Appellant, William Satele, Reply Brief - California Courts - State of ...

VII
THE TRIAL COURT ERRED IN ALLOWING THE
PROSECUTION TO PRESENT TESTIMONY THAT
LAWRENCE KELLY OFFERED A WITNESS $100
TO TESTIFY THE WEST SIDE WILMAS "GET ALONG"
WITH AFRICAN-AMERICANS. THIS ERROR DEPRIVED
APPELLANT OF DUE PROCESS OF LAW AND A
RELIABLE DETERMINATION OF THE FACTS
REQUIRED BY THE EIGHTH AMENDMENT
IN A CAPITAL CASE
The trial court erred in overruling the defense objection to the testimony of
prosecution witness Glenn Phillips to the effect that Lawrence Kelly offered
Warren Battle $100 to testify that members of the West Side Wilmas Gang "get
along" with African-Americans.
A. Appellants Have Not Forfeited This Claim.
Respondent claims the constitutional aspects of this issue are forfeited
because they were not raised at trial. (RB at p. 197.) Under the principles
discussed more fully above (ante, at pp. 21-27), this issue is not waived.
Appellate courts have the power of to review an issue in spite of a party's failure
to perfectly preserve that issue; there is an exception to the waiver rule regarding
issues relating to the deprivation of fundamental, constitutional rights; and there is
another exception to the waiver rule that provides that an objection may be
excused when the issue involved is a pure question of law. Finally, because, as
noted above, whether the waiver rule is to be applied is largely a question of the
appellate court's discretion, this court should address the constitutional aspects of
this issue.
B. Phillips' Testimony Was Not Proper Rebuttal Evidence.
The first flaw in respondent's argument is respondent's failure to address
the rule discussed in Appellant's Opening Brief (AOB at p. 158), that "[a] party
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