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Opening the Door on Character Evidence (Evidence Code 1102(a))?
Munir Mtanews Hawara owned a liquor store called Tyler Market on Tyler Street in Riverside. He hired Willis Simmons for $10,000 to burn down a rival liquor store, Sunny’s Liquor Store that was kitty-corner to his store, but Mr. Simmons tried once and failed with a poorly devised Molotov cocktail. Hawara was allegedly mad at the owner of Sunny’s for “taking all his customers” by lowering its beer prices.
In a Nutshell: Character evidence is generally inadmissible to prove specific conduct in the past, however, when a witness unexpectedly testifies about a general character trait, the prosecutor is free to cross-examine that character evidence because the witness “opened the door” to allow such cross-examination.
Mr. Simmons then subcontracted the job to Randy “Psycho” Ramirez, who tried three times to burn down the rival liquor store by pouring gasoline through a mail slot and igniting it and tossing a Molotov cocktail at the store, but also failed. The scheme was exposed when Simmons’ sister contacted the police.
Police then arrested Hwara and he was charged, as well as convicted, of four counts of arson of a structure (Penal Code § 451(c)). On all four counts, state of emergency enhancements were found true (Penal Code § 454(a)(2)) due to a drought in California. On two counts, accelerant device enhancements were found true (Penal Code § 451.1(a)(5)). Judge Bernard J. Schwartz sentenced Hawara to eleven years and eight months in state prison.
Riverside Superior CourtIt merits mention that Willis Simmons and Randy “Psycho” Ramirez each pleaded guilty separately to two counts of arson.
Hawara appealed his conviction to the Fourth Appellate District, in People v. Munir Mtanews Hawara (2021 DJDAR 2178), on several issues. On one issue, he argued on two grounds, one involving judicial error and one involving ineffective assistance of counsel, but both related to the prosecution cross-examining character witnesses Hawara presented.
Hawara called Nolan Bryeans and Rene Torner to testify, at least in part, as character witnesses. Bryeans testified that, in his opinion, based on his experience and also based on his discussions with others, that Hawara was honest and trustworthy.
On cross-examination, the prosecutor asked Bryeans , “Would it change your opinion at all if you knew that defendant had offered money to someone else to beat up an owner of another liquor store?” She also asked, “Would it change your opinion if you learned that defendant offered money to someone else to damage or destroy another’s property?”
Torner similarly testified and was cross-examined in a similar manner. Defense counsel did not object at any point to these questions.
Hawara argued on appeal that it was judicial error to allow such questioning and ineffective assistance of counsel for his attorney not to object to the line of questioning.
The Fourth Appellate District disagreed with Hawara. It explained that in a criminal action, defendant may introduce evidence of his or her good character (Evidence Code § 1102(a)). Such evidence may be in the form of a witness’ own opinion, based on the witness’ perceptions, or in the form of the defendant’s reputation, based on what the witness had heard from others. Id., see also Evidence Code §§ 800, 1324.
It should be well understood, however, that once a witness testifies on direct, to the defendant’s good character, it “opens the door” to a common and accepted method of cross-examination to ask whether the witness is aware of instances of the defendant’s bad character. A variant of this is to ask, as in this case, whether the witness’ opinion would change if the witness became aware of instances of the defendant’s bad character.
Hawara argued that the judge should not have permitted, and his attorney should have objected, to the questioning that started “would it change your opinion if you knew . . .” Hawara argued that the only format of cross-examination permitted is to ask “if you heard” about some instance of bad character.
The Fourth Appellate District’s response to this argument was guarded. It agreed that such a format is the only correct method if a witness testified about a person’s reputation based on what he or she had heard from others.
However, when the witness testifies to his or her own opinion, based on his or her own perceptions, it is acceptable to cross-examine the witness by asking “if you knew.” People v. Lopez (2005) 129 Cal.App.4th 1508.
We find that often, such testimony about character is blended between what one heard from others (reputation) and what one personally observed, so the “if you knew . . .” line of questioning is appropriate. We present this summary because many of our clients are eager to present character evidence and there are rather subtle certain rules on cross-examination that must be followed.
The citation for the Fourth Appellate District Court ruling discussed above is People v. Munir Mtanews Hawara (4th App. Dist., 2021) 61 Cal. App. 5th 704, 276 Cal. Rptr. 3d 26.
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