P. v. Douglas

Filed 8/16/06 P. v. Douglas CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed.

Bennette Lee Douglas appeals a judgment arising out of his conviction of two counts of first degree murder. He contends that the court committed reversible error by (1) refusing to redact portions of the transcript of a taped telephone conversation in which he referred to his prior incarceration and denying his motion for a mistrial based on the admission of a transcript of another telephone conversation from which similar references were inadvertently only partially redacted; and (2) improperly instructing the jury with CALJIC No. 1.02. He also contends that the prosecutor committed misconduct by contending in closing argument that (A) specific intent is an element of voluntary manslaughter, and (B) defense counsel's job in this case was analogous to having been assigned the task of pushing a boulder uphill. We agree with Douglas's arguments that the admission of the references to his prior incarceration and the prosecutor's argument regarding specific intent were error, but conclude that these errors do not require a reversal of the judgment. Otherwise, we reject his arguments and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On July 21, 2003, a passerby found the body of 18-year-old Jennifer Ross partially buried in a shallow grave in the Reidy Creek flood control channel in Escondido. Jennifer's upper body was wrapped in gray duct tape, with her arms and wrists bound behind her back. Her lower body was exposed from the waist down, her sweat pants having been pulled down around her ankles, which were also bound with duct tape. An autopsy identified asphyxia as the probable cause of death and suggested that the body might have been in that location since July 13.

After Jennifer's father, Joseph Ross, identified objects taken from the body as Jennifer's, the police focused their investigative efforts on 19-year-old Douglas, Jennifer's on-again, off-again boyfriend, who was the last person seen with her alive, who had been seen driving her red Honda Civic in the weeks after her disappearance and who lived 2.2 miles from the burial site. Undercover officers conducted surveillance of the home where Douglas lived with his stepmother and her children; they saw Jennifer's Honda, partially covered with a blanket, in the garage of the home.

On July 29, the police had Mr. Ross make a pretext call to Douglas; during the conversation, Douglas told Mr. Ross that when he last talked to Jennifer, about a week previously, she had asked him for money and told him she was going to Florida. Douglas also claimed that he had not seen Jennifer's car since they drove to Magic Mountain in June. When Mr. Ross asked Douglas who would try to hurt Jennifer, Douglas suggested that a Mexican man named Hugo, Jennifer's boss from work with whom she had had an affair, might have had a motive to do something to her.

The same day that he talked to Mr. Ross, Douglas also spoke to Escondido Police Sergeant Diana Provost on the telephone and made similar statements. When Provost confronted him about having Jennifer's car in his garage, Douglas admitted he had lied about not seeing it and claimed that Jennifer's close friend, Heather Steimer, had left the car at his house on July 22. (Heather herself disappeared on July 22nd.) Although Douglas continued to assert his innocence of any wrongdoing in connection with Jennifer's death, he agreed to surrender himself into police custody.

After arresting Douglas, officers searched his stepmother's home. They found Jennifer's cell phone and her car, the interior of which had been largely stripped down, in the garage. They also found Heather's luggage, which held her clothing, photographs, artwork and high school diploma, totes and a backpack with her driver's license, social security card and bank cards inside and a roll of duct tape that was later determined to have been the source of the tape used to bind Jennifer's wrists and ankles. Outside, the officers found some of Jennifer's clothing in trash cans and several shovels. Inside, they discovered a disposable camera that had been Jennifer's, Heather's cell phone and the stub of a paycheck issued in Heather's name.

During interviews with police, Douglas admitted that he had killed Jennifer, but claimed that he was forced to do so by a group of Mexican men who kidnapped him. (Evidence of this interview was not introduced at trial.) On July 31, Douglas was charged with Jennifer's murder.

On August 13, Heather's body was discovered in a shallow grave at the east end of Mountain View Park, which was near Douglas's home. The cause of death could not be determined, although an autopsy concluded that Heather's death was a homicide and suggested that the body was buried no later than July 22. An amended complaint was thereafter filed, charging Douglas with both murders and adding a double homicide special circumstance allegation.

Trial on the charges commenced in May 2005. The prosecution introduced evidence of the foregoing, as well as the testimony of numerous witnesses who had seen Douglas driving Jennifer's car or who had seen the car at his home after she disappeared. One witness placed four or five young Black men (Douglas is Black) in a red Honda near the location where Jennifer's body was buried, on July 20. One of Douglas's close friends, Veloice Crosby, testified in part that on July 28 Douglas admitted having killed Jennifer and asked him to provide an alibi; when asked why he did it, Douglas told Crosby that Jennifer had paid several thousand dollars to have him killed.

As to the second murder, the prosecution introduced evidence that Heather went to a gas station on the evening of July 21 after telling friends that Douglas was going to pick her up there and that she was seen getting into a red Honda Civic at the gas station at 1:30 a.m. It also introduced forensic evidence that one of the shovels found at Douglas's home contained soil particles inconsistent with the soils in the vicinity of the home, but consistent with the soils in the area where Heather's body had been buried. In addition, the evidence showed that after the time that Heather got into the red Honda at the Shell station, the calls made from her cell phone were only to Douglas's girlfriend, Celia Welch, and his family. The prosecutor also elicited evidence that Douglas wrote a letter to Celia shortly after he was incarcerated, asking Celia to tell his stepmother and father to deny ownership of the shovels and to say that it was unlike him to have done something like this.

Defense counsel did not present any evidence on Douglas's behalf, but instead contended that the prosecution's evidence was insufficient to support a guilty verdict on either count. Specifically, counsel argued that, if Douglas had been Jennifer's murderer, he would not have driven Jennifer's car around after her disappearance, nor would he have called Jennifer's father and stepmother to tell them he had heard about the discovery of a body and expressing concern that it might be Jennifer. In addition, the defense contended that the evidence showed both Jennifer and Heather were having problems at home and that Heather was abusing drugs, thus creating questions about who else might have been associating with them during the relevant time period.

After deliberating for three days, a jury convicted Douglas of both counts, finding him guilty of murder in the first degree and finding the special circumstance allegation true. The court sentenced Douglas to two consecutive terms of life without the possibility of parole. Douglas appeals.

DISCUSSION

1. Admission of Evidence of Douglas's Recent Release from Custody

During the telephone conversation between Douglas and Sergeant Provost on July 21 (the Provost conversation), Douglas made several references to the fact that he had recently been released from jail. In response to defense counsel's concerns to the admission of the audiotape and the transcript of this conversation at trial, the court and counsel agreed that those references should be redacted. The court reviewed the transcript and provided counsel with a list of seven references that should be redacted; it also specifically inquired whether there were any additional references it had missed. Both counsel indicated that they would review the transcript and defense counsel later pointed out one further reference for redaction. Defense counsel also requested redaction of portions of the second taped telephone conversation, this one between Douglas and Mr. Ross on July 21 (the Ross conversation), in which they referred to Douglas having gotten "out."

Unfortunately, the list of redactions to the Provost audiotape and transcript was incomplete and the materials thus inadvertently retained a colloquy that referred to Douglas's release from jail three months' earlier. As the audiotape was being played to the jury, defense counsel requested a sidebar to point out the reference and to inquire whether the identified redactions had been made. After receiving assurances that the listed redactions were made, the court allowed the remainder of the tape to be played to the jury; it offered to instruct the jury to disregard the inadvertent reference, but noted that doing so might bring the matter to the jury's attention. Defense counsel did not request such an instruction at that time, but the next day moved for a mistrial based on the inadvertent admission. The court denied the motion.

After the parties rested, defense counsel challenged the admissibility of the previously objected to portions of the Ross conversation, contending that, in light of the inadvertent admission of references to his client's time in custody in the Provost conversation, it was clear that the references in the Ross conversation were also to Douglas's release from incarceration. The court admitted the audiotape and transcript of the Ross conversation without redaction, although it granted defense counsel's request that the jury not be provided with either of these materials absent a specific request.

In instructing the jury, the court indicated that the jurors could not consider the testimony that Douglas had previously been in custody and placed on probation for taking a car as evidence against him in this case. During its deliberations, the jury requested, and was given, the fully redacted transcript and the tape of the Provost conversation and the unedited transcript and tape of the Ross conversation.

On appeal, Douglas contends that the court's denial of his motion for a mistrial based on the inadvertent admission of the incompletely redacted audiotape of the Provost conversation and its refusal to redact the audiotape and transcript of the Ross conversation violated his due process and fair trial rights.

A. Denial of Mistrial Motion

A motion for a mistrial should be granted only where there is prejudice to the defendant that is "incurable by admonition or instruction," a matter that is to be determined by the trial court in its sound discretion. (People v. Cox (2003) 30 Cal.4th 916, 953.) On appeal, we review the trial court's denial of a mistrial motion for an abuse of that discretion. (People v. Maury (2003) 30 Cal.4th 342, 434.) We find no such abuse.

Here, there is no question, and Douglas does not dispute, that the court and counsel intended for the jury to hear and receive only a redacted version of the Provost conversation that omitted the references to Douglas's prior incarceration. Douglas nonetheless contends that the prosecutor had a duty to ensure that the redaction was properly carried out and that his failure to comply with that duty in this case constituted prosecutorial misconduct. We need not reach this issue, however, as the parties agree that in any event the relevant question is whether the inadvertent admission of the challenged portions of the conversation resulted in prejudice that was incurable by admonition or instruction.

On this question, we agree with the trial court's conclusion that the playing of the audiotape containing a reference to Douglas's recent release from jail was adequately cured by the admonition that the jury could not consider this material "in any way" as evidence establishing Douglas's guilt. The reference to Douglas's prior incarceration was brief and made clear that that incarceration had been in jail rather than in prison. Although the admission of this evidence was error, the evidence was not of such a nature as to be incurable by admonition or instruction. Thus, the trial court correctly denied Douglas's motion for a mistrial based on the admission of the evidence.

B. Refusal to Redact the Audiotape and Transcript of the Ross Conversation

Evidence that a defendant committed misconduct other than that currently charged is inadmissible to prove that he has a bad character or a disposition to commit the charged crime, although such evidence is admissible if relevant to prove, among other things, intent, knowledge, identity, or the existence of a common design or plan (Evid. Code, § 1101, subds. (a), (b); People v. Kipp (1998) 18 Cal.4th 349, 369) or, where the prior offenses involved moral turpitude, the evidence is admissible to impeach a defendant who testifies at trial (People v. Harris (2005) 37 Cal.4th 310, 337.) The erroneous admission of prior bad act evidence will support a reversal of the conviction only if it is reasonably probable that the jury would have reached a more favorable result if the evidence had been excluded. (People v. Cole (2004) 33 Cal.4th 1158, 1195; see also Evid. Code, § 353 [miscarriage of justice].) This determination "focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration." (People v. Breverman (1998) 19 Cal .4th 142, 177, italics in original.)

Here, even if we assume, without deciding, that the jury would have understood the somewhat vague statements during the Ross conversation as referring to Douglas's release from jail shortly before the murders, we nonetheless find that the admission of such evidence was harmless, for several reasons. As noted above, the statements related to Douglas having spent time in jail rather than prison and separate evidence indicated that his incarceration arose out of him having stolen a car, an offense that was not at all similar to the charges for which he was being prosecuted in this case. The issue had already been presented to the jury through Mr. Ross's testimony, elicited by defense counsel on cross-examination, that Douglas had "been in some trouble and . . . needed to get clear of that" and the court specifically instructed the jury that it could not consider the testimony relating to Douglas's prior incarceration "in any way as evidence against him." Under these circumstances, and given the strength of the evidence implicating Douglas as the murderer of Jennifer and Heather, there is no reasonable probability that the jury would have reached a different conclusion if the challenged references had been redacted from the audiotape and the transcript of the Ross conversation. (See People v. Hall (1998) 67 Cal.App.4th 128, 136.)

2. Giving of CALJIC No. 1.02

CALJIC No. 1.02 states:

"Statements made by the attorneys during the trial are not evidence. However, if the attorneys have stipulated or agreed to a fact, you must regard that fact as proven as to the party or parties making the stipulation.

"If an objection was sustained to a question, do not guess what the answer might have been. Do not speculate as to the reason for the objection.

"Do not assume to be true any insinuation suggested by a question asked a witness. A question is not evidence and may be considered only as it helps you to understand the answer. Do not consider for any purpose any offer of evidence that was rejected, or any evidence that was stricken by the court; treat it as though you had never heard of it." (Italics added.)

Douglas contends that the giving of this instruction violated his constitutional right to due process because the italicized language told the jury not to speculate as to why a sustained objection was made, but did not similarly admonish jurors not to speculate why an overruled objection was made.

The Attorney General responds that Douglas has waived this argument by failing to object to the instruction or to request a clarifying instruction below. Generally, a defendant who believes that an instruction is erroneous or requires clarification must request correction or clarification of the instruction to avoid waiving the issue on appeal. (People v. Coddington (2000) 23 Cal.4th 529, 584, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) However, the appellate courts will nonetheless entertain a defendant's challenge to an instructional error that affects his or her substantial rights, even if the error was not raised in the trial court. (Pen. Code, § 1259; People v. Coffman (2004) 34 Cal.4th 1, 103, fn. 34.) The determination of whether there was an error that affected Douglas's substantial rights essentially requires an examination of the issue on its merits, which we will proceed to analyze.

Douglas contends that because the instruction was incomplete, it did not preclude jurors from speculating as to why an objection that was later overruled was made and that this prejudiced him because it allowed jurors to speculate that defense counsel was trying to hide evidence that pointed to his guilt, thus impugning defense counsel's integrity and in effect creating a sense of doubt as to his innocence. There are several problems with this argument. First, we agree with the Attorney General's suggestion that this interpretation of the instruction is based on an undue parsing that the jury would not have had the time or energy to engage in. (See Boyde v. California (1990) 494 U.S. 370, 380-381 [recognizing that "[j]urors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might"].) Second, the instruction was apparently written with the practical understanding that a jury is much more likely to speculate on why the court sustained an objection when no answer is permitted; where an objection is overruled and the evidence allowed, the significance will usually be apparent and does not cause speculation at all, either as to why the question was asked or why the objection was made.

Douglas nonetheless contends that the instruction promotes a widespread misconception by the public that defense attorneys "have little regard for the truth or the law . . . [and would] try to get their clients off however they can," by whatever means possible, whether ethical or not. However, Douglas's proffered interpretation of the instruction could as easily work against the prosecution as the defense, with the jury reaching a conclusion that the prosecutor was overzealously seeking to keep out evidence that might exonerate a defendant or that would reflect poorly on its witnesses' credibility, so as to ensure a conviction at any price.

In any event, jurors are clearly aware that defense counsel's job is to represent the defendant and thus would presumably not be surprised that defense counsel would try to keep out evidence that was damaging to his or her client. Our review of the record here does not establish that defense counsel so frequently made unsuccessful objections to evidence that the jury would have concluded that counsel was acting improperly or unethically in an all-out effort to obtain an acquittal.

Finally, in light of the extensive circumstantial evidence implicating Douglas in each of the murders and the absence of any evidence pointing to some other culprit, it is not reasonably probable that the result in this case would have been different if the court had given a modified instruction specifically telling the jury that it should not speculate as to the reason why an objection that was subsequently overruled was made.

3. Prosecutorial Misconduct

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. Samayoa (1997) 15 Cal.4th 795, 841.) Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." (Ibid.) When the alleged misconduct consists of the prosecutor's comments in front of the jury, the relevant question is whether there is a reasonable likelihood that the jury construed or applied any of the comments in an objectionable fashion. (Ibid.)

A. Argument that Voluntary Manslaughter Requires Specific Intent to Kill

Douglas contends, and the Attorney General agrees, that the prosecutor erred in arguing to the jury that voluntary manslaughter requires a specific intent to kill. (See also People v. Lasko (2000) 23 Cal.4th 101, 109-110.) The Attorney General contends, however, that the prosecutor's error was not prejudicial. We agree. The court expressly instructed the jury that comments by attorneys are not evidence (CALJIC No. 1.02, as quoted infra) and that they must decide all questions from evidence and no other source (CALJIC No. 1.03) and we must presume that the jury followed these instructions. (People v. Yeoman (2003) 31 Cal.4th 93, 139.) Further, since the felony-murder rule is inapplicable here, the jury's conviction of Douglas of first degree murder establishes that the jurors found he acted with the specific intent to kill, thus negating the existence of any harm from the prosecutor's misstatement.

B. Description of Defense Counsel's Role as Pushing a Boulder Uphill

In his brief rebuttal closing argument, the prosecutor made the following argument to the jury:

"Ladies and gentlemen, I have the opportunity to address you one last time. And I would submit to you . . . the case has not changed one bit. Miss Cannon [counsel who made the closing argument for the defense], as good an attorney as she is, is faced with the unenviable attempt to move a boulder up a mountain. You push it up two feet, and it falls back four."

After the prosecution finished his argument, defense counsel objected that the analogy denigrated her role, suggesting it was "something I don't want to be doing because my client is guilty." The court rejected the objection, noting that the comment was merely "an assessment of the evidence."

On appeal, Douglas contends that the prosecutor's comment was misconduct because it "graphically conveyed the notion that defense counsel was condemned to a punitive task not of her choosing," a task that she knew had no hope of success, as in the myth of Sisyphus and suggested that the defense bore a burden of proof that could not be met. The Attorney General responds that Douglas cannot now raise this issue because he did not adequately preserve it in the proceedings below and that, in any event, there was no misconduct. We agree with the latter proposition and thus will assume, without deciding, that Douglas's objection in the proceedings below was adequate to preserve the issue for appeal. (See People v. Samayoa, supra, 15 Cal.4th at p. 841 [requiring that a defendant who complains on appeal of prosecutorial misconduct to have made a similar objection, in a timely fashion and on the same ground, and to have requested that the jury be admonished to disregard the impropriety].)

Here, contrary to Douglas's contention, the prosecutor's comments did not impugn his counsel or suggest that she knew Douglas was guilty; rather, in the context of the prosecutor's initial closing argument, which emphasized the substantiality of the evidence of Douglas's guilt, the comments merely referred to the fact that defense counsel had the difficult task of trying to establish a reasonable doubt as to his guilt. These comments, which were undoubtedly viewed by the jury as the words of an advocate attempting to persuade (see People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8), did not suggest that Douglas had the burden of proof.

In any event, even if the comments had permitted an erroneous inference, the court instructed the jurors that the attorneys' comments did not constitute evidence (CALJIC No. 1.02, as quoted infra) and that they were required to decide all questions from evidence and no other source (CALJIC No. 1.03), instructions the jurors are presumed to have followed. (People v. Yeoman, supra, 31 Cal.4th at p. 139.) Accordingly, any error in making the comments was harmless and does not support a reversal of the convictions.

DISPOSITION

The judgment is affirmed.

McINTYRE, Acting P. J.

WE CONCUR:

AARON, J.

IRION, J.

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