witness, on the other.

The duty with respect to informants

extends to those who act as police

agents.

///1/

Witness "X" in the present case was

more than just a material witness. He was a

percipient witness not only to the alleged

shoplift but was also a material and percipi-

ent witness to the assault and battery charges

who had witnessed the event and was involved

in the incident. The witness had separated

the two scuffling females, the security agent

and defendant, and asked for the identifica-

tion of the agent. He then convinced defen-

dant that she should accompany himself and the

A-15

agent back into the store (Engrossed Statement

on Appeal, p. 3, In. 3-ll). It is interesting

to note that the witness' conduct is signifi-

cant in that he implied a willingness to be

preserved as a witness, so to speak. Not only

did he wait in the security office with defen-

dant until the arrival of the police but he

also provided the police officer with his

mame by way of his business card. He wanted

to be a witness and the police agency by

way of its loss of the business card deprived

the defendant of her opportunity to obtain a

fair trial.

CONCLUSION

What then is the appropriate sanction to

be imposed for the failure to preserve the

witness' name and what is the appropriate

standard for review? In People v. Ruthford,

supra, 14 C.3d 399, at page 408, it was

stated:

We conclude the suppression of

substantial material evidence

bearing on the credibility of a key

notes

A-16

prosecution witness is a denial of

due process within the meaning of

the Fourteenth Amendment. ..

An accused, accordingly, is entitled

to relief in such circumstances unless

we can declare a belief that the

denial “was harmless beyond a

reasonable doubt." (citation)

As to the sanction to be imposed, Hitch

that (12 C.3d at p. 654):

(W) here material evidence which

would be of potential value in the

impeachment of a prosecution witness

has been improperly lost or destroyed

by the government, federal decisions

have indicated that the appropriate

san n to be im ed is ss n

of witness' testimony. (Citations)

This principle was restated in Brown v.

Municipal Court (1978) 86 C.A.3d 357, at page

363, as follows:

Where potentially impeaching

evidence on behalf of defendant is

A-17

suppressed (by law enforcement),

due process does not require dismis-

sal of the action, but only exclusion

of t rosecution's evidence which

mi have been impeached b

evidence suppressed.

Since the unidentified witness was

made unavailable by the police loss of his

name and his testimony might have had impeach-

ment value as to the security agent's testi-

mony regarding the petty theft and the assault

and bettery, the security agent should have

been precluded from testifying (Ct. People v.

Goss, supra, 109 C.A.3d 443,456).

DATED: April 9, 1981

Respectfully submitted,

GILES, STEWART &

BARNETT

RICHARD L. KARCH

Attorney at Law

APPENDIX B

ORDER DENYING MOTION TO DISMISS

APPENDIX B

MUNICIPAL COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF ORANGE

PEOPLE OF THE STATE

OF CALIFORNIA, NO. 79CM00607

Plaintiff, ORDER DENYING MOTION

)

)

)

. TO DISMISS

)

)

)

)

__Defendant. _____)

Defendant's motion to dismiss Counts I and

II of the Complaint having come for hearing on

January 28, 1980, before the Honorable Barbara

Tam Thompson, E. Wallace Dingman, Deputy Dis-

trict Attorney, appearing on the behalf of the

people, and Marv A. Stern appearing on behalf

of Irene Dorothy Mueller.

The Court having considered oral argu-

ment, testimony, and the points and authority

cited by the parties, the Court now makes the

following findings:

The Defense has demonstrated a reasonable

possibility that the man in a leisure suit

(hereinafter referred to as "X") is a material

witness to the assault and battery. Credible

B-2

evidence, however, does not demonstrate that

there is a reasonable possibility that X is a

material witness to the petty theft charge.

The standard in determining the People's

responsibility for the absence of a material

witness set forth in such cases as People vs.

Hernandez (1978) 84 Cal.App. 3d 408; In re

Jesus B. (1977) 75 Cal.App. 3d 444; and

People vs. Flores (1976) 62 Cal.App. 3d Supp.

19 has not been satisfied. The Court bases

this conclusion upon the following grounds:

First, Defendant had ample opportunity to

discover X's name and address. Credible

evidence demonstrates that Defendant was not

prevented from conversing with X, and did

engage in conversation with him for approxi-

mately 20 minutes.

Second, Defendant's mistaken belief that

the police would obtain X's identity is not

sufficient to excuse Defendant from the

responsibility of safeguarding her own

interests, or to cause the police officers

to serve as defense investigators.

B-3

Third, credible evidence demonstrates

that Defendant was able to determine that X

was a teacher like herself, and that he had

possibly taught in Pasadena. Credible

evidence also shows the Defendant was able

to listen to X's phone conversation with his

place of employment and, as a result, was able

to determine that he may work at St. Joseph's

Hospital. Such ability indicates the Defen-

dant was not suffering from such physical or

mental distresss as to be unable to determine

X's identity.

Fourth, credible evidence demonstrates

that the loss of X's card by the police was

unintentional and was not tainted with the

degree of wrongdoing set forth in the above-

cited cases. Credible evidence further demon-

strates that X's card is valueless as it did

not contain an address or telephone number for

xX.

Based on the foregoing reasons, the Court

denies Defendant's motion to dismiss the petty

B-4

theft as well as the assault and battery

charges.

Dated: January 31, 1980

Judge of the Central Municipal

Court

APPENDIX C

TRIAL TESTIMONY OF OFFICER KENNY

MUNICIPAL COURT OF THE ORANGE COUNTY CENTRAL JUDICIAL DISTRICT

COUNTY OF ORANGE, STATE OF CALIFORNIA

DEPARTMENT NO. 313 HON. KARL C. FRANK, JUDGE

THE PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff,

No. 79C M00607

Oe ae eee ee

REPORTER'S TRANSCRIPT ON APPEAL

November 3, 4, 5, 6, 7, 10, 1980

Por the People: CECIL SICKS, District Attorney

BY: DAVID W. POMEROY

Courthouse

P. 0. Box 808

Santa Ana, California 92701

For the Defendant: GILES, CALLAHAN, McCUNE, WILLIS & EDWARDS

17321 Irvine Boulevard

Tustin, California 92680

COPY

VOLUME 3 of 3 460 WEST CHarman. SUITE C

Pages 400 through 526

APPENDIX C

A Yes, sir, I did.

Q Who was that?

A The woman sitting at the end of

MR. POMEROY: Indicating the defendant,

your Honor.

Q Did you observe any visible marks or

bruises or any kind of visible evidence of

any injury?

A No, sir, I did not.

Q For approximately how long were you

there in the security office?

a Approximately 15 minutes

Q During that time did you have any

conversation with the lady seated at the end

of the counsel table?

A Not that I recall, sir.

Q During that time did she ever com-

plain of any pain or injury or bruise or

anything?

A No, sir.

Q Did she request any medical assis-

tance?

C-2

A No, she did not.

Q Officer, was -- were there any men

there in the security office?

Not in the security office, no.

Did you see any men in that area?

Just outside the security office.

And who was that, if you know?

r Oo FY, OD ?Y

It was an elderly gentleman, I'd say

maybe 55, 56 years old, to the best of my

recollection.

Q Did you have any conversation with

him?

a Briefly, yes, I did.

Q What was said in that conversation?

A To the best of my recollection, he

said that he was outside in the mall area and

he observed a fight between what was later to

his knowledge a security guard and the woman

sitting at the end of the table.

Q Did he say who had attacked whom?

A No, he did not.

Q Did he state any intention of what

he wanted to do or anything like that, where

he wanted to go?

A He said that he was -- if there was

any further questions he gave me his business

card and with his telephone number on it, and

I told him that another officer would be

taking the report and would contact him.

Q Did he say where he was going?

A Just to work.

Q Did you ask him to leave?

A I believe I asked if he could leave

and I said yes.

Q To your knowledge, did anybody tell

him to leave?

A No, sir.

Q What did you do with that business

card? ©

A I gave it to Officer Scott Staton.

Q And was Officer Staton there at

that time?

A No, he was not.

Q So what did you do with the card

until Officer Staton arrived?

c-4

A Clipped it to my pen on my shirt,

uniform shirt.

Q During the time that you were there,

was Officer Dave Dieball from Orange there?

A I don't recall seeing him there, no.

MR. POMEROY: Nothing further.

THE COURT: Mr. Olson.

CROSS-EXAMINATION

BY MR. OLSON:

Q Officer Kenney, you were the first

officer to arrive on the scene?

A Yes, sir, I was.

Q And you made contact with a man who

represented himself to be a witness?

A To the incident outside, what he

told me about, yes, sir.

Q Where were you when you first ran

into this gentleman?

a I believe it was just outside the

security office.

Q Were you ever inside the security

office with the man?

c-5

A Not that I recall, no, sir.

Q I will ask you to think very hard on

that one. Were you inside the security office

at any time with that gentleman?

A Not that I recall.

Q When you say "Not that I recall," do

you mean no?

a Yes. I just can't recall being

inside the office with him.

Q Well, would you recall if you had --

A If I --

MR. POMEROY: Objection.

THE WITNESS: If I would recall, yes.

MR. POMEROY: Objection. That calls for

speculation.

THE COURT: Well, what was your

answer again?

THE WITNESS: I didn't recall being --

seeing him inside the security office.

MR. OLSON: His answer just now was,

"Yes, I would remember."

THE COURT: All right. Then the objec-

tion's overruled.

C-6

Q BY MR. OLSON: So then your answer

is yes, I would remember.

Now, you do remember running into

him outside of the security office. Is that

correct?

A Yes, sir.

Q How far outside the security office?

Was it in the store?

ne It was in the package pickup area,

which was --

Q Okay. And he was on his way out?

a He was standing there. I don't

believe he was on his way out. He was just

standing around.

Q Did he indicate that he was waiting

for the police to arrive?

a He may have. I just recall talking

to him about the incident.

Q But, in any case, he did give you

his business card?

A Yes, sir, he did.

Q And said that he was a witness?

A To the incident outside, yes, sir.

C-7

Q Well, did he say he was a witness to

the incident outside or just say he was a wit-

ness?

A He told me had had witnessed the

fight ouside the store.

Q And nothing more?

No.

And did you look at his business

card?

A Yes, I did.

Q Do you recall what it said on his

business card?

A The only thing that I can recall

was that it had the word "doctor" in the front

of his name.

Q Did it have an address?

A I believe it had an address some-

where in Irvine, to my recollection. I can't

remember the street address or anything like

that.

Q Did it have a phone number on it?

A I believe, yes, sir. Yes, it did.

c-8

Q Did you search Irene Mueller's purse

A No, I did not.

Q When you arrived did you notice item

reportedly stolen on a desk?

A Yes, I did.

Q Did you conduct any search of Irene

Mueller then?

taken her out. I don't know whether it was

before or after the incident.

Q Were you aware of their relationshifr

on the day of the incident?

A No.

Q Who was the second officer to arrive

on the scene?

A Officer Staton.

Q Who called Officer Staton?

A Dispatch did. It was originally his

call.

Q Originally his call?

Yes, sir.

But you arrived first, and why is

that?

c-9

A I was working day shift and it was

the end of day shift and they asked that I

respond out there, stand by until Staton,

who was working swing shift, could come out.

Q What time does the day shift end?

Aa 3 o'clock.

Q This was about 2:30?

A I believe it was even later than

that, because I was on my way into the

station when I got the call.

Q What did you say you did with the

business card of the gentleman?

A Clipped it to my shift.

Q Did you give it to Officer Staton

when he arrived?

A Yes, I did.

Q Did you explain to him what it was?

A Yes, I did.

Q And what did you tell him?

A I told him that the man on the

business card I had had witnessed a fight out-

side and that if there was any further ques-

tions he could give him a call.

c-10

Q You didn't write the report on that

incident. Is that correct?

A That's correct.

Q If you had written the report would

you have considered that name to have been

important enough to go into the report?

MR. POMEROY: Objection; irrelevant.

THE COURT: Overruled.

THE WITNESS: I would think so, yes.

Q BY MR. OLSON: Did you have a con-

versation with Carol Manstrom upon arrival?

A Yes, I did.

Q And did she expalin her side of the

story to you?

A Briefly, yes.

Q Did you have a conversation with

Irene Mueller?

A Not that I recall, no, sir.

Q Did your conversation with Carol

Manstrom take place inside the security office

or outside?

A Usually when I respond to take the

report I ask the security officer to step out-

c-11

side and tell me what had occurred, so I would

imagine that's what I did.

Q Do you recall who else was in the

room when you arrived, in the security room?

A I don't think so, no, sir.

Q Were you visible from inside the

security office where you were standing?

a I may have been. I don't recall if

I was or was not.

Q Why don't you resume the stand.

Pave you ever testified before

relating to these matters?

a Yes, sir, I have.

Q Was one of those days August 17th,

A I believe that was the date, yes,

sir.

Q That was under oath?

A Yes, sir, it was.

Q Was your testimony any different on

that day regarding the conversation with the

mystery witness?

_ Not that I recall, no, sir.

C-12

MR. OLSON: Can I approach the witness

your honor?

THE COURT: Yes.

Q BY MR. OLSON: If I showed you a cop

of your deposition, would that refresh your

memory?

A Yes, sir.

Q I am referring to page 13 of your

testimony, and the question was, "Did you

observe any witnesses or did you leave the

room to ascertain whetrer there were any

witnesses at the time that you were investiga-

ting the alleged shoplifting and assault and

battery at the J. C. Penney Company?"

Your answer wus, "The only person

that I can remember talking to was the gentle-

man that handed me the business card."

The next question was, "Do you remem

ber the conversation?"

A "Not really, no."

Q Is there some reason that you now

remember that he stated he was a witness tc

the incidents outside?

C-13

A No, sir.

Q You didn't remember the conversation

on the 17th of August but is it now your testi-

mony that you do remember some of the conver-

sation?

4a I remember right now maybe the crux

of what he said.

Q Do you know Officer Staton?

Yes, sir, I do.

Very well?

‘With working with him, yes, sir.

Is he your partner?

No, sir.

Dn rr, OD FY ODO YY

How about Officer Dieball?

A No, sir -- I do know Officer Dieball

but he's never been my partner.

Q Are you on good terms with those two

gentlemen?

A Yes, sir.

MR. OLSON: Nothing further, your

Honor.

THE COURT: Anything further from the

People?

C-14

responded back with a copy of it.

Q Did you make any changes?

A No, I didn't.

MR. OLSON: Nothing further, your

Honor.

THE COURT: Mr. Pomeroy?

FURTHER REDIRECT EXAMINATION

BY MR. POMEROY:

Q Have numerous people told you that

this gentleman may have been a witness to what

happened outside?

A To the outside occurrence?

Q Yes.

A Yes.

Q Do you think that you might be

assuming that he told you that he had

witnessed something, just because so many

people had told you that he might have?

MR. OLSON: Objection; calls for

speculation.

THE COURT: Overruled.

c-15

THE WITNESS: As I think of the situation

now as I sit up here on the stand, I feel

comfortable with testifying that yes, he did

say something about seeing a fight outside.

MR. POMEROY: Thank you. Nothing further.

FURTHER RECROSS-EXAMINATION

BY MR. OLSON:

Q You have testified you don't remem-

ber the entire conversation. Is that correct?

A Yes, sir.

Q Then he may have also witnessed other

items?

THE cOURT: He may have told you that

he witnessed other items.

Q BY MR. OLSON: He may have told me

that he witnessed other things?

a He may have.

MR. OLSON: Nothing further.

THE COURT: Mr. Pomeroy?

MR. POMEROY: Nothing Further.

THE COURT: May the witness be e.:cused?

MR. POMEROY: Yes.

Cc-16

THE COURT: You are excused. Call you

next witness.

MR. POMEROY: I don't know whether he is

here right now, your Honor.

THE COURT: Let's take recess anyway.

Ten-minute recess. Remember the admonition,

don't discuss the facts, see you back in ten

minutes, keep an open mind.

(Recess, reconvening in open

court at 10:52 a.m.)

THE COURT: People versus Mueller.

MR. POMEROY: I will check and see if my

witness is present, your Honor.

Your Honor, my witness apparently

left from his home about a half-hour ago and

said it would only take 15 minutes. I don't

know if he has had car trouble or what. Here

he is.

Call Officer Staton to the stand.

APPENDIX D

TRIAL TESTIMONY OF PETITIONER

APPENDIX D

THE COURT: Well, this has to do with

the conversation with the mystery man and he

would, in my opinion, be entitled to be

present.

MR. OLSON: To hear the advance testi-

mony of the defendant?

THE COURT: Well, right now it's touch

and go as to what I am going to do, and I want

to hear from her as to what she knows that the

mystery individual would be able to testify to.

MR. POMEROY: It's my understanding that

these statements cannot be used in evidence.

THE COURT: Cannot be used as evidence

in the trial, yes. We don't know whether you

intend to take the stand or be mentioned about

this proceeding, the questions that nothing

answers, and so forth like that, and that you

do not use any leads you may obtain from this

proceeding.

MR. OLSON: Mrs. Mueller, if I can

extract from you in narrative fashion what

essentially was the dentention room that he

would probably testify to if he were here --

D-2

THE DEFENDANT: The mystery witness was

beside me when I put the $20 beside the cash

register. The mystery witness followed me

outside. The mystery witness saw the assault,

stopped the assault of Manstrom upon me. I

asked the mystery witness to come in with me

to be my one and only witness, and he assented

and he came in and he sat there, and Manstrom

took his address, telephone number, the place

where he worked, but it did not appear in the

final statement.

MR. OLSON: Well, was he told to leave

by anyone?

THE DEFENDANT: Mr. Chatterton told him tc

leave.

MR. OLSON: And did he then leave?

THE DEFENDANT: Yes.

MR. OLSON: Did he leave his business

card with anyone?

THE DEFENDANT: He left before any police

officer arrived. He gave his card to the firs

officer, which was Officer Staton, and Offi-

cer Staton -- rather, Officer -- let's see.

D-3

The first one, Kenney, said that he received

the card from him, and this is his testimony.

MR. OLSON: In other words, they met

as the officers were arriving?

THE DEFENDANT: That's right, and he

decided he had better give it to an officer,

so he gave it to him, and according to

Officer Kenney he received a card from this

witness.

THE COURT: Mr. Pomeroy, do you have

any questions you would like to ask Mrs.

Mueller?

MR. POMEROY: Yes. Mrs. Mueller, did

this mystery witness make any statements with

regard to what he had seen?

THE DEFENDANT: Yes. He told me he saw

the entire thing.

MR. POMEROY: Did he say what he had

seen happen?

THE DEFENDANT: Yes. He saw -- he said he

saw me put the money down by the cash register,

he also said he saw the attack of Manstrom

upon me outside, and when I asked him to come

D-4

in he came into the interrogation room.

MR. POMEROY: Do you remember what he

said with regard to what he saw of the

attack?

THE DEFENDANT: Yes. First of all, that

she took ahold of my arm, took ahold of my

purse, she gave me a judo chop into the sto-

mach, she tripped me, I fell to the sidewalk.

He saw the entire thing.

MR. POMEROY: Did he say that he had

seen each one of those things?

THE DEFENDANT: He said that he saw the

entire thing, that I needn't be afraid, and he

had ahold of my hand. I had ahold of his hanc

walking into Penney's interrogation room.

MR. POMEROY: Did he say that he had

seen Miss Manstrom punch you?

THE DEFENDANT: He said that he saw Miss

Manstrom's knee enter my stomach, he saw me

fall to the floor, Miss Manstrom had tripped

me, I fell to the sidewalk. I had a sprained

ankle, I had a contusion on my head from

falling to the sidewalk. He saw all of these

things.

MR. POMEROY: I am not asking you what

you think that he saw. I am asking you what

he said that he had seen.

THE DEFENDANT: He said that, he said he

saw the entire thing, and when I asked him to

come in with me he said he certainly would.

THE COURT: Well, you are not specifi-

cally answering what the blows were. There

was a blow to the stomach with the knee?

THE DEFENDANT: Yes.

THE COURT: Then you indicated that as

a result of the fall or whatever, the trip,

there were some contusions of the forehead.

Were there any other physical blows?

THE DEFENDANT: Yes. Against here.

THE COURT: A chop in the neck?

THE DEFENDANT: Chop in the neck, took

hold of my scarf, took hold of my hair. She

had ahold of my purse, she had ahold of my

persqn.

THE COURT: You are showing she

D-6

grabbed you by the shoulder or ccat or some-

thing like that?

THE DEFENDANT: That's right.

THE COURT: Right shoulder?

THE DEFENDANT: Grabbed hold of me by my

shoulder.

THE COURT: Right shoulder?

THE DEFENDANT: Grabbed hold of my purse,

broke the strap on my purse. She used her

knee in here. There was blood in my mouth.

THE COURT: Did you actually see this

mystery witness or the unknown witness in the

vicinity when this was going on?

THE DEFENDANT: He was standing there.

THE COURT: And then he subsequently

intervened and proceeded to stop --

THE DEFENDANT: He was the only one that

broke it up.

THE COURT: Mr. Pomeroy?

MR. POMEROY: I have no more questions,

your Honor.

THE COURT: You may go out in the

D-7

courtroom. Thank you for coming in.

THE DEFENDANT: Thank you.

(At this point the defendant

left chambers.)

Mr. Chatterton's credibility as a witness.

(The following proceedings

were held in chambers in the

presence of the defendant.)

THE COURT: Mrs. Mueller, one thing I

forgot to do earlier was to actually swear you.

Would you stand and raise your right hand?

Do you solemnly swear that the testi-

mony you give in the matter now pending before

this court shall be the truth, the whole truth,

and nothing but the truth, so help you God?

THE DEFENDANT: I swear to tell the truth.

THE COURT: Go ahead and be seated,

then.

I asked you some questions, your

attorney asked you some questions, and Mr

Pomeroy asked you some questions a while ago.

Was everything that you said in response to

those questions true to the best of your

D-8

knowledge, information and belief?

THE DEFENDANT: It was absolutely true,

sir.

IRENE DOROTHY MUELLER

called as a witness by the Court, having been

sworn, testified as follows:

THE COURT: Now I have one more ques-

tion I would like to ask. You indicated that

the unknown witness gave his name, address,

gave some information to the lady Carol.

THE DEFENDANT: That's right.

THE COURT: Were you present when this

was going on?

THE DEFENDANT: Yes. I was sitting right

beside him.

THE COURT: What questions did Carol

Manstrom ask this gentleman?

THE DEFENDANT: She asked him his name,

his address, his telephone number, and his

place of employment.

THE COURT: This was done in your

presence?

THE DEFENDANT: That's right, sir.

D-9

THE COURT: And did the other indivi-

dual respond?

THE DEFENDANT: Yes.

THE COURT: What did he say? Do you

recall what he gave by way of a name?

THE DEFENDANT: No, I really don't.

THE COURT: Do you recall what he gave

in response to the questions about where he

lived?

THE DEFENDANT: No. The only thing that I

can remember is that he was a former teacher

and he had taught in Pasadena and I had also

taught in Pasadena, and so we had a bond there.

I mean I knew that he was a teacher, but where

and in what capacity or where he was, I really

don't know.

THE COURT: Do you remember what he had

to say with regard to where he was presently

employed?

THE DEFENDANT: He called his place of

employment from Penney's. He called on the

telephone. He actually called and said he

D-10

was going to be late. So it had to be some-

place close.

THE COURT: Do you remember what he

told this Carol lady with regard to where he

worked?

THE DEFENDANT: No, I really don't. I

was under the impression, I mean, that it was

a close place. It couldn't have been very

far, that this must have been his lunch hour,

and when I asked him what he was doing he

wasn't in a teaching capacity at this time.

THE COURT: Can you set forth any

reason or reasons why you don't recall any-

thing about the interview of this gentleman?

THE DEFENDANT: I honestly thought that

she was taking down all the information. She

also had every one of my teacher's cards and

she had all the information and she had typed

every bit of that information. None of that

information was on the file report, none.

THE COURT: When you testified before

Judge Thomason of this court in January of

D-11

1979, not quite two years ago, were you given

the opportunity to relate the facts that you

have just related today?

THE DEFENDANT: No, I was not.

THE COURT: Did your attorney ask

those questions?

THE DEFENDANT: No. All I was really

able to say was yes or no.

THE COURT: Did your attorney ask you

any of these questions?

THE DEFENDANT: No.

MR. OLSON: I believe that that may

have been in a very early part of Mr. Stern's

career. It may have been his first motion.

THE DEFENDANT: It was his first time in

court.

THE COURT: All right. Mr. Pomeroy,

do you have any questions you would like to

ask?

MR. POMEROY: No.

THE COURT: Any questions you would

like to ask, Mr. Olson?

D-12

MR. OLSON: What was your physical

condition at that time, Mrs. Mueller?

THE DEFENDANT: My physical condition was

really pretty bad and I had a sprained ankle -

after I gout out of the mail at 3 o'clock in

the morning my husband drove me to the doctor

and I got treatment. I was let out 3 o'clock

in the morning and I got treatment for the

bruise on my head, for my sprained ankle, and

for the bleeding, internal bleeding and

everything, and I was in a semicoma for six

months and under this doctor's care.

THE COURT: At the time when you were

in the interview room were you suffering any

emotional distress?

THE DEFENDANT: I was very distressed. I

mean I was distressed.

THE COURT: You believe you were short

of all your faculties at that point?

THE DEFENDANT: No, I knew what was going

on.

THE COURT: Was your memory impaired

D-13

any at that time?

THE DEFENDANT: My memory was not impaired

and whatever I said then I am saying now.

THE COURT: Anybody else have any

questions they would like to ask? Mr. Pomeroy?

MR. POMEROY: No.

THE COURT: Mr. Olson?

MR. OLSON: Were you frightened at

that time in the room?

THE DEFENDANT: Yes, I was. I had been

attacked by an unknown attacker. She had no

description, she had nothing to say that she

was a security guard, she did not identify

herself, she attacked me, she grabbed me, she

grabbed my purse, and all I knew is someone

was trying to attack me.

THE COURT: You can argue it, the two

of you, but my thinking at this point is this:

That you can argue, you can also, in the case

of Mr. Pomeroy, put on evidence, but there is

a prima facie case here which would be suffi-

cient for me to let evidence in concerning the

D-14

fact that there was another witness, allow |

examination first, allow cross-examination

first for the defendant, and then if the

defendant takes the stand to testify on it

that there was another witness, allow exami-

nation, cross-examination concerning the

possibility of another witness, getting infor-

mation, and allow the defendant to testify in

the event she does take the stand.

And also with regard to the card, tc

allow cross-examination concerning that. This

is just my thinking right now at this point.

Is there any evidence or argument or

anything that you would like to put before the

Court at this point, Mr. Pomeroy?

APPENDIX E

TRIAL TESTIMONY OF DR. PENNOCK

APPENDIX E

A I graduated Phi Beta Kappa from

UCLA with a bachelor's degree. Attended UCLA

Medical School. General internship, residency

at UCLA three years. Thirteen years of educa-

tion, and I was on the full-time teaching

faculty of UCLA.

Q And as to your psychiatric back-

ground?

A I have a three-year residence at

the Neuro-psychiatric Institute, was the head

physician, Harbor UCLA In-patient Service.

Q And is Irene Mueller a patient of

yours?

A Yes

Q Did you see Irene Mueller on the

date 26 January 1979?

A Yes, I did.

Q What was the occasion you saw her

for?

A I saw Mrs. Mueller on January 26th

because she was having physical and emotional

problems.

Q And who brought her to your office,

if you know?

A She drove to my office.

Q Was she by herself?

A Yes

Q And did she indicate any injuries to

you at that time?

A Yes, she did.

Q And did you make a diagnosis of the

injuries?

A Yes. I listed the injuries and made

a diagnosis.

Q Did you write down on that day your

diagnosis?

A Yes, I did.

Q Do you have it front of you now?

A Yes, I do.

Q What's the date on that document?

A January 26, 1979.

Q And does it have a reference title?

Ay I am sorry, I don't understand the

questions.

Q Does it refer to any specific

patient?

E-3

A Refers to Irene Mueller.

Q And could you describe, reffering to

your report where necessary, what was your

Giagnosis of her injuries on that day?

MR. POMEROY: Objection; Irrelevant,

your Honor. The testimony by the prosecu-

tion witnesses were that she had no visible

injuries.

THE COURT: Overruled.

THE WITNESS: She had a list of injuries

which I can explain in lay terms.

Q BY MR. OLSON: That's fine.

AB She had a two-inch bump on the right

side of her head, right parietal area of her

head. She had a two-inch abrasion or scrape

of the left pretibial, the left front part of

the lower leg. She had a three-inch contusion,

a bruise, over the left subpatellar or just

under the kneecap of her left leg.

She had a four-inch linear contu-

sion, just a small contusion, small bruise,

over the right frontal part, anterior part of

the right lower leg, front part.

E-4

She had a right sprained ankle.

Those were the physical findings at that time.

THE COURT: Hold it. The objection

made by Mr. Pomeroy, namely, that the only

evidence so far was that the defendant, Mrs.

Mueller, was not injured, is a valid objec-

tion. However, I will let the doctor testify

because I assume that Mr. Olson will, as

indicated in his opening statement, have Mrs.

Mueller testify. But the doctor's entitled

to give us information on what he saw and so

forth like that. But as far as whether

that was caused on the 25th at this store is

another matter which is going to have be

brought in later on.

Likewise, if the doctor testifies

as to what Mrs. Mueller told him, that has to

do primarily with diagnosis and is not to be

considered by you as to the truth of whether

it was true or not. It's not to be consid-

ered by you as to the truth of whether it was

true or not. It's not to be considered by

you. In other words, Mrs. Mueller or some-

E-5

body else is going to have to testify as to

that.

Excuse me. Go ahead.

MR. OLSON: I would like to mention

to the Court that additionally a number of

the prosecution witnesses testified that

they did not kick, scratch, punch or in any

way assault or batter Mrs. Mueller.

THE COURT: You can argue that later.

I discharged my duty. Go ahead.

THE WITNESS: Shall I continue?

MR. OLSON: Yes

THE COURT: Well, with another ques-

tion go ahead. Had you completed the physical

examination?

THE WITNESS: I completed the physical

findings. Then there were some psychiatric

findings.

THE COURT: Go ahead.

THE WITNESS: She was suffering from

confusion, dizziness, anxiety, some disorien-

tation as to time, and some fears.

E-6

MR. POMEROY: Your Honor, I will object

to whatever psychological consequences Miss

Mueller may have suffered from this incident

as being totally irrelevant to this pro-

ceeding.

THE COURT: I am going to let him go

ahead. Really, procedurally, perhaps, she

should have testified first, but if she

doesn't testify we are going to have to

strike the testimony.

MR. OLSON: She will testify, your

Honor.

THE COURT: Go ahead.

Q BY MR. OLSON: Do you want to

continue on that line?

A She had some depression and had to

be placed on some medication, some antidepres

sant medication and some medication to help

her sleep at night. And the diagnosis essen-

tially was multiple physical injuries, no-

thing that required anything except observa-

tion as far as the physical injuries were

concerned.

E-7

But she did have posttramatic

emotional reaction that required medication.

Q Did she explain to you how she had

suffered the injuries?

A Yes, she did.

Q Waht did she say?

= She told me that the previous day

she had been shopping at Penney's and upon

leaving the store she said that she was

violently attached by a person.

Q And did she indicate that any of

those injuries arose in any other way?

A No.

Q And how long have you known Mrs.

Mueller?

A I have known her since 1975.

Q How many times would you s you

have seen Mrs. Mueller?

A I -- total number of visits I have --

let's see. Well, at least 57 visits.

Q 57 visits or more?

A Yes.

E-8

Q And have you been treating Mrs.

Mueller for her emotional conditions and so

forth?

A Yes, I have.

MR. POMEROY: Object as vague as to time

THE COURT: During what period of time

have you been treating Mrs. Mueller for emo-

tional problems?

THE WITNESS: Following the incident?

THE COURT: Before or after.

THE WITNESS: Before and after.

BY MR OLSON: Since 1975?

Since 1977.

>

Q What did you say about 1975?

A That I knew her prior -- I have

known her since

APPENDIX F

DENTAL, COURT OF APPEALS

MUNICIPAL COURT OF THE ORANGE COUNTY CENTRAL JUDICIAL DISTRICT

COUNTY OF ORANGE, STATE OP CALIFORNIA

DEPARTMENT NO. 313 HON. KARL C. PRANK, JUDGE

THE PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff,

No. 79C M00607

REPORTER'S CERTIFICATE

Defendant.

ee ee ee ee ee ee ee ee ee

STATE OF CALIFORNIA )

COUNTY OF ORANGE )

I, William 8. Burgess, Jr., Certified Shorthand Reporter

for the State of California, License No. 63, do hereby certify

that the foregoing pages 1 through 525, comprise a full, true,

end cenuect wanseript of the proceedings end tectineny taken

in the matter of the above-entirled cause on November 3, 4, 5,

6, 7 and 10, 1980.

Dated this 3lst day of January, 1981.

Wham Braga)

COURT OF APPEAL—STATE OF CALIFORNIA sourm ost.

LED

FOURTH APPELLATE DISTRICT iho

DIVISION TWO ROBERT L. FORD, Gers

IRENE 0. MUELLER, ) ~~ —

Petitioner, a cxvit nari »

4 ? COUNTY NO. AP=3258/

SUPERIOR COURT, ORANGE COUNTY,

Respondent,

PEOPLE OF THE STATE OF CALIFORNIA,

Real Parties in Interest.

THE COURT:

The petition for writ of pronibition/@andate is DENIED.

Morvis, J.

Acting P.J.

c.c.

Count me Orange County, 700 Civic Center Or. West, Santa Ana

James Vitek, 645 N. Ecknoff, Ste. J, Orange 92668

District Attorney, Orange County, 700 Civic Center DOr. West, Santa Ana

7 COPY

APPENDIX G

DENTAL, PETITIONER FOR HEARING

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CLERK'S OFFICE, SUPREME COURT

4250 STATE BUILDING

San Francisco, Cauzromnia 94102

wns. t ; : -<98

I have this day filed Order.