Contact Thaddeus Dale Hamilto
	Thaddeus Dale Hamilton # C-94517 San Quentin State Prison San Quentin, CA 94974 USA
	DOB: June 8, 1961

Thaddeus Dale Hamilton's case data
Status	possibly innocent
State and County	California, Kern County
Case No.	F007890 and 30044
Crime	(23) counts of criminal conduct: kidnapping, robbery and rape
Date of Crime	July 18 and July 21, 1985
Date of Arrest	July 26, 1985 (unrelated case)
Date of Conviction	August 28, 1986
Sentence	Life plus 62 years and 4 months
Age at the Date of Crime	24
Contributing Factors	Mistaken Eyewitness Identification, Official misconduct
Did DNA evidence contribute to the conviction?	No
Is there DNA evidence to test?	No (allegedly destroyed)

Introduction

On July 18, 1985, two couples were robbed as they entered their car; the two women also were sexually touched. Several days later, a family travelling in a van was robbed and the female members of the family were sexually assaulted.

Five days after the second incident, Thaddeus Hamilton was arrested on another, unconnected matter. One of the police officers thought he fit the description of the robber in these two incidents, so he took Thaddeus’s photograph and placed it in a photographic line-up.

Of the four people involved in the first incident, one identified someone else’s photograph and one made a tentative identification of Thaddeus at the photographic line-up. None of the four identified Thaddeus at a live line-up and two of them idenfied someone else. Three of these people tentatively identified Thaddeus at the preliminary examination and the fourth was positive Thaddeus was not the robber. None of these people identified Thaddeus at trial, although there were similarities between him and the robber.

Of the nine people involved in the second incident, seven viewed the photographic line-up:
two identified Thaddeus and another identified Thaddeus and another photograph.
All nine victims viewed the live line-up,
five identified someone other than Thaddeus,
one or two made no identification,
one person tentatively identified at the preliminary examination;
one testified that Thaddeus positively was not the robber,
the person who had tentatively identified Thaddeus at the photographic and live line-ups could not identify him;
one person identified Thaddeus and the others could not identify him.
None of them positively identified Thaddeus at trial.

There was no substantial physical evidence linking Thaddeus to the crimes. The People’s criminalists testified that none of the fingerprints found at either crime scene matched Thaddeus’, but some carpet fibers found on Thaddeus’ pants may have had the same origin; his blood type may have been compatible with semen found on one of the women.

Thaddeus Hamilton was convicted of twenty three counts of criminal conduct and sentenced to life plus sixty three years in the state prison.

This is a very sad case of mistaken identity; at the hearing on Thaddeus’ motion for new trial, the judge even noted that his decision would have been different from the jury’s.

At issue throughout the proceedings and on appeal are the legality of Thaddeus’ arrest and the unduly suggestive nature of the photographic line-up with its affect on the subsequent identifications of Thaddeus Hamilton. In addition, the prosecutor’s misconduct prevented a fair trial, that hearsay evidence was admitted in violation of Evidence Code section 1238, and that the judge failed to exercise his discretion in ruling on Thaddeus’ motion for new trial.
Thus, Thaddeus is entitled to a dismissal of the charges or a new trial.

Newspaper Article (pdf)
“Judge delivers stiff sentence to man despite reservations about convictions”
by Michael Trihey, California staff writer

Statement of Facts

JULY 18, 1985 [Count I-VI]

The Victims’ Trial Testimony of the Incident
On July 18, 1985, Mr. Bruce Marshall, his wife, Marie, and their friends, Billy Jo (Jodie) and DeWayne Blount, went to the Funny Farm, a bar in Bakersfield. At the end of the day, they went to their car, parked at the rear of the bar. Mr. Marshall was feeling the affects of the alcohol he had consumed during the evening, but did not feel tipsy.

Mr. Blount unlocked the passenger door; Mrs. Marshall and Mrs Blount got into the front passenger seat. Mr. Blount had just walked around to the driver’s side, when three people rode up on bicycles and one of them asked where Elizabeth Street was. Mr. Blount told him he did not know.

The man who had asked for direction asked Mr. Blount for money, but he said he had none; the man then showed Mr. Blount a gun, so Mr. Blount gave him his wallet. The man pushed Mr. Blount to get into the car and pinned him between the steering wheel and the seat while he climbed into the back seat. He demanded the women’s money and jewelry and then touched Mrs. Marshall’s breasts and thighs and Mrs. Blount’s vagina.

Mr. Marshall had started to leave the car, but one of the other men was at the passenger side, showed a gun and told Mr. Marshall to get back into the car. Mr. Marshall was instructed to put his head down, but he got a good look at the assailant as he handed him his belongings. He did not see any tattoo on the assailant’s face or body.

Mr. Blount became agitated and the assailants left. The man who had first approached them took the car keys and told Mr. Blount he would drop them at the end of the block.

The parking area was dark, with only the car’s dome light illuminating the scene. [But according to Mr. Blount’s testimony the area was well light.] Mrs. Marshall and Mrs. Blount remembered the man touched the car and saw the police dusting for fingerprints where the robber had touched it.

People’s Criminalists’ Testimony:

Mr. Richard Ung, a laboratory technician with the Bakersfield Police Department and qualified expert, testified that he had done comparisons between fingerprints lifted by police officers from the Blounts’ car to Thaddeus’ fingerprint cards and the fingerprints of Thaddeus’ brother R. and friend EJK [the two men who had been with Thaddeus when he was arrested]. The fingerprints lifted from the car did not match Thaddeus’ or the fingerprints of either of the other two men.

Mr. Ung also compared Thaddeus’ fingerprints to those taken from various pieces of physical evidence which the victims testified had been handled by the robbers. Although there were sufficient fingerprints to make a comparison, none of the lifted fingerprints matched Thaddeus’, his brother’s or EJK’s.
Mr. Ung did not compare any of these fingerprints to the fingerprints of any of the victims.

The Victims’ Testimony – Identification

MRS. BLOUNT recalled that the assailant had a dark blue baseball cap, dark blue jersey-type shirt, big eyes and a dark spot near his front teeth. She told the police the man was approximately 5’6”. [Mrs. Blount identified the photograph of someone other than Thaddeus.]
Mrs. Blount saw Thaddeus “squint” his eyes during the live line-up, but was not able to identify him as the assailant. She also had testified that Thaddeus’ eyes looked bigger at the preliminary examination than they had at the line-up.

At trial, Mrs. Blunt was unable to identify Thaddeus as the assailant. She recalled a missing tooth on the left side of his mouth; an area of Thaddeus’ mouth was the same area, but she could not recall if it was the same tooth or whether it was chipped or missing. The empty space in Thaddeus’ mouth definetely appeared larger to Mrs. Blount than the spot she had seen on the assailant. When given the opportunity to observe his teeth, she testified that Thaddeus’ missing tooth did not look like the robber’s. She did think his eyes were similar. Although she was unsure of the assailant’s height and whether the baseball cap had any lettering, she was certain the assailant was thin, had a goatee and did not have a mustache. She thought Thaddeus might be the man, but thought the assailant was shorter than Thaddeus. She recalled high cheekbones, but did not recall seeing any tattoos on his face or anywhere on his body. The goatee was similar to that shown in the photograph or Thaddeus that was used in the photographic line-up.

At the photographic line-up, Mrs. Blount had identified the photograph looked more like the assailant than Thaddeus.

MRS. MARSHALL remembered no tattoos on the assailant’s face or arms, although she got a good look at him. She described the assailant as approximately 5’6” to 5’8”, wearing a yellow jersey with a black number. She also told the police that the assailant had a goatee and mustache. Mrs. Marshall tentatively identified Thaddeus at the photographic line-up, but there were other photographs of men with large eyes and high cheek bones.

Mrs. Marshall was unable to identify Thaddeus at the live line-up, but rather, positively identified the man in the number 5 position. [Thaddeus was number 3 in that line-up.] She concentrated on the participants’ eyes and cheek bones and saw no one other than number 5 who matched her memory. Mrs. Marshall subsequently thought that number 5 had been too stocky, but she did not recall anyone else from the line-up who might have been the robber. However, at the time of the line-up, Mrs. Marshall was absolutely certain that number 3, Thaddeus, was not the assailant, and that number 5 was.

At the preliminary examination, Mrs. Marshall tentatively identified Thaddeus as the assailant. She testified that she recognized his big eyes, high cheek bones and round face. The robber was about 5’8”, not particularly tall. Mrs. Marshall testified that Thaddeus looked like the assailant. However, based on is height, Thaddeus also might not have been the robber. Mrs. Marshall could not identify the pants seized from Thaddeus.

At trial, Mrs. Marshall testified that her memory of the robber “resembles very closely” the photograph of Thaddeus that had been used in the photographic line-up and that she thought that was the photograph she had identified during the photographic line-up.
Mrs. Marshall also testified that while the robbery was occurring, even though she was looking directly at the robbery, she was most concerned with the gun; “…the man that robbed me was a black man, and I was scared to death, and I don’t know that I could pick out tattoos on a black man.”

MR. BLOUNT described the robber as about 5’6”-5’8”, wearing dark pants and a yellow jersey. He believed that number 13, Thaddeus’ photograph, looked like the assailant because of the goatee, but he did not idenfy anyone positively. Mr. Blount saw the man very well, both outside the car and as close as three inches right underneath the car light, but he did not see any facial tattoo.

At the live line-up, Mr. Blount first identified the man in the number 5 position. Mr. Blount testified he was confused at the line-up, but based his identification on the suspect’s teeth and height. The man in the number 5 position was the same height as the robber; Mr. Blount was certain the robber was no taller than he was. After he had left the line-up, he changed his mind, again thinking it was number3, but told no one. He never noticed the spot on Thaddeus’ face at the time of the line-up: “I’m sorry, but the man is a black man. What can I say?” After the live line-up, he realized that the man in the number 5 position was too stocky, but had a similar tooth problem to Thaddeus’ and the robber’s.

Mr. Blount tentatively identified Thaddeus as the assailant during the preliminary examination, based on his cheeks, eyes and the dark spot on his cheek. At that time, he identified Thaddeus’ photograph, which he had not done during the photographic line-up. Mr. Blount remained very confused about the assailant’s hight. He testified that the robber had a mustache and full goatee covering his face.

Mr. Blount testified that Thaddeus’ cheeks and flat nose were similar to the robber’s. The spot on the left side of Thaddeus’ face could have been the one Mr. Blount saw, but he was unsure. However, he could not identify Thaddeus, even though at trial Thaddeus’ hair and goatee were more similar to the robber’s than they were at the line-up. The goatee of the robber was much fuller than shown in Thaddeus’ photograph.

At no time before trial did Mr. Blount tell any one that he recalled the robber having a dark spot on his face, nor a problem with his teeth.

MR. MARSHALL described the man who had asked for directions as 5’6” with a goatee. He was not able to identify Thaddeus as the robber, because he was already in the car and did not get a good look at him. He saw the robber only for a couple of seconds while the man as in the back seat and Mr. Marshall turned to look at him, for a maximum of four seconds at a time. He did not see anything unusual about the man’s teeth, noticed no tattoos or marks or anything unusual at all. Mr. Marshall could not recall if the man had a goatee.

Mr. Marshall also identified no one at the photographic line-up; although he thought Thaddeus might be the robber, he did not tell any one of this tentative recognition. [But he testified that he was reasonably certain that none of the photographs he had been shown were of the robber.]
None of the live line-up participants’ voices sounded similar to the robber’s.

Mr. Marshall testified at trial that at the preliminary examination Thaddeus looked like the assailant, but that he had not told the police officers at the live line-up of any similarity. [The man did not have a goatee.]

Mr. Marshall identified Thaddeus as similar to the robber, at best, to a reasonable certainty: “Mr. Hamilton could be the one that held us up that night,” “there is some similarities.” He testified that he did not get a good look at the robber. The similarity Mr. Marshall recalled from the preliminary examination might have been because Thaddeus was the only participant in the line-up whose photograph was also in the photographic line-up.

JULY 21, 1985 [COUNTS VII – XXIV]

The Victims’ Trial Testimony of the Incident

On July 21, 1985, at approximately 10:00 p.m., Felix Calderon was with his wife Maria, their three sons (Felix Jr., Leiton and Andrik), cousin (Carmen Calero), sister (Sara Alvarez) and her two children (Yvonne and Raymond Alvarez) at a restaurant in Bakersfield. They left the restaurant and were in their van, intending to get on the freeway to go home to San Diego, when a black male on a bicycle approached the vehicle on the passenger side and asked for a directions to Elizabeth Street.

Mrs. Alvarez, who was seated in the back seat between the driver and passenger, moved very close to the window to speak with the man, explaining that they were not local residents and did not know where Elizabeth Street was. The parking lot was well lighted. [Mrs. Alvarez looked at the man for about five seconds during this exchange.]

The man wore a baseball cap, a dark blue or black, polo shirt with an emblem, dark pants, perhaps blue jeans and tennis shoes, perhaps Nike brand. The witnesses either could not remember the type of emblem or variously described it as white, a LeTigre emblem, i.e., an alligator, and as an orange Tiger. The shirt might have been longer in the front than in the back, as was the shirt sized from Thaddeus. The pants Thaddeus was wearing when he was arrested were similar to the assailant’s, but Yvonne Alvarez believed they were not the same pants worn by the man. He was between 5’5” and 5’10” tall; Yvonne Alvarez believed he was shorter than 5’8”. He had a mustache, but definetely had no type of beard.

The next thing they noticed, the man was pointing a white handled, stainless steel or chrome gun at them through the open window. The man told them to open the car door and, when the people in the van hesitated, he said he would shoot. Everyone in the van started to scream.

They finally opened the door and he hurriedly put his bicycle inside the van, got in and closed the door. It was only a couple minutes between the time the man first asked for directions and the time he was inside the van with the door closed. Throughout this time, the man had the gun pointed at Mr. Calderon and then he directed Mrs. Alvarez to lie down on the floor of the van.

After the man got into the van, it was very dark and the man’s facial features or other details could no longer be distinguished. The man told Mr. Calderon to drive away from the parking lot. They drove about four blocks from the restaurant to a dark area with no street lights.

After they had parked the car, the man asked all the people for their money and had everyone move forward the back of the van. Mr. and Mrs. Calderon, Sarah Alvarez and Carmen Calero gave him all their money, a total of approximately $55.00, which the man put in his sock. He was angry that there was not more money and searched the women’s purses for more cash.

After the assailant had taken the money, he started putting his hand inside the women’s pants, looking for more money. He then told the women to take off their clothes and touched each of the women’s breasts and put his finger in their vaginas, looking for more money.

The man called Yvonne Alvarez to the front of the van and tried to force Ms. Alvarez to perform oral sex on him, but, although he put his penis in her mouth, she refused to actually perform the act. “He put his penis in her rectum”, a painful experience, and attempted to have intercourse with her. He was on top on Ms. Alvarez for no more than a minute. “The assailant’s penis never entered Ms. Alvarez’s vagina.

Immediately afterward, the assailant put the wallets in his waistband, dropping the gun in the process, took a camera and his bycicle, and asked Mr. Calderon for the van keys. He left the van and said he would leave the keys down the road. The women got dressed and Mr. Calderon went to find his keys and call the police. Everyone was transported to the police station and then Mrs. Alvarez and her daughter, Yvonne, went to the hospital.

People’s Criminalists’ Testimony

FINGERPRINTS:
Mr. Ung also lifted usuable latent fingerprints from the inside and outside of the van involved in the July 21st incident. The entire van was processed to find all latent fingerprints. None of the fingerprints matched Thaddeus’, his brother’s or EJK’s. Some of them also were not the victims’ fingerprints, but rather, belonged to someone else. Mrs. Alvarez had testified that the assailant had not worn gloves and had touched all around inside and outside of the van with his hands, including windows and the door handle.

Mr. Thomas Jones, a Bakersfield Sheriff’s Department fingerprint expert, also testified. Mr. Jones testified that fingerprints are not always left, even when someone is known to have touched something.

CARPET FIBERS:
Mr. Ung also obtained fibers from the carpet in the van involved in the July 21st incident, which he delivered to Bernadette Rickard, a criminalist with the Kern County Sheriff’s Department.

Gregory Laskowski, another criminalist with the Kern County Sheriff’s Department, also testified. Mr. Laskowski’s area of expertise is in the comparison of fibers and hair.

Mr. Laskowski compared the carpet fibers obtained by Mr. Ung from the Calderons’ van to the fibers taken from Thaddeus’ clothing, finding a “compatible comparison”. A “compatible comparison” meant that, based on a visual examination of the fibers under a miscrocope, the two sets of fibers may have shared a common origin. They might also have come from different sources. These fibers could have come from Thaddeus’ shoes, shirt, or pants. There was no way to determine the specific source.

Mr. Laskowski reached the same conclusion as Ms. Rickard had regarding the fibers taken from the Blounts’ car, i.e., that there was no match. He also found no match between the fibers taken from Thaddeus’ clothing and other items found in the van

BODY FLUIDS AND HAIRS:
Dr. Piirmann testified that she examined Yvonne Alvarez shortly after the 21st incident, obtaining samples of external excretions from in and near Yvonne’s vagina and rectum and a saliva sample. She combed through Yvonne’s pubic area and took a couple of Yvonne’s pubic hairs. A blood sample was taken as were cultures for gonorrhea and syphilis. Negative results on the gonorrhea test do not conclusively mean that the attacker did not have that disease.

According to Dr. Piirmann, Yvonne was upset, but coherent enough to describe what had occurred. The physical examination showed some irritation near Yvonne’s rectum, but no torn areas or bruises.

Bernadette Rickard, a criminalist with the Kern County Sheriff’s Department, testified that her expertise was in the field of forensic serology, the study of and for body fluids. Ms. Rickard had done the testing and comparisons for the Bakersfield Police Department fo the samples taken from Yvonne Alvarez and Thaddeus.

Ms. Rickard’s opinion was that Yvonne Alvarez has type 0 blood and that she is a non-secretor, i.e., that her blood type cannot be determined by testing her other body fluids. Eighty percent of the population are secretors. Thaddeus has type A blood and is a secretor; approximately 20 percent of the black male population has these same characteristics.

Ms. Rickard also tested the samples taken from Ms. Alvarez at the hospital. She found spermatozoa on both the vaginal and rectal samples. Although she found some type A blood in the vaginal sample, it was weak and did not persist. Her tests on the rectal sample were inclusive. Although she did not consider them spurious, these results might have been spurious or the result of something else and the person from whom the samples were taken might not have been an A blood type.

The shoes, pant and shirt seized from Thaddeus also were examined and tested by Ms. Rickard. She found black, negroid pubic hairs in the rear pants pockets and brown pubic hairs in the front pocket lining. She also found hair and fibers on the shoes. Ms. Rickard compared fibers obtained the Blounts’ car to those obtained from Thaddeus’ pants, finding no match. She found semen with A type blood on stains on the pants.

Ms. Rickard also formed the opinion that she had found fecal material mixed with the semen. Her notes had stated that there was the possibility of fecal material. Because she was too inexperienced to definetely diagnose this matter as fecal material, Ms. Rickard advised the people to have someone more experienced analyze it. The person chosen to do this testing, Keith Inman, found insufficient evidence of fecal matter to report it as being present.

Mr. Laskowski also analyzed the hairs taken from Thaddeus and from his clothes and those taken from Yvonne Alvarez. He found no match.

None of the other comparisons conducted by Mr. Laskowski, including hairs and fibers, matched anything taken from Thaddeus or his clothing. The non-Negroid hairs obtained from Thaddeus’ clothing failed to produce any match to the samples taken from any of the victims of the July 21st incident.

The Victims’ Testimony Identification

MR. CALDERON: Neither Mr. nor Mrs. Calderon was able to identify the assailant from the photographs. Mr. Calderon was not able to identify the assailant during the live line-up.

Mr. Calderon also was unable to identify the assailant during the preliminary examination or at the preliminary hearing: “Looking at him he looks similar to him, but I’m not sure.” Over Thaddeus’ objection that the procedure was too suggestive because Thaddeus was the only black person and the only person in jail clothing in the courtroom, Mr. Calderon was allowed to observe a tattoo on Thaddeus’ arm. After observing the tattoo on Thaddeus’ arm, Mr. Calderon testified, “I remember that, sort of” and that the assailant’s tattoo was at “about the same location.”

Mr. Calderon also could not identify Thaddeus as the assailant during trial. He testified that it was too dark for him to identify the assailant’s apparel, height, weight or build, but that it was light enough outside the van to see his facial features. The only identifying characteristic Mr. Calderon recalled was that the assailant was black and that he was too tall to stand up inside the van. The man appeared to be younger than thirty to Mr. Calderon.

While they were inside the van, Mr. Calderon noticed the bottom of a tattoo, which looked like a dark line or a small spot, on the man’s right arm, above the elbow on the top side, near the biceps. A portion of a tattoo on Thaddeus’ arm was similar, but Mr. Calderon could not identify the tattoo as the assailant’s.

MRS. CALDERON had been unable to identify any suspect at the photographic line-up. At the live line-up, she picked someone other than Thaddeus, because that man looked “similar”, his eyes and nose looked like that assailant’s. She had not noticed anything, at the line-up, about Thaddeus’ voice or nose that made her believe he was the assailant.

Mrs. Calderon also testified at the preliminary examination, but could not identify Thaddeus as the assailant. She could remember only the assailant. She could remember only the assailant’s nose and eyes. She remembered that he was black, wore a dark blue, baseball cap and a dark blue shirt with short sleeves, open at the collar. The t-shirt introduced as evidence looked similar to her, although it was very dark inside the van and difficult to see. She did think that the assailant and Thaddeus were about the same height and build. Their eyes were somewhat the same also. They both had “flat”, as opposed to “straight”, noses and “black sounding” voices.

Mrs. Calderon testified that she could not identify Thaddeus as the assailant: “it is hard to tell if he is that man, because, you know, all black have the same feature of the face.” She remembered only that the man had big eyes and a large, flat nose.

Mrs. Calderon saw no tattoo on the man’s face, although she remembered his eyes and eyelashes. She also could not remember his having a mustache.

FELIX CALDERON, JR., age ten at the time of the incident, described the assailant as a black male, age 25 to 30, about 5’8” tall with short black hair and a mustache. He weighed 165 to 175 pounds. He described the man as having a flat nose and freckle-like markings on his face. He did not say anything about hair on the man’s chin even though he had seen a little bit. The man was wearing a dark blue Izod-like shirt and pants and a New York Yankees baseball cap.

Felix identified Thaddeus’ photograph at the line-up, although it was a difficult decision for him. He identified the man in the number 5 position, not Thaddeus, at the live line-up. His choice was based on number 5’s height and heavy mustache and he was positive Thaddeus was not the assailant. He thought this man looked like the man depicted in the photograph he had chosen earlier.

After the line-up, he doubted that Thaddeus wa the assailant. Felix testified that he had changed his identification since the live line-up, but could not indicate a reason for the change. However, his aunt, Sara Alvarez, told Felix that she had chosen Thaddeus and after that conversation he was certain Thaddeus was the robber.

Felix testified at trial that the man depicted in the photograph he had chosen at the photographic line-up was the assailant. He identified Thaddeus at the trial because of his hair. [But he testified that he had seen the back of the man’s head during the crime, but that was not the reason he identified Thaddeus.] He was sure the man had no tattoo on his face, but remembered one on the man’s arm.

LEITON CALDERON, age eleven at the time of the incident, gave basically the same description as had Felix, Jr. He testified that the assailant wore blue jeans. Leiton identified none of the photographs as that of the assailant. [ He identified the man in the number 5 position as the assailant. He was positive he was the man and that Thaddeus was not.]

Leiton could not identify the assailant in court, although Thaddeus looked similar to him. Appellant’s hair was different, but he was about the same height. Leiton then testified that he had not seen the assailant’s height and he did not know why he had said Thaddeus was about the same height as the assailant. Leiton could not give a reason why he had changed his identification from the man in the number 5 position at the live line-up to Thaddeus.

Leiton testified that the t-shirt police had seized from Thaddeus at the time of his arrest was darker than the one worn by Thaddeus and the symbol on Thaddeus’ shirt was definetely an orange tiger, not a green aligator.

MRS ALVAREZ initially recalled only that the assailant wore a dark shirt. She could not identify the color.
Mrs. Alvarez identified Thaddeus in the August 1, 1985, photographic line-up even though the assailant did not have a beard and Thaddeus’ photograph showed him with one. She identified Thaddeus during the photo identification in part because he was the only one wearing a dark shirt, which she distinctly remembered the assailant had worn. Mrs. Alvarez testified that she identified Thaddeus through the use of her memory and the photograph: “…the picture and everything, it was altogether…”

Mrs. Alvarez identified Thaddeus at the live line-up. She did not recall that any of the same men whose photographs were used in the photographic line-up were in the live line-up except Thaddeus.

Mrs. Alvarez saw the man’s face very clearly in her memory. Thaddeus looked similar to this man and that it was possible that the assailant and Thaddeus were the same height. Mrs. Alvarez had been very close to the man at this point and she noticed spots on the left side of his face, another spot near his left eye and a dark spot on his chin. [But see her preliminary examination testimony: she saw no tattoos on his face, but observed at least three dark spots near his right eye, that were not freckles, and see testimony on cross-examination: “I don’t recognize a tattoo. I just — I just say that he has a black spot on his chin.” “I saw a few spots, spreading down in the chin and the upper part of the chin.” And she did not describe any freckles or dark spots which she later said she observed on his face.]
After the man got into the van, it was very dark and Mrs. Alvarez testified that she could no longer distinguish his facial features or other details.

YVONNE ALVAREZ testified that she barely saw the man before he entered the van. She remembered that the man had a chipped tooth, but she could not recall which tooth that was. It definetely was chipped, not missing. She had not told the police that the assailant had a chipped tooth. [She had not noticed anything unusual about his teeth. Thaddeus’ obviously broken tooth made her think he was not the assailant, unless it had been broken since the incident, as it was not broken at the time of the assault. She recalled that the chip from his tooth was in the corner. She also testified that all she really remembered was that there was something wrong with his mouth and she could not recall what it was.]

She remembered the robber’s big eyes, flat nose, mustache, no beard and freckle-like markings on his cheek and that he was between 5’8” and 5’10”, but remembered no tattoo near his eyes or anywhere else.

Yvonne described the assailant’s hat, shirt, pants and shoes, stating that the shirt had a green alligator emblem, was an “Izod” shirt, that the man wore jeans and some kind of white canvas tennis shoes. [Note: She positively identified the shirt Thaddeus was wearing when he was arrested, with a green alligator on it. She testified that because the man who had been arrested had been wearing the shirt she was shown. She thought he was the man who had assaulted her and that she could not have identified the symbol on the shirt until she had been shown the shirt and told it was the subject’s. She testified that she could not recall the type of symbol on the shirt.]

While the sexual molest was not occurring, she saw the man’s face very clearly, but also testified that she saw the man only for a moment as he entered the van and then she turned her head away. As he first got into the van, she could see him clearly, but that afterward it was dark in the van although lights from the outside provided enough illumination to see him.

Initially, she identified Thaddeus only by his shirt, because he was the only one in the line-up wearing a polo shirt. She also identified another photograph and thought that man looked more like the assailant having a goatee, but Thaddeus’ photograph showed him with one.

Yvonne shakily chose Thaddeus, “…because I thought it looked similar. He had the — he looked kind of, you know — I wasn’t that sure. But I told Scott [Carvel], you know, and he goes it’s okay. I just put down what I thought.” Thaddeus was the only man represented in both the photographic line-up and the live line-up.]

At trial Yvonne testified that one of the factors upon which she had based her identification was Thaddeus’ voice. [Note: She testified she could not recall whether Thaddeus’ voice during the line-up was similar to the assailant’s.]

When questionned, “whether or not [Thaddeus] had the same facial features in the line-up as the [assailant]”, Yvonne replied, “similar feature, yes”, and “well, [Thaddeus] is a black male.
Q. I am not aksing you the same, I said similar.
A. Yes, he looks similar.”

CARMEN CALERO did not identify the assailant at the photographic line-up, but at trial she testified that she thought it might have been Thaddeus. She had chosen someone other than Thaddeus from the line-up because of the other man’s build and had excluded three of the men, including Thaddeus, because of their heights.

Mrs. Calero also testified she was sure the man she had picked at the line-up was the assailant, who was similar to Thaddeus in that he had wide shoulders like Thaddeus. When asked to identify Thaddeus, she testified,
“A. His aspect is similar.
Q. His what?…What [do you] mean by aspect?
A. His color, of course, he was black. I can’t say anything about the hair because he always had the hat on. The mustache, yes. He looks similar to me.”
…
“Q. You don’t know, if [Thaddeus] is the gentleman that was in that van that night; us that correct?
A. The only thing I can say is that he looks similar to him.”

When asked to give her complete recall of the assailant, Mrs. Calero testified:
“Q. Was the man that was in the van shorter than this man?
A. No, he was similar.
Q. Was it a thick mustache that the subject had?
A. No.
Q. Did the man have any other facial hair, sideburns, beard, anything like that?
A. No.
Q. Did you notice any unusual markings on the man’s face?
A. No.
Q. Did you notice anything unusual about the man’s teeth?
A. I didn’t notice anything. The only thing I noticed was that he was a brown complected man. He had a mustache. And after that everyone was in a panic state…The only thing I can say in regards to the truth that he was similar to him and that’s all…”

She did not notice any symbols on the shirt.
At trial, Mrs. Calero thought Thaddeus looked similar to the assailant. She remembered the man as having a mustache, but no beard and no tattoo. He was her height (5’3”) and wore a black or navy blue New York Yankee baseball cap and a dark blue t-shirt. [Note: Mrs. Calero testified that Thaddeus was about the height of the assailant.]

THADDEUS HAMILTON/ DEFENDANT

Bakersfield Police Officer Scott Carvel testified that after Thaddeus’ arrest, he continued to assert that he was Leon Smith for about an hour. Officer Carvel testified that his hair was very short and in pin curls. He had a short goatee on his chin. Subsequent to his arrest and before the line-up and preliminary examination, Thaddeus had changed his hairstyle and shaved off his goatee.

Personal Witnesses

ESSIE B. testified that she had had sexual relations with Thaddeus in July, 1985, and that she had contracted venereal diseases from her contacts with him. [Note: Thaddeus had motioned for discovery of records of the Kern County Health Department, which would indicate that Thaddeus had had a venereal disease which was not contracted by the sexually molested women. Respondent opposed this motion on the ground that the information was privileged. The court adoped the reasoning of Respondent and denied Thaddeus’ motion to the extend he sought the records of Ms. B., but allowed Thaddeus to obtain his own records.] Thaddeus had never asked her to have anal intercourse with him or to orally copulate him. He never appeared interested in anything other than “straight” intercourse.

MICHELLE B. testified that she was a girlfriend of Thaddeus and lived with him at this uncle’s house for a short time in July, 1985. Thaddeus had very few belongings and did not have a bicycle, a blue baseball hat with letters on it, blue jeans or tennis shoes. He had never asked her to have anal intercourse with him or to orally copulate him. He never appeared interested in anything other than “straight” intercourse.

THADDEUS testified in his own behalf. He is 6’1” and has tattoos under his left eye and on both arms, that have been there since before these two incidents. In May, 1985, he had no goatee but did have a mustache. He also has a missing tooth on the upper left side of his mouth and a chipped tooth next to the missing one.

He had been in prison for a different crime and was released in May, 1985. At that time, he had a pair of creme colored khaki pants and a white dress shirt with long sleeves and blue stripes in addition to a pair of black work shoes. Between May and the time of his arrest, he obtained a few more items of clothes. He did not own any hats. Besides, upon his release he had gotten a permanent on his hair and a hat would have destroyed the style from the permanent. Because he had so few shirts, he washed the blue one every other day. He did not own any tennis shoes. He owned the black pants which were in evidence and had cut them into shorts in June. He did not have a gun or yellow jersey shirt. He sometimes borrowed his cousin’s one speed bicycle.

Thaddeus had told the police he was Leon Smith because he was on parole and was not supposed to be around other parolees, which both other occupants in the car were. He had shaved his face before knowing the details of these crimes.

Thaddeus denied committing the crimes for which he was tried. He could not recall what he had done on July 18th. He knew that on July 21st, he had gone to the park for a free concert.

At the time his relationship with Michelle B. ended. Thaddeus resumed his relationship with Alma A., whom he had been dating for more than three years. Ms. A. testified that she had been living with Thaddeus and was with him throughout the evening and night of July 21st. She had never seen him in possession of the types of clothing described by the witnesses to the two incidents or a bicycle such as had been described. As with his other female companions, she had only had very conversative intercourse with him.

Eyewitness Identifications – Expert Testimony

Dr. Robert Shomer, Ph.D., testified on behalf of Thaddeus. Dr. Shomer is a psychologist, qualified as an expert in the area of eyewitness identifications, i.e., the psychological processes which play a role in one individual’s identification of another. Dr. Shomer testified that people often describe having seen what they expected to see, rather than what they actually saw. In addition, people of one race often describe people of another race less accurately than people of their own race. The degrees of concentration and stress during a particular situation may affect a person’s perceptions and recollections. Thus, in situations where a gun has been used to threaten, people often concentrate on the gun and not on the face of the person using the gun. The memory also changes to make pieces fit together.

Dr. Shomer testified to those procedures that make photographic and live line-ups fair and those that bias the results. For example, in a photographic line-up, all the photographs should show the participants dressed alike. Further, when a witness testifies at a preliminary hearing, there is increased suggestability because only one possible suspect is present. Thus, by the time a witness testifies at trial, he or she has usually made a commitment to an earlier identification, even though it may be inaccurate.

In addition, when witnesses have experienced trauma, such as being victims in a crime, they generally perceive the perpetrator to be taller and bulkier than he or she actually is. Without the traumatic situtation present, most people will take little note of the facial characteristics of someone presenting himself for something as ordinary as directions.

Dr. Shomer felt that the procedure used with the photographic line-ups in this case may have caused distortion, albeit not deliberately, through subtle biases of officer Carvel, communicated to the witnesses. Further, the fact that, in the photographic line-up, only Thaddeus wore a blue “Izod” shirt, created an unfair situation, i.e., the identification was suggested by the photographs.

Criminalists’ Testimony

MR. GARY SIMS, a criminalist with a specialty in serological examinations, also testified. Mr. Sims analyzed the same materials that Ms. Rickard had analyzed. He determined there was insufficient semen on either the anal or vaginal swabs taken by Dr. Piirmann from Yvonne Alvarez to perform accurate tests. Based on other tests, he determined that it could not accurately be said whether the man who had attacked Yvonne had been a type A secretor. Since this result was different from Ms. Rickard’s, Mr. Sims analyzed her tests. He thought her methods had resulted in improper conclusions.

OFFICER SCOTT CARVEL also was called to testify as part of the defense. Officer Carvel testified that the shoes taken from Thaddeus at the time of his arrest did not match the shoes tracks taken at the scene of the July 18th incident.

BURTON MAHAN, a police officer with the City of Bakersfield also testified that he was one of the officers who investigated the July 18th incident. Officer Mahan took photographs of shoe tracks found at the scene of that crime.

JOHN TSITAKIS, a Bakersfield City Police officer, testified that he took the photographs of the soles of the shoes Thaddeus was wearing when he was arrested.

GREG HANVEY, another Bakersfield City Police officer, also testified. He was one of the officers who responded to the July 18th incident scene and interviewed the victims. Each of the four victims described the robber as a black male in his early twenties, 5’6” tall with a thin build and a goatee, wearing a blue and white cap and a yellow jersey, and carrying a chrome handgun. None of the victims described the robber as having a dark spot on his face or a problem tooth.

ARGUMENT

I. THE COURT IMPROPERLY BROADENED THE SCOPE OF EVIDENCE CODE SECTION 1238 TO ADMIT INTO EVIDENCE TESTIMONY WHICH WAS INADMISSIBLE HEARSAY

II. THE PHOTOGRAPHIC LINE-UPS WERE IMPERMISSIBLY SUGGESTIVE AND TAINTED ALL SUBSEQUENT IDENTIFICATIONS OF THADDEUS HAMILTON/ DEFENDANT.

III. THE COURT ERRED IN RULING THAT COLLATERAL ESTOPPEL APPLIED TO DEFENDANT’S PENAL CODE SECTION 1538.5 MOTION

IV. THE COURT ERRED IN DENYING DEFENDANT’S PENAL CODE SECTION 1538.5 MOTIONS

A. Standard of Review:
Upon exercise of the court’s independent judgement, it must reach the conclusion that the detention and search herein were constitutionally unreasonable.

B. Defendant Was Illegally Detained:
There Were Insufficient Facts To Form A Believe That Defendant Was Involved In Criminal Activity

C. The Search Of The Vehicle Violated The Fourth Amendment
There was No Probable Cause To Believe The Car Contained Contrabant When The Search Began

The extend of the officer’s knowledge, before he stopped Defendant, was that some traffic regulations had been violated by the driver of the car. The car itself was not identified with any criminal conduct, nor had he checked the license plates or observed that the plates on the front and back of the car were different.

Even assuming the stop was legal, the detention went beyond permissible bounds. The car appeared to be “hot-wired”, but the officer had access to the police computers to determine if it had been reported stolen. He did not do this until later and then determined it was not.

Such knowledge simply is insufficient and too vague to stop a car and intrude upon a citizen’s security and privacy, in violation of his constitutional rights, absent exigent circumstances indicating ongoing criminal activity. United States v. Hensley, supra, 105 S.Ct. 675.

In this case, the only facts known to the officer when he made his decision to stop Defendant was that traffic violations had occurred. Under that circumstance, and even upon suspecting a stolen vehicle, the officer had no grounds to detain Defendant. It was only after the illegal detention of the three men that the officer became suspicious that one of them misidentified himself.

V. THE JUDGEMENT MUST BE SET ASIDE ON THE GROUND THAT THERE IS INSUFFICIENT EVIDENCE TO SUSTAIN IT
THE VERDICT IS CONTRARY TO THE LAW AND THE EVIDENCE

VI. THE COURT FAILED TO EXERCISE ITS DISCRETION IN DENYING DEFENDANT’S MOTION FOR A NEW TRIAL

VII. CUMULATIVE ERROR REQUIRES REVERSAL

A. Rickard’s Testimony Re Fecal Matter Should Not Have Been Allowed
Striking It Was Insufficient

B. Striking Of Andrick’s Testimony Was Error

C. Prosecutorial Misconduct

This must have been a difficult case to ligitate for both Defendant’s trial counsel and the prosecutor. However, that is no excuse for the conduct of the prosecutor. “It is the prosecutor’s function to seek justice, not convictions.” Donovan, Prosecutorial and Judicial Misconduct (Cont. Ed. Bar 1979) Section 1.1, p.5. This simple statement goes to the core of our criminal justice system, it defines and limits the propriety of a prosecutor’s conduct during trial. The prosecutor overstepped the limits in this case.

The instances of misconduct before the jury were many. The prosecutor deliberately showed the entire tattoo on Defendant’s arm to a witness, knowing only the very bottom portion had been seen by witness.

He deliberately attempted to bring inadmissible hearsay and unqualified opinion testimony before the jury.
He also tried to put words in a witness’ mouth, to the extend that the trial court even mentioned it. Although isolated instances of such misconduct rarely require reversal, this type of repeated conduct must be considered in determining the prejudicial affect of any single incident. See, e.g., Locken v. United States, 383 F.2d 340 (9th Cir. 1967).

The prosecutor refused to excuse for cause an employee of the Sheriff’s Department who would be called upon to judge fellow employees who performed the same tasks as the venirement. He also opposed excusing for cause a potential juror who stated he understood no more than 75% of the happening in the courtroom.

Defendant had to motion for a mistrial twice based on the prosecutor’s reference, in violation of an order in limine, to evidence having been out of the People’s presence for a six month period.
Defense counsel cited the prosecutor for prosecutorial misconduct.
The Standard of review on this issue is, “if the prosecutor had refrained from misconduct, is it reasonably probable a result more favorable woudl have occurred?” People v. Bolton (1979)23 Cal.3d 208, 214; People v. Beivelman (1968) 70 Cal.2d 60,75. Considering the multiple instances of misconduct and their cumulative effect, that question must be answered in the positive. Reversal is required.

D. Judicial Misconduct

With all due respect for the trial judge, his negative attitude toward Defendant’s counsel contributed to the denial of a fair trial.

In People v. Fatone (1985) 165 CA3d 1164, 1170-1181, the Fourth District Court of Appeal soundly critized a trial judge for his inappropriate and improper admonishments of the defense councel’s competence, honesty and ethics. The record revealed a pattern of insidious behavior which was not repeated toward the prosecutor.

Clearly, the conduct complained of here is not as serious a that evidenced in Fatone. However, in a case where evidence of guilt is not overwhelming, such as here, “…the possibility that judicial appearance of bias could have prejudiced the jury against defendant is too strong to be ignored.” People v. Hefner (1981) 127 CA3d 88, 92-95. Sarcastic, cautic remarks which show disrespect for defense counsel leave the same impression on the jury as if the judge had actually referred to the questions and objections as “silly”, “idiotic”, or “trivial”. People v. Mahoney (1927) 201 Cal. 618, 624.
Here, the court made just such comments.

E. Motion To Exclude Blood Typing Evidence

Defendant unsuccesfully motioned to exclude evidence of any blood-typing or blood comparison based on semen or other body fluids on the grounds that such did not meet the Kelly-Frye test of scientifically acceptable evidence. The evidence did not satisfy the requirements as set forth in People v. Dellinger (1984) 163 Cal. App.3d 284, 296, in that there was insufficient showing that proper procedures had been utilized.

In opposition, the People argued that, pursuant to People v. Lindsey (1978) 84 Cal. App.3d 851, allowed the testimony. However, Lindsey allows such test results to be admitted only where there is independent evidence tending to show that the man who committed the crime lost blood or that the defendant was present at the crime scene. There was no such evidence here and the evidence should have been excluded.

F. Miscellaneous Evidentiary

There were several times when the trial judge failed to respond to objections or responded inappropriately. For example, Mrs. Alvarez was testifying, Defendant’s counsel objected on the ground that the questions had been asked and answered. Both the prosecutor and the court said that was true, but the objection was overruled. There were also times when the court simply failed to respond to Defendant’s objections.

Finally, the court allowed Officer Carvel to testify to the number of days’ growth of beard Defendant had at the time his photograph was taken. There was absolutely no foundation for this testimony. This testimony went to the validity of the witnesses’ failure to identify Defendant during the photographic line-up and, therefore, was critical.

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Fighting for justice is a very exhausting and often also a very frustrating long term struggle. Thaddeus Hamilton is very grateful for everything Attorney Estelle A. Schleicher was doing to help. She was Hamilton’s court appointed appellate attorney and she truly did what she was able to. Thaddeus Hamilton needs people like Attorney Schleicher, an investigator, and a DNA expert.

Documents

Trial Transcripts (1758 pages)

General Index, Witness Index, Exhibit Index (pdf, 12 pages)

Motions in Limine (pdf, 62 pages)
July 24, 1986
contains Vernon Kyle’s (head of the Kern County Sheriff’s Criminalistics Lab)
and Richard Ung’s (Lab Technician with the Bakersfield Police Department) testimony

Motions in Limine (pdf, 51 pages)
July 28, 1986

Motions in Limine (pdf, 12 pages)
July 30, 1986

Motions in Limine (pdf, 6 pages)
August 6, 1986

Opening Statement on Behalf of the People (pdf, 18 pages)
August 6, 1986

Cause Continues on Behalf of the People (pdf, 54 pages)
August 6, 1986
Sara Alvarez’s testimony

Cause Continues on Behalf of the People (pdf, 124 pages)
August 7, 1986
Sara Alvarez’s,
Felix Calderón’s and
María Imelda Calderón’s testimony

Cause Continues on Behalf of the People (pdf, 85 pages)
August 11, 1986
María Imelda Calderón’s and
María del Carmen Calero’s testimony

Cause Continues on Behalf of the People (pdf, 153 pages)
August 12, 1986
Yvonne Giselda Alvarez’s,
Felix Calderón Jr.’s,
Leyton Calderón’s and
Andrik Calderón’s testimony

Cause Continues on Behalf of the People (pdf, 143 pages)
August 13, 1986
Billie Jo Blount’s and
DeWayne Blount’s testimony

Cause Continues on Behalf of the People (pdf, 161 pages)
August 14, 1986
Catherine Kibbey’s (of the Bakersfield Police Department),
Leonard Paul Prudhomme’s (police officer with the Bakersfield Police Department),
Mike Reed’s (officer with the Bakersfield City Police Department),
Jeff Lopeteguy’s (officer at the Bakersfield City Police Department),
DeWayne Blount’s,
Pamela J. Mosier’s (medical records custodian for the San Joaquín Hospital),
again: DeWayne Blount’s,
Bruce Marshall’s,
Margaret Piirmann, M.D.’s (medical doctor in San Joaquín emergency room) and
again: Bruce Marshall’s testimony

Cause Continues on Behalf of the People (pdf, 127 pages)
August 18, 1986
Bruce Marshall’s
Scott Carvel’s (detective of the Bakersfield Police Department),
Stella Petty’s (custodian of records of the Kern County Sheriff’s Department)and
again: Scott Carvel’s testimony

Cause Continues on Behalf of the People (pdf, 143 pages)
August 19, 1986
Bernadetta Merlo Rickard’s (criminalist with the Kern County Sheriff’s Department),
Dr. Robert William Shomer’s (psychologist) and
again: Bernadetta Merlo Rickard’s testimony

Cause Continues on Behalf of the People (pdf, 118 pages)
August 20, 1986
Bernadetta Merlo Rickard’s,
Gary Alan Sims’ (criminalist at the Institute of Forensic Sciences Criminalistics Laboratory) and
Gregory Laskowski’s (criminalist with the Kern County Sheriff’s Department) testimony

Cause Continues on Behalf of the People (pdf, 118 pages)
August 21, 1986
Bernadetta Merlo Rickard’s,
Richard Ung’s (lab technician with the Bakersfield Police Department) and
Scott Carvel’s testimony

Opening Statement on Behalf of the Defendant (pdf, 9 pages)
August 21, 1986

Cause Continues on Behalf of the Defendant (pdf, 51 pages)
August 21, 1986
Essie Belk’s,
Burton N. Mahan’s (police officer, City of Bakersfield),
John Tsitakis’ (city police officer for the City of Bakersfield) and
Greg Hanvey’s (police officer for the Bakersfield Police Department) testimony

Cause Continues on Behalf of the Defendant (pdf, 95 pages)
August 25, 1986
Michelle Butler’s and
Thaddeus Dale Hamilton’s testimony

Cause Continues on Behalf of the Defendant (pdf, 54 pages)
August 26, 1986
Alma Marie Andrews’,
Scott Carvel’s,
again: Alma Marie Andrew’s,
and Thaddeus Dale Hamilton’s testimony

Opening Argument on Behalf of the People (pdf, 22 pages)
August 26, 1986

Argument on Behalf of the Defendant (pdf, 43 pages)
August 26, 1986

Closing Argument on Behalf of the People (pdf, 20 pages)
August 26, 1986

Closing Argument Continues on Behalf of the People (pdf, 14 pages)
August 27, 1986

Jury Instructions, Verdict and Sentencing (pdf, 62 pages)
Jury Instructions (August 27, 1986)
Verdict (August 28, 1986)
Sentencing (September 25, 1986)

Statement of the Judge during Sentencing (pdf, 1 page)
September 25, 1986
Trial Transripts, page 1743, line 24-25:
The Court: “In any event, I don’t think it is the verdict which I would have arrived at.”

Legal Correspondence & Court Order that Trial Exhibits Not Be Destroyed (pdf, 33 pages)

Findings and Recommendations RE: Respondent’s Motion to Dismiss (pdf, 8 pages)
United States District Court
Eastern District of California
September 30, 1998