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Name: People v. Murillo
Case #: B246522
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 11/13/2014

Trial court should have granted a mistrial where prosecution asked over 100 leading questions of a witness who refused to testify. During Murillo’s trial for first degree murder, the prosecution called Valencia, an eyewitness who had identified Murillo as the shooter, to testify. Valencia refused to testify, stating “I’ve got nothing to say.” Over defense objections, the trial court then allowed the prosecutor to ask 110 leading questions about Valencia’s out of court statements and to display the photographic lineups on which he had written that Murillo was the shooter. A motion for mistrial was denied, and the jury convicted Murillo of murder and other related offenses. Murillo appealed. Held: Reversed. A trial court should grant a mistrial when it is informed of prejudice that is incurable by admonition or instruction. In this case, the trial court denied Murillo his right to confront witnesses and irreparably damaged his right to a fair trial when it allowed the prosecutor to ask Valencia unlimited leading questions. Valencia’s refusal to answer questions while the prosecutor read the jury his police interviews was tantamount to devastating adverse testimony. The statements constituted the only eyewitness identification of Murillo and the independent evidence of his guilt was not strong. Further, Valencia’s identification was equivocal until he was arrested and offered leniency if he cooperated with police in investigating the shooting. Murillo’s inability to confront Valencia’s statements rendered his trial fundamentally unfair. Jury instructions that cautioned the jury not to consider the prosecutor’s questions as evidence did not overcome the extreme prejudice to Murillo.