P. v. Cathren

Filed 7/9/09 P. v. Cathren CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Kelvin D. Filer, Judge. Affirmed.

Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Roy C. Preminger, for Plaintiff and Respondent.

__________________________

Darrell Cathren appeals from the judgment entered after a jury convicted him of murdering and inflicting corporal injury on his live-in girlfriend and of making terrorist threats to a witness, contending that the convictions on the first two counts were not supported by the evidence and were tainted by the erroneous admission of certain expert witness testimony. We reject these contentions and affirm the judgment.

FACTS AND PROCEDURAL HISTORY

Shortly after midnight on November 6, 2004, Darrell Cathren knocked on the door of Gwendolyn Edwards, who lived in the apartment below his, to report that his girlfriend, Francine Sims, was dead. Edwards went up to Cathrens apartment and saw that Sims was in fact dead. The police and paramedics were called, and it was discovered that Sims bled to death from an abdominal stab wound that pierced her liver. Cathren was eventually charged with murdering Sims (Pen. Code,  187, subd. (a)), inflicting corporal injury on a cohabitant (Pen. Code,  273.5, subd. (a)), and making terrorist threats (Pen. Code,  422) to both Edwards and Diljana Hardy, another witness who lived nearby. The court granted Cathrens motion for judgment of acquittal on the terrorist threat count as to Hardy, and the jury convicted him of second degree murder along with the other two remaining counts. With the addition of certain prior conviction and weapons use enhancement allegations, Cathren was sentenced to more than 37 years in state prison.

Edwards testified that Sims and Cathren fought and argued all the time and she sometimes heard Sims tell Cathren to stop. Cathren told Edwards many times that he wanted to kill Sims, but Edwards did not take those threats seriously. Hardy, who lived in the apartment building next door to Cathren and Sims, saw that Sims had a very swollen black eye about one or two months before her death. When Hardy asked Sims about it, Sims laughed it off and said nothing had happened. Hardy saw Cathren later that day and asked him what happened. He first said a bee had stung Sims in the eye, but later admitted that he punched Sims because she had hit him with a pipe. Hardy did not notice any sign of an injury on Cathren.

Charles Wilson was also Cathrens downstairs neighbor. Wilson testified that at 10:00 p.m. on November 4, Cathren asked him to buy Cathren some rock cocaine. Cathren gave Wilson $20, and Wilson used it to buy cocaine from a dealer operating behind a nearby liquor store. Cathren shared some of the cocaine with Wilson, then, about 11:00 p.m., asked Wilson to buy him another $10 worth of rock cocaine. Wilson did so. When Wilson delivered the second cocaine rock to Cathrens apartment, Wilson saw nobody else inside the unit.

Sometime between 11:00 p.m. and midnight on November 4, 2004, Hardy saw Sims heading up the stairs to Cathrens apartment. They spoke briefly and Sims appeared to be in no physical distress. Gwendolyn Edwards testified that late in the evening, one or two days before seeing Sims dead in her apartment, Sims came to her apartment. They spoke for a short time, and then Sims left and walked up the stairs to Cathrens apartment. Sims did not look like she was in discomfort or pain. A few hours later, Edwards heard Sims and Cathren arguing again. Sims yelled, Stop, Darrell and Cathren, using an angry tone, told her, Shut up, bitch. Sims sounded distressed. Soon after, Edwards heard Sims call out, Mama, help. That was the last sound Edwards heard from Cathrens apartment that night.

Wilson testified that around 9:00 a.m. on November 5, 2004, Cathren came to his apartment and gave him money to buy soup and crackers for the lady because she was sick. Wilson did so. Sims went to her mothers house every day to help care for her disabled brother. When she did not show up by 10:00 a.m., on November 5, 2004, the mother phoned Sims at Cathrens apartment. The mother phoned 10 times that day, but nobody answered. Sims called her mother every day, especially if she was not coming over, and the mother did not hear from Sims at all that day. At around 10:00 a.m. on November 5, Cathren saw Hardy and asked if she wanted to walk with him to the store, where he planned to buy soda for a neighbor. When they got to the store, Cathren went to the stores pharmacy to buy some gauze dressing for a wound on his hand. Hardy told him the wound was just a small cut that needed no more than a band-aid. Cathren did not find any gauze. He bought some sodas, walked back to his building, and gave one to the neighbor. When Hardy asked where Sims was, Cathren said she was sleeping.

When Cathren came to Edwardss apartment right after midnight on November 6, 2004, to report Simss death, he used Edwardss phone to call Simss mother and let her know Sims was dead. Cathren then called 911. Edwards said she wanted to see Sims and walked upstairs to Cathrens apartment. Sims was in the bedroom lying naked on the bed, with one leg and both arms up like someone had sex with her. Edwards did not see any blood or visible wounds. There were also no bloody towels or bandages around. Instead, Sims was on a clean white sheet and it looked as if Sims had been cleaned up. Edwards asked what had happened. Cathren told her she was stabbed around the corner. Cathren then gave Edwards a cocaine pipe wrapped in a white towel and told her, Take this. I dont want it up here.

Two Los Angeles police officers arrived at Cathrens apartment at 2:56 a.m. on November 6. They found Sims face-up on the bed, naked, with her eyes open and at least one clenched fist. Her body was very stiff from rigor mortis. Los Angeles County coroners investigator Brenda Shafer arrived at 8:55 a.m. Although Simss hands were sticking up, Shafer was able to break the rigor mortis with very little pressure, indicating that the rigor mortis was softening up. Full rigor mortis is reached between 12 and 24 hours after death, and the softening up process sets in at 24 to 36 hours after death. The room temperature and the temperature of Simss liver were both 71 degrees. Factoring in Simss slender build, Shafer concluded that Simss body temperature indicated a time of death of somewhat less than 24 hours before she arrived at Cathrens apartment.

Los Angeles County Deputy Sheriff Steve Lankford arrived at Cathrens apartment just before 7:00 a.m. on November 6. He found Sims lying naked on the bed, face-up, with both eyes open. He saw blood coming from a stab wound on Simss abdomen. On the bed was a pair of womens underpants, a t-shirt, and a pair of white pants, each of which was bloodied. A lot of blood had soaked through the blanket and into the mattress under Simss body. A blood-stained t-shirt and white towel were on the floor near the bed. The t-shirt had two cuts in it. A drop of blood was on the bathroom floor, and there were bloodstains on a pillow that was on a couch, as well as on the wall at the top of the stairwell outside Cathrens apartment. In a trash bin behind the apartment building, Lankford found open gauze packages and bloodied gauze. A box of the same type gauze was on the floor in Cathrens bathroom.

Cathren told deputies that Sims went out to buy drugs and, when she came back, said someone had stabbed her. The deputies searched the area where Cathren claimed the stabbing occurred, but found no witnesses or physical evidence, and there was no trail of bloodstains leading away from that location toward Cathrens apartment. In a later taped interview with Lankford, Cathren said Sims was stabbed sometime between 11:00 and 11:30 p.m. on November 4. He tried to take care of her, and was the only other person in their apartment from the time she came back until the paramedics arrived. They had sex sometime during the morning of November 5, and Sims was in a little bit of pain. She ate some hot dogs and drank some punch, and later they drank beer and smoked cocaine. At some point, Sims left the bedroom and went to the couch, where she watched television. He checked on her sometime around midnight and she was breathing. When he checked on her again at 1:00 a.m. on November 6, she was stiff and cold, and there was feces on the bed.

Cathren had agreed to meet Deputy Lankford at Cathrens apartment on November 8. When Lankford showed up, he learned that Cathren had moved out and left no forwarding address. In April 2005, Cathren came to Edwardss apartment around midnight and asked to use her bathroom. She let him in, and after Cathren was through in the bathroom, he started threatening Edwards. He told her she had to move away within 30 days because he did not want to leave any loose ends. He also thought about shooting up Edwards apartment. Hardy, who is apparently Edwardss goddaughter, was staying with Edwards that night and witnessed this incident. According to Hardy, Cathren offered Edwards cocaine if she would leave with him. He told Edwards she had 30 days to leave or he would shoot her house up. When Hardy said Edwards needed more time, Cathren said, No, if she doesnt leave, Im going to shoot her, shoot up her house. I have to close my loose ends. Cathren said Edwards was a loose end and that he would not go to prison. Cathren stepped out onto the porch and did a little dance, saying he had a dream where everybody was dead. Cathren told Hardy she should leave with him and he would show her a good time. Hardy declined, and Cathren said if she did not stay away from Edwardss house, he would tell Hardys mother.

The autopsy results showed a fatal stab wound that went completely through Simss liver. The wound would have caused a loss of five cups of blood to internal bleeding before Simss heart stopped. The wound would have also bled externally. Sims most likely died within minutes of being stabbed, and it was unlikely she lived for many hours. Two knives found in Cathrens apartment could have caused the particular wound inflicted on Sims. A partially digested hot dog was found in Simss stomach, which was probably consumed a few hours before her death.

Cathrens ex-wife testified to a 1995 incident where Cathren tried to abduct one of their children, culminating with Cathren punching her and stabbing her with a pen when she resisted.

Cathren testified and denied killing Sims. He and Sims had been out the night of November 4, 2004, and returned home around 8:00 p.m. They drank beer and used rock cocaine for the next 30 minutes. Sims left to get cigarettes at some point and returned around 10:00 p.m. They drank more beer and used more cocaine until 10:30 or 11:00 p.m., when Sims left to buy more cocaine from a local dealer. She returned about 11:30 p.m. with a stab wound. Sims said she had an altercation with a drug dealer who stabbed her. Sims saw a few blood spots on Simss shirt. He said she should take off the shirt and Sims removed all of her clothes. She had a wound that was like a run or drip that was barely bleeding and looked like a scratch. The bleeding stopped after Cathren applied pressure to the wound with a towel. Cathren put some gauze on the wound. They then took a hit of cocaine, drank some beer, and watched television until they went to sleep between midnight and 12:30 a.m. on November 5. Cathren did not call 911 for help because he had cocaine pipes in the apartment and had just been released from parole.

Cathren said they slept through the night and woke at 8:00 a.m. Sims was hungry and Cathren cooked her some hot dogs around 9:00 a.m. About 10:00 a.m. he left to get soda for a neighbor, then spoke with the neighbor for awhile. When he returned to the apartment, he spoke briefly with Sims, and then watched television. When he asked Sims about her injury, she said she was fine and did not want a doctor. Her wound did not look serious, so he believed her. As Sims moved about the apartment throughout the day, she did not complain of pain, and her wound did not bleed. At one point, Cathren changed the dressing because there was a little blood and pus on it. After cleaning his apartment at 1:00 or 2:00 p.m., he went to change Simss gauze, but she was not bleeding. He lay down with Sims and woke up between 6:30 and 7:00 p.m. When he awoke, Cathren asked Wilson to get him soup and crackers. When Wilson returned with those items, Cathren asked Sims if she wanted soup. Sims declined, so Cathren gave her juice instead. He then sent Wilson to get him rock cocaine, beer, and cigarettes.

When Wilson returned with those items at around 7:40 p.m., Sims came out of the bedroom, smoked some rock cocaine, and drank some beer for about 20 minutes. She then went back to the bedroom and got into bed. Cathren fell asleep on the couch while watching television and woke around 8:30 p.m. or so. He saw Sims fluffing her pillow. Cathren fell asleep again, and then woke to use the bathroom. He then saw feces on the bed, and discovered Sims was dead. He denied telling Deputy Lankford he had sex with Sims after she returned with the stab wound. He also claimed the other witnesses were lying, that the police moved Simss body around and planted bloodstain evidence, that Edwards disliked him because he had served eviction notices on her several times, that he did not know Lankford had been looking for him, and that he did not move out of his apartment until November 10 or 11.

Paul Delhauser, a Los Angeles police sergeant, testified on rebuttal as a prosecution expert witness concerning the blood splatter patterns on the bloodstained clothing found near Simss body. The t-shirt worn by Sims had cut marks that Delhauser referred to as defects. There were apparently no bloodstains around these defects. After examining the shirt and experimenting with the same size shirt on a petite woman, Delhauser believed this was explained by the fact that Sims was bent down toward her attacker when she was stabbed and because the loosely fitting shirt prevented the areas of cut fabric from aligning with the slowly-bleeding wound site. He also believed that the blood stain patterns of Simss other items of clothing indicated that the clothes were removed from her body within two or three minutes after she was stabbed.

Cathren contends there was insufficient evidence that he killed Sims, requiring reversal of the murder and corporal injury to a cohabitant convictions, and that the court erred in qualifying Delhauser as an expert witness.^[1]

DISCUSSION

1.                  There Was Sufficient Evidence That Cathren Killed Sims

Cathren bases his insufficiency of the evidence argument on his own version of events, and certain forensic evidence that he says corroborates his account. These include: the fact that Sims ate hot dogs four or five hours before her death, which could have occurred anywhere from 8:55 a.m. to 8:55 p.m. on November 5, with his delay in noticing her death caused by cocaine intoxication; the bloodstains on the pillow near the couch, which showed Sims in fact sat on the couch and watched television, as Cathren testified; and the bloodstains outside Cathrens apartment, which showed that Sims came back from her aborted drug purchase with the stab wound.

When considering an insufficiency of the evidence claim, we review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. To be substantial, the evidence must be reasonable, credible, and of solid value. Where circumstantial evidence is present, we must consider not just the evidence, but all logical inferences that arise from the evidence. We may not substitute our judgment for the jurys. If the circumstances reasonably justify the verdict, we may not reverse merely because the circumstances might also support a contrary determination. Instead, we may reverse only if it clearly appears that upon no hypothesis whatever is there substantial evidence. (People v. Poindexter (2006) 144 Cal.App.4th 572, 577.)

We choose to supplement these rules with an analytical principle attributed to literatures most famous fictional detective, Sherlock Holmes: . . . [W]hen you have excluded the impossible, whatever remains, however, improbable, must be the truth.^[2] The impossible here is Cathrens contention that Sims returned home with her fatal stab wound at 11:30 p.m. on November 4 after an altercation with a drug dealer. Coroners investigator Shafer testified that as of 8:55 a.m. on November 6, Simss liver had dropped from a normal body temperature of 98.6 degrees to room temperature of 71 degrees. Body temperature drops 1 degree per hour after death, on average, indicating that Sims had already been dead for 27 hours. But, based on Simss slender build, Shafer believed death occurred somewhat less than 24 hours earlier. That puts her time of death at perhaps somewhere around 10:00 or 11:00 a.m. on November 5, roughly 12 hours after the time Cathren claims she returned home with her stab wound.^[3] According to the autopsy physician, however, Sims most likely died within minutes of her wound, and it certainly did not take many hours for her to perish.

Therefore, the undisputed scientific testimony shows it was impossible for Sims to have been stabbed at 11:30 p.m. on November 4, as Cathren contends. Yet, according to Cathren, not only was Sims stabbed at that time, over the next 20 hours or so she was well enough to smoke rock cocaine, drink beer, watch television, fall asleep, wake up and have enough of an appetite to eat hot dogs, move around the apartment throughout the day, and have more beer and cocaine, all the time claiming she felt fine as blood flowed from her pierced liver into her abdominal cavity. In short, Cathren has heaped the improbable atop the impossible.

Unlike the Holmes analysis, however, we are not left with the improbable. Instead, the evidence supports a most plausible scenario: that Cathren stabbed Sims. He had a history of fighting with and injuring Sims and had threatened to kill her several times. Hardy and Edwards both saw a seemingly healthy Sims head up the stairs into Cathrens apartment late in the evening of November 4.^[4] A few hours later, Edwards heard Sims and Cathren arguing, and also heard Sims yell repeatedly for Cathren to stop, culminating in a cry of Mama, help, followed by silence. When Edwards saw Simss body shortly after midnight on November 5, there was no blood or visible wound, and the body looked as if it had been cleaned up. When the police arrived a few hours later, however, blood was visible, suggesting that Cathren did clean up the body before alerting the authorities, but that blood began to escape the body again over the next few hours.^[5] Add to this Cathrens history of domestic violence, his late-night move to a new residence, and his threat to shoot Edwards because she was a loose end, and a reasonable jury could conclude that Cathren killed Sims.

2.                  The Blood Splatter Expert Was Qualified

Cathren objected below that Delhauser did not qualify as a blood splatter expert witness, and he contends on appeal that the trial court erred by allowing Delhauser to testify. In order to qualify as an expert, the witness must have sufficient special knowledge, skill, experience, training, or education to qualify as an expert on the subject of his testimony. (Evid. Code,  720, subd. (a).) The witnesss qualifications may be shown by any otherwise admissible testimony. (Evid. Code,  720, subd. (b).) The trial court has considerable latitude in making this determination, and we review the trial courts ruling on this matter under the abuse of discretion standard. (People v. Bloyd (1987) 43 Cal.3d 333, 357.) If a witness shows he has sufficient knowledge of his subject to put his opinions before the jury, the question of the extent of the witnesss knowledge goes more to the weight of the evidence than to its admissibility. (People v. Bolin (1998) 18 Cal.4th 297, 322.)

Delhauser testified that he had taken courses on the subject that equated with a masters degree, including an advanced 40-hour course in blood splatter interpretation for criminalists and an 80-hour course in death investigations that also covered the subject of interpreting blood splatters. His coursework covered the contents and properties of blood, the dynamics of blood in flight, interpreting blood splatters to determine both the angle and the height from which blood fell in order to approximate its origins, patterns from bloodstained objects, and blood projection from high and low velocity gunshots, blunt force, and passive motion or the effect of gravity. He also studied crime scene reconstruction in terms of the directionality of blood stains. He had qualified as an expert witness on this subject eight times.

Cathren points to decisions where a blood splatter expert was held to have been properly qualified in part because the expert had college degrees in chemistry and physics and had successfully conducted experiments many times that confirmed his expertise (People v. Carter (1957) 48 Cal.2d 737, 749-750), or where, in addition to attending lectures and receiving training, the expert conducted relevant experiments and visited crime scenes to conduct blood splatter tests (People v. Clark (1993) 5 Cal.4th 950, 1018-1019, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22), or where the witness was a sheriffs department criminalist with advanced degrees and other specialized training, and had taught classes on the subject. (People v. Combs (2004) 34 Cal.4th 821, 849.) That Delhauser had different, and arguably less, training and experience than the expert witnesses in those cases did not make him unqualified. Given his extensive training in the subject area, we hold that he was properly qualified as an expert, and that any supposed gaps in his background were subjects to be explored on cross-examination so the jury could determine what weight to give his testimony.

Alternatively, even if error occurred, given the weakness of Cathrens evidence, and the overwhelming evidence of his guilt, we hold that the error was harmless because a different result was not reasonably probable.^[6]

DISPOSITION

For the reasons set forth above, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, ACTING P. J.

WE CONCUR:

BIGELOW, J. BENDIX, J.^*

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^[1] Cathren originally contended that the court violated the marital privilege (Evid. Code,  972) when it compelled his ex-wife to testify about their domestic violence incident. When respondent pointed out that there was a proper ground for admitting the evidence, Cathren withdrew the argument.

^[2] Arthur Conan Doyle, The Adventure of the Beryl Coronet (1892).

^[3] Cathren contends Shafer testified that Sims could have died anywhere between 8:55 a.m. and 8:55 p.m. on November 5. He has misread her testimony, however. Shafer gave that 12 hour time period as an estimate based on the textbook information concerning the 24 to 36 hour post-death time frame for transitioning out of full rigor mortis. Her testimony about the slightly less than 24 hour time frame came in response to more specific questioning based on the drop in body temperature.

^[4] We recognize that Edwards said she saw this one or two days before Simss body was found in the early morning hours of November 6, but, under the substantial evidence rule, the jury could reasonably conclude that this took place the night of November 4. Our conclusion is bolstered by Edwardss testimony that it was a few hours later that she heard Sims and Cathren arguing, ending with Sims cry of mama, help.

^[5] Cathren contends this shows the police altered the scene and planted blood evidence. This assertion is factually unsupported, however, and at most raises an evidentiary conflict. The same is true for the bloodstains near the couch and outside the apartment, which Cathren contends supports his version of events. At most, these facts raise an evidentiary conflict and the jury could reasonably conclude that the bloodstains were caused during Cathrens clean-up efforts.

^[6]As we earlier observed, Cathren makes no specific arguments on appeal on his terrorist threat conviction, so we do not address that count.

^* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.