Metropolitan News-Enterprise


Tuesday, December 26, 2006


Page 1


Judge’s Sua Sponte Mistrial Declaration Barred Retrial—C.A.

Panel Says Defense Tactics Allowing Admission of Coerced Confession Not ‘Legal Necessity’ for Mistrial


By a MetNews Staff Writer


Jeopardy attached where the trial court sua sponte declared a mistrial after a defense attorney purposely allowed defendant’s taped coerced confession to be admitted into evidence as a trial tactic, this district’s Court of Appeal has ruled.

 Div. Two last week reversed Los Angeles Superior Court Judge Robert J. Perry’s order denying defendant Pedro Z. Carrillo’s motion to bar retrial.

In 2005, Carrillo was charged with first degree murder and other crimes after he allegedly drove the getaway car after anther man robbed and then shot a random pedestrian.

In his opening statement, Deputy Alternate Public Defender Vito Caruso—who also handled the case on appeal—admitted that Carrillo was the driver of the car identified by witnesses on the night of the murder. Caruso claimed, however, that the evidence would show Carrillo was coerced into going with the other man, that at no time did Carrillo agree to commit a crime, and at no time did he know a robbery was going to occur, much less a shooting.

False Confession

Caruso assured the jury that once it heard Carrillo’s tape-recorded interview with the police, it would see that Carrillo had been manipulated, and that Los Angeles Police Detective Jeff Breuer had “bullied” Carrillo “into giving a false confession.”

Caruso claimed that in order to force Carrillo to make these false admissions, Breuer and his partner repeatedly told Carrillo “you can be with us or against us. You can be a witness and walk home, go home or you can be a defendant.” Caruso said that after a “long time,” Carrillo started saying what the detectives wanted to hear.

During trial, Caruso asked the court to play Carrillo’s three-hour tape-recorded police interview for the jury. After listening to about a third of the tape, Perry told the attorneys he was becoming “increasingly concerned” that Carrillo’s confession was “coerced.”

He said “if we go forward with the case, I would feel compelled to grant a new trial based upon what I have heard so far,” and that Caruso should have brought a motion to suppress prior to trial.

Perry declared a mistrial, saying:

“It’s just incredible to this court that the district attorney’s office would  . . . try to base a prosecution on such a statement. So I am going to declare a mistrial on the court’s own motion finding that it would be a deprivation of this defendant’s constitutional rights to go forward.”

Legal Necessity

Carrillo filed a motion to bar retrial, claiming there was no legal necessity for a mistrial and that it would constitute double jeopardy to retry him. Caruso explained the reasoning for his decision not to move to suppress Carrillo’s confession, saying he introduced the taped interview as an intentional trial  tactic, and that his decision was not “based frivolously or without great thought and input from others.”

Caruso explained that he was “aware of the value of having a jury hear from [Carrillo] without being subjected to cross-examination by the assigned district attorney.” He also explained “that there would be an additional benefit of the jury hearing a completely different side of the detectives who  unquestionably would testify in the most positive and forthright of ways.”

Perry denied the motion, saying “legal necessity” existed for the mistrial because of Caruso’s ineffective assistance of counsel in not moving to suppress the confession.

Presiding Justice Roger W. Boren, writing for the Court of Appeal, said the trial judge was wrong.

“The trial court’s decision to declare a mistrial stripped Carrillo of his right to maintain primary control over his trial and may well have compromised his effort to prove his innocence.”

Boren continued:

“The court seemed not to understand that while a defendant has a constitutional right to object to the admission of a confession obtained by illegal means . . . a defendant may waive the right . . . .”

The justice advised:

“Where, as here, a trial court becomes convinced that defense tactics are denying a defendant a fair trial, the proper course of action, in the absence of . . . extreme circumstances . . . is to allow the case to proceed to judgment and then consider whether the defendant is entitled to a new trial.”

Justices Kathryn Doi Todd and Judith M. Ashmann-Gerst concurred in the opinion.

Los Angeles Deputy District Attorneys Brentford J. Ferreira and Phyllis C. Asayama represented the prosecution on appeal.

The case is Carrillo v. Superior Court, People, RPI, 06 SOS 6296.


Copyright 2006, Metropolitan News Company