P.v . Murphy

Filed 9/17/08 P.v . Murphy CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge.

Philip M. Brooks, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

On the night of December 28, 2001, appellant Anderson Love Murphy fatally shot James Greathouse III at Anna Grays house in West Fresno. At his first trial, appellant was charged with first degree premeditated murder (Pen. Code,^[1] 187, subd. (a)), with various special allegations. The prosecution witnesses testified that appellant suddenly shot Greathouse without provocation. Appellant extensively testified about his encounters with Greathouse, that Greathouse repeatedly threatened him that day, and he shot Greathouse in self-defense because he believed Greathouse was reaching for a gun to act upon his recent threats. However, no weapon was found on or near the victim. Appellant was found not guilty of murder but guilty of the lesser included offense of voluntary manslaughter.

On appeal, this court reversed appellants conviction and found the trial court should have granted a motion for new trial, based on a newly discovered witness who filed a declaration that she saw a gun being removed from near the victims body shortly after the shooting. We found that the witnesss observation would have provided independent evidence that Greathouse was armed that day, corroborated appellants testimony, and rendered his actual belief of the need for self-defense as objectively reasonable. We further found that given the nature of the jurys verdicts, the newly discovered evidence would have made a different result reasonably probable.

On remand, appellant was charged with voluntary manslaughter ( 192, subd. (a)), with special allegations that he personally used a firearm ( 12022.5), suffered a prior serious felony conviction ( 667, subd. (a)), and suffered a prior strike conviction ( 667, subds. (b)-(i)). Appellant was represented by a different attorney at the second trial. The prosecution introduced the former testimony of the two witnesses from the first trial, that appellant shot Greathouse without provocation. Appellant did not testify at the second trial, the only defense evidence consisted of introducing inconsistent statements made by the prosecution witnesses, there was no evidence of self-defense, and the court declined to instruct on self-defense. Appellant was again convicted of voluntary manslaughter, and the special allegations were found true. The court imposed the upper term of 11 years for voluntary manslaughter, doubled to 22 years pursuant to the second strike, with consecutive terms of 10 years for the firearm enhancement and five years for the prior serious felony enhancement, for an aggregate term of 37 years.

Appellant has filed a timely notice of appeal and contends the court improperly permitted the prosecution to introduce the former testimony of the two eyewitnesses to the shooting because it failed to use due diligence to produce them at the second trial. Appellant also contends the court improperly permitted the prosecution to introduce evidence that shortly after the shooting, when appellant was detained and arrested, he remained silent and did not say anything about shooting the victim in self-defense. Based on the evidence in the appellate record, we will affirm.^[2]

FACTS

On December 28, 2001, 17-year-old Kimberly M. (Kimberly) spent the entire day at Anna Grays house on South Poppy, visiting with Grays teenage daughter and other girlfriends.^[3] Kimberly testified that James Greathouse III, a family friend, was also at Grays house the entire day, and he was still there in the evening.

Kimberly testified appellant arrived later that evening. Kimberly knew appellant as Fat Man. She thought appellant was slightly drunk because he was carrying a beer bottle and his eyes were red. She testified appellant and Greathouse talked in the dining room. She was not aware of any problems between them and did not hear any type of disturbance or yelling. She never saw Greathouse or anyone display a weapon or threaten appellant in any way that night.

Sean Steele, Anna Grays brother, was also at the house. Kimberly thought he arrived before appellant, but she was impeached with her prior inconsistent statement that Steele arrived at the house about five minutes after appellant.

S.D., another teenager, lived next door to Anna Gray and arrived at the house around 11:20 p.m. to visit with Kimberly and Annas daughter. S.D. testified appellant, Greathouse, and Sean Steele were already there. They were talking normally in the dining room with Anna Gray.

Kimberly testified that she briefly walked into the bathroom, and emerged as Greathouse said something to appellant: I wouldnt do nothing to you in this house because I love these kids too much, and I wasnt going to do nothing to you anyway. Appellant did not say anything in response. Appellant and Greathouse were four to five feet apart. Kimberly testified appellant suddenly produced a revolver and fired three to four shots at Greathouse.^[4] Kimberly testified she never saw Greathouse with a gun just before the shooting, and never saw Anna Gray or Sean Steele with a gun just after the shooting.

Kimberly testified everyone in the house started to shout, things became crazy, and appellant ran out the front door. Kimberly realized Greathouse had been shot and immediately called 911. Kimberly thought the shooting occurred about 30 minutes after appellant arrived at the house.

S.D. testified she was in the living room with her friends when she suddenly heard gunshots. She looked into the dining room and saw appellant pointing a gun directly at Greathouse. S.D. testified appellant fired four or five times at Greathouse, and he fell to the ground. Steele was walking through the living room and reached the front door just as the shots were fired. S.D. ducked behind the Christmas tree when the shots were fired, then ran back home. S.D. never saw Greathouse with a weapon, arguing with appellant, or acting threateningly toward him that night.

The prosecution introduced the tape-recording of the 911 call in which several people are heard screaming and yelling in the background. The caller reported that the shooter was known as Fatman, that he arrived at the house in a car with the callers uncle, and the shooter ran away.

At 11:30 p.m., police officers responded to the 911 call at Anna Grays house and found Greathouse lying on the living room floor. Greathouse had suffered three gunshot wounds and died at the scene. The officers found a bullet strike on the corner of the living room ceiling and wall, which detached bits of stucco onto the floor.

Officer Ron Flowers set up a loose perimeter near Grays house at the intersection of California and South Poppy. It was raining lightly and a little hazy but the street lights illuminated the area. Officer Flowers noticed appellant walking on South Poppy. Appellant was soaked from the rain, there was mud all over his clothes and shoes, and his hands were in his pockets. Appellant crossed the street and seemed surprised to see the police car.

Officer Flowers testified the officers contacted appellant with their guns drawn for purposes of officer safety because of the nature of the shooting and since appellants hands were in his pockets. Appellant was calm and compliant and was not excited or breathing hard. He did not complain about the officers approach or that their guns were drawn. Flowers partner advised appellant that they were in the area because someone had been shot nearby. The officers asked if he would sit in the back of the patrol car and appellant said no problem. The officers searched him for weapons and placed him in the back of the patrol car. Appellant was not placed in handcuffs.

Officer Flowers testified they asked appellant to get into the patrol car because they expected to transport a witness to look at him for identification purposes. Appellant sat there for an hour and a half while they waited for a witness to arrive.

Q When your partner said that at any point did you ever hear [appellant] say well, yeah, I know. I was involved. I shot him. Something like that?

[Flowers] No.

Q At any point did you ever hear [appellant] over here try to say anything to you about not only did I just shoot that guy, but I had to. He was trying to kill me so I had to kill him?

A No, not at all. [] []

Q At any point during your contact with [appellant] did he ever acknowledge in your presence to either you or your partner that he had any participation in the shooting at S. Poppy?

A No, he did not.^[5]

Flowers testified appellant did not say anything to the officers during the entire time he sat in the back of the patrol car and waited. Flowers did not advise appellant of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) because he was not trying to obtain a statement from him.

Q [W]ell, did you ever ask him hey, why did you shoot that guy?

A No.

Flowers testified that, about an hour and a half later, a witness was brought to their location and positively identified appellant as the shooter. After the identification was made, the officers placed appellant in handcuffs and advised him that he was being arrested for the shooting.

Q When he was told that you are now under arrest, at that point did he ever say anything to the effect of this is a mistake. I was defending myself?

A Not at all. He sat quietly in our patrol car.

Q Did he say anything at all about the shooting at that time?

A No.

Flowers testified that, after appellant was arrested, none of the officers asked if he shot the victim because they knew that a detective was going to interview him later.

An officer attempted to retrace appellants path from Anna Grays house to the location where he was detained. The officer checked residential yards and garbage Dumpsters in the area and found a handgun in a trash can in front of a residence on South Poppy, about a half block north of the location where appellant was detained. Another officer found a jacket in an alley a block and a half from the shooting scene, hanging on a fencepost as if it had been snagged on it.

Officer Brian Phelps interviewed both Kimberly and S.D. around midnight. Both witnesses were emotional and frantic, but Officer Phelps was able to obtain statements from them.

Greathouse suffered three gunshot wounds. The fatal wound entered the front of his chest and passed through his heart. Based on the nature of the wound, the fatal shot could have been fired from anywhere between two and more than three feet away from the victim. Greathouse suffered two nonfatal woundsone to his chest and one to the back of his head.

Defense Evidence

Appellant did not testify. Defense counsel recalled Officer Phelps to testify about his interviews with the witnesses on the night of the homicide. Kimberly said she was in the bathroom and heard the victim arguing with a person she only knew as Fat Man, they were arguing in the living room, she heard yelling, and she was still in the bathroom when she heard the shots fired. She did not know what they were arguing about. Kimberly said she walked out of the bathroom and saw Fat Man running out toward the back of the house. Kimberly said she never saw a gun.

Officer Phelps testified he also interviewed S.D. that night, and she said that Greathouse and Fat Man were arguing and yelling but she did not know what the argument was about. S.D. said that during the course of the argument, Fat Man pulled a gun and shot Greathouse several times. Officer Phelps testified that neither S.D. nor Kimberly said Greathouse did anything to provoke the shooting.

The defense introduced the testimony of Detective Danny Martin about his interview with Kimberly.^[6] Kimberly said appellant arrived at Grays house about 30 minutes before the shooting, and she knew him as Fat Man. She noticed he had a bottle of beer and seemed slightly under the influence, but there were no problems and everything seemed okay. About five minutes later, Sean Steele arrived. Kimberly went into the bathroom and heard loud conversation in the house, but she could not tell what it was about. Kimberly said that earlier in the day, Greathouse was on the telephone and talking about someone who owed him some money. Kimberly said as she walked out of the bathroom, she heard Fat Man say something like I didnt do, I didnt do. Fat Man pulled a dark-colored revolver, pointed it, and fired four or five shots. She could not see whom he was firing at because her view was blocked. She went into the living room and found Greathouse on the floor. She did not see which direction Fat Man went, but heard someone say he went out the back door.

DISCUSSION

I. Former Testimony and Due Diligence

As set forth ante, the prosecution was unable to locate the two eyewitnesses to the homicide, Kimberly and S.D., and the court permitted the introduction of their former testimony from the first trial. Appellant contends the prosecution failed to use due diligence to locate the witnesses given the delay between the reversal of appellants conviction and the second trial, and the court improperly permitted the introduction of their former testimony and violated appellants right to confront and cross-examine witnesses. We will find no error occurred.

A. Background

At appellants first trial, in April 2003, Kimberly and S.D. appeared for the prosecution and testified they never saw Greathouse with a gun, and that appellant suddenly produced a gun and shot Greathouse without provocation. In July 2005, this court reversed appellants conviction and remanded the matter for a new trial. In September 2005, the superior court placed the matter on calendar and the trial was set for November 2005. There were several continuances and appellants retained counsel was relieved because of lack of funds. Conflict counsel was appointed and the trial date vacated.

In September 2006, the case was set for trial in November 2006, but the date was again vacated and reset for January 16, 2007. On January 11, 2007, the prosecution objected to appellants motion for another continuance, the court denied the continuance motion, and the trial date was again confirmed for January 16, 2007.

On January 22, 2007, in the course of a defense motion for a continuance of the second trial, defense counsel stated his investigator had been looking for percipient witnesses since December 2006 and used extraordinary efforts to find them once the usual efforts were not fruitful. The prosecutor replied that Kimberly and S.D. testified at the first trial and their former testimony could be introduced. Defense counsel complained he needed more time to find Kimberly and S.D. The prosecutor explained that his investigator had been looking for them for five months, he contacted their families, and both families indicated the women were avoiding service of process.

On January 25, 2007, the first day of appellants second trial, the court conducted a hearing as to the prosecutions motion to introduce the former testimony of Kimberly and S.D. at the second trial, and to determine whether the prosecution used due diligence to locate them. Judith Tucker, an investigator for the district attorneys office, was the only witness and testified about her attempts to locate the witnesses.

Tucker testified she conducted a variety of skip trace activities, running DMV car registrations, Clets, looking through [the district attorneys office] Star system, looking at jail records. A skip trace involves running a variety of information through different computer programs and looking for drivers license and car registration information for addresses. The Star system consists of a history of names which might have been listed in police reports. She also looked through birth certificates, jail records, and files from the Department of Motor Vehicles (DMV). CLETS is a generic system to run names for drivers licenses and license plates.

Tucker testified that on December 27, 2006, she ran Kimberlys DMV license and obtained an address for her. On December 28, 2006, Tucker went to that residence because she learned Kimberlys relatives lived there and she was in contact with them. Tucker met Kimberlys grandmother and other relatives and advised them that Kimberly was not in any trouble, Tucker wanted to find Kimberly for a case, and she needed Kimberlys assistance. The relatives replied that they knew about the matter but they did not feel comfortable giving Tucker any contact information for Kimberly. They promised to forward Tuckers business card but Kimberly never contacted Tucker. Tucker also left telephone messages at that residence but Kimberly never returned the calls.

Tucker testified she used skip trace methods and obtained another address for Kimberly. On January 5, 2007, Tucker went to that address and contacted Kimberlys mother, who said Kimberly did not live there. The mother had received Tuckers card from the grandmother, she assured Tucker that she would give the card to Kimberly, but that Kimberly did not want to be involved in the case. Tucker left another business card but Kimberly never contacted her.

Tucker testified she returned to the residence on January 11, 2007, and met with a man who said he was Kimberlys stepfather. He said Kimberly lived there but she was not present at that time. Tucker explained she was looking for Kimberly for an upcoming trial and left her business card. The stepfather said Kimberly did not want to get involved. Tucker returned that same evening and spoke to Kimberlys mother, who said Kimberly still lived there but she did not know where Kimberly worked, who her friends were, or how to contact her, and the only way to reach Kimberly was to let other relatives know that they had a message for her.

Tucker testified that Kimberlys family was afraid because their house had been shot at, and they thought the shooting was related to Tuckers efforts to find Kimberly. Kimberlys mother provided the name of Kimberlys boyfriend, who was in jail. Tucker checked the jail visitation list and Kimberly was not on it.

Tucker testified she returned to the residence on the morning of January 24, 2007. The family vehicle was parked on the front lawn. Tucker banged on the front door but no one answered. Tucker tried to call the residence but the telephone had been disconnected. Tucker banged on the door for a while and again left her business card.

Tucker testified to her belief that Kimberly was actively trying to avoid being served. Kimberlys mother and stepfather said she was fearful and did not want to be involved in the case. They refused to tell Tucker where Kimberly worked or stayed.

Tucker also testified about her efforts to locate S.D. Tucker ran a variety of skip trace procedures, I ran her through our Star program, Clets, vehicle registrations, DMV. On December 27, 2006, Tucker obtained an address for S.D. through the Star system. On December 28, 2006, Tucker went to that address and saw a vehicle parked in the driveway. No one answered the door and Tucker left her business card. On the morning of January 5, 2007, Tucker returned to the residence and contacted S.D.s uncle, who said S.D. did not live there and had moved out of town. Tucker gave her business card to S.D.s uncle and asked him to give it to her. Tucker explained to him why she was looking for S.D.

Tucker testified that on January 5, 2007, she went to another residence and contacted a man who said he was S.D.s father. He said that S.D. lived there but was not there at the time. He promised to pass along Tuckers business card and said he would make sure S.D. called Tucker. S.D.s father was concerned about her possible involvement in the case, but he provided S.D.s cell phone number. Tucker called the cell phone and left a message but S.D. never called back.

Tucker testified that on January 9, 2007, she went back to one of the addresses and S.D.s mother said that S.D. lived there and also spent time at her grandmothers house. The mother said that S.D. did not want to be involved and the case had taken a toll on her. Tucker left a business card and asked the mother to have S.D. call her.

Tucker testified that on January 11, 2007, she returned to the parents house and was told that S.D. was not there, she did not want to be involved, and that she might be at her grandmothers house. Tucker told S.D.s father that the cell phone number was not a good contact. The father asked the mother, but the mother was too ill to provide any other contact information. Tucker testified she immediately drove to the grandmothers house. A vehicle was in the driveway. Tucker banged on the door numerous times but no one responded, and she again left a business card. On January 24, 2007, Tucker went back to the residence and no one was home. Tucker left her card. Tucker testified to her belief that S.D. was actively avoiding service.

The trial court relied upon Tuckers testimony and found that the prosecution had used due and reasonable diligence to locate Kimberly and S.D., that they were unavailable as witnesses, and that the prosecution could introduce their former testimony from the first trial.

During the course of the trial, the prosecution introduced the testimony of Kimberly and S.D. through the transcripts of their testimony from the first trial. After appellant was convicted in the instant case, he moved for a new trial and again challenged the courts ruling as to the introduction of their former testimony. Defense counsel argued their personal appearances would have made a huge difference and complained the case was pushed forward without time to locate them. The court denied the new trial motion.

B. Analysis

Appellant contends the prosecution failed to use due diligence to locate Kimberly and S.D., and the introduction of their former testimony violated his constitutional right to confront and cross-examine witnesses.

A criminal defendant has the right under both the federal and state Constitutions to confront the witnesses against him. [Citations.] This right, however, is not absolute. The high court recently reaffirmed the long-standing exception that [t]estimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine. [Citations.] Evidence Code section 1291 codifies this traditional exception. [Citation.] When the requirements of Evidence Code section 1291 are met, admitting former testimony in evidence does not violate a defendants right of confrontation under the federal Constitution. [Citations.] [Citation.] (People v. Wilson (2005) 36 Cal.4th 309, 340 (Wilson).)

Evidence Code section 1291, subdivision (a) provides that former testimony is not rendered inadmissible as hearsay if the declarant is unavailable as a witness and [t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing. The former testimony of Kimberly and S.D. was offered against appellant, who was a party to the first trial, and appellants motive and opportunity to cross-examine the two witnesses in the first trial was identical to that in the second trial.

The disputed issue in this case is whether the two witnesses were unavailable.

Under federal constitutional law, [former] testimony is admissible if the prosecution shows it made a good-faith effort to obtain the presence of the witness at trial. [Citations.] California allows introduction of the witnesss prior recorded testimony if the prosecution has used reasonable diligence (often referred to as due diligence) in its unsuccessful efforts to locate the missing witness. [Citation.] (People v. Cromer (2001) 24 Cal.4th 889, 892 (Cromer); see People v. Smith (2003) 30 Cal.4th 581, 609 (Smith).)

Evidence Code section 240, subdivision (a)(5) thus states that a declarant is unavailable as a witness if the declarant is [a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the courts process.

What constitutes due diligence to secure the presence of a witness depends upon the facts of the individual case. [Citation.] The term is incapable of a mechanical definition. It has been said that the word diligence connotes persevering application, untiring efforts in good earnest, efforts of a substantial character. [Citation.] The totality of efforts of the proponent to achieve presence of the witness must be considered by the court. Prior decisions have taken into consideration not only the character of the proponents affirmative efforts but such matters as whether he reasonably believed prior to trial that the witness would appear willingly and therefore did not subpoena him when he was available [citation], whether the search was timely begun, and whether the witness would have been produced if reasonable diligence had been exercised [citation]. [Citation.] (People v. Sanders (1995) 11 Cal.4th 475, 523.)

The California Supreme Court restated the [r]elevant considerations for due diligence as including whether the search was timely begun [citation], the importance of the witnesss testimony [citation], and whether leads were competently explored [citation]. (Cromer, supra, 24 Cal.4th at p. 904.)

The prosecution must take reasonable steps to locate an absent witness, but need not do a futile act. [Citation.] (Smith, supra, 30 Cal.4th at p. 611.) The fact that additional efforts might have been made or other lines of inquiry pursued does not affect whether the prosecution used reasonable diligence. (People v. Cummings (1993) 4 Cal.4th 1233, 1298.) It is enough that the People used reasonable efforts to locate the witness. (Ibid.) Although [the defendant] suggests the prosecution might have pursued other lines of inquiry (such as jobs, schools or voter registration records), the prosecution need not exhaust every potential avenue of investigation to satisfy its obligation to use due diligence to secure the witness. [Citation.] (People v. Gutierrez (1991) 232 Cal.App.3d 1624, 1641, fn. omitted, disapproved on other grounds in Cromer, supra, 24 Cal.4th at p. 901, fn. 3.)

The proponent of the evidence has the burden of showing by competent evidence that the witness is unavailable. (Smith, supra, 30 Cal.4th at p. 609; People v. Cummings, supra, 4 Cal.4th at p. 1296.) On appeal, we conduct an independent de novo review of whether the prosecution used due diligence. (Cromer, supra, 24 Cal.4th at p. 894.)

An appellate court will not reverse a trial courts determination [under Evidence Code section 240] simply because the defendant can conceive of some further step or avenue left unexplored by the prosecution. Where the record reveals that sustained and substantial good faith efforts were undertaken, the defendants ability to suggest additional steps (usually, as here, with the benefit of hindsight) does not automatically render the prosecutions efforts unreasonable. [Citations.] The law requires only reasonable efforts, not prescient perfection. [Citations.] (People v. Diaz (2002) 95 Cal.App.4th 695, 706.)

Based upon an independent review of the undisputed facts, we conclude the prosecution used due diligence to locate Kimberly and S.D., and their former testimony was properly admitted at trial. Their testimony was clearly important to the prosecutions case as they provided the only eyewitness evidence introduced at trial as to what happened before, during, and after the shooting. While there was a substantial passage of time between the reversal of appellants conviction and the retrial, there is no evidence that the prosecutor was aware the two women were fearful of appearing at the second trial or that they intended to evade service of process. The prosecutors investigator began her investigation one month before the retrial, took substantial steps to locate them, and repeatedly contacted their families to find them. Their families initially seemed to cooperate but ultimately admitted that both women were frightened and did not want to be involved in the retrial.

Appellant suggests the prosecution should have taken steps to keep track of Kimberly and S.D. in the interim between the reversal of appellants first conviction and the subsequent retrial. Such an argument is not convincing given the facts and circumstances of this case. [T]he prosecution is not required, absent knowledge of a substantial risk that this important witness would flee, to take adequate preventative measures to stop the witness from disappearing. [Citations.] (Wilson, supra, 36 Cal.4th at p. 342.)

A court cannot properly impose upon the People an obligation to keep periodic tabs on every material witness in a criminal case, for the administrative burdens of doing so would be prohibitive. Moreover, it is unclear what effective and reasonable controls the People could impose upon a witness who plans to leave the state, or simply disappear, long before a trial date is set. [Citation.] (People v. Diaz, supra, 95 Cal.App.4th at p. 706.)

For example, in People v. McElroy (1989) 208 Cal.App.3d 1415, disapproved on other grounds in Cromer, supra, 24 Cal.4th at page 901, footnote 3, the court found the prosecution used due diligence where a subpoena for a key witness was issued 24 days before trial. (McElroy, supra, at p. 1427.)

After customary efforts to serve the witnesses were undertaken, without success, investigators undertook significant efforts to locate the missing witnesses. The investigators visited the witnesses last known addresses; contacted roommates, parents and family members seeking current addresses, and left messages in case the witness contacted these individuals; contacted former employers; reviewed county and state-wide police records; checked motor vehicle department records; checked traffic court records; and checked post office records. (Ibid.)

The investigator in the instant case utilized similar procedures for nearly one month and was unable to find the two witnesses, who apparently took extreme steps to avoid service of process.

In Wilson, the defendants conviction was reversed in November 1992. The parties believed the retrial would not begin until September 1993. There were several continuances and the retrial finally began in February 1994. In November 1993, a detective made efforts over two days to locate a witness, and visited his last known address, attempted to locate his known associates, and checked police, county, and state records with 15 different names used by the witness. The detective was unsuccessful and could not find the witness. (Wilson, supra, 36 Cal.4th at p. 341.) The detective checked the records again on the day before the March 1994 due diligence hearing, and again visited the witnesss last known address and one of his known associates. (Id. at p. 342.) Wilson rejected the defendants argument that the prosecution should have contacted and monitored the witness after the reversal of his conviction, given the lack of evidence that the prosecution knew of a substantial risk the witness would disappear. (Ibid.)

There is no evidence here that the prosecution knew or should have known that Kimberly and/or S.D. were fearful about testifying at the second trial or that they intended to avoid service of process. (Cf. People v. Avila (2005) 131 Cal.App.4th 163, 169-170 [law enforcement officers failed to use due diligence when they waited until first day of trial to find witness believed likely to disappear]; see also People v. Saucedo (1995) 33 Cal.App.4th 1230, 1236, disapproved on other grounds in Cromer, supra, 24 Cal.4th at p. 901, fn. 3 [due diligence found where police searched a full week for witness]; People v. Hovey (1988) 44 Cal.3d 543, 562-564 [due diligence found where investigators began search for witness one month before trial testimony was needed].) While appellant may be correct in asserting that the prosecutor knew or should have known that Kimberly and S.D. had not been happy about having to testify at the first trial, the fact of the matter is that, happy or not, both did testify at that trial.

As in Wilson, we similarly conclude the prosecution demonstrated due diligence in trying to secure the presence of Kimberly and S.D. at trial. The trial court did not commit error by finding that Kimberly and S.D. were unavailable as witnesses and admitting their former testimony from the first trial.

II. Evidence of Appellants Silence

As set forth ante, the prosecution introduced evidence that appellant remained silent when he was detained and at the time he was arrested. Appellant renews the argument raised below, that the introduction of such evidence violated his Fifth Amendment right to remain silent. We will conclude that any error was harmless.

A. Background

The question whether the prosecution would be allowed to use evidence of appellants silence was discussed during in limine motions. It appears that, at that point, both the parties and the trial court acted on the assumption that appellant would testify and would claim self-defense. The court found that, based upon the facts and circumstances, appellants failure to claim self-defense when he was detained was admissible. The court was willing to reconsider the ruling if appellants silence occurred after he was arrested or he was advised of the Miranda warnings.

In his opening statement, the prosecutor noted that when appellant was detained and sat waiting in the police car, he never said he was involved in a shooting or had been forced to defend himself. In his opening statement, defense counsel noted that appellant was detained at gunpoint and ordered to sit down, he remained quiet, and the evidence would show, I guess you dont have a right to silence. It gets thrown in your face. Defense counsel also stated that appellant would testify and explain what happened.

As set forth ante, the prosecutor called Officer Flowers to testify in its case-in-chief that appellant sat quietly in the patrol car and did not say anything about shooting in self-defense, either while he was detained or when he was placed under arrest. Defense counsel objected to the prosecutors questions to Officer Flowers as violating appellants right to remain silent. The court overruled the objection.

Appellant did not testify.

Both parties addressed appellants silence in their closing arguments. The prosecutor noted that, when Officer Flowers saw him on the night of the shooting, appellant was walking calmly, he was not frantic, he did not look afraid, and he did not look like somebody who is scared to death because somebody tried to hurt him[.] He wasnt even breathing hard . Common sense tells you that demeanor also tells you about what [appellants] mind set was like that night. The prosecutor continued:

But you know something else, and common sense is involved in answering this question: When [appellant] was contacted by Officer Flowers the two to three blocks up the street, Officer Flowers told you that he was going to detain [appellant] because its possible he could have been involved in the shooting. And he told you [appellant] was told that, told why he was being stopped by officers. [Defense counsel] even made a point of saying well, you even actually had your gun out at that point. What was [appellants] reaction? He is just minutes from having shot someone. Minutes. And now, a uniformed police officer has approached him and contacted him, stopped him just up the street. What did he do? [Appellant] did nothing, said nothing. There was not even so much as a you know what, I have some information about this. Im the victim here. I had to do X, Y or Z. No. He just sat there and didnt say a word. Didnt tell the officer well, yeah, actually I was involved in that, but I have a reason for what happened.

Heres the question you should ask yourself and apply your common sense to: If you had just shot someone three times and if you thought that you did that legally, that there was a reasonable [explanation] for why you did what you did, that it was something other than an unlawful killing, whether you were immediately contacted by law enforcement, is it reasonable to expect that you might say something about that? Common sense tells you the answer to that question is yes. (Italics added.)

Defense counsel used his argument to attack the former testimony of Kimberly and S.D. and point out inconsistencies in their statements. Counsel argued that appellant likely shot Greathouse in self-defense because of an argument between them. Defense counsel also addressed appellants conduct immediately after the shooting:

Well, what do you do after you lawfully shoot someone in self-defense? What do you do? Is there a handbook I could read about how, exactly, Im supposed to behave about that? I guess he could have gone to Officer Flowers when he first saw him extend the gun towards him when he first saw him about to give him his lawful excuses been shot to ribbons. And another thing which I cant believe is hes arrested at gunpoint, free hands up, gets pulled over, hes just being searched, being stuck into the cop car, not asked any questions about hey, did you shoot somebody with this or that yet the prosecutor gets to jump up and say you werent talking about your defenses and yelling and screaming about that. Youre right to be silent. Everything you say can and will be used against you, right?

B. Analysis

Appellant contends the court improperly permitted the prosecution to introduce evidence of his pre- and postarrest silence as substantive evidence of guilt in its case-in-chief. As background to our analysis, we note that in Griffin v. California (1965) 380 U.S. 609 the court held that a defendants choice not to testify at trial and to remain silent cannot be used against him by either the prosecutor in closing argument, or by the court in jury instructions. (Id. at p. 614 & fn. 5.)

In Doyle v. Ohio (1976) 426 U.S. 610 (Doyle), the court excluded a defendants post-Miranda silence:

Silence in the wake of these warnings may be nothing more than the arrestees exercise of these Miranda rights. Miranda warnings contain no express assurance that silence will carry no penalty, [however,] such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested persons silence to be used to impeach an explanation subsequently offered at trial. (Doyle, supra, 426 U.S. at pp. 617-618, fns. omitted.)

In Jenkins v. Anderson (1980) 447 U.S. 231 (Jenkins), the court held that defendants trial testimony could be impeached with his pre-Miranda, prearrest silence:

Attempted impeachment on cross-examination of a defendant may enhance the reliability of the criminal process. A defendant may decide not to take the witness stand because of the risk of cross-examination. But this is a choice of litigation tactics. [] Thus, impeachment follows the defendants own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial. We conclude that the Fifth Amendment is not violated by the use of prearrest silence to impeach a criminal defendants credibility. (Jenkins, supra, 447 U.S. at p. 238, italics added.)

However, Jenkins declined to address the admissibility of a defendants prearrest, pre-Miranda silence in situations other than impeachment of a testifying defendant. (Jenkins, supra, 447 U.S. at p. 236, fn. 2.) In his concurrence in Jenkins, Justice Stevens wrote that he would have rejected the defendants Fifth Amendment claim simply because the privilege against compulsory self-incrimination is irrelevant to a citizens decision to remain silent when he is under no official compulsion to speak. (See Jenkins, supra, at p. 241 (conc. opn. of Stevens, J.).)

In Fletcher v. Weir (1982) 455 U.S. 603 (Fletcher), the court addressed the admissibility of a defendants postarrest, pre-Miranda silence to impeach his trial testimony. The court rejected the extension of Doyle to such a situation, and clarified that Doyle applied only when Miranda warnings have first been given. (Fletcher, supra, at pp. 605-607.) The court held Doyle is not violated when a defendant testifies and is cross-examined about his postarrest silence, where no Miranda warnings had been given following the arrest. (Fletcher, at p. 607.)

In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand. A State is entitled, in such situations, to leave to the judge and jury under its own rules of evidence the resolution of the extent to which postarrest silence may be deemed to impeach a criminal defendants own testimony. (Fletcher, supra, 455 U.S. at p. 607, italics added.)

To summarize: Once an accused has been given the Miranda warnings, the accuseds post-Miranda silence may not be used to impeach an explanation subsequently offered at trial. (Doyle, supra, 426 U.S. at pp. 619-620; People v. Medina (1990) 51 Cal.3d 870, 890; People v. OSullivan (1990) 217 Cal.App.3d 237, 244.) In contrast, the defendants pre-Miranda, pre- and postarrest silence is admissible to impeach his or her trial testimony. (Fletcher, supra, 455 U.S. at p. 607; Jenkins, supra, 447 U.S. at p. 238; People v. Earp (1999) 20 Cal.4th 826, 856-857; People v. Delgado (1992) 10 Cal.App.4th 1837, 1842.)

Had appellant testified at trial and denied the charges, he could have been impeached with evidence of both his pre- and postarrest silence because the silence occurred before he was given the Miranda warnings. (Fletcher, supra, 455 U.S. at p. 607; People v. Earp, supra, 20 Cal.4th at p. 856; People v. Delgado, supra, 10 Cal.App.4th at pp. 1842-1843.)

The cited cases, however, are not controlling here because appellant did not testify. The prosecution used appellants silence as substantive evidence of guilt in its case-in-chief and in its closing argument. Neither the United States nor California Supreme Court has decided the question whether a defendants silence, prior to being advised of the Miranda warnings, can be used as substantive evidence of guilt where the defendant does not testify.

The federal circuits have reached varying conclusions. (Compare U.S. v. Oplinger (9th Cir. 1998) 150 F.3d 1061, 1067, fn. 5 (Oplinger) [admission of defendants prearrest, pre-Miranda silence as substantive evidence of guilt did not violate defendants privilege against self-incrimination under Fifth Amendment or right to due process under Fourteenth Amendment because [t]here is no governmental inducement to remain silent and no promise that an individuals silence will not be used against him]; U.S. v. Zanabria (5th Cir. 1996) 74 F.3d 590, 593 [Fifth Amendment does not preclude the proper evidentiary use and prosecutorial comment about every communication or lack thereof by the defendant which may give rise to an incriminating inference]; U.S. v. Rivera (11th Cir. 1991) 944 F.2d 1563, 1568 [The government may comment on a defendants silence if it occurred prior to the time that he is arrested and given his Miranda warnings] with U.S. v. Burson (10th Cir. 1991) 952 F.2d 1196, 1200-1201; Coppola v. Powell (1st Cir. 1989) 878 F.2d 1562, 1565-1568; U.S. ex rel. Savory v. Lane (7th Cir. 1987) 832 F.2d 1011, 1018.)

In Combs v. Coyle (6th Cir. 2000) 205 F.3d 269, the Sixth Circuit reviewed the conflicting opinions of the other circuits, and held:

We agree with the reasoning expressed in the opinions of the Seventh, First, and Tenth Circuits, and today we join those circuits in holding that the use of a defendants prearrest silence as substantive evidence of guilt violates the Fifth Amendments privilege against self-incrimination. Like those circuits, we believe that application of the privilege is not limited to persons in custody or charged with a crime; it may also be asserted by a suspect who is questioned during the investigation of a crime. [Citation.] The Supreme Court has given the privilege against self-incrimination a broad scope, explaining that [i]t can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. [Citations.] In a prearrest setting as well as in a post-arrest setting, it is clear that a potential defendants comments could provide damaging evidence that might be used in a criminal prosecution; the privilege should thus apply. (Combs v. Coyle, supra, 205 F.3d at p. 283.)

In Oplinger, the Ninth Circuit commented on the conflicting opinions as follows:

In our view, the position those courts have endorsed is simply contrary to the unambiguous text of the Fifth Amendment, which plainly states that [n]o person shall be compelled in any criminal case to be a witness against himself. [Citation.] The Supreme Court has never on any ground applied the Fifth Amendment to prevent the otherwise proper acquisition or use of evidence which did not involve compelled testimonial self-incrimination of some sort. [Citation.] (Oplinger, supra, 150 F.3d at p. 1067.)

Oplinger acknowledged that contrary federal cases involved questioning by government officials, whereas there was no government involvement in that case. (Oplinger, supra, 150 F.3d at p. 1067, fn. 6.) However, the Ninth Circuit has not given any weight to the distinction between governmental and nongovernmental interrogation in subsequent cases which have followed Oplinger and has continued to hold that the prosecution may introduce a defendants prearrest, pre-Miranda silence as substantive evidence of guilt. (See U.S. v. Beckman (9th Cir. 2002) 298 F.3d 788, 795.)

There is also disagreement among the federal circuits as to the admissibility of a defendants postarrest, pre-Miranda silence as substantive evidence of guilt. The Ninth Circuit has held that the admission of a defendants post-arrest, pre-Miranda silence, and government commentary on this silence in closing argument, plainly infringe[s] upon a defendants privilege against self-incrimination. (U.S. v. Whitehead (9th Cir. 2000) 200 F.3d 634, 639; U.S. v. Newman (9th Cir. 1991) 943 F.2d 1155, 1158.)

In U.S. v. Velarde-Gomez (9th Cir. 2001) 269 F.3d 1023 (Velarde-Gomez), the defendant was stopped by border agents while attempting to cross the border with 63 pounds of marijuana hidden in his car. He was taken into custody but was not given Miranda warnings while agents searched his car. (Velarde-Gomez, at p. 1026.) At trial, one of the agents testified that the defendant exhibited no response when told about the marijuana; the defendant did not look surprised or upset but just sat there and said nothing. (Id. at p. 1027.) In closing argument, the prosecutor commented on the defendants postarrest, pre-Miranda silence, arguing that he was the perfect guy to smuggle drugs across the border because he showed no emotion when told that there was contraband in the car. (Velarde-Gomez, at p. 1028.)

In Velarde-Gomez, the Ninth Circuit held the testimony and argument regarding the defendants postarrest, pre-Miranda silence was error. (Velarde-Gomez, supra, 269 F.3d. at pp. 1028, 1033.) The court concluded that evidence of the defendants calm and relaxed demeanor while he was detained, and when he was later informed that the search had turned up marijuana in his car, was improperly admitted because such evidence was functionally equivalent to evidence of his silence. The court held that the admission of this evidence violated the defendants Fifth Amendment privilege against self-incrimination. (Velarde-Gomez, supra, at pp. 1030-1032.)

Whether the government argues that a defendant remained silent or describes the defendants state of silence, the practical effect is the samethe defendants right to remain silent is used against him at trial. To hold otherwise would circumvent the constitutional protection against self-incrimination: introducing evidence at trial that the defendant remained silent in the face of incriminating evidence would violate the Fifth Amendment, but describing what a defendant looked like in remaining silent would not. This distinction would undermine our well-established rule that the government may not use evidence of a defendants post-arrest, post-Miranda silence at trial, for impeachment or during its case-in-chief, because such evidence penalizes the exercise of a constitutional right. [Citations.] (Id. at p. 1032.)

In contrast, other circuits have held that a defendants postarrest, pre-Miranda silence is admissible in the prosecutions case-in-chief as substantive evidence of guilt, and does not violate a defendants Fifth Amendment rights. (See U.S. v. Rivera, supra, 944 F.2d at p. 1568 & fn. 12; U.S. v. Frazier (8th Cir. 2005) 408 F.3d 1102, 1109-1111.)

Despite the obvious similarities between the situation in this case and that in Velarde-Gomez, we need not and thus will not decide whether we agree with the reasoning there. Instead, we will assume the trial court improperly allowed Officer Flowers to testify about appellants silence while they waited for the eyewitness identification at the patrol car and when appellant was advised that he was under arrest. We must thus determine whether the trial courts erroneous decision to admit evidence of appellants silence in the prosecutions case-in-chief and to permit the prosecutor to comment upon such silence in closing argument was harmless beyond a reasonable doubt. (U.S. v. Kallin (9th Cir. 1995) 50 F.3d 689, 693; People v. Earp, supra, 20 Cal.4th at p. 858.)

Given the unique facts and circumstances of this case, the error (if it occurred) was necessarily harmless. Appellant was initially charged with first degree murder. The jury in the first trial found him not guilty of that charge but guilty of the lesser included offense of voluntary manslaughter. This court reversed that conviction for legal error, and appellant was charged only with voluntary manslaughter on retrial. At the second trial, the prosecution evidence consisted of the former testimony of two eyewitnessesKimberly and S.D.who testified that appellant pulled a gun and fatally shot Greathouse without any provocation and for no apparent reason. There was some evidence that appellant might have believed there was a dispute between them, based upon Kimberlys testimony that Greathouse told appellant: I wouldnt do nothing to you in this house because I love these kids too much, and I wasnt going to do nothing to you anyway. Kimberly told an officer that when Greathouse made this statement, appellant said something like I didnt do, I didnt do. In contrast to the first trial, appellant did not testify, he did not introduce any evidence that he believed Greathouse was going to kill him, and there was no evidence to support self-defense instructions in this case. In fact, no self-defense instructions were given. The defense only introduced the prior inconsistent statements of the eyewitnesses as to whether they actually saw appellant fire the shots.

In these circumstances, the introduction of evidence of appellants silence during his prearrest detention at the patrol car and when he was advised of his arrest was harmless beyond a reasonable doubt. Officer Flowers testimony was necessarily insignificant in the face of overwhelming prosecution evidence that appellant shot Greathouse without excuse or justification.

DISPOSITION

The judgment is affirmed.

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DAWSON, J.

WE CONCUR:

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VARTABEDIAN, Acting P.J.

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GOMES, J.

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