P. v. Westmoreland
Filed 7/11/13
P. v. Westmoreland CA1/5
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE
DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and
Respondent,
v.
PAUL WESTMORELAND,
Defendant and Appellant.
A127394
(Contra Costa County
Super. Ct. No. 05-051785-4)
Paul
Westmoreland (appellant) was convicted by a jury of first degree felony murder,
second degree robbery, and second degree burglary. On appeal, appellant contends the trial court
erred in admitting his confession and the confession of a codefendant, erred in
admitting an autopsy report authored by a nontestifying forensic pathologist,
abused its discretion in discharging a juror, and abused its discretion in
excluding certain impeachment evidence. We find no prejudicial error.
Procedural
Background
Appellant
was charged by information filed in December 2005 with
(count 1), second degree robbery
(§§ 211, 212.5, subd. (c)) (count 2), and second degree burglary
(§§ 459, 460, subd. (b)) (count 3).
The information alleged an enhancement for use of a deadly weapon
(§ 12022, subd. (b)(1)) in counts 1 and 2 and alleged a felony murder
special circumstance in count 1 (§ 190.2, subd. (a)(17)).
In
July 2009, a jury found appellant guilty as charged and found true the
enhancement allegations. In November
2009, the trial court sentenced appellant to life without the possibility of
parole.
On
February 5, 2013, this court issued a decision concluding the confession
elicited from appellant was involuntary and admission of the confession at
trial was not harmless. The People filed
a petition for rehearing requesting that this court reconsider whether
admission of the confession was prejudicial, in light of a letter from
appellant entered into evidence at trial.
This court denied the petition and the People filed a petition for
review. On May 15, the California
Supreme Court granted the petition and transferred the matter to this court
with directions to reconsider its decision on the petition for rehearing in
light of People v. Woods (1923) 190
Cal. 513 (Woods). In an accompanying order we grant the
petition for rehearing.
Factual
Background
On
the evening of August 19, 2005, a Friday, the victim Francisco Sanchez went to
a bar with his friends Andres Jiminez and Gregorio Zuniga. They spent several hours drinking before
going to another bar called El Rodeo at around 11:30 p.m.
A
female, later identified as Erica Gadberry, approached the men. According to Gadberry’s trial testimony,
she had gone to El Rodeo that night with a plan to pose as a prostitute and
lure a customer to a vacant apartment, where the victim would be robbed by
appellant, her boyfriend. Earlier on the
evening of August 19, 2005, Gadberry and appellant had entered a vacant apartment
in their housing complex by breaking a window.
They left the front door unlocked so that Gadberry would be able to
reenter the apartment for the robbery.
Appellant had a steak knife to scare the victim.
Gadberry
and appellant lived with appellant’s mother and his sister, Laquita Richardson,
in an apartment complex on Weldon Lane in Bay Point (apartment complex). On August 19, 2005, Gadberry arrived at El
Rodeo with appellant and Richardson.
Gadberry had told Richardson about the plan and Richardson agreed to go
to El Rodeo with her.
name="_ftnref4" title="">[4] Appellant went inside the bar but did not sit
with or talk to Gadberry. Gadberry spent
about an hour in El Rodeo before she spoke to Sanchez. Gadberry asked Sanchez, “Want to have a
fiesta?†She wanted him to think she was
going to have sex with him. She and
Sanchez left the bar to go to the vacant apartment; Gadberry saw appellant
drive by as she and Sanchez walked to the apartment complex.
Gadberry
took Sanchez to a back room in the vacant apartment, where she helped him
remove his pants. He was drunk. Gadberry left the room, saying she was going
to get a condom and come back. Gadberry
encountered appellant near the living room and said, “He’s in the back.†Appellant had the steak knife with him.
Appellant
went to the back room and then Gadberry heard voices saying “Where’s the
money?†and “I don’t have it.†She ran
back to the room and told appellant, “His pants are right there.†She saw appellant pulling the knife out of
Sanchez’s chest; Sanchez was grasping his chest and saying, “I’m
bleeding.†Sanchez did not have a
weapon. Gadberry grabbed Sanchez’s pants
with his wallet inside and ran out of the vacant apartment with appellant
following her. Appellant returned to El
Rodeo to pick up Richardson.
The
next day, August 20, 2005, Sanchez’s body, dressed in only underwear and socks,
was found laying facedown at the bottom of stairs at the apartment
complex. The police found more blood in
a vacant apartment approximately 100 yards away from Sanchez; the vacant
apartment had a broken window. The
police were able to identify the body as Sanchez’s by his fingerprints. The investigation led to Jiminez, who
described the woman he saw leaving El Rodeo with Sanchez. A bouncer at El Rodeo told police he knew
someone who matched the woman’s description.
He said the woman and a female friend were at the bar on occasion, and
he had once driven one of them home. He
showed the police the building where he dropped her off, which was in the same
housing complex where Sanchez died.
A
search warrant was obtained for the apartment where Gadberry and appellant
lived, and it was served on August 21, 2005, at about 12:50 a.m. Among other persons, officers found
Richardson in the apartment and found appellant in bed with Gadberry. Richardson, Gadberry, and appellant were
transported to a location where they were interviewed separately. Richardson, who was interviewed first, became
hysterical and began crying and ranting.
She admitted she saw appellant watching Gadberry talk to a Hispanic male
at El Rodeo, and Gadberry left the bar with the Hispanic male.
Gadberry
was interviewed next. When shown a photo
of Sanchez, Gadberry said she had a drink with him at El Rodeo. She broke down in tears when told Sanchez had
been killed. Eventually, she admitted
she and appellant were involved in a plan to commit a robbery in a vacant
apartment. Her confession, which was
described to the jury by one of the interrogators, largely mirrored her
Appellant’s
interview began at 3:18 a.m. and ended at 4:00 a.m. He eventually admitted there was a plan to
pick up a man and bring him to a place where he would be robbed. Appellant insisted he did not intend to kill
Sanchez. The jury saw a videotape of
portions of appellant’s interview.
Based
on information provided by Gadberry, the police found Sanchez’s pants behind
some bushes at the Walnut Creek BART
station. Appellant’s and Gadberry’s
fingerprints were found on or around the broken window in the vacant apartment.
In
December 2007, while appellant and Gadberry were in custody, Gadberry received
a threatening letter from appellant that referred to her as a “snitch.â€
At
trial, Dr. Ikechi Ogan, a forensic
pathologist with the Forensic Medical Group in Fairfield, testified that
the autopsy of Sanchez was performed by Dr. Brian Peterson. The Coroner’s Division of the Contra Costa
County Sheriff’s Department has contracted with the Forensic Medical Group to
perform autopsies. Peterson was the
managing partner of the Forensic Medical Group before being hired by the
Wisconsin Medical Examiner’s Office.
Ogan reviewed the coroner’s report prepared by Peterson and the photos
documenting the autopsy. Ogan testified
he concurred with Peterson’s opinion that the fatal injury was a single stab
wound on the left side of the chest. The
knife penetrated four inches, going clear through the third rib and puncturing
the left lung and the heart. Ogan
explained that the third rib is one of the heaviest ribs in the human body and
opined it would take a great deal of force to cause a knife to pass entirely
through the rib. Sanchez had no illegal
drugs in his system and his blood alcohol level was .10 percent. Ogan opined that
including bruises and a laceration above the left eyebrow, were inflicted while
the victim was still alive. The
coroner’s report authored by Peterson was admitted into evidence.
An
expert pediatric hematologist/oncologist testified for the defense that
appellant had sickle cell disease and suffered a stroke at the age of two and
one-half years. She explained that
stroke patients suffer brain damage and have significant intellectual deficits.
Discussion
I. Admission
of Appellant’s Involuntary Confession Was Error, but Harmless
Appellant
contends his “confession was inadmissible because it followed an incomplete
because of the interrogating officers’ false statements and inducements.†We conclude the warning was adequate and
appellant waived his rights, but appellant’s confession was involuntary. However, admission of the confession was
harmless beyond a reasonable doubt.
“In
considering a claim that a statement or confession is inadmissible because it
was obtained in violation of a defendant’s rights under Miranda, supra, 384 U.S. 436, we accept the trial court’s
resolution of disputed facts and inferences, and its evaluation of credibility,
if supported by substantial evidence.
[Citation.] Although we
independently determine whether, from the undisputed facts and those properly
found by the trial court, the challenged statements were illegally obtained
[citation], we ‘ “give great weight to the considered conclusions†of a
lower court that has previously reviewed the same evidence.’ [Citations.]â€
(People v. Wash (1993) 6
Cal.4th 215, 235-236 (Wash).) The “voluntariness of [a] defendant’s waiver
and confession must be established by a preponderance of the evidence. [Citation.]â€
(Id. at p. 236.)
A.
The Miranda
Appellant
first contends the Miranda warnings
given by the police were inadequate because they failed to inform him he was
entitled to counsel during
questioning.
According
to a transcript of the questioning at the outset of appellant’s police
interview, Detective Shawn Pate admonished appellant as follows: “Being an adult and being here with us, you
know you do have the right to remain silent.
Anything you say can and will be used against you in court. Do you understand that? [¶] . . . [¶] You know you have the right to an
attorney. You have to have an attorney
prior to any questioning if you desire.
If you can’t afford to hire one, one will be represent [
to Pate’s questions.
the right to have an attorney present before any questioning if you wish one,
if you cannot—if you cannot afford . . . an attorney one will be
provided to you at no cost before any questioning begins.†(Wash,
supra, 6 Cal.4th at p. 236.) Wash’s
reasoning is equally applicable here: “
apprised, inter alia, that he has the right to the presence of an attorney
during questioning, and that if he cannot afford an attorney one will be appointed
for him prior to any questioning if he so desires. [Citation.]
Although the warning given to [the] defendant here deviated from the
standard form in failing to expressly state that [the] defendant had the right
to counsel both before and during questioning,
we are not persuaded—as [the] defendant’s argument implies—that the language
was so ambiguous or confusing as to lead [the] defendant to believe that
counsel would be provided before questioning, and then summarily removed once
questioning began. [Citation.] As the high court has observed, the
[citation] and need not be presented in any particular formulation or
‘talismanic incantation.’
[Citation.] The essential inquiry
is simply whether the warnings reasonably ‘ “[c]onvey to [a suspect] his
rights as required by Miranda.†’ [Citation.]
We are satisfied that the warnings given [the] defendant here
‘reasonably conveyed’ his right to have an attorney present during
questioning.†(Id. at pp. 236-237; see also People
v. Valdivia (1986) 180 Cal.App.3d 657, 662-664.)
The
United States Supreme Court recently considered a similar claim in
[130 S.Ct. 1195] (Powell). There, the defendant was informed he had
“ ‘the right to talk to a lawyer before answering any of [their]
questions’ †and “ ‘the right to use any of [his] rights at any time
[he] want[ed] during th[e] interview.’ â€
(Id. at pp. 1204-1205.) The high court concluded those warnings were
adequate. (Id. at p. 1205.) Although
the second statement made the warnings in Powell
clearer than the warnings in the present case and in Wash, we do not read Powell
as effectively overruling Wash. That is, we do not read Powell as requiring that suspects be told they have the right to
use any of their rights at any time in order for warnings to be adequate.
In
the present case, appellant was informed he had, without any limitation, the
“right to an attorney†and, additionally, that he had the right to an attorney
“prior to any questioning.†Nothing in
the detective’s words indicated counsel’s presence would be restricted after
the questioning commenced. Under
reasonably conveyed to him he had the right to an attorney before and during
any questioning.
Appellant
also contends he was not properly advised an attorney would be provided if he
could not afford one because the officer misspoke, stating “If you can’t afford
to hire one, one will be represent [sic]
to you free of charge.†In context, the
warnings reasonably conveyed to appellant that an attorney would be provided to
represent him.
B.
The People Established That
Appellant Waived His Miranda Rights
Appellant
next contends the People failed to show he knowingly and intelligently waived
his Miranda rights.
“Even
absent the accused’s invocation of the right
to remain silent, the accused’s statement during a custodial interrogation
is inadmissible at trial unless the prosecution can establish that the accused
‘in fact knowingly and voluntarily waived [Miranda]
rights’ †when making the statement.
[Citation.] The waiver inquiry
‘has two distinct dimensions’: waiver
must be ‘voluntary in the sense that it was the product of a free and deliberate
choice rather than intimidation, coercion, or deception,’ and ‘made with a full
awareness of both the nature of the right being abandoned and the consequences
of the decision to abandon it.’
[Citation.]†(
___ [130 S.Ct. 2250, 2260] (Berghuis).) “[T]he question of waiver must be determined
on ‘the particular facts and circumstances surrounding that case, including the
background, experience, and conduct of the accused.’ [Citations.]â€
(North Carolina v. Butler (1979)
441 U.S. 369, 374-375.)
Appellant
appears to focus on the second dimension of the waiver inquiry, whether he
waived his rights with awareness of the nature of the rights and the
consequences of waiver. Appellant
contends there was no showing of a knowing and intelligent waiver because he
responded to the detective’s question as to whether he understood his rights
only nonverbally, with “at best†a “slight†nod of his head. He also points to testimony presented to the
trial court regarding his mental deficiencies.
In particular, a pediatric hematologist/oncologist testified appellant
had sickle cell disease and suffered a stroke when he was under three years of
age. The stroke caused permanent
neurologic damage; appellant’s cognitive impairment was mild to moderate. Moreover, patients with sickle cell disease
often show a very poor sense of judgment.
A clinical neuropsychologist testified that tests showed appellant had “significantâ€
cognitive impairments; she expected appellant to be slower and have fewer
skills. Appellant had an IQ score of 76,
which could be considered in the mentally retarded range, although appellant
did not appear to have mental retardation.
Finally, appellant’s mother testified appellant was slower than her
other children; he attended school “to the 10th grade†and was in special
education classes. On cross-examination,
she admitted appellant probably had more than one attorney as a juvenile.
In
concluding appellant waived his Miranda
rights, the trial court reasoned as follows:
“In this case the court is fortunate to have the videotaped statements
which demonstrate both the demeanor and attitude of the witnesses and the
environment in which the statements were made.
[¶] Here after . . .
Pate provided the warnings and asked [appellant] if he understood, the court
viewed [appellant] nodding his head. The
nodding of the head coupled with the fact that he proceeded to speak with the
detectives and did not ask for an attorney persuades the court that he waived
his Miranda rights. [¶] . . . [¶] As the videotape clearly shows,
[appellant] was prepared to talk to the police.
He displayed no emotional weakness.
He was not under the influence of alcohol or drugs. He appeared to be streetwise. He did not appear intimidated by the officers
or cowed by their presence. [¶] His
initial statement that, quote, it wasn’t me, unquote, showed that he was
willing to speak to the officers. His
behavior later in the interview complete with a physical demonstration of the
way in which Erica walked back in the master bedroom, as well as the way in
which he wielded the knife to stab the victim, further shows his willingness to
speak. [¶] . . . [¶] . . . [Appellant’s] early
stroke and sickle cell anemia did not prevent him from knowingly waiving his
rights. And his nonverbal and verbal
conduct so demonstrated.â€
We
agree with the trial court’s reasoning.
The high court recently emphasized that “[t]he prosecution
. . . does not need to show that a waiver of Miranda rights was express. An ‘implicit waiver’ of the ‘right to
remain silent’ is sufficient to admit a suspect’s statement into evidence. [Citation.]
. . . [A] waiver of
‘the defendant’s silence, coupled with an understanding of his rights and a
course of conduct indicating waiver.’
[Citation.]†(
That standard was met in this case.
Appellant received adequate Miranda
warnings and, in light of his conduct in the interview and the fact he had been
represented by attorneys in the past, there is no basis to conclude he did not
understand his rights. As in
that [appellant] chose not to invoke or rely on those rights when he did
speak.†(Berghuis, at p. 2262.)
C.
The Confession Was Involuntary,
But Its Admission Was Harmless
Finally,
appellant contends his confession was involuntary because “the interrogators
repeatedly assured appellant that if he confessed he would not be sentenced to
life imprisonment.â€
1.
Legal Background
“ ‘The
Fourteenth Amendment to the federal Constitution and article I, section 15, of
the state Constitution bar the prosecution from using a defendant’s involuntary
confession. [Citation.] [These provisions require] the prosecution to
establish, by a preponderance of the evidence, that a defendant’s confession
was voluntary. . . . [¶] Under both state and federal law,
courts apply a “totality of circumstances†test to determine the voluntariness
of a confession. . . . On
appeal, the trial court’s findings as to the circumstances surrounding the
confession are upheld if supported by substantial evidence, but the trial
court’s finding as to the voluntariness of the confession is subject to
independent review. [Citations.] In determining whether a confession was
voluntary, “[t]he question is whether [the] defendant’s choice to confess was
not ‘essentially free’ because his will was overborne.†’ [Citation.]â€
(People v. Holloway (2004) 33
Cal.4th 96, 114 (Holloway).)
“ ‘It
is well settled that a confession is involuntary and therefore inadmissible if
it was elicited by any promise of benefit or leniency whether express or
implied. [Citations.] However, mere
advice or exhortation by the police that it would be better for the accused to
tell the truth when unaccompanied by either a threat or a promise does not
render a subsequent confession involuntary. . . . Thus, “[w]hen the benefit pointed out by the
police to a suspect is merely that which flows naturally from a truthful and
honest course of conduct,†the subsequent statement will not be considered
involuntarily made. [Citation.] On the
other hand, “if . . . the defendant is given to understand that he
might reasonably expect benefits in the nature of more lenient treatment at the
hands of the police, prosecution or court in consideration of making a
statement, even a truthful one, such motivation is deemed to render the
statement involuntary and inadmissible . . . .†’ [Citation.]â€
(Holloway,
2.
Factual Background
Appellant
primarily argues his statements were involuntary because detectives assured him
he would not be subject to life imprisonment if he confessed to a “robbery gone
wrong.â€
defendant, “Now I got to tell you this, okay?
We came to your house for a reason.
We’ve done our homework. All the
evidence has come back. All the
fingerprints are back. We’re all
here. [¶] A lot of times things
happen that weren’t meant to be, okay?
Sometimes people go and they attempt to do one thing, something gets all
fucked up and goes wrong and they didn’t mean do that. That’s the important issue here that we need
to work out, because your girl’s already told me. [¶] She’s very upset. She says that it wasn’t supposed to happen
that way. I believe her, I truly
do. Which means that things aren’t quite
as bad as we thought they were, okay?
[¶] Now, I’m gonna give you the opportunity to set your record
straight here, okay? ‘Cause she’s
already told the story.†Appellant
asked, “What did she say?†Pate
responded, “What do you think she told me?
Basically a robbery went bad, okay?
[¶] Now we got all the evidence we need. We came to your house for a reason. The judge has already signed off on all
that. Now we need to set the record
straight. [¶] Did you all say,
‘Hey, fuck it, let’s go out and kill somebody tonight’ or did something just go
bad? And if something went bad, a lot of
times there’s logical explanations for things.
And that’s what we’re here to work through, okay? [¶] Don’t portray yourself as some bad
guy that went out to do one thing when you didn’t.â€
After
further informing appellant of evidence the police had gathered against him,
the following exchange occurred:
“[Pate]: Obviously we know what time it is. Now we’re past that. You need to get past that. You’re a smart young man. You don’t have much criminal history,
correct?
“[Appellant]: Check it out, yeah, correct.
“[Pate]: Don’t go hemming yourself up on a life case
when it doesn’t need to be.
“[Appellant]: That’s where I’m at.
“Detective
Barnes: Let me, let me — let me —
explain another thing, too.
“[Appellant]: I’m not going to get life anyway?
“[Pate]: No.â€
Shortly
thereafter, the following exchange occurred:
“[Pate]: So at this juncture, at this point in your
life is where honesty is everything.
[¶] You have a gentleman that went out to have a good time. He’s a business owner with family. Something went bad. Maybe you just wanted to get something. Something went wrong and he’s no longer with
us. He’s dead. [¶] We’re homicide detectives, okay? So now we need to figure out how it went bad.
“[Appellant]: Yeah, but check this out. I’m gonna get life for it?
“[Pate]: No, that’s not what I said.
“[Appellant]: How you know I’m not gonna get life?
“[Pate]: Well, at this point in the investigation,
we’re going by what our evidence [says] and what she says. I’m not even gonna get into what you may or
may not get.
[¶] . . . [¶] There’s
all kinds of variables in that. If you
just had got up in the morning and said, hey, fuck it, I’m gonna go murder
someone because I’m a killer like that, then you might get life. [¶] But if there’s logical explanations
for some of the actions that happened and there’s a reason why, maybe the guy
did something else and provoked something or who knows. That’s why I’m here to let you set the record
straight. [¶] So it’s hard for me
to tell you what you may or may not get. . . . [¶] Why did this one go bad? I’m not gonna sit here and feed you my entire
investigation because I need to know these things from you. That’s the only thing that’s gonna help you
out. And you need to think of this,
think this through because this is a huge point in your life. [¶] You’re in trouble, I’ll be honest
with you. But how much trouble you’re in
it depends on you. It truly does. It depends on is this jury gonna see you as a
young man that feels sorry that something went wrong and that’s not what [he]
intended to happen, or is this jury gonna see a man that says, fuck it, I went
out and killed somebody and this is why.â€
“[Appellant]: I ain’t like that.
“[Pate]: There you go.
This is your opportunity to tell it.
If it went bad it went bad. But
you got to lay it out for us.
[¶] Your girlfriend’s scared.
She laid it out. She’s very
remorseful. She feels sorry for what
happened. That is gonna weigh on the
decisions that are made. [¶] Is
there remorse or is there no remorse?â€
Thereafter,
appellant asked Pate and Barnes what would happen to Gadberry and he asked them
for a cigarette. Pate said appellant
could have a cigarette “as soon as we’re done talking†and then he started to
walk appellant through the events of the evening of the killing, starting with
the trip to the bar. Appellant gave
brief answers that are unintelligible on the video of the interrogation, and
Pate said, “This is getting into the corroboration thing. This is where your honesty is what will help
you, okay? So when she says we went
straight to this house or that house — .â€
Appellant interrupted Pate and stated, “I’m gonna get life in
prison.†Pate responded, “You got to get
past that, man,†and appellant said “Shit don’t matter man, I’m gonna get
life.â€
my friend.†Shortly thereafter, Pate
asked appellant, “Why did it go bad? I
mean you’ve gotten money before without anybody getting hurt. Did this guy attack you? Did he disrespect you? [¶] Give me some logical explanation for
what happened here.†Appellant then
confessed his involvement in the killing for the first time, stating, “Just
went bad.†Shortly thereafter, he
stated, “I didn’t mean to kill the man,†and explained the victim got stabbed
in a struggle.
3.
Analysis
In
assessing whether there were false promises of leniency that rendered
appellant’s confession involuntary, the decision in People v. Cahill (1994) 22 Cal.App.4th 296 (Cahill) is instructive.
There, the defendant was convicted of first degree murder with special
circumstances that the murder occurred in the course of a burglary, robbery,
and rape. (Id. at p. 300.) After the
defendant was given a “Miranda
warning,†the police told him they had all the physical evidence they needed to
place him in the victim’s house where the murder occurred. (Id.
at p. 303.) An officer told the
defendant, “ ‘I’m here really to try to see what I can do for
you.’ †(Id. at p. 305.) The officer
provided a “materially deceptive†explanation of the law of murder in California,
describing first degree and second degree murder and voluntary manslaughter,
but omitting any reference to felony murder.
(Id. at pp. 306, 315.) The officer told the defendant he could help
himself by talking and suggested the defendant could avoid a first degree
murder conviction by admitting an unpremeditated role in the killing. (Id.
at pp. 306-307, 314-315.)
confession was procured by a false promise of leniency—that he could avoid
first degree murder by admitting to the killing but stating it was not
premeditated. (Id. at p. 314; see also People
v. Johnson (1969) 70 Cal.2d 469, 479.)
Recognizing the case law that deception is permissible unless reasonably
likely to procure an untrue statement, Cahill
found those cases did not apply where the deception was a false promise of
leniency. (Cahill, at p. 315.)
The
People rely on Holloway to argue the
confession was voluntary. But, the
California Supreme Court in Holloway
implicitly agreed with the reasoning of Cahill,
stating that the case was “distinguishable factually.†(Holloway,
supra, 33 Cal.4th at p. 117.) Holloway
explained that the detective in Cahill
“led the defendant to believe he could avoid a first degree murder charge, in a
burglary-murder case, by admitting to an unpremeditated role in the
killing.†(Holloway, at p. 117.) In
contrast, the detectives in Holloway
“gave [the] defendant no such misleading assurances. No specific benefit in terms of lesser
charges was promised or even discussed, and [a detective’s] general assertion
that the circumstances of a killing could ‘make[] a lot of difference’ to the
punishment, while perhaps optimistic, was not materially deceptive.†(Ibid.;
see also id. at p. 116 [“To the
extent [the detective’s] remarks implied that giving an account involving
blackout or accident might help [the] defendant avoid the death penalty, [the
detective] did no more than tell [the] defendant the benefit that might
‘ “flow [] naturally from a truthful and honest course of conduct†’
. . . .â€].)
The
present case is more like Cahill than
Holloway. On several occasions, Pate told appellant
that his admission to killing the victim during a robbery would not, by itself,
trigger a life sentence. Due to the
felony-murder rule, this was false. (See
§§ 189, 190.2, subd. (a)(17)(A); see also People v. Chun (2009) 45 Cal.4th 1172, 1182.)
provided an explanation for the murder that did not reflect premediatation. For example, Pate stated, “If you just had
got up in the morning and said, hey, fuck it, I’m gonna go murder someone
because I’m a killer like that, then you might get life. [¶] But if there’s logical explanations
for some of the actions that happened and there’s a reason why, maybe the guy
did something else and provoked something or who knows. That’s why I’m here to let you set the record
straight.†Similarly, he told defendant
“Don’t go hemming yourself up on a life case when it doesn’t need to be.†Pate also repeatedly emphasized that the
interrogation was the critical opportunity for appellant to help himself by
being honest and showing remorse. In the
language of Holloway, Pate “led
[appellant] to believe he could avoid [a life sentence] by admitting to an
unpremeditated role in the killing.†(
Finally,
it is clear that Pate’s false promises of leniency caused appellant to
confess. (See Cahill, supra, 22
Cal.App.4th at p. 316 [“An implied promise of leniency must be ‘a motivating
cause of the confession.’ â€].)
Appellant repeatedly expressed concern he would be sentenced to life in
prison if he admitted to killing the victim, and Pate repeatedly attempted to
assuage that concern by telling appellant that whether he would be sentenced to
life depended on appellant’s explanation of why he killed the victim. Indeed, immediately before appellant
confessed his involvement, appellant was expressing concern he would be
sentenced to life regardless of what he said, and Pate responded, “That’s not
necessarily true my friend.†No other
circumstances undermine the implication that Pate’s false promises influenced
appellant’s decision to confess. We conclude
that, under Cahill, the defendant’s
confession was involuntary, obtained in violation of appellant’s Fifth
Amendment privilege against self-incrimination.
4.
Prejudice
Because
appellant’s confession was obtained in violation of the Fifth Amendment to the
United States Constitution, his conviction must be reversed unless the error in
admitting his confession was harmless beyond a reasonable doubt. (Arizona
v. Fulminante (1991) 499 U.S. 279, 295 (Fulminante);
Chapman v. California (1967) 386 U.S.
18, 23; see also Cahill,
bear the burden of demonstrating that admission of the confession did not
contribute to the conviction. (
in mind that “A confession is like no other evidence. Indeed, ‘the defendant’s own confession is
probably the most probative and damaging evidence that can be admitted against
him. . . . [T]he
admissions of a defendant come from the actor himself, the most knowledgeable
and unimpeachable source of information about his past conduct. Certainly, confessions have profound impact
on the jury . . . .’
[Citations.] While some statements
by a defendant may concern isolated aspects of the crime or may be
incriminating only when linked to other evidence, a full confession in which
the defendant discloses the motive for and means of the crime may tempt the
jury to rely upon that evidence alone in reaching its decision.†(Id.
at p. 296; see also People v. Cahill
(1993) 5 Cal.4th 478, 503; People v.
Gonzalez (2012) 210 Cal.App.4th 875, 884.)
Here,
the People argued in their brief on appeal the error was harmless because
“[t]he jury heard Gadberry’s testimony and watched a video of her police
interview. Her account of the events was
corroborated by recovery of Sanchez’s clothing at the Walnut Creek BART
station. Appellant’s and Gadberry’s
fingerprints were found on the broken window in the apartment where Sanchez was
stabbed. Richardson confirmed that
Gadberry left the bar with Sanchez.†In
our original decision, we found those arguments to be unpersuasive. The facts that the police found Sanchez’s
clothes where Gadberry said they would be and Richardson confirmed that the
victim left the bar with Gadberry were equally consistent with either Gadberry
or appellant killing Sanchez. The fact
that appellant’s fingerprints were on or around the broken window certainly
suggested his involvement in the robbery, but it was a reasonable possibility
that appellant was in the apartment at some other moment unrelated to the robbery. The People’s fingerprint examiner admitted on
cross-examination that fingerprints can remain on an object for weeks or more.
In
a petition for rehearing, the People argued admission of the confession was
harmless in light of a letter admitted into evidence at trial, People’s Exhibit
54A. On its face, the letter appears to
have been written by appellant and sent to Gadberry following appellant’s
arrest on the present charges. In the
letter, appellant admits he was the person who killed Sanchez. Among other things, he states, “But I’m hoping
for manslaughter or self defense. Either
one will be good for me. You don’t have
to worry as much as me. Because I’m the
one who did it.†He asks Gadberry to
provide her lawyer with a justification for his acts, without ever suggesting
that the justification is true: “When
you talk to your lawyer, tell him or her that the Mexican beat me up and I
defended myself. Please tell them that
it was self defense.†At trial, a
forensic document examiner testified appellant was the person who wrote the
letter, and it was admitted into evidence over appellant’s objection. At the end of her
on the letter, including appellant’s admission that he killed Sanchez, and
encouraged the jury to read the letter.
She argued, “This letter alone with the body of . . . Sanchez
is enough to prove this case without any assistance from . . .
Gadberry.â€
Although
the People presented the letter to this court for the first time in its
petition for rehearing, this court is obligated to consider the letter in
considering whether admission of the confession was harmless beyond a
reasonable doubt. (Woods, supra, 190 Cal. at
pp. 517-518.) In response to the
petition for rehearing, appellant argued that admission of the confession was
prejudicial even in light of People’s Exhibit 54A, although he did not explain
why, other than to assert that the confession was weightier evidence against
him. Appellant has not submitted a brief
following the Supreme Court’s transfer of this case with directions to
reconsider in light of Woods.
On
the merits of the issue, we note that appellant’s admissions were broader in
his confession than in the letter; specifically, in the confession he admitted
the killing occurred during the course of a robbery, while in the letter
appellant simply admitted he killed Sanchez without explaining the
circumstances. Nonetheless, People’s
Exhibit 54A provided strong corroboration for Gadberry’s testimony. Appellant does not argue that, absent the
confession, there is any likelihood the jury would have concluded Gadberry was
telling the truth in testifying that appellant killed Sanchez, but she was
lying in testifying that it occurred during a robbery. There is no persuasive reason to conclude she
was lying in that part of her testimony, because the testimony implicated her
in the robbery. We conclude the People
have met their burden of showing the error in admitting appellant’s confession
was harmless beyond a reasonable doubt.
II. The
Trial Court Properly Admitted Gadberry’s Statement to the Police
Appellant
contends Gadberry’s statement to the police should have been excluded because
it was the product of police coercion.
While
appellant lacked standing to seek to exclude Gadberry’s police statement on the
ground that it was obtained in violation of her Fifth Amendment privilege
against self-incrimination (People v.
Badgett (1995) 10 Cal.4th 330, 343 (Badgett)),
he did have standing to challenge the admissibility of the statement on the
ground it was obtained by coercion (People
v. Lee (2002) 95 Cal.App.4th 772, 781 (Lee)). (See also Badgett,
at p. 347 [“the primary purpose of excluding coerced testimony of third parties
is to assure the reliability of the trial proceedingsâ€].) “[Where], as here, the facts regarding the
alleged coercion are not in dispute, we . . . review the record de
novo to determine whether, based on the totality of the circumstances,
[Gadberry’s] statement was voluntary.†(
coercion. (Badgett, at p. 348.)
name="_ftnref11" title="">[11]
Appellant’s
primary argument is the police made implied threats Gadberry would be subject
to the death penalty if she did not make a statement implicating
appellant. However, a confession will
not be considered involuntary “ ‘simply because the possibility of a death
sentence was discussed beforehand’ [citation], but only where the confession
results directly from the threat such punishment will be imposed if the suspect
is uncooperative, coupled with a ‘promise [of] leniency in exchange for the
suspect’s cooperation’ [citation].†(
Holloway held that, to the
extent the officer’s “remarks implied that giving an account involving blackout
or accident might help [the] defendant avoid the death penalty, he did no more
than tell [the] defendant the benefit that might ‘ “flow[] naturally from
a truthful and honest course of conduct†’ [citation], for such
circumstances can reduce the degree of a homicide or, at the least, serve as
arguments for mitigation in the penalty decision.†(Ibid.) Here, at one point, the police stated to
Gadberry in describing the robbery-murder, “Do you understand that’s a death
penalty case?†They also made statements
suggesting a jury might view her more favorably if she told the truth and made
it clear she did not intend for the victim to be murdered. These statements did not render the statement
involuntary under Holloway.
Furthermore,
contrary to appellant’s argument, the police did not promise Gadberry she would
be released if she confessed. And the
deception employed by the detectives during the interrogation was “not of a
type reasonably likely to procure an untrue statement.†(Farnam,
supra, 28 Cal.4th at p. 182.)
The
trial court did not err in refusing to exclude Gadberry’s police statement.
III. Admission
of the Autopsy Report Did Not Violate the Confrontation Clause
Appellant
contends he was “denied his federal and state constitutional rights to
confrontation and a fair trial by the trial court’s admission of the autopsy
report and the testimony of a pathologist who was not present at the autopsy of
the victim.†We disagree.
A.
Factual Background
As
explained previously, Peterson performed the autopsy on Sanchez and prepared an
autopsy report, but he was working for the Wisconsin Medical Examiner’s Office
at the time of trial. When he performed
the autopsy, Peterson was the managing partner of the Forensic Medical Group in
Fairfield. At trial, the prosecution
presented expert testimony regarding the Sanchez autopsy from Dr. Ogan, a
forensic pathologist with the Forensic Medical Group. Defense counsel unsuccessfully objected to
Ogan’s testimony on confrontation clause grounds. Ogan told the jury he had reviewed the
autopsy report prepared by Peterson and the photos documenting the
autopsy. Based on the report and
photographs, Ogan described the condition of Sanchez’s body in detail, both
externally and internally, including the presence or absence of alcohol and
other drugs in his system. He expressed
agreement with Peterson’s conclusion the cause of death was a single stab wound
to the chest. He also provided his
opinion on various matters, including that certain
inflicted while Sanchez was still alive.
The autopsy report was admitted into evidence over defense counsel’s
objection. Following his conviction,
appellant moved for new trial on the grounds that Ogan’s testimony and the
autopsy report should have been excluded.
The trial court denied the motion.
B.
Analysis
The
confrontation clause states, “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against
him.†(U.S. Const., 6th Amend.) In Crawford
v. Washington (2004) 541 U.S. 36 (Crawford),
the high court interpreted this provision to bar “testimonial†hearsay unless
the out-of-court declarant is unavailable to testify and the defendant had a
prior opportunity for cross-examination.
(Id. at p. 59; see also
616 (Dungo).) Crawford
explained that the Sixth Amendment’s confrontation right pertains to those who
give “testimony,†defined as “ ‘[a] solemn declaration or affirmation made
for the purpose of establishing or proving some fact.’ †(Crawford,
at p. 51.) But Crawford did not adopt a particular definition of
“testimonial.†(Id. at p. 52; see also Dungo,
at p. 616.)
In
three post-Crawford cases,
557 U.S. 305 (Melendez-Diaz),
___ [131 S.Ct. 2705] (Bullcoming),
and Williams v. Illinois (2012) 567
U.S. ___ [132 S.Ct. 2221] (Williams),
the high court has addressed the admissibility under Crawford of out-of-court statements contained in forensic analyst
reports, when the analyst who prepared the report does not testify.
Following
Williams, in Dungo, supra, 55 Cal.4th 608 and People v. Lopez (2012) 55 Cal.4th 569 (Lopez) our Supreme Court
attempted to distill guiding principles from the high court’s jurisprudence in
this area. Given the nature of
appellant’s Crawford claim, however,
it is unnecessary to sort through all of the intricacies of the
In
most respects, Ogan’s testimony related to issues, like the cause of death,
which were undisputed. Appellant’s claim
of prejudicial error is, in fact, limited to one aspect of the pathologist’s
testimony: Ogan’s conclusion that the
victim’s facial injuries were inflicted premortem. Appellant argues, “[t]he inference from Dr.
Ogan’s testimony was that appellant had hit Sanchez in addition to stabbing him
and therefore they had a greater conflict and appellant’s actions were
intentional.†Because a homicide
detective who was present at the autopsy testified Peterson said this injury
was inflicted “postmortem,†appellant contends he was prejudiced by Ogan’s
contradictory testimony.
name="_ftnref12" title="">[12]
We
conclude that under Dungo no
confrontation clause violation occurred, because none of the autopsy
information Ogan relied on was testimonial.
Ogan’s challenged opinion was based on photographs of the facial injury
taken during the autopsy and Peterson’s comments regarding his observations of
that injury contained in the autopsy report.
Peterson’s
statements in the autopsy report are not testimonial. (Dungo,
supra, 55 Cal.4th at p. 621 [pathologist’s observations in an autopsy
report regarding the condition of a victim’s body are not testimonial].) In addition, the photographs are not
hearsay.
out-of-court “statement that was made other than by a witness while
testifying at the hearing and that is offered to prove the truth of the matter
stated.†(Evid. Code, § 1200, subd.
(a), italics added.) A “statement†is
oral or written verbal expression or nonverbal conduct of a person that
is intended to be a substitute for oral or written verbal expression. (Evid. Code, § 225.) The autopsy photographs are not “verbal
expressions,†nor is a camera a “person.â€
583.) Because they are not statements,
the photographs are not testimonial. In
any event, even if the photographs were statements, they would not be
testimonial for the same reason that Peterson’s comments about the facial
injuries in the autopsy report are not testimonial. No Sixth Amendment violation has been shown.
IV.
The Trial Court Did Not Abuse Its
Discretion by Discharging a Juror
Appellant
contends the trial court violated his right to a fair trial by discharging
Juror No. 118, who sat in the jury box as Juror No. 7. We disagree.
A.
Background to Removal of Juror
During
Gadberry’s testimony, the trial court, outside the jury’s presence, said to
both counsel that Juror No. 118 was “having some severe problems with staying
awake.†The court stated, “He is not
only perpetually yawning and facing his chair away from the witness, but
several times today I’ve caught him with his eyes closed — [¶] . . .
[¶] — on crucial testimony. [¶] So
I want to talk to him about what the problem appears to be. If it’s an issue of maybe the blinds need to
be drawn or if he’s working late or whatever it is. [¶] . . . [¶] But we can’t have that.â€
The
court then spoke directly to Juror No. 118, referencing his difficulty staying
awake and asking what the problem was.
He replied, “It’s just been a very hot day. . . . I . . . went for an extended
walk, and it was very, very hot. . . . [I] was trying to pay attention to the
testimony being given at the time. It
was becoming a little — unfortunately, some of the more fine aspects that were
not I didn’t think germane or key critical at that particular moment tended to
have my focus wander, or I allowed myself to wander in my concentration.†He admitted, “I think I fell asleep briefly
for one point.†He explained it was
during the portion of Gadberry’s testimony “where she was — they were trying to
determine the screen and whether or not — how it was removed.†The court asked the juror if closing the
blinds would be helpful to him and he said yes.
The court also took into consideration the juror’s request that a fan be
moved.
Subsequently,
during Ogan’s testimony, the court, out of the jury’s presence, stated it had
received information about Juror No. 118 from Deputy Wolfe, who was assigned to
appellant’s courtroom during jury selection but was not assigned to the
courtroom at the time. Wolfe told the
court that Juror No. 118 had made contact with him that day and the day
before. The court told counsel it was
“concerned that somehow (Juror No. 118) may have established some affinity with
Deputy Wolfe, and it leads to a concern that he may lean one way or the other
because of these interactions which appear to be odd at best.†The court stated it intended to discuss the
matter with Juror No. 118 but it was inclined not to allow him to remain a
juror “given the fact that he slept during previous testimony, that he’s
already had improper contact with Christopher Bowen, and now he’s had two days
worth of contact with Deputy Wolfe . . . .â€
Deputy
Wolfe told the court under oath that Juror No. 118 approached him the day
before at a coffee shop. Juror No. 118
was standing in line directly behind the deputy and said, “I recognize you from
before. You’re a good bailiff. We miss you in there. I have a question to ask you.†Deputy Wolfe told the juror he could not
answer any questions, he was on his lunch break, and Juror No. 118 needed to
leave. A similar encounter occurred the
next day. Juror No. 118 approached Wolfe
at a table in the same coffee shop and said, “Hey, I need to ask you a
question. Can I raise my hand and ask
questions during the trial?†Wolfe told
the juror he could not answer the question and the juror should ask his
question to the bailiff in the courtroom.
Juror No. 118 was summoned to the courtroom and asked to explain the
contact he had with Deputy Wolfe on the day before and on that day. Juror No. 118 said on the day before he made
brief “chitchat†with Deputy Wolfe, telling the deputy he was “a funny
bailiff.†The juror said that the next
day (the day of the hearing) he asked Wolfe what was the proper procedure to
follow if a juror had a question.
After
the questioning, defense counsel argued the juror should not be discharged
because “the contacts were relatively innocuous.†The prosecutor deferred to the trial court on
whether to discharge the juror. The
court decided to discharge Juror No. 118, reasoning: “I am very concerned about (Juror No. 118) in
the sense that the court has already had several conversations with him—well,
with the panel as a whole regarding not to have contact with parties involved
in this matter. So that’s the one
concern. [¶] But we have had him
here before because he’s been asleep, which he admitted. And he admitted he was sleeping because he
didn’t find some testimony to be, quote, unquote, germane, which as we all know
is certainly not a decision he can make at this particular point. He’s required to listen to all the
testimony. [¶] Secondly, Mr. Bowen
reported contact by (Juror No. 118) with him at the end of the day at the
conclusion of Ms. Gadberry’s testimony.
[¶] And now there are two contacts, yesterday and today, with
Deputy Wolfe who is not assigned to this department, who is currently in trial
in Department 12 as the assigned bailiff there, and whose version of the
contact is somewhat different from (Juror No. 118’s). I do credit Deputy Wolfe’s description of the
contact. [¶] And my concern is, is
that somehow (Juror No. 118) may have some alignment with Deputy Wolfe which
could be a concern as a deliberating juror in this matter. [¶] So I understand, [defense counsel],
that you think he should sit. And I
understand, [prosecutor], you will just submit it to the court, but it’s my intention,
given the totality of the circumstances before me, to excuse him.â€
The
court also directed the bailiff to dispose of the juror’s trial notebook,
stating, “And for the record, Deputy Moreno is going to be disposing of this
notebook, because repeatedly during this trial — and I don’t know if counsel
have noticed it — he has had the notebook in his mouth. [¶] . . . [¶] And using it in some very bizarre
gestures. And so that notebook is being
disposed of as we speak.â€
B.
Analysis
Penal
Code section 1089 authorizes the trial court to discharge a juror at any time
before or after the final submission of the case to the jury if, upon good
cause, the juror “is found to be unable to perform his or her duty.†(See also Code Civ. Proc., § 233 [trial court
may order discharge of juror who is unable to perform his or her duty].) A juror’s inability to perform as a juror
“ ‘ “ ‘must appear in the record as a demonstrable
reality.’ †[Citation.]’ [Citation.]â€
(People v. Cleveland (2001) 25
Cal.4th 466, 474.) The trial court’s
ruling is reviewed for abuse of discretion.
(Ibid.)
In
People v. Bonilla (2007) 41 Cal.4th
313 (Bonilla), the Supreme Court
indicated that sleeping during trial may constitute good cause to discharge a
juror. There, one juror submitted a note
advising the court that, “due to an extended night shift work schedule, he had
‘drifted off to sleep a couple of times this past week.’ †(Id.
at p. 350) The court had not observed
the juror sleeping. (
court and counsel that he did not think he had missed any testimony because he
caught himself when he started to nod off.
(Ibid.) The trial court declined to discharge the
juror, but it did discharge another juror based on testimony from defense
witnesses that they had seen the other juror sleeping. (Id.
at p. 352.) Bonilla indicated that discharge of the juror who had been
witnessed sleeping was “supported by the evidence.†(Id.
at p. 350.)
In
the present case, during the testimony of Gadberry, the key witness, the trial
court observed Juror No. 118 “perpetually yawning and facing his chair away
from the witness,†and “several times†the court caught him “with his eyes
closed . . . on crucial testimony.â€
(See People v. Bradford (1997)
15 Cal.4th 1229, 1349 [juror inattentiveness is generally not a basis for new
trial motion “ ‘in the absence of convincing proof that the jurors were
actually asleep during material portions of the trial. [Citations.]’
[Citation.]â€].) Although the
court did not immediately decide to discharge the juror due to his
inattentiveness, his inattentiveness during Gadberry’s testimony provides
sufficient support for the court’s discretionary decision to discharge the
juror. In light of that conclusion, we
need not decide whether the juror’s contacts with Deputy Wolfe separately
support the implied finding that Juror No. 118 was unable to perform his duty.
V. The
Trial Court Did Not Err in Excluding Certain Impeachment Evidence
Appellant
contends the trial court violated his constitutional right to present a defense
by excluding “relevant impeachment evidence regarding crucial prosecution
witness†Gadberry. We reject the claim.
A.
Background
During
defense counsel’s cross-examination of Richardson, the trial court sustained
relevance objections to a number of questions intended to impeach Gadberry’s
credibility. Counsel asked who was the
more controlling and more mature person in Gadberry and appellant’s relationship,
and counsel asked if Richardson had an opinion about Gadberry’s reputation for
honesty. Outside the jury’s presence,
defense counsel argued that Gadberry, by testifying about appellant’s “violence
and his sexual depravity,â€
name="_ftnref13" title="">[13]
had “put into issue the question of who was controlling that
relationship.†Counsel also said
Richardson had seen Gadberry “acting in the role of prostitution†on another
occasion, which would impeach Gadberry’s credibility because prostitution is a
crime of moral turpitude.
Defense
counsel made an offer of proof.
Richardson would testify she saw Gadberry late at night in an area known
for prostitution. Another witness would
testify that on at least two occasions Gadberry
| Description | Paul Westmoreland (appellant) was convicted by a jury of first degree felony murder, second degree robbery, and second degree burglary. On appeal, appellant contends the trial court erred in admitting his confession and the confession of a codefendant, erred in admitting an autopsy report authored by a nontestifying forensic pathologist, abused its discretion in discharging a juror, and abused its discretion in excluding certain impeachment evidence. We find no prejudicial error. Procedural Background |
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