P. v. Jackson
Filed 6/19/13 P. v. Jackson CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
RACARDO SHAVEZ JACKSON,
Defendant and Appellant.
A132659
(Solano County
Super. Ct.
No. FCR245040)
A jury found
defendant guilty of
degree murder (Pen. Code, § 187, subd. (a)), and found true that he
personally discharged a firearm that was the proximate cause of the death of
the victim within the meaning of Penal Code section 12022.53, subdivision
(d). Defendant, through his appellate
counsel, maintains that the trial court abused its discretion and violated his
constitutional right to a fair trial
when it excluded evidence related to the victim’s violent character. His counsel on appeal also challenges the
lower court’s ruling that qualified a detective as an expert and permitted him
to testify about the expected location of shell casings if the gunman was in a
particular position.
Subsequently, we
granted defendant’s request to file on his own behalf a supplemental
brief. Defendant argues that juror
misconduct, prosecutorial misconduct, and the admission of certain statements
he made to the police require reversal.
Alternatively, he asserts that this court pursuant to Penal Code section
1260 should modify the judgment to manslaughter (Pen. Code, § 192).
We are not
persuaded by any of defendant’s arguments.
Consequently, we affirm the judgment.
On December 12,
2007, an information was filed charging defendant with the murder of Troy
Thompson in violation of Penal Code section 187, subdivision (a). It was further alleged that in committing the
crime defendant personally discharged a firearm, which proximately caused great
bodily injury and death within the meaning of Penal Code section 12022.53,
subdivisions (c) and (d), and within the meaning of Penal Code sections
12022.5, subdivision (a)(1), and 12022.53, subdivision (b). Additionally, it was alleged that defendant
had suffered a prior serious or violent felony conviction within the meaning of
Penal Code section 667, subdivisions (b) through (i).
The Start of the Trial
The defense
filed a motion in limine that
included, among other things, a request to exclude improper lay opinion on
expert matters. In particular, defendant
sought to exclude any testimony or other opinion evidence “by law enforcement
officers regarding ballistics analysis as lacking in foundation, impermissible
lay testimony on an expert subject; lacks foundation; irrelevant and unduly
prejudicial . . . .†Defendant asserted
that “[a]t least one police officer opined in his report that the arrangement
of the casings was ‘consistent’ with the version of events described by prosecution
witness [and] . . . [s]uch an opinion is clearly a lay opinion on an expert
matter beyond common experience, which is inadmissible.â€
The
trial court commented that the lay opinion evidence of the officer did not seem
to be a proper subject for a lay opinion.
The court explained: “So I’d
grant [the defense’s motion] unless the People think they can adequately
establish a foundation for an expert opinion by the police officer.â€
The
prosecution answered that it was possible that the People could establish an
adequate foundation and asked the court to reserve ruling on this issue. The prosecutor stated that she believed an
officer could testify about whether he saw casings on the ground and whether
the location of these casing was consistent with a witness’s testimony. The court responded that it was not
foreclosing that.
Defendant
also moved under Evidence Code section 1103 to admit evidence of the violent
character of Thompson, the victim. The
trial court permitted admission of some of the evidence and excluded other
evidence.
A
jury trial began on August 9, 2010.
The Prosecution
Testimony
On July 15,
2007, approximately 3:30 a.m., Officer Frank Piro responded to a call regarding
a shooting. He spotted medics attending
to Thompson. The medics placed Thompson
in the ambulance and Piro traveled with him in the ambulance. Piro advised Thompson that he might die and
asked him to identify who shot him.
After a few seconds, Thompson responded, “Pete.†When asked where Pete lived, Thompson responded,
“Richmond.†Piro continued to ask
questions but Thompson was unable to answer.
Detective James Carden testified Thompson was pronounced dead at 5:45
a.m.
Katy
May Permenter testified regarding the events related to the killing of
Thompson. She asserted that she had
known Thompson for about one year before he was killed. They had been involved in a sexual
relationship but had agreed to see other people.
Prior
to the killing, Permenter had known defendant, who went by the name of “Pete,â€
for about six months. She had a sexual
relationship with defendant; defendant also had other girlfriends.
After
losing her job in a shoe store, Permenter became a prostitute for, at most, two
months. Defendant was her pimp. When Permenter told Thompson that defendant
was her pimp, he became upset and jealous even though Thompson was also a
pimp.
On
July 14, 2007, Permenter moved from Vacaville to an apartment on the second
floor in Fairfield. In the evening after
the move, she asked defendant to come to her place; he came to the new
apartment about 10:00 p.m.
Defendant
and Permenter went to sleep around midnight when Thompson began calling on the
phone and waking her. She did not answer
the phone; Thompson then began to text her.
He told her that he wanted to come to her place. She texted him and told him that she had
company and did not want him to come to her place. Despite her telling him not to come, he told
her that he was coming. Phone records
indicated that Thompson left 14 or 15 text messages at Permenter’s phone number
between 12:39 a.m. and 3:30 a.m. on July 15, 2007. The record also established that he called
Permenter 17 or 18 times between 1:15 and 3:30 a.m. on this same date.
Permenter
testified that Thompson arrived at her door 20 minutes after he first told her
he was coming. Thompson pounded on the
door and yelled for her to come outside.
Defendant awakened and calmly dressed.
Permenter told defendant that it was Thompson and that he should let
Thompson leave. Permenter’s phone rang
and she answered it. Thompson was on the
line; she told him to leave because she had company. She told him that she was not his girlfriend. The knocking and phone calls stopped and
Permenter believed that Thompson had left.
Permenter
told defendant that she did not want to have any problems and asked him to
leave. Defendant left the apartment for
a few minutes.
Defendant saw
Joseph Charles Pickett, who lived in the apartment directly below Permenter’s
apartment. He was in front of his apartment
in the parking lot smoking a cigarette.
Defendant asked him if he had seen someone knocking on the door of the
above apartment. Pickett told him that
he had not seen anyone at the door but earlier he had seen someone in the
dumpster area in the parking lot.
Defendant returned to Permenter’s
apartment.
Defendant asked
Permenter where Thompson lived and whether he was going to have to look for him
to determine what Thompson’s problem was.
Defendant left again and drove away.
According to Pickett, he noticed that defendant returned 30 or 45
minutes later. Permenter testified that
defendant returned about 20 minutes later.
At some point,
Thompson returned to Permenter’s apartment building. He remained at the bottom of the stairs and
began yelling her name, cursing, and acting irrationally. He acted as if he were high or drunk. Permenter noticed that Thompson had his hand
in his pocket and she wondered whether he had a gun. She knew that Thompson kept a gun.
Permenter
told defendant not to go outside and to let Thompson leave. Defendant, however, went outside. Permenter remained in the doorway of her
apartment.
Defendant
went down the stairs and met Thompson on the stairs. Thompson had his phone in one hand and he
kept his other hand in his jacket pocket.
Permenter testified that she saw Thompson remove his empty hand from his
pocket and show it to defendant.
she was not either man’s girlfriend and that they should leave as they were going
to get her kicked out.
Permenter
closed the door of her apartment. At
that time, Thompson was at the bottom of the stairs. Seconds after closing the door, Permenter
heard a series of gunshots.
Permenter opened the door and saw
Thompson running up the stairs. He asked
for help and said, “Let me in.†His
white T-shirt was completely covered in blood.
She grabbed him but he collapsed outside the door and she could not hold
onto him.
Permenter
was in shock and could not recall the exact events after that but defendant
came up the stairs and wanted his phone and keys, which she had thrown
outside. Defendant went to the bottom of
the stairs, and then went to the parking lot.
Defendant looked back at Permenter and said, “Bitch, you’d better not say
my name.†Defendant did not tell
Permenter that Thompson had pulled a gun or assaulted him. Defendant calmly walked to his car and drove
away.
Permenter
banged on doors of other apartments and asked people to help and to call
911. A person told her that an ambulance
was on the way.
Pickett
was watching a pornographic movie on the computer in his bedroom when he heard
arguing outside. He looked out his
window and saw and heard five or six muzzle flashes from a gun. He could not see the people’s faces outside
the window but noticed there were two people and, from their builds and
clothing, he believed one was defendant and one was the person he had seen
earlier at the dumpster.
Pickett
testified that defendant took a step back after the first two shots, and
Thompson began to fall. After a slight
pause of a half second or less, defendant pointed the gun downward and shot
three or four more times. Pickett did
not know whether Thompson had his hand in his pocket or whether he had a
weapon. He did not see anything in
Thompson’s hand and did not see defendant remove a weapon from Thompson. He also did not see a gun on the ground near
Thompson. Picket called 911. About 30 seconds later, Permenter came
running downstairs and banged on the doors, yelling for help. He went outside to help and found Thompson
upstairs.
Expert
Testimony, Physical Evidence, and the Autopsy
The prosecution
offered Detective William Shaffer as an expert “with respect to firearms.†Defense counsel expressed reservations and
reserved voir dire. The court permitted
Shaffer to testify as an expert “subject to voir dire by [defense counsel] on
cross-examination.†Defense counsel
cross-examined Shaffer without conducting voir dire.
The evidence
showed that there were seven .357 caliber shell casings, a copper jacket from
an expended bullet, and a recovered bullet recovered from the apartment
building where Permenter lived. Most of
the casings were in the landscaping between the sidewalk and the parking
lot. In Shaffer’s opinion, all of the
casings and the recovered bullet and copper jacket came from the same caliber
weapon, a .357 SIG semi-automatic. The
expended bullet appeared to be a hollow point; it had been fired and had passed
through something.
A
1986 Toyota Supra registered to Thompson was parked in the apartment parking
lot. The keys were in the ignition and
the windows were partially down. The
doors were unlocked.
On
July 18, 2007, the police recovered from under the passenger seat in
defendant’s car a handgun and magazine with bullets in it wrapped in a plastic
Target bag. There was no evidence at the
scene consistent with this firearm.
Dr.
Arnold Josselson, forensic pathologist, testified that the autopsy of Thompson
revealed that he had five gunshot wounds, and two of them were fatal. He stated that Thompson suffered a gunshot
wound on the left elbow and that it went in the back of his elbow. He also had a superficial gunshot wound on
the right side of his back, a fatal gunshot wound in the right chest and
abdomen, and two bullets in the upper abdomen.
He also discussed a photograph, which showed the backside of the victim,
and two gunshot wounds. He explained
that one of the shots depicted in the photograph was the one he had described
as going across the right side of Thompson’s back and not entering his
chest. There was no evidence of a
fistfight. Drugs and alcohol were not in
Thompson’s body at the time of his death.
Statements to the Police
The police
arrested defendant at gunpoint at his apartment in Sacramento on July 25,
2007. Defendant waived his rights
pursuant to Miranda v. Arizona (1966)
384 U.S. 436 (Miranda) and spoke to
Detective Joshua Cohen.
Defendant’s
statements to Cohen were taped and played to the jury. Cohen asked defendant, “You know why we’re
all here, right?†Defendant responded,
“I’m pretty sure.†Defendant stated,
“[Y]’all what I done, you like––you twisted it up in the media, y’all got I
mean you know what I mean?†Cohen
responded that they did not have defendant’s “side.â€
Cohen
told defendant that they did not know exactly what had happened. They knew that some shots were fired and one
person took off and one person was on the ground. Defendant answered: “I’m pretty sure she told you everything. I don’t know if she lied or what, but if she
told you what everything you know, I don’t know why y’all put it out there like
that, though.†Cohen said that they “talked
to a whole bunch of people.â€
Cohen
told defendant that “obviously†he had “a part†in the incident and that was
why it was important for the police to talk to him. Defendant answered, “I know.†Defendant indicated that he would talk to
Cohen but he did not “want to do it here†in Sacramento. Defendant said he would talk to Cohen when he
was transferred to Fairfield.
Cohen
told defendant that he was concerned that there was a gun somewhere; he did not
want someone to get hurt. Defendant
remarked that there was not any gun in Sacramento. Cohen asked about the location of the gun
defendant used on July 15. Cohen noted
that he would try to have defendant moved to Fairfield that night.
Cohen
arranged to have defendant transported to Fairfield, and spoke to defendant
again after the transfer. This interview
was taped and again played for the jury.
Another detective was also in the room and defendant asked to speak
briefly to Cohen only. The other
detective left the room and defendant inquired whether he could talk to Cohen
off the record. Cohen emphasized that he
was a police officer and that “there’s really not much off record with me when
it comes to something like this.†He
elaborated that he would share the report with the district attorney and the
information could not be secret. Cohen
added that it was his understanding that defendant wanted to have his side of
what happened known. Cohen told
defendant that his explanation would become part of the official record. He also advised defendant that he would do
further investigation if defendant gave him information that was “drasticallyâ€
different from the information he already had.
Defendant
stated that the news in the paper and on the Internet stated that he was wanted
for “killing somebody and hanging out in the parking lot waiting for somebody
to come out . . . .†He complained that
“they already got me guilty.†He asked
how he could get a “fair fight†since they “painted†him “like a monster.†Defendant remarked that he did not have an
attorney and did not know how much to say.
He did not know what information would hurt him and what would help
him. He asked if he could have somebody
there with him. When Cohen asked whether
he was asking for a lawyer, defendant answered, “Yeah.†Cohen explained that he did not have lawyer
to assign to him at that point and that would be done after he was booked and
had his first court appearance.
Defendant
stated that he wanted to ask Cohen simple questions off the record and advised
Cohen that Cohen could give defendant an affirmative or negative response. Defendant asked whether his arrest warrant
was for murder; Cohen told him that it was.
Defendant asked whether it could be “just manslaughter.†Defendant added: “If I say, ‘woo’ . . . and we go
through all the things and you talk to whoever you need to talk to whoever I
need to talk to and you take to who is the [district attorney] and maybe we can
work something with that. That’s what I
mean you know like, you feel me? If you
know what I’m saying, if my story get out, the whole truth you know what I’m
saying and then investigate with what you heard or what not and you pretty much
the [district attorney] can just see and maybe it could be that.†Cohen responded, “Okay.â€
The Defense
Defendant’s
Testimony
Defendant was 36
years old at the time of trial. He was
convicted of robbery when he was 18 years old and did not use a gun during the
robbery. In 1994, at the age of 20, he
was convicted of a felony involving the unlawful taking of a car.
Defendant
stated that he met Permenter at a Motel 6 in Fairfield in the middle of the
month of February 2007. Initially they
were simply friends but after about two months they began a sexual
relationship.
Permenter
told defendant that she was a prostitute and that Thompson was her pimp. She showed defendant a listing on Craig’s
list. Defendant denied ever being
Permenter’s pimp and claimed that he never posted any ads for her. He saw other women while dating Permenter.
Permenter
disclosed to defendant that Thompson did not treat her well and that she was
afraid of him. She related an incident
where Thompson put a gun to her head and told her he would kill her if she
tried to leave him. She also stated that
Thompson’s friends robbed her at a motel and she believed Thompson “was behind
it.†Defendant also heard from an
acquaintance that Thompson always carried a gun, was quick to pull it out, and
was a bully “looking for stuff to get into.â€
He also heard that Thompson had pistol whipped a person because he owed
Thompson money. He also was told that
Thompson had raped a woman.
Defendant
did not personally know Thompson but knew people who had heard of him. He spoke with Thompson twice on the telephone
and Thompson said, “I’m Pretty Boy.â€
Defendant spoke to Thompson because Thompson would call Permenter 20 to
30 times in a row; he hoped Thompson would stop calling if he heard defendant’s
voice. Thompson repeatedly said that
Permenter was “my bitch†and instructed defendant to stay away from Permenter.
About
one month before the shooting, a cousin of defendant’s friend reported that
Thompson had stated that he would “fuck†defendant up for “messing withâ€
Permenter. Defendant also saw e-mails
sent to Permenter showing Thompson holding a firearm pointed at the camera. Defendant considered these photographs to be
threats that Thompson would use a gun on him.
Defendant
had a gun in July 2007 for protection.
It was not his own gun but belonged to his friend. Defendant stated that he had been robbed in
Oakland and a person had pulled a gun on him in Fairfield. He denied that he had a gun because he was
selling drugs or pimping. Defendant
admitted that his cursor on his “My Space†page had a pistol as the cursor and
a click brought up a gun scope. He also
acknowledged that the background on his My Space page consisted of marijuana
leaves.
On
July 14, 2007, Permenter called defendant and invited him to come to her new
apartment. He went over to her place
after 10:00 p.m. They fell asleep about
12:00 or 12:30 a.m.
Defendant
testified that he awoke because of loud knocking at the door. He roused Permenter and asked her to see who
was at the door. He heard her speaking
from inside the apartment to Thompson, who was outside the door. He joined Permenter at the door and noticed
that Permenter was speaking to Thompson on the phone. Thompson told Permenter to come outside. Permenter repeatedly told Thompson to
leave. The exchange at the door lasted
about three minutes and then it became quiet; Permenter hung up the phone. Permenter and defendant looked out the
window; they did not see Thompson.
Defendant
decided to go outside to look around to see if Thompson had left. He did not bring his gun with him and did not
intend to confront Thompson. He saw
Pickett and asked him if he saw anybody.
He walked to the parking lot and then returned to the apartment. He denied that he left for a short time in
his car.
When
he returned to the apartment, Permenter played the voicemails from
Thompson. Thompson told Permenter to
pick up the phone. Other messages told
her that he was right outside and that she should come outside or answer the
phone. Other messages stated that he
knew she had someone there. One message
indicated that he was coming back.
Permenter’s phone continued to ring but she did not answer it.
Permenter
informed defendant that Thompson had given her money so she could lease the
apartment and was “just trying to start shit.â€
Defendant retrieved his gun from the dresser and intended to return to
Richmond. Permenter, according to defendant,
asked him not to leave.
Defendant
continued to look out the window when he saw the lights of a car go out and
heard a car door slam shut. Defendant
saw Thompson; Thompson was yelling toward the apartment. Defendant could not hear what Thompson was
saying. Defendant noticed that Thompson
had his hand in his pocket and it looked as if he might have something. Permenter said: “What is he doing? He got a gun.â€
Defendant
opened the door, stood in the doorway, and asked Thompson what the problem
was. Defendant wanted to calm Thompson
down. Permenter instructed him not to
worry about Thompson because he was just trying to cause problems. She grabbed defendant’s arm and told him not
to go outside.
Defendant
went down the stairs and defendant could see the outline of a gun in Thompson’s
pocket. Thompson came toward him. They met close to the stairs, by the bushes,
and were about 10 feet apart.
Defendant
asked Thompson why he had his hand in his pocket and Thompson did not
answer. Thomson asked him what he had to
say about their “playing†him and kept say, “that bitch this, that bitch
that.†Defendant told Thompson that the
police were going to come because of the noise.
Defendant was wary of Thompson because he believed he had a gun, but he
claimed that he was not upset with him.
He believed that they could come to a calm solution.
Thompson
pulled the gun out of his front jacket pocket when he was about four feet away
from defendant. He told defendant that
he “got my strap.†He pointed the gun at
defendant. Defendant started backing up
until he bumped into the stairway railing.
He asked Thompson why he had his gun out and Thompson said that he could
kill him “and that bitch.†Thompson put
the gun in defendant’s face, with his finger on the trigger and the hammer
cocked.
Defendant
was scared and thought he was going to die.
Defendant turned sideways and backed away; he pulled his own gun from
his back right pocket and started shooting.
Thompson never fired his gun.
Thompson fell back into the bush and defendant asserted that he did not
fire any more shots. He claimed that he
never intended to kill Thompson. He
denied standing over Thompson and shooting at him.
Thompson started
getting up from the bush and defendant saw the gun on the ground. Defendant picked up Thompson’s gun while
Thompson ran up the stairs to Permenter’s door.
Defendant was stunned and stood there for a minute. He went to his car but realized he did not
have his key. He put both guns in his
pockets and ran upstairs.
Defendant
spotted Thompson sitting with his back to the wall next to the door of
Permenter’s apartment. Defendant pounded
on the door and told Permenter to open it because he needed his keys. Permenter opened the door, shoved his keys at
him, and slammed the door shut. He ran
downstairs and left. He did not tell
anyone that someone had tried to kill him.
He said nothing more to Permenter and had no further contact with
her.
Defendant
drove to the home of his daughter’s mother and got a plastic Target bag. He wiped off the handle of Thompson’s gun
where he had touched it and took out the magazine. He put the magazine and gun in the bag. Defendant buried Thompson’s gun but later
retrieved it and put the bag under the seat of the car. He buried the gun that he used. He asserted that he was not thinking
rationally.
Defendant
went to Sacramento the next day and stayed at an apartment belonging to his
cousin’s friend. He remained in the
apartment until his arrest because he knew from the newspaper that he was
wanted for murder.
Defendant
sated that he received legal advice on the phone from a lawyer at a legal group
in Southern California before his arrest.
He did not remember the lawyer’s name or the group’s name. Without disclosing details, defendant told
the attorney that he had shot Thompson in self-defense. The lawyer told him that self-defense was
“legal†but that he would probably face a charge of murder and a jury trial. Defendant claimed that when he was talking to
Cohen and said, “Maybe it could just be that,†he was referring to
self-defense, not manslaughter.
Defendant
admitted that he did not tell Cohen that Thompson had threatened him. He also did not mention that his gun was
buried.
Defendant
testified that after he told Cohen he wanted an attorney, Cohen tried “to get
in contact with an attorney that†he had before. Defendant reported that his attorney
“actually called . . . one of the detectives back†and they gave him a cell
phone and he talked to the attorney.
Defendant reported that he did not tell Cohen his “story†because his
attorney advised him not to answer any questions.
Evidence
Richelle
Neverson, senior forensic scientist for Technical Associates was retained by
the defense to do DNA testing on the gun and magazine recovered from the rental
car. Neverson was unable to obtain
sufficient DNA in one swab and had to combine swabs from different parts of the
gun into one sample and all the swabs from the magazine into another sample.
Neverson was
unable to exclude either defendant or Thompson as being potential donors to the
profile from the gun. Thompson’s DNA
matched the combined sample at seven of the nine loci, and defendant’s DNA
matched it at five loci. There was a
chance of 1 in 4,550 that an African-American other than Thompson contributed
to the combined sample, which was a 99.97 percent exclusion rate. There was a chance of 1 in 589 that an
African-American other than defendant contributed to the combined sample for a
99.83 percent exclusion rate.
Jacobus
Swanepoel, a criminalist with Forensic Analytical Sciences, was hired by the
defense as a consultant. He stated that
he was unable to determine the position of the shooter or the decedent and that
the evidence showed only the general area where the firearm was
discharged. The general area was in
front of the stairs leading up to the apartment. The location of the casings was not
inconsistent with the testimony of any of the witnesses. The casings were also not inconsistent with
the autopsy. The
insufficient for him to determine whether the witnesses’ statements were
correct.
of Thompson’s Violent Character
Katrina Lanae
Beckman, who was 24 years old at the time of the trial, testified that she
lived with Thompson as his girlfriend off and on for about six months. They broke up five days before he was killed. She was a prostitute but was not working for
him. Thompson had slapped her once but
this was the only time he was violent with her.
She did not believe Thompson was a violent person and never saw him with
a gun.
Demetria
Adams, a defense investigator interviewed Beckman before trial. Beckman had informed the investigator that
she worked for Thompson as a prostitute.
Beckman told the investigator that she had separated from Thompson
because of the physical abuse. When
confronted with a diary entry indicating that she was punished by someone for
not following the rules, which resulted in her receiving two black eyes,
Beckman told the investigator that Thompson was the person who did this to
her. She also disclosed that she never
saw Thompson with a gun and had not known him to carry one.
Permenter
admitted that Thompson had pulled a gun on her in his home a few months before
the shooting. Thompson told her that the
gun was not loaded and he did not do it again.
The
court also admitted documentary evidence that Thompson had a conviction for
being an ex-felon in possession of a firearm.
Rebuttal
Detective
Shaffer testified that there were four manufacturers of the type of weapon used
to kill Thompson. He stated that if a
person fired the gun with his back to the staircase railing, as defendant said
he did, the casings would have been in the stairwell or near the foot of the
staircase.
Verdict, Sentence, and Appeal
The case went to the jury at 9:00
a.m. on August 25, 2010. The next day,
at 1:45 p.m., the jury returned its verdicts.
The jury acquitted defendant of first degree murder and found him guilty
of second degree murder. The jury also
found that defendant personally discharged a firearm that was the proximate
cause of Thompson’s death. On August 27,
2010, the jury found the prior conviction allegation to be true.
On
February 28, 2011, defendant moved for a new trial and filed a motion to reduce
the verdict from murder to manslaughter.
One of the grounds for a new trial was the alleged misconduct of Juror
No. 8 and Juror No. 4. On June 10, 2011,
the trial court denied the motion for a new trial and the request to reduce the
verdict from murder to manslaughter. The
court found the affidavits of the jurors inadmissible under Evidence Code
section 1150. Furthermore, the court
found that the affidavits did not establish misconduct.
After
ruling on the motion for a new trial, the trial court sentenced defendant to a
term of 30 years to life (15 years, doubled for the prior strike), plus a
consecutive sentence of 25 years to life for the firearm enhancement. Thus, defendant’s total sentence was 55 years
to life. The court ordered restitution
and imposed various fines and fees.
Defendant filed
a timely notice of appeal. Counsel for
defendant filed an opening brief and, subsequently, defendant requested
permission to file a supplemental brief.
We granted defendant’s request and he filed a supplemental brief. The People responded to both briefs. Additionally, defendant filed a petition for
writ of habeas corpus that we are summarily denying in a separate order.
A. Background
On
July 30, 2010, defendant filed his motion under Evidence Code section 1103,
subdivision (a) to have the trial court admit violent character evidence of
Thompson. This evidence, defendant
argued, was relevant to show that he shot Thompson in self-defense.
Defendant
argued: “Troy Thompson was known to
carry a gun. He served a prison sentence
for a violation of†Penal Code section 12021, subdivision (a)(1) “and for
pimping. He committed an armed robbery
and assault with a firearm against Darryl Mercer while personally armed. He has assaulted girlfriends who were also
working for him as prostitutes––including Katrina Lanae Beckman and Terri Anderson. Sylvia Fracisco, another former girlfriend,
also had knowledge that Thompson owned a gun in the home, and will testify that
he was violent towards her. Katy
Permenter told police that she believed Troy Thompson returned to her apartment
with a gun on the night of the incident.
Physical evidence will be presented to corroborate that Thompson was in
fact armed at the time of the incident.
Thus, evidence of Thompson’s violent and hot-tempered character, in the
form of opinions, reputation, and specific acts, is admissible when offered by
the petitioner to prove that the conduct of Thompson created the need for
self-defense. (See, e.g., Evid. Code, §
1103, subd. (a)(1).)â€
Subsequently,
on August 6, 2010, defendant submitted four reports by investigator Adams. The reports summarized interviews with Mercer
and former girlfriends, Anderson, Beckman, and Fracisco. One report communicated the exchange on the
telephone between Adams and Mercer.
Adams asked Mercer, who was living in Arizona, about an incident
involving Thompson in 2002. The report
set forth the following: “Mercer said
his memory of the incident is not as vivid anymore but that it was armed
robbery and Thompson was the main offender.
Mercer said he . . . encountered . . . Thompson, Thompson’s mother, and
some other people as he was walking past their home. Mercer said it was Thompson who had the
firearm. Mercer said after the
encounter, he saw some people up the street with a cell phone and yelled for
them to call the police. Mercer said the
suspects ran back inside of their house.â€
Mercer added that he had known Thompson for quite some time and had
never personally seen Thompson carrying a gun other than this one time when he
was robbed. Mercer disclosed that he did
not return to Fairfield to testify in the case against Thompson for
robbery.
The
report involving Anderson indicated that Adams contacted Anderson by telephone
because she had discovered an arrest report from 2003 indicating that both
Thompson and Anderson were arrested “in a prostitution sting in Sacramento.†Anderson confirmed that she had been arrested
and explained that she met Thompson while walking down the street in
Fairfield. The report provided the
following: “Anderson said she only
prostituted for a couple of weeks in which she started turning tricks and
giving Thompson all the money. Anderson
said she prostituted two nights in Stockton before heading to Sacramento. Anderson said she was considered Thompson’s
girlfriend at the time in which he in turn paid for her expenses such as her
hotel and food. Anderson admits that she
is schizophrenic and was not taking her medications properly at the time.â€
When asked whether
Thompson was ever violent towards her, Anderson said that he was. Adams’s report stated as follows: “Anderson said Thompson didn’t start hitting
her until after the first few days.
Anderson said if she rolled her eyes or if she didn’t want to do
something, Thompson would slap her.
Anderson also advised that Thompson raped her twice. Anderson said that on one occasion Thompson
wanted her to provide him oral sex and she didn’t want to because she was tired
from working. Thompson told Anderson
that if she didn’t give him oral sex she was going to get punched in the face. Anderson said she complied with Thompson’s
demands out of fear.†Additionally,
Anderson noted that once she returned without any money and “Thompson beat her
up really bad.†Thompson, according to
Anderson, “hit her repeatedly in her face with open hands.†Thompson also hit her one time when she
refused to put crack in her underwear.
She reported that Thompson always carried “a [Derringer] with him and
said it was because he was selling crack.â€
Anderson said she relocated to San Jose after the arrest in 2003, and
never heard from Thompson again.
On
August 12, 2010, the trial court ruled that it was excluding “all evidence of
prior bad acts of Thompson, subject to the receipt in evidence of evidence that
would justify the giving of an instruction for self-defense regarding the
shooting.†The court continued: “So if at some point during the People’s
case, it’s brought to my attention that sufficient evidence exists in the
record, that would justify the giving of a self-defense instruction, then
that’s fine, but you can ask me to revisit the ruling then. . . . [T]hat doesn’t mean that all of this is going
to come in, because there are some [Evidence Code section] 352 issues, some of
it is more probative than others on the violent nature of Thompson’s conduct. Some of it is more remote.â€
After
defendant’s testimony, the trial court considered defendant’s request to admit
evidence and testimony under Evidence Code section 1103, subdivision (a). Counsel for defendant told the court that
Mercer, although properly served in Arizona to attend the trial, had not
arrived on the scheduled flight, and counsel was seeking to introduce Mercer’s
statement to police pursuant to Evidence Code section 1370 provided that she
could obtain the police report. The
police department had been unable to locate the report. The court ordered the prosecutor to make her
best efforts to obtain the report.
The
following day, August 19, 2010, the trial court announced that it would permit
testimony about Thompson’s violent character from Beckman, since she had
“recent†knowledge about him. The court
also granted the request to have the photograph of Thompson showing him holding
a firearm pointed at the camera admitted into evidence. The court also permitted the recall of
Permenter to answer more questions on the facts and circumstances related to
Thompson’s pulling a gun on her. The
court did not make any ruling on the evidence related to Mercer.
The
trial court ruled that it would not allow evidence regarding the 2003 battery
and rape of Anderson. The court
explained that Anderson reported that she was schizophrenic and not taking her
medication at the time of the incident.
The court also found that evidence of the rape did not show the same
violent propensity to shoot someone and there was no evidence that Thompson was
seeking to sexually attack Permenter or anyone else on the night of his
death. The court added: “And I think for all of those reasons, and
there [are] a few others that I considered, in terms of the time that this
might require to really delve into a whole other incident that’s now seven
years old, and which one of the principal percipient witnesses is not present .
. . .†The court also noted that
Anderson relocated in 2003 and had no further contact with Thompson.
On
August 20, 2010, defense counsel informed the court that Officer Troy Oviatt
had located the police report of the robbery of Mercer. The court found that all of the requirements
of Evidence Code section 1370 had been satisfied.
A
hearing was held outside the presence of the jury to determine whether the
report should be admitted into evidence.
Oviatt testified that he authored the 2002 report involving the robbery
of Mercer. He, however, had no
independent recollection of the events or the statements contained in the
report.
The
police report set forth the statement made by Mercer. Mercer stated that on November 18, 2002, he
went to Thompson’s apartment seeking $5 that Thompson owed him. Two women let him into the apartment and then
would not let him leave unless he paid them $10. Thompson came down the stairs and asked
Mercer why he was there. Mercer
responded that he came to get the $5 Thompson owed him. Thompson answered: “ ‘I don’t owe you money and you’re not
leaving. I have a gun on me. You all might not carry a gun but I always
have a gun on me.’ †Thompson then took
“a black semi-automatic handgun with a long barrel†out of his jacket and
pointed it at Mercer. Thompson told
Mercer: “ ‘Break yourself. You got money on you, break
yourself.’ †The two women took
items from Mercer’s pockets while Thompson pointed the gun at Mercer. The women removed keys, a $20 bill, a $10
bill, and between three to six $1 bills from Mercer’s pockets. One of the women opened the door and, as
Mercer turned to leave, one of the women punched him in the face. Thompson then hit Mercer on his left shoulder
with either his fist or with the gun.
Mercer was also kicked as he left.
Mercer went to another apartment and told the people to call the
police.
The
police responded and detained the two women and Thompson. The police found money and keys, which Mercer
identified as belonging to him, on Thompson.
The police did not find a firearm, but they found twelve .22 caliber
bullets in a container in the apartment.
The suspects were arrested and charged with robbery and other
crimes.
At
the police station, Thompson refused to talk to the police but one of the woman
indicated that she understood her rights and that she wanted to talk. She said that she had known Mercer for about
four years and that she had asked him in the past not to come to her
apartment. She asked him if he had the
$30 he owed her and Mercer answered that he did not have any money. They then argued. She stated that Mercer “is crazy and
everybody knows he is nuts and that he is a liar.†She claimed that Mercer then left. She maintained that no gun was pointed at
Mercer. She maintained that “she had no
idea what [the police officer] was talking about†when told that Mercer’s keys
and money were found in Thompson’s pocket.
She insisted that “whatever happened was†Mercer’s fault.
The
second woman also wanted to talk and she denied ever being inside the
apartment. She stated that she was
walking by the apartment when she spotted Thompson hitting and kicking Mercer
“in the butt.†She said the two men were
yelling and cussing at each other and that she did not see a gun. When asked whether she knew Mercer, she
responded: “ ‘[E]verybody knows him, he
sells crack and pulls knives on people.’ â€
The
prosecutor informed the court that the charges against Thompson were dismissed
at the preliminary hearing. Defense
counsel said that a minute order showed that the dismissal occurred because
Mercer failed to appear. The prosecutor
argued that she had learned only the day before that the defense was intending
to introduce this report and had been provided insufficient notice.
The
trial court found that Mercer was an unavailable witness and that the
statements attributable to him were made to a law enforcement official near the
time of the alleged threat. The court
also found that the incident was within five years of the filing of the instant
prosecution and thus the issue was “whether the statement was made under
circumstances that would indicate its trustworthiness.†After hearing argument on this latter issue,
the court refused to permit the report to be entered into evidence under
Evidence Code section 1370 because it could not “legitimately conclude that
this was made under circumstances that would indicate its trustworthiness.â€
The
court pointed out that some circumstances tended to show the report’s
trustworthiness but no gun was located, another witness who had not been
arrested did not indicate that a gun had been used, and both of the women
claimed that Mercer was crazy or a liar.
The court also emphasized that Mercer twice failed to appear in
court. Furthermore, the main issue the
defense wished to show was that Thompson had a gun but no gun was located.
Defense
counsel then renewed the request to allow Anderson to testify. The court denied the request and stated that
this evidence was cumulative and less probative. The court stated that the defense could have
Fracisco testify because Beckman’s testimony had been contrary to the defense’s
expectation. After the defense reported
that it was unlikely to produce Fracisco, the trial court permitted the defense
to submit documentary evidence that Thompson had been convicted for being an
ex-felon in possession of a firearm.
On
appeal, defendant argues that the trial court should have permitted the
testimony of Anderson and the police report related to the robbery of
Mercer. He asserts that excluding this
evidence violated his statutory rights under Evidence Code section 1103,
subdivision (a), and violated his Sixth and Fourteenth Amendment right to
present a defense.
B. Standard
of Review
Only relevant evidence is admissible. (Evid. Code, §§ 350, 351.) Relevant evidence is defined in Evidence Code
section 210 as evidence “having any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the action.†“The test of relevance is whether the
evidence tends ‘logically, naturally and by reasonable inference’ to establish
material facts such as identity, intent, or motive.†(People
v. Garceau (1993) 6 Cal.4th 140, 177, overruled on another issue in
117-118.) “Evidence is irrelevant,
however, if it leads only to speculative inferences.†(People
v. Morrison (2004) 34 Cal.4th 698, 711.)
Relevant evidence may be excluded “if its probative value is
substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.†(Evid. Code, § 352.) Courts have wide discretion in determining
whether evidence is relevant, and if so, whether it should be excluded under
Evidence Code section 352. (
761, 792-793, overruled on other grounds in People
v. Trujillo (2006) 40 Cal.4th 165, 181, fn. 3.) A trial court’s exclusion of evidence
pursuant to Evidence Code section 352 is reviewed for an abuse of
discretion. (Olson v. American Bankers Ins. Co. (1994) 30 Cal.App.4th 816, 826.)
Even if we conclude that the trial court abused its discretion in
refusing to admit evidence, we will only reverse if the defendant can
demonstrate prejudice. Defendant argues
that the trial court’s exclusion of evidence denied him his due
process
right to present his theory of self-defense.
(See Chapman v. California (1967)
386 U.S. 18, 24 (Chapman).)
Courts, however, have consistently concluded that a trial court’s
erroneous exclusion of evidence that does not
impinge upon a defendant’s
adopted in People v. Watson (1956) 46
Cal.2d 818, 836 (Watson)). (See, e.g., People v. Boyette (2002) 29 Cal.4th 381, 429.) The Constitution is not offended by
“well-established rules of evidence [that] permit trial judges to exclude
evidence if its probative value is outweighed by certain other factors such as
unfair prejudice, confusion of the issues, or potential to mislead the jury.†(Holmes
v. South Carolina (2006) 547 U.S. 319, 326.) While a refusal to allow a defendant to
present a defense infringes upon the defendant’s constitutional rights and is subject to the stricter beyond a
reasonable doubt standard set forth in Chapman, a rejection of only some
evidence concerning the defense is reviewed under the Watson standard. (People
v. Fudge (1994) 7 Cal.4th 1075, 1102-1103 (Fudge).) Under Watson,
the reviewing court must affirm the judgment if it is “not reasonably probable
that a result more favorable to defendant would have been reached in the
absence of the error . . . .†(
Here, the alleged errors did not rise to the level of constitutional error because defendant
was not denied the ability to present a defense. Exclusion of only some evidence concerning a
defense is subject to the Watson standard
of review and we will review the
alleged error under that standard. (
1102-1103.)
C.
Defendant claims that
the trial court abused its discretion when it denied his request to have
Anderson testify that she worked as a prostitute for Thompson in 2003, and that
Thompson hit her on various occasions, including when she refused to put crack
in her underwear and when she returned without any money. She also was going to explain that she knew
Thompson always carried a firearm because he was selling crack. This evidence, according to defendant, was
highly probative and relevant to his claim that he shot Thompson in
self-defense.
Evidence Code section 1101,
subdivision (a), establishes the general rule that evidence of a person’s
character or a trait of his or her character is inadmissible when offered to
prove the person acted in conformity with that character or trait on a specific
occasion. Evidence Code section 1103,
subdivision (a)(1), provides an exception to that general rule applicable only
in criminal cases. It allows “evidence
of the character or a trait of character . . . of the victim of the crime for
which the defendant is being prosecuted . . . if the evidence is: [¶] . . . [o]ffered by the
defendant to prove conduct of the victim in conformity with the character or
trait of character.†Thus, Evidence Code
section 1103, subdivision (a)(1), permits evidence of a victim’s character when
it is offered to explain, justify, or excuse the defendant’s conduct toward the
victim (People v. Tackett (2006) 144 Cal.App.4th 445, 455), and may be “in
the form of an opinion, evidence of reputation, or evidence of specific
instances of conduct†(Evid. Code, § 1103, subd. (a)).
A defendant charged with a violent
crime, as in the present case, may offer evidence of a victim’s character for
violence to show the defendant acted in self-defense (People v. Tackett, supra, 144 Cal.App.4th at p. 454) when
self-defense is raised. (See, e.g.,
587.) Even when self-defense is raised,
as it was in the present case, the trial court has broad discretion to
determine whether it should be excluded under Evidence Code section 352.
e.g., People v. Gutierrez (2009) 45
Cal.4th 789, 827-828.)
In the present case, defendant has failed to show that the trial
court’s decision to exclude Anderson’s testimony under Evidence Code section
352 was “ ‘arbitrary, capricious or patently absurd’ †and “ ‘resulted in
a manifest miscarriage of justice.’ †(
p. 828.) Defendant argues that the trial
court excluded the evidence because it found that the rape of Anderson was not
probative of a character trait for physical violence. He maintains that the court could have
excluded any testimony on the sexual assaults and permitted her to testify
about Thompson’s physical abuse.
The trial court, however, did not refuse to let Anderson testify
simply because it found that the sexual assaults were not sufficiently similar
to the incident involving defendant and Thompson. The trial court concluded that the evidence
was not particularly probative because Anderson had no contact with Thompson
since 2003 and thus she did not know if he was still carrying a gun. The evidence was cumulative because the jury
heard evidence that Thompson was violent and that he sometimes had a gun.
Defendant complains that the jury heard little evidence regarding
Thompson’s propensity for violence. He
acknowledges that he testified about what he knew about Thompson’s propensity
for violence, but the jury was instructed to consider his testimony “for the
limited purpose of showing its effect on the defendant and not for whether it’s
true or false.â€
Defendant downplays the significant evidence in the record evincing
Thompson’s character. Beckman testified
that Thompson slapped her once and the jury heard Adams’s testimony that Beckman
told her that she separated from Thompson because of the physical abuse. Permenter disclosed that Thompson had pulled
a gun on her. Additionally, the court
admitted documentary evidence that Thompson had a conviction for being an
ex-felon in possession of a firearm and the jury saw the e-mail sent to
Permenter containing a photograph of Thompson holding a firearm pointed at the
camera.
Given the plentiful evidence that Thompson had a firearm and was
violent, the trial court did not act improperly when it ruled that Anderson’s
testimony was inadmissible. Anderson’s
contact with Thompson was more than two years before his death and she thus had
no recent information about his character.
Additionally, Anderson admitted that she is schizophrenic and had not
been taking her medication at the time she knew Thompson. Thus the trial court properly weighed its
concerns that Anderson’s testimony would require a mini-trial on precisely what
happened between Anderson and Thompson more than two years ago and whether her
mental condition had clouded her memory or distorted her perception of
events.
Even if we were to presume that the trial court should have permitted
Anderson to testify, any error was harmless under Watson. As already
discussed, the evidence had limited probative value because of its
remoteness. Moreover, as already
discussed, the jury heard evidence that Thompson could be violent and that he
carried a firearm. Accordingly, it is
not reasonably probable that there would have been a different result had the
jury heard Anderson’s testimony.
D.
Statement to the Police
police satisfied the requirements of Evidence Code section 1370 and that the
trial court abused its discretion by refusing to admit this police report into
evidence.
Evidence Code section 1370
establishes a hearsay exception for out-of-court statements made to law
enforcement officials by victims of assault or threats of assault if the
declarant is “unavailable†and the statements are “trustworthy.†(See, e.g., People v. Kons (2003) 108 Cal.App.4th 514, 523-526.) Evidence Code section 1370 provides the
following: “(a) Evidence of a statement by a declarant is not
made inadmissible by the hearsay rule if all of the following conditions are
met: [¶]
(1) The statement purports to
narrate, describe, or explain the infliction or threat of physical injury upon
the declarant. [¶] (2)
The declarant is unavailable as a witness pursuant to [Evidence Code
section] 240. [¶] (3)
The statement was made at or near the time of the infliction or threat
of physical injury. Evidence of
statements made more than five years before the filing of the current action or
proceeding shall be inadmissible under this section. [¶]
(4) The statement was made under
circumstances that would indicate its trustworthiness. [¶]
(5) The statement was made in
writing, was electronically recorded, or made to a physician, nurse, paramedic,
or to a law enforcement official.
[¶] (b) For purposes of paragraph (4) of subdivision
(a), circumstances relevant to the issue of trustworthiness include, but are not
limited to, the following: [¶] (1)
Whether the statement was made in contemplation of pending or
anticipated litigation in which the declarant was interested. [¶]
(2) Whether the declarant has a
bias or motive for fabricating the statement, and the extent of any bias or
motive. [¶] (3)
Whether the statement is corroborated by evidence other than statements
that are admissible only pursuant to this section. [¶]
(c) A statement is admissible
pursuant to this section only if the proponent of the statement makes known to
the adverse party the intention to offer the statement and the particulars of
the statement sufficiently in advance of the proceedings in order to provide
the adverse party with a fair opportunity to prepare to meet the statement.â€
The People respond that Mercer’s
statement to the police was inadmissible because defendant failed to give
adequate notice as required by Evidence Code section 1370, subdivision (c), and
the statement was not trustworthy. We
need not consider whether adequate notice was given because we conclude that
the trial court did not abuse its discretion when it disallowed this evidence
based on the statement not being trustworthy.
In the present case, Mercer made the
statement to the police in anticipation of litigation and, since he was the
victim, he was clearly interested in the litigation. (Evid. Code, § 1370, subd. (b)(1).) In addition, the surrounding circumstances
tended to show that the statement was untrustworthy. Another witness who was not arrested but
heard the comments between Mercer and the two women did not hear any reference
to a gun during the incident. This
witness heard an argument about money but heard nothing to indicate that a
robbery was taking place. Indeed, the
police appeared shortly after the incident but they did not find any gun in the
apartment or on Thompson.
Furthermore, when interviewed by Adams, Mercer’s rendition of what
happened differed significantly from his earlier statement to the police. Mercer reported to Adams that Thompson had a
gun and that Thompson robbed him when he passed Thompson, Thompson’s mother,
and others in front of their house. He
did not state that he went into the house and did not assert that Thompson
pointed the gun at him. In the police
report there was no mention of Thompson’s mother.
Finally, the court
considered the fact that Mercer did not appear in 2003 for the scheduled trial
of Thompson. He again failed to appear
in the present case despite being subpoenaed.
Defendant argues that
Mercer’s statements were trustworthy and relies on Chambers v. Mississippi (1973) 410 U.S. 284 and
997. These cases hold that the hearsay
rule might not apply when the out-of-court declaration has persuasive
assurances of trustworthiness. (
gave regarding the exact amount of money that Thompson took from him matched
the sums of money the police found on Thompson.
When the police searched Thompson’s jacket, they found one bundle of
bills amounting to $95 and a second bundle of bills amounting to $36, which
were precisely the amounts Mercer claimed Thompson took from him. Additionally, the police found Mercer’s keys
in Thompson’s jacket pocket.
Defendant argues that the
statements by the two women were untrustworthy and the witness who did not hear
anything about a gun was in a different room and not present during the
assault. Defendant also dismisses the
significance of Mercer’s failure to appear to testify at the preliminary
hearing in 2002 and in the present proceeding.
He points out that Mercer moved to Arizona and his failure to appear has
no bearing on his trustworthiness.
We disagree with defendant
that the trial court abused its discretion in finding that Mercer’s statements
were untrustworthy. Mercer claimed that
Thompson pointed a gun at him but no gun was ever recovered and there was no
corroborative evidence to support this statement. The fact that Mercer’s rendition of events to
Adams differed significantly from what he told the police was also
significant. We also disagree with defendant’s
argument that Mercer’s failure to appear at Thompson’s preliminary hearing or
the current murder trial of defendant was insignificant. It indicated that Mercer had some reason for
not wanting to testify and repeat the statements that he had made to the
police. The record contains no evidence
suggesting that Mercer failed to appear simply because he now lives in Arizona.
Accordingly, we conclude
that the trial court did not abuse its discretion in refusing to admit the
police report regarding Thompson’s robbery of Mercer. Furthermore, any error was harmless under
As already noted, the jury heard evidence that Thompson had a gun. The picture o
| Description | A jury found defendant guilty of second degree murder (Pen. Code, § 187, subd. (a)), and found true that he personally discharged a firearm that was the proximate cause of the death of the victim within the meaning of Penal Code section 12022.53, subdivision (d). Defendant, through his appellate counsel, maintains that the trial court abused its discretion and violated his constitutional right to a fair trial when it excluded evidence related to the victim’s violent character. His counsel on appeal also challenges the lower court’s ruling that qualified a detective as an expert and permitted him to testify about the expected location of shell casings if the gunman was in a particular position. |
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