Curative Instruction Held Insufficient Where Witness Improperly Implied That Defendant Had Confessed (California)

A jury’s belief that the defendant may have confessed eviscerates the presumption of innocence; (See  Arizona v. Fulminante (1991) 499 U.S. 279, 312; see also People v. Navarrete [excerpt after the jump].  Hence, when a prosecution witness has improperly implied that the defendant confessed a curative instruction cannot eliminate the prejudice. 

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Chapter 28 - Out Of Court Statements By Defendant
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Defendant's Statements; Hearsay And Extra Judicial Statements
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F 2.70 - Admissions/Confession
F 358 - Evidence of Defendant's Statements

People v. Navarrete, slip opn. pp. 9-10 (Cal. App. 2d Dist., B210691, Feb. 1, 2010)
Respondent asserts the court's instructions to the jury cured the damage from Detective Serrata's misconduct. Respondent pins the feasibility of curing the damage on the fact Serrata did not use the word “confession,” uttering only the word “statement” instead. Respondent adds further that Detective Serrata did not disclose the statement's contents and got away with referring to it only once before the court cut him off. We note that a trial court can almost always cure the prejudice of an improperly volunteered statement by granting a motion to strike and charging the jury with an appropriate curative instruction. (See, e.g., People v. Ledesma (2006) 39 Cal.4th 641, 683 [47 Cal. Rptr. 3d 326, 140 P.3d 657] [witness's volunteered statement that defendant is being retried after previous conviction was overturned not incurably prejudicial]; People v. Avila (2006) 38 Cal.4th 491, 573–574 [43 Cal. Rptr. 3d 1, 133 P.3d 1076] [improper reference to defendant's recent imprisonment curable]; People v. Valdez (2004) 32 Cal.4th 73, 12 & fn. 254 [8 Cal. Rptr. 3d 271, 82 P.3d 296] [police officer's inadvertent disclosure he had interviewed defendant in prison did not warrant mistrial because reference to defendant's prior incarceration was brief and isolated].) Here, however, Detective Serrata told the jury that appellant's inadmissible statement was the principal reason he decided not to have the swabs tested for DNA. As noted above, even a single reference to an inadmissible confession can be the sort of “exceptional circumstance” that supports granting a mistrial because a curative instruction cannot undo the prejudice to the defendant. (Accord, Arizona v. Fulminante, supra, 499 U.S. 279; see People v. Williams, supra, 16 Cal.4th at p. 211; People v. Wharton, supra, 53 Cal.3d at p. 565; People v. Bentley, supra, 131 Cal.App.2d at p. 690.) A witness's ambiguous and inadvertent reference to a defendant's out-of-court statement previously excluded by the court may not always require the granting of a mistrial. Here, Detective Serrata's testimony was neither ambiguous nor inadvertent; it was deliberate, triggered seemingly by his apparent pique at the court's wondering the previous day about the detectives' credibility when the court granted appellant's motion to suppress. For that ruling, Detective Serrata admitted he was “going to show” the court. We do not reverse because Detective Serrata's misconduct was willful, but his willfulness reveals the effect he hoped his misconduct would have on the jury. He intended to tell the jury about appellant's statement because he intended to prejudice the jury against appellant. On one point we agree with the detective: His misconduct more likely than not achieved the effect  he sought. But for the price of his success, Detective Serrata cost the court, the parties, and the public the time and expense of a retrial.

DISPOSITION

The judgment is reversed and the matter is remanded for retrial.