Metropolitan News-Enterprise


Monday. July 18, 2011


Page 1


C.A. Upholds Exclusion of Expert Testimony on False Confessions

Justices Say Opinion Was Irrelevant Where Defendant Did Not Claim Police Coercion




The Court of Appeal for this district has affirmed the first degree murder conviction of a carpenter who originally claimed the victim was shot in a dispute over a bid, but later blamed the crime on a Hawaiian Gardens gang member.

Div. Eight Thursday rejected Randy Purcell’s claim that Los Angeles Superior Court Judge Robert Perry improperly excluded the testimony of an expert who would have testified that Purcell falsely admitted the shooting out of fear of retaliation by the real shooter’s gang.

Expert testimony may be admitted to show that a witness was coerced by police into confessing, Justice Laurence Rubin wrote in an unpublished opinion. But since Purcell made no such claim, the jurist said, the proposed evidence was irrelevant.

Purcell is serving a life sentence, without the possibility of parole, for the 2002 murder of Tommy Willis. Prosecutors said Purcell and Ruben Baltazar, a gang member whom Purcell was renting a room from, went to the home of the victim—whom Purcell knew to have several hundred dollars in cash at his residence—and that Willis was shot when the robbery went awry.

Many Tales

Purcell initially told investigators that there had been an argument about a bid for carpentry work that Willis thought was too high, and that Baltazar became angry and shot Willis. The defendant later repeated the story during a “walk-through” of the house with investigators, but in a re-interview, told the detectives that he and Baltazar planned to rob Willis, but that Baltazar shot Willis.

Three days later, the defendant changed his story again and admitted being the shooter.

 Two associates of Baltazar testified that Purcell later told them that he accidentally shot the victim as Willis and Baltazar struggled, and that they went back to the house with Purcell, on Baltazar’s orders, to clean up the crime scene and steal additional items. Sheriff’s deputies who found the victim’s body a day later discovered two gunshot wounds.

Purcell took the stand and recanted his confession. He returned to his original claim that Baltazar shot the victim during an argument about a bid, and said he only changed the story because gang members had communicated warnings that he and his family would be in danger if he implicated Baltazar in a crime.

At Purcell’s first trial, jurors found him guilty of robbery and burglary, but deadlocked on the murder charge. At a second trial, the jury found the defendant guilty of first degree murder with robbery and burglary special circumstances.

False Confession Expert

On appeal, the defense contended that Perry erred in excluding Dr. Mark Costanzo, an expert in police interrogation techniques and false confessions, from testifying. Costanzo, the defense proffered, would have testified that by telling the defendant he had failed a “fake” lie detector test, and promising leniency if he told them the truth, they had engaged in conduct likely to induce a false confession.

Perry excluded Costanzo from testifying at the first trial, as a discovery sanction.

After prosecutors moved to exclude the proposed testimony on relevance grounds, Costanzo testified at an Evidence Code Sec. 402 hearing that he had interviewed the defendant 18 months earlier, and had taken handwritten notes of the interview but had not turned them over to prosecutors or defense counsel.

Perry ruled that Penal Code Sec. 1054.3(a)(1), entitling the prosecution to discover “reports or statements” of defense experts, had been violated and that Costanzo could not testify because of this “failure of discovery.” The judge also described Costanzo’s testimony as “incredible,” but said the discovery violation was the sole ground for exclusion.

The defense then offered Costanzo as a witness at the second trial, but Perry ruled that the expert did not “add[ ] anything in the case” where the issue was coercion by gang members and not by police.

Rubin, writing for the Court of Appeal, said there was no reversible error in either trial. Courts, he said, have not allowed “confession experts” to testify in cases other than those where the use of coercive techniques by police was claimed.

Lay jurors’ common experience allows them to understand someone might falsely confess to save himself or his family from physical injury; the average person does not need an expert to explain why a false confession might occur under those circumstances,” the justice wrote.

Perry, he acknowledged, might have erred in imposing a discovery sanction in the absence of a prosecution motion. But any error was harmless, the justice said, because the testimony would have been just as irrelevant at the first trial as at the second.


Copyright 2011, Metropolitan News Company