Wednesday, August 1, 2018
Court of Appeal:
Request of Jury to Watch Defendant Walking, to Compare to Video of Robber, Properly Denied
Opinion Affirms Judge Who Said the Fact That Perpetrator, Captured on a Surveillance Tape, Limped, Does Not Rule Out Guilt of Accused; Faltering Gait Might Have Been Temporary
By a MetNews Staff Writer
Los Angeles Superior Court Judge Michael A. Cowell committed no abuse of discretion in declining a request by jurors, during deliberations, to have the defendant walk in front of them so they could compare his gait with that of a robber depicted on a surveillance tape, limping, the Court of Appeal for this district has held.
Jurors made the request for additional evidence notwithstanding that DNA evidence showed there was but one chance in 42 trillion that defendant Raudel Marquez was not the man who had bound the wrists of one of the two robbery victims with tape, with DNA extracted from that tape. (DNA taken from a zip tie, with which the other victim’s wrists were restrained, indicated one chance in 2,400 that the robber was not Marquez.)
The after-hours robbery at a nail salon in a Pico Rivera mini-mall took place on March 1, 2015. The surveillance tape, showing the robber, came from a camera mounted on a restaurant four doors down, and did not definitively depict the defendant.
Marquez’s lawyer asked Cowell to reopen the evidence and allow the requested demonstration so jurors could see that his client doesn’t limp. The judge responded:
“It’s too late for testimony. You could have had him walk and-stand up and walk. First of all, this happened so long ago, he could have had a broken leg at that time, for all I know. It’s completely irrelevant at this stage of the proceedings. He may have had a pebble in his shoe, if it was him. I’m not going to allow it. I’ll say no.”
Div. Four, in an opinion filed Monday and not certified for publication, affirmed Marquez’s conviction on one count of second-degree robbery and two counts of false imprisonment.
‘Remarkably Similar’ Case
Justice Thomas Willhite remarked that the present situation is “remarkably similar” to that present in a 1994 case, People v. Funes. There the defendant was convicted of the second degree murder of a man he struck on the head with a baseball bat.
The jury in that case had queried whether the defendant was left-handed or right-handed. The judge denied the defense’s motion to reopen to show that the accused was right-handed and thus could not have struck the fatal blow.
Div. Three of the First District’s Court of Appeal affirmed, holding that the request came late in the proceeding, the evidence could have been presented earlier, the jury would be apt to give the evidence undue weight given that it raised the matter, and it was lacking in significance.
“That the person depicted in the surveillance video appeared to limp was obviously known to the defense prior to trial. Had it been important to the defense, defense counsel could have asked the court to have defendant demonstrate his walking pace before the close of evidence. Defendant’s lack of diligence in pursuing this evidence militates against its admission at the late stage in the proceedings.
“Further, as in Funes, it was likely that the jury here would accord the late evidence undue emphasis, given that the jurors raised the issue themselves. Finally, the evidence was not particularly probative. Assuming defendant did not walk with a limp at trial, that fact would have little relevance to prove he was not the robber. The crime occurred on March 1, 2015. The trial occurred two years later, in March 2017. That defendant may not have walked with a limp at trial would not reasonably suggest that he did not walk with a limp on the date of the robbery two years earlier, caused by some temporary condition or injury. Moreover, the evidence would not have undercut the victims’ testimony (there was no testimony concerning whether the robber limped) or the DNA evidence connecting defendant to the zip ties and tape used in the robbery.”
The case is People v. Marquez, B281593.
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