P. v. Denny

Filed 3/9/07 P. v. Denny CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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The question posed by this appeal is whether the trial court abused its discretion by limiting defense cross-examination of a witness who accused defendant Jerome Jackson Denny, Jr., of uncharged sexual misconduct 16 years earlier. Having been convicted of two counts of child molestation, defendant asserts he was denied his constitutional rights to confront his accuser, to present a defense, and to due process and a fair trial by the courts inappropriate constriction of his cross-examination of his former sister-in-law, who, pursuant to Evidence Code section 1108, testified to alleged crimes for which defendant had never been charged or convicted. We affirm because we cannot say the trial court abused its discretion (Evid. Code, 352) or that the prohibited cross-examination would have produced a significantly different impression of [the witnesss] credibility to constitute a violation of defendants constitutional rights. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 [89 L.Ed.2d 674, 684] (Van Arsdall).)

FACTS

We begin with an overview. The prosecution charged defendant with one count of molesting ten-year-old Jasmine (Pen. Code, 288, subd. (a)), nine counts of molesting eight-year-old Desiree with force (Pen. Code, 288, subd. (b)(1)), and an enhancement based on committing lewd and lascivious offenses against two victims (Pen. Code, 667.61, subd. (e)(5)).^[1]Both girls, who are sisters, testified at trial, but Desirees testimony was riddled with inconsistencies and inaccuracies. The credibility of their stories was enhanced, however, by the damning testimony of 30-year-old Ruth, who testified defendant had committed a series of sexual acts on her when she was 13 and 14 years old. Initially the jury deadlocked on all nine counts involving Desiree. After further encouragement by the court, the jury resumed deliberations and returned a guilty verdict on one count against each of the girls. It would be difficult to overstate the significance of the Evidence Code section 1108 evidence in this trial.

Then-11-year-old Jasmines testimony was rather straightforward, although she spoke softly and with considerable hesitation and difficulty. Jasmine lived in an apartment unit with her parents, sister, and brother in the same complex as defendant. Defendant and Jasmines mother were friends. Defendant played with Jasmine and her siblings at the pool, and on a couple of occasions, he babysat them.

Jasmine explained to the jury that one afternoon she fell asleep in a chair in the living room while defendant was playing a game on the computer nearby. She awoke when she felt a finger rubbing her vagina over her underwear, and as she opened her eyes, she saw defendant move his hand and back away. He asked her, Are we going to fix the bike? Everyone else in the house was asleep. She did not tell her mother what happened for a few days because she was afraid her mother would be upset. Jasmine said this was the only time defendant had touched her inappropriately, she never observed him touching anybody else in a bad way, and he did not show her any adult magazines.

Her nine-year-old sisters testimony was much more detailed. Desiree told the jury that defendant had made her squeeze what she called his thingamajig or tentacles 10 times and wipe it 20 other times. According to Desiree, he would grab her wrist and force her to squeeze or wipe his thingamajig. The first time it happened, she told an investigating police officer, they were sitting outside watching a sunset together. She could say how long she squeezed because she counted it in her head. The last time it happened, she explained, her sister Jasmine was watching and counting and finally told defendant to stop.

Although at trial she could not say when either the first or the last incident occurred, Desiree told an investigating sheriffs deputy on July 19, 2004, that the first molestation occurred in December and the last had occurred the previous Wednesday. She told the officer that a young girl should not know about that stuff yet. She testified defendant forced her to wipe or squeeze his private parts even though she did not want to, and he hurt her arm.

At trial Desiree testified her mother was the first adult she told about the molestations, but during a prior interview she had said she told neighbors, defendants children, and her friends. She did not tell her mother sooner because the same thing had happened to her mother and she would reject it. At trial she testified she did not think her mother would believe her and she felt scared and embarrassed.

Ruth was 30 years old and married when she testified at trial. She had five sisters, four of whom had different fathers. Her oldest half-sister had been married to defendant. Ruth testified that when she was 13, she spent the night with this half-sister and defendant. Before she went to sleep on the couch, defendant told Ruth not to wear any underwear because he wanted to have some fun later. According to Ruth, defendant awakened her, pulled her to the end of the couch, licked inside her vagina, and then exposed his penis and rubbed it against her vagina. She recalled giggling and laughing but was afraid her sister would wake up.

Ruth also told the jury that a week later defendant pulled out his penis while she was sitting on the couch with him and had her put her mouth around it. She pulled away because it tasted salty. The following year, when she was 14, defendant escorted her into a bedroom because he wanted to have relations with her. He sat on the bed and rubbed his penis until white stuff came out, and that made her feel sick. At trial, Ruth testified she tried to run out of the room but defendant grabbed her and tried to force her into the bathroom, but she had not told the police that when she was interviewed at the time. She managed to open the door and flee.

She also testified to other acts of molestation while her sisters were around. But she never told her half-sister because she was trying to protect her and was afraid she would break down and cry or get angry. Finally, she told her father, and she admitted at trial she had wanted to live with her father at the time. But she denied making the allegations against defendant with the hope of living with her father. She also denied making up the allegations to get back at her half-sister for anything.

Defendant was neither charged with nor convicted of any of the crimes alleged by Ruth. He attended her wedding several years after she made these allegations.

Defendant testified on his own behalf. He denied molesting Jasmine, Desiree, or Ruth. A neighbor testified that Desiree never told him defendant had forced her to put her hand on his thingamajig. Defendants children testified the girls seemed happy and cheerful around defendant, and they did not hesitate to have their friends to the apartment in defendants presence. One of his daughters friends testified defendant had never done anything inappropriate with her.

DISCUSSION

The prosecution resisted defendants repeated attempts to provide a context and background to Ruths allegations. In pretrial proceedings, defendant urged the court to allow him to expose the molestations rampant in Ruths family. If the prosecutor was allowed to present the Evidence Code section 1108 evidence, defendant insisted the nasty truth should not be sanitized. He requested the opportunity to cross-examine Ruth about whether her stepfather had molested her and whether her half-sister had alleged she had been molested by Ruths father. He also sought to explore whether Ruths parents had been engaged in a custody battle and the extent to which Ruth had desired to live with her father rather than her mother. While the court allowed limited forays into Ruths preference to live with her father and to protect her stepsister, it curtailed any cross-examination relating to molestations perpetrated by other family members against either Ruth or her half-sister.

The court ruled: The Defense is seeking to present evidence that [Ruth] was also molested by her stepfather and the circumstances under which she was living. [Ruth] reported the conduct by this Defendant when she was 14 years old. This is not a situation where a very young child could be confused as to the identity of the perpetrator. This is not a situation where it could be argued that [Ruth] learned about sexual acts that she would not otherwise know about with one perpetrator and then attribute these acts to the Defendant.

[Ruth] was approximately 14 years old when she reported the sexual conduct of this Defendant. She is now an adult. If she was molested by another person when she was a child, that molest is not relevant to whether the Defendant in this case did or did not also molest her. Even if there was some marginal relevance, which the Court does not find exists in this case, the Court finds that the prejudicial effect strongly outweighs any slight relevance or probative value.

Defendant argued he should be allowed to cross-examine Ruth as to her knowledge that her half-sister had been molested by Ruths father and that she was aware of that at the time that she made these allegations, which she was 14 years old, as I believe it goes to her motive, bias and credibility and should be permitted. But the court also excluded this evidence of molestation, explaining: The issue of whether this witnesss half sister was or was not molested by the half sisters father is not -- I do not find relevant in this case, and under Evidence Code Section 352, as well as grounds of relevancy, my ruling on this matter stands.

Intrinsic to a defendants fundamental constitutional right to present a defense is the right to confront and cross-examine the witnesses who testify against him. (People v. Burrell-Hart (1987) 192 Cal.App.3d 593, 599; In re Anthony P. (1985) 167 Cal.App.3d 502, 506-507.) [T]he right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this countrys constitutional goal. (Pointer v. Texas (1965) 380 U.S. 400, 405 [13 L.Ed.2d 923, 927].) To date, cross-examination remains the greatest legal engine ever invented for the discovery of the truth. (People v. Brock (1985) 38 Cal.3d 180, 197.)

[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness. ([Van Arsdall, supra,] 475 U.S. [at p.] 680 . . . , quoting Davisv.Alaska (1974) 415 U.S. 308, 318 . . . .) (People v. Frye (1998) 18 Cal.4th 894, 946 (Frye).) Neither the confrontation clause nor state law, however, affords the right to unlimited cross-examination. (People v. Sully (1991) 53 Cal.3d 1195, 1219.) Trial courts retain wide latitude to impose reasonable limits on cross-examination without violating the confrontation clause to prevent prejudice and confusion of the issues or to curtail interrogation that is repetitive or marginally relevant. (People v. Morse (1992) 2 Cal.App.4th 620, 642 (Morse).) The ordinary rules of evidence, including the exercise of the courts discretion pursuant to Evidence Code section 352, do not compromise a defendants right to a fair trial or to present his defense. (Frye, supra, 18 Cal.4th at p. 948; Morse, supra, 2 Cal.App.4th at pp. 641-642.)

Thus, in spite of his fundamental right to present a defense with searing and probative cross-examination of an Evidence Code section 1108 propensity witness, on this record defendant faces two insurmountable appellate hurdles. He must demonstrate that the prohibited cross-examination would have produced a significantly different impression of Ruths credibility to prove a breach of the protections afforded by the confrontation clause. (People v. Hillhouse (2002) 27 Cal.4th 469, 494.) And to justify appellate intervention, he must demonstrate that the trial court exercised its discretion under Evidence Code 352 in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.] (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)

We address each of the three occasions in which defendant argues his right to cross-examine Ruth was improperly abridged. Two of the three areas about which he wished to interrogate Ruth, and could not, involved alleged molestations by other family members. First, he sought to question Ruth whether her half-sister, who was defendants wife, had accused Ruths father of molesting her. He hoped to convince the jury that Ruths testimony that she was merely protecting her half-sister by not disclosing to her that her husband was molesting Ruth was at least partially untrue. Rather, if, as defendant asserts, Ruths half-sister had accused Ruths father of molestation, Ruth might have accused defendant of sexual misconduct as revenge. He argues his inability to impeach Ruth allowed the jury to believe she had a positive relationship with her half-sister when actually she harbored resentment against her for making those allegations about her father.

We recognize that the admission of propensity evidence strains a criminal defendants ability to present a defense where, as here, the trial court restricts cross-examination presumably more than would have been allowed had defendant been charged and tried on the allegations when they were made 16 years earlier. Nevertheless, the trial court continues to have the same wide latitude to limit cross-examination of Evidence Code section 1108 witnesses as any other witness who testifies against a defendant. (See People v. Falsetta (1999) 21 Cal.4th 903, 916-920.) Even if we would have allowed a more vigorous and wide-ranging exploration of the witnesss credibility, we cannot reverse the judgment absent an abuse of discretion. Here we can find no abuse of discretion.

Defendant was allowed to ask Ruth if she was trying to protect her half-sister. He inquired, Did you -- did you make up these -- make up these incidents to get back at your sister for anything? She responded, No. He was allowed to explore further: Did you and your sister . . . [] [t]he answer is, no, you werent doing this to get back at your sister . . . ? Again she answered, No. He further inquired, Did you and your sister . . . have any type of arguments prior to you making these allegations? And again she replied, No. While he would have liked to expose the fact that her sister had accused Ruths father of molesting her, we cannot say the prohibited cross-examination would have produced a significantly different impression of Ruths credibility. (Van Arsdall, supra, 475 U.S. at p. 680.) Whatever friction there might have been between Ruth and her sister during adolescence, the reality was that at least 16 years had passed since her sister allegedly accused Ruths father of molesting her. By the time Ruth testified at trial, she was 30 years old, her sister had attended her wedding 5 years earlier, and she continued to maintain a relationship with her. The court could reasonably conclude that any animosity the 14 year old might have harbored against her sister would have dissipated over time. If not, the potential impact of those old scars would have diminished over time. At least in the context of a trial on entirely different charges, it is unlikely that the disclosure to the jurors would have made any difference to them in assessing Ruths motivation to testify against defendant at age 30 and repeat the allegations she made against him when she was 14.

Indeed, the trial court sought to avert many potential problems that allowing the testimony would create. There was the danger that the jurors would be distracted from evaluating the evidence of the pending charges as the trial became a mini-trial on the uncharged offenses. Had the court allowed defendant to probe into the allegations Ruths half-sister had made against Ruths father, the jury might have become more focused on the truth of that molestation than on the assessment of the evidence that defendant had molested Jasmine and Desiree. We cannot say the trial court abused its discretion by narrowing the scope of the cross-examination about a matter that bore only minimally on the witnesss credibility and ran the risk of consuming an undue amount of time.

During closing argument, the prosecutor commented that Ruths description of defendants penis as salty was [a]n interesting description if it didnt happen. In his motion for a new trial, defendant complained that he had been precluded from questioning Ruth about her other potential experiences with sexual misconduct, which would have suggested her descriptive vocabulary had been broadened by incidents with other molesters. Earlier, he had argued that evidence of other molestations was significant to show whether she might have fantasized or had emotional problems that would account for the fabricated accusations against defendant.

Ruth was 30, not 14, when she testified at defendants trial. At best, any testimony that she had been subjected to other instances of molestation was only minimally probative of her credibility. Even if, as defendant contends, she had been forced to engage in sexual intercourse with someone else before the age of 14, it is quite a stretch to suggest she was fabricating the charges against defendant 16 years later and at a time when she had presumably acquired more sexual experience. At the time of trial, the testimony was only marginally relevant, if at all.

While the evidence was only slightly probative and would not have significantly altered the jurors perceptions of Ruths credibility, we cannot say the trial court abused its discretion by foreclosing an examination of other possible instances of sexual abuse. We must defer to the courts assessment of how much time should be allowed to explore collateral matters, particularly in an area unlikely to illuminate her credibility. Defendant suggests a pattern of sexual abuse of Ruth and her sisters as they were growing up with a multitude of fathers, stepfathers, and brothers-in-law. Even in the context of Ruths sad family history, the trial court was not obliged to reconstruct those sordid facts with mini-trials about who was molested by whom over 16 years earlier.

We saved the most innocuous area of inquiry for last. Defendant also claims he should have been allowed to ask Ruth whether her parents were involved in a custody battle at the time she accused defendant of sexual misconduct and at a time when she desired to live with her father. He was allowed to inquire: [Ruth], did you want to live with your father during this period of time? She responded, Yes, I did want to live with my father. He further asked: Did you make a decision to tell your father to make -- to tell your father about allegations against [defendant] with the hopes that he would -- with the hopes that you could go live with him? She answered simply, No. He remains disappointed he was unable to specifically ask about the custody dispute.

Defendant overstates the potential benefit he could have reaped from further cross-examination about any legal proceedings involving custody. Ruth admitted she wanted to live with her father, and she denied making the allegations to bolster the likelihood she could live with him. Whether her parents were, in fact, embroiled in a legal custody battle would add little to what she had already told the jury. Her desire to live with her father, whether or not custody proceedings were pending, allowed defendant to argue the witness fabricated the charges against him in the hope of moving in with her father. There are obvious holes in defendants logic: that somehow Ruths fabricated charges against him enhanced the likelihood she would be able to live with her father. We need not belabor the discussion of this twisted logic because we conclude the trial court did not abuse its discretion by allowing limited cross-examination on such a tangential issue.

Defendant advances fundamental principles of law upon which our criminal justice system is built. No one disputes his fundamental right to present a defense, including his Sixth Amendment right of confrontation. But the cross-examination he sought simply does not measure up to the mighty rights he champions. Having studied the entire record carefully to assure defendant had the opportunity to present his defense, we conclude the courts measured restriction of his cross-examination did not abridge defendants constitutional right to confront a key witness for the prosecution. Nor did the trial court abuse its discretion by foreclosing cross-examination into areas bearing only slightly on the witnesss credibility but with the potential to devolve into mini-trials about other molestations that were alleged a very long time ago.

The judgment is affirmed.

RAYE , J.

We concur:

SCOTLAND, P.J.

DAVIS , J.

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^[1] The names of the victims have been changed to protect their privacy.