P. v. Lankford
Filed 11/19/13
P. v. Lankford CA4/4
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opinion has not been certified for publication or ordered published for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
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
DESMEN LANKFORD,
Defendant and Appellant.
A133944
(Alameda County
Super. Ct. No. C163147)
A
jury convicted appellant Desmen Lankford of two counts of
§ 187, subd. (a)) and found true the allegations that he personally used a
firearm (§§ 12022.5, subd. (a), 12022.53, subd. (d)) and personally
inflicted great bodily injury (§ 1203.075) when he committed the murders. He was also convicted of being a felon in possession
of a firearm (§ 12021, subd. (a)(1)), and ammunition (§ 12316, subd. (b)(1)). Sentenced to life in prison without the
possibility of parole, Lankford appeals.
He contends reversal is required because the trial court erred by
admitting his statements to a jailhouse informant because they were obtained in
violation of his right to counsel. Lankford
further contends that various evidentiary errors require reversal.
We affirm.
A. The
Murders
Around
midnight on September 18, 2008, Christopher Morris was walking his two dogs on
Sacramento Street in South Berkeley. As
he approached Carleton Street, Morris noticed an individual walking between
Carleton and Derby Streets on Sacramento and another individual coming around
the corner on Carleton onto Sacramento.
The two men were walking in the southbound direction on the other side
of the street from Morris. The
individual walking in front was a Black male, between five-eight and six feet
tall, wearing a brown sweatshirt. The
other individual was a half-block behind the first and was shorter and
skinnier.
a skeleton on it. This man was in the
process of putting his hood up on his head and Morris thought he was a Black
male as well. Morris did not notice
anything distinctive about the second man’s hair.
The
two men walked at a good pace, which Morris described as neither hurried nor
relaxed. Morris saw the man with the
skeleton sweatshirt stop and reach for something around his ankle. Both men turned right onto Derby Street. Morris continued walking his dogs towards the
intersection of Sacramento and Derby Streets and the two men disappeared from
his view down Derby Street. As he
approached Derby Street, Morris heard two gunshots, followed quickly by a
second set of gunshots. It came from the
same vicinity where the two men had gone.
Following the second round of shots, Morris saw a red four-door sedan,
with the driver as the lone occupant, drive through the intersection of Derby
and Sacramento and crash into a parked car.
The car came from the same direction where the two men had gone. Morris took cover behind a car and called
911.
B. The
Investigation
at the Scene
Officer
Robyn Fuentes of the Berkeley Police Department responded to the scene. When she arrived, she saw what appeared to be
a vehicle collision between a red Chrysler and a green Honda. There was severe front end damage to the
Chrysler and considerable damage to the rear end of the Honda. The Honda was unoccupied and appeared to be
parked.
Officer
Fuentes approached the Chrysler and observed the lone occupant in the driver’s
seat. The car was smoking and still
idling and inching forward. The driver,
later identified as Kelvin Davis, aka “Twin,†suffered severe head wounds from
gunshots to the head. Davis had a faint
pulse, but later died from the multiple gunshot wounds.
Meanwhile,
Berkeley Police Officer Lionell Dozier arrived at the scene, where he saw a
body lying in the street. The body was
later identified as Kevin Parker, aka “KK.â€
Parker was unresponsive and with multiple gunshot wounds to the head,
which were later deemed to be the cause of death. Numerous shell casings were found around
Parker’s body. There were 12 .40 caliber
casings and two .357 caliber shell casings.
There was also a live .357 round at the scene, as well as bullet
fragments. One .357 shell casing was
found on the right rear passenger door of the Chrysler.
Detective
David Marble of the Berkeley Police Department also had been dispatched to the
scene. As the designated lead detective,
Detective Marble was responsible for writing the majority of the police report
and testifying in court. He found bullet
fragments underneath Parker’s head.
2. Ralph
White aka “Bony Ralph†Arrested in Unrelated Matter
On
the evening of September 25, 2008, Detective Marble received a call from
Detective Chu of the Berkeley Police Department Narcotics Unit. Detective Chu had arrested an individual named
Ralph White aka “Bony Ralph†in connection with a narcotics violation. Detective Chu told Detective Marble that
White wanted to speak with someone from the Homicide Division regarding the
murders of Davis and Parker. Detective
Marble interviewed White at the Berkeley Police Department the following day.
White
told Detective Marble that appellant was responsible for the homicides. White came across appellant quite often in
the course of his (White’s) work as a cocaine dealer, selling both crack and
powder. Appellant was one of White’s
customers; the two would frequently stop and talk to each other. Appellant came over to White’s residence a
couple of times a week to socialize, smoke marijuana, and buy cocaine. Appellant went by the nickname of “Spice†and
was associated with the North Oakland street gang, a rival of the South
Berkeley gang.
White
knew victim Kelvin Davis. Kelvin Davis
was known as “Twin†because he had a twin brother named Melvin. White also knew of victim Kevin Parker, but did
not know his real name. White only knew
him as “KK.†Both Kelvin and Melvin
Davis were associated with the rival South Berkeley gang.
The
day after the murders of Davis and Parker, appellant came over to White’s
apartment. Appellant was acting normally
and they smoked marijuana together.
Appellant asked White if he knew anyone who wanted to buy a .357
gun. Shortly thereafter, appellant asked
White if he had heard about the murders of Davis and Parker. Appellant said he saw Davis at a gas station on
6th and Ashby. Davis was sitting inside
a car with another individual. Appellant
was also with someone in his car.
Appellant watched the two men for a while and saw Davis switch seats and
get into the driver’s seat. Appellant
followed the men in his car to Derby and Sacramento. When Davis stopped the car, appellant drove
past and parked around the corner. From
his position, appellant could see Davis and Parker smoking a blunt.
blunt for a while, appellant got out of his car and snuck up on the two
men. Appellant admitted killing Davis
and Parker. Appellant told White that he
went up on the driver’s side and shot the two men in the car. According to appellant, Davis hit the gas
pedal after he was shot and tried to drive off.
Parker managed to get out of the car and attempted to run off. Appellant told the person he was with to go
and shoot Parker because he could identify them. Appellant’s partner shot Parker. Appellant and his cohort ran off after shooting
the victims.
Appellant
told White that the intended target actually was Melvin Davis, but since he
could not find Melvin, killing his twin brother Kelvin was good enough. White said appellant never identified his
partner in crime, but White added that in the month before the homicides,
appellant only hung around with Wilkins Owens aka “Wick-Wack.†In an attempt to corroborate White’s
statement, the police searched the red Chrysler and found two blunts from the
car.
3. Appellant’s
Arrest and Related Residential Search
In
October 2008, Officer Larry Robertson of the Oakland Police Department Targeted
Enforcement Task Force (TETF) received information that appellant might be
staying at 1718 13th Street and that he went by the alias of Jason Johnson. At that time, Officer Robertson, who worked
in surveillance, was a plain clothes officer with long hair and a beard, and he
drove an unmarked car.
On
October 9, 2008, Officer Robertson, along with other members of the TETF,
surveilled the area around 1718 13th Street.
For approximately two hours, Officer Robertson, who was alone in his
unmarked car, was parked directly across the street from the residence. From this vantage point, he was able to see
an individual, believed to be appellant, coming in and out of the residence on
several occasions. He could not tell if
appellant used a key to gain access, but could see that appellant did not knock
on the door. Around 8:00 p.m., Officer Robertson
saw a green Chrysler arrive; appellant left the residence, got behind the wheel
of the Chrysler and drove off. Officer
Robertson radioed the arrest team and advised them to stop the car. While appellant was detained at the traffic
stop, Officer Robertson and other team members entered 1718 13th Street and
conducted a search.
During
that search, officers recovered a black hoodie with a white skeleton design
from a bedroom believed to be appellant’s room.
They also found a loaded Sig Sauer .357 magnum semi-automatic pistol in
the closet of appellant’s bedroom, along with ammunition for a .357 caliber
weapon and a .45 caliber weapon. A pink,
digital camera was recovered from appellant’s bedroom; the camera contained
several photographic images of appellant, holding guns in his hands. Drug paraphernalia, including cutting agents,
a funnel, plastic baggies, a scale, and toy balloons used to package narcotics
were also found in the house.
Evidence
The
.357 Sig Sauer retrieved from the closet in appellant’s bedroom was tested and
found to be in proper functioning condition.
The .357 casings found at the scene of the murders all were fired from
the same weapon, the .357 Sig Sauer found in appellant’s residence. Moreover, bullet fragments found at the scene
had the same class characteristics as the Sig Sauer, in terms of number of
grooves, number of lands, and the direction of the twists, but there was not
enough detail to make a definitive identification. They could not have been from a .40 caliber
weapon. All of the .40 caliber casings
and bullet fragments were fired from one firearm.
The
skeleton hooded sweatshirt observed by witness Morris and found in appellant’s
residence was also analyzed. Possible
gunshot residue was found on the right and left sleeves of the sweatshirt,
suggesting that the sweatshirt was in close proximity to a gun as it was
discharged or it came into contact with a surface contaminated with gunshot
residue. It could not be determined how
long the residue had been on the sweatshirt.
C. Gordon
Gray: Jailhouse Informant
On June 23, 2010, Gordon Gray was placed in North County Jail
in connection with a felony assault with a deadly weapon count. Upon arriving at North County, Gray was
assigned to appellant’s cell. About a
month or so after appellant and Gray became cellmates, appellant began telling
Gray about the charged murders, as well as his involvement in the murder of
Ronnie Easley. Appellant told Gray that
he and his “ ‘coz’,†Will Owens aka “Wick Wack,†killed two men because of a
feud with a rival gang. Appellant said
he used a .357 Sig Sauer, while Owens used a .40 caliber. Appellant told Gray that the police had the
.357 Sig Sauer and also had his girlfriend’s camera with photos of the gun he
used. Appellant said he was “ ‘scared
about those photos.’ â€
Appellant
revealed that he had told an individual named Bony Ralph about the murders and
that Bony Ralph turned around and testified against him at his preliminary
hearing. Appellant told Gray he had been
sending coded letters to a friend about getting rid of Bony Ralph, but he did
not think his friend understood what needed to be done. Appellant talked to Gray about when Gray
would be released and asked Gray to deliver “letters†and “paperwork†to
appellant’s brother, Chris P. aka “Blast Holiday†that would boldly explain
that Bony Ralph needed to be killed.
Sometime between September 22, 2010, and October 6, 2010, appellant
asked Gray if he would kill Bony Ralph when Gray got out of jail. The plan was for Gray to deliver the
“paperwork†to Chris P. and that Gray, Chris P., and Wick Wack would “hook upâ€
and set out to kill Bony Ralph.
Meeting with the District Attorney
On
October 14, 2010, after advising his attorney that he wanted to talk to someone
at the district attorney’s office, Gray met with Deputy District Attorney James
Meehan and District Attorney Investigator Philip Dito at North County Jail.
admitted to committing the charged murders.
Appellant also admitted that he killed an individual named Ronnie Easley
and that he “ ‘did 10 months on it.’ â€
Gray
revealed that appellant had asked him to deliver some “paperwork†upon his
release from custody. Gray also said
that appellant asked him for help in killing Bony Ralph. Gray agreed to speak with Berkeley homicide
investigators regarding the statements made to him by appellant. No specific promises were made to Gray during
this interview, but he was advised that he might be able to resolve his case
with a nonprison term in exchange for his cooperation as a witness.
First Meeting with Detective Marble
On
November 9, 2010, Gray met with Detective Marble at North County Jail.
appellant described the circumstances of the charged murders, as well as his
involvement in the murder of Ronald Easley.
According to Gray, appellant liked to brag about his criminality,
discussing how he killed Easley, as well as saying that he had knowledge about
another murder that happened about two weeks ago. According to Gray, appellant said that Gary
Ferguson was killed as part of the “Berkeley North Oakland feud.†Apparently, one of appellant’s friends,
“White Boy,†was shot and another person was killed. Appellant told Gray that a “dude†named
“Colione†killed Ferguson in retaliation.
Detective
Marble told Gray that he was the lead detective in the Ferguson case and that
the information Gray provided about that case was “very important†but
ultimately not usable because it was hearsay.
However, as to the Easley murder, Detective Marble explained that he
could use that information because, even though the charges had been dropped,
it was “technically still open.â€
Detective Marble asked Gray if appellant had mentioned any other
murders, explaining that the jury would hear about this and other character
evidence. Gray said that appellant
talked about “trying to kill other people . . . [but] [h]e never
really says anything about who he killed.â€
When it appeared that Gray was annoyed about appellant not actually naming
the other people, Detective Marble advised him: “Just be careful about, you
know, questioning him . . . .â€
Gray
told Detective Marble about appellant’s efforts to solicit his assistance in
killing Bony Ralph and in delivering certain “paperwork†upon Gray’s release
from custody. During the interview,
Detective Marble made no promises to Gray and neither directed Gray to question
appellant about his case nor asked Gray to encourage appellant to write letters
for Gray to deliver. Gray told Detective
Marble that he intended to give the letter to the police, but he did not want
to actually deliver it because he did not want to be involved in the
conspiracy. When Detective Marble asked
Gray what he would do if the police asked him to follow through and deliver the
letter, Gray said, “Then I would deliver . . . I would do that.†Detective Marble replied, “Well that would be
something that we would really have to consider. Now you didn’t want to do it. That’s one thing. We can’t force you to do it.†Gray added, “I don’t want to do it but see he
trusts me . . . I just didn’t know if it was a good thing for you
guys to think that I should deliver that letter.†Detective Marble responded with the
following: “I just automatically assumed that we would get the letter. We would Xerox [it] and then . . .
have it delivered but you brought up a good point and it is your safety
. . . . You know, if you
were to deliver that letter and something were to happen to you that could be a
problem. So I’ll talk to the district
attorney about that.†Gray offered that
the police could follow him to “a neutral safe spot†where it would be less
likely that appellant’s associates would try to do anything.
Second Meeting with Detective Marble
On
December 15, 2010, Gray again met with Detective Marble. In this second interview, Gray reiterated
that appellant openly discussed the murders of Davis and Parker. Gray said he was supposed to take “some paperworkâ€
to appellant’s brother, Chris P., regarding the planned murder of Bony
Ralph. Gray told Detective Marble that
he told appellant he would meet up with Chris P. and Wick Wack and that they
would kill Bony Ralph. Gray explained
appellant asked him about it many times and that he assured appellant he would
make it happen. However, Gray never had
any intention of joining in this plan.
Rather, his real plan was to let the police know about appellant’s plot
to kill Bony Ralph.
D. Trial
1. Appellant’s
Pre-Arrest Confession
White
testified at trial pursuant to a plea bargain, under which his pending cases
were dismissed. White identified a
photograph of appellant from 2008, depicting him with long dread locks to the
shoulder. Consistent with what he told
Detective Marble, White testified that appellant admitted to killing Parker and
Davis.
2.
Detective Marble testified
that upon Gray’s release from custody, he handed over letters that appellant
had given him to deliver to his friends.
In one letter addressed to “Cash Flow,†dated December 19, 2010,
appellant said he hoped that Cash Flow could understand his hidden message, “I
gotta put that to keep them off my hidden message. So I be hope’n you read between the lines. I could really give a fuck about a lawyer
right now. My question is why this nigga
still walk’n around breath’n, (Bony Ralph)?â€
Appellant also wanted to know about what was being done about the attack
on “WhiteBoi,†also known as Anthony Thomson. The letter is signed by “Cold Gunnaz Finest,â€
“Spice City.†Detective Marble testified
that “Cold Gunnaz†is the name of appellant’s gang, and appellant has these
words tattooed on his forearms.
name="_ftnref7" title="">[7] Detective Marble also testified that “Spice
City†was a nickname for appellant. Also
included in the envelope to “Cash Flow†was a six-page summary of White’s
statement to the police and transcript of an interview with White.
In
another letter to “Kleet Da Muthafuckin Banga,†aka Jason Johnson, appellant’s
cousin, appellant said to him, “At trial I’ma need you to put it on alot
thicker then you did at prelim bout the house (west) and room and shit. I know that shit scary to get up on that
stand, but this time around you gotta get up there wit confidence and swagg
like you ain’t got a care in the world cuz it’s gone be in front of the jury! Don’t trip I’ma write down all the questions
and answers fa you that my lawyer gone ask you and all you gotta do is read and
go over it and spit it on the stand best you can. My lawyer gone have a copy of the same
questions and answers you got so everythang gone be on point. All you gotta do is stick to the script. I told my mom to ask you was you gone claim
the gun in the room? I know that seem
like sum scary shit to do but in all actuality it’s not. They can’t charge you wit the gun cuz the gun case
is over a year old, . . . they can’t charge you wit the murders on the gun cuz
they don’t have no body to say you had sumthin to do wit the murders so that’s
a dead issue. If they ask you who gun
was in the room, you say mine then you gonna go into a story about how you
bought the gun off the streets from somebody who dead now. Blah, blah, blah.†Appellant next said that it was Bony Ralph
who informed on him to the police.
Appellant urged his cousin and all his friends to find Ralph and to get
some handguns. Appellant also said that
he was “sick†about “WhiteBoi†being dead.
He then ordered his cousin to tear up the letter after reading it.
3. Appellant’s Recorded
Telephone Calls From Jail
The prosecution introduced
evidence of telephone calls appellant made from jail to his friends that were
intercepted by the police. In these
conversations, appellant expressed his concerns about the police finding
photographs of him holding handguns. He
also worried about his fingerprints being found on the handgun. He said he had let his guard down and hoped
he would not have to fight a homicide charge.
In another conversation, appellant spoke to an individual at the 13th
Street apartment—the residence that had been searched by the police. In response to appellant’s question, “Is the
house fucked up?†a female responded, “Yes, it is. I’m cleaning up your room right now.†Appellant told the female, “Go sleep in my
room.†During this call, appellant also
spoke with an unidentified man and expressed his concern about the photographs
on the camera. Appellant also told the
man that the police “took my baby mamma keys . . . and went to go see
if any key fit the door . . . .†The man said that he did not see a marked
police car outside on the day of the search.
Appellant responded, “Nope I didn’t see one. But I don’t live there though, blood. That ain’t my house nigga . . . You
feel me?†The man agrees and says, “They
ain’t got nothing.†Appellant
reiterates, “[t]hat ain’t my house that ain’t my parole address, I don’t live
there. You all didn’t see me coming out
of there.â€
In a third telephone
conversation with Wilkins “Wick Wack†Owens, appellant discussed how to dispose
of the .40 caliber handgun. They also
talked about the .357 Sig Sauer handgun.
In a later conversation with Anthony Thompson, Thompson informs
appellant that Wilkins has been going around talking and telling everyone about
what happened. Appellant tells Thompson,
“Make sure you niggas put a lid on my cousin, man fast. Check that nigga on everything.â€
4. Jailhouse
Graffiti About Gray Found in Appellant’s Cells
Graffiti
was found on the walls of three cells where appellant had been housed. It said, “Gordo Gray is a snitch. He’s from the Dubbs. He’s rappin and shit.†The graffiti was signed by “Spice.†White testified that while he was in custody
pending the drug charges in August 2011, he was placed in a single cell for
“keep-separate†inmates, where he noticed the graffiti about Gray on a cell
wall. To White, the graffiti was a
message alerting others that Gray was a snitch and that someone wanted to hurt
Gray. Deputy Dennis Armstrong of the
Alameda County Sheriff’s Department explained that the graffiti served as a
message board to other inmates to notify them to be aware of a particular
individual.
5. Gray Disappears Before
Testifying
Just
before the start of appellant’s trial, the district attorney and his
investigator met with Gray. Gray was
cooperative and was served with a subpoena to appear as a witness. On the day of his expected testimony, Gray
was escorted to the witness waiting room.
Gray, however, left at the lunch break and did not reappear. Gray failed to appear at trial and a bench
warrant was issued.
Repeated
efforts to locate Gray were unsuccessful. Gray’s attorney testified that Gray had talked
to the district attorney’s office and worked out a deal where he would testify
against appellant. In exchange, Gray
would receive probation instead of a state prison sentence if he agreed to
testify truthfully at appellant’s trial.
He pleaded guilty to assault with a semiautomatic firearm and being a
felon in possession of a firearm. Gray’s
attorney explained that he had been unable to track down Gray and he had not
heard from him.
13th Street Apartment
Appellant’s cousin, Jason
Johnson, testified that in 2008, he and his brother Glen lived in the lower
unit of a house located at 1718 13th Street in Oakland. They each had their own room and a third
bedroom was unoccupied but sometimes other people stayed there. Appellant spent several days a week at the
13th Street apartment. Johnson called it
a “little kick-it spot,†to play video games and hang out with women. However, Johnson and his brother Glen were
the only ones with keys; Johnson assumed that Glen let appellant into the
apartment.
In September 2008, Johnson
spent a lot of his time in Pittsburg with his pregnant girlfriend. The only mail Johnson received at the 13th
Street apartment was from his brother Jarrell Johnson, who was serving time in
state prison. Johnson realized appellant
had been using his name as an alias. Johnson
testified that appellant used his name without his permission. Johnson did not keep any weapons or
ammunition in the residence because the terms of his probation prevented him
from keeping any weapons. After he found
out that the police had conducted a search of his house in October 2008,
Johnson went to the house to check on its condition. All his personal belongings were still there.
He testified that the gun and the camera
found inside the house did not belong to him.
Johnson also identified a
photograph of appellant wearing the hoodie with the skeleton bones. Johnson used to own a similar sweatshirt that
he kept at the apartment, but he never saw appellant wear it. Johnson explained that there is nothing
unique about the skeletal hoodies, noting that he has seen other people wearing
the same sweatshirts.
7. Defense Witnesses
Appellant’s
parole officer met with him in 2008 at an address on Alcatraz Street. The parole officer had no knowledge of
appellant having any connection to 1718 13th Street.
Jarrell
Johnson, appellant’s cousin and brother of Jason Johnson and Glen Clark, was
serving time in Solano State Prison.
During the six years that he had been in prison, he had never written to
appellant. He, however, frequently sent
letters to his brother Jason at the 13th Street apartment.
Appellant contends the trial court erred by admitting the
letters Gray gave to the police that contained his jailhouse statements. He argues that the statements he made to Gray were
obtained in violation of his Sixth Amendment right to counsel. (See Massiah v. United States (1964) 377 U.S. 201, 205-207 (
agent deliberately eliciting incriminating statements from him. Appellant asserts that this violation of Massiah
was prejudicial.
In the trial court, appellant moved
to exclude Gray’s testimony as taken in violation of Massiah, alleging
that Gray was a government agent who deliberately elicited incriminating
statements from him. After hearing, the
trial court ruled that Gray was not a government agent because the police did
not create a situation likely to provide it with incriminating information from
appellant. The court noted that the
police did not find out about Gray until he volunteered information to them. It deemed Gray to have acted on his own
initiative rather than at the behest of the government. Thus, the trial court ruled that Gray’s testimony
about what appellant told him was admissible and it denied appellant’s motion
to exclude that testimony on Massiah grounds.
B.
Applicable Law and Standard of
Review
Once an adversarial
against an accused, the constitutional right to counsel attaches. From that time on, any incriminating statement
that the government deliberately elicits from the accused in the absence of counsel
is inadmissible at trial against that defendant. (Massiah, supra, 377 U.S. at pp.
205-207; In re Neely (1993) 6 Cal.4th 901, 915; In re Wilson
(1992) 3 Cal.4th 945, 950, cert. den. sub nom. California v. Wilson
(1993) 507 U.S. 1006; see Maine v. Moulton (1985) 474 U.S. 159, 170; see
also U.S. Const., 6th & 14th Amends.) The government actor need not be a regular
government employee. If an accused’s
cellmate acts as a government agent, an incriminating statement
by that jailhouse informant is likewise inadmissible. (United States v. Henry (1980) 447 U.S.
264, 269-274 (Henry); see Kuhlmann
v. Wilson (1986) 477 U.S. 436, 458; Maine v. Moulton, supra, 474
U.S. at pp. 173-174 [informant surreptitiously recorded accused’s statements].)
To prove a Sixth Amendment Massiah
violation in a case involving a jailhouse informant, the defendant must establish
that both the government and the informant took some action, beyond merely
listening, that was designed deliberately to elicit incriminating remarks. (Kuhlmann v. Wilson, supra, 477 U.S.
at p. 459; In re Neely, supra, 6 Cal.4th
at p. 915; In re Wilson, supra, 3
Cal.4th at p. 350.) Specifically, the
evidence must show that the informant (1) acted as a government agent or was under
the direction of the government pursuant to a preexisting arrangement, with the
expectation of some resulting benefit or advantage; and (2) deliberately
elicited incriminating statements. (Kuhlmann
v. Wilson, supra, 477 U.S. at p. 459; People v. Fairbank (1997) 16
Cal.4th 1223, 1247, cert. den. sub nom. Fairbank v. California (1998)
525 U.S. 861 (Fairbank); In re Neely, supra, 6 Cal.4th at p. 915;
see People v. Frye (1998) 18 Cal.4th 894, 993, cert. den. sub nom.
Frye v. California (1999) 526 U.S. 1023, disapproved on other grounds by
421, fn. 22.) The critical inquiry in
informant cases is whether the government made a knowing exploitation of an
opportunity to coax information from a formally charged suspect in the absence
of counsel. (People v. Gonzalez
(1990) 51 Cal.3d 1179, 1240, cert. den. sub nom. Gonzalez v. California
(1991) 502 U.S. 835, superseded by statute on other grounds in
691.) If the informant acts on his or
her own initiative to interrogate an accused, the government may not be said to have deliberately elicited a
statement from the accused, even if the government had a general policy of
encouraging inmates to listen and report. (Fairbank, supra, 16 Cal.4th at p.
1247; see In re Neely, supra, 6 Cal.4th at p. 915; People v.
Gonzalez, supra, 51 Cal.3d at p. 1240; People v. Williams (1988) 44
Cal.3d 1127, 1141, cert. den. sub nom. Williams v. California (1988) 488
U.S. 975.) In other words, where “ ‘[t]he
police simply made use of [the informant’s] own motivation to inform on
defendant . . .’ †(
418), courts have declined to find a “ ‘knowing subversion of the defendant’s
right to counsel . . . .’
[Citation].†(
A preexisting arrangement between an
informant and government agents need not be explicit or formal, but may be
inferred from evidence that the parties behaved as if they had an agreement,
based on a course of conduct occurring over a period of time. (Fairbank,
supra, 16 Cal.4th at p. 1247; In re Neely, supra, 6 Cal.4th at p.
915.) Specific direction from government
agents or a prior working relationship with such agents can establish an
implicit agreement. (Fairbank, supra,
16 Cal.4th at p. 1247; see Henry, supra, 447 U.S. at pp. 270-273, &
fn. 8 [by prearrangement, government paid informant if he produced useful
information about accused whom government had singled out for inquiry]; People
v. Gonzalez, supra, 51 Cal.3d at p. 1241.) An agency relationship may be established by
evidence of government officials directing the informant to focus on a
particular person or on a specific type of information sought by the
government. (In re Neely, supra,
6 Cal.4th at p. 915; People v. Martin, supra, 98 Cal.App.4th at p. 420.)
The issue of whether the informant’s
testimony may be admitted into evidence is “ ‘an essentially factual question, and we
review it on a deferential standard.’ â€
(Fairbank, supra, 16 Cal.4th at pp. 1247-1248, quoting People v.
Memro (1995) 11 Cal.4th 786, 828, cert. den. sub nom. Memro v.
California (1996) 519 U.S. 834, overruled on other grounds in
181, fn. 2; see People v. Martin, supra, 98 Cal.App.4th at p. 421.) Thus, when the trial court makes a permissible
interpretation of the evidence before it and necessarily concludes that no
agency relationship existed, the appellate court will defer to the trial court’s
finding in this regard. (People v.
Martin, supra, 98 Cal.App.4th at pp. 420-421.)
C. Analysis
The Massiah principles, as applied here, make clear that Gray was not
acting as a “[g]overnment agent expressly commissioned to secure
evidence.†(Henry, supra, 447 U.S. at p. 273.)
To begin with, the government did not initiate contact with
appellant. Gray’s assignment to
appellant’s cell was purely a matter of happenstance and was not at the
direction or prompting of the government.
Further, once Gray became appellant’s cellmate, the government did not
instruct Gray to strike up conversations with appellant. Rather, at the outset, appellant clearly
volunteered information about the facts of his case and expressed his desire
for Gray to deliver “letters†or “paperwork†on appellant’s behalf once Gray
was released from custody. Gray began
collecting this information on his own initiative and decided to contact the
authorities about it. There is no
evidence that Gray had a previous history as an informant or had otherwise
agreed to cooperate with the government in any other contexts.
By
the time Gray first met with the District Attorney on October 14, 2010, he had
been appellant’s cellmate for several months and appellant had been taking
steps to secure Gray’s help with delivering “paperwork†with instructions to
kill Bony Ralph. Gray, acting on his own
behest, initiated contact with the government.
At
that initial meeting, Gray discussed how appellant had admitted to committing charged
murders, as well as his involvement in the Ronald Easley murder. Gray explained that appellant had asked him
to deliver some “paperwork†upon Gray’s release from custody. Appellant also asked Gray for his help in
killing prosecution witness Ralph White.
Gray agreed to speak with Berkeley homicide investigators concerning
statements made to him by appellant. No
specific promises or guarantees were made to Gray during that interview, but he
was advised that he might be allowed to resolve his case to a non-prison term
in exchange for his cooperation as a witness.
Thereafter, Detective Marble of the Berkeley
Police Department conducted two interviews of Gray. In these interviews, Gray repeated how
appellant described the circumstances of the charged murders, as well as his
involvement in the Ronald Easley murder.
Specifically,
in the first interview, Gray told Detective
Marble about appellant’s efforts to solicit his assistance in killing witness
Ralph White and appellant’s requests that Gray deliver paperwork that would not
be subject to law enforcement screening, upon Gray’s release from custody. Gray also told Detective Marble that
appellant liked to brag about his criminality and that he boasted about having
knowledge about the recent murder of Gary Ferguson. Detective
Marble made no promises to Gray and neither directed Gray to question appellant
about his
name="_ftnref8" title="">[8]
nor asked Gray to encourage appellant to write letters for Gray to carry out of
the jail.
In a
subsequent interview, on December 15, 2010, Gray reiterated appellant’s desire
to have Gray smuggle letters out of the jail that included instructions about
killing witness Ralph White. During this
interview, Detective Marble again made no promises to Gray and neither directed
Gray to question appellant about his case nor encouraged Gray to bring up the
subject of letters for Gray to smuggle out of the jail when Gray was
released.
On
the record before us, there is no evidence that Gray deliberately elicited any
information. Rather, the record shows
appellant initiated the conversations with Gray, openly discussing the pending
charges against him. Appellant’s
misguided decision to trust his cellmate does not implicate
“[T]he primary concern of the Massiah line of decisions is secret interrogation by investigatory
techniques that are the equivalent of direct police interrogation.†(
p. 459.) It is clear that appellant’s
incriminating statements and his decision to attempt to smuggle letters out of
the jail through Gray were the result of appellant’s voluntary conduct neither
influenced nor coerced by Gray’s acting as a “police agent.†It is equally clear that appellant’s
incriminatory statements and decision to have Gray smuggle letters out of the
jail were made well before Gray spoke
with the authorities. These statements
unquestionably preceded Gray’s agreement to testify against appellant.
The
cases upon which appellant relies to establish his claim of
distinguishable. For example, in
where a deputy sheriff told the informant that he “was seeking specific
information from [the defendant] as to the whereabouts of the murder weapon,â€
and the deputy “encouraged and instructed [the informant] as to the means by
which [he] could procure this information from [the defendant].†Conversely, a review of Gray’s interviews by
Detective Marble on November 9, 2010 and December 15, 2010, demonstrate that
Gray had no “agency relationship†with law enforcement nor was Gray ever
encouraged to elicit incriminating statements from appellant. Detective Marble listened to Gray’s account of
appellant’s plan to write letters not in “code†but in plain English to be
carried out of the jail by Gray when released and hand delivered to appellant’s
associates. A review of those statements
makes it clear that Detective Marble merely asked if Gray was prepared to hand
over whatever letters were provided by appellant. Detective Marble neither encouraged Gray to
suggest to appellant what kind of information he should include in the letters
nor instructed Gray to actively solicit the letters.
“There
is a distinct difference between passively receiving information provided by
enterprising inmates and striking deals with inmates—whether based on coercion or
enticement.†(United States v. York (7th Cir. 1991) 933 F.2d 1343, 1357, overruled
on other grounds in Wilson v. Williams
(7th Cir.1999) 182 F.3d 562, 567.) It is
obvious that Gray was not an agent when appellant made the fateful decision to
trust his cellmate with the details of his crimes and plans to solicit the
murder of prosecution witness Ralph White.
“That inmates realize there is a market for information about crime does
not make such inmate who enters the market a government agent.†(United
States v. York, supra, 933 F.2d
at p. 1357.) Indeed, as the United
States Supreme Court explained in Maine
v. Moulton, supra, 474 U.S. 159,
the Sixth Amendment “is not violated whenever—by luck or happenstance—the State
obtains incriminating statements from the accused,†but by “knowing
exploitation by the State of an opportunity to confront the accused without
counsel†or “the intentional creation of such an opportunity.†(Id.
at p. 176.)
Similarly
inapposite is Henry, supra, 447 U.S.
264. In Henry, while the defendant was in jail, the government recruited
and instructed Nichols, another inmate in the same cellblock, to keep his ears
open for any incriminating statements from Henry, which he eventually heard and
reported to the government. (
Henry’s rights under Massiah by
“intentionally creating a situation likely to induce Henry to make
incriminating statements without the assistance of counsel.†(Id.
at p. 274.) In so holding, the Court relied
on three factors: (1) Nichols was acting under specific instructions related to
Henry as a paid informant for the government; (2) Nichols “was ostensibly no
more than a fellow inmate of Henry,†(id.
at p. 270), which caused Henry to trust him and thus be more likely to
make incriminating statements, and (3) Henry was in custody and under
indictment at the time Nichols spoke with him. (Ibid.)
Unlike
Henry, here there was no evidence of
a prior agreement with Gray either express or implied to obtain information
from appellant about his case. Moreover,
there is no evidence that Gray was purposely assigned to be appellant’s
cellmate. Rather, Gray’s placement as
appellant’s cellmate was the result of fortuity and was not an intentional act
designed to exploit an opportunity to confront appellant without counsel. (Maine
v. Moulton, supra, 474 U.S. at p. 176.)
Similarly fortuitous was appellant’s decision to openly discuss the
murders of Parker and Davis with Gray, as was his decision to enlist Gray to
smuggle “paperwork†with instructions about killing Ralph White. It is clear that appellant’s incriminating
statements were not made as a result of any deliberate elicitation by Gray.
Equally
distinguishable is Randolph v. California
(9th Cir. 2004) 380 F.3d 1133 (Randolph). In Randolph,
an informant came to the attention of county prosecutors “when he gave them a
letter asking for leniency and mentioning that he was [the defendant’s]
cellmate.†(Id. at p. 1139.) Immediately
thereafter, the informant met with the deputy detective and district attorney
“several times to discuss his possible testimony against [the defendant], as
well as a plea deal relating to the crime for which [he] was being held.†(Ibid.) The Ninth Circuit held that the informant became
a “state agent†under Massiah “when
he was placed in [the defendant’s] cell after meeting†with the district
attorney and police. (
statements . . . made by [the defendant] before [the informant] met with the
prosecution team cannot be the basis of a Massiah
violation.†(Ibid.)
different than that of appellant. While
it is true that Gray sought out the district attorney and police, the case similarities
between Randolph and appellant end
there. Prior to Gray’s contact with the
district attorney, neither the district attorney nor the police were aware that
Gray was housed with appellant. (See
FBI agent was aware that Nichols had access to Henry and would be able to
engage him in conversations without arousing Henry’s suspicionâ€). “[A] defendant does not make out a [
showing that an informant . . . voluntarily[] reported his incriminating
statements to the police.†(
p. 459.)
While
appellant may be correct that an agreement between the informant and state is
not always necessary to create a “state agent†relationship,
necessary, lest every prisoner who unilaterally elicits incriminating
information from a co-inmate be automatically deemed a state agent under
obtained incriminating information from appellant, under Massiah, Henry, and even
supra, 380 F.3d at p. 1144 (“Any statements . . . made by [the defendant]
before [the informant] met with the prosecution team cannot be the basis of a
Here,
the prosecution’s receipt of the two letters recovered from Gray on December
20, 2010, did not stem from any violation of appellant’s right to counsel under
the Sixth Amendment. More was needed in
this case to create the requisite agency relationship. Indeed, the letters became part of the
evidence against appellant due to appellant’s decisions to volunteer
information about his case and to trust Gray with the job of smuggling letters
out of prison. In sum, the government
neither “intentionally created†nor “knowingly exploit[ed]†an opportunity to
confront appellant without counsel. (
168, 176.)
A. Authentication
of the Letters
Appellant claims the trial court
erred in admitting the letters because the prosecution failed to authenticate
that they were written by him. Authentication of a writing is required before
it may be received into evidence and before secondary evidence of its contents
may be received into evidence. (Evid. Code,
§ 1401.) “ ‘Authentication of a writing means (a) the introduction of
evidence sufficient to sustain a finding that it is the writing that the
proponent of the evidence claims it is or (b) the establishment of such facts
by any other means provided by law.’ (Evid.
Code, § 1400.)†(People v. Miller (2000) 81 Cal.App.4th 1427, 1445.) “[T]he objection that a document has not been
authenticated does not go to the truth of the contents of the document, but
rather to the introduction of evidence sufficient to sustain a finding that it
is the writing that the proponent claims it to be. [Citations.]†(Interinsurance Exchange v. Velji
(1975) 44 Cal.App.3d 310, 318; City of Vista v. Sutro & Co. (1997)
52 Cal.App.4th 401, 412.)
Evidence Code section 1421 states: “A
writing may be authenticated by evidence that the writing refers to or states
matters that are unlikely to be known to anyone other than the person who is
claimed by the proponent of the evidence to be the author of the
writing.†(Italics added.) Section 1421 uses the word “author†and not
the word “writer,†and a document need not be written by an individual in order
for that person to be the author for purposes of authentication. (People v. Lynn (1984) 159 Cal.App.3d
715, 736, fn. 10.) “Accordingly, it is
not necessary for purposes of authentication of a writing that the writing be
physically created by the author’s hand.†(Ibid.) Rather, the circumstances and contents of the
writing itself may serve to authenticate it as being authorized by a particular
individual. (Ibid.) “The law is clear that the various means of
authentication as set forth in Evidence Code sections 1410-1421 are not
exclusive. Circumstantial evidence, content and location are all valid means of
authentication [citations].†(People
v. Gibson (2001) 90 Cal.App.4th 371, 383; People v. Olguin (1994) 31
Cal.App.4th 1355, 1372-1373.)
Authentication requires a party to
establish as a preliminary fact the genuineness and authenticity of the
writing, which can be established by any one of a variety of means. (Interinsurance
Exchange v. Velji, supra, 44 Cal.App.3d at p. 318.) The establishment of such authentication is a
preliminary fact within the meaning of Evidence Code section 403. (Fakhoury v. Magner (1972) 25
Cal.App.3d 58, 65.) The proponent of the
document has the burden of establishing its authenticity. (Evid. Code, § 403, subd. (a)(3).) The preliminary fact of authenticity is first
determined by the trial court but it is subject to redetermination by the jury.
(People v. Fonville (1973) 35 Cal.App.3d
693, 708-709; Evid. Code, § 403, subds. (a)(3), (c)(1).) We review a ruling that a writing has been
sufficiently authenticated for abuse of discretion. (People v. Smith (2009) 179 Cal.App.4th
986, 1001; People v. Daugherty (2011) 199 Cal.App.4th Supp. 1, 5–6.)
In People v. Olguin, supra,
31 Cal.App.4th 1355, the police found rap lyrics in a defendant’s home. (Id. at p. 1372.) They referred to membership in the Southside F
Troop Gang; the defendant was a member of this gang. (Id. at pp. 1366, 1372 & fn. 3.)
One said, “my name is Vamp,†which was the defendant’s moniker. (Id. at p. 1372 & fn. 3.) Another said, “I[’]m that rapper they call
Frankyâ€; the defendant’s name was Francisco. (Ibid.) Finally, they said “I rapp [sic] into
the beat†and “just give me the mic and I[’]ll rock your world,†which could
have been construed as references to disk-jockeying; the defendant was a
part-time disk jockey. (Ibid.) For these reasons, the appellate court upheld
a ruling that the lyrics were sufficiently authenticated. (Id. at pp. 1372-1373.)
Similarly, in People v. Gibson,
supra, 90 Cal.App.4th 371, the police found a typewritten manuscript in the
defendant’s hotel room and a handwritten note in her home. (Id. at p. 382.) They referred to the author as “ ‘Sasha,’ â€
which was one of the defendant’s aliases. (Id. at p. 383.) “Each was written in the first person and each
described operating a prostitution enterpriseâ€; there was extrinsic evidence
that the defendant was operating a prostitution enterprise. (Id. at pp. 382-383.) For these reasons, the appellate court upheld
a ruling that the documents were sufficiently authenticated. (Ibid.)
Here, much as in Olguin and Gibson,
the author of the letters had identifying information that matched appellant. The author called himself “Spice,†which was
defendant’s moniker. The author
referenced he was “Cold Gunnaz Finestâ€â€”“Cold Gunnaz†being the name of
appellant’s gang; appellant had the words “Cold Gunnaz†tattooed on his
forearms. The first letter addressed to
“Cash Flow,†included special “wordz†for “Blast,†a known associate of
appellant named Chris P. The letter
included references to “[Bony] Ralph†White, as well as a six-page summary of
White’s statement to the police. In the
first letter, the author was also concerned about the lack of efforts to
retaliate for the attack on “WhiteBoi,†who was another known associate of
appellant. The second letter was
addressed to “Kleet Da Muthafuckin Banga,†which is the alias for appellant’s
cousin, Jason Johnson. In this letter,
the author tells Johnson to say that the gun found in the bedroom belonged to
him. The author also instructs Johnson
that he needs to “put it on a lot thicker†than he did at the preliminary
hearing. This was sufficient to support
the trial court’s finding of authentication.
Admittedly, unlike in Olguin
and Gibson, the writings were not found in appellant’s residence or his
cell. While it would be helpful
additional evidence, it is not a controlling factor. In the instant case, the letters were authenticated
pursuant to Evidence Code section 1421. Even if no one saw appellant write the letters
and they were delivered to the police by Gray, instead of being found in
appellant’s cell, the letters stated matters which were unlikely to have been
known or authored by anyone other than appellant.
B. Chain
of Custody Regarding the Letters
Appellant contends
that the letters should not have been admitted in evidence because there was
insufficient evidence of the chain of custody to establish that the letters
were what they were purported to be. As
the People point out on appeal, appellant failed to object on this ground
below. Appellant concedes as much in his
briefs but argues that the failure to object constitutes ineffective assistance
of counsel.
“In order to establish a claim of
ineffective assistance of counsel, defendant bears the burden of demonstrating,
first, that counsel’s performance was deficient because it ‘fell below an
objective standard of reasonableness [¶] . . . under prevailing professional
norms.’ [Citations.] . . . If a
defendant meets the burden of establishing that counsel’s performance was
deficient, he or she also must show that counsel’s deficiencies resulted in
prejudice, that is, a ‘reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’ â€
(People v. Ledesma (2006) 39
Cal.4th 641, 745-746.)
Defense counsel’s performance was
not deficient. An adequate chain of
custody was established for admission of the letters, and thus any objection
would have been futile. “In a chain of
custody claim, ‘ “[t]he burden on the party offering the evidence is to
show to the satisfaction of the trial court that, taking all the circumstances
into account including the ease or difficulty with which the particular
evidence could have been altered, it is reasonably certain that there was no
alteration. [¶] The requirement of reasonable certainty is not
met when some vital link in the chain of possession is not accounted for,
because then it is as likely as not that the evidence analyzed was not the
evidence originally received. Left to
such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation
that there was tampering, it is proper to admit the evidence and let what doubt
remains go to its weight.†[Citations.]’ (People v. Diaz [(1992)] 3 Cal.4th
[495] at p. 559; see also Mendez, Cal. Evidence (1993) § 13.05, p. 237 [‘While
a perfect chain of custody is desirable, gaps will not result in the exclusion
of the evidence, so long as the links offered connect the evidence with the
case and raise no serious questions of tampering’].) The trial court’s exercise of discretion in
admitting the evidence is reviewed on appeal for abuse of discretion. (County of Sonoma v. Grant W. (1986)
187 Cal.App.3d 1439, 1448.)†(People
v. Catlin (2001) 26 Cal.4th 81, 134, cert. den. sub nom. Catlin v. California (2002) 535 U.S. 976, overruled on
another ground in People v. Nelson (2008)
43 Cal.4th 1242, 1253-1256.)
Appellant has failed to show that
any vital link in the chain of custody was missing or to produce any credible
evidence of tampering. Detective Marble
testified that he waited for Gray in the sergeant’s office at the North County
Jail on December 20, 2010, at 4:30 p.m. Gray was escorted into the office by members
of the Sheriff’s Department. He was instructed
to show his property to Detective Marble.
Gray was in possession of a garbage bag that contained the personal
property he acquired while in jail for six months. This included clothing, magazines, and
toiletry items. Detective Marble
searched the bag looking for letters written by appellant that Gray was
supposed to deliver to appellant’s friends. He found two envelopes. The envelopes contained the two letters that
were admitted into evidence as Exhibits 43 and 44. Detective Marble testified that the letters
appeared to be in the same condition as they were when he first observed them
in Gray’s bag. There is no indication
that the letters were tampered with once the police took possession of them. Appellant fails to show anything improper
happened to the evidence. To the extent
that appellant argues that Gray may have written the letters or altered them, this
question goes to authenticity, which, as discussed ante, the trial court properly ruled on. Thus, an objection on chain of custody grounds
would have been futile. (
877, 886 [counsel is not required to make futile objections or motions];
764, 780 [same]; People v. Jones
(1979) 96 Cal.App.3d 820, 827 [same].)
C. Relevance
of Gray’s Absence from Trial
Appellant contends that his
constitutional rights to due process
and a fair trial were violated when the trial court admitted evidence regarding
Gray’s plea bargain and his disappearance during trial.
When Gray disappeared from the
courthouse, the prosecutor announced his intention to call David Kelvin, Gray’s
attorney, to testify about the testimony agreement and the change of plea, as
well as Detectives Revel and Marble regarding the consequences of his failure
to appear as a witness. Defense counsel agreed
that the witnesses could testify that Gray had been present at the courthouse
in the morning, but left without their knowledge and did not return. He objected to the introduction of any
evidence which could create the inference that appellant was somehow
responsible for Gray’s failure to appear.
The trial court ruled that the
prosecutor could not speculate but could “argue that he’s not here and the
stakes were pretty high . . . . I don’t
want them to speculate. I don’t want
them to speculate. Okay. . . . You can put the facts in front of them. That’s it.â€
Appellant
argues that the evidence of Gray’s failure to appear at trial, as well as the
evidence pertaining to his plea bargain was irrelevant and therefore
inadmissible. (Evid. Code, § 350.) Evidence is admissible only if it is relevant.
(Ibid.)
All relevant evidence is admissible,
except as otherwise provided by some statutory or constitutional exclusionary
rule. (See Cal. Const., art. I, § 28,
subd. (f)(2); Evid. Code, § 351.) Relevant
evidence is defined as evidence “having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the
action.†(Evid. Code, § 210.) The general test of relevance is whether the
evidence tends logically, naturally, and by reasonable inference to establi
| Description | A jury convicted appellant Desmen Lankford of two counts of first degree murder (Pen. Code,[1] § 187, subd. (a)) and found true the allegations that he personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (d)) and personally inflicted great bodily injury (§ 1203.075) when he committed the murders. He was also convicted of being a felon in possession of a firearm (§ 12021, subd. (a)(1)), and ammunition (§ 12316, subd. (b)(1)). Sentenced to life in prison without the possibility of parole, Lankford appeals. He contends reversal is required because the trial court erred by admitting his statements to a jailhouse informant because they were obtained in violation of his right to counsel. Lankford further contends that various evidentiary errors require reversal. Court affirmed. |
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