The stroke-impaired woman named as the victim in
a rape case against a Sacramento police officer appeared at times to be
competent in her interviews with investigators, a judge said from the bench
Tuesday.
As a result of his finding, Sacramento Superior
Court Judge Patrick Marlette said it will be up to the fired ex-cop to show
whether the statements of the woman he is accused of raping are unreliable and
inadmissible in his preliminary hearing.
Marlette made his finding on the fourth day of
the hearing to decide if Gary Dale Baker must stand trial for the alleged
sexual attacks on the woman in November 2010 and September 2012.
Baker, 50, is accused in a 12-count complaint of
the purported assaults on the woman who was 75 and then 77 years of age and
disabled by speech aphasia as a result of her stroke.
In a competency hearing earlier this year, Judge
Cheryl Chun Meegan ruled the alleged victim was not able to testify reliably at
trial and that no accommodations were available to help her out.
Defense attorney Linda Parisi filed an objection
last week at the outset of Baker’s preliminary hearing to block any police
officer hearsay testimony based on statements the woman gave to investigators.
Police hearsay testimony is admissible in
California for the preliminary hearing’s purpose of determining if there is
probable cause to hold a defendant for trial. The issue almost certainly will
be replayed if and when the case is bound over for trial, when far more
restrictive standards on the admissibility of hearsay testimony would come into
play.
Judge Marlette has not ruled yet on the
admissibility of the investigators’ hearsay statements, but he said that based
on his review of their videotaped conversations with the woman, it looked like
she was fairly understandable about half the time.
“There is evidence that has been produced that
supports competence,” Marlette said from the bench.
Parisi has said in court papers that Judge
Meegan’s July 1 ruling already has determined that the woman is incompetent to
testify. The presumption, Parisi argued, should be that the alleged victim was
no more competent when police interviewed her after the assaults that allegedly
took place on Nov. 24, 2010, and Sept. 20, 2012.
Marlette, however, made a distinction between
the alleged victim’s competence when she was examined by a neurologist earlier
this year for the purpose of Meegan’s ruling and how the woman appeared to have
come off during the 2010 and 2012 conversations with police that were the basis
of his observations of her.
She “seems to have slipped,” Marlette said, from
the earlier interviews with the police to the later one with UC Davis
neurologist Dr. Sarah Tomaszewski Farias.
“In our case,” Marlette said, “we have a
progressive incompetence.”
When Marlette gave his opinion on the woman’s
performance during the police interviews, the startled defense attorney asked,
“Is that a finding?”
“Yes,” Marlette said, to which Parisi replied,
“I’m absolutely shocked and surprised.”
Baker’s preliminary hearing is scheduled to
resume Monday and continue on Tuesday and Thursday of next week.
Four officers already have testified in the
hearing about their interview sessions with the woman, whose 2009 stroke left
her with speech aphasia, a condition that inhibits a person’s verbal and
written communication abilities.
Officer Matt Armstrong, who interviewed the
woman in the presence of some of her family members, said she “would use her
hands and we would come up with a concept she seemed to agree with,” to get her
take on what happened to her.
When Parisi asked Armstrong for the specific
words she used in his interview, the officer said, “It’s very possible she gave
me five words, 20 words, 40 words … (and) I filled in a story like I do on all
calls. It was just tougher on this one.” Armstrong added later, “I can’t tell
you yes or no on the exact words she used.”
Detective Joyce Thorgrimson, who is now a
district attorney’s investigator, said the woman indicated what the suspect did
to her and that she “made kissing gestures” to demonstrate his actions. She
also touched herself where she had indicated the suspect did and that she
demonstrated how he placed her on a couch and removed her clothing.
“She was miming it,” Thorgrimson testified.
In his testimony last week, Detective Andrew
Newby said, “It was extremely difficult to communicate” with the woman. He said
it was his impression “she was able to understand very simple yes and no
questions.”
Newby said she simulated that her blouse had
been removed, and “her facial expression was snarled at that point, and she was
repeating ‘no, no.’” The woman took investigators into a bedroom to give them a
further demonstration of what they believe she wanted them to know about what
the suspect did to her.
Marlette’s finding that the woman at times
appeared to be competent means Baker must carry the burden of proof in the
preliminary hearing to show the unreliability of her communications with the
police.
Parisi protested that it’s unfair for her to now
have to show the level of the alleged victim’s competence for each specific
statement, after she’s already cross-examined the key police witnesses.
The judge disagreed, saying the “vast bulk” of
her cross examination, in his view, “has been attacking the reliability and
credibility of those statements” by the alleged victim. Marlette invited the defense
attorney to present any evidence she wants that the woman was not competent
when she made the statements.