Monday, December 18, 2006
Appeals Court Approves Testimony by Partially Disguised Witness
By KENNETH OFGANG, Staff Writer
A defendant convicted of pimping and other crimes was not deprived of his rights when a Los Angeles Superior Court judge allowed a witness to testify wearing dark sunglasses and a headscarf in order to disguise her appearance, the Court of Appeal for this district ruled Friday.
The justices affirmed Marlon Brandon’s conviction on 18 counts, including multiple charges of pimping, pandering false imprisonment of violence and procuring a child to participate in a lewd act.
Prosecutors accused Brandon, who also used the name Mac-Bone, according to one of the witnesses, of recruiting a number of females as young as 11 years old into prostitution.
He was extradited to California as a result of an investigation that followed his arrest while traveling in Arizona with a 17-year-old girl, who testified at Brandon’s preliminary hearing that he approached her at a bus stop and offered her a ride. He took her to a motel, she testified, and she agreed to become a prostitute for him.
She said she did want to go to Arizona with Brandon, but was afraid. She telephoned her boyfriend and the police from a truck stop in Arizona and said she had been kidnapped.
She got back into the car, she said, after Brandon came looking for her. The car was later stopped by police.
Fear of Retaliation
One of the witnesses at the 2003 trial, who was identified only as Mamie D., was allowed to wear the partial disguise after telling Judge Bob S. Bowers outside the presence of the jury that after she testified at the preliminary hearing, someone told her that something bad would happen if she testified at trial. She said she did not want to testify, and that she was afraid that something bad would happen to her or to her child.
The witness was excused, but a short time later, the prosecutor reported that she was willing to testify. Over objection by defense counsel, who argued that allowing her to testify with the scarf and sunglasses on would violate the confrontation and due process clauses and would be unduly prejudicial, the witness testified that she was 17 when she met Brandon, who recruited her as a prostitute.
She said she worked for him locally and in Phoenix, living in different motels. She said he forced her to have sex on numerous occasions, hitting her when she objected, and holding a knife against her neck on one occasion.
Scarf and Sunglasses
Mamie D. testified further that she tried to quit working for Brandon, but couldn’t because he threatened to hurt her or her family. He hit her when she did not want to work, she said, and on one occasion threatened her with a gun.
After he was convicted, Brandon moved for a new trial, based in part on Mamie D. having testified while wearing the scarf and sunglasses. At the hearing on the motion, prosecutor Michelle Pincus said that Mamie D. and another witness had been threatened and/or assaulted as a result of having testified.
The new trial motion was denied by Bowers, who reiterated his ruling during trial that there was no constitutional violation or undue prejudice resulting from the witness’ appearance while testifying.
Presiding Justice Paul A. Turner, writing for Div. Five of the Court of Appeal, agreed.
The jurist noted that the U.S. Supreme Court, in upholding the use of closed-circuit television so that child witnesses do not have to testify in open court in abuse cases, held that the confrontation right does not necessarily require face-to-face confrontation, as long as the testimony is subjected “to rigorous adversarial testing” to ensure its reliability.
That occurred in this case, Turner said.
“The court, jury, and defendant were able to hear Mamie’s testimony and responses to cross-examination while observing her facial expressions and body language to a degree that no constitutional violation occurred,” the presiding justice wrote. “...In light of Mamie’s fear, which was evident to the court both before and during her testimony, it was not unreasonable nor a violation of the Fourteenth Amendment due process clause to allow her to wear sunglasses and a scarf while testifying.”
Even if there was a constitutional violation, Turner went on to write, the conviction would have to be upheld because any error was harmless beyond a reasonable doubt.
Mamie D.’s testimony, the presiding justice explained, was corroborated by evidence that Brandon mistreated other females in the same ways.
Attorneys on appeal were Deputy Attorneys General Ana R. Duarte and Thomas C. Hsieh for the prosecution and Vanessa Place, by appointment of the court, for the defendant.
The case is People v. Brandon, B186361.
Copyright 2006, Metropolitan News Company