Monday, March 14, 2005
C.A. Upholds Denial of Immunity in South L.A. Gang Shooting Case
By KENNETH OFGANG, Staff Writer/Appellate Courts
A Los Angeles Superior Court judge was not required to grant immunity to a potential defense witness in a gang-related murder case, the Court of Appeal for this district ruled Friday.
Div. Three affirmed the convictions and life sentences of Lamont DeVault and Ruben James Jones in the June 25, 2000 murder of John Boyakins and the attempted murders of three other men who were shot as they left a party in South Los Angeles.
Presiding Justice Joan Dempsey Klein authored the panel’s unpublished opinion.
DeVault and Jones admitted being longtime members of the Six Deuce East Coast Crips, but testified they had left the gang and denied involvement in the shootings. Prosecutors claimed the shootings were retaliation for the killing two days earlier of a member of an allied gang, who was shot outside a local liquor store.
One of the men injured in the June 25 shooting was later charged with the earlier killing.
Break in Case
DeVault and James were arrested more than a year after the shootings. Detectives testified that they learned of their involvement through Clarence H., as he was identified in the opinion.
Clarence H. was under arrest on an unrelated charge, an investigator explained, when he told police he was present at a meeting at Jones’ house the day after the first shooting. He claimed that DeVault proposed the drive-by shooting as retaliation.
Clarence H. also told police in a recorded statement that he was a Jones’ house when the defendants left in a van to carry out the plan, that he heard the shots, that the men returned to the house, that DeVault bragged about having shot some people and was mad at Jones for not having fired any shots, and that Jones said the van’s sliding door had jammed and he couldn’t get it open.
At trial, Clarence H. recanted his statement, denied having been at Jones’ house before, during, or after the shooting, denied hearing DeVault talk about the murder, said he did not remember being interviewed about the murder, and denied it was his voice on tape.
Prosecutors presented evidence that Clarence H. had been threatened and stabbed in jail after it was disclosed that he was going to testify. They presented a tape in which he reaffirmed what he told police but said his family had been threatened and he did not want to testify.
Defense lawyers called a witness, identified only as D.M., whom Clarence H. had claimed in his recorded statement was the person who furnished the van used in the shooting D.M. invoked the Fifth Amendment.
The defense then requested that D.M. be granted immunity, proffering that he would testify that he did not own a van and was not present on the night of the shooting. The prosecution declined to offer immunity, and Judge Kathleen Kennedy-Powell ruled that she lacked the authority to do so.
The jury found DeVault guilty of first degree murder and possession of firearm by convicted felon, found Jones guilty of second degree murder, found both defendants guilty of the attempted murders of the three who were wounded, and found that both defendants had used firearms and that the offenses were gang-related.
The judge sentenced DeVault to life plus 80 years to life in prison, and Jones to life plus 60 years to life.
In concluding that the denial of immunity to D.M. did not constitute reversible error, Klein explained that the granting of immunity is committed to prosecutorial, rather than judicial, discretion under Penal Code Sec. 1324.
Third Circuit View
The presiding justice went on to acknowledge that one court, the Philadelphia-based Third U.S. Circuit Court of Appeals, has ruled that a judge may grant immunity to a defense witness pursuant to the Due Process Clause. But even if the Third Circuit test were the law in California, Klein said, the facts of the case would not have justified granting immunity to D.M.
The Third Circuit, Klein explained, has held that a defense witness is entitled to immunity if the proposed testimony is “clearly exculpatory” and essential to the defense case, and if there are no strong governmental interests weighing against the grant of immunity.
The California Supreme Court, Klein added, has similarly held that—assuming for purposes of argument that there is a due process right to a judicial grant of immunity to a defense witness—the right does not attach when the proposed testimony is not clearly exculpatory.
D.M.’s proffered testimony, Klein declared, “would not have clearly exculpated either defendant; all it would have done is cast doubt on Clarence’s credibility.” There was, the presiding justice noted, other evidence contradicting the defendants’ testimony that they were not at Jones’ house the night of the murder.
“Therefore, even if the trial court had the power to grant use immunity, there would have been no error in declining to exercise that power in order to facilitate D.M.’s testimony,” the presiding justice wrote.
The case is People v. DeVault, B162631.
Copyright 2005, Metropolitan News Company