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Name: In re Sodersten
Case #: F047425
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 01/17/2007

Petitioner Sodersten, was convicted in 1986 of murder. A jury also found true the special circumstance that the murder occurred during the attempted commission of rape. Although the prosecutor sought the death penalty, the jury returned a verdict of life without the possibility of parole. The prosecution’s case at trial relied primarily on the testimony of two witnesses, Nicole W., the victim’s daughter, and Lester W.. Nicole was three years old at the time of her mother’s murder and just shy of her fifth birthday when she testified. At trial she identified petitioner as the man she saw “putting fire on her mommy.” However, the evidence showed that she initially identified Mark D., the victim’s alcoholic and abusive boyfriend, as the murderer. Lester W. was a substance-abusing acquaintance of both the victim and petitioner, whose fingerprint was found on a beer can in the victim’s apartment. Lester testified that he saw petitioner attack the victim after she rejected his amorous advances. The evidence at trial showed that Lester had previously told police that he was not present at the time of the murder and did not know who did it. Petitioner’s direct appeal and initial habeas corpus petition were rejected by the Court of Appeal in 1988. Petitioner filed a subsequent habeas petition in the Court of Appeal in 1998. The Court of Appeal issued an order to show cause and ordered that counsel be appointed. During appointed counsel’s investigation of the case, as a result of discovery requests he obtained four audiotape recordings that had not previously been disclosed to the defense. Two tapes received from the prosecutor were recordings of the prosecution’s efforts to prepare Nicole to testify shortly before trial. In these two tapes the prosecutor and his investigator could be heard attempting to get Nicole to identify (from photographs) petitioner as “the bad Mark” who killed her mother. Although they eventually succeeded in these efforts, the tapes show that Nicole initially was unable to identify petitioner as the perpetrator and that she had to be led by Cline’s and Johnson’s highly suggestive questioning before she was able to provide the inculpatory statements she subsequently made at trial. He also received two tapes from police which involved Lester W. In the first tape – recorded a few days after Lester identified petitioner as the killer – Lester recants his prior identification of petitioner as the murderer, telling police that he could not remember what happened the night of the murder because he was loaded on PCP. The second tape was a surreptitiously recorded conversation between Lester and petitioner in which Lester admits that his identification of petitioner to the police was a lie. In addition to these tapes, petitioner introduced, at the evidentiary hearing on the writ, expert testimony that the prosecution’s coaching of Nicole tainted her testimony against petitioner and that Nicole’s original statement to police that Mark D. was the killer was the most reliable of her statements about who killed her mother. Following the trial court’s denial of the habeas petition, petitioner refiled the petition in the Court of Appeal, the same counsel was reappointed. While the writ proceedings were pending in the Court of Appeal, petitioner died in prison. The People moved to dismiss the petition as moot. The Court of Appeal denied the motion and granted the writ, vacating the judgment of conviction, and directing the trial court to enter an order permanently abating all proceedings in the cause. The suppressed tape recordings were material under Brady v. Maryland (1963) 373 U.S. 83, because they cast substantial doubt on the credibility of the testimony of the prosecution’s two main witnesses and thus undermined confidence in the outcome of petitioner’s trial. The case was not mooted by petitioner’s death because the case involves a matter of “general public concern … in the area of the supervision of the administration of criminal justice.”