Filed 11/23/05 P. v. Baxter CA1/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. KERRY LYNDE BAXTER, Defendant and Appellant.

A105111 (Alameda County Super. Ct. No. C141955)

Kerry Lynde Baxter timely appeals from a judgment sentencing him to 66 years to life in state prison. On October 15, 2003, a jury found Baxter guilty of second degree murder with a true finding on two firearm enhancements; guilty of attempted murder with a true finding on one firearm enhancement; and guilty of possession of a firearm by an ex-felon. (Pen. Code, §§ 187, 664, 1203.06, subd. (a)(1), 12021, subd. (a)(1), 12022.53.)

Baxter contends (1) the prosecutor's peremptory challenges of four African-American prospective jurors violated his constitutional rights; (2) the trial court erroneously admitted evidence of his criminal character; (3) the admission of Lawana Wyatt's out-of-court statements to the police violated his confrontation rights; (4) the court erred in admitting evidence of the deceased victim's character for peacefulness; (5) the court erred in allowing testimony by a police officer regarding the credibility of other witnesses' statements; and (6) the prosecutor committed misconduct during closing argument. We affirm.

BACKGROUND

On the night of March 30, 2001, Anthony Blake, an innocent bystander, was shot and killed by a stray bullet while standing outside the Club Martinique (the Club). A second victim, Jhamani Jones, was shot in the foot after he argued with Baxter that night.

A. Evidence Presented by the Prosecution

1. Testimony of Witnesses Who Heard Gunshots and Saw Jones and Baxter Running From the Crime Scene

Witnesses testified they saw Blake, Baxter and Jones at or outside the Club that night. Sometime after 10:00, they heard gunshots. Blake was not inside the Club at that time; he was just outside smoking a cigarette. After the gunshots, Blake fell to the ground with a bullet hole in his chest.

The shots came from Maple Street downhill from the Club. The Club's bouncer saw Jones running uphill on Maple Street from that direction. He did not see a gun in Jones's hand. Another witness standing in his home's driveway near the Club told police he saw Baxter come running past him almost a minute after hearing the shots. He did not see anything in Baxter's hands.[1]

2. Testimony of Jhamani Jones

Jones had felony convictions for vehicle theft and robbery, and an outstanding warrant for domestic abuse in Merced County.

Jones knew Baxter through some friends. The night of the shooting, Jones went to the Club at about 10:00 p.m. Once there, a friend told Jones that Baxter was there and had a gun. Jones went over to talk to Baxter. There was a rumor circulating at the time that Jones had broken the window on Baxter's car with a BB gun and Jones wanted to talk to Baxter to clear his name.

Jones asked Baxter if they could talk outside. Baxter patted Jones's midsection to see if Jones had a gun. Jones testified he did not have a gun on him that night. Jones and Baxter left the Club and walked downhill on Maple Street. Jones told Baxter he was not responsible for the broken car window, but Baxter wanted Jones to pay to repair it. During their conversation, Baxter was operating his two-way pager and Jones felt like he was wasting his time. Baxter asked Jones if he had a weapon; Jones testified he told Baxter that â€