Tuesday, May 21, 2019
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No Need to Strike Testimony of Witness Who Withheld Source—Ninth Circuit
By a MetNews Staff Writer
A Los Angeles Superior Court judge did not err in declining to strike the testimony of a shooting victim who refused to identify the person she said told her of an offer of $5,000 if she did not take the stand, the Ninth U.S. Circuit Court of Appeals held yesterday in the case of a man convicted of attempted murder and witness tampering.
The decision comes in response to defendant Gerald L. McNeil’s insistence that the California Court of Appeal erred in spurning his contention that his federal constitutional rights to confrontation and due process were abridged when Judge Lisa Mangay Chung allowed the testimony of victim Crystal Goodridge to stand.
Goodridge told of McNeil shooting at her, striking her five times.
Recordings were played for the jury of jailhouse phone calls from McNeil to family members asking that Goodrich be paid not to testify.
Ashmann-Gerst’s Opinion
In an April 14, 2015 unpublished opinion, Acting Presiding Justice Judith Ashmann-Gerst of this district’s Div. Two wrote:
“We agree with the People that the identity of the person who told Goodridge about the offer was not crucial to an effective cross-examination of Goodridge. The evidence about her learning of the offer was presented to the jury for the sole purpose of showing its effect on her state of mind, and was therefore relevant to her credibility….Indeed, defense counsel argued to the jury that Goodridge’s refusal to name the person made her less credible.”
The opinion continues:
“Nor was the evidence relevant to the second charge of attempting to dissuade a witness, because the jury was expressly instructed that Goodridge’s testimony about the offer could not be used to prove such an offer was made. Appellant’s own words in his jailhouse calls was more than sufficient to support this charge.”
Affirms Birotte
McNeil sought review in the state Supreme Court, which was denied, then petitioned for a writ of habeas corpus in the U.S. District Court for the Central District of California, and was turned down by Judge Andre Birotte Jr. It was Birotte’s decision that the Ninth Circuit yesterday affirmed.
A three-judge panel said in a memorandum opinion:
“The California Court of Appeal reasonably determined that McNeil’s constitutional rights were not violated by the trial court declining to strike Goodridge’s testimony after she refused to name the person who told her about the offer from McNeil’s family. Defense counsel was able to otherwise extensively cross-examine Goodridge about the offer, the trial court instructed the jury that Goodridge’s testimony about the offer was limited to her credibility and not for the truth of the offer’s existence, and during closing argument defense counsel was able to use Goodridge’s refusal to cast doubt on her credibility.”
‘Collateral’ Matter
McNeil faulted Ashmann-Gerst for characterizing Goodridge’s credibility as a “collateral” matter. Her opinion said:
“Striking the witness’s testimony is a ‘drastic solution, which is to be used after less severe means are considered.’…Alternatives should be considered ‘when the witness has refused to answer one or two questions on cross-examination on matters that are collateral, such as credibility.’”
The Ninth Circuit opinion says:
“[I]t is unnecessary to reach whether the California Court of Appeal’s statement about collateral matters conflicts with U.S. Supreme Court precedent because the Court of Appeal reasonably concluded that defense counsel had an adequate opportunity to cross- examine Goodridge. despite her refusal to say who told her about the offer.”
Circuit Judges Jacqueline H. Nguyen and John B. Owens were joined on the panel by District Court Judge Michael M. Baylson of the Eastern District of Pennsylvania, sitting by designation.
The case is United States v. McNeil, 17-56839.
Copyright 2019, Metropolitan News Company