In re Anderson
Filed 6/17/13 In re Anderson CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION THREE
In re
WILLIAM
FRENCH ANDERSON,
on
Habeas
Corpus.
B232746
(Los
Angeles County
Super. Ct.
No. BA255257)
ORIGINAL
PROCEEDINGS in habeas corpus. Michael E.
Pastor, Judge. Order to show cause
discharged; petition for writ of habeas corpus denied.
Douglas
W. Otto for Petitioner.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Assistant Attorney General, Linda C. Johnson and Blythe J. Leszkay,
Deputy Attorneys General, for Respondent.
Petitioner William
French Anderson was the appellant in Pe
years and three counts of lewd act with a child under the age of 14 years. (Pen. Code, §§ 288.5, 288, subd.
(a).) In addition to the appeal from the
judgment, Anderson filed this writ petition to raise ineffective assistance of
counsel issues. After ordering the
petition and the appeal to be considered concurrently, we severed the matters
to prevent further delay of the appeal.
We now consider Anderson’s claim counsel rendered ineffective assistance
in failing to challenge
the admissibility of a secretly recorded conversation in which the victim
confronted Anderson and requested an apology for his years of abuse. We issued an order to show cause. Upon review
of the evidence in the
record and before us by declaration, we conclude an
the petition and discharge the order to show
cause.
From
doctor and the founder and director of a genetic research laboratory, sexually
molested the daughter of an employee of the laboratory from the time the child
was in the fourth or fifth grade until the ninth grade. Anderson coached the victim in competitive
karate; she won national karate competitions when she was in the fourth and
fifth grades in 1997 and 1998. He also
assisted her academically. However, they
frequently were alone together and he regularly committed lewd acts upon her. The victim’s testimony was generic in that
she testified generally about a continuing course of misconduct. E-mails Anderson sent her after the abuse
ended but before she decided to report him in April of 2004 corroborated her
testimony. Because Anderson indicated in
his e-mails he would apologize to her in person, she agreed to meet him outside
a public library while carrying a recording device provided by detectives. On July 1, 2004, she surreptitiously recorded
a conversation in which she angrily confronted Anderson and asked why he had
molested her. At trial, Anderson claimed
the apologies in his e-mails
were for applying excessive pressure on her to succeed and at the library she
was on the verge of going out of control and he was willing to say
whatever was necessary to calm her.” (
v. Anderson, supra, 208 Cal.App.4th at p. 856.)
On
appeal, Anderson claimed the trial court erroneously excluded evidence of his
conduct after the library confrontation, particularly, that he and his wife
wrote a four-page letter dated July 4, 2004, to Anderson’s friend, San Marino
Police Chief Arl Farris, in which they reported the victim falsely had accused
Anderson of sexual molestation in November of 2003 and expressed their fear she
had descended into drug abuse and might try to extort money from them. We found no reversible error in the exclusion
of this evidence as hearsay and under Evidence Code section 352. We also rejected Anderson’s claim that
application of these rules of evidence infringed upon his constitutional right
to testify in his own behalf. Moreover,
any error was harmless as Anderson testified
fully with respect to all aspects of the case, including the e-mails and the
recorded conversation. We found evidence
related to Anderson’s conduct after the library confrontation was not critical
to his defense and admission of the evidence would not have altered the outcome
of the case. We also rejected Anderson’s
claim the prosecutor unfairly exploited the exclusion of Anderson’s post
conversation conduct in argument to the jury.
Anderson now
contends defense counsel rendered
ineffective assistance in failing to challenge the admissibility of the
recorded conversation on authentication grounds (Evid. Code, §§ 1400-1402), in
failing to protect Anderson’s right to testify fully and credibly regarding the
library confrontation, and in failing to investigate indicia of alteration of
the recording.
title="">[1] He claims defense counsel should have known
the recording was incomplete or had been edited because there is a time
disparity of two or three minutes between the 12-minute recording of the
conversation and the lead detective’s case log, which indicates the library
meeting consumed approximately 14 minutes.
Also, the conversation starts awkwardly and Anderson told defense
counsel the recording did not include the initial portion of the conversation
in which the victim, Y., accused him of sexual molestation and he denied
it. Anderson further claims proper
investigation by defense counsel would have discovered anomalies in the
recorded conversation that were found by Anderson’s habeas experts. Anderson claims prejudice, asserting proper
investigation and an objection on authentication grounds would have, at
minimum, caused the jury to question the recording and the credibility of law
enforcement.
The success of
Anderson’s petition depends in great measure on his post-conviction declaration
in which he claims the recording of the library confrontation does not include
the first few minutes of the conversation in which Y. accused him of sexual
molestation and he denied it. Habeas
counsel commenced oral argument with an extensive quote from Anderson’s
declaration. However, Anderson’s claim
is inconsistent with Anderson’s statements to the police in which he insisted
the meeting lasted only three minutes and denied that Y. accused him of
molestation during the meeting.
Also, Anderson testified extensively at trial but never mentioned
this assertedly missing conversation. We conclude
Anderson’s claim of extensive unrecorded conversation is not credible.
Anderson’s further
claim defense counsel should have subjected the recording to an authentication
challenge based on various indicia of untrustworthiness, such as the time
disparity, the awkward start of the conversation and anomalies uncovered by his
habeas experts, is also unavailing. None
of the findings by the habeas experts or otherwise indicates the defense would
have prevailed on an authentication challenge.
Y. testified before the grand jury and at trial the recording
accurately reflected her conversation with Anderson. This testimony alone would have been
sufficient to authenticate the recording.
However, additional support for the admission of the recording is found in
the testimony of the deputy sheriff responsible for transferring the digital
file from the recording device.
Because it is
clear Anderson’s primary claim is not credible, and nothing in the asserted
indicia of untrustworthiness suggests the recording of the library
confrontation would have been excluded from evidence or substantially
denigrated in the eyes of the jury, Anderson is unable to demonstrate that any
of the actions he now asserts should have been undertaken would have resulted
in a more favorable outcome. (
668, 687-694 [80 L.Ed.2d 674].) We
therefore reject his claim of ineffective assistance of counsel, conclude no
evidentiary hearing is required, deny the petition and discharge the order to
show cause.
1.
The “time
disparity.â€
Entries
in Detective Ron Jester’s case journal for the day of the library confrontation
indicate Anderson arrived at the library at 1:25 p.m. and Y. walked into the
library after the conversation ended at 1:39 p.m. The actual recorded conversation is
11 minutes and 48 seconds long.
2.
Anderson’s
written and recorded statements.
In the letter to
Chief Farris dated July 4, 2004, Anderson stated the conversation lasted
approximately three minutes and began with Y. saying, “You ruined my
life.â€
On July 9, 2004,
in a recorded interview, Anderson told Detectives Duncan and Boyett the
conversation lasted approximately three minutes and Y.’s first words were, “You
ruined my life.†Before the grand jury,
Boyett testified that, during this interview, he asked Anderson whether, during
the meeting at the library, Y. mentioned “abusing her, molesting her, touching
her, anything like that†and Anderson responded, “No. No, that never came out.â€
On July 30, 2004,
Anderson told Detective Jester the library meeting was “real brief†and
estimated it lasted three minutes. When
asked to recount the conversation, Anderson said he came from behind and “said,
‘Hi, [Y].’ And she turned around with
this look of hate and said, ‘You ruined my life.’ †Anderson said he did not respond to that accusation. When told the meeting was not three minutes
long, Anderson stated, “Yes, it was.â€
Before the grand jury, Jester testified the meeting lasted “about 15
minutes.â€
3.
Anderson’s
declaration.
In a declaration
filed in support of his habeas petition, Anderson asserts that, upon his
release from custody on August 2, 2004, he received a copy of the “purported
transcript of the July 1, 2004 recording†and “immediately noticed†it “omitted the first part of the
conversation . . . .†Anderson
declared: “I wrote out in longhand my
best recollection of the omitted part of the conversation . . . . At the point where she showed me the cuts on
her arms, I became very upset and concerned, and the rest of the missing portion
is the closest I could remember:
“A: Hi, [Y.]!
“Y: You ruined my life!
“A: [Y.]?
“Y: Why did you molest me?
“A: Oh, [Y.], not again. You know I didn’t.
“Y: But you did ruin my life.
“A: [Y.], we’ve been through this and you know
I’m sorry. I thought you were better.
“Y: No, I’m worse. Look at my arm! [shows fresh
cuts on her arms]
“A: Oh my heavens.
“Y: You did this!
You kept pushing me and I begged you to stop. I don’t want to go to Harvard. I don’t want to be a scientist. I don’t want to be your protégée. Why didn’t you stop when I asked?
“A: I’m sorry. I’m sorry. I’m sorry.
(Long pause)
[I am not certain
of the exact order of each exchange from here on; also I may have forgotten
some exchanges]
“Y: That doesn’t help. I’m flunking all my classes. I’m flunking all my classes. It’s your fault. You’re just evil. (Pause)
“A: I’m so sorry.
I feel so guilty. I know I was
wrong. What can I do to help?
“Y: Make things better. (Long pause)
I’ve tried to kill myself.
“A: Oh, my God, [Y.]! (Long pause)
“Y: Why did you do it? Why did you do it?
“A: I’m so sorry.
I was just evil. (Pause)
“Y: Why?
Why?
“A: Like I said in my e mails: I was just horribly horribly
thoughtless. I thought I was making
you more successful. Oh, [Y.], I just
feel terrible. Just awful. I can’t comprehend why I was so
thoughtless. (Pause)
“Y: You started pushing me in 5th grade. 5th Grade!
“A: I made you a 2-time National Champion.
“Y: But you couldn’t leave it at that. You wanted me to be the National Champion
every year! That’s why I quit. Can’t you get that through your fucking
head? That’s why I quit!
“A: I’m so sorry.
What can I say? (Long
pause)â€
At this point, the
recorded conversation begins.
name="_ftnref3" title="">[3]
Anderson faxed his
description of the omitted conversation to his attorney, Barry Tarlow, and
shortly thereafter met with Tarlow to discuss the case.
document and explained “he did not want to be wedded to facts at the beginning
of the case . . . .†Anderson declared
that, during this meeting, he told Tarlow what had been omitted from the
transcript and that parts of the transcript differed from his
recollection.
In preparation for
trial, Tarlow told Anderson not to testify the beginning of the conversation
was missing from the recording in order to avoid cross-examination on this
point. Tarlow said it would hurt
Anderson’s credibility to claim the recording was incomplete without
independent proof the recording had been edited. Also, Tarlow told Anderson he would ask
whether Anderson knew the reason for Y.’s professed problems with
relationships, referenced during the recorded conversation. Tarlow hoped the prosecutor would follow up,
thereby permitting Anderson to testify he had information indicating Y. was
gay, which the trial court had ruled inadmissible. Had Tarlow asked, Anderson would have
testified Y. took a girl to the prom and was evasive about it. Also, Y. assertedly had an “odd relationshipâ€
with her best friend and seemed unusually anxious to please her.
Anderson declared
Tarlow never discussed with him the feasibility of a challenge to the recorded
conversation on authentication grounds or based on the time disparity.
4.
Litigation
with respect to the library confrontation.
On August 22,
2005, Hon. Terri Schwartz ordered the prosecution to produce the original
recording of the library confrontation and the police interviews of Anderson
conducted on July 9 and July 30, 2004, and the equipment used to make them for
examination by the defense expert in the presence of a representative of the
agency in possession of the equipment, subject to the prosecutor’s indication
the agency would claim the official information privilege under Evidence Code
section 1040.
On November 29,
2005, the defense filed numerous pretrial motions, two of which are relevant
here. One motion addressed the procedure
governing the assertion of the official information privilege and requested
sanctions, including dismissal. The
other motion sought sanctions for the delay in complying with the order of
August 22, 2005. Both motions relied on
a declaration of defense expert John Russ filed December 7, 2005, under
seal.
Russ, a
fiber-optic engineer and an expert with respect to “recording analysis and
enhancement,†declared proper analysis of the recordings at issue required
“access to the real equipment and/or software, as well as the identity, the
specifications (including serial numbers, brand names and instruction manuals),
the inspection and repair records, and/or other similar information about some
or all of (1) the microphones and containers housing or concealing them when
they were used; (2) any broadcasting devices; (3) all cables and connections
used; (4) possibly some or all component(s) of the recording devices; and/or
(5) all the equipment and/or software used to process or store the recording
after it was reduced to an original format.â€
Russ
declared analysis of the recordings required “an audio expert to search for and
document subtle cues of evidentiary manipulation, as where the recording party
intends for the device to be capable of inaccurate or incomplete
transmissions. Digital media are more
easily manipulable, and the manipulation is more difficult to detect, than tape
media. . . .†“[A]ccess to the original
data is necessary to determine what, if any, manipulation has occurred and
whether the device was intentionally set up to be capable of inaccurate or
incomplete transmissions.†Russ opined
“the microphone was not well suited to the transmission and recording
equipment.â€
In January of
2006, the People provided the defense a letter identifying the recording
equipment used to make the recordings. A
memo from Attila Mathe, the president of Adaptive Digital Systems (“ADSâ€), the
manufacturer of the recording device, is attached to the letter. The memo states recorded data is transferred
from the device to a write once CD or DVD and “write once†media is used to
“add credibility to the archived evidence.â€
On February 16,
2006, the matter was transferred to Department 100 for trial and thereafter was
assigned to Hon. Michael Pastor.
At a pretrial hearing on March 23, 2006,
the prosecution provided the defense disks of the original unenhanced
recordings of the library conversation and the police interviews of
Anderson. At the hearing, defense
counsel stated the disks were copies and there was a dispute “about what the
originals are†because “[t]he originals have been taped over and don’t
exist.â€
Jury trial
commenced on June 14, 2006.
On June 27, 2006,
the defense filed a motion seeking a ruling on the claim of the official
information privilege and whether sanctions should be imposed for its
assertion. The trial court conducted a
hearing on the motion at which Sheriff’s Detective Kurt Ebert of the Southern
California High Technology Task Force testified the microphone is imbedded in
the recorder and the device records “directly to flash memory inside†the
device and “the only way to get information out is to transfer it from the
recorder to a computer, and from the computer you subsequently copy those files
to some archivable permanent media you mark as evidence and make other copies
or give to the investigator or further enhance.†Ebert explained the original recording is in
the manufacturer’s proprietary format and it is transferred to a computer with
the manufacturer’s proprietary software.
Ebert indicated the transfer is accomplished “with a pretty decent level
of verification. This thing was designed
. . . for the FBI.†The original
recording in proprietary format is converted to a .wav file, “which is Windows
standard format,†so it can then be enhanced.
Ebert took screen shots of the enhancement process to allow anyone to
duplicate the process but did not take a screen shot of the conversion of the
recording from the proprietary format to a .wav file. The original version of the recording, the
enhanced version and the screen shots were put on a CD that was provided to the
defense.
Regarding the privilege, Ebert
testified, “the way [the device] works, and the processes it does, and features
it has, we feel [it] need[s] to be kept out of the realm of the public. And the manufacturer, to my understanding,
has federal mandates against the stuff being released outside of law enforcement
and the military.â€
The trial court conducted a further
hearing in camera and sustained the claim of privilege with respect to “the
equipment itself, any proprietary processes regarding this equipment as to its
functionality and the specific features of the equipment, manuals describing
the features, and any attached or built-in devices . . . .â€
The defense
thereafter requested an instruction advising the jury the prosecution had
refused to disclose information about the equipment used to record the
conversation and the jury should therefore disregard the recording. The defense argued it had been deprived of a
“meaningful attack†on the recording, citing Russ’s previously filed
declaration, and claimed it had nothing with which to compare the enhanced
version of the recording. The trial
court denied the request, ruling disclosure of the official information was
immaterial within the provisions of Evidence Code section 1042 and would not
“raise[] a reasonable possibility of exoneration.â€
In a letter from
Russ to defense counsel Sahu dated July 14, 2006, the same day as the trial
court’s ruling on the claim of privilege, Russ indicated the recordings he had
been provided appear to be normal but he needed to compare them to the
originals in order to detect any alterations or edits.
5.
Tarlow’s
letter to habeas counsel. (
In letters dated
August 19, 2009, October 12, 2010, and November 29, 2010, habeas counsel asked
Tarlow to address the “time disparity†and Anderson’s claim substantial
conversation was missing from the recording.
The letter of August 19, 2009, enclosed “a draft declaration confirming
that [the failure to attack the recording based on the time disparity] was an
oversight on [Tarlow’s] part . . . .†In
the subsequent letters, habeas counsel inquired whether Tarlow had considered
“any other potential challenges to the admissibility/reliability†of the
recorded conversation.
Tarlow responded
in a letter dated December 30, 2010, exhibit B to the habeas petition. In the letter, Tarlow stated he could not
sign the declaration enclosed with the August 19, 2009 correspondence “because
it was not accurate.†Regarding the time
disparity, Tarlow noted “Jester’s estimate that the ‘duration’ of the library
meeting was about 15 minutes does not determine the length of the actual
conversation or support a claim that 3 minutes of conversation is
missing.†Also, raising the issue of the
time disparity had negative implications for Anderson as he had been “recorded
insisting that the conversation/meeting was 3 minutes long.â€
Regarding the
assertedly omitted conversation, Tarlow agreed Anderson “repeatedly†claimed
the conversation started with Y. saying, “ ‘you ruined my life,’ and that it
was not on the recording.†Anderson also
“may well have claimed to me at times that there was a small amount of
additional conversation also missing.â€
However, Tarlow denied Anderson ever claimed “there were 3 minutes of
missing conversation or 2 minutes.â€
Tarlow indicated “[Anderson] was discussing a missing portion of seconds
with me not 3 minutes.â€
Regarding “any
other potential challenges†to the recording of the library confrontation,
Tarlow wrote: “I certainly recall that I
considered attacking the admissibility/reliability of the library tape
recordings. [W]e . . . thoroughly
reviewed and analyzed all of the issues involving potential Secondary Evidence,
Best Evidence, and Authentication, objections to the admissibility of the
library recording.â€
Tarlow noted the
defense raised authentication and secondary evidence issues with respect to
documents in Y.’s computer and stated:
“I determined that the best available approach was the one we followed .
. . . We [sought] access to all of the
necessary original recordings, manuals and microphones, as well as the
computers involved in the enhancement process and the production process. Without these materials we could not move
forward to persuasively assert Constitutional or Evidentiary objections or
demonstrate the recordings had been manipulated.â€
6.
In exhibit A to the petition, defense
expert Russ declared that, after contracting with Tarlow, he interacted
exclusively with associate counsel Sahu.
Russ stated he “emphasized†to Sahu the defense had not been provided
original recording data and without that data, “reliable authentication of the
CDs was virtually impossible.†Russ
stated the procedure recommended by ADS, i.e., transfer to a write once CD, “is
a reliable means of producing an accurate surrogate or proxy for the original
digital data. However, . . . in the
Anderson case . . . the original data was transferred from the recorder to the
computer used by the law enforcement agent assigned to the case.†Russ declared that, once the original data
had been deleted from the recording device, “the recorder could provide no
assistance in determining the authenticity of the CD copies provided by the
prosecution.†Russ also claimed he
“suggested†Sahu “consider having the CDs examined by another expert with more
specialized background in digital recording issues.â€
In
exhibit S to the petition, habeas counsel asserts a thorough search of “defense
counsel’s files and billing records†revealed “no indication of any research,
memoranda or other work product reflecting consideration of Evidence Code
section 1400, et seq.â€
Exhibit H to the
petition is a declaration from habeas counsel indicating that on December 20,
2010, Sergeant Powell of the Sheriff’s Technical Crew stated he was aware the
manufacturer of the recording device recommended transfer of digitally recorded
data to a write once CD but, as a matter of internal policy, the Sheriff’s
Department transferred data from the recorder to a computer and did not make a
screen shot of the transfer.
7.
Declarations
re indicia of alteration of the recorded conversation.
In support of the
petition, Anderson submitted declarations of four experts.
Yi Xu, Ph.D., an
associate professor at University College London who specialized in “speech
prosody,†declared he found anomalies in the library recording which are
incompatible with the limitations of human vocalization. At 52:59 of the recording, just prior to the
phrase “Why did you molest me?â€, Xu found four male vocal pulses with a total
duration of 29.3 milliseconds. However,
a human utterance requires a minimum of 46 milliseconds. Xu opined, “[t]his brief vocalization is most
likely the beginning of a longer utterance that has been foreshortened through
some mechanical means during the processing of the recording.â€
At 53:07 of the
recording, between the end of the phrase, “Why did you molest me?†and the
beginning of the next phrase, Xu found the pitch of the female voice rises 150
Hz in 189.05 milliseconds, which exceeds the capacity of an untrained
voice. The “brevity of the rise time
makes it unlikely these utterances were spoken one after another, as currently
found on the recording.â€
At 54:47 of the
recording, Xu found a pause of 62.9 milliseconds between two female utterances,
which is too short to be a normal pause, and concluded these “utterances were
therefore unlikely to have been spoken as they appear on the recording.â€
Xu indicated each
anomaly “casts serious doubt as to the authenticity of the recording of the
conversation,†and “[w]hen viewed cumulatively, they constitute strong evidence
that the recording, as currently constituted, was altered from the original
conversation by some mechanical or digital means.â€
In a supplemental
declaration, Xu asserted the pitch levels of Anderson’s first six utterances
are below normal levels for social conversation and fall in the pitch range
indicating sadness. Thus, Anderson’s
first utterances likely were “made after
. . . some conversation that induced the sad emotional tenor . . . .â€
Curtis Crowe,
assertedly an expert in the analysis of digital recordings, found an electronic
spike at 45:05 of the recording, approximately two seconds after a female voice
says, “Hey,†in a low tone. This spike
“appears to contain two distinct impulses of differing timing
characteristics.†The sound and shape of
the impulse “is consistent with what we may see after a digital edit.â€
At 46:12.8, a male
voice is cut off abruptly in a manner “consistent with a recorder dropout or
editing.†A similar abrupt termination
occurs at 46:21.6, of the recording.
Finally, Crowe detected a 58.3 Hz signal, which is not normally
associated with an outdoor environment.
The signal begins prior to the first word of the conversation and stops
almost exactly at the end of the conversation.
Crowe could find no potential source of this signal at or near where the
conversation occurred.
Craig Schick,
B.S., an electronics engineer, also detected the 58.3 Hz signal which commenced
shortly before the start of the conversation.
None of the comparison recordings Schick made outside the library
included a 58.3 Hz signal. Schick
concluded the recording had been edited in an environment that allowed the
introduction of a 58.3 Hz signal, like a laboratory or office, and asserted
with certainty the recording had been “adulterated.â€
In a second
declaration submitted with the traverse, Crowe indicated he analyzed the sound
of footfalls at the start of the recording and compared them to the sound of
Y.’s footfalls as she walked from the scene of the conversation, at first on
grass and then on concrete. Crowe
concluded the footfalls at the start of the conversation “appear to be made on
a hard or concrete surface,†not on the grassy surface where the conversation
occurred. Also, the sound of Y.’s
footfalls as she walked from the conversation are distinctly different and
consistent with the grassy surface where the conversation occurred. “These anomalies, taken together, provide a
stronger basis for inference that the recording has been altered.â€
Catalin Grigoras,
Ph.D., found three “counter†anomalies that indicate audio data is missing from
the recording. A two second jump occurs
at 12:41:57. Four second jumps occur at
13:04:53 and at 13:28:21, the latter occurring during conversation. Grigoras hypothesized the missing data could
be caused by recording system malfunction, human intervention to delete data
blocks or “an audio signal played back through the microphone input that can be
followed by human intervention on the file structure to edit data blocks.†Grigoras declared: “Any intentional alteration that would not be
detected as a counter skip anomaly would likely necessitate a two-step process
of (a) editing the content of the recording while in WAV format, and then (b)
re-recording the edited version onto the recorder initially used. . . . [I]n order to determine the feasibility of an
intentional alteration, I need to examine the recorder used to make the
recording in this case.â€
Finally, in the
traverse, habeas counsel notes the recording of the library conversation
provided to the defense in December of 2010 bears a time stamp that coincides
with the observations of the surveilling deputies. However, a time stamp in the “Propertiesâ€
file of the same recording indicates the first file was transferred from the
recorder to a computer at 2:23 p.m.
However, Detective Jester’s case journal indicates he did not deliver
the recorder to the Sheriff’s Technical Operations Office until 2:55 p.m.
8.
In exhibit No. 2
to the return, Detective Jester declared the entries in his journal reflect the
time Jester received information, not the time the event occurred. Also, 1:25 p.m. indicates when Anderson
arrived at the library, not when he began speaking to Y. The 1:39 p.m. entry indicates when Jester was
informed Y. had walked into the library and was safe. Also, Jester records time without regard to
seconds. Thus, 1:25 p.m. could reflect a
real time of either 1:25:05 or 1:25:55.
In exhibit No. 3
to the return, Detective Ebert declared:
“Generally, when transferring a recording from a recorder made by
Adaptive Digital Systems (‘ADS’), I would transfer the recording to a
computer. This was done using
proprietary software from ADS, and the resultant file was in a proprietary
format. I would then make at least two
exact CD copies of the recording in the proprietary format. One CD was archived, and the other was given
to the investigator on the case.†“The
recording in this proprietary format could only be played using the proprietary
software, or converted to a .wav file.
It could not be edited, altered, or manipulated in any way. The recording in this proprietary format was
therefore protected.â€
“I generally
transferred recordings from the ADS recorder to a computer instead of to a
write-once CD for two main reasons.
First, it saved time because it was time-consuming to transfer to a CD,
and if there was an error, the entire process would have to be repeated. Second, we usually needed multiple copies of
a recording, and it was easier and more reliable to make a CD from the computer
than from another CD.†After Ebert had
“two good copies†of a recording in the proprietary format, the recording would
be erased so the recorder could be used again.
Ebert
declared: “The transfer process from the
recorder to the computer was an automatic process. I would click a button that said ‘Transfer,’
and . . . proprietary software would then transfer the recording in its own
format. . . . There was no way to alter,
manipulate, or edit the file during this process.†“Conversion from the proprietary format to a
.wav file was also an automatic process using the proprietary software. . .
. There was no way to alter, manipulate,
or edit the file during this process.
However, once a file was in a .wav format, it was unprotected and could
be easily edited or enhanced by anyone who had it.†“In the thousands of recordings that I have
worked on, I never altered, manipulated, or edited any file without documenting
it, as described above . . . .â€
In
exhibit No. 4 to the return, Sheriff’s Sergeant John Powell declared: “The original recording of the library
conversation between Anderson and the victim was provided to the defense
in its proprietary format.†Further, in
February of 2011, Powell received a telephone call from Attila Mathe, the
president of ADS, referring to a letter Mathe had received from habeas
counsel. The letter advised Mathe that
habeas counsel had “the recording in its proprietary format, and was able to play
that recording using the proprietary software, USB Bird Player . . . .†However, habeas counsel “identified two
separate places in the proprietary version of the recording where the time
skipped about three seconds: 13:04:53
and 13:28:22. He requested that ADS
attempt to restore the missing data.â€
After Powell
verified habeas counsel’s observations, he sent Mathe the recording device and
asked “him to have someone look at the original data files to see if there was
a clock error or something else. . . .
In response, Mr. Mathe wrote the letter that is attached to the Petition
as exhibit O.â€
Exhibit O to the
petition, an undated and unaddressed letter from Mathe, indicates: “Blocks of the recording corresponding to the
two missing approximately 3 second sections contained zeros instead of audio
data.†A diagnostic routine revealed two
“bad memory blocks†in the recorder which correspond with the segments of the
recording that contained zeros. Mathe
concluded the two missing segments were the result of “memory block failure. .
. . During the examination we did not
find any evidence of data tampering.â€
Anderson contends
defense counsel rendered ineffective assistance in failing to challenge the
admissibility of the recording of the library confrontation on authentication
grounds, in failing to protect Anderson’s right to testify fully and credibly
regarding the library confrontation, and in failing to investigate indicia of
alteration of the recording of the library confrontation. In the traverse, Anderson insists an
resolve numerous factual matters.
name="_ftnref5" title="">[5]
1. Anderson’s
claim of approximately two or three minutes of unrecorded conversation is
entirely incredible.
Anderson declares
he advised Tarlow before their first meeting there was an extended unrecorded
conversation at the outset of the library confrontation in which Y. accused him
of sexual molestation and he denied
it. Anderson claims this missing
conversation was critical to the jury’s understanding of his explanation of the
recorded portion of the conversation.
Anderson argues defense counsel rendered ineffective assistance in
failing to elicit Anderson’s version of the conversation to allow Anderson to
testify to “his own version of events in his own words.†(Rock
v. Arkansas (1987) 483 U.S. 44, 52 [97 L.Ed.2d 37].) Instead, during preparation for trial,
defense counsel told Anderson not to question the authenticity of the
recording. Anderson asserts his claim
the recording did not include a portion of the conversation is supported by the
time disparity as well as the absence of normal social salutations at the start
of the conversation and the tenor of the initial exchange which suggests
something not currently contained in the recording caused Anderson to say he
feared a break down.
“A
petition for a writ of habeas corpus is a collateral attack on a presumptively
final judgment; therefore, ‘the petitioner bears a heavy burden initially to plead
sufficient grounds for relief, and then later to prove them’
[citation].†(In re Crew (2011) 52 Cal.4th 126, 149.) Anderson has failed to carry this
burden.
Anderson’s claim
that two or three minutes of conversation are missing from the recording is
inconsistent with his prior statements found in the record. In
the letter to Chief Ferris and in the interviews of Anderson conducted on July
9 and July 30, 2004, Anderson said the conversation was brief, lasting only a
few minutes. He did not state on any of
these three occasions that Y. accused him of molestation at the outset of the
conversation and he denied it. In the
interview conducted by Detectives Boyett and Duncan on July 9, 2004, Anderson
during the library confrontation.
Also,
Anderson testified at length at trial and was questioned, line by line, about
the library confrontation. He did not
testify the conversation started with Y.’s accusation of sexual molestation and
his denial. His claim that, on advice of
counsel, he failed to mention substantial unrecorded conversation that
supported his position is not worthy of belief.
The time disparity
does not support Anderson’s claim of substantial unrecorded conversation. Detective Jester explained in his declaration
he recorded the time events were reported to him, not the time the events
occurred, and he disregarded seconds when he recorded the relevant times. Also, the 1:25 p.m. entry reflects the time
Anderson arrived at the library, not the start of the conversation, and the
1:39 entry indicates when Y. entered the library at the end of the
conversation. Thus, the 14-minute
duration of the meeting as reflected in Jester’s case journal is consistent with
a 12-minute recorded conversation.
With respect to
Anderson’s argument the conversation begins awkwardly and nothing on the
recording explains why Anderson feared a breakdown at the outset, this was not
a normal social encounter. Anderson and
Y. had not met face-to-face in approximately one year and, in the interim, Y.
had written e-mails to Anderson advising him of the distress occasioned by his
abuse, her struggle with whether to report him and her insistence that Anderson
participate in therapy. Given the
circumstances, it is not surprising that the conversation begins in a
disjointed and emotional manner.
Thus, we reject as
incredible Anderson’s claim there was extended unrecorded conversation at the
outset of the library confrontation in which Y. specifically accused him of
sexual molestation and he denied it.
Tarlow cannot be faulted for failing to elicit Anderson’s testimony in
this regard and referral of the matter for an evidentiary hearing to determine
the truth of Anderson’s assertion would constitute an idle act.
2. No ineffective
assistance with respect to the failure to object to the recording of the
library confrontation on authentication grounds.
a. Authentication.
Evidence Code
sections 1400 and 1401 require a writing to be authenticated before the writing
or secondary evidence of its content may be received in evidence.
recording. (§ 250.) “Authentication of
a writing means (a) the introduction of evidence sufficient to sustain a
finding that it is the writing that the proponent of the evidence claims it is
or (b) the establishment of such facts by any other means provided by
law.†(People v. Skiles (2011) 51 Cal.4th 1178, 1187, citing section
1400.)
Authentication
is a preliminary fact first determined by the trial court subject to redetermination
by the jury. (People v. Marshall
(1996) 13 Cal.4th 799, 832; People v. Fonville (1973) 35 Cal.App.3d 693,
708-709.) The proponent of the writing
has the burden of establishing its authenticity. The proponent’s threshold burden
“is not to establish validity or negate falsity in a categorical
fashion, but rather to make a showing on which the trier of fact reasonably
could conclude the proffered writing is authentic.†(People v. Valdez (2011) 201
Cal.App.4th 1429, 1437.)
The
proponent’s burden is met “when sufficient evidence has
been produced to sustain a finding that the document is what it purports to be
[citation].†(Jazayeri v. Mao
(2009) 174 Cal.App.4th 301, 321.) “This
foundation is usually provided by the testimony of a person who was present at
the time the picture was taken, or who is otherwise qualified to state that the
representation is accurate.†(People
v. Bowley (1963) 59 Cal.2d 855, 862.)
authenticity is provided, “[t]he trial court [is] required to admit the
document in evidence . . . .†(
205, disapproved on other grounds in People v. Stansbury
(1995) 9 Cal.4th 824, 830, fn. 1.)
The fact that “ ‘conflicting inferences can be drawn regarding
authenticity goes to the document’s weight as evidence, not its admissibility.’
†(People
v. Valdez, supra, 201 Cal.App.4th at p. 1435, quoting
at p. 321.)
1402 states, “The party producing a writing as genuine which has been altered,
or appears to have been altered, after its execution, in a part material to the
question in dispute, must account for the alteration or appearance
thereof. He may show that the alteration
was made by another, without his concurrence, or was made with the consent of
the parties affected by it, or otherwise properly or innocently made, or that
the alteration did not change the meaning or language of the instrument. If he does that, he may give the writing in
test of materiality of an alteration is “whether it changes the rights or
duties of the parties, or either of them.â€
(Consolidated Loan Co. v. Harman (1957) 150 Cal.App.2d 488,
491.)
review a ruling on authentication matters for an abuse of
discretion. (People v. Hovarter (2008) 44 Cal.4th 983, 1014.)
contention.
Anderson contends
known the People would have difficulty authenticating the recording of the
library confrontation based on his consistent claim the conversation began with
Y saying, “You ruined my life,†which is not included in the recording, and the
failure of the Sheriff’s Department to memorialize the original data in the
manner prescribed by the manufacturer.
Also, had defense counsel consulted other experts as Russ assertedly
recommended, the defense could have shown the vocal anomalies uncovered by the
habeas experts which cast doubt on the integrity of the recording and
constitute strong evidence the recording was altered. Anderson claims a timely challenge would have
resulted in exclusion of the recording or admission of the recording with
evidence calling its authenticity into question and an instruction directing
the jury to determine its authenticity before considering it. According to Anderson, either result
undermined the prosecution’s case and supports a finding of prejudice.
c.
Y.’s testimony, corroborated by
Ebert’s testimony, was sufficient to authenticate the recording.
Before the grand
jury, the prosecutor asked Y. to listen to the recording because “I am
going to ask you afterwards . . . if this is the complete conversation between
both of you.†After playing the
recording, the prosecutor asked if “that was an accurate tape of the
conversation,†and Y. responded, “Yes.â€
When a
knowledgeable witness testifies a writing or recording is accurate, the trial
court is “amply justified in rejecting defendant’s view that the copy was
altered or incomplete.†(
205 [trial court properly rejected authentication objection where defendant
claimed a page of his letter was missing and handwriting expert suggested
possibility of a missing page, but recipient testified letter was accurate];
862.) Similarly, at trial Y. testified
she had the recorder in her purse when she met Anderson at the library and the
recording was an accurate rendition of their conversation.
Defense counsel
would have been familiar with the grand jury proceedings and thus would have
been aware of Y.’s ability to authenticate the recording of the library
confrontation. Because an authentication
challenge to the library recording would have failed, the decision not to bring
a futile motion was a reasonable strategic choice. (See People
v. Prieto (2003) 30 Cal.4th 226, 261 [“counsel’s decision to forgo
implausible arguments or objections does not constitute deficient performanceâ€];
People v. Torrez (1995) 31
Cal.App.4th 1084, 1091 [counsel is not required to make futile motions to appear
competent].)
Y.’s testimony was
corroborated by Detective Ebert’s testimony in the trial court and by
declaration here. Ebert explained the procedure
by which he transferred the original digital data to a computer in proprietary
format and thereafter placed copies of the proprietary file on CD’s provided to
the defense. Ebert declared he “never
altered, manipulated, or edited any file without documenting†the editing
process. Given Ebert’s testimony, any
material alteration to the recording, other than the documented enhancements
performed on the recording, must have been innocently made.
Anderson argues
the Grigoras declaration demonstrates alteration of the recording was not
innocent. Grigoras declared that, in
order to edit the recording so as to eliminate the blank blocks where erasures
had occurred, the original recording would have to be removed from the
recording device, converted to a .wav file which would have been edited and
then re-recorded onto the device in the edited form. Such a course of conduct would have required
a concerted effort on behalf of law enforcement and simply is not plausible. (See People v.
Lewis and Oliver (2006) 39 Cal.4th 970, 992 [affirming denial of
for discovery of police personnel records finding defendant’s “grandioseâ€
allegations of a police conspiracy to frame him
were not plausible].)
Based on the
foregoing, we confidently conclude the recording of the library confrontation
would have survived an authentication challenge. As previously noted, the time disparity and
the awkward nature of the start of the conversation do not indicate portions of
the recording had not been recorded.
They similarly do not indicate the recording had been altered.
Russ’s most recent
declaration states he “suggested†Sahu “consider having the recording examined
by an expert with more specialized background in digital recording
issues.†Russ does not indicate when he
made this suggestion and the suggestion does not appear in Russ’s letter to
counsel dated July 14, 2006.
In any event, even
had defense counsel raised the anomalies noted by the habeas experts, the
absence of a screen-shot of the initial transfer from the recorder to the
computer, and the time discrepancy in the Properties window of the file
provided to the defense, these matters would have gone to the weight of the
evidence, not its admissibility. (See
106, 128 [“[A]n objection that a [computerized] record is ‘incomplete’
generally ‘go[es] to the weight of th[e] evidence and not its admissibility’
â€]; Jazayeri v. Mao,
Assuming the
science Anderson’s experts rely upon, such as speech prosody, would have been
admissible in court (see People v. Kelly
(1976) 17 Cal.3d 24, 30,
abrogated by statute on another point as explained in People
v. Wilkinson (2004) 33 Cal.4th 821, 845-848), the anomalies
found by Anderson’s habeas experts fail to inspire any confidence in a
reasonable probability of a different result.
Two three-second jumps identified by the recorder’s manufacturer due to
memory block failure likely would provide an innocent explanation for at least
some of the anomalies detected by the experts.
In any event, the declarations of the habeas experts would not have overcome Y.’s testimony the conversation was
accurately recorded and Detective Ebert’s testimony about how the recording was
transferred from the recording device to a computer in proprietary format.
Further, under
section 1402, the prosecution only would have been required to explain any real
or apparent alteration that was “material to the question in dispute.†(§ 1402; People v. Hovarter, supra,
44 Cal.4th at p. 1014.) The asserted
omission of “You ruined my life,†was entirely consistent with the rest of the
recorded conversation and thus not material to any question in dispute. Also, Anderson has failed to show the
recording was altered “after its execution,†as opposed to omitting a portion
of the conversation. (§ 1402; see
on which handwritten markings may not have existed on the originals].) Because there was no indication the recording
had been materially altered, there was no “genuine dispute . . . concerning
material terms.†(§ 1521, subd.
(a)(1).) Nor was there any showing that
“justice require[d] the exclusion†of the recording or that admission of
secondary evidence of its content would be unfair. (§ 1521, subd.
(a)(1) & (2).) Consequently,
even if the CDs did not qualify as originals, they were admissible secondary
evidence.
Anderson also
invokes section 412, which provides, “If weaker and less satisfactory evidence
is offered when it was within the power of the party to produce stronger and
more satisfactory evidence, the evidence offered should be viewed with
distrust.†Because the record indicates
the defense had a digital copy of the recording in proprietary format, section
412 has no application.
In sum, the new
declarations do not support a finding of a material alteration of the recording
or contradict Anderson’s admissions in the recorded conversation.
Further, it appears defense
counsel acted reasonably in seeking to obtain the recording device and, when
the trial court upheld the claim of official information privilege, seeking
sanctions under section 1040. The Russ
declaration filed under seal in the trial court indicated detection of
any manipulation of the recording required access to the original recording,
microphone, recording device and “all the equipment and/or software used to
process or store the recording after it was reduced to an original
format.†Russ told defense counsel he
could not do a meaningful analysis without the original recording or recorder,
the recordings he had “seem[ed] to be normal,†and alterations in digital
recordings were difficult to detect.
Based on this advice, defense counsel reasonably focused on obtaining access
to the recording equipment used to record the conversation as well as the
original recording. (See
945-946; Fields v. Brown (9th
Cir. 2005) 431 F.3d 1186, 1205.)
Indeed,
habeas expert Grigoras reiterated the need for the recording equipment and
declared that, in order to determine the feasibility of an intentional
alteration of the recording, he had to examine the recording device. Thus, defense counsel cannot be seen to have
acted unreasonably in seeking to obtain the equipment used to make the
recording.
The absence of any indication
defense counsel considered an authentication challenge to the recording of the
library confrontation in defense counsel’s files or billing records does not
show defense counsel failed to consider such a challenge or misunderstood the
burden of proof in an authentication proceeding. Defense counsel objected to the
introduction of other evidence, such as Y.’s e-mails to Anderson, on
authentication grounds. The trial court
overruled the objection and admitted many e-mails into evidence, even where
Y.’s testimony was the only evidence supporting the claim the e-mails had been
sent. Thus, the record demonstrates
defense counsel was aware of the availability of an authentication challenge.
Further,
Anderson’s claim Y. started the conversation by saying, “You ruined by life,â€
carried with it substantial negative implications for Anderson. Had Anderson made this claim at trial, it
would have prompted the prosecution to cross-examine Anderson with respect to
his repeated insistence the meeting lasted only three minutes. This would have permitted the prosecution to
argue Anderson’s attempt to dismiss the conversation as a brief encounter
demonstrated consciousness of guilt.
Thus, defense counsel reasonably could conclude Y.’s asserted statement,
“You ruined my life,†was unnecessary to Anderson’s defense and, in fact,
harmed his case. Such a tactical
decision was well within the wide range of reasonable
professional assistance. (Strickland
v. Washington, supra, 466 U.S. at p. 689.)
3. Failure to protect Anderson’s right to
testify fully and credibly in his own defense.
During the recorded conversation, Y.
complained she had experienced difficulty with interpersonal relationships,
showed Anderson cuts on her arms and demanded an explanation. Anderson eventually said, “I’m sorry,
[Y.]â€
Anderson
contends defense counsel should have asked the trial court to permit Anderson
to testify Y.’s sexual orientation caused her self-destructive behavior and
difficulty with relationships. However,
the trial court sustained relevance objections whenever defense counsel
attempted to elicit this information.
During cross-examination of Y.’s friend, the trial court sustained a
relevance objection when defense counsel asked if she and Y. were “girlfriend
and girlfriend.â€
At the close of
Y.’s trial testimony, defense counsel asked that Y. remain on call, noting the
prosecutor intended to elicit the opinion of an expert “that cutting and
burning is [a] symptom of sexual molestation . . . .†Defense counsel argued such behavior can also
be caused by sexual identity issues and offered to demonstrate Y. “is gay and
therefore had these problems which an expert will testify are reasons for
cutting and burning.â€
The trial court
ruled both sides could ask the experts about factors that could cause someone
to cut or burn themselves and could inquire “regarding specific factors like
anxiety and depression, and physical abuse, and sexual abuse, and issues
regarding sexual orientation or sexual dysfunction as precipitating cutting and
burning . . . . [¶] But to specifically make direct comments upon
the sexuality, sexual orientation of a nine, ten, 12, eleven, 13-year-old, or
14-year-old†would be precluded under section 352. The trial court also noted the issue was
disputed and collateral and would “engender even more delays in this case . . .
.â€
Defense counsel argued the expert
testimony would have no meaning if the defense could not also present evidence
indicating Y. is gay. The trial court
indicated it would allow the inquiry if it “relate[d] to substantive issues in
this case,†but no such showing had been made.
Thereafter, defense counsel elicited
Anderson’s testimony he “knew the reasons for the cutting. Well, I assume the reasons for the
cutting.†However, defense counsel did
not ask Anderson what those reasons were, hoping the prosecutor would
cross-examine Anderson on this point, thereby opening the door to the
evidence. Anderson claims defense
counsel should have asked the trial court to revisit its ruling. He argues his knowledge of Y.’s sexual
orientation was essential to explain his conduct during the library
conversation and thus related to a substantive issue in the case. He notes defense counsel argued to the jury
there was an explanation for Y.’s difficulties but it was not in the record
because no one asked Anderson about it.
Anderson asserts the jury must have viewed this as bizarre, given that
defense counsel conducted extensive examination of Anderson.
However, the jury
likely concluded defense counsel would have asked Anderson the source of Y.’s
difficulty had the trial court permitted the inquiry. In any event, defense counsel reasonably
could conclude the trial court would not change its ruling merely because
Anderson believed Y.’s sexual orientation was the cause of her destructive
behavior. (People v. Prieto, supra,
30 Cal.4th at p. 261.)
Further, the
defense presented evidence indicating Y. had been the victim of physical abuse
at the hands of her father in 1998 which resulted in a referral to the
evidence, the defense suggested explanations for Y.’s destructive behavior
other than sexual molestation. No
ineffective assistance of counsel appears.
DISPOSITION
The
petition is denied. The order to show
cause is discharged.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
KLEIN,
P. J.
We
concur:
CROSKEY, J.
KITCHING,
J.
title="">[1]
Anderson also contends defense
counsel should have objected to the prosecutor’s improper exploitation of the
trial court’s exclusion of Anderson’s post conversation conduct. However, Anderson’s claim of prosecutorial
misconduct on this same ground was rejected on appeal. Therefore, Anderson’s related claim of
ineffective assistance of counsel also fails.
(See People v. Collins (2010)
49 Cal.4th 175, 204-205.)
name="_ftn2" title="">[2] We incorporate by reference the Facts
and Procedural Background as well as the Discussion related to the
admissibility of the letter to Chief Farris in People v. Anderson, supra, 208 Cal.App.4th at pp. 858-875. We take judicial notice of the record on
appeal in People v. Anderson as well
as the superior court file.
