Gaines

In this case we hold that a prosecutor commits misconduct when he purports to tell the jury why a defense witness did not testify and what the testimony of that witness would have been.

Background

The victim, John Rutledge, testified that he was riding his bicycle home from work about midnight. Near the comer of Tennessee and Tuolumne streets in Vallejo, two young Black men on foot approached him. The men began punching Rutledge in the face, knocking him off his bike. The hitting continued as the men demanded that Rutledge “Give me the bike.” The men took his bike and went down Tennessee Street. Within five minutes Rutledge found Officer Delagadillo several blocks down Tuolumne Street and reported the theft.

Within a minute of hearing a radio broadcast about the attack, Officer Herndon saw two Black men riding bikes turn off Tennessee Street. Defendant Maurice Gaines was one of the two. When the two riders separated, Herndon stopped the one who was not defendant. Shortly thereafter Officer Delagadillo drove over with Mr. Rutledge, who identified the suspect as one of the attackers. Rutledge also identified as his the bike the man had been riding. Just then another…