Tuesday, July 21, 2009
S.C. Upholds Death Sentence, Rejects Misconduct Claim
Justices Reject Claim That Witness Had Secret Immunity Deal
By KENNETH OFGANG, Staff Writer
The California Supreme Court yesterday unanimously upheld an Oakland man’s death sentence, rejecting claims that a witness may have received a secret immunity deal and that several prosecutors—one of whom later became a Court of Appeal justice—improperly vouched for the witness’s credibility.
The justices, with Justice Marvin Baxter writing the opinion, said prosecutors were properly allowed to rebut defense claims of misconduct in the case against Jack Wayne Friend for the killing of an Oakland bartender during a $300 robbery 25 years ago.
Alameda Superior Court Judge Alfred A. Delucchi, now retired, sentenced Friend to death in 1992 for the 1984 stabbing murder of Herbert Pierucci at the Golden West Bar in downtown Oakland. Pierucci was found semiconscious with at least six stab wounds to his neck on the evening of Labor Day in 1984 and died four days later.
The bar’s cash register was empty, and it was estimated that $300 was missing. Kevin Kelley, one of a group of homeless alcoholics, including the defendant, who lived in an Oakland warehouse with the owner’s permission, told police he saw Friend with a knife right after the crime, and that Friend admitted robbing and stabbing the bartender.
Kelley, who became the prosecution’s main witness, said he had been at the bar earlier with Friend and Gene Hollowhornbear but left before the crime. The defense contended that Kelley lacked credibility and that Hollowhornbear—who had been vocal about needing money to go to South Dakota for his mother’s funeral—was the killer.
Defense counsel cited evidence that the district attorney’s victim-witness program had provided Kelley with money for expenses and had said Kelley had been given immunity in an application to the state for additional funds, The head of that program said the information would normally have come from a district attorney investigator.
To rebut the claim that Kelley had been given immunity, prosecutors called Joanne Parrilli, Jerry Curtis and Angela Backers as witnesses. Curtis and Backers were still in the District Attorney’s Office at the time of trial; Parrilli was an Alameda Superior Court judge at the time and later became a justice of the First District Court of Appeal, from which she retired.
All three testified that as deputy district attorneys, they reviewed the case and concluded that Kelley was a witness, and not a participant in the robbery and murder. They each testified that they did not promise Kelley immunity and knew of no such promise.
Also testifying was Albert Meloling, the assistant district attorney who oversaw all Oakland-area capital cases, and he also testified that he had no knowledge of any immunity agreement with Kelley.
Jurors found Friend guilty of first degree murder, but deadlocked as to the robbery-murder special circumstance. At a second trial involving most of the same testimony, jurors found the special circumstance allegation to be true and opted for the death penalty following a penalty phase at which prosecutors presented evidence of numerous prior violent criminal acts by the defendant, including the 1977 rape of a North Hollywood neighbor.
On appeal, Baxter rejected the defense claim that the prosecutors had gone beyond mere rebuttal testimony and had been allowed to bolster Kelley’s credibility.
“Defense counsel’s argument was not only that Kelley had been offered immunity but that the prosecutor could have prosecuted Kelley as an accomplice but agreed not to do so in exchange for his testimony,” Baxter explained. “The testimony of Parrilli, Curtis and Backers included the district attorney’s office’s assessment of Kelley’s involvement in the crime, which was that he was a witness, not a participant. The challenged testimony therefore was relevant to rebutting the defense argument that the prosecution had leverage over Kelley because it could have prosecuted him as an accessory in the robbery murder.”
Baxter also rejected the argument that Delucchi abused his discretion by excluding evidence of Hollowhornbear’s military training. The defense contended the evidence was relevant because the nature of Pierucci’s wounds made it likely that the person who killed him had been trained in weapons use.
Delucchi noted that there was nothing in Hollowhornbear’s military records specifying that his training involved knives or other stabbing weapons. The trial judge reasoned that in the absence of such specific training, the records would not support the claim that Hollowhornbear, rather than Friend, was the killer.
In concluding no error occurred, Baxter wrote:
“It was well within the discretion of the court to exclude Hollowhornbear’s military records and the speculative testimony required to explain their possible relevance because presenting this evidence would have been time consuming and confusing to the jury.”
The court also rebuffed the contention that the trial prosecutor, Theodore Landswick, had made derogatory comments that deprived the defendant of a fair trial. Some of the comments were fair characterizations of the evidence, Baxter said, while others were improper but were not prejudicial because the prosecutor was promptly admonished by the judge.
The case is People v. Friend, 09 S.O.S. 4368.
Copyright 2009, Metropolitan News Company