Wednesday, November 28, 2001
Claim Officer Lied Is Not Enough to Grant Pitchess Motion—C.A.
By KENNETH OFGANG, Staff Writer/Appellate Courts
A criminal defendant’s bare assertion that a police officer lied when he claimed she participated in a drug sale is not enough to justify the judge’s order for disclosure of the officer’s personnel records, this district’s Court of Appeal has ruled.
“If, a defendant claims that the facts contained within the police report are untrue, the defendant is required to do more than generally deny each specific fact set forth in the police report,” Justice Michael Nott wrote Monday for a divided panel in Div. Two. “The defendant is required to state what facts he or she contends are untrue, and then to set forth a ‘factual scenario’ with respect to the alleged officer misconduct. This may require the defendant to explain what he or she contends occurred at the time of arrest in order to establish the defendant’s belief that the officers involved in the arrest engaged in misconduct.”
Nott’s unpublished opinion was joined by Presiding Justice Roger Boren, but drew a dissent from Justice Katherine Doi Todd. The dissenting jurist argued that Theresa Ann Walker’s assertions were sufficient under the case law to support Los Angeles Superior Court Judge Dale Fischer’s limited disclosure order.
Walker and Eural Strickland were arrested by Los Angeles Police Department officers following the alleged hand-to-hand sale.
According to the police report, undercover narcotics officer A.H. Jackson approached Strickland to ask for “a dime,” to which Strickland responded “alright.” The officer then gave $10 to Strickland, who went over to a car in which Walker was sitting, gave her money, and took a small object from her, the report said.
Strickland then came back to the officer and put what appeared to be a rock of cocaine on top of a trash can, the report said, after which the officer took the rock and signaled nearby officers that he had completed a drug buy.
A search of Walker’s car resulted in the seizure of several more rocks and a purse containing more than $300 in cash, including the $10 bill the officer gave Strickland, the police said.
Walker, represented by the alternate public defender, moved to discover evidence of incidents involving Jackson and the officers who arrested her and searched her car, including “any acts involving falsification of testimony, fabrication of evidence, false police reports, perjury, aggressive behavior, racial or gender bias, violence, excessive force, or attempted violence or excessive force . . . and any additional acts involving dishonesty, criminal conduct and/or moral turpitude.”
In support of their motion, Walker’s lawyer attached the police report, along with a declaration asserting that the evidence at trial would show that Walker never spoke to Strickland, never gave Strickland drugs or any other object, and did not have cocaine in her car.
The officers, defense counsel declared, “have falsified the arrest report.”
Fischer, after conducting an in camera review of the officers’ files, ruled that Walker was entitled to disclosure of one incident that amounted to dishonesty, false reporting, or fabrication of evidence. The city attorney, however, brought a petition for writ of mandate, which the appeals court granted.
Nott, writing for the panel, acknowledged that a “relatively low” threshold is established for the granting of disclosure under Pitchess v. Superior Court (1974) 11 Cal.3d 531 and subsequent cases. But “there are standards that must be met,” the justice said.
The party seeking discovery, Nott explained, must show that there is a “plausible factual foundation” for the request. A mere assertion that the factual allegations in the police report are false isn’t enough, he said.
Nott distinguished several cases in which appellate courts have ruled that allegations of false statements or other misconduct on the part of police officers were sufficient to trigger Pitchess discovery. In each of those cases, the justice said, “the affidavits submitted by defense counsel contained affirmative representations as to the officer misconduct the defendant claims occurred.”
In contrast, Nott wrote, Walker’s lawyer “does not state what portions of the report Walker claims are false” and “does not state facts supporting his assertion that the officers falsified the report.”
It was unclear, Nott elaborated, whether the defense was claiming that Walker wasn’t at the scene, or that she was at the scene but didn’t speak to Strickland, or that she spoke to Strickland but didn’t hand him an object. “As to the search of her vehicle, if what she is claiming is that she never had any drugs or money in her vehicle, and that the police officers planted the money and drugs in her car in order to ‘frame’ her, she is required to set forth these allegations.”
Todd, dissenting, said she was “unable to find a material difference” between the allegations in the Court of Appeal cases distinguished by Nott and those made by Walker. “In essence each declaration asserts that the facts are not as they are set forth in the police reports, that the officers are lying, and that their credibility is in issue,” she wrote.
Attorneys in the Court of Appeal were Deputy City Attorneys Kim Westhoff and Eric Brown for Los Angeles and Deputy Alternate Public Defenders Cynthia Kairys and Anthony Rayburn for Walker.
The case is City of Los Angeles v. Superior Court, Walker RPI, B150996.
Copyright 2001, Metropolitan News Company