Metropolitan News-Enterprise


Wednesday, February 4, 2009


Page 3


Court of Appeal Clarifies Scope of Instruction on Inference of Guilt


By SHERRI M. OKAMOTO, Staff Writer


This district’s Court of Appeal yesterday cautioned trial courts against instructing juries with CALCRIM No. 362 if the basis for an inference of guilt is a false or misleading statement in a defendant’s trial testimony.

Although Div. Four concluded that the instruction was intended to apply to false or misleading pre-trial statements, it held Warees Beyah was not prejudiced by use of the instruction during his trial for various drug offenses.

The Los Angeles County sheriff’s deputies who arrested Beyah claimed that they discovered contraband on Beyah’s person and in Beyah’s vehicle after detaining Beyah for operating a vehicle with a broken tail light.

But Beyah testified that the deputies had approached him while he stood smoking outside a Laundromat and “out of the blue” searched him, placed him in their patrol car, and searched his car.

Beyah maintained that the rear lights on the vehicle were working because he had purchased the car two weeks prior to his arrest and had seen the prior owner drive the car the night he purchased it.

Los Angeles Superior Court Judge John T. Doyle denied Beyah’s motion to suppress the evidence found during the deputies’ search of Beyah’s person and car, finding Beyah’s testimony was not credible and that the deputies had probable cause to conduct a lawful investigation.

After a jury had been selected, but before opening statements, Beyah’s counsel asked for a continuance. She told the court that she had recently discovered the police report incorrectly listed the date of arrest and that her investigation had been impaired by the mistake.

Doyle denied the request and the trial proceeded. After the presentation of evidence was complete, Boyle instructed the  jury with CALCRIM No. 362, which states:  “If the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of [his] guilt of the crime and you may consider it in determining his[] guilt.”

 The jury found Beyah guilty of possessing cocaine and transporting a controlled substance, and he was sentenced to eight years imprisonment.

On appeal, Beyah contended that the trial court had committed error in instructing the jury with CALCRIM No. 362 because the the allegedly false statements were not made before trial.

Writing for the appellate court, Justice Thomas L. Willhite Jr. noted that CALJIC No. 2.03, the standard consciousness of guilt instruction in use before CALCRIM No. 362, limited the consideration of false or misleading statements to those made before trial.

“[A]lthough CALCRIM No. 362 omits the limiting language formerly found in CALJIC No. 2.03, CALCRIM No. 362 expressly refers to a false of misleading statement made by defendant, not to false or misleading testimony,” Willhite wrote, reasoning that the CALCRIM Committee did not intend CALCRIM No. 362 to be used to permit an inference of consciousness of guilt based on a defendant’s trial testimony.

But Willhite concluded Beyah was not prejudiced by the instruction because it accurately stated the principle that a jury may infer that a defendant was aware of his guilt if it found the defendant intentionally gave false or misleading testimony and may consider that inference, along with other evidence, in determining the defendant’s guilt.

The instruction did not violate Beyah’s right to not have his testimony from the suppression motion used against him, Willhite added. Because the prosecutor could use Beyah’s testimony from the suppression motion hearing to impeach him, Willhite explained, to the extent that the instruction applied to that testimony, it did not violate the prohibition against the use of pretrial testimony in the prosecution’s case-in-chief. 

In the unpublished portions of the opinion, the justice addressed Beyah’s ineffective assistance of counsel claim.

Beyah contended his trial attorney’s failure to timely discover the incorrect date on the police report and locate someone who could testify that the tail light on the car was functioning at the time of his arrest, which would impugn the credibility of the arresting officers.

Although Willhite acknowledged defense counsel’s performance was arguably deficient, the justice concluded that Beyah had not been prejudiced by his attorney’s conduct because Beyah’s argument was based on speculation that someone could testify that the tail light was working.

The justices also examined the record of the trial court’s in camera review of Beyah’s Pitchess motion and found no materials so clearly pertinent that failure to disclose them was an abuse of discretion.    

Presiding Justice Norman L. Epstein and Justice Steven C. Suzukawa joined Willhite in his opinion.

Deputy Attorneys General Lance E. Winters and J. Michael Lehmann represented the government. Tiburon attorney James Koester was appointed to represent Beyah.

The case is People v. Beyah, B201886.


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