Prince v. Superior Court
CLEOPHUS PRINCE, JR., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; THE PEOPLE, Real Party in Interest
- Area
- criminal
- Panel
- Kathryn Todd (author)
Analysis
The trial court ordered the division of vaginal swab evidence between the parties for PCR testing but required the defense to allow the prosecution to observe the testing and share the results. The Court of Appeal issued a writ of mandate, holding that the trial court erred by preventing the defense from conducting an independent, confidential test of its half of the sample, which violated the right to effective assistance of counsel.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Trial court order requiring the defense to allow prosecution presence during independent DNA testing of the divided vaginal swab sample and to disclose results.“The trial court erred in preventing Prince from conducting an independent test of its half of the semen from the swab.” | abuse of discretion | error | agree with court The appellate court found the trial court's order clearly erroneous as a matter of law because it infringed upon the defendant's Sixth Amendment right to effective assistance of counsel, specifically the right to confidential communication with experts and the ability to conduct independent testing for defense preparation. |
Authorities
- relied: Schweiger v. Superior Court (1970) 3 Cal.3d 507 — Establishes the standard for issuing a writ of mandate or prohibition when a trial court's ruling is clearly erroneous as a matter of law and the petitioner will suffer substantial prejudice.
- relied: People v. Cooper (1991) 53 Cal.3d 771 — Distinguished by the court; held that a trial court did not err in denying a defense request to conduct an independent blood test that would have consumed the entire sample, but found inapposite here because the sample was divided and sufficient for multiple tests.
- relied: Schmerber v. California (1966) 384 U.S. 757 — Holds that the privilege against self-incrimination protects only against forcible disclosure of testimonial communications, not physical evidence like DNA.
- relied: Gideon v. Wainwright (1963) 372 U.S. 335 — Guarantees the right to counsel in all criminal prosecutions.
- relied: United States v. Cronic (1984) 466 U.S. 648 — Establishes that the right to counsel includes the right to effective assistance of counsel.
- relied: Barber v. Municipal Court (1979) 24 Cal.3d 742 — Holds that effective assistance of counsel includes effective assistance during the preparation of a case for trial.
- relied: In re Sixto (1989) 48 Cal.3d 1247 — Requires counsel to have the client's blood tested where it may exonerate the client as part of effective assistance.
- relied: Corenevsky v. Superior Court (1984) 36 Cal.3d 307 — Holds that effective assistance of counsel includes the assistance of experts in preparing a defense.
- relied: Jones v. Superior Court (1962) 58 Cal.2d 56 — Holds that effective assistance of counsel includes confidential communication with experts.
- relied: People v. Meredith (1981) 29 Cal.3d 682 — Holds that the attorney-client privilege does not bar revelation of the original location or condition of evidence when defense counsel removes or alters it, but distinguished here because the prosecution was not denied access to observations of evidence that would be destroyed.
- relied: People v. Superior Court (Fairbank) (1987) 192 Cal.App.3d 32 — Applied Meredith to weapons located and altered by the defense, distinguishing the current case where the evidence was divided rather than altered in a way that precluded prosecution observation.
The appellate opinion: sound — The court reasoned that the trial court's order violated the Sixth Amendment right to effective assistance of counsel by preventing confidential communication with experts and independent testing. It distinguished cases involving destruction of the entire sample and held that the defense's right to prepare its case outweighed the prosecution's interest in observing the test, especially since the sample was divided and sufficient for multiple tests.
How this analysis was made · dispute it
unusual dispositionThe trial court ordered the semen on the murder victim's vaginal swab divided between the prosecution and the defense for PCR DNA testing, with each side entitled to observe the other's test and receive its report, so that the People would learn the results of any defense test. The Court of Appeal granted a writ of mandate, holding the order deprived Prince of effective assistance of counsel, and directed the trial court to permit independent defense testing with disclosure to the People only if the defense intends to call a witness from its testing facility, under Penal Code sections 1054.3 and 1054.7.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Whether extraordinary writ relief is available to review a discretionary pretrial discovery order“However, extraordinary relief is appropriate if the trial court’s ruling is clearly erroneous as a matter of law and the petitioner will suffer substantial prejudice.” | de novo | correct | agree with court The court applied the Schweiger standard that writ review of a discovery order lies where the ruling is clearly erroneous as a matter of law and the petitioner would suffer substantial prejudice; given that the test would consume the sample and the defense would be forced to reveal results to the prosecution before trial, prejudice is not remediable on appeal, so writ review was appropriate. |
Rejection of the Fifth Amendment self-incrimination challenge to prosecution access to defense DNA testing (People's reliance on Cooper found inapposite but privilege held not implicated)“However, the privilege against self-incrimination protects only against forcible disclosure of testimonial communications.” | de novo | correct | agree with court Under Schmerber physical evidence such as semen testing is non-testimonial, so the privilege against self-incrimination did not bar the order; the court correctly distinguished Cooper, which involved a defense request that would have consumed the entire sample, since here the sample could be divided for multiple tests. |
Due process (Trombetta/Youngblood/Griffin) and statutory work-product challenges to the order“We need not decide whether denial of an independent test denies Prince due process or his statutory work product claim since the trial court order deprives Prince of effective assistance of counsel.” | unclear | not reached | agree with court The court declined to reach these grounds because it resolved the case on the Sixth Amendment; this is a legitimate exercise of judicial restraint, though the work-product and Penal Code section 1054 statutory grounds arguably provided a more direct and narrower basis for decision. |
Order requiring the defense to permit prosecution observation of, and receive a report on, the defense's PCR test of its half of the vaginal swab semen“The trial court erred in preventing Prince from conducting an independent test of its half of the semen from the swab.” | de novo | error (law misapplied) | agree with court The court reasoned that effective assistance of counsel includes consultation with experts in confidence (Corenevsky, Jones) and investigation such as testing that may exonerate the client (Sixto), and that forcing disclosure of an unfavorable defense test result to the prosecution chills that investigation while giving the People nothing they are entitled to, since a non-testifying expert's results are not discoverable under Penal Code section 1054.3. The result is sound, though the court did not cite Penal Code section 1054, subdivision (e) or Izazaga, which define the exclusive scope of prosecution discovery after Proposition 115 and would have anchored the holding more firmly; the Sixth Amendment rationale is somewhat broad for what is essentially a reciprocal-discovery dispute. |
People's argument under Meredith and Fairbank that prosecution discovery of defense DNA testing is permissible because the test destroys evidence“Here, the swab in question is being divided in half.” | de novo | correct | agree with court Meredith and Fairbank permit disclosure only where the defense, by altering or removing physical evidence, has precluded the prosecution from making the same observation; because the prosecution retains its own half of the swab for its own test, it is not deprived of any observation it could otherwise have made, so those cases do not apply. |
Authorities
- relied: Schweiger v. Superior Court (1970) 3 Cal.3d 507 — Writ relief from a discovery order is available where the ruling is clearly erroneous as a matter of law and the petitioner will suffer substantial prejudice.
- relied: People v. Cooper (1991) 53 Cal.3d 771 — Trial court did not err in denying a defense request for an independent blood test that would have consumed the entire sample; distinguished here because the swab could be divided.
- relied: Schmerber v. California (1966) 384 U.S. 757 — The privilege against self-incrimination protects only against compelled testimonial communications, not physical evidence.
- relied: Gideon v. Wainwright (1963) 372 U.S. 335 — The Sixth Amendment guarantees the accused the right to assistance of counsel in criminal prosecutions.
- relied: United States v. Cronic (1984) 466 U.S. 648 — The right to counsel includes the right to effective assistance of counsel.
- relied: Barber v. Municipal Court (1979) 24 Cal.3d 742 — Effective assistance of counsel includes assistance during preparation of the case for trial.
- relied: In re Sixto (1989) 48 Cal.3d 1247 — Effective assistance requires counsel to have the client's blood tested where the test may exonerate the client.
- relied: Corenevsky v. Superior Court (1984) 36 Cal.3d 307 — Effective assistance of counsel includes the assistance of experts in preparing a defense.
- relied: Jones v. Superior Court (1962) 58 Cal.2d 56 — The defendant is entitled to communicate with defense experts in confidence.
- relied: County of Los Angeles v. Superior Court (1990) 222 Cal.App.3d 647 — Under Penal Code section 1054.3 the defense must disclose the identity and reports of experts it intends to call at trial, but not those of non-testifying consultants.
- relied: People v. Meredith (1981) 29 Cal.3d 682 — Defense observations that are the product of privileged communications are protected unless the defense, by altering or removing physical evidence, has precluded the prosecution from making the same observation.
- relied: People v. Superior Court (Fairbank) (1987) 192 Cal.App.3d 32 — Applied Meredith to weapons located and altered by the defense.
- missed: Izazaga v. Superior Court (1991) 53 Cal.3d 356 — Upheld the reciprocal discovery provisions of Proposition 115 and construed Penal Code section 1054.3 as requiring defense disclosure only as to witnesses the defense intends to call, with section 1054 limiting discovery to that authorized by the chapter, other express statutes, or the Constitution; this binding authority directly governed the People's Proposition 115 argument and should have been addressed.
The appellate opinion: sound with gaps — The court reached a defensible and widely followed result: a defendant may conduct confidential expert testing and need disclose results only if the expert will testify, as Penal Code section 1054.3 provides, and the Meredith/Fairbank destruction-of-evidence exception does not apply when the prosecution keeps its own portion of the sample. The opinion is thin, however, in resting on a broad Sixth Amendment effective-assistance rationale without addressing Izazaga or Penal Code section 1054, subdivision (e), which define the exclusive scope of post-Proposition 115 prosecution discovery and would have supplied a narrower, more direct statutory ground.
Opinion — Todd
Opinion
TODD, J.Cleophus Prince petitions for a writ of mandate or prohibition after the trial court ordered prosecution access to defense deoxyribonucleic acid (DNA) testing of semen obtained from a vaginal swab of a murder victim.
Background
In 1990, Tiffany Shultz, Janene Weinhold, Holly Tarr and Pamela and Amber Clark were found murdered in their homes in the general Clairemont area. Police believe Prince is responsible for the five killings and a sixth homicide in another area of San Diego.
On February 16, 1990, police officers responded to a report Janene Weinhold had been found murdered in her Clairemont apartment. Investigating officers collected a semen stain from a comforter near the victim’s body. San Diego criminalist Larry Turner examined the stain and divided the sample into three parts. He believed each of the parts contained a sufficient sample for DNA typing. He forwarded one of the samples to Cellmark Diagnostics to conduct DNA analysis. He sent a second portion of the semen stain to the FBI laboratory in Washington, D.C., for DNA testing. The FBI reported the sample insufficient in size for matching purposes but perhaps usable to exclude suspects. During 1990 and early 1991, Turner submitted suspects’ blood samples to Cellmark for comparison with results of the sample it analyzed. In March 1991 Cellmark told Turner the DNA profile of Cleophus Prince matched the semen sample. The San Diego Police Department retained the third portion of the semen stain. In Turner’s opinion, this portion is sufficient to conduct one DNA test of the type performed by Cellmark and the FBI (the RFLP method).
On May 27, 1992, the trial court ordered the remaining comforter semen stain tested by the RFLP method. Prince may select the testing facility *1179 subject to the prosecution’s consent. Both parties’ forensic experts may be present at the testing and all reports will be made available to both. Prince chose to have Cellmark Diagnostics conduct the third test. Testing of the third portion of the comforter semen stain is currently underway. This order is not being challenged.
Investigators of Weinhold’s murder also obtained two vaginal swabs from the victim. Dr. Blake examined the swabs to ascertain whether they contained a sample large enough for testing. He believes there is not a quantity large enough to conduct the same type DNA test conducted on the samples sent to Cellmark and the FBI (RFLP) but one of the swabs contains a large enough sample for multiple tests of a different sort (PCR). At the May 27 hearing, the trial court ordered the evidence on the vaginal swabs be divided between the parties to conduct PCR tests. Each party may observe both tests and will be provided with a report on both. Prince challenges this order.
Discussion
At the outset, the People argue extraordinary relief is unavailable because the issue involves a discretionary determination involving discovery. However, extraordinary relief is appropriate if the trial court’s ruling is clearly erroneous as a matter of law and the petitioner will suffer substantial prejudice. (Schweiger v. Superior Court (1970) 3 Cal.3d 507, 517-518 [90 Cal.Rptr. 729, 476 P.2d 97].) Such is the case here.
Relying on People v. Cooper (1991) 53 Cal.3d 771 [281 Cal.Rptr. 90, 809 P.2d 865], the prosecution argues the Fifth Amendment is not violated because Prince can participate in the testing or not. However, in Cooper, the Supreme Court found the trial court did not err in denying a defense request to conduct an independent blood test which would have consumed the entire sample. Here, the court found there was enough semen on the swab to conduct two tests but required the defense to allow the People’s presence if it chose to conduct a test. At oral argument both parties argued the equally divided swab can produce five tests for each party. The court did not make the order because an independent test would consume the entire sample. Cooper is inapposite. However, the privilege against self-incrimination protects only against forcible disclosure of testimonial communications. (Schmerber v. California (1966) 384 U.S. 757, 761 [16 L.Ed.2d 908, 86 S.Ct. 1826].) No testimonial communication is involved here.
Relying on People v. Griffin (1988) 46 Cal.3d 1011 [251 Cal.Rptr. 643, 761 P.2d 103], California v. Trombetta (1984) 467 U.S. 479 [81 L.Ed.2d 413, 104 S.Ct. 2528], and Arizona v. Youngblood (19M) 488 U.S. 51 [102 L.Ed.2d *1180 281, 109 S.Ct. 333], the prosecution argues because it could have consumed the entire semen sample, Prince is not denied due process by having to disclose the results of a test to the People. We need not decide whether denial of an independent test denies Prince due process or his statutory work product claim since the trial court order deprives Prince of effective assistance of counsel.
The Sixth Amendment of the United States Constitution guarantees “ *[i]n all criminal prosecutions, the accused shall [have] the right... to have the [assistance of [c]ounsel for his defense.’ ” (Gideon v. Wainwright (1963) 372 U.S. 335, 339 [9 L.Ed.2d 799, 83 S.Ct. 792, 93 A.L.R.2d 733].) This includes the right to effective assistance of counsel. (United States v. Cronic (1984) 466 U.S. 648, 655 [80 L.Ed.2d 657, 104 S.Ct. 2039].)
Effective assistance of counsel includes effective assistance during preparation of a case for trial (Barber v. Municipal Court (1979) 24 Cal.3d 742, 750 [157 Cal.Rptr. 658, 598 P.2d 818]) and requires counsel to have his or her client’s blood tested where it may exonerate the client (In re Sixto (1989) 48 Cal.3d 1247, 1261 [259 Cal.Rptr. 491, 774 P.2d 164]). Effective assistance of counsel includes the assistance of experts in preparing a defense (Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319, 320 [204 Cal.Rptr. 165, 682 P.2d 360]) and communication with them in confidence (Jones v. Superior Court (1962) 58 Cal.2d 56, 61 [22 Cal.Rptr. 879, 372 P.2d 919, 96 A.L.R.2d 1213]).
Mentioning both Proposition 8 (Stats. 1982, p. A-186, § 3) and Proposition 115 (Gen. Elec. (June 5, 1990)), the People argue justice requires turning over the test results and disclosure of the truth.
While it is true the goal of the judicial process is to find the truth, allowing the defense to conduct an independent test of the DNA will not unfairly prejudice the People or result in injustice. If the test matches Prince with the crime, defense counsel will not call the expert and the case will proceed on evidence already possessed by the People as if the defense test had not been made. The People will have, at least, four semen test samples. If the defense test excludes Prince, the tester will surely testify and the defense will have to disclose his or her identity and provide any report to the prosecution. (See Pen. Code, § 1054.3, subd. (a); County of Los Angeles v. Superior Court (1990) 222 Cal.App.3d 647, 654-655 [271 Cal.Rptr. 698].) *1181 The trial court erred in preventing Prince from conducting an independent test of its half of the semen from the swab. 1
Let the extraordinary writ issue. The trial court shall modify its May 27, 1992, order to permit the defense to conduct an independent analysis of its half of the semen from the vaginal swabs. If the defense intends to call a witness from its testing facility at trial, it shall provide the People with the identity of the witness and a copy of the testing report within the time limitation set out in Penal Code section 1054.7.
Kremer, P. J., and Huffman, J., concurred.
Relying on People v. Meredith (1981) 29 Cal.3d 682 [175 Cal.Rptr. 612, 631 P.2d 46] and People v. Superior Court (Fairbank) (1987) 192 Cal.App.3d 32 [237 Cal.Rptr. 158], the People argue prosecution discovery of defense DNA testing is permissible. In Meredith, the defendant was charged with robbery and murder. He told his attorney the victim’s wallet was behind his house. The attorney sent an investigator who found the wallet and turned it over to the police. At trial, the prosecution called the investigator who testified where he found the wallet. The Supreme Court held this did not violate the attorney-client privilege. The court said, “whenever defense counsel removes or alters evidence, the statutory privilege does not bar revelation of the original location or condition of the evidence in question.” (People v. Meredith, supra, at p. 695, fn. omitted.)
In Fairbank the reviewing court applied Meredith to weapons located and altered by the defense.
Under both Meredith and Fairbank, “an observation by defense counsel or his investigator, which is the product of a privileged communication, may not be admitted unless the defense by altering or removing physical evidence has precluded the prosecution from making that same observation. . . .” (People v. Meredith, supra, 29 Cal.3d at p. 686.) Here, the swab in question is being divided in half. While each half will be destroyed in the analysis process, the prosecution is not being denied access to any observations of evidence which will be destroyed in the sense that phrase was used in Meredith and Fairbank.
Cites, in this corpus
- People v. Cooper S004687. Crim. No. 24552 · 1991-05-06
- County of Los Angeles v. Superior Court B045830 · 1990-07-24
- In Re Sixto S005275 · 1989-06-26
- People v. Griffin S004352. Crim. No. 21753 · 1988-10-03
- People v. Superior Court (Fairbank) A036900 · 1987-05-22
- Corenevsky v. Superior Court Docket Nos. L.A. 31723, 31724, 31722 · 1984-07-05
- People v. Meredith Crim. 21291 · 1981-07-20
- Barber v. Municipal Court L.A. 30898 · 1979-08-10
- Schweiger v. Superior Court S.F. 22754 · 1970-11-10
- Jones v. Superior Court Sac. 7393 · 1962-06-27
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