In re Sodersten (146 Cal. App. 4th 1163, 2007)

Opinion

ARDAIZ, P. J.

More than 20 years ago, petitioner Mark Collin Sodersten was convicted of the special circumstance murder of Julie Wilson and related offenses. The jury spared his life. Sentenced to life in prison without the possibility of parole, petitioner pursued his appeal in this court and lost. Some 12 years after his conviction, this court directed the superior court to hear and determine petitioner’s various claims in a habeas corpus proceeding. The habeas corpus proceeding remained in the trial court for six years while discovery and investigative proceedings ensued. During that process, it was discovered that at the time of trial, prosecuting and law enforcement authorities were aware of or actually possessed tape-recorded statements of the two key trial witnesses that contained inconsistent statements, as well as admissions of lying and coercive interrogation of one of the witnesses. These tape recordings were never disclosed to the defense. After consideration of all arguments, the trial court denied petitioner’s writ, finding no prejudice in light of all the evidence.

In this court, petitioner pressed his claim that this suppression of evidence denied him a fair trial. We issued an order to show cause why the relief requested, a new trial, should not be granted. During briefing of the issues raised by the writ of habeas corpus, petitioner died in Corcoran State Prison at the age of 48.

There are many literary, historical, and legal descriptions of what constitutes a fair and impartial trial. We will not detail them herein. At the very least, a trial is a presentation of evidence, the purpose of which is to allow the trier of fact to resolve whether it can have sufficient confidence in the facts supporting the requested result, such that it is willing to find the result proved with the degree of certainty required by the type of case. Under the American system of justice, the high degree of certainty required in a criminal case, proof beyond a reasonable doubt, can sometimes result in the guilty going free. While this allows the presumption of innocence to prevail, it does not mean that the trier of fact has concluded the defendant is factually innocent. It does mean that guilt has not been proved by the standard required. An accused who has been acquitted, even though he or she may in fact have committed the crime charged, is entitled to be presumed innocent because guilt cannot or has not been proven with the degree of certainty required. Thus, under our system of justice, the guilty can go free in order to ensure as much as possible that the innocent are not convicted. This is an accepted consequence of a system of justice that places a high price on freedom—a system of justice for which this country has fought on numerous fronts and offered up innumerable lives to preserve and defend.

When a defendant is convicted, we conclude that the jury has resolved what the truth is for purposes of imposing the consequences the law demands. In that sense, a trial is a search for the truth (See, e.g., Arizona v. Fulminante (1991) 499 U.S. 279, 295 [113 L.Ed.2d 302, 111 S.Ct. 1246] (dis. opn. of White, J.).) However, what is fundamental to this search is that it “is not served but hindered by the concealment of relevant and material evidence.” (In re Ferguson (1971) 5 Cal.3d 525, 531 [96 Cal.Rptr. 594, 487 P.2d 1234].) If we expect jurors to do their job, they must be presented with all the evidence that is relevant and legally admissible for them to consider. It is then their duty to sift through that body of evidence to resolve what they can accept and believe. The withholding of admissible evidence from them can result in their drawing wrong conclusions and can undermine the certainty of their belief in other evidence that never had to be reconciled with the undisclosed information.

For the public to have confidence in the result, it must have confidence in the process. As the United States Supreme Court has observed, “Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.” (Brady v. Maryland (1963) 373 U.S. 83, 87 [10 L.Ed.2d 215, 83 S.Ct. 1194] (Brady).)

This case calls to account the American system of justice. For that system to have credibility we must respond. As we shall explain, what happened in this case has such an impact upon the integrity and fairness that are the cornerstones of our criminal justice system, that continued public confidence in that system requires us to address the validity of petitioner’s conviction despite the fact we can no longer provide a remedy for petitioner himself. To discharge this writ as moot would be a disservice to the legitimate public expectation that judges will enforce justice. It would be a disservice to justice. Most of all, it would be a disservice to petitioner, who maintained his innocence despite a system that failed him. We will not perpetuate that failure and let silence endorse that result.

I

PROCEDURAL HISTORY

By information filed February 14, 1985, in Tulare County Superior Court case No. 22976, petitioner was charged with the November 2, 1984, murder of Julie Wilson (Pen. Code, § 187; count I). A knife use enhancement (§ 12022, subd. (b)) and special circumstance of murder during the attempted commission of rape (§ 190.2, subd. (a)(17)) were further alleged as to count I. Petitioner was also charged with attempted rape (§§ 261, subd. (2), 664; count II) and arson of an inhabited structure or property (§451, subd. (b); count III). The prosecution sought the death penalty.

On May 22, 1986, a jury convicted petitioner as charged. With respect to count I, the jury further found that the offense was first degree murder, that petitioner intended to kill Julie Wilson, and that the special circumstance and enhancement allegations were true. The jury subsequently returned a verdict of life in prison without the possibility of parole. On July 3, 1986, petitioner’s motion for a new trial was denied, and he was sentenced to a total unstayed term of life in prison without the possibility of parole plus seven years.

Petitioner appealed (F007395), raising claims of insufficiency of the evidence, erroneous evidentiary rulings, instructional error, and prosecutorial misconduct. He also filed a petition for writ of habeas corpus (F009338), in which he alleged ineffective assistance of trial counsel. This court ordered the actions consolidated for disposition and, on May 3, 1988, we affirmed the convictions and denied the writ petition (People v. Sodersten (May 3, 1988, F007395, F009338) [nonpub. opn.]).

Apparently on April 27, 1997, petitioner executed another petition for writ of habeas corpus, which was filed in Tulare County Superior Court on July 30, 1997. The petition was denied on January 8, 1998. The trial court found nothing new or different from what was presented in the petition filed at the time of the appeal.

On May 5, 1998, petitioner filed a habeas corpus petition with this court (F030730). On July 23, 1998, we issued an order to show cause returnable before the Tulare County Superior Court for an evidentiary hearing. We directed that court to appoint counsel experienced in capital appeals to prepare an amended petition for writ of habeas corpus and to represent petitioner in the evidentiary hearing, and we directed counsel to address the circumstances relating to the identification of petitioner as the perpetrator by Nicole Wilson (the victim’s daughter), together with any other issues that counsel deemed potentially meritorious and that were not previously decided on appeal.

On or about August 19, 1998, the Tulare County Superior Court appointed counsel for petitioner. Counsel was subsequently relieved, then reappointed, at petitioner’s request. Counsel then requested, and was granted, numerous and lengthy extensions of time in which to file the amended petition, many of which were occasioned by the need to compile the record and trial attorney’s file (not all of which was still in the hands of trial counsel), obtain discovery from the district attorney’s office, obtain fee payment approval from the superior court and the Tulare County Board of Supervisors, interview certain witnesses (some of whom no longer resided locally), and investigate newly discovered evidence. The amended petition was filed in Tulare County Superior Court case No. 39404 on July 10, 2003.

As noted, during the course of his investigation, counsel sought discovery from the Tulare County District Attorney’s Office. As a result, the district attorney’s investigator turned over, inter alia, tape recordings of interviews of Nicole Wilson by a prosecutor and member of his staff, dated March 3, 1986, and April 7, 1986. Counsel subsequently discovered, in possession of the Visalia Police Department, a tape recording of a December 1, 1984, statement by Lester Williams, a purported eyewitness who testified against petitioner at trial; and a surreptitiously recorded conversation between Williams and petitioner, recorded on December 14, 1984. Petitioner alleged that the four tapes were suppressed by the prosecutor and police. He also raised numerous other issues in his petition.

On March 12, 2004, the trial court issued an order to show cause. It subsequently denied the petition without holding an evidentiary hearing. Following petitioner’s ex parte application for reconsideration, the court set aside its August 23, 2004, denial, and set the matter for further hearing. On December 17, 2004, after conducting an evidentiary hearing, the court issued a second order denying the petition. The court incorporated its original order of denial and found, in part, that while the four allegedly suppressed tape recordings were not disclosed to defense counsel before or during petitioner’s criminal trial, and their nondisclosure (even if not willful) deprived trial counsel of several opportunities to attack the credibility of two very important prosecution witnesses, there was no reasonable probability that, had they been disclosed, there would have been a different result at trial, nor did the information put all of the other evidence against petitioner in such a different light as to undermine confidence in the verdict.

On February 24, 2005, petitioner filed a request for appointment of counsel with this court. We deemed it to be a new petition for writ of habeas corpus (F047425), and appointed counsel, with directions to file an amended petition. The amended petition was filed on June 23, 2005. After obtaining an informal response from respondent and informal reply to that response, we issued an order to show cause on April 20, 2006. Respondent filed its return on May 31, 2006, and petitioner filed his traverse on June 22, 2006.

On June 25, 2006, petitioner died. His attorney furnished us with a certified copy of his death certificate, and moved for a summary grant of the petition. Respondent opposed the motion and moved to dismiss the petition and permanently abate proceedings. We deferred a ruling on the motions. As we will explain, we have determined it is appropriate for us to address the merits of the issues raised in the petition concerning the nondisclosure of the tape recordings of Nicole Wilson, Lester Williams, and Williams and petitioner.

II

FACTS

A. The Trial

In 1984, Kim Wallace and Janet Turner resided in an apartment complex at 420 East Houston Avenue in Visalia. The women were neighbors of Julie Wilson, who resided at 431 East Sweet Street. On the morning of November 2, 1984, Wallace and Turner went to Julie Wilson’s apartment to borrow a plunger. As they approached, they noticed the curtains of Wilson’s apartment were blackened. The front door was open a crack and Turner opened it further. Turner and Wallace saw Wilson’s body on the floor. Wilson’s daughter, Nicole, was covered with soot and sitting on a couch. Wallace and Turner ran to find Turner’s sister, Renee Johnson, who called the police. The three women then returned to Wilson’s apartment and Johnson called to Nicole to come out. Nicole kept saying there was something in her mother’s eye. When Wallace asked, “Nikki, what happened?”, the little girl replied three times, “Mark did it.”

Visalia Police Officer Ernest Villa responded to the scene at approximately 10:49 a.m. He entered the apartment and observed the victim’s body faceup in a spread-eagle position on the living room floor. Although the victim was wearing a sweater, there were no pants or underclothing on her lower body. Wilson had numerous lacerations on her neck and chin and her body was badly burned. The .greatest degree of burning occurred in Wilson’s pubic area; her genitals had been entirely obliterated by fire. Officer Villa found four Schaeffer beer cans between the victim’s legs, a broken cooking utensil, a pot or pan, on her abdomen, a broken knife on the living room carpet, and a package of Camel filter cigarettes on the kitchen table.

Arson investigators George Sandoval and Scott Baker responded to the scene and determined the fire had been intentionally, set. Although there was a smoke alarm in the apartment, the cover was slightly open and the alarm could not work in this condition. The fire started on the area of the living room carpet between the victim’s knees and her pubic area. Baker concluded Wilson had not been wearing clothing or panties on her lower body at the time of death because her upper thighs were not scorched. Baker testified scorching would have occurred had the clothing burned off.

Dr. Gary Walter, a pathologist, performed an autopsy on Wilson’s body on November 3, 1984. The examination revealed scattered abrasions around the eyes, on the cheeks, and on the head, chest, and legs, lacerations on the ears, the cheeks, the lip and elsewhere, a complete fracture of the lower jaw, and a long, deep laceration of the neck which severed the trachea, the temporal artery on the right side, and most of the supporting muscles of the neck. Dr. Walter found considerable fire damage to the body. He found evidence of burning from the knees to the hairline and determined the fire had been concentrated in the genital area. The entire vagina and much of the musculature of the thighs had been consumed by fire.

Dr. Walter concluded the victim had been alive at the time the fire was set because a hemoglobin test indicated some inhalation of carbon monoxide. In his opinion, the cause of death was multiple stab wounds, particularly the wound to the neck. Dr. Walter believed the fire was a contributing cause but did not mention it in the protocol. Julie Wilson’s blood-alcohol level at the time of death was 0.18. The victim’s abrasions were consistent with being hit by a cooking pan or utensil. The jagged lacerations were consistent with being stabbed and/or cut by a broken but sharp instrument.

Wilson’s two children, Nicole, age three, and Stevie, age two, were in the fire-damaged apartment when her body was discovered. Both children were completely covered with soot. Officers took the children to the Visalia police station. Officer Peggy Marvin called Tulare County Child Protective Services and arranged for both children to be taken to Kaweah-Delta Hospital for observation. Officer Marvin interviewed Nicole once at the Visalia police station and four times at the hospital. Marvin asked Nicole what happened and the minor said, “Somebody made a fire.” When Marvin asked who made the fire, Nicole responded “Mark did” and said Mark was “Brian’s daddy.” Nicole explained Mark started the fire because “[h]im [v/c] was mad at Julie.” When Marvin asked why Mark was mad, Nicole said, “[t]hey had a fight.” Nicole further told Marvin that Mark made a fire in the living room, he “put fire on Julie,” and then he put the fire out. Julie Wilson’s former live-in boyfriend was named Mark Dare. Dare was the father of Julie’s son, Stevie, and had another son named Brian who apparently lived with Dare’s parents in King City. On November 2 and 3, Nicole identified photographs of Mark Dare as the “Mark” who started the fire. When Marvin asked whether Mark used to live with them, Nicole first shook her head “yes” and then shook her head “no.”

On November 5, 1984, Marvin returned to the hospital and displayed a photo lineup to Nicole. Nicole picked out Mark Dare’s photograph and said he was the one who started the fire. She added that Mark had also hit Julie with a pan. Based on Officer Marvin’s interviews with Nicole, Visalia police arrested Mark Dare on November 3, 1984, for the murder of Julie Wilson.

Further investigation revealed Mark Dare and his mother, Elsie Arnett, left Visalia on October 28, 1984, for the Arnett home in King City. Prior to departing, Dare and his mother drove Julie Wilson and her two children to the home of Julie’s mother, Lena Wilson. Dare and his mother returned to King City and remained there until November 2. On that day they returned to Visalia to visit Mrs. Arnett’s youngest daughter, who had given birth to a child. Dare’s mother and stepfather testified Mark Dare was at their King City home on the evening of November 1, the evening Julie Wilson was killed. Dare himself testified he was in King City from October 28, 1984, through November 1, 1984, and he was at home throughout the evening of November 1.

Elsie Arnett testified she and Dare left King City at 2:00 p.m. on November 2 to visit her daughter in the hospital. They arrived at the outskirts of Visalia around 5:30 p.m. Dare needed tennis shoes so they stopped at several stores and purchased a pair before going to the hospital. Dare testified he telephoned Wilson’s apartment while shopping for shoes. An unknown male answered and refused to give his name. The male told him Julie was around and the children were fine. Dare said he would stop by later. After visiting his sister at the hospital, Dare and Mrs. Arnett went to Julie Wilson’s apartment at 7:00 p.m. Dare saw two acquaintances, Lester Williams and Mark Sodersten. He learned Julie was dead and the Visalia police were looking for him. Dare went to the Pump House bar and got drunk rather than turn himself in. He spent the evening at his sister’s home and went to a liquor store in the morning. Visalia police arrested him as he was leaving the liquor store. Dare was armed with a/knife at the time of his arrest. Visalia police eventually released Dareyfrom custody after corroborating his presence in King City on the evening of the! murder.

Later in November' 1984, Ñicole Wilson changed her story. Shortly after the murder, Nicole went to live with her natural father, James Simental. Simental’s live-in girlfriend, Cassie Stockdale, heard Nicole speaking of a “good Mark” and a “bad Mark.” Nicole explained the “bad Mark” was the one who “put the fire on her mom.” Stockdale took Nicole to the Tulare County District Attorney’s office. [[Then]] Deputy District Attorney Ronn Couillard showed Nicole one picture of Mark Dare and one picture of Mark Sodersten. Nicole said Dare was the “good Mark” and Sodersten was the “mean Mark that put fire on my mom.” Julie’s mother, Lena Wilson, subsequently obtained custody of Nicole. Nicole spoke of “Mark” attacking her mother. Mrs. Wilson asked whether it was the Mark who used to live with Nicole and her mother. Nicole responded, “No, Grandma, not the good Mark, the bad Mark.” Nicole said she knew the name “Mark” because her mother kept saying, “Mark, don’t do it, please God, don’t do it.”

Visalia Police Officer Jay Frame saw defendant at a 7-Eleven store at about 6:00 or 6:30 p.m. on November 1. Frame recognized defendant from previous contacts on the street. Defendant purchased a six-pack of beer and left with another White male in a 1960’s Ford truck. Frame subsequently reported his observations to the investigating officer in the Wilson homicide. Frame could not recall the brand of beer which defendant purchased. When the investigating officer showed Frame photographs from the scene, Frame remembered defendant purchased Schaeffer beer. Although he was familiar with Mark Dare, Frame maintained he had seen Sodersten at the 7-Eleven store on November 1.

Visalia police officers seized numerous items of physical evidence from the victim’s apartment for analysis. The evidence included the Schaeffer beer cans found between the victim’s legs. The California Department of Justice Regional Crime Laboratory in Fresno lifted a fingerprint from one of those beer cans. The print belonged to Julie Wilson’s neighbor, Lester Williams. On November 1, 1984, Lester Williams lived with his mother, Elaine Williams, in Julie Wilson’s apartment complex. Williams met Julie and Mark Sodersten through his friend, Mark Dare. Williams saw Julie walking through the apartment complex on Halloween Day, 1984. When Williams asked about Dare, Julie said they had fought and Dare left. She did not know when he was returning. On November 1, Williams was drinking beer with a “wino” at Oval Park on the north side of Visalia. Defendant drove up and invited Williams for a ride. As they drove around, Williams continued to drink beer while defendant drank whiskey. After driving around for awhile, defendant suggested they go to Julie Wilson’s apartment.

The two men arrived at Wilson’s apartment and knocked at the door and Wilson let them in. She was clothed when the two men arrived. Williams sat down at the kitchen table while defendant stood off to the side. According to Williams, defendant was “high” on alcohol. Julie got beers for Lester and herself and sat down at the kitchen table. Defendant then made a move toward Julie. He put his arm around her and said, “[tjell us, baby, you know me, love me the way way [[¿t'c]] you’ve been coming on to me.” Julie replied, “Man, turn me loose. Don’t do this to me. Why is you doing this?” Defendant told Julie to shut up. She arose and struck defendant as she tried to get away from him. Defendant got a grip on her and said, “Oh, Baby, I know you want to give me some pussy. I used to come out this while back and buy you sodas and potato chips, you know. You was telling me right then, you know, come on, give me some of that pussy.” Julie told defendant not to talk to her in that fashion and she tried to get away from him. Defendant grabbed a skillet near the table and began hitting her in the head and neck with it. Defendant told Julie to shut up or he would kill her. Julie struggled to escape but defendant felled her with blows from the skillet. Defendant continued to hit her as she lay on the ground and called her a “bitch” and a “motherf-—r.” Williams also heard defendant tell Julie, “You dirty bitch . . . I’ll f—k you.”

At this point, Williams attempted to intervene but he could not handle defendant. Defendant turned to Williams and screamed, “[S]hut up[,] motherf—r!” Williams was frightened and began running out of the apartment. He saw blood coming from Julie’s upper right ear area, head, and neck. As Williams left, defendant warned him, “[D]on’t say a motherf—ing thing about this, man . . . .” Williams ran across the street to his own apartment, walked past his mother in the kitchen, and went straight to bed.

[[Insofar as the evidence at trial showed,]] Visalia police interviewed Williams on three occasions. On November 27, 1984, Williams denied knowing anything about the murder of Julie Wilson. On November 28, 1984, Williams again denied any knowledge of the murder. After this interview the police learned Williams’s fingerprint was on one of the Schaeffer beer cans. The police then conducted a third interview on the afternoon of November 28. Williams began by denying any knowledge of the murder. Officers told Williams that Sodersten was “pointing the finger” at Williams, saying Williams had asked Sodersten whether the police could lift fingerprints from a dead body.[[]] After three suggestions of this nature, Williams replied, “He [Sodersten] might be the one, man, I want to tell you, man.” Williams then implicated Sodersten in the offense.

Nine-year-old Nikki Florez lived in the same apartment complex as Julie Wilson in November 1984. Nikki was at Julie’s apartment the evening before Julie’s body was discovered. Julie, Kim Wallace, Nicole, and Stevie were also present. Julie departed, leaving Efim to babysit the children. A short time later, Kim departed, leaving Nikki in charge of the smaller children. After Kim left, someone entered the back of the apartment through the sliding glass door. The person asked for Julie. Nikki said Julie was not in the apartment and she did not know where Julie was. The person then said, “Well, tell her I’m going to kill her. I’m going to get her somehow.” When Kim returned and knocked on the door, the man left through the back. Julie eventually returned and Kim left. The same man reappeared and came through the front door. Julie told the children to go play in their room. Nikki heard loud voices and “glass things” jiggling on the television set. At trial Nikki identified defendant as the person who entered Julie Wilson’s apartment.

Janet Turner and Kim Wallace picked up Nikki at Julie’s apartment at 8:00 p.m. on November 1. Turner saw defendant in the apartment and Wallace and Renee Johnson saw defendant’s car parked at various places around the apartment complex. On November 2, Wallace and Turner were standing outside Julie’s apartment after discovery of her body and the arrival of police. Defendant approached the women and asked what had happened. The women told him Julie had been killed. Defendant said he had been with Julie the night before and she had been fine at that time. Defendant then asked the women what Nicole knew or had told the police about the killing, how Stevie was found in the apartment, and where certain cans were discovered.

Defense

Defendant did not testify on his own behalf. Defense counsel offered the testimony of defense witnesses to (1) establish an alibi for defendant on the night Julie Wilson was murdered; (2) show Mark Dare, rather than defendant, was Julie Wilson’s killer; and (3) impeach various pieces of prosecution evidence.

Alibi Evidence

Defendant’s father, Gene Sodersten, testified he took defendant to the Victory Outreach drug rehabilitation program on October 30, 1984. Defendant left his car in the family garage and gave the keys to his father to hold. On the morning of November 1, defendant returned home by bus and lounged around the house the entire day. Defendant was in the house when his father went to bed at 9:30 p.m. Defendant’s father still retained the keys to the car.

Defendant’s sister, Jill Wheaton, was a nursing student in 1984. She lived with her parents and defendant at 1238 Whispering Pines in Visalia. Jill arrived home at 3:30 p.m. on November 1 after working on a project at the College of the Sequoias. Defendant was present and remained at home the entire evening. When Jill left at 6:00 a.m. the next day, defendant was sleeping on the couch. Gloria Van Zandt, Jill’s friend, went to the Sodersten home on the evening of November 1 and stayed there from 9:00 p.m. to 11:00 p.m. Defendant was at home throughout this period. Defendant’s mother, Elizabeth Sodersten, saw defendant at home throughout November 1.

Defendant’s fingerprints were not found on any item seized at the crime scene. Although police officers took a hair sample from defendant in November 1984, the sample did not connect him to the crime. Nothing was seized from defendant’s vehicle or home as evidence. Police discovered a pack of Camel filters on the victim’s kitchen table. Dare testified Julie Wilson smoked Marlboro 100s, defendant smoked Camel filters, and he smoked regular Marlboros. Dare’s friend, Laurie Thatcher, testified Dare smoked Camel filters as well.

Culpability of Mark Dare

Nicole Wilson initially accused Dare of her mother’s murder. James Simental, Nicole’s natural father, testified as a defense witness. Simental and his girlfriend, Cassie Stockdale, were present when [[then]] Deputy District Attorney Ronn Couillard interviewed Nicole. In Simental’s opinion, Couillard kept switching the pictures of Mark Dare and Mark Sodersten to the point Nicole seemed confused as to the identity of the “good Mark” and the “bad Mark.” Simental testified he did not think Couillard’s actions were intentional. However, he previously told a district attorney’s investigator Couillard had pressured Nicole into identifying defendant. Lena Wilson, Nicole’s grandmother, testified someone from the district attorney’s office or child protective services took Nicole to the courthouse to orient her to the courtroom. This occurred about twice a week for the three weeks prior to trial.

Police discovered some physical evidence possibly connecting Mark Dare to the crime. The parties stipulated traces of blood were found on the handle of a knife seized from Dare on November 3, 1984. However, the knife was not tested for blood until May 2, 1986. Police found a piece of red elastic material with a silver snap on the victim’s body. The material was consistent with that used for knapsack/backpack straps. Lester Williams testified Mark Dare commonly carried a knapsack. Dare admitted he always carried a knapsack and further testified he currently used a blue knapsack.

With respect to motive, James Simental testified he visited the victim on October 26, 1984, and Julie was arguing with an intoxicated Mark Dare. Julie was able to get Dare to leave with Simental’s help. Lena Wilson testified Dare and her daughter often fought. She recalled seeing bruises on Julie about 10 days before the murder. Julie told her mother Mark Dare inflicted the bruises. Dare admitted he and Julie always fought and he occasionally hit her. During a fight several weeks before Julie’s murder, Julie waved a knife and said, “I should stab you. You make me so damn mad.” Dare initially denied knowing James Simental and then admitted Simental had spoken with him. Simental said he (Simental) intended to get back together with Julie and move in with her. Dare claimed this conversation occurred several months before the murder.

Dare’s mother, Elsie Arnett, testified she picked up her son in Visalia on Sunday, October 28. On the same date she also picked up some meat at Click’s Old Fashioned Meat Market in Visalia. Mrs. Arnett had previously left the meat at Click’s to be stored. Dare testified there was an ice chest full of meat in the car when his mother drove him from Visalia to King City on October 28. A partner and an employee of Click’s both testified the market was closed on Sundays. Although Click’s employees sometimes cut meat on Sundays, company records showed none was cut on October 28, 1984. Click’s personnel admitted they sometimes made special arrangements with out-of-town customers to pick up cut stored meat on Sundays. However, no such arrangement was ever made with Elsie Arnett for October 28. The Click’s employee remembered Mrs. Arnett bringing in precut meat and saying she was in town for the weekend because her daughter’s baby was bom.

Two witnesses who knew Dare well testified he was at a Halloween party in Tulare on the evening of October 31, 1984. At the time of his arrest, Dare told police, “A guy can’t even come into town anymore to take his kids trick or treating without getting arrested and busted for murder.” Dare was an admitted alcoholic but was not allowed to drink alcohol when he stayed with his mother and stepfather. Matt and Elsie Arnett lived in a trailer park and received phone messages through their neighbors. Police were unable to locate any neighbor who had seen Dare on the premises between October 28 and November 2.

Pamela Hamilton Curtis testified she was Dare’s former live-in girlfriend. In her opinion, Dare was a good liar. Curtis testified Elsie Arnett always made excuses for her son. In 1977, Dare told his mother he had driven into a parked car and left the scene. Dare then left his apartment without saying where he was going. The police came looking for him 15 or 20 minutes later. Mrs. Arnett told police Dare was out of town and was not coming back. Dare returned to the apartment that evening.

Impeachment of Prosecution Evidence

The prosecution presented evidence to show defendant’s car was visible in the alleyway behind Julie Wilson’s apartment on November 1, 1984.

The defense presented testimony to show it was extremely dark in the alleyway on November 1. The defense also pointed out none of the police reports contained Nikki Florez’s statement about defendant entering Julie’s apartment on the evening of November 1, 1984, and threatening to kill her.

Rebuttal

The prosecution impeached defendant’s alibi with testimony from Visalia Police Officer John Gomes. Gomes went to the Sodersten residence on November 30, 1984, to serve a search warrant and inform family members of defendant’s arrest for murder. Defendant’s father, Gene Sodersten, said defendant could not have killed Julie Wilson because he was home on the night of the killing. However, Gene Sodersten did not know what night Julie Wilson had been killed. Gene Sodersten also speculated his son’s car was observed in the vicinity of the crime scene because someone may have hot-wired the vehicle and stolen it for that one night.

Mike Allen, brother of defense witness Billy Allen, contradicted Billy’s testimony that Dare had been at the October 31, 1984, party in Tulare.

Finally, the prosecution introduced evidence to show the distance between Julie Wilson’s apartment and defendant’s home was 2.8 miles.

Surrebuttal

Cozette Godown testified she was at a party in Tulare on October 31, 1984, and Mark Dare and Mike Allen were present that evening. The party moved to Billy Allen’s home in Visalia later that evening.

[[This ends our quotation.]]

B. The Undisclosed Tape Recordings

As previously described, during the course of his investigation in conjunction with the writ proceedings, petitioner’s counsel came into possession of tape-recorded interviews of Nicole Wilson, conducted on March 3, 1986, and April 7, 1986; a tape-recorded interview of Lester Williams, conducted on December 1, 1984; and a conversation between Williams and petitioner that was surreptitiously recorded on December 14, 1984.

—March 3, 1986, interview of Nicole Wilson

The first portion of this interview was conducted by Phillip Cline, the trial prosecutor. The second portion was conducted by his investigator, John Johnson. Throughout the interview, Nicole’s tone was often playful, with a singsong quality to it. Sometimes she sounded reluctant; other times, bored, even when discussing the death of her mother. Occasionally, she sounded sad.

The interview began with Cline telling Nicole that he wanted her to pretend like they were in court. When he asked her last name, she responded, “Uh, Banana,” and giggled. When he reminded her that they could not joke in court, she responded that her last name was Renee. Finally, when he asked if her last name was Wilson, she said yes. Nicole related that she was four years old, and that her birthday was in May. When asked about the color of the pen Cline was holding, she responded that it was red; if Cline told her it was green, it would be a lie, but if he told her it was red, that would be the truth. When Cline asked whether the truth was good or bad, Nicole said it was good; a lie was bad. When asked what happened if she told a lie, she replied, “You get a spankin’.”

When Cline asked Nicole to tell him what happened to her mother, she asked whether they had to. Cline said yes, told her to pretend they were in court, and asked again. Nicole then giggled. When she continued to be recalcitrant, he told her that the “old judge” would get mad at her if she started “goofing off’ in court. He again asked what happened to her mother; Nicole began counting, then, with further urging, replied, in a singsong voice, “She got killed by Mark.” When Cline asked how she was killed, Nicole replied, in the same tone, “Fire, oil, and paper, newspaper,” and that Mark put it on her mother. When Cline asked whether she saw it happen, she responded that she did not. He asked where she was, to which she answered, “Me not telling.” Cline then observed that she was not being a good girl today, and he said he wanted her to be good and to tell him exactly, just like a big girl, and that they would play after. A short while later, when she continued to be playful, Cline asked if she wanted to get him in trouble, and said that he would get in trouble if she goofed off in court. He also said that he heard she “did real good the other day,” and that he wanted her to do good today.

Cline subsequently asked Nicole to look at some photographs. She counted to six, whereupon he asked if one of those people put fire on her mommy. Nicole’s answer was both negative and emphatic. This ensued:

“Q [Cline]: You don’t see one of em? Look at em close.

“A [Nicole]: No, none of em did.

“Q: Which one do you keep looking at?

“A: That one, that one, that one, that one, that one, that one.

“Q: No, there’s one of em that you were looking at, which one is it? Is that the one you were looking at?

“A: Uh, huh.

“Q: Uh, huh. Point your finger to it. That’s right.[] Is that the one that put fire on your mommy? Huh?

“A: No.”

Cline then asked if a particular one put fire on her mommy. Nicole said no, and that the person’s name was Mark. When asked which Mark it was, Nicole responded that she did not want to tell. When asked whether it was the good Mark or the bad Mark, however, she said that it was “[a] good Mark.” She responded affirmatively to questions whether he used to live with her and whether he had a son, and she gave the son’s name as Brian. When asked who the other Mark was, she responded, “Bad Mark.” She answered affirmatively when asked if he had been to her house before, and she agreed to point her finger at him if she saw him in court. This followed:

“Q: Okay, whose [szc] that?

“A: Mark that killed my mommy.[]

“Q: And this, whose [szc] this?

“A: Mark that killed my mommy.

“Q: Is that the same person? Okay. Is that person in here?

“A: Uh, yes.

“Q: Where’s he at?

“A: He’s on stage number two.

“Q: Alright. That’s number two?

“A: Yeap [szc].

“Q: That’s the same person that killed your mommy?

“A: That one, that one, and that one, and that one, and that one killed my mommy.

“Q: Okay. Is that one that you saw awhile ago that you were looking at? Is that why you were looking at him?

“A: No, that one goes with him, and that one goes with him.

“Q: Okay, that’s the same guy? Alright. Okay, now you’re doing good. You did good today. That’s all we need.”

After Cline said that was all they needed, Nicole asked if they could play now. Cline replied that he wanted to test her on something and was going to ask her some questions “just like they did in court the other day.” After further discussion, Nicole said she was going to make something else. Cline responded, in a somewhat sterner voice, “I want you to pay attention to me Nicole. Now you’re not being very good. You’ve gotta pay attention to me.” Cline went on to tell her that, when the other man asked her questions, Cline wanted her to tell the truth. He elicited her promise that she would do so, and also when Cline was asking her the questions. This ensued:

“Q: Now look, if somebody, you know what happens when somebody tries to trick you?

“A: What?

“Q: Huh? Let’s say that you told me, did you tell me that this man set fire to your mommy? Okay, and I’ll, let’s say that I’m this other man. And I come up and say, this man didn’t set fire to your mommy, did he? What are you going to say?

“A: (inaudible) my mommy.

“Q: Huh?

“A: Did that one kill my mommy?[]

“Q: I don’t know, did he?

“A: Yes.

“Q: Alright. So that’s what I want you to say if that’s what’s [sic] the truth is. But I want you to tell the truth. Okay? But what if this other man says, he didn’t kill your mommy, did he? Are you going to change your mind?

“A: (inaudible), well he, he’s the one that’s falling down.

“Q: Yeah. What I’m telling you, hun, is you don’t have to change your mind, okay? Cause you tell it just the way it is. All I want it [«"