Monday, August 8, 2011

3rd Party Guilt: Nearness in time, place, and circumstances to the alleged crime

"Third party guilt: The crucial role of defense theory instructions", by Thomas Lundy, discusses the importance of jury instructions that educate the jurors on how they should judge evidence of 3rd party guilt.  I only include critical elements to make the point that the Medina Burglary meets the standards of 3rd party guilt established by the Courts.
When the defense relies on a theory of third party guilt, the jury may improperly view the trial as a question of whether or not the third party has been proven guilty. Hence, it is crucial that the instructions caution the jurors against shifting the burden of proof to the defendant.

The most important role of a third party guilt instruction is to assure the jurors understand that the defense has no burden to prove that the third party is guilty. The defendant’s third party evidence need not show “substantial proof of a probability that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant’s guilt.” Hall, 41 Cal.3d at 833; see also People v. Madison, 3 Cal.2d 668, 677 (46 P.2d 159) (Cal. 1935) (prosecution must present evidence that no other person committed the crime charged); Mullis v. Commonwealth, 351 S.E.2d 919, 926 (Va. 1987) (“. . . no burden on the defendant to produce any evidence and the defendant does not have to prove who killed her husband.”).  
This is a critical distinction -- the defense does not have to prove who else committed the crime, but the State must prove that "no other person committed the crime."

What is the requirement for 3rd party guilt to pass muster and be allowed in Court?  The simplest explanation presented by Lundy comes from "Wisconsin v. Sheidell, 595 N.W.2d 661, 673 (Wis. 1999), requiring that third party culpability evidence share 'nearness in time, place, and circumstances to the alleged crime or to the fact or proposition sought to be proved'."

"Nearness in time, place, and circumstances to the alleged crime" -- the Medina burglary certainly meets that burden.
  1. Evidence that Laci was still alive on the morning of December 24
    1. Evidence that Laci used the computer that morning
    2. Corroborating evidence from multiple independent witnesses that Laci went for a walk in the neighborhood
  2. Diane Jackson saw the van and 3 men and the safe being removed from the Medina home at 11:40
    1. That safe was found at the residence of Donald Pearce, who admitted assisting in the burglary
    2. Items stolen from the Medina home were found in the possession of Steve Todd, who admitted casing the neighborhood and committing the burglary
  3. Todd's and Pearce's alleged time for the burglary is easily disproved, as we've shown in previous articles on this blog
  4. Two independent reports linked the burglary to Laci
    1. The confidential informant who ratted out Todd and Pearce reported that he was concerned for Laci Peterson's safety
    2. Phone conversation between Shawn and Adam Tenbrink caused Lt. Aponte to call the tip line and report that Adam told Shawn that Laci walked in on Todd during the burglary and Todd verbally threatened her.  Aponte was sufficiently concerned that he called again and put a closer monitor on Shawn Tenbrink's phone calls.
Some will undoubtedly say, burglars don't commit murder.  If so, why does California's statute for felony murder include burglary?
Penal Code section 189 provides, in pertinent part: "All murder . . . which is committed in the perpetration of , or attempt to perpetrate, arson, rape, robbery, burglar y , mayhem, or [lewd acts with a minor], is murder of the first degree; . . ." This statute imposes strict liability for deaths committed in the course of one of the enumerated felonies whether the killing was caused intentionally, negligently, or merely accidentally. Burglary falls expressly within the purview of California's first degree felony-murder rule. Any burglary within Penal Code section 459 is sufficient to invoke the rule. Whether or not the particular burglary was dangerous to human life is of no legal import.  (emphasis added)
It doesn't have to be a murder -- just a death.  Furthermore, all persons involved in the felony are guilty of the felony murder, not just the one who causes the death. This is very good reason for the ones not responsible for the death to keep their mouths shut.

It is true that some criminals burglarize unoccupied homes because they want to avoid confrontation.  But we should not be naive enough to believe it's because they don't want to hurt anyone or are incapable of hurting anyone. Rather, it simply is because they don't want to get caught, and most especially, they don't want to get shot!  Source
The most thorough study of burglary patterns was a St. Louis survey of 105 currently active burglars. [FN65] The authors observed, "One of the most serious risks faced by residential burglars is the possibility of being injured or killed by occupants of a target. Many of the offenders we spoke to reported that this was far and away their greatest fear." [FN66]Said one burglar: "I don't think about gettin' caught, I think about gettin' gunned down, shot or somethin'...'cause you get into some people's houses...quick as I come in there, boom, they hit you right there. That's what I think about."
Another burglar explained:
Hey, wouldn't you blow somebody away if someone broke into your house and you don't know them? You hear this noise and they come breakin' in the window tryin' to get into your house, they gon' want to kill you anyway. See, with the police, they gon' say, "Come out with your hands up and don't do nothing foolish!" Okay, you still alive, but you goin' to jail. But you alive. You sneak into somebody's house and they wait til you get in the house and then they shoot you.. . .See what I'm sayin'? You can't explain nothin' to nobody; you layin' down in there dead! [FN67]
Some individuals may choose burglary because they dislike confrontations; however, not all burglars are non-confrontational by nature. According to the Wright-Rossi prisoner survey, sixty-two percent of burglars had also perpetrated robberies.[FN96] The study of currently active burglars in St. Louis observed: "Most offenders in our sample...showed little concern for the well-being of their victims. In fact, several of them said they were prepared to use violence against anyone who got in their way during the commission of an offense." [FN97]
[FN97]. Wright & Decker, supra note 65, at 111.
One burglar explained: When [the victims] come in there, they better have some boxin' gloves on cause I'm gon whip some ass or somethin' and I ain't lyin'. It's gon' be a fight up in there, partner. You ain't callin' nobody. You be callin' somebody, it be 911 for ambulance for your ass 'cause I'm gon' do you. I'm gon' hurt you, I ain't lyin'. Don't come in there and y'all catch me. Hey man, I'm for real.

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