PEOPLE v. MAE POLK







Filed 12/13/10




CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. SUSAN MAE POLK, Defendant and Appellant.

A117633 (Contra Costa County Super. Ct. No. 031668-7)

Story continued from part II…..

F. The Prosecutor’s Reference to Court TV
During his cross-examination of Cooper, the prosecutor asked Cooper whether he was aware his opinions had been criticized by forensic pathologists interviewed on television. Although the trial court sustained an objection to this question and admonished the jury to disregard it, defendant contends the court erred in not declaring a mistrial.
1. Background
During the cross-examination discussed in the preceding section, the prosecutor asked Cooper if he was aware “how many papers” had quoted his letter to the court. In response, Cooper answered he was unaware, saying, “I haven’t read the papers. I have just been following it on Court TV.” The prosecutor followed up:
“Q. Really‌ Did you hear them talking about you on Court TV‌
“A. No, I don’t watch television. I get the website.
“Q. Oh. You didn’t see all those forensic pathologists on Court TV saying that your opinion had no basis‌
“[DEFENDANT:] Objection –
“[PROSECUTOR:] You didn’t’ see any of that‌”
The trial court sustained the objection and admonished the jury to disregard the question, but the court denied defendant’s motion for a mistrial on grounds of prosecutorial misconduct.
2. Discussion
The prosecutor’s question was an improper attempt to elicit otherwise inadmissible evidence, and the trial court properly sustained defendant’s objection and admonished the jury. (See, e.g., People v. Smithey (1999) 20 Cal.4th 936, 960.) The trial court was required to declare a mistrial if any prejudice resulting from the prosecutor’s question was “ ‘incurable by admonition or instruction.’ ” (People v. Collins (2010) 49 Cal.4th 175, 198.) “ ‘Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.]’ [Citation.] A motion for a mistrial should be granted when ‘ “ ‘a [defendant’s] chances of receiving a fair trial have been irreparably damaged.’ ” ’ ” (Ibid.)
We find no abuse in the trial court’s denial of the motion for mistrial. There was limited, if any, prejudice from the question. Because defendant intervened before the witness answered the question, the prosecutor’s improper implication was not confirmed, and the jury was instructed to disregard the prosecutor’s comment in any event. While it was improper to suggest unnamed experts outside the courtroom had rejected Cooper’s opinions, his opinions were already subject to challenge by the views of the prosecution’s testifying experts. Any prejudice resulting from this suggestion was minor, at most, and curable.
Defendant characterizes the question as “unforgettable and therefore incurably prejudicial.” She fails to explain, however, why this question among the thousands posed at trial was unforgettable and why, even if the question was for some reason unforgettable, the jury could not follow the court’s instruction to disregard it.
Defendant analogizes the case to People v. Hill (1998) 17 Cal.4th 800, but in Hill the magnitude of the prosecutor’s misconduct, and the resulting prejudice, was of another order entirely. Defendant focuses solely on the Hill prosecutor’s references to facts not in evidence. (Id. at pp. 827–828.) In addition to these references, however, the Hill prosecutor committed additional misconduct by misstating evidence and mischaracterizing testimony several times (id. at pp. 823–826), making intentionally confusing references to particular evidence (id. at pp. 825–826), suggesting the crimes ceased after the defendant’s arrest (id. at p. 828), suggesting the People had an expert to testify to a matter without calling the expert (ibid.), misstating the law on at least four occasions (id. at pp. 829–832), treating defense counsel with derision (id. at pp. 832–833), and intimidating witnesses (id. at p. 834). The Supreme Court’s decision to reverse was based on the cumulative prejudice resulting not only from this extensive prosecutorial misconduct but also from a series of other errors in the trial. (Id. at p. 844.) Assuming the prosecutor’s single reference to the Court TV experts was prejudicial at all, the degree was in no way comparable to the cumulative prejudice caused by the repeated and persistent misconduct in Hill.
G. “Were They Lying” Cross-examination
Defendant contends the prosecutor committed misconduct by asking defendant during cross-examination whether she believed certain witnesses were lying and creating a chart listing the accused liars.
1. Background
During cross-examination, the prosecutor questioned defendant about her interaction with Gabriel on the night he discovered Felix’s body. After claiming not to recall certain aspects of Gabriel’s account and denying others, defendant said, “Well, there’s a difference between what he has said happened and what I have said happened.” The prosecutor followed up by asking, “[A]re you saying to this jury that he lied about that conversation‌” After considerable colloquy, with the prosecutor persisting in the question, defendant answered that she was not accusing Gabriel of lying. In so doing, she made no formal objection to the question. After substantial further exploration of Gabriel’s testimony, the prosecutor asked defendant whether, after Gabriel returned from discovering Felix’s body, she said “something to him, like, I guess I didn’t use a shotgun, did I‌” When defendant denied making the remark, the prosecutor responded, “So he’s lying‌” Without objecting, defendant responded that Gabriel “was less than truthful on the stand, yes.” Using some type of display, the prosecutor began a tabulation, writing “Liars” at the top of a page and, beneath it, “Number 1, Gabe.” Defendant objected to the prosecutor’s use of the chart, denying she had called her son a liar.[1]
The prosecutor soon after began questioning defendant about a police investigator. After she denied telling the investigator when informed of Felix’s death, “Oh, well, we were getting a divorce anyhow,” the prosecutor asked whether the investigator was lying. Without objecting, defendant responded, “[He] is exceedingly deceptive and dishonest.”
Two trial days later, still continuing his cross-examination, the prosecutor asked defendant about the autopsy testimony. When she denied “stick[ing] the knife in all the way,” the prosecutor asked, “Is [the medical examiner] a liar also‌” Again without objecting, defendant responded, “I like Dr. Cooper’s answer to that, that a gentleman doesn’t call someone else a liar. Hm, I think he said that [the medical examiner] was exceedingly, hm, dishonest . . . .” Later that day, during an exchange between the prosecutor and defendant in the course of her testimony, defendant accused the prosecutor of “attempting . . . to make it look like you have a case when you don’t. And that’s the same reason why you supported [sic] perjured testimony from your witnesses and the fabrication of evidence by . . . officers on the scene.” After the prosecutor asked, “Who else has perjured themselves, Mrs. Polk,” the defendant named him. The prosecutor then threatened to list his own name on the chart of “liars,” and defendant and the prosecutor exchanged views of the linguistic distinction between “liars” and persons who are “deceptive.” Defendant denied using the former term, but she was comfortable with the latter. Defendant again objected to use of the chart but did not object to the prosecutor’s questions.
During continued cross-examination the next day, defendant explained her belief the police had tampered with evidence to make it appear she had murdered Felix by moving furniture, spreading Felix’s blood around the cottage, taking a woman’s shoe dipped in blood “and stamp[ing] it all over the room,” and moving the body. In the process, she expressly accused two of the police investigators of lying. Regarding the second accused officer, the prosecutor asked whether he could add the investigator to his list of liars. Without objecting, defendant demurred because “I’m not sure that he’s a habitual liar.”
Discussing her sons’ testimony during her own redirect testimony, defendant told the jury, “So, hm, I don’t think of . . . Gabriel and Adam as liars. Hm, that they have told some lies, a number of lies, hm, I think that that’s something that they have learned to do, and that they have mainly learned to do in the, hm, three and a half years I have been away from them.” Turning to the prosecutor’s “list of liars,” defendant commented, “I think some people tell lies a lot and live their lives around that, and just about everything is a lie.” Defendant then discussed the listed persons one by one, rejecting the listing of some and accusing the remainder of giving deceptive testimony. The medical examiner, she claimed, “knew he was lying, and he did so deliberately.” Defendant reiterated these claims in closing argument, accusing the prosecutor, her sons, and two police investigators either of lying or of “fabricat[ing] evidence.”
2. Discussion
“A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such ‘ “unfairness as to make the resulting conviction a denial of due process.” ’ [Citations.] Under state law, a prosecutor who uses deceptive or reprehensible methods commits misconduct even when those actions do not result in a fundamentally unfair trial.” (People v. Cook (2006) 39 Cal.4th 566, 606.)
Our Supreme Court has rejected the argument that asking a witness whether another witness was lying necessarily constitutes prosecutorial misconduct because it invades the province of the jury. Rather, in People v. Chatman (2006) 38 Cal.4th 344, the court held that “were they lying” questions must be evaluated individually. (Id. at p. 382.) A defendant who is a percipient witness to the events at issue may be able to provide insight into why another witness’s testimony differs from his or her own. On the other hand, to ask a witness with no relevant personal knowledge of the events whether another witness is lying calls for irrelevant speculation. (Ibid.) Similarly, asking a defendant whether an inanimate object is lying, as occurred in Chatman, is purely argumentative. (Id. at p. 384.) Accordingly, the court directed, “courts should carefully scrutinize ‘were they lying’ questions in context. They should not be permitted when argumentative, or when designed to elicit testimony that is irrelevant or speculative. However, in its discretion, a court may permit such questions if the witness to whom they are addressed has personal knowledge that allows him to provide competent testimony that may legitimately assist the trier of fact in resolving credibility questions.” (Ibid.; accord, People v. Hawthorne (2009) 46 Cal.4th 67, 98.)
Initially, defendant has forfeited any claim of misconduct or error regarding the prosecutor’s “were they lying” questions because she did not object to them. (People v. Chatman, supra, 38 Cal.4th at p. 380.) Because her only objection was to the use of the “liar’s list,” she has forfeited any argument of impropriety regarding the questions themselves.[2]
Even if defendant had not forfeited the argument, we would find no prosecutorial misconduct. As discussed above, “were they lying” questions are appropriate in some circumstances. Defendant’s admitted personal knowledge of the events here raised the possibility she would be able to provide relevant, admissible testimony in response to this type of question. Further, as suggested above, one element of her defense was the claim she was being persecuted. Accordingly, there is no indication the prosecutor was intentionally seeking inadmissible evidence by asking the questions, and therefore no indication of misconduct. (People v. Chatman, supra, 38 Cal.4th at pp. 380, 382–384.)
Defendant cites Zambrano, supra, 124 Cal.App.4th 228, in which officers testified they saw the defendant sell drugs to another person. (Id. at pp. 234–235.) When the defendant denied the charge, the prosecutor asked him whether the officers were lying. (Ibid.) Because the defendant had no particular knowledge of the arresting officers, the court held, asking him whether they were lying was improper because it called for foundationless lay opinion about the officer’s veracity. (Id. at pp. 240–241.) In contrast, regarding her sons, defendant had personal knowledge not only of the subject of their testimony, but also their character, and therefore might have provided insight into the reasons for their falsehoods. Indeed, in her redirect testimony she suggested they had been influenced by others during her time in jail. The case is less clear for the investigators and the medical examiner, but because defendant had acted as her own attorney, and therefore had reason to have examined their conduct and testimony closely, there was a reasonable possibility defendant could shed light on their veracity. In fact, defendant testified freely on redirect about their mendacity, accusing them of participating in a conspiracy to frame her for murder, and repeated these claims in her closing argument. Given defendant’s willingness to accuse other witnesses of lying, there was no error in permitting her to be questioned in this manner.
Even if these questions had been improper and objection to them preserved, there would be no grounds for reversing the conviction because the questions were not prejudicial under the Watson test. (See Zambrano, supra, 124 Cal.App.4th at p. 243.) Defendant made no secret of her contention various witnesses were giving false testimony. Explaining the discrepancies between her own testimony and that of the various prosecution witnesses was an important aspect of her defense, and one of her explanations was that certain other witnesses were lying. Far from prejudicial, the prosecutor’s questions gave defendant an opportunity to testify about this aspect of her defense. There is no possibility that, in the absence of the questions, the verdict would have been different.[3]
H. Cumulative Error
Because we have found little or no preserved error in the proceedings, there is no basis for considering the cumulative prejudice of the error.
I. Limitations on Defendant’s Self-representation
Defendant contends her conviction must be reversed, without a showing of prejudice, because her ability to conduct her defense was hampered by conditions imposed upon her as a result of her incarceration and restrictions imposed by the court. 1. Background
Following her conviction, defendant moved for a new trial on the ground her defense had been hampered in various ways. In a declaration, Valerie Harris, who acted as “legal runner and a case manager” for defendant, stated that she was denied “full contact” visits with defendant at the jail and was allowed noncontact visits only with seven-day advance notice. She also said that paperwork dropped off at the jail was subject to examination and she was not guaranteed privacy during telephone conversations. Harris also noted defendant was frequently tired because she was awakened early and sometimes during the night. Harris contended defendant’s exhaustion interfered with preparation for her cross-examination and her closing argument, although she cited no specific examples. Defendant was also unable to keep all her preparation materials in her cell, was denied daily transcripts, and was denied more than one change of clothes at a time. Again, no particular prejudice was cited arising from these limitations.
Harris’s declaration was at odds with her comments when the issue of visitation was raised at trial. Harris’s access to defendant was part of a protocol worked out with the jail. Early in the trial, defendant complained about the need to make arrangements seven days in advance to see Harris at the jail. Harris, however, told the court it was generally unnecessary for her to visit defendant in jail because she saw defendant daily at trial and was able to transfer materials at that time. In fact, the court noted later, Harris sat at counsel table with defendant “[f]or a good part of the time.”
The new trial motion was also supported by a declaration from Gary Wesley, who was appointed to serve as defendant’s advisory counsel just prior to her cross-examination. At that time, defendant asked the court to appoint Wesley as her cocounsel, allowing him to make objections during cross-examination. The court declined to permit the arrangement requested by defendant, which would allow both her and Wesley to exercise the courtroom privileges of counsel simultaneously. Instead, the court stated, defendant had the option of having Wesley appointed either advisory counsel, “who usually sits in the audience and is only available for advice and counsel, but doesn’t participate,” or counsel, “which means that it takes away from [defendant] the ability to object, argue, et cetera, for that period of time.” The prosecutor, however, objected to allowing Wesley to be appointed counsel, noting that because of the complexity of the trial, Wesley, who had not even sat in on defendant’s direct examination, let alone the remainder of the trial, was not in a position to provide effective assistance as defendant’s attorney.
Accepting the validity of the prosecutor’s argument, the court denied the request to have Wesley appointed temporary counsel, but it consented to Wesley’s acting as advisory counsel during the cross-examination. Defendant was to retain the privileges and responsibilities of counsel, such as making objections. Defendant agreed to the arrangement, telling the court, “that sounds good.” The court allowed Wesley to sit behind defendant during her cross-examination, but it refused defendant’s request that he be permitted to tap her on the shoulder to alert her to objections. Instead, defendant was required to initiate contact, turning to Wesley if she wanted to consult. In his declaration, Wesley stated this arrangement prevented some objections from being made because he was unable to alert defendant to objectionable questions, but he cited no specific forfeited objections.
After one day of this arrangement, defendant declined without explanation to have Wesley continue to sit with her on the stand. In a declaration filed with the new trial motion, she explained she was concerned turning to consult him would make it look as though she was “trying to evade the questions.” Following the second day of cross-examination, Wesley was denied a confidential visit with defendant at the jail, apparently because notice of his appointment as advisory counsel had not been communicated to the jailers.
Finally, during one of the days of cross-examination, defendant complained to the court she had been awakened unnecessarily around 3:00 a.m., saying she “had very little sleep.” After the jury entered the courtroom, defendant announced, “I didn’t hardly get any sleep last night, and I’m sorry. I was awakened in the middle of the night by a sergeant on a rampage.” In the new trial motion, defendant claimed the early wake-up call decreased her effectiveness, but she did not cite any examples of adverse events occurring that day as a result of her inattention.
In denying the motion for a new trial, the court cited the various allowances made for defendant, noting defendant “was afforded more accommodations than any other pro per or represented defendant that I have known in ten years on the bench, by far,” including being housed alone (the only prisoner permitted this privilege), allowed extra written materials in her cell (contrary to jail policy and fire department directives), given extra time for preparation in the morning, granted her own holding cell next to the courtroom, provided access to the courtroom before and after courtroom hours, and allowed to store documents at court. Also, the court saw no indication her self-representation was ever hindered by fatigue.
2. Discussion
Because “[r]estrictions on pro. per. privileges in custody are not unusual,” one of the risks of self-representation is “custodial limitations on the ability to prepare a defense in jail.” (People v. Butler (2009) 47 Cal.4th 814, 827, 828.) “[A] defendant who is representing himself or herself may not be placed in the position of presenting a defense without access to a telephone, law library, runner, investigator, advisory counsel, or any other means of developing a defense [citation], but this general proposition does not dictate the resources that must be available to defendants. Institutional and security concerns of pretrial detention facilities may be considered in determining what means will be accorded to the defendant to prepare his or her defense.” (People v. Jenkins (2000) 22 Cal.4th 900, 1040.) “In the final analysis, the Sixth Amendment requires only that a self-represented defendant’s access to the resources necessary to present a defense be reasonable under all the circumstances.” (People v. Blair, supra, 36 Cal.4th at p. 733.) In addressing a claim such as defendant’s, the issue is “whether [the defendant] had reasonable access to the ancillary services that were reasonably necessary for his [or her] defense.” (Id. at p. 734.)
In making her argument, defendant does not even attempt to demonstrate she was denied “reasonable access” to “reasonably necessary” services. Because defendant had access to Harris each day at trial, requiring her to arrange in advance to see Harris at the jail did not unreasonably impair her access to the runner. Significantly, she points to no way in which her defense was prejudiced by this restriction.
Similarly, defendant had reasonable access to her advisory counsel, Wesley. The role of advisory counsel is limited, and “[t]he court retains authority to exercise its judgment regarding the extent to which such advisory counsel may participate.” (People v. Bradford (1997) 15 Cal.4th 1229, 1368.) Defendant could have had Wesley at her elbow throughout her cross-examination; it was her own choice to have him remain in the audience after the first day. Requiring defendant actively to seek Wesley’s consultation, rather than permitting him to interrupt examination by tapping her on the shoulder or otherwise, was within the court’s discretion. Any other rule risked Wesley’s interference with defendant’s self-representation during a critical part of the trial. Again, no specific prejudice from this restriction, or any other aspect of Wesley’s role, has been shown.[4]
Finally, we find no grounds for reversal in defendant’s being awakened early one morning, particularly in the absence of any specific showing of prejudice. There is no contention defendant was commonly denied sleep without justification, and any single day’s exhaustion would not have rendered the trial fundamentally unfair.
Defendant argues “[t]he effectiveness of her case manager, Valerie Harris, and her advisory counsel, Gary Wesley, was greatly diminished by rules imposed by the court, sheriff, and jail personnel, which were arbitrary, unjustified, and unreasonable.” There is no evidence to support any of these assertions. As discussed above, there is no indication Harris’s effectiveness was significantly affected. If Wesley was ineffective, it is because defendant chose not to consult him, not because of the court’s restrictions. The excuse she provided for not consulting him—that she believed it would look evasive to the jury—would have been present regardless of whether he initiated the consultations or she did. It was inherent in the nature of advisory counsel, and, as noted, defendant does not challenge the decision to restrict Wesley’s role to advisory counsel. Finally, there was no showing the restrictions imposed by the sheriff and jail authorities were arbitrary, unjustified, or unreasonable. The record contains no evidence one way or another regarding the reasons for the restrictions placed on defendant. All we know for certain is that defendant was provided privileges never before afforded to a pro se defendant by the Contra Costa County jail, at least in the experience of the trial court.
There is no doubt defendant suffered inconveniences as a result of her incarceration that made preparation of her defense more difficult. A greater showing than inconveniences is necessary, however, to demonstrate that her right of self-representation was infringed. We find no error in the trial court’s conclusion defendant was not denied reasonable access to necessary services. Further, defendant has demonstrated no prejudice from whatever inconveniences occurred.[5]
J. Possible Juror Misconduct
Defendant’s new trial motion also included evidence suggesting juror misconduct. She contends the trial court abused its discretion in declining to conduct an evidentiary hearing with respect to the possibility of such misconduct.
1. Background
The claim of possible misconduct was based on jurors’ comments during a press conference conducted in the courthouse after the verdict was announced. The jurors were informed of the conference by the trial court while still in the courtroom, and the nine who elected to participate were escorted to the conference by court officials after the jury was discharged. In support of her claim of juror misconduct, defendant submitted a declaration from a spectator at the trial that day, stating the spectator “quickly made [her] way downstairs” to attend the press conference after the jurors were discharged. According to the spectator, the jurors who participated in the conference “arrived within minutes.”
One of the topics addressed during the press conference was defendant’s decision to act as her own attorney. When asked how her self-representation affected the jury’s decisionmaking, one juror commented, “Well we all kind of talked about it, and we decided . . . that whether we liked her or not, umm, or her antics or not, was really not . . . a question for us. We didn’t have to like her . . . to make a decision.” When asked to evaluate her performance as counsel, two jurors expressed the opinion that defendant would have been better off with an attorney. After one juror noted defendant was “extremely smart,” another said, “Well she’s . . . very smart. And we’ve been asked—I’ve been asked that question a lot, . . . and I say that I think she would have been better off with representation.” Responding to a follow-up question, the juror explained defendant was subject to frequent warnings from the court regarding the scope of her examinations and an attorney would have been more likely to stay on relevant topics and “maybe ma[k]e a lot of better points.” The jurors nonetheless seemed to believe the evidence was sufficiently convincing that representation by an attorney would not have made a difference in their verdict.
After several questions about their decision-making process, discussion turned to the jurors themselves. In response to the question, “How do you feel about all the media attention,” a woman juror said, “I want to respond to . . . we didn’t read anything . . . we didn’t watch anything . . . but we heard there were rumors that [a male juror] and I . . . [at this point, the juror made a gesture suggesting gossiping] . . . which is SO false. . . . He’s getting married, loves his fiancé, so that’s the only thing that the media was making stuff up, or if you weren’t making it up, you know, exaggerating things, that were so far-fetched.” The same juror later said the jury consented to the press conference because “we’ve not been allowed to talk for four months.”
In declining to order an evidentiary hearing regarding the possibility of misconduct, the trial court noted, “There must be a threshold of some evidence, not mere speculation, to justify an evidentiary hearing. . . . The hearing is not a discovery expedition to see what might happen and what might come out of it. [¶] In my opinion, there is no evidence here. There is merely speculation based on a couple of cryptic comments that were made during a press conference after the verdict was rendered. [¶] If I had been presented with declarations from former jurors or witnesses to misconduct that might be sufficient to then inquire further. Nothing has been presented here, in my opinion, that rises to the level of misconduct.” The court also noted the possibility the jurors discussed the case with outsiders during the time between announcement of the verdict and the press conference, since they were led to the press conference through hallways “packed with media and spectators” and “were free to use their cell phones” during that time. The court concluded, “There is no showing in what has been presented to me that those two comments [on which the new trial motion was based] during the press conference don’t reflect conversations between the jurors themselves about unrelated collateral matters . . . that occurred after the verdict.”


To be continue as part IV……

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