PEOPLE v. SAIBU







Filed 1/4/11; part. pub order 1/11/11 (see end of opn.)




COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. SADIQ SAIBU et al., Defendants and Appellants.

D054980 (Super. Ct. No. SCD207640)

STORY CONTINUE FROM PART I….



The prosecutor proffered that both Kinsel and an investigator who had reviewed the surveillance tapes of the robberies would testify that Saibu and Valentino worked together during the robberies, and that when committing the robberies, they would shield their identities by covering themselves from head to toe, thereby establishing a similar modus operandi in the uncharged robberies and the charged offenses. The prosecutor also noted that in some of the charged and uncharged robberies, cars had been stolen from near where the defendants had been staying, and that these cars were used in the robberies and then abandoned.
The prosecutor argued that evidence regarding the uncharged bank robberies was admissible under Evidence Code section 1101, subdivision (b) to show that Saibu and Valentino intended to rob the T&M Liquor store on July 13, 2005, even though Valentino shot Toma almost immediately and then fired at Yakou. The prosecutor further argued that in addition to showing the defendants' intent, the bank robberies and the T&M Liquor store shooting had sufficient common features to establish the identities of the perpetrators. The prosecutor noted the fact that cars were stolen near the times of the robberies, and that these cars were used to transport the perpetrators to the crime scenes, and then abandoned nearby after the robberies. She further argued that the defendants' joint participation in the robberies showed a thread of similarity between the bank robberies and the attempted robbery and shooting at the T&M Liquor store.
In determining the admissibility of evidence of the other robberies, the trial court discussed a number of relevant cases and the legal principles to be drawn from those cases. The court then stated, "If I apply these principles to this case, there is only one of the bank robberies that I think may pass muster. That is the bank robbery that formed the basis for count 9. This was the August 29, 2005, bank robbery." The court explained its reasoning as follows:
"Let me begin by acknowledging that there are a host of factors in there that [defense counsel] can and effectively did distinguish as not being the same, and a host of factors that [the prosecutor] points out are the same. But there are some that I think are particularly important.
"African-American males, generally generic same kind of clothing and hoodies, hiding the face, the take-down nature or take-over nature of the robbery, the use of the guns, those are general take-down robbery factors. But they are common to the bank robbery in count 9 and the offenses in counts 1, 2 and 3 involving T&M Liquor on July 13th.

"The factors that I think are persuasive are the use of a stolen car to get to the scene. [Defense counsel] has done a lot of federal cases, knows a lot about bank robberies, refers to it as a cold car and, in that fashion, as an advocate, wants me to find that that is a real general characteristic. It's certainly not a signature by itself, but I think it's an important one.

"The car was stolen from a location near a significant location in this case. It was stolen the same day or the day before. The reasonable inference is that the robbers arrived in that stolen car. They fled in that car. They fled a short distance, a matter of less than a mile, I think, in both cases. They abandoned the car. And what makes this different from any of the others is there were witnesses who said, 'These two guys abandoned this car and then ran into a waiting car that was real close by and took off.'

"Another factor that I think is significant, and it is one that really does add a signature-type uniqueness to this case, [the prosecutor] alluded to, and that is the same two guys, looks like to me anyway―if I didn't think it was the same two guys, I wouldn't be letting it in―but it was, we know in the bank robbery, Mr. Saibu and Mr. Valentino and I think maybe a third person. Also this offense is proximate in time. It's close in time. It's a month later, month and a half later than the T&M robbery murder.

"I find and conclude that this uncharged act, and this one alone, will be admissible in this trial. So that I can be very clear, the uncharged act that formed the basis of count 9 in the bank robbery case―this was the Wells Fargo Bank robbery on August 29th―is admissible as an uncharged act. I find it admissible against both defendants, and I find it can be used to show identity and intent to aid and abet with respect to counts 1 and 3 in this case. It's identity as to counts 1 and 3, and I will appropriately limit the jury instructions upon the request of counsel that that occur.

"But I think this act meets the Hovarter/Ewoldt degree of similarity required to prove identity. Not common plan or scheme. Identity. This goes beyond common plan and scheme. This is identity. And I think it's also admissible to show their joint action and intent to aid and abet, which also goes to identity on those counts. The other uncharged acts are not admissible."

Later, when the subject of this evidence arose again at trial, the court stated, "It seems to me that subject only to [Evidence Code section ] 352 and cumulative and undue prejudice, the People are entitled to prove any of those generic strokes that make up that signature from the August 29th [robbery] case. I agree with the proposition advanced by [defense counsel] that some of these things may be more relevant to one count or another in this case; however, I allowed the [Evidence Code section] 1101 (b) identity evidence in for all three incidents. It just may be more relevant to some than to others."
2. Legal standards
Evidence of a prior crime or bad act is admissible as long as it is relevant to prove a fact such as motive, opportunity, intent, plan, or knowledge. (Evid. Code, § 1101, subd. (b); People v. Davis (2009) 46 Cal.4th 539, 602.) " 'The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.' [Citation.]" (People v. Lindberg (2008) 45 Cal.4th 1, 22.)
"We have explained that 'there exists a continuum concerning the degree of similarity required for cross-admissibility, depending upon the purpose for which introduction of the evidence is sought: "The least degree of similarity . . . is required in order to prove intent. [Citation.] . . . In order to be admissible [for that purpose], the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." ' " ' [Citations.] 'By contrast, a higher degree of similarity is required to prove common design or plan, and the highest degree of similarity is required to prove identity.' [Citation.]" (People v. Lynch (2010) 50 Cal.4th 693, 736 (Lynch).)
" 'For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] "The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature." ' [Citation.] The inference of identity, however, 'need not depend on one or more unique or nearly unique common features; features of substantial but lesser distinctiveness may yield a distinctive combination when considered together.' [Citation.] Moreover, 'the likelihood of a particular group of geographically proximate crimes being unrelated diminishes as those crimes are found to share more and more common characteristics.' [Citation.]" (Lynch, supra, 50 Cal.4th at p. 736.)
On appeal, we review a trial court's decision to admit or exclude evidence under Evidence Code section 1101 for an abuse of discretion. (People v. Hovarter (2008) 44 Cal.4th 983, 1004.)
3. Analysis
The trial court noted a number of marks of similarity between the Wells Fargo robbery and the charged offenses. Some of these similarities are not unique. However, when combined with a number of unique characteristics shared by the charged offenses and the uncharged offense, there were sufficient unique characteristics to permit the introduction of evidence regarding the uncharged offense for the purpose of establishing not only intent with respect to the T&M Liquor store attempted robbery/shooting, but also the identities of the perpetrators of the charged crimes.
The factors that the trial court found to be significant and unique include the fact that the suspects in both the charged offenses and the Wells Fargo robbery used cars that had been stolen (in a similar manner) to transport themselves to the locations of their crimes and to leave those locations. In addition, the men abandoned the stolen cars near the crime scenes and used other means to leave the area. The court also noted the proximity in time of the robberies, which all occurred within a period of approximately a month to a month and a half.
The trial court also thought that it was particularly significant that these two men had committed the Wells Fargo Bank robbery together. In other words, evidence linking the two men together in the commission of another armed robbery was relevant to show that Saibu and Valentino know each other, commit crimes together, and, in fact, commit armed robberies together, which in turn is circumstantial evidence that these two were the ones who committed the charged crimes together, and that they harbored the intent to commit robberies.
The trial court found that these characteristics, combined with similarities that the court found not to be unique—namely the fact that in all of the crimes the perpetrators were African-American males, wearing similar clothing (i.e., hooded sweatshirts and bandanas partially covering their faces), that the crimes involved "take-down nature" robberies, and that the robbers used firearms―were sufficient to admit evidence of the Wells Fargo Bank robbery as evidence of the defendants' intent to rob, as well as evidence that they were the persons who perpetrated the charged crimes.
In the aggregate, the similarities among the uncharged and charged crimes become more meaningful, and lead to the reasonable inference that Saibu and Valentino were the persons who committed the crimes, and that they intended to rob the T&M Liquor store. (See People v. Medina (1995) 11 Cal.4th 694.) Therefore, the trial court did not abuse its discretion in admitting evidence of the Wells Fargo Bank robbery at the trial in this case.
Even if we were to determine that the trial court abused its discretion in admitting evidence of the Wells Fargo Bank robbery for the purpose of proving the identities of the perpetrators of the charged offenses, we would conclude that the error was harmless. Error involving the admission of other crimes evidence is subject to the prejudice standard announced in People v. Watson (1956) 46 Cal.2d 818. (People v. Welch (1999) 20 Cal.4th 702, 749-750.) Under this standard, we determine whether it is reasonably probable that the defendant would have obtained a more favorable outcome if the error had not occurred. (Watson at p. 836.)
The trial court did not rely on identity alone as the basis for admitting evidence of the Wells Fargo robbery. Rather, the court concluded that this evidence was also relevant to demonstrate the "joint action" of the appellants, as well as Saibu's intent to aid and abet Valentino in the attempted robbery of the T&M Liquor store. The degree of similarity that is required between evidence of uncharged acts and the charged offense, for the purpose of proving intent, is significantly less than that required to establish identity (see Lynch, supra, 50 Cal.4th at p. 736). The trial court could have reasonably concluded that evidence of the Wells Fargo robbery was more probative than prejudicial with respect to the issue of intent, and, therefore, could have properly admitted evidence of the Wells Fargo robbery for the purpose of proving that the perpetrators intended to rob the liquor store on the day of the shooting.^[1] Thus, the error that we are presuming, for purposes of argument, is the failure of the trial court to instruct the jury that it could consider the evidence of the Wells Fargo robbery only to determine the defendants' intent.
We conclude that it is not reasonably probable that either defendant would have obtained a more favorable outcome if the trial court had admitted the evidence for the purpose of proving the defendants' intent, and had provided a limiting instruction prohibiting the jury from considering the evidence for the purpose of determining identity. The jury viewed videotape evidence from all of the crimes and saw still photos created from those videotapes. With respect to the Hollywood Video store robbery, Saibu's DNA was found on a shotgun used during the robbery, Valentino told Buckley that he had robbed a Hollywood Video store, and Buckley identified Saibu and Valentino from the Hollywood Video store security videotape. With respect to the July 12, 2005 T&M Liquor store attempted robbery, during a live lineup, victim Mikho identified Saibu as resembling the perpetrator, Almajid identified Saibu from the surveillance videotape, and Saibu's DNA was found on the shotgun and the shells that police recovered from the scene.
With respect to the July 13, 2005 attempted robbery and murder at the T&M Liquor store, there was evidence from which the jury could reasonably infer that Saibu had taken a .38 caliber silver-colored revolver from Almajid's apartment. A witness saw a man wearing baggy clothing and carrying a silver revolver running away from the liquor store after the shooting. Another witness spotted the stolen white Mercedes Benz in an alley and identified Valentino as one of the men who got out of that car. A third witness noticed that one of the men standing next to the Mercedes Benz had darker skin than the other man. Valentino's prints were lifted from the trunk of the Mercedes Benz, and Valentino admitted to Buckley that he had shot a man while robbing a liquor store on El Cajon Boulevard. Buckley also heard Saibu say to Valentino, a couple of weeks after the shooting, "Man, I just told you to rob the place. I didn't know you were going to shoot the guy's head off." During another conversation, when Buckley referred to the car that was used during that attempted robbery as a gray BMW, Saibu corrected him and said that in fact the car was a white Mercedes Benz. In addition, Saibu told Almajid that he was waiting in the car during the shooting.
Based on the state of the evidence, it is not reasonably probable that either Saibu or Valentino would have obtained a more favorable outcome if the trial court had instructed the jury that it could consider evidence of the Wells Fargo robbery only for the purpose of determining the defendants' intent, and not to determine identity.
B. The court did not err in admitting in evidence certain digitally enhanced photographs and expert testimony describing how the images were enhanced

Valentino and Saibu contend that the trial court erred in admitting digitally enhanced photographs that the prosecutor utilized in exhibit numbers 146 and 171.^[2] According to Valentino and Saibu, the court should have excluded the photographs due to discovery violations by the prosecution pertaining to the photographs, and also should have excluded them on the grounds that the photographs lacked sufficient foundation, and that they should have been the subject of a hearing under People v. Kelly (1975) 17 Cal.3d 24 (Kelly).
1. Additional background
Nathan Cunningham, an investigative technician with the San Diego County District Attorney's Office, created digital still images from VHS copies of surveillance videotapes from the T&M Liquor store incidents. Cunningham used the still images to prepare photo boards that the prosecutor ultimately used as courtroom exhibits at trial.
Prior to Cunningham's testimony, defense counsel asked the trial court for a sidebar conference to discuss the process that Cunningham had used to digitally enhance the still photographs. The court ultimately held an Evidence Code section 402 hearing, outside the presence of the jury, to consider whether the photographic exhibits were admissible.
At the foundational hearing, Cunningham testified that he specialized in graphics and 3-D animation. Cunningham is familiar with computer software programs used to enhance or enlarge photographs, such as Adobe Photoshop (Photoshop). Cunningham has used Photoshop for eight years, and is knowledgeable about the latest versions of the program. According to Cunningham, Photoshop is frequently used by those who prepare demonstrative exhibits and is considered an essential tool that is widely used in that field.
Cunningham made exhibit 146, photograph E, and exhibit 171, photograph C, from a VHS videotape. Cunningham enlarged the still images, which is something that he does on almost a daily basis in preparing exhibits. Cunningham explained how he created photograph C of exhibit 146, which is an enlargement of a portion of photograph E of exhibit 146. Cunningham also described how he utilized a particular Photoshop enhancement tool to make the color from the color video stand out more in the still image. Specifically, Cunningham placed a digital copy of the image on top of the original image, and changed the blending mode to "Color Dodge." Cunningham explained that this process causes lighter colors in the image to become brighter than darker colors, which ultimately brightens the color overall. Cunningham used this same process with respect to the photographs depicted in exhibit 171.

Cunningham testified that the Color Dodge process did not create the same amount of contrast in the photos in exhibit 171 as in those in exhibit 146. He explained that this is because the videotaped footage used to make the still images in the two exhibits had been taken at different times of day, under different lighting conditions, and from different angles.
According to Cunningham, using the Color Dodge mode does not import new or different colors into an image. Rather, the Color Dodge mode allows one to overlap an exact copy of an image over the original image in such a way that it provides additional contrast and makes colors appear brighter.
Cunningham also explained pixels, and how the scaling of different images can sometimes affect the quality of the image and/or require the computer software to use a complicated equation to fill in pixels when an image is enlarged.
Cunningham said that he had not tried to enhance the skin tone of the person depicted in exhibit 146, photograph A, but that what he was trying to do was to enhance the value and brightness of the entire photograph. Upon further questioning from the court, Cunningham explained that the Color Dodge mode is like the brightness and contrast settings on a television set. It is a mode that affects lighter colors more, such that they become brighter, but allows darker colors to remain the same. It does not add color, but essentially brightens the entire image.
After Cunningham testified at the foundational hearing, the prosecutor noted that the photographs in exhibits 146 and 171 had already been introduced at trial, with no objection from defense counsel.
Counsel for Valentino argued that he was not aware of the existence of exhibit 146 until Buckley testified at trial.^[3] Counsel asserted that if he had known that an enhancement process had been used on the photographs, he would have found an expert witness to explain that the skin tone of the individual depicted in exhibit 146, photograph C, was not a fair and accurate depiction of the subject's skin tone. Counsel further argued that it was clear that the process Cunningham had used was a technical process that was outside the common understanding of a juror. Valentino's counsel requested that the trial court exclude exhibit 146, as a remedy for the prosecutor's discovery violation in failing to inform him about the digital enhancement, and also objected to the exhibit on the ground that there was no foundation as to how the exhibit had been enhanced.
The trial court considered whether Cunningham's testimony involved a scientific process that implicated expert opinion testimony and Kelly, and whether the prosecutor's failure to disclose the use of the Photoshop enhancement constituted a discovery violation, or rather, whether Cunningham's testimony pertained to a commonly accepted enhancement technique that someone could do on a home computer. The court concluded that Cunningham's testimony about the images, and how he created them, qualified as expert testimony under Evidence Code section 801, but that the technique that Cunningham had used was not new, and, therefore, that Kelly did not apply. The trial court ruled that it would not exclude Cunningham's testimony or the exhibits as a sanction for the prosecutor's discovery violation in failing to disclose the digital enhancement process, but agreed to allow defense counsel the opportunity to try to find an expert who would cast doubt on the reliability of the process that Cunningham had used in creating the still images.
Valentino's counsel acknowledged that he "personally believe[d] that everything Mr. Cunningham did is what everybody does with that software," but indicated that he was more concerned with Cunningham potentially testifying that the photographs accurately depicted the subjects' skin tone. The trial court observed that if the jury understood the photographs as accurately depicting skin tone, this would benefit Valentino, because the skin tone of the individual in exhibit 146 was not similar to Valentino's skin tone.
After this discussion, court adjourned for the weekend. On the first day of court the following week, Valentino's counsel informed the court that he had contacted an individual at a company that specializes in preparing exhibits like the ones Cunningham had prepared, but that the person he had contacted believed he had a conflict because he knew Cunningham very well. Valentino's counsel said that he had a list of other potential experts whom he could call, but he did not know whether he would be able to find an expert who would be available to testify. The prosecutor noted that because of a mix-up with witnesses for that day, there was some time for an expert to "look at the process." The court then moved on to other business.

The following day, the trial court raised the "Photoshop issue" with the attorneys. Valentino's attorney indicated that he did "not have any expert who can offer an opinion as to whether the process of enlargement" "alters the details of facial features to the point where it could no longer be viewed as a fair and accurate representation of what is depicted." Counsel stated that his concern was "that any facial features may be distorted to the point where you can't look at it and say whether it's a fair and accurate representation of what the person looked like, because it's been enlarged by a computer process." Counsel requested that the court give a limiting instruction to the effect that that the jury could consider exhibit 146 only for the "skin tone of the shooter," and for "no other purpose."
The court made three rulings with respect to Cunningham's testimony. The court first addressed the Kelly issue, and determined that the enhancement of digital images, even by computer software, is not new, and that the process that Cunningham used "passes [Kelly] muster." The court also determined that the process that Cunningham used implicated expert opinion and "should have been disclosed as such," but found that the prosecutor had not deliberately violated the discovery rules. The court rejected defense counsel's request that the court give a jury instruction to the effect that the evidence had not been timely disclosed, and also determined that the evidence, including both photographic exhibits (146 and 171), as well as Cunningham's testimony regarding the process that he used to create the exhibits, would be admitted. The court noted that it had "grante[ed] a continuance of sorts to let the defense have a chance to try to meet this testimony."
Cunningham later testified at trial regarding the Photoshop process that he used to create photo board exhibits 146 and 171.
2. Analysis
a. Discovery violation
Defendants contend that the trial court should have excluded the challenged photographs and Cunningham's testimony as a sanction for the prosecutor's discovery violation in failing to disclose information about the process that Cunningham had used to create the still images. Although acknowledging that a trial court "may consider a wide range of sanctions in response to a discovery violation," the defendants assert that the trial court abused its discretion in not instructing the jury with CALCRIM No. 306, regarding the untimely disclosure of evidence, and that given the fact that the court arbitrarily refused to give this instruction, the court should have granted a greater sanction, i.e., exclusion of both the photographic evidence and Cunningham's testimony.
Pursuant to the Penal Code, the prosecution must disclose to the defense "[a]ll relevant real evidence seized or obtained as part of the investigation of the offenses charged," as well as "[t]he results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecution intends to offer in evidence at the trial." (§ 1054.1, subds. (c), (f).) In response to a violation of the discovery rules, a trial court has the discretion to choose from a range of possible sanctions: "[I]mmediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order." (§ 1054.5, subd. (b).) In addition, "the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure." (Ibid.) An appellate court "generally review[s] a trial court's ruling on matters regarding discovery under an abuse of discretion standard. [Citation.]" (People v. Ayala (2000) 23 Cal.4th 225, 299.)
The trial court weighed the nature of the discovery violation and the evidence at issue and ultimately determined that no sanction was warranted. The trial court acted reasonably in reaching this conclusion. There is nothing in the Penal Code that requires a court to impose a sanction for a discovery violation. Rather, the Penal Code states that the trial court "may" make discovery orders, as necessary. Here, it was reasonable for the trial court to determine that giving the defense time to attempt to find an expert was sufficient to remedy any asserted prejudice that the defense was claiming based on the discovery violation at issue. The trial court did not abuse its discretion in declining to impose the discovery sanctions that the defendants requested.
b. Kelly analysis
Defendants contend that the trial court erred in failing to hold a Kelly hearing with respect to the Photoshop process that Cunningham used to enhance the digital images.
Expert testimony that is based on a new scientific technique will not be admitted unless the reliability of the method from which the expert testimony is made has been sufficiently established to have gained general acceptance in the particular field in which it belongs. (Kelly, supra, 17 Cal.3d 24, 30.) The Kelly standards apply only where the evidence set forth at trial involves a "new" scientific technique or principle. (Leahy (1994) 8 Cal.4th 587, 605.) In determining whether a scientific test is "new," the repeated use, study, testing and confirmation by scientists or trained technicians qualifies the test as being generally accepted within the field. (Ibid.) Further, once a trial court has admitted evidence based upon a new scientific technique and that decision is affirmed on appeal by a published appellate decision, that precedent may control at subsequent trials, at least until new evidence is presented reflecting a change in the attitude of the scientific community. (Id. at p. 595.)
Under these standards, we cannot agree with defendants that the Photoshop program that Cunningham used to enhance digital images is a "new" scientific technique that should have been subject to the Kelly test. First, it is questionable whether the Photoshop program can be considered a scientific technique. Rather, it appears to be more akin to an artist's tool used for making demonstrative exhibits, or a process used to develop digital "film." Further, Cunningham testified that he, personally, has been using Photoshop for eight years, and that it is used widely in his field and is considered to be an essential tool. As long ago as 1998, an appellate court in Washington determined that using Photoshop to enhance latent fingerprints was a process that was "generally accepted in the relevant scientific community." (State v. Hayden (1998) 90 Wn.App. 100, 109.)
We conclude that the trial court was not required to hold a Kelly hearing with respect to the Photoshop process that Cunningham used to enhance the photographs.
c. Foundation
Defendants contend that the trial court should not have admitted the photographs "because no legally sufficient foundation had been established." They argue that "no witness had testified that the photographs were faithful representations of the persons depicted." This argument is without merit. Specifically, Cunningham testified as to how he created the still images from VHS surveillance video from the T&M Liquor store. Other witnesses had testified that the surveillance video accurately depicted the events that they witnessed. This testimony is sufficient to lay a foundation for the admission of the photographic evidence at issue.
C. The trial court did not err in admitting the recording of Almajid's
conversation with police

Defendants contend that the trial court erred in admitting in evidence a partially redacted video recording of Naz Almajid's August 2007 interview with police.
At trial, the prosecutor raised a concern that Almajid, who was scheduled to testify, "may be less than forthcoming and may, in fact, testify differently than his prior statement to San Diego police." The prosecutor had provided defense counsel with a copy of a partially redacted transcript of the interview of Almajid that detectives conducted on August 23, 2006. Saibu's attorney objected to admission of the portions of the interview in which detectives made statements that implicated Saibu in the robberies.
The prosecutor suggested that the trial court give a limiting instruction to the jury to the effect that "the statements of the police officer are designed to get information, and they don't even have to be true and that the questions are only important as they relate to what the answers are." Saibu's attorney then identified the specific statements that troubled him and to which he was objecting. After going through the entire transcript and each of defense counsel's objections, the trial court stated:
"I presided over the preliminary hearing, and I heard Mr. Almajid's testimony. I also conducted the in camera. Mr. Almajid, it struck me that both of those times, was being deliberately evasive. When a person is deliberately evasive, of course, then his I-don't-remembers become the legal equivalent of denials. The reason that is important is because then a prior inconsistent statement may be admitted for the truth of the matter contained in the prior inconsistent statement. That's one principle that I think is at work here.

"The other principle is that the Court's sense at the preliminary hearing and during the in camera examination was that Mr. Almajid was frankly feigning his lack of memory. I believed then and, if he testifies consistently, I suspect I will make the same finding today that if he says that―well, let me begin that again. If Mr. Almajid attempts to explain this away by virtue of either coercion that he felt he was under or drugs or alcohol that he had consumed or fatigue that he was feeling, it seems to me that the actual video of how he presented himself and how the detectives presented themselves has very high relevance to a trier of fact in evaluating Mr. Almajid's credibility.

"[¶[] . . . [¶]

". . . Under those circumstances, I think that the way in which the interview went down is of crucial importance for the ascertainment of the truth with respect to Mr. Almajid's statements.

"I think it has a very high probative value. I think that the jury must understand that, just as when a witness is testifying, the questions aren't evidence. They're only relevant insofar as they give meaning to the answer. That same principle would apply to this interview."

The court tentatively ruled, contingent on how Almajid testified at trial, that the redacted interview transcript that the prosecutor had originally offered would be admissible as evidence of Almajid's prior inconsistent statements and as evidence going to Almajid's credibility. The court indicated that it would give a limiting instruction to the effect that questions and/or statements of the police are not evidence unless the interviewee adopted them.
Almajid testified the following day. Almajid said that he did not remember much about events that occurred around the time one of his guns went missing, or what he had been doing on the day that Toma was shot. He testified that he did not remember telling police that he had cried over Toma's death. Almajid maintained that he did not remember the day of his interview with the detectives, and also did not remember having viewed the surveillance video of the murder on the internet or having told police that he had viewed the surveillance video.
After the lunch break, the prosecutor informed the court that she had been told that Almajid's sister had taken him to the hospital during the break, apparently because he was suffering from a panic attack. The trial court indicated its concern that Almajid was violating the court's order that he return to testify at 1:30 p.m. that day. The court found that Almajid was a reluctant witness who "does not wish to be [testifying in court]," and stated, "[F]or purposes of the prima facie finding [of contempt], which is a prerequisite to issuing a warrant, I find that while he may be experiencing stress from his testimony, it is likely that he is seeking to avoid a further appearance in this court on this case." The court issued a bench warrant for Almajid.




TO BE CONTINUED AS PART III….


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