Metropolitan News-Enterprise


Monday, April 9, 2007


Page 1


Appeals Court Orders Dismissal of Grand Jury Murder Indictment

Prosecution’s Failure to Disclose Exculpatory Statements by Codefendant Held Prejudicial Under ‘Reasonably Probable’ Test


By TINA BAY, Staff Writer


Whether a criminal defendant was substantially prejudiced by the nondisclosure of exculpatory evidence in grand jury proceedings must be determined using the traditional test for state law error, the Fourth District Court of Appeal ruled Friday.

Spurning a “harmless beyond a reasonable doubt” standard, Div. One applied the “reasonably probable” test to conclude a grand jury likely would not have indicted George H. Berardi on murder and conspiracy charges had San Diego prosecutors properly presented exculpatory statements his codefendant made to police.

The panel reversed an order by San Diego Superior Court Judge John M. Thompson denying Berardi’s pretrial motion to dismiss his grand jury indictment under Penal Code Sec. 939.71. 

Writing for the court, Justice Judith L. Haller concluded that prosecutors—whom officials identified as San Diego Deputy District Attorneys Patrick L. Espinoza and Amy Maund—“seriously interfered” with the grand jury’s function in Berardi’s case by failing to fulfill its Sec 939.71 disclosure duty.

Berardi was indicted last July in connection with the July 2005 shooting death of Marcus Keglar. Police identified Berardi’s friend, Daniel May, as the killer.

Although May told officers that he shot Keglar without Berardi’s involvement,  the district attorney’s office filed a complaint against Berardi based on statements made by Anna Tong, a friend of Berardi and May. Tong did not implicate Berardi when initially interviewed by police in July 2005, but later told police he was involved in the planning of Keglar’s murder.

Key Witness’ Testimony

In grand jury proceedings, Tong testified that she did not initially disclose knowledge of Berardi’s involvement due to her belief that staying quiet would help May’s case. She later changed her mind, she said, because she came to resent Berardi, and because the silence weighed on her conscience and affected her relationship with her boyfriend.

Tong stated she accompanied Berardi to a convenience store and pizza shop on the day of the killing, at his request, and overheard several cell phone conversations he allegedly had with Keglar. Keglar called asking for marijuana, she said, and Berardi told him he would deliver the drugs at a cul-de-sac location. Keglar’s body was later found on a cul-de-sac leading to a canyon area.

Undisclosed Evidence

Berardi allegedly told Tong that May was meeting with Keglar and was going to shoot him.  He indicated he wanted Keglar killed because Keglar was dating his ex-girlfriend, and added his visits to the convenience store and pizza shop were his alibi, Tong testified.

Before she and Berardi left the pizza shop, she said, she heard him say to May over the cell phone, “the pizza has been delivered.” After finishing a second cell phone conversation with May, Berardi allegedly told Tong May had left the marijuana with Keglar’s body and had to retrieve it.

Prosecutors did not disclose to the grand jury that Tong had made prior inconsistent statements to police July 2005. In that interview, she told officers that Berardi did not sell marijuana, and that no one told her May killed Keglar. 

Prosecutors also did not inform the grand jury that Ahmed Omar, a friend of Tong, testified at Berardi’s preliminary hearing that Tong said she intended to lie about his culpability.

In addition to Tong, the deputy district attorneys called five other witnesses to testify. The prosecution then informed the grand jury it was required to disclose exculpatory evidence, and summarized statements made to police by May, Berardi, and an eyewitness.

In telling the grand jury about May’s statements, Espinoza—whom Berardi’s appellate counsel, Jose C. Rojo, said delivered the summation of exculpatory evidence—said May admitted to shooting Keglar.  However, he did not disclose that May had expressly exonerated Berardi by telling police he was “the only one responsible” for the shooting and that Berardi “had nothing to do with it.”

Espinoza told the grand jury:

“May said there was an agreement over the phone and other parties were involved, but the other parties did not feel safe and did not want to get involved in it.”

He did not specify, however, that the “agreement” referred to a marijuana deal rather than a murder plan.

The prosecutor also omitted to state that May had indicated he shot Keglar during the marijuana deal in self-defense out of fear that Keglar was going to attack him.

In denying Berardi’s dismissal motion, Thomas found that while the prosecutors failed to comply with their disclosure obligation, there was no “substantial prejudice” to the defendant’s rights, as required for a dismissal under Sec. 939.71.

The Court of Appeal disagreed.

The test for determining substantial prejudice, Haller said, was whether “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.”

Pointing to May’s statement about the “agreement,” she said the prosecution’s wording of it “improperly bolstered” Tong’s credibility by directly corroborating her description of an agreement between May and Berardi to kill Keglar.

“Of all the evidence presented to the grand jury regarding Berardi’s culpability, Tong’s testimony was key,” Haller noted.

The justice concluded:

“[T]he record shows the prosecution significantly interfered with the grand jury’s independence by misstating information in a manner that strengthened its case and omitting evidence that directly contracted its key witness.  The grand jury was deprived of the opportunity to exercise its discretion to consider important items of exculpatory evidence and likely concluded the prosecution’s case was stronger than it was.”

Justices Gilbert Nares and Alex C. McDonald concurred in the concurred in the opinion.

Rojo commented to the MetNews:

“It’s important that we hold the prosecutors to their duty to be fair and observe the rule of law.”

Maund said the D.A.’s office was still reviewing the decision and could not comment at length.

“We’re just evaluating our options right now,” she remarked.

The case is Berardi v. Superior Court (People), 07 S.O.S. 1680.


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