P. v. Busby
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF
THE PEOPLE, Plaintiff and Respondent, v. ARDELL BUSBY, Defendant and Appellant. | D049606 (Super. RIF125159) |
APPEAL from a judgment of the Superior Court of Riverside County, J. Thompson Hanks, Judge. Affirmed.
In November 2005 a jury found Ardell Busby guilty of possession of cocaine base (Health & Saf. Code, § 11350, subd. (a); count 1) and misdemeanor resisting arrest (Pen. Code,[1] § 148, subd. (a)(1); count 2). The jury acquitted him of unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a); count 3) and of receiving stolen property, a motor vehicle (Veh. Code, § 496d, subd. (a); count 4). The court found true the allegations that he had suffered (1) three prior felony convictions for receiving stolen property within the meaning of section 667.5, subdivision (b); and (2) four prior " strike" convictions within the meaning of sections 667, subdivisions (b)-(i), and 1170.12.
The court struck the three prior felony conviction allegations and sentenced Busby under the three strikes law to a state prison term of 25 years to life for the count 1 felony possession of cocaine base and a consecutive term of 302 days for the count 2 misdemeanor resisting arrest conviction.
On appeal Busby asserts (1) the court's expression of agreement with the prosecution's handling of the case, together with its questioning of a witness, amounted to judicial misconduct that violated his federal due process rights; (2) the admission of expert testimony on the " link" between rental cars and drugs constituted reversible error and violated his federal due process rights; and (3) the court's failure to declare a mistrial after the prosecutor identified Busby's counsel as a public defender violated his federal constitutional right to counsel and due process. We affirm.
FACTUAL BACKGROUND
On
Officer Garcia saw a 2004 Ford Mustang convertible being driven in the area. As the car looked " out of place" for that neighborhood, Garcia used his mobile computer to check the vehicle's license plates against California Department of Motor Vehicle records. He received a response that the car had been reported stolen a week earlier from Enterprise Rent-A-Car. The car had been rented on March 31 by Busby's wife, Elizabeth Busby.
Based upon his receipt of information that the vehicle had been stolen, Officer Garcia radioed for backup in preparation for making a felony stop of the car. He followed the car for about seven blocks and then saw it drive onto and stop on the lawn of a residence. He observed an individual named Carl Perry get out of the passenger seat. Busby got out of the driver's seat and walked towards the house. Garcia exited his vehicle and approached them with his weapon drawn.
Officer Garcia ordered Perry to get back in the car, and he complied. Officer Garcia ordered Busby to turn around and get on his knees, but instead Busby turned and walked slowly towards Officer Garcia.
As Busby moved closer to Officer Garcia, he made a half turn. Officer Garcia approached Busby and grabbed his left arm. Busby " tensed up," tried to pull away, and said, " You're not going to cuff me." He then said, " Hold on, I've got something to show you" or " I want to show you something" and shoved Officer Garcia's hand away.
Officer Garcia attempted to place Busby in a chokehold. He then placed his right hand on Busby's right hand as Busby attempted to reach into right rear pants pocket, and a struggle ensued. During the struggle, Officer Garcia released Busby's left arm so that he could radio for assistance. At that time, Busby tried to reach for something in his front waistband or pocket. Officer Garcia managed to cuff Busby's left hand, but they both fell to their knees and then ended up in a sitting position on the ground.
As Busby and he were in sitting positions on the ground, Officer Garcia saw Riverside Police Sergeant Christopher Manning rush up to them, and he heard Sergeant Manning say, " He has something in his hands, he has something in his hands."
Sergeant Manning, fearing that Busby was armed, pinned his left arm, with his left hand still in his pants, and then removed Busby's hand out of his pants. Sergeant Manning grabbed Busby's hand, which was balled up in a fist and peeled back his fingers. Busby's left hand clutched a plastic bag containing what the sergeant recognized as numerous pieces of cocaine base. With the assistance of Sergeant Manning and another officer, Officer Garcia was finally able to place Busby into custody.
After placing Busby into custody, Officer Garcia saw a clear plastic bag on the ground next to Busby containing what appeared to be cocaine base. He retrieved a written car rental contract between Enterprise Rent-A-Car and Elizabeth Busby from Busby's right rear pants pocket.
The substance in the plastic bag was tested and confirmed to be 1.15 grams of cocaine base.
Over Busby's objection, the People called Riverside County Sheriff's Department Investigator Marc Bender to testify as an expert in their case-in-chief. He testified that he had worked in the major narcotics unit for 12 years. He testified that, based upon his experience with drug investigations, there was a link between narcotics transactions and rental cars. Drug dealers would often rent cars under someone else's name to hide their identities while transporting drugs and making sales and to keep from having their own vehicles confiscated if arrested.
Carl Perry, the passenger in the car, confirmed at trial that he had testified at Busby's preliminary hearing that while Officer Garcia was following them, Busby told him the car was " hot."
DISCUSSION
II. ALLEGED JUDICIAL MISCONDUCT
Busby asserts that the trial judge committed misconduct in this case when it (1) agreed with the prosecutor's handling of its case, and (2) questioned prosecution witness Perry, which demonstrated bias that violated his federal due process rights. These contentions are unavailing.
A. Background
During the prosecutor's questioning of Perry, he concluded his redirect-examination, and then asked the court to reopen his questioning:
" THE COURT: You want to stipulate that that's a true copy of the preliminary hearing so we don't have to bring in the court reporter?
" [PROSECUTOR]: I will stipulate.
" [DEFENSE COUNSEL]: I will stipulate it was taken out of context.
" THE COURT: The stipulation is that this is a true and correct copy of the preliminary hearing transcript.
" [PROSECUTOR]: No further questions.
" THE COURT: Further cross?
" [DEFENSE COUNSEL]: One moment, your Honor.
" [PROSECUTOR]: Your Honor, I have one more question if I could - -
" THE COURT: I was reading it myself here. I would think so." (Italics added.)
The prosecutor then asked Perry four questions, to which he gave ambiguous answers. The court then asked Perry two questions:
" THE COURT: Did you ever -- the defendant ever tell you that the car was hot?
" THE WITNESS: Did he ever tell me the car was hot? I don't recall.
" THE COURT: You recall at the preliminary hearing saying, 'When he asked me to get in the car, he asked me -- he was like -- he was saying -- he asked me " Help me take this car because it is hot" to his house. I said okay. That was it. I didn't know the car was even hot until we got talking about it.' [¶] You remember making that statement at the preliminary hearing?
" THE WITNESS: Yeah."
B. Waiver
In order to preserve a claim of judicial misconduct arising out of the trial judge's questioning of witnesses, a defendant must make an objection at the time of the questioning and request a curative admonition. (People v. Hines (1997) 15 Cal.4th 997, 1041.) This rule exists because a timely objection allows the court to obviate any potential prejudice it may have caused and cure any appearance of bias. (People v. Wright (1990) 52 Cal.3d 367, 411.)
Here, it is undisputed that Busby did not object to the trial judge's comments or its questioning of Perry. Thus, Busby has waived the right to assert this claimed error on appeal.
Busby asserts that an objection would have been futile because he interposed a general objection to the manner in which the court was questioning other witnesses. However, the objection was not made until after Perry testified and merely generally objected to the trial judge's asking other questions of other witnesses that established foundations for their testimony. An objection to the statements and questions made during Perry's testimony would have allowed the court to explain its reasons for interposing the questions as to that witness and cure any possible appearance of bias.
Moreover, even if an objection were not necessary because, as Busby claims, such an objection would have been futile, Busby's claim fails because the record demonstrates that the trial judge did not engage in misconduct in this case.
C. Merits
Evidence Code section 775 provides that " [t]he court, on its own motion or on the motion of any party, may call witnesses and interrogate them the same as if they had been produced by a party to the action, and the parties may object to the questions asked and the evidence adduced the same as if such witnesses were called and examined by an adverse party. Such witnesses may be cross-examined by all parties to the action in such order as the court directs."
Indeed, " it is not merely the right but the duty of a trial judge to see that the evidence is fully developed before the trier of fact and to assure that ambiguities and conflicts in the evidence are resolved insofar as possible." (People v. Carlucci (1979) 23 Cal.3d 249, 255 (Carlucci).)
In Carlucci the California Supreme Court cautioned, however, " that the trial court must not undertake the role of either prosecutor or defense counsel. We have recognized that '[i]t is essential that the public have absolute confidence in the integrity and impartiality of our system of criminal justice. This requires that public officials not only in fact properly discharge their responsibilities but also that such officials avoid, as much as possible, the appearance of impropriety.'" (Carlucci, supra, 23 Cal.3d at p. 258.) Therefore, the trial court must refrain from advocacy and " remain circumspect in its comments on the evidence, treating litigants and witnesses with appropriate respect and without demonstration of partiality or bias." (Ibid.)
" Although 'the trial court has both the duty and the discretion to control the conduct of the trial' [citation], 'the Due Process Clause clearly requires a " fair trial in a fair tribunal" [citation], before a judge with no actual bias against the defendant or interest in the outcome of his particular case. [Citations.]' [Citation.] The role of a reviewing court 'is not to determine whether the trial judge's conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge's behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial. [Citation.]' [Citation.] In deciding whether a trial court has manifested bias in the presentation of evidence, we have said that such a violation occurs only where the judge '" officiously and unnecessarily usurp[ed] the duties of the prosecutor . . . and in so doing create[d] the impression that he [was] allying himself with the prosecution." ' [Citation.]" (People v. Harris (2005) 37 Cal.4th 310, 346-347, quoting People v. Fudge (1994) 7 Cal.4th 1075, 1108; Bracy v. Gramley (1997) 520 U.S. 899, 904-905; People v. Snow (2003) 30 Cal.4th 43, 78; People v. Clark (1992) 3 Cal.4th 41, 143.)
The court engaged in no misconduct. Perry was charged with unlawfully taking a vehicle and receiving stolen property. When Perry gave evasive answers to the prosecutor's questions concerning his testimony at the preliminary hearing, the court focused him in on his prior testimony at that hearing that Busby had told him the car was " hot." Thus, the trial court was only endeavoring to ensure " the evidence [was] fully developed before the trier of fact and to assure that ambiguities and conflicts in the evidence [were] resolved insofar as possible." (Carlucci, supra, 23 Cal.3d at p. 255.)
Nor was the court's comment, " I would think so," a statement showing the court agreed with the prosecutor's handling of the case. Rather, when the prosecutor asked to reopen, the court, referring to the preliminary hearing transcript, merely stated that it agreed that further questions concerning Perry's testimony at the preliminary hearing would be helpful. The court did not " '" officiously and unnecessarily usurp the duties of the prosecutor . . . and in so doing create the impression that he [was] allying himself with the prosecution." '" (People v. Harris, supra, 37 Cal.4th at p. 347.)
Finally, Busby cannot claim that he suffered any prejudice from the trial court's questions posed to Busby. He was acquitted of the charges of unlawfully taking a vehicle and receiving stolen property, the charges to which the trial court's questions were directed.
II. EXPERT TESTIMONY ON RENTAL CARS AND DRUGS
Busby contends that the court abused its discretion in allowing Investigator Bender to testify concerning the link between rental cars and narcotic sales because it was irrelevant to the issues and constituted improper " profiling" evidence that violated his federal constitutional rights. We conclude that the court erred in admitting such evidence, but that such error does not require a reversal in this case.
A. Background
The People proposed presenting testimony from their narcotics expert, Investigator Bender, concerning the connection between illicit drug sales and stolen cars. Defense counsel objected to this testimony as irrelevant and prejudicial. The court, balancing the testimony's probative value against possible prejudice to Busby, found the testimony relevant and that it would help the jury understand the connection between drugs and the stolen car in this case:
" THE COURT: Well, I've done the balancing under [Evidence Code section] 352, prejudice versus probative value, and I think it could help us to understand the environment if -- as I read [the People's] trial brief, that environment being the person retained the car -- kept the car even after he reported it stolen, had drugs in his possession and another person in the car who is doing time for selling drugs. So there does seem to be a close association between drugs and this stolen car. If he can give an explanation as to this -- why this would exist -- or if this exists on a regular basis and why it exists, I think it would help clarify the situation. So I'm going to permit him to call his expert witness."
Thereafter, Investigator Bender testified to his training and experience in drug transactions. He testified that there was a link between rental cars and drug sales. Specifically, Investigator Bender testified that rental cars are often used by drug traffickers to avoid being readily identified by police and to prevent their own cars from being confiscated if they are arrested. He also testified that the amount of cocaine in Busby's possession was the equivalent of 25 to 30 doses. Investigator Bender testified that a rental car is usually used for transporting or selling drugs. However, on cross-examination Bender admitted the rental car would not be used simply to have somewhere to smoke the cocaine base.
B. Analysis
We review a ruling on the admission of expert testimony for abuse of discretion. Thus, the trial court's decision concerning expert testimony will be disturbed on appeal only if a manifest abuse of discretion is shown. (See People v. Valdez (1997) 58 Cal.App.4th 494, 506; People v. Kelly (1976) 17 Cal.3d 24, 39.)
Evidence Code section 801, subdivision (a) requires that expert testimony be " [r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Italics added.) Under this statute, courts will exclude an expert opinion " only when it would add nothing at all to the jury's common fund of information . . . ." (People v. McDonald (1984) 37 Cal.3d 351, 367, italics added, overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896.)
Here, the testimony concerning a link between rental cars and drug dealing had little or no relevance to the issues in this case. Busby was charged with simple possession, not possession for sale. Therefore, the fact that narcotics traffickers used rental cars in their transactions was irrelevant to the charges in this case. Moreover, the expert testimony bordered on improper " profile" evidence. (See People v. Martinez (1992) 10 Cal.App.4th 1001, 1004-1006 [testimony by investigators that defendant's actions fit a profile of drug couriers held inadmissible].)
However, the evidence of Busby's guilt was overwhelming, and thus the court's error does not require a reversal in this case. This is so even if we review the error as one of federal constitutional dimension, as Busby claims it was, that would require a finding that the testimony was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 22. When officers were subduing Busby, he reached into the front of his pants. Officer Manning pulled his hand out and observed that it was clenched like a fist. When Officer Manning pried his hand open, he observed a plastic bag containing numerous pieces of cocaine base. After officers had subdued Busby the bag was observed near Busby's leg. There was no evidence presented that would suggest that the cocaine base belonged to anyone other than Busby. Thus, there was no " reason to harbor doubt that the drugs belonged to" Busby, as he claims, and the court's error was harmless beyond a reasonable doubt.
III. ALLEGED PROSECUTORIAL MISCONDUCT
Busby asserts that his conviction should be reversed because the court failed, sua sponte, to declare a mistrial after the prosecutor stated in the rebuttal portion of closing argument that defense counsel's trial tactics were learned in " public defender's school." This contention is unavailing.
A. Background
In closing argument, defense counsel argued that the prosecutor's trial tactics in presenting the facts and theories of the case were learned in " D.A. school." In his rebuttal closing argument, the prosecutor responded by arguing that defense counsel's trial tactics were learned in " public defender school," to which defense counsel interposed an objection:
" [PROSECUTOR]: . . . Textbook. Textbook. [¶] Starts out with a cute story that they teach in public defender school.
" [DEFENSE COUNSEL]: Objection, your Honor. I'm not in public defender's school, and that's improper argument.
" THE COURT: Overruled.
" [PROSECUTOR]: He starts out with a cute little story, indoctrinating himself with you. He's one of your friends, and he talks about beyond a reasonable doubt in a scenario that I actually did not learn in D.A. school but in law school."
After the jury was instructed and began deliberations, defense counsel elaborated on his objection made to the prosecutor's comment in closing argument about " public defender school" :
" [DEFENSE COUNSEL]: Also, your Honor, I just wanted to preserve the record. [¶] My objection I made in counsel's closing about -- I believe that is prosecutorial error to mention that I'm a public defender in front of the jury. That's improper.
" THE COURT: Yes. You really shouldn't have mentioned the office he belongs to. The implication of mentioning the public defender, I appreciate that.
" [PROSECUTOR]: Your Honor, I do apologize.
" THE COURT: It would have compounded the situation if I had stopped and admonished the jury to disregard it. It would be like trying to unring the bell. [¶] You're right. Typically the D.A. doesn't do that. I don't think there was anything to be done, and trying to rectify it would have made it worse.
" [PROSECUTOR]: Your Honor, I do apologize. It was not intentional. I think the statement that was made was that that's a trick that's taught in public defender's school, and therefore, the implication is that --
" THE COURT: I understand. He was talking about D.A. school, and you were retaliating with public defender's school.
" [PROSECUTOR]: Right.
" THE COURT: It would have been better if you just said defense attorney school.
" [PROSECUTOR]: You're right. Absolutely."
B. Analysis
1. Applicable legal principles
" A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions." (People v. Haskett (1982) 30 Cal.3d 841, 854.)
The applicable federal and state standards regarding prosecutorial misconduct are well established. " 'A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct " so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." '" (People v. Gionis (1995) 9 Cal.4th 1196, 1214.) Conduct by a prosecutor that cannot meet this standard is still considered prosecutorial misconduct under state law if it involves '" 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.'" ' (People v. Espinoza (1992) 3 Cal.4th 806, 820.) In order to reverse a conviction on the basis of prosecutorial misconduct under state law it must be shown that " had the prosecutor refrained from misconduct, [it is] reasonably probable that a result more favorable to the defendant would have occurred." (People v. Strickland (1974) 11 Cal.3d 946, 955.)
Here, the prosecutor's reference to " public defender school" was, as the court found, unfortunate and improper. However, any misconduct was so minor that a reversal is not required under state or federal standards. Where a reference to the public defender is made innocently, there is no prejudice. (People v. Carpenter (1997) 15 Cal.4th 312, 396 [prosecutor's reference to counsel as a deputy public defender was " quite innocent" ]; People v. McConahay (1949) 90 Cal.App.2d 596, 601-602, overruled on a different point by In re Culver (1968) 69 Cal.2d 898, 904, fn. 8 [prosecutor's " brief remark" that defendant's counsel was a public defender not prejudicial].)
Defense counsel brought the comment on by first referring to " D.A. school." Moreover, the statement was a single isolated incident, and Busby thus cannot make a showing under federal standards that the challenged conduct was a pattern of conduct so egregious that it infected the entire trial and resulted in a denial of due process. (People v. Gionis, supra, 9 Cal.4th at p. 1214.) Further, the trial court, which was in the best position to assess how the jury would construe the brief reference, determined that it did not result in incurable prejudice. Also, as we have discussed, ante, the evidence of the appellants' guilt was overwhelming. Thus, it is not reasonably probable that, but for the asserted misconduct, Busby would have received a more favorable verdict. (People v. Davis (1996) 42 Cal.App.4th 806, 820, fn. 13.)
Thus, the court did not err in failing, sua sponte, to declare a mistrial in response to the prosecutor's remark concerning " public defender school." We do note, however, that in criminal cases trial counsel should refrain from making statements concerning opposing counsel that are intemperate or derogatory, as both defense counsel and the prosecutor did here. Although zealous advocacy is expected, such comments only serve to undermine the integrity of the judicial system.
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
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[1] All further statutory references are to the Penal Code unless otherwise specified.
