Murder Conviction Overturned By Appeals Court
INDIO -A panel of the Fourth District Court of Appeals overturned a second-degree murder conviction for a homeless man accused of killing an 85-year-old retired Orange County attorney during a paid sexual tryst, a prosecutor confirmed today.
Michael Anunciation, 49, was convicted in October 2008 of second-degree murder in the Sept. 30, 2006 strangulation killing of Garvin F. Shallenberger, who was onetime president of both the State Bar of California and the Orange County Bar Association, at his Palm Desert vacation trailer during a paid sexual tryst.
Anunciation was sentenced to 17 years to life in state prison.
In July 2008, an earlier jury deadlocked on whether to convict Anunciation of second-degree murder or voluntary manslaughter, prompting a judge to declare a mistrial.
On Tuesday, a three-judge panel of the Court of Appeal, Fourth District in San Diego overturned the conviction, said Deputy Attorney General Donald Ostertag.
The panel unanimously ruled that Riverside County Superior Court Judge James Hawkings wrongly allowed a pathologist from the Riverside County Coroner’s Office to testify about the findings of Shallenberger’s autopsy.
The panel ruled that the findings of Darryl Garber, who conducted the autopsy as a contract pathologist for the county, were “critical” to the prosecution’s case because it proved that Anunciation intended to kill Shallenberger.
Because Garber’s findings showed Anunciation’s intent, Anunciation had a sixth amendment right to confront the pathologist.
Joseph Cohen, chief forensic pathologist for Riverside County, testified at trial using Garber’s reports, even though he had not been present at the autopsy, according to the panel’s opinion.
Cohen “expressly relied on, conveyed and quoted the findings from the autopsy report in his testimony,” the opinion states.
The appellate court ruled that Cohen’s testimony violated Anunciation’s sixth amendment right to confront a witness, adding that the jury should have been able to weigh whether Garber’s credibility, perceptions and abilities were accurate, not Cohen’s.
Anunciation’s trial lawyer, Deputy Public Defender David Prendergast, contended during the trial that Anunciation was the paid sex partner of the retired attorney. He said his client grabbed Shallenberger when the lawyer bit him during oral sex, but did not strangle him.
Deputy District Attorney Lisa DiMaria had argued that the autopsy showed that Anunciation intended to kill Shallenberger, pointing to testimony from Cohen that the attorney’s killer “used a significant amount of force for a sustained period of time,” according to the opinion.
Cohen testified that Shallenberger was beaten five to 10 times and then manually strangled to death, the opinion states. Cohen also said that Shallenberger’s injuries were not consistent with a reaction by someone who had been bitten while receiving oral sex.
According to the opinion, the prosecution did not show any other evidence of Shallenberger’s injuries, apart from one photograph showing injury to his head.
The panel ruled that without Cohen’s testimony, Annunciation could not have been convicted beyond a reasonable doubt, the opinion states.
The case will be sent to the Riverside County District Attorney’s Office, where we’re told he will be re-tried.
