PEOPLE v. MARCUS GANN








Filed 3/24/11





CERTIFIED FOR PARTIAL PUBLICATION^*

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. NATHANIEL MARCUS GANN et al., Defendants and Appellants.

D055431 (Super. Ct. No. SCD207862)

STORY CONTINUE FROM PART I….


Gann argues that Hansen's prearrest statements to the police do not qualify under Evidence Code section 1223 because they were made after MacNeil's murder, which, he claims, terminated the conspiracy. Gann maintains that since the conspiracy had ended, Hansen's prearrest statements could not have been made in furtherance of the conspiracy; rather, they were mere acts to avoid detection. However, the trial court found that the scope of Gann and Hansen's conspiracy included the murder of their stepfather, as well as making the murder appear to have taken place during a home-invasion robbery.
"[W]hether statements made are in furtherance of a conspiracy depends on an analysis of the totality of the facts and circumstances in the case." (Hardy, supra, 2 Cal.4th at p. 146.) In Hardy, the main objective of the conspiracy was to acquire the life insurance benefits of the insured individuals, who were murdered in furtherance of the conspiracy. (Id. at p. 143.) Our Supreme Court held that the conspiracy did not end with the murders, but continued until the conspirators received the insurance proceeds, or until the policy beneficiary was convicted of unjustifiable homicide and rendered ineligible to collect. (Id. at p. 144.) The court concluded that coconspirator statements made during this lengthy period of the conspiracy were therefore admissible under Evidence Code section 1223. (Hardy, supra, at p. 144.)
The evidence supports the trial court's determination that the scope of the Gann-Hansen conspiracy encompassed both the murder of their stepfather and making it appear that the murder took place during a home-invasion robbery. Making it look like the murder occurred during a home-invasion robbery was integral to the conspiracy. To this end, Gann and Hansen made it appear that Hansen was a victim of the staged home-invasion by binding her hands with zip-ties. In addition, Hansen hid her ring and watch beforehand so that she could claim that the intruder had taken them. After Gann left the residence, Hansen related to the 911 operator that a masked intruder had confronted her and MacNeil at gunpoint and had killed MacNeil. Hansen told both the 911 operator and Officer Forsey that the intruder, whom she said she did not know, and who she said had worn a mask and was dressed in black, had tied her hands with zip-ties and taken her jewelry. Hansen recited essentially the same scenario to Detective Rivera. Hansen's 911 call and her prearrest statements to the police officers were integral to creating the false impression that MacNeil was killed during a home-invasion robbery. The evidence thus fully supports the trial court's conclusion that the statements were made during and in furtherance of the conspiracy.
2. Right to confront adverse witnesses
In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the United States Supreme Court held that the Confrontation Clause of the Sixth Amendment to the United States Constitution prohibits the admission of out-of-court "[t]estimonal statements of witnesses absent from the trial [unless] the declarant is unavailable," and "only where the defendant has had a prior opportunity to cross-examine." (Crawford, supra, at p. 58.) The Crawford court did not set forth "a comprehensive definition" of what constitutes "testimonial evidence," but held that "[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." (Id. at p. 68.) With respect to nontestimonial hearsay, Crawford held that where the proffered statement is not testimonial, state law may regulate the admission of evidence by applying statutory hearsay rules, without running afoul of the Confrontation Clause. (Ibid.)
In Davis v. Washington (2006) 547 U.S. 813 (Davis), the United States Supreme Court explained the distinction between nontestimonial and testimonial statements made to law enforcement officers during a 911 call or at a crime scene: "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency." (Id. at p. 822.) Statements are testimonial "when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Ibid.)
In People v. Cage (2007) 40 Cal.4th 965 (Cage), our Supreme Court identified several "basic principles" to assist courts in determining whether a particular statement is or is not testimonial. The court explained that although a testimonial statement need not be made under oath, it must have some "formality and solemnity characteristic of testimony" and "must have been given and taken primarily . . . to establish or prove some past fact for possible use in a criminal trial." (Id. at p. 984, italics omitted.) However, "statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial." (Ibid.) "[T]he primary purpose for which a statement was given and taken is to be determined 'objectively,' considering all the circumstances that might reasonably bear on the intent of the participants in the conversation." (Ibid.)
Using the analyses in Davis, supra, 547 U.S. 813 and Cage, supra, 40 Cal.4th 965, the Courts of Appeal in People v. Brenn (2007) 152 Cal.App.4th 166, 176 (Brenn) and People v. Banos (2009) 178 Cal.App.4th 483, 492-493, 497 (Banos) each found that the victims' respective statements to a 911 operator were not testimonial. In Brenn, the court determined that the purpose and form of the statements used in the 911 call were "not the functional equivalents of trial testimony." (Brenn, supra, at p. 176.) In Banos, the court concluded that the statements were not testimonial because the primary purpose of the declarant was "to gain police protection." (Banos, supra, at p. 497.) The court noted, "The statements were not yet the product of an interrogation, rather they were made to police conducting an investigation into an ongoing emergency." (Ibid.)
As these cases make clear, a 911 call made during the course of an emergency situation is ordinarily made for the primary nontestimonial purpose of alerting the police about the situation and to provide information germane to dealing with the emergency. Applying the analysis of those cases here, we conclude that Hansen's statements to the 911 operator were not testimonial under Crawford, supra, 541 U.S. 36. The dispatcher was primarily concerned with what was happening at the moment, in order to obtain information that would assist responding officers in rendering aid to the victims and finding the escaping perpetrator--not to secure a conviction in a court trial. The information given was not formal or structured. Because the statements that Hansen made to the 911 operator were not testimonial in nature, they were not subject to the requirements of Crawford.
The same analysis applies to the statements that Hansen made to Officer Forsey at the scene of the crime, shortly after her 911 call. Officer Forsey was primarily concerned with determining what had happened and whether Hansen had any information that could help police find the man dressed in black, who officers believed might still be in the area. Officer Forsey's conversation with Hansen was not structured or formal. We conclude that Hansen's statements to Officer Forsey also were not testimonial. (Banos, supra, 178 Cal.App.4th at p. 497.)
However, the same analysis does not apply to statements that Hansen made to Detective Rivera prior to Hansen's arrest. Detective Rivera's interviews with Hansen were conducted under circumstances that were more formal than the circumstances surrounding the 911 call and the on-the-scene discussion with Officer Forsey. Rivera's first interview with Hansen took place at the police station and was recorded. At the time of this interview, police viewed Hansen as a victim and were attempting to obtain additional information to assist them in their investigation of MacNeil's murder. The second interview took place at Richard and Bonnie MacNeil's residence. While Rivera still viewed Hansen as a victim at the time she initiated her conversation with Hansen, after Hansen referred to the intruder as "Nathan," Rivera apparently became suspicious of Hansen, and decided to tape-record the rest of their discussion.
Because "[s]tatements taken by police officers in the course of interrogations are . . . testimonial under even a narrow standard" (Crawford, supra, 541 U.S. at p. 52), the statements that Hansen made to Detective Rivera at the police station and at Richard MacNeil's home are "testimonial" under Crawford.
However, when Hansen made the statements, she was engaging in conduct that was within the scope of the conspiracy, i.e., reinforcing the notion that MacNeil had been killed during a home-invasion robbery committed by a masked intruder dressed in black. The statements at issue are thus coconspirator statements made during and in furtherance of the conspiracy. The question that we must decide is whether the admission in evidence of the statements that Hansen made to Detective Rivera violated Gann's Sixth Amendment confrontation rights.
The case of United States v. Stewart (2d Cir. 2006) 433 F.3d 273 (Stewart), in which the court addressed the admissibility of statements that were both in furtherance of a conspiracy and testimonial, is instructive. In Stewart, the federal government initiated insider trading investigations of suspicious sales of ImClone Systems, Inc., stock in December 2001. (Id. at p. 280.) Concluding that the two codefendants had misled investigators about their sales of large volumes of stock before the company announced that it had been denied approval for a key pharmaceutical product, the government indicted them for conspiracy to obstruct justice, to make false statements, and to commit perjury. (Id. at pp. 280-281.) Following their convictions at a joint trial, each codefendant challenged the admission of the other's prior statements to FBI and SEC investigators. (Id. at p. 290.)
While acknowledging that the codefendants' statements, "having been made during interviews with government officials in the course of an investigation, do have characteristics of Crawford's 'core class of "testimonial' statements," ' in the context of the crimes for which [d]efendants were convicted," the Stewart court also noted that "the challenged statements are part and parcel of co-conspirators' statements made in the course of and in furtherance of [d]efendants' conspiratorial plan to mislead investigators." (Stewart, supra, 433 F.2d at p. 291, citations omitted, italics added.] Given that the conspiracy's primary objective was to obstruct the federal government's investigation, the Stewart court rejected the codefendants' claim that the admission of truthful portions of the otherwise testimonial hearsay violated their confrontation rights. (Id. at pp. 291-292.) The Stewart court reasoned that the "essence" of the conspiracy to obstruct justice charge "necessarily contemplate[d] that the conspirators would provide false information to government agencies during the course of their investigation and during interrogations that would produce testimonial statements of one or the other of them." (Id. at p. 292.)
The Stewart court noted that a conspiracy to obstruct justice necessarily involves the use of deception and misrepresentation because it seeks to hide the commission of an already-completed substantive offense. (Stewart, supra, 433 F.3d at p. 292.) In this regard, the Stewart court stated,
"It defies logic, human experience and even imagination to believe that a conspirator bent on impeding an investigation by providing false information to investigators would lace the totality of that presentation with falsehoods on every subject of inquiry. To do so would be to alert the investigators immediately that the conspirator is not to be believed, and the effort to obstruct would fail from the outset. . . . "

The court continued,

"The truthful portions of statements in furtherance of the conspiracy, albeit spoken in a testimonial setting, are intended to make the false portions believable and the obstruction effective. Thus, the truthful portions are offered, not for the narrow purpose of proving merely the truth of those portions, but for the far more significant purpose of showing each conspirator's attempt to lend credence to the entire testimonial presentation and thereby obstruct justice. It would be unacceptably ironic to permit the truthfulness of a portion of a testimonial presentation to provide a basis for keeping from a jury a conspirator's attempt to use that truthful portion to obstruct law enforcement officers in their effort to learn the complete truth." (Stewart, supra, 433 F.3d. at pp. 292-293.)

The Stewart court concluded,
"For these reasons, we hold that when the object of a conspiracy is to obstruct justice, mislead law enforcement officers, or commit similar offenses by making false statements to investigating officers, truthful statements made to such officers designed to lend credence to the false statements and hence advance the conspiracy are not rendered inadmissible by the Confrontation Clause. A contrary reading of the rule would result in obvious and unacceptable impediments to prosecuting cases like this one, in which the very object of the charged conspiracy is for the defendants to mislead investigators by responding falsely to the investigators' questions in a structured setting, fully aware that their responses might be used in future judicial proceedings. For these reasons, there was no error here in admitting the testimonial statements of one Defendant against the other." (Stewart, supra, 433 F.3d at p. 293.)

While there was a charged conspiracy to obstruct justice in Stewart, the Stewart court's comments apply with equal force to the present case, in which the uncharged conspiracy included a plan to mislead law enforcement officers who were investigating MacNeil's murder. Gann and Hansen's plan to make it appear that MacNeil was murdered by a masked intruder during a home-invasion robbery was, in essence, a plan to obstruct justice, and all of Hansen's prearrest statements to Detective Rivera--both truthful and untruthful--were made in furtherance of the conspiracy.
As in Stewart, any truthful statements that Hansen made to Detective Rivera prior to her arrest were "designed to lend credence to the false statements and hence advance the conspiracy." (Stewart, supra, 433 F.3d at p. 293.) For these reasons, we conclude that such statements were not inadmissible under the Confrontation Clause.^[1]
3. Claimed instructional error
Gann contends that the trial court erred by instructing the jury pursuant to CALCRIM No. 418 as follows:

"In deciding whether the People have proved that the defendant NATHANIEL GANN committed the crime charged, you may not consider any statement made out of court by BRAE HANSEN unless the People have proved by a preponderance of the evidence that:

"1. Some evidence other than the statement itself establishes that a conspiracy to commit a crime existed when the statement was made;

"2. BREA HANSEN was a member of and participating in the conspiracy when she made the statement;


"3. BREA HANSEN made the statement in order to further the goal of the conspiracy; [and]


"4. The statement was made before or during the time that the defendants were participating in the conspiracy.


"A statement means an oral or written expression, or nonverbal conduct intended to be a substitute for an oral or written expression.

"Proof by a preponderance of the evidence is a different standard of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you include that it is more likely than not that the fact is true."

Gann maintains that the conspiracy ended with the murder of MacNeil, and that this instruction erroneously allowed the jury to consider a statement that Hansen made after the conspiracy had terminated. As indicated above, we have determined that the trial court reasonably concluded that the conspiracy did not terminate with MacNeil's murder, but rather, that the conspiracy included an agreement to make it appear that MacNeil was murdered during a home-invasion robbery. Accordingly, the trial court did not err in instructing the jury pursuant to CALCRIM No. 418.
B. Propriety of prosecution rebuttal witness
Gann contends that it was error to admit the testimony of prosecution rebuttal witness K.U., that Gann had raped her while they were dating in high school.
1. Background
Gann presented seven witnesses who testified that they believed Gann had a peaceful and nonviolent character. To rebut this evidence, the prosecution called K.U., who testified that in her opinion, Gann was a violent person.
At the time of the trial, K.U. was living in England. The prosecution was able to contact her during Gann's defense case, while she was visiting relatives in Arizona. The day before K.U. was called as a witness, the prosecutor informed Gann's counsel that he intended to call her as a rebuttal witness and gave Gann's counsel a taped recording of a telephonic interview between K.U. and a prosecution investigator. During the recorded interview, K.U. said that she believed that Gann was a violent person, and related that he had slapped her, tried to control her, and sexually abused her. Gann's counsel unsuccessfully attempted to prevent K.U. from testifying.
At trial, K.U. testified that Gann had slapped her in the face once at school and that he had been sexually abusive toward her. When the prosecutor inquired further about the alleged sexual abuse, K.U. blurted out that Gann had raped her. At that point, the court called a recess in order to allow K.U. to regain her composure.
Outside the presence of the jury, Gann's counsel moved for a mistrial, stating that it would be impossible to overcome the prejudice stemming from the rape accusation. Counsel pointed out that during the interview with the prosecution investigator, the witness had neither explicitly nor implicitly stated that Gann had raped her.^[2] Defense counsel further argued that he was unprepared to cross-examine concerning a rape allegation, and that the violation of Gann's due process rights caused by the witness's unanticipated rape allegation could not be cured. Although the trial court said that it would consider striking the testimony about the rape, the prosecutor objected and defense counsel essentially reiterated that the damage from the testimony could not be cured. The court ultimately did not strike the testimony and did not grant a mistrial. The court directed the prosecutor not to "overreach" in his further questioning about the sexual abuse, and sustained numerous objections in this regard when the prosecutor continued his direct examination of K.U. The court also granted Gann's counsel a one-day continuance to attempt to locate surrebuttal witnesses who could impeach K.U.^[3]
2. Analysis
Generally, evidence of a defendant's character or a trait of his character is not admissible to prove the defendant's conduct on a specific occasion (Evid. Code, §§ 1101, subd. (a), 1102). However, when a defendant presents testimony of his good character at trial, the prosecution may impeach the testimony or rebut it. (Evid. Code, § 1102, subd. (b).)^[4] Under Evidence Code section 1102, subdivision (a), "[a] defendant may introduce opinion evidence of his or her character to show a nondisposition to commit an offense." (People v. Guerra (2006) 37 Cal.4th 1067, 1118.) "Lay opinion testimony is admissible under [Evidence Code] section 1102 when it is based on the witness's personal observation of the defendant's course of behavior." (People v. Felix (1999) 70 Cal.App.4th 426, 430.)
It follows that "when a criminal defendant presents opinion or reputation evidence on his own behalf, the prosecutor may present like evidence to rebut the defendant's evidence and show a likelihood of guilt. (Evid. Code, § 1102, subd. (b).)" (People v. Hempstead (1983) 148 Cal.App.3d 949, 953.) However, if the impeachment or rebuttal of good character evidence "would create a substantial danger of undue prejudice to the defendant, the trial judge has the discretion to preclude [the evidence] under Evidence Code section 352." (Id. at p. 954.)
Gann placed his character at issue by presenting seven witnesses who testified that he was a peaceful and nonviolent person. Because Gann opened the character issue, the prosecutor was entitled to present evidence that tended to impeach or rebut that "specific asserted aspect" of Gann's character. (People v. Rodriguez (1986) 42 Cal.3d 730, 792,
fn. 24.)
As the court put it in People v. Tuggles (2009) 179 Cal.App.4th 339, 357:
"A defendant who elicits character or reputation testimony opens the door to the prosecution's introduction of hearsay evidence that undermines testimony of his good reputation or of character inconsistent with the charged offense. 'When a defendant elects to initiate inquiry into his own character, presumably to establish that one with his lofty traits would be unlikely to commit the offense charged, an anomalous rule comes into effect. Opinion based upon hearsay is permitted. (Evid. Code, § 1324; People v. Cobb (1955) 45 Cal.2d 158.) But the price a defendant must pay for attempting to prove his good name is to throw open a vast subject which the law has kept closed to shield him. (Evid. Code, §§ 1101, 1102.)' [Citation.]"

A prosecutor does not have unlimited scope in inquiring about a defendant's reputation, however. "The prosecution 'must not be permitted to take random shots at a reputation imprudently exposed, or to ask groundless questions "to waft an unwarranted innuendo into the jury box" . . . .' [Citation.]" (People v. Tuggles, supra, 179 Cal.App.3d at pp. 357-358.) "When a defense witness gives character testimony, the prosecutor may inquire of the witness whether he or she has heard of acts or conduct by the defendant inconsistent with that testimony, so long as the prosecutor has a good faith belief that such acts or conduct actually took place." (People v. Barnett (1998) 17 Cal.4th 1044, 1170.)
We review a trial court's evidentiary rulings under Evidence Code sections 352, 1101 and 1102 for abuse of discretion. (People v. Doolin (2009) 45 Cal.4th 390, 437.)
It is undisputed that no one anticipated that K.U. would blurt out that Gann had raped her. Thus, the issue is not whether the court should have precluded K.U.'s "rape" testimony, but rather, what the court should have done after she claimed that Gann had raped her. When a witness blurts out something unexpected, an order to strike the testimony and an admonition to the jury to disregard the testimony are ordinarily sufficient to cure the harm. (E.g., People v. Price (1991) 1 Cal.4th 324, 454-455; People v. Martin (1983) 150 Cal.App.3d 148, 162-163.) If a trial court finds that the prejudice is incurable, the court should order a mistrial. (People v. Harris (1994) 22 Cal.App.4th 1575, 1581.) When a witness blurts out potentially prejudicial matter, the trial court is vested with considerable discretion in deciding whether to grant a mistrial or strike the testimony. (Ibid.)
Here, the trial court did neither. We do not fault the court for refusing to declare a mistrial; the prejudice was not incurable, as demonstrated by the fact that defense counsel was able to quickly locate several surrebuttal witnesses who effectively impeached K.U. However, the trial court should have followed its initial inclination to strike the testimony and admonish the jury, even though defense counsel did not indicate that he wanted the court to strike the testimony.
Although the trial court should have stricken the "rape" testimony, we conclude that the error in not striking the testimony was harmless. The evidence against Gann was more than ample to convict him of first degree murder. Gann's DNA was found on the inside of the mask that was stuffed in the black shirt, which had been discarded along the getaway route. Gann was identified by one eyewitness as the male who the witness saw running away from the MacNeil residence. Gann's truck was parked on a nearby street at the time of the murder, and another witness saw a male running from the residence to the truck and entering the truck. Goodman, the Arizona jail cellmate who testified about the version of the murder that Gann related to him, linked Gann to the murder conspiracy with Hansen. Goodman's testimony was corroborated by the Goodwill receipts and Gann's credit card transaction statements, which showed that Gann had purchased black clothing in preparation for the murder. Given all of this evidence, it is not reasonably probable that the jury would have returned a different verdict if the trial court had stricken K.U.'s surprise "rape" testimony. (People v. Watson (1956) 46 Cal.2d 818, 836.)
C. Cumulative evidentiary error
Gann argues that the cumulative effect of the trial court's evidentiary errors deprived him of a fair trial. Because we have concluded that there was only a single evidentiary error, and that this error was harmless, "we have no occasion to consider the impact of cumulative error." (People v. Holt (1997) 15 Cal.4th 619, 693.)
D. Judicial bias
Gann contends that he was denied due process because the trial court, Judge Frederic L. Link, had prejudged the case. Gann bases this contention on an extrajudicial comment that he alleges Judge Link made before trial. Gann moved for a new trial based on, among other things, the alleged extrajudicial comment.^[5] The contention is without merit.
1. Background
Judge Link was the judge who reviewed the declaration in support of the arrest warrant and subsequently signed the warrant. All counsel were aware of this fact.
Prior to trial, Judge Link informed the defense attorneys and the defendants, on the record, that he had known MacNeil and that he had presided over two or three cases that MacNeil had tried. Judge Link said that he and MacNeil had been friendly in the courthouse hallway, but that he had never socialized with MacNeil and that they were never present at the same social events. Judge Link also said that he had gone to a poster shop that MacNeil had owned, and that he might have purchased something at the shop. Judge Link added:
"But that's all my contact with him. So I want everybody to know that. [¶] You know as I said to the attorneys, and say to you now, I'm going to treat this case and . . . Mr. MacNeil like I would any other victim. And I have no reason to treat this case any differently because of my contact with him."

Gann and Hansen indicated they had no objection to Judge Link continuing to preside over the case.
On April 15, 2009, after the jury verdicts were announced in court, Gann's counsel received information about the case from attorney Geoffrey Morrison--namely, that Morrison had observed Judge Link in the spectator area of the courtroom at Gann and Hansen's arraignment and heard the judge say that MacNeil was a good man and that he "did not deserve what these 'punks' did to him."
In his motion for a new trial, Gann's counsel argued that a new trial was warranted on the nonstatutory ground that the court was biased against him, and stated that Morrison had related to him the comment that Morrison attributed to Judge Link. In the motion for new trial, Gann's counsel did not claim that the judge exhibited bias at trial, and did not cite or refer to any rulings that the trial court made that showed bias.


TO BE CONTINUED AS PART III….

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