Bullcoming v New MexicoAfter last night’s amazing decision in Bullcoming v New Mexico , which you can see here: my office filed a petitioner for Korey Hollinquest in the case referenced below. A copy of our petition for certiorari is here: Hollinquest Writ of Certiorari. The facts are set forth below and some of the issues.
The primary issue is whether a prosecutor may grant use immunity to a co-defendant to testify at the preliminary examination, and then withdraw that grant of immunity at trial, causing the co-defendant to invoke the 5th Amendment, which then causes the defendant to become “unavailable” as a witness, which then causes the trial court to allow his preliminary examination testimony to be read at trial.
The Court needs to adopt a per se rule that precludes the prior testimony of an unavailable witness from a preliminary hearing on the basis that a preliminary hearing does not remotely resemble the same defense strategies, testimony one would elicit, or objectives by counsel, as in a trial. They are in legal terms as different as an apple and orange.
There is no authority in California, or elsewhere, for this stratagem, in which a prosecutor manipulates the procedure by causing a witness to become “unavailable,” by first giving immunity for the purpose of a single hearing and then taking it away for the purpose of trial. If this Court allows such a stratagem to stand, there will be nothing to prevent prosecutors from using the stratagem in every case when they wish to protect a shaky witness, especially a co-defendant, from cross-examination at trial. This sleight-of-hand has never been allowed before. It should not be allowed here.
If this Court allows this newly-minted stratagem to stand as the California Court of Appeal did, it risks changing the face of every criminal trial which relies upon the testimony of a co-defendant, or potential culpable co-defendant. In this case, the co-defendant subject person was the most important prosecutorial witness. The jury was deprived of the opportunity to examine his demeanor when testifying. If this holding is allowed to stand, no longer will cross-examination in California and other states be the greatest engine ever devised for searching for the truth. The truth-seeking function of a jury trial may never be the same again.
The published Court of Appeal opinion, allowing this stratagem, expanded the exception for an “unavailable” witness so broadly that a sharp and possibly unscrupulous prosecutor could drive a proverbial truck through it. This opinion so narrows the defendant’s 6th Amendment confrontation clause rights that it violates a bedrock provision of constitutional law. Crawford v. Washington (2004) 541 U.S. 36. That is why the petition for certiorari should granted.
The State Supreme Courts are sharply divided as to this issue. There are claims of a majority and minority view, but the recent post Crawford decisions demonstrate one conclusion, the issue is ripe for resolution by this Court because the numerical count between majority and minority is slim. Furthermore, the better and more sound application of the Confrontation Clause is to preclude former testimony of a preliminary hearing in lieu of live, in person testimony.
In this case, there is absolutely no prejudice to the State in that the co-defendant has now been sentenced and there is no longer a 5th Amendment issue that would make him unavailable because double jeopardy has attached due to his plea bargain which will be explained below. The overriding goal of confrontation can be meet in this case with little prejudice to the People and great prejudice to the Petitioner if this conviction is allowed to stand.
STATEMENT OF FACTS
The victim, Jacque Smith, was killed around 1:00 p.m. on August 22, 2005, at 12th Street and Maine Avenue in the Coronado Santa Fe area of Richmond, CA. He suffered eight gunshot wounds, along with multiple fractures and abrasions, “all over his body.” His injuries were consistent with “being run over” and “dragged along” the pavement by a car, shot, and “pistol-whipped.”
The primary testimony that implicated the Petitioner in the murder of Smith came from Torry Buchanan, who, according to at least one account, had been involved for months in an intimate relationship with the victim. Shira Dennis, a close friend of the victim, testified that Smith was openly bisexual, but Buchanan was not, and “didn’t want anybody to know” of his sexual relationship with the victim. According to Dennis, Smith and Buchanan lived together briefly in an apartment in Benicia, CA, and acted as “boyfriend and boyfriend.”
Not long before the murder, however, victim Smith became “upset” with witness Buchanan and did not trust him after his money and some items, including a television, were appropriated and “taken out of the house.” Dennis testified that Smith was “tired of Buchanan stealing from him,” and was in the process of breaking off their relationship. Smith recently moved to Stockton, CA, and Dennis believed that he did not want Buchanan to know the location of his new residence and that Smith was also fearful of Buchanan. Before the murder, Smith received a message from someone that warned him Buchanan intended to rob and kill him. At the Petitioner’s preliminary hearing, Buchanan testified after receiving “use” immunity from the prosecution. This same preliminary hearing testimony was later presented at Petitioner’s trial. The preliminary hearing was on October 11, 2005. This was just 50 days after Petitioner was arrested. In a murder case, this is an insufficient amount of time to have accrued for competent preparation in a murder case. The trial did not even commence until July of 2008, three years later. By this time, trial counsel for the Petitioner had sufficient time to obtain better data, create more effective cross examination material, and would not be rushed by a busy preliminary hearing judge and a different legal objective appropriate at an abbreviated preliminary hearing which carries a different and unique legal burden.
The problem arose in that the Confrontation clause was literally eliminated from the Petitioner’s trial by admitting testimony of the chief accuser through a reader by admitting the former testimony. The jury was unable to judge the credibility of this witness who had serious impeachment issues and was shielded from the cornerstone legal device of criminal trials, the right of cross examination and confrontation.
In Buchanan’s preliminary hearing testimony, he denied that he had sexual relations with Smith. In fact, Buchanan acknowledged that he warned the victim he would “beat his ass” if Smith “kept telling people” they had a “homosexual relationship.” Buchanan testified that he maintained a friendship with Smith to “play him” and “get as much” as he could from the victim. According to Buchanan, Smith bought him clothes and gave him money, and on one occasion provided him with bail in the amount of $45,000 to obtain his release from jail. Smith subsequently threatened to rescind the bond he had posted, which caused Buchanan concern that his bail would be revoked. Buchanan further acknowledged that shortly before Smith’s death, the decedent accused Buchanan of “stealing money from him.” Buchanan denied that he stole money from Smith, but conceded Smith no longer trusted him.
A preliminary hearing in California is not a trial nor is it the functional equivalent. The standard of proof is akin to reasonable suspicion only. The standard is below that of preponderance of the evidence. The “reasonable doubt” standard has no application in a preliminary hearing. Consequently, a defendant’s preliminary hearing attorney has different goals and preparation then that of a trial attorney, whom many times are different attorneys. They are vastly different and it was error to admit this testimony without it being subject to cross examination, in person, at this trial. Especially where, as is shown in this petition infra, the prosecution artificially manipulated the unavailability.
Buchanan testified at the preliminary hearing that two days before the murder occurred, the Petitioner, whom he had known for a couple of years, approached him with a plan to rob Smith. Petitioner said he “needed some money” and “wanted to rob” Smith, who he knew would be in Buchanan’s company. Buchanan said “all right,” and they exchanged cell phone numbers to remain in contact to set up the robbery.
About 9:00a.m. on the morning of the murder, Smith drove his navy blue Cadillac to pick up Buchanan in Rodeo, CA. After they stopped for food in Hercules, CA, Buchanan began to drive. He drove the car to Oakland, CA, where they “purchased some weed.” Buchanan used Smith’s cell phone to call the Petitioner to report to him that they were on the way to 12th Street in Richmond, CA, a nearby suburb. During one call the Petitioner told Buchanan that he had a gun but they had not discussed using a gun during the robbery. Buchanan ultimately drove the victim’s Cadillac to Richmond, where he parked as arranged with the Petitioner at 12th and Florida.
The Petitioner approached the car with a gun in his hand and ordered Buchanan to drive around the corner to 13th and Maine. Buchanan did so, and parked the car in a lot near the residence of his friend Brenda. Petitioner then struck Smith several times with his fist. Buchanan told Smith to call his mother to arrange for her to give him some money so the Petitioner “wouldn’t harm” him. Buchanan heard Smith on the phone with his mother exclaim, “Torry trying to rob me.” Buchanan yelled to the Petitioner not to kill Smith. After the Petitioner struck Smith, the victim jumped from the car with the cell phone in his hand and “started running” away. The Petitioner chased after Smith as Buchanan left the car and went to Brenda’s house.
From inside Brenda’s house Buchanan heard the sound of five or six gunshots coming from Marina Way. He asked Brenda to “see what happened.” She went outside for about five minutes, then returned to the house and said that “somebody got killed outside.” Buchanan went back outside and observed the Petitioner as he was walking “back towards the car.” He threw the Petitioner the keys to the Cadillac, then returned to Brenda’s house to ask her to call him a cab.
Buchanan insisted that he did not want Smith killed, although he admitted that he willingly participated in the robbery. He also testified that the Petitioner did not mention to him that he planned to kill Smith. Buchanan did not realize that the Petitioner intended to kill Smith until the victim ran from the car and the Petitioner chased after him.
When questioned after the murder, Buchanan lied to the police and claimed that he also had been a victim of the robbery of Smith. Buchanan identified defendant from a photo lineup as the man who robbed and killed Smith. He referred to defendant by the “moniker of Twin or Twig.”
This initial story could not be explored at the Petitioner’s trial due to the prosecutorial gamesmanship by manipulating Buchanan’s unavailability.
After Buchanan spoke with the police, he talked to the Petitioner on the telephone. The Petitioner asked “why the police came to his house.” Buchanan replied that he had been questioned by the police. The Petitioner said that he “was going to surrender himself to the police.”
At the preliminary hearing, Buchanan acknowledged that he had not been honest and lied in his interviews with the police to protect himself, but claimed that his preliminary hearing testimony was truthful. Before the preliminary hearing, Buchanan was subpoenaed to testify by an investigator for District Attorney’s Office. Buchanan expressed to the investigator that he “was afraid,” and at his request was placed in a hotel room for his safety. He briefly absconded to Nevada, but voluntarily agreed to return to testify.
Buchanan was not charged with any crimes related to the murder of Smith before the preliminary hearing, and insisted that he has never been “promised anything” in exchange for his testimony. After the preliminary hearing but before the Petitioner’s trial, Buchanan was charged with felony murder. He resolved his own case for 12 years after the Petitioner was sentenced. The Petitioner was sentenced to life without parole.