Thursday, May 30, 2002
Page 3
Judge’s Questioning During View of Scene Violated Fifth Amendment—C.A.
New Trial Ordered for Orange County Doctor Convicted of Molesting Patients
By a MetNews Staff Writer
A defendant’s right to silence was violated when the trial judge questioned him in the presence of the jury at a view of the alleged crime scene—the defendant’s office suite—without obtaining a waiver, the Fourth District Court of Appeal ruled yesterday in ordering a new trial for a doctor convicted of molesting three patients.
The court ordered a new trial for Del B. Dalton of Laguna Niguel, whose medical license was revoked by the Medical Board of California in September 2000 on the basis of the same conduct for which he was convicted. The appeals court ruling does not immediately affect that revocation.
Dalton, a controversial figure before the accusations came to light because of his public advocacy of marijuana use for medical purposes, has also been sued for sexual misconduct.
Dalton was convicted of six misdemeanors—three counts of sexual battery, one count of battery, and two counts of misrepresenting himself as a board-certified plastic surgeon—and received a suspended jail sentence along with the immediate suspension of his medical license following his 1999 trial.
The Orange Superior Court Appellate Division affirmed his conviction in a 2-1 decision, but the Court of Appeal said that “substantial irregularities” in the conduct of the trial by Judge Pamela Lee Iles require reversal.
Justice William Rylaarsdam, writing for Div. Three, said Iles violated Dalton’s Fifth Amendment right to freedom from self-incrimination during the visit to his offices, which were ordered on defense motion. The judge granted the motion after the defense argued that it would help establish the unlikelihood that Dalton could have done what he was accused of without others in the suite overhearing.
After eight days of testimony, Iles convened the court at the defendant’s office.
In the presence of the jury and prosecutors, the judge asked:
“So do you want me to swear Dr. Dalton for the purposes of carrying out a guided tour?”
After the defense lawyer acceded to the request—Dalton was in his personal office at the time, Rylaarsdam explained—he was summoned to the room where the others were gathered and the judge, without obtaining a Fifth Amendment waiver, told the clerk to swear him in.
The doctor then led a tour of the office, describing the layout and office procedures in narrative style until the judge interjected that she preferred to “do the questioning” because it would “be easier.” The judge completed her questioning, then invited the prosecutor to cross-examine, before asking some further questions of her own.
After the court reconvened in the courtroom, the judge told jurors that if they had any other questions, “you’ll be able to ask that later when [the doctor] takes the stand at a later time.”
These procedures “committed defendant” to testify without giving him the option not to do so, Rylaarsdam wrote, and were “repugnant to the protections offered by the Fifth Amendment.” A defendant cannot be forced to state in the jury’s presence whether or not he will testify, the justice said.
The jurist rejected the contention that the error was harmless beyond a reasonable doubt, and questioned whether “a judge’s unexpected and direct request in the presence of the jury for a defendant to testify...could ever be harmless ‘beyond a reasonable doubt.’”
He also cited what he called “a representative sample” of other irregular conduct by the judge, including taking the defendant “by surprise” by asking him to “act as a tour guide” before he came into the room where the judges and lawyers were, inviting the prosecutors to cross-examine at the scene, and questioning the defendant on irrelevancies such as the procedure for storage of drugs on the premises.
The latter questioning breached the judge’s obligation to “be careful not to become [an advocate] for either side,” Rylaarsdam said, because their had been a substantial amount of irrelevant trial testimony about drug usage by various persons, including defense witnesses.
The justice went on to reject the argument that there was a Fifth Amendment waiver because the defense announced at pretrial conference that Dalton would testify.
“An early announcement that defendant will testify does not create an irrevocable duty to do so; defendant may later change his mind,” Rylaarsdam explained. “The posture of the case, whether evidence is admitted or not, and trial tactics may alter the decision. A pretrial statement such as the one defendant’s lawyers made cannot be, in and of itself, a waiver of the right not to testify.”
Nor did Dalton’s agreement to conduct the office tour constitute a waiver, the justice said.
“We recognize that where a defendant is represented by a lawyer, the court has no duty to admonish the defendant regarding the privilege against self-incrimination or to take a formal waiver of that right,” the justice said. “...But here defendant did not take the stand at the request of his lawyer; the invitation came from the court.”
Counsel’s acquiescence to such a request in the presence of the jury, Rylaarsdam explained, does not constitute a waiver since an objection in that circumstance would likely have caused the jury to draw improper inferences. Besides, the justice concluded, if there was a waiver with respect to the manner in which the tour was conducted, it did not extend to the subsequent improper questioning.
The case is In re Dalton, 02 S.O.S. 2562.
Copyright 2002, Metropolitan News Company