Monday, October 5, 2015
Prosecutor’s Remarks ‘Deserving of Rebuke,’ Not Reversal—C.A.
By KENNETH OFGANG, Staff Writer
A prosecutor’s acerbic criticisms of a judge’s rulings at the trial of a man accused of repeatedly molesting his stepdaughter warrant referral to the State Bar, but not reversal of the defendant’s convictions, the Sixth District Court of Appeal has ruled.
The panel Thursday affirmed Anthony Achilles Poletti’s convictions on two counts of forcible lewd touching of a child under age 14, together with his sentence of 18 years, eight months in state prison.
Santa Clara Superior Court Judge Brian Walsh, sitting on assignment in the Court of Appeal, criticized Santa Cruz County Assistant District Attorney Ross Taylor, saying he “behaved poorly and is deserving of rebuke.”
Taylor, who could not be reached for comment Friday, at one point told Judge Paul Burdick, outside the presence of the jury:
“I’m not interested in what you have to say. I don’t know if I could be any less interested.”
There were also, Walsh said, “numerous” instances of improper remarks by Taylor while jurors were present, including a sarcastic response to an overruled objection, an open assertion that his line of questioning was “frankly…proper” after the judge ruled otherwise, a retort to the judge’s instruction to “stop editorializing” by saying he was “hardly editorializing,” and Taylor’s insistence that he was “not sure [his question] was irrelevant,” after the judge ruled that it was.
Burdick declared that Taylor had argued with the bench after it had ruled on evidentiary objections “about 80 percent” of the time and told him “Stop it.” He held Taylor in contempt and fined him $250.
Walsh described Taylor as “rude and intemperate at times,” and declared himself “unimpressed” with the attorney general’s attempt to defend the prosecutor by claiming the defense had been “bait[ing]” and “badger[ing]” him. But Walsh said the attorney general was correct in arguing that Taylor’s remarks did not deprive Poletti of a fair trial.
Poletti was originally tried in 2009 on charges of molesting the victim over a five-year period, beginning in 2002 when she was 10 years old. He was convicted on 13 counts of rape, aggravated sexual assault, and lewd acts upon a child, plus witness tampering and possession of child pornography.
He was acquitted on one count of rape.
On his first appeal, the court affirmed the witness tampering and child pornography convictions, threw out one rape conviction as unsupported by substantial evidence, and ordered retrial on the remaining counts based on juror misconduct. On remand, jurors found Poletti guilty on two counts and deadlocked on the others.
Walsh wrote in Thursday’s opinion that the defense could not show that the prosecutor’s remarks were more likely than not to have affected the verdict. The fact that the defendant was only convicted on two counts, he said, shows that Taylor’s comments were as likely to have hurt his case as to have helped it.
Walsh agreed with the defense that the trial judge erred in holding that Taylor did not commit a statutory discovery violation when he failed to inform the defense that the witness was going to change her testimony regarding the timing of one of the sexual assaults. She acknowledged at the second trial that the attack could not have occurred when she said it did because of records showing the defendant was hospitalized at the time, but said she was not mistaken about what happened, only when.
But that error was harmless, Walsh said, because the discovery violation related primarily to charges on which the defendant was not convicted, and there was plenty of evidence to support the two convictions.
The appellate jurist also acknowledged that the trial judge may have erred in denying a defense request to inform jurors that Poletti had been acquitted on the two rape counts, since the prosecution was allowed to present evidence of the two incidents under Evidence Code §1108.
But that ruling was harmless, whether viewed in isolation or in conjunction with the prosecutor’s misconduct and the discovery violation, Walsh said.
The case is People v. Poletti, 15 S.O.S. 4690.
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