Is Failure to Testify Overt Act, Accessory After Fact?
The Gist of this Article: Refusing to testify cannot be considered an overt act sufficient to constitute being an accessory after the fact, as the following case exemplifies, but it can constitute contempt of court.
In 2006, Ms. Partee, when 21, reported her rental car stolen. The rental car company directed her to file a claim with the Hawthorne Police Department. When she arrived at the Hawthorne Police Department, detectives from the Los Angeles Police Department met her and drove her to the office of a homicide detective.
The detectives explained that they had found the rental car abandoned in a housing complex with bullet holes. Detectives believed it was connected to a murder that happened there the prior evening. The homicide detective then interviewed Partee surreptitiously. When the interview was over, Partee asked if what she told the detective was “off the record.” The detective assured her it was, but asked her if she would testify to such facts if asked to in court. Partee said no because she lived in an area with a strong gang presence and needed to protect her family.
Partee’s statements implicated her own brother, Nathan Robinson, her cousin, Toyrion Green, and her friends, Bryant and Byron Clark, in the murder.
Despite the detective’s assurances that she would not be subpoenaed to trial, the District Attorney did so. After Partee could not be found, charges against the four were dismissed. This was 2008.
In 2015, police found Partee. She was subpoenaed and then held in custody as a material witness. At the preliminary hearing, the prosecutor told the judge that he intended to offer Partee use immunity if she testified. Partee declined to testify. The judge then held her in contempt.
The murder charges were dismissed a second time. The judge held Partee in custody as a material witness for seven and a half months.
The jury convicted Partee on all counts, but did not find true the gang allegations.
The judge sentenced Partee to one year in county jail with credit for time served and placed her on three years of formal probation.
Partee appealed her conviction to the Second Appellate District, arguing that the prosecution had not proven she refused to testify to help the defendants. Partee argued she did so to protect her family. However, the Second Appellate District affirmed the convictions.
Partee then appealed to the California Supreme Court, which reversed the accessory after the fact convictions, but affirmed the contempt conviction.
The Supreme Court reminded the reader that refusing to testify in the face of a subpoena, absent a valid reason, is a misdemeanor offense under the statute punishing contempt of court. Penal Code § 166(a)(6).
However, criminal liability as an accessory, is defined under Penal Code § 32, which states, “[e]very person who after a felony has been committed, harbors, conceals or aids a principal in such a felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony.”
While the Supreme Court acknowledged there was no dispute Partee knew that a felony had been committed and intended to help defendants when she refused to testify, she did not harbor, conceal or aid the principals. Aiding a principal, as the statute was intended, described overtly or affirmatively assisting the principals or to further their crime. It did not contemplate passive conduct such as refusing to testify. Therefore, the court of appeal ruling was reversed as to the § 32 convictions.