PEOPLE v. THOMAS

Filed 5/2/07

CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Kelvin D. Filer, Judge. Affirmed.

Chris R. Redburn, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr. Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Joseph P. Lee and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Appellant Donald Eugene Thomas challenges his murder, attempted murder, and assault with a deadly weapon convictions on the grounds a 25-year delay in prosecution violated his right to due process, and the trial court erroneously admitted hearsay, permitted him to be impeached with an old felony conviction, used outdated jury instructions, and denied his motion to reduce the offense to second degree murder.

We conclude appellant failed to establish a due process violation or ineffective assistance of counsel because he failed to show actual prejudice resulted from the long delay. The trial court erred by admitting one hearsay statement, but the error was harmless because its content was the same as other properly admitted evidence. The court also erred by admitting evidence of appellants 1977 grand theft conviction, but the error was harmless. Using CALJIC instructions, instead of CALCRIM instructions, was not error. Because there was substantial evidence of premeditation and deliberation, the court did not abuse its discretion by refusing to reduce appellants conviction to second degree murder.

BACKGROUND AND PROCEDURAL HISTORY

Appellant visited the Meredith household in Compton on the night of February 17, 1981. His briefcase disappeared and he accused Thomas Anderson, known as Tom-Tom, of taking it. Appellant shot Anderson in the head, killing him, and then chased Andersons brother, Ronald Bradford, through the house into a bedroom closet, where he also shot him in the head. Bradford survived the shooting, but lost the use of one eye. Appellant was arrested in Cleveland, Ohio in 2005.

A jury convicted appellant of first degree murder, attempted murder, and assault with a deadly weapon. The jury found appellant personally used a gun in the commission of each offense. Appellant was sentenced to prison for 27 years 4 months to life.

DISCUSSION

1. No actual prejudice resulted from a lengthy delay, partly occasioned

by appellants evasion of arrest, departure from the state, and use of

a false name.

The crimes were committed on February 17, 1981. A warrant for appellants arrest was issued, but no charges were filed until after appellant was arrested in Ohio in August 2005. The record does not indicate when the complaint in this case was filed. However, appellants preliminary hearing was conducted on October 25, 2005, and the information was filed November 9, 2005.

Appellant contends the 25-year delay between the crime and his trial violated due process. Respondent argues appellant forfeited this claim by failing to raise it in the trial court. Appellant contends that if the claim was forfeited, his trial attorney rendered ineffective assistance.

[D]ue process is the appropriate test to be applied to a delay occurring after a crime is committed but before a formal complaint is filed or the defendant is arrested.^[1](Scherling v. Superior Court (1978) 22 Cal.3d 493, 505.) To determine whether a delay violated due process, any prejudice suffered by the defendant as a result of the delay is weighed against the justification, if any, for the delay. (Ibid.) The defendant bears the initial burden of demonstrating prejudice resulting from the delay. (People v. Hartman (1985) 170 Cal.App.3d 572, 579.) The prosecution then bears the burden of proving justification. (Ibid.)

The defendant must show actual prejudice. (People v. Hartman, supra, 170 Cal.App.3d at p. 579.) The amount of time between the commission of the crime and the filing of charges does not alone demonstrate prejudice. (Ibid.) Prejudice is not presumed. (Scherling v. Superior Court, supra 22 Cal.3d at p. 504, fn. 8.) [T]he loss of a material witness or other missing evidence or fading memory caused by lapse of time may show prejudice. (People v. Archerd (1970) 3 Cal.3d 615, 640.)

Generally, an alleged constitutional violation is forfeited if not raised in the trial court. Appellant did not seek in the trial court to dismiss the charges on the ground of delay. He therefore arguably forfeited the issue. However, we need not determine the effect of the omission, as appellant has failed to establish a due process violation.

A great deal of appellants argument regarding prejudice is speculative or effectively asks this court to presume prejudice. He argues that memories would necessarily have faded over the course of the 25-year period. While this is undoubtedly true, it is insufficient to demonstrate actual prejudice to appellant. In addition, appellant has not demonstrated actual prejudice with respect to the particular matters he contends were affected by the delay.

Appellant notes that at trial April Meredith testified she remembered nothing about the night in question and cites this lack of memory as prejudice. She testified she had met appellant, who was a friend of the family. Tom-Tom was her sister Renells boyfriend and was sometimes at the Meredith house. Meredith testified she was on psyche medication at the time of trial and was unable to remember what she had for dinner the night before. She also did not remember making a statement to the police at the time of the crimes.

However, Meredith remembered going over her 1981 statement with Detective Larry Brandenburg about three months before trial and remembered many of the things she told Brandenburg and defense investigator Gloria Sanchez. At that time, she informed Brandenburg she told the police the truth in 1981. She also remembered, independent of her 1981 statement, that her baby suffered a head and arm injury on the night in question when someone running past her threw the baby at her. She recalled taking the baby to the hospital. She also remembered that both Tom-Tom and Donald had guns and that Tom-Tom was a gang member. She recalled that the ambulance and police came to the house after the murder. She also remembered seeing appellant put his gun on top of the washing machine, and remembered it was still there when the two men got shot. She recalled she never heard any arguing, and appellant and Tom-Tom had a conversation in a normal tone. She denied seeing appellant lock any doors and windows. She remembered the types of locks on three doors. She recalled she did not see the shooting, but only heard it. She remembered telling the police Ronald jumped up and ran through the house. She was adamant she never told the police that appellant shot anyone or that she saw him shoot anyone. She also remembered Ronald shot at her mothers house a few days after the murder. She recalled she and her mother were in the living room and dropped to the floor during the shooting. She recalled seeing Ronald with a gun in his hand later that day, and five or six other gang members were with him. She recalled her family called the police more than once that day, but the police never came out.

In addition to Merediths own significant recollection at trial of details about the incident, the testimony of Detective Brandenburg and defense investigator Sanchez about their interviews with Meredith cast substantial doubt upon the veracity of Merediths claimed complete memory loss. Brandenburg testified for the defense that he interviewed Meredith three times. During the first interview, she said she was having some difficulty remembering the case. Brandenburg went through the statement she gave responding Compton Police Officer Reginald Wright and a later, longer statement she gave to Detective Al Preston. In each interview, she said that before the shooting occurred, appellant told her that his briefcase was missing. She remembered she had a conversation with appellant about the briefcase, but he was not upset about it. During one interview with Brandenburg and the prosecutor, Meredith said she heard gunshots after the baby was thrown.

Meredith displayed an even more detailed recollection when she spoke with defense investigator Sanchez. Sanchez testified for the prosecution that she interviewed Meredith at the county jail about three months before trial. At that time, Meredith appeared lucid and was able to communicate clearly. She seemed to remember okay and did not mention any medication. Meredith said she did not remember a lot of things, but as Sanchez reviewed Wrights report with her, Meredith volunteered information not in the reports. Meredith told Sanchez a bunch of gang member friends of Tom-Tom were at the house drinking and partying. Appellant was present, talking to Merediths 15-year-old brother Bruce. Meredith remembered what Bruce and appellant said to one another, although this conversation was not included in Wrights police report. Meredith saw appellant place a gun on top of the washing machine. Bruce went to his room, and appellant went into the room where Renell and Tom-Tom were talking. He then returned to where Meredith was and reported his briefcase, containing cash and marijuana, was missing. Meredith and appellant then went to a liquor store. When they returned to the house, they went into the den, which was a converted garage. Ronald was sitting on the couch holding Merediths baby. Appellant sat down and began drinking. Meredith went to the bathroom. While in the bathroom, she heard shots fired and her baby crying. She came out of the bathroom and Ronald passed her, running toward a bedroom. She went into the den and found her baby on the floor, crying. A week later, she saw Ronald shooting at the house.

Accordingly, it appears that the long delay did not prejudice appellant through Merediths loss of memory. Rather, it appears Meredith remembered a great deal about the night in question, but was an unwilling, uncooperative witness. Furthermore, the matters she remembered at trial were beneficial to, and largely consistent with, appellants defense: the victims had guns, appellants gun was on top of the washer at the time of the shooting, she did not see the shooting, and she did not tell the police that appellant shot anyone or give them a description of appellants car. Appellants version of events also indicated Meredith had gone to bed and was not in the room during the shooting. He does not explain how her testimony at an earlier time could have been more beneficial to him if she was not in the room.

Moreover, Merediths contemporaneous statements to the police were available for use at trial. Wright worked for the Compton Police Department when the crime occurred. He testified he had no independent recollection of the incident, but wrote a contemporaneous report indicating he responded to the crime scene soon after it was broadcast. He took a statement from a witness who identified herself as April Cromwell. At trial, Wright read the statement he recorded from Cromwell. Cromwell said Donald began arguing with the victims about his missing briefcase, left the house, and returned with a chrome handgun. Donald shot Anderson, who was kneeling at the time, and then aimed the gun at Bradford. Bradford ran through the house, but Donald chased him. Meredith heard a gunshot and saw Donald leave the house and drive away.

Victim Ronald Bradford did not have any difficulty remembering the events of the night in question. He testified that on the night of February 17, 1981, he and his brother Tom-Tom were at the Meredith house. Tom-Tom was dating Renell Meredith and living at the house. April Meredith, her mother, some children, appellant, David Williams, and Zachary Kennedy were also there. Bradford had consumed one or two quarts of Old English malt liquor, but was not that drunk. Appellant was sitting at the kitchen table, and his gun was atop the washing machine. Bradford saw appellant come into the house with a briefcase. Later, appellant was angry and screaming about something. Bradford and Tom-Tom were in the den. Tom-Tom was cleaning the table and Bradford was holding April Merediths baby. Appellant walked into the den, locked the door, pulled out a gun, and shot Tom-Tom in the head. Bradford threw the baby down and ran through the house. He ran into a bedroom and hid in the closet. Appellant came in and fired two shots, one of which hit Bradford in the head, causing him to lose his sight in one eye.^[2] Appellant did not have the briefcase with him when he shot Tom-Tom.

Bradford denied that he or Tom-Tom took anything from appellant. Bradford was a gang member, but Tom-Tom was not. Neither of them was in possession of a gun that night. A week later, Bradford returned to the house and shot at it because he felt everyone there had something to do with the death of his brother.

Zachary Kennedy testified his memory of the events was still pretty clear. He was present at the house earlier on the evening the crimes occurred. He was a close friend of both victims. On the night of the crimes, a number of people, including Ronald and Tom-Tom, were hanging out at the house, drinking and socializing in the living room in the converted garage. Appellant came in. Kennedy remembered appellant was upset and angry because something was missing. Appellant was pacing. After additional questioning, Kennedy remembered appellant was upset about a briefcase. Tom-Tom was in the kitchen wiping or cleaning something. Kennedy saw Renells fat brother Ray with a briefcase. Kennedy and his friend Mario left, but later returned to the house after hearing about an ambulance and police. He gave the police a statement. In the statement, he said appellant had been asking the victims Tom-Tom and Ronnie who stole his weed and briefcase.

Appellant also argues he was prejudiced because the responding police officers had no independent recollection of the incident. Retired Compton Police Department Officer Terry Chumley testified he responded to the crime scene on the night in question. He had no independent recollection of what he found there, but wrote a report soon after the incident, when it was fresh in his memory. He took witness statements from Zack Kennedy and Vernell Meredith, Merediths mother. Although the officers lack of independent recollection meant they did not testify at trial in a manner inconsistent with their written reports and therefore did not give appellant any impeachment material, it is completely speculative to conclude any such inconsistencies would have arisen. The officers contemporaneous reports were available for use by all parties at trial. Moreover, in all cases a delay of at least a few months, often much longer, occurs between the crime and trial. Given the high volume of calls to which police officers respond, it is inherently speculative to conclude the officers would have had an independent recollection of their observations if this case had proceeded within the usual timeframe.

Similarly, appellant argues he was prejudiced by the fact that the medical examiner who conducted Andersons autopsy was no longer employed by the coroners department. However, as appellant notes, Deputy Medical Examiner Juan Carillo reviewed the autopsy report and testified that his training and expertise enabled him to read autopsy reports and testify about the work performed by other medical examiners. In addition to the report, Carillo had photographs and diagrams to work from. Appellant has not shown any likelihood that the testimony of the original medical examiner would have been more beneficial to him or that he would have been better able to challenge that examiners findings and conclusions. Deputy medical examiners carry a heavy workload, and it is entirely speculative to conclude that, had this case proceeded within the usual timeframe, the examiner who conducted the autopsy would have independently recalled her findings about Anderson and would not, herself, testify on the basis of her report.

Appellant also contends he was prejudiced because other people at the Meredith house on the night in question were not called as witnesses at trial. However, nothing in the record indicates these persons were unavailable to testify at trial. The prosecutions failure to call them did not prevent appellant from doing so. Assuming any of these five people were unavailable to testify, appellant made no showing their testimony would have been beneficial to him or they would have been available to testify if the long delay had not occurred.

Appellant also argues he was prejudiced by the delay because the closet wall in the house had been patched. Detective Brandenburg testified that he and the prosecutor visited the house where the crimes occurred and examined the closet in question. He observed a small area about one and one-half to two inches wide and 18 to 20 inches from the floor that had been patched. Brandenburg did not dig into the closet wall to determine if anything was under the patch. Contemporaneous crime scene photographs showed a mark on the closet wall. Counsel stipulated that Jose Gallegos would be deemed to have testified that he had lived in the house for 20 years and had done nothing to the condition of the inside of the closet.

Appellant has not shown how the delay prejudiced him with respect to the closet patch. According to the stipulated testimony of Gallegos, the patch had been in place for at least 20 years. It may have been in place since shortly after the crime. Appellant has not shown that the delay caused him to lose any potentially exculpatory testimony with respect to the closet patch. In any event, given the prosecutions failure to make a more convincing showing that the mark in the closet was caused by an errant gunshot, the closet evidence was quite weak.

In summary, appellant has not shown that his ability to defend against the charges was harmed by the long delay. Although witnesses memories may have dimmed, the percipient witnesses nonetheless had strong memories of the events. The absence of recollection on the part of the responding officers was immaterial, as they had prepared written reports shortly after attending the crime scene. Similarly, the unavailability of the deputy medical examiner was inconsequential, as her written report, with its diagrams and photographs, completely documented the autopsy and its findings. Moreover, appellant failed to make any effort to show that anything lost by the passage of time would have benefited his defense.

Even if appellant had shown prejudice, it must be weighed against the justification for the delay. Appellant admittedly lived outside of California and used a false name for at least part of the time. Appellant testified he had worked at Lockheed, Northrop, Blue Cross and Toyota in California for 10 to 15 years after the incident, but left the state to work in Arizona, Michigan, Iowa and Ohio for work after the industry in California . . . dried up. He usually returned to California between contracts. Appellant was arrested in Oklahoma in 2001. He showed the Oklahoma police a Michigan drivers license bearing the name John Lee Glass. Appellant testified he used a buddys identification in Michigan to obtain a new license with his own picture and his friends name. He did this because his license was suspended in Michigan for driving under the influence. Appellant also had an Iowa drivers license in his own name, as well as a passport and military identification. In 1982 or 1985, appellant went to the Lennox Sheriffs Substation and asked someone if any warrants were out for him, and was told there were not.

Appellants testimony about working in other states and his possession of Iowa and Michigan drivers licenses demonstrates he was living in other states. Appellant apparently did not have a California drivers license, which strongly suggests he was not living here. His claimed visits to California, whether frequent or infrequent, do not mean he was living here or available for arrest. The prosecutor introduced evidence from Michigan showing appellant did not have a drivers license under his own name and had no record of arrest for driving under the influence. This evidence contradicted appellants claim he had a license in Michigan under his own name, but it was suspended following his arrest for driving under the influence. It cast substantial doubt upon his credibility, as did appellants statement in his recorded interview with Detective Brandenburg that he had never used any false names.

The trial court took judicial notice that a warrant for appellants arrest in this case was issued on March 4, 1981, which cast doubt upon the veracity of appellants claim that a sheriffs deputy told him in 1982 that no warrants were out for him. Appellant implicitly admitted that he was evading arrest after the crime and at the time he purportedly checked on the existence of a warrant, as he said he wasnt going to Compton because [he] wouldnt last ten minutes in the jail cell. The gang is looking for me . . . .

Appellant did not support his claim about working in California for 10 to 15 years following the crimes with any evidence, such as employment records, W-2 forms, etc., which should have been available from some employers, all of whom are major corporations still in business. Appellant has made no showing regarding how his passport or the military identification he had had since 1969 would have assisted the police in locating him. The police apparently knew his mothers address, but he was not at the address when the investigator, Sergeant Preston, repeatedly went to the house looking for him. Therefore, appellants use of that address on certain records did not expose his location to law enforcement. In addition, appellants claim on appeal that he had a car registered at his mothers address is contradicted by appellants recorded statement to Brandenburg, in which he stated that the car he drove was registered to his mother, not to him.

Accordingly, the evidence in the record shows substantial justification for the delay, in that appellant was initially evading arrest, and then left the state and used a false name. Appellants motive and rationale for leaving the state and using a false name are not essential to the conclusion of justification. The mere fact that he did these things made it difficult for law enforcement officers in Los Angeles County to locate and arrest him. Any motion by appellant to dismiss on the ground that the long delay violated his right to due process would have failed because appellant failed to show actual prejudice and the record established justification for the delay. We therefore reject appellants claim, in both its direct form and the alternative ineffective assistance of counsel claim.

2. Admitting hearsay was harmless error.

Appellant contends the trial court admitted inadmissible hearsay statements on two occasions during the testimony of Zachary Kennedy. He also contends the admission of these statements violated due process.

A ruling on the admissibility of evidence is reviewed for abuse of discretion. (Peoplev.Guerra (2006) 37 Cal.4th 1067, 1113.)

Before the testimony in controversy, Zachary Kennedy testified as follows:

Q Do you remember anything about [appellant] from back then?

A Before we left, something was wrong.

Q What do you remember?

A I dont know; seemed like something was wrong.

Q What do you mean?

A Me and my homie was going to leave and I asked Tom-Tom was he all right.

Q But who was your homie?

A Mario Davis.

Q And you and Mario were there?

A Yes.

Q And you were going to leave?

A Yes.

Q And Donald was upset?

A Seemed like, yes.

Q What was he upset about, do you remember?

A I have no idea.

Q Can you tell us what he was upset about?

A I dont even know.

Q Do you remember whether he was yelling?

A No, I cant recall.

Later, the prosecutor asked,

Q Do you remember telling a police officer that night that Donald was there and was asking Tom-Tom and Ronnie who stole his weed and his briefcase?

A Yes, thats what everybody in the house said.

Q Do you remember that from before you left that he was upset about that?

A I didnt actually hear him saying it, but thats what everybody in the house--

Defense counsel objected that the testimony was hearsay and moved to strike it. The court sustained the objection and struck the testimony.

After asking Kennedy whether he knew April Meredith, the prosecutor asked him whether April was one of the people who was saying that? Kennedy said she was. When the prosecutor asked Who else was saying that, defense counsel again raised a hearsay objection, and the court again sustained it.

This exchange was followed by the first portion of testimony challenged on appeal:

Q Im only asking you about April. [] Did April say that Donald was asking Tom-Tom and Ronnie who stole his weed and briefcase?

Defense counsel: Same objection.

The Court: Overruled.

A Yes.

The prosecutor then asked Kennedy about his interview with Detective Brandenburg. She asked Kennedy to tell us what you remember happening and what you told Detective Brandenburg. Kennedy responded, Yes. I told him that everybody said that some guy named Donald shot my homie. Defense counsel objected on the ground of hearsay, and the court sustained the objection. The court advised Kennedy, Dont tell us what somebody said.

The prosecutor resumed her questioning:

Q I want to limit the comment to April only. Did April say back then that Donald had shot--

A Yes, everybody was in the house, remaining in the house when I came back around there, including April.

Q I want to focus--you have to just listen to the question. Im only asking you about what April said. [] From what you remember back in--

A Yes, April is one of the ones that said it.

Defense counsel again objected, and the court conferred privately with counsel. The prosecutor argued the testimony represented a prior inconsistent statement by April, based upon her claimed lack of recollection. The court stated it did not think the prosecutor had laid a foundation by asking April whether she had said anything to Kennedy, and it believed the hearsay objection was well-founded. The court did not, however, strike Kennedys testimony or inform the jury that the objection was sustained.^[3]

The prosecutor then abandoned her efforts to elicit testimony about April and focused Kennedy on his own observations:

Q I want to go back to not what anybody told you, but specifically what you remember and you observed. [] Now, while you were still at the house, do you remember Donald pacing back and forth in the kitchen holding his waistband?

A I remember him pacing back and forth. Like I said, I was so -- some things probably come to you and leave. Thats 25 years ago. I remember he was very mad about something.

Q Do you remember what he was saying, Donald?

A I didnt know him so, no.

Q When you say you remember him being mad, what was he doing?

A Something was missing or something.

Q Something was missing. Did you tell Detective Brandenburg that he was saying things like? They dont know who I am? 

A I guess so. Some things like negative things like something missing; something was wrong. Were in there having a nice time and drinking and I seen the negativity jumping off.

Q You see what?

A Hes mad about something.

Q Did he ever ask Ron and Tom-Tom, who stole his briefcase?

A Yeah, it was a briefcase.

Q Is that what he was upset about?

A Yes, it was a briefcase. I can remember exactly.

Story continues as Part II ..

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^* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of parts 1, 2, 3 and 5 of the Discussion.

^[1] Only a postcharging delay implicates the federal and state constitutional rights to a speedy trial.

^[2] In the statement Wright took from Bradford before he was transported to the hospital, Bradford said appellant fired a single shot at him. Otherwise, the statement was consistent with Bradfords trial testimony.

^[3] Appellant does not challenge the courts omission. Because appellant admitted he was the person who shot the victims, the courts error in this regard was harmless under any standard.