Ann J. Cunningham (SBN 191777)
17461 Irvine Boulevard Suite B
Tustin, California 92780
(714) 222-9112 Fax: (714) 388-3707
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ORANGE
PEOPLE OF THE STATE OF ) Case No. 13NF0551
CALIFORNIA,)
)
Plaintiff,) Request to Cure Misconduct
vs.)
)
JOSEPH BERTUCCI,)
)
Defendant.)
______)
CLOSING ARGUMENTS:
I.During closing arguments on April 13, 2016, in the above titled matter,
the prosecutor argued at least twice that the version of events being offered by the prosecution was more reasonable than the version of events defense was offering and eluded that this was the standard by which the jury=s decision was to be made . The prosecutor wondered to the jury whether defense counsel would concede that guilt was a reasonable theory. Defense objected to this diluted standard of proof becoming a simple choice, and was overruled. The argument was made at least one more time, instructing the jury that they should choose the more reasonable version of events put forth by the prosecution. Defense objection was again, overruled.
The Jury should be admonished at the very least and reminded by the Court of the proper burden B and to ignore the misstatements told to them in closing, which is clearly not the standard they are to use to decide these facts.
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Specifically that the prosecutor must provide proof of every individual part (element) of the charged crimes to find a crime occurred, if the proof has not been presented - they are to acquit. Specifically, they are not to choose a more reasonable version of events and Acall it a winner.@
AUTHORITY:
In People v. Centeno (2014) 60 Cal. 4th 659, the California Supreme Court reversed a judgment after the prosecutor argued that Adefendant=s testimony was unreasonable, and conversely that the People=s burden was met if its theory was Areasonable@ in light of the facts supporting it.@Centeno, supra, 60 Cal. 4th at 664, and 671. The Court was troubled by two separate ways the prosecutor explained reasonable doubt, one is on point with the request of defense here.
Aside from a map of the United Stated with one state missing, used to explain that you do not require all of the information to find the correct answer, the Centeno court was also troubled by the prosecutor=s argument asking the jury to merely chose the more reasonable version of events, and find AThat=s what=s reasonable, he=s good for it.@Centeno, supra, 60 Cal. 4th at 672.
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The Court disapproved of this tactic and held Ait is error for the prosecutor to suggest that a reasonable account of the evidence satisfies the prosecutor=s burden of proof.@ The Court explained, AThe standard of proof is a measure of the jury=s level of confidence. It is not sufficient that the jury simply believe that a conclusion is reasonable. It must be convinced that all necessary facts have been proven beyond a reasonable doubt. [Citation] The prosecutor, however, left the jury with the impression that so long as her interpretation of the evidence was reasonable, the People had met their burden. The failure of the prosecutor=s reasoning is manifest.@ In addition, the Court explained, the prosecutor=s argument was misconduct because it illegally shifted the burden of proof by suggest[ing] that deficiencies in the defense case can make up for shortcomings. Centeno, supra, 60 Cal. 4th at 673.
II.In our case, during the examination of Sergeant Rich, he was asked by defense
in detail whether he had documented any details such as locations, descriptions, frequency, dates, and/or specific observations any of the supposed surveillance that resulted in his (and other officers) viewing hand-to-hand drug transactions made by Kera Pamson and/or Joseph Bertucci.
Sgt. Rich gave two different answers. First he said that he had documented this information in his search warrant affidavit, and eluded to the fact that there had to be secrecy that I (defense counsel) was privy to. (i.e. a confidential informant).
Second, after asking the question in a different manner, Sgt. Rich responded that his team does not need to keep daily logs or document their work or whereabouts because of the kind of work that detail does. (paraphrased) Neither of these answers are true, but defense left it alone because they are answers in conflict.
In closing argument, the prosecutor argued to the jury that Sgt. Rich had, in fact, put this information, Aas Sgt. Rich testified@, into his search warrant affidavit. That is not true, he did not. There is nothing more in the search warrant affidavit than the vague information that some surveillance occurred. No locations, no dates, no specificity about any fact in any supposed transaction for this highly damning information that was allegedly observed. No report by any involved officer is referred to that might back up that this police work ever occurred at all... and Sgt. Rich who recalled minutia from three years ago about contraband, could not recall which officers accompanied him on any particular surveillance. He was however sure that he himself was present.
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AUTHORITY:
Due process is violated when false evidence is presented, whether offered intentionally or inadvertently. "Under well-established principles of due process, the prosecutor cannot present evidence it knows is false and must correct any falsity of which it is aware ... even if the false evidence was not intentionally submitted." Giles v. Maryland(1967) 386 U.S. 66 ... Napue v. Illinois(1959) 360 U.S. 264 ... People v. Sakarias(2000) 22 Cal.4th 596, 633 ...." People v. Seaton (2001) 26 Cal.4th 598, 647; see People v. Bolton(1979) 23 Cal.3d 208, 213-214; People v. Morales (2003) 112 Cal. App.4th 1176, 1192-1196.)
The prosecutor improperly argued facts which were not in evidence, and
thereby served as his own unsworn witness. People v. Bolton(1979) 23 Cal.3d 208 at p. 213. "[S]uch testimony, although worthless as a matter of law, can be 'dynamite' to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence. [Citations.]" Because such "testimony" is not subject to cross-examination, it violates the Sixth Amendment right to confrontation. (See Douglas v. Alabama (1965) 380 U.S. 415; People v. Bolton, supra, 23 Cal.3d at p. 215, fn. 4; People v. Herring(1993) 20 Cal. App.4th 1066, 1076-1077; People v. Villa(1980) 109 Cal.App.3d 360, 367.)
Request for Cure:
I.Defense is asking this Court to bring the jury out and explain to them
that they have been told during argument that the burden of proof is less than what it actually is:
Specifically, they should be admonished that they may not merely choose which version of events they favor B that removes the burden of proof beyond a reasonable doubt entirely.
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Instead the prosecution must prove every element of a crime it has charged in this case, and it must prove those individual elements all beyond a reasonable doubt or the defendant is entitled to a Not Guilty verdict with regard to that crime.
II.Defense is unable to object to this type of misconduct when it occurs.
There is no objection in the Evidence Code with regard to opposing counsel Asupporting knowingly false testimony in argument@ - despite the fact that it IS misconduct. Defense is asking that the jury be told that there was inadvertent argument given that is going to be withdrawn, and cite this piece of information.
April 13, 2016______
Ann J. Cunningham
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