P. v.
Filed 11/7/13 P. v. Jackson CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff
and Respondent,
v.
ANDRE JACKSON,
Defendant
and Appellant.
B241930
(Los
Angeles County Super.
Ct.
No. YA071275)
APPEAL
from a judgment of the Superior Court
of
County, Mark S. Arnold, Judge.
Affirmed as modified.
Eric
R. Larson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson,
Supervising Deputy Attorney General, and Robert M. Snider, Deputy Attorney
General, for Plaintiff and Respondent.
____________________________
>
Marie
Jackson (Marie)
title="">[1] was found dead in the trunk of her car in
1994.
husband, defendant and appellant Andre Jackson, was convicted in 2012 of first
degree murder and sentenced to 25 years to life in state prison. The only substantive issue
overruling objections to expert testimony of a former agent of the Federal
Bureau of Investigation (FBI), explaining his assessment of various aspects of
the murder. We hold the trial court did
not err in admitting the expert testimony, modify the judgment to award 225
days of conduct credits, and otherwise affirm.
A. Prosecution Evidence
1. Discovery of Marie’s Car and Body
Marie’s
body was recovered from the trunk of her impounded Saab automobile on November
15. Defendant had reported Marie missing
on November 12. Police were lead to
Marie’s car by Timothy Cunniff, a citizen who received a missing persons flyer
from defendant at Dockweiler Beach. Cunniff saw the car described in the flyer
shortly thereafter. He was surprised
defendant had not seen the car, because there were no other cars in the
area. The Saab was locked and the
battery had been removed. The Saab could
only be locked from the outside with keys, but no keys were located.
Marie
was found wearing grey stretch pants, a purple nylon jacket, white tennis
shoes, and a bra. She had on one earring
and a wedding band. Forensic evidence
was collected, including a blood drop from the hood of the Saab and scraping
from under Marie’s fingernails.
2. Marie’s
Disappearance
Marie
and defendant married in March. They
lived in a secure condominium complex in Inglewood
with their son Marquis, Marie’s son Marcus (from a previous relationship), and
defendant’s children Andrea and Andre, Jr. (also from a previous relationship). In October, a police officer was dispatched
on a domestic violence call to the home, but no arrests were made and no report
was written. Marie told friends on
November 10 that she was thinking of ending her marriage to defendant.
On
November 11, the day of her disappearance, Marie went shopping with a close
friend, Jean Jones Apfel, along with Marie’s sons Marcus and Marquis. She was not wearing the same clothes she wore
at the time her body was recovered.
Andre,
Jr., had a football game on the night of Friday, November 11, which defendant
attended. Andrea was at her grandmother’s
house that night. Marie was last seen by
Marcus at home before he fell asleep.
When he awoke, Marcus discovered that Marquis was crying and Marie was
not at home. Marie had never left them
home alone in the past. Marcus placed a
call for help, explaining they had been left alone. Defendant called Marcus to ask of Marie’s
whereabouts.
Defendant
reported Marie as missing on Saturday, November 12. Defendant explained to police that he had
returned home the prior evening, found that Marie had been drinking, and he
left home after arguing with her. When
he came home later that night, Marie and her Saab were gone. Defendant told an officer he contacted family
and friends, looking for Marie, before calling the police. He cut short the interview with the officer,
stating he had a previous engagement, which struck the officer as odd under the
circumstances.
Defendant
went to the home of Jean Jones and Raymond Apfel on the night of Marie’s
disappearance, asking if they had heard from her. Raymond noticed defendant had a swollen lip,
which defendant said was from bumping into his son’s football helmet. Jean Jones saw that defendant’s hand was
scratched, as did another friend that weekend.
That
weekend, friends unsuccessfully checked Marie’s credit cards for activity. They helped defendant prepare the missing
person flyer. When told the flyers were
of low quality, defendant said the information about the car was the important
part. Defendant suggested the flyers be
distributed at the beach and by his mother’s house. The suggestion to hand out flyers at the
beach seemed odd to Marie’s friends, as she was not known to go to the
beach. One friend asked defendant what
had happened, and he said Marie had followed him to the garage and he dressed
her.
Marie
missed her weekly hair appointment on Saturday, which had never happened
before, causing her hairstylist to call Marie at home. Defendant told her Marie had been drinking
and “stormed out of the house†after an argument. Defendant cut short the call by saying he
needed to attend to plumbing problems.
The stylist described Marie as someone with a very strong personality
who was “real concerned†with her appearance, and friends testified Marie was a
meticulous dresser who would not leave home in the clothes she was wearing when
her body was recovered. The stylist and
other friends did not believe Marie would ever leave her children
unattended. In a conversation on Sunday
evening, November 13, defendant told the stylist and another friend that he had
not heard from Marie but had been paged a couple of times, and he believed one
page was from a club in Mexico, where he felt she had gone with an
ex-boyfriend.
Marie’s
credit cards were found on a freeway onramp in Inglewood on November 15, less
than two miles from her home. They had
not been used after her disappearance.
3. Autopsy
and DNA Results
The
medical examiner concluded Marie died of manual strangulation. Death had occurred three to seven days before
discovery of her body. She had injuries
to her head, face, and neck that were consistent with resisting during a
struggle. Her blood alcohol level was
.12, although decomposition of the body may have elevated the result. There was no sign of sexual assault.
In
2005, the FBI analyzed the blood stain from the Saab and Marie’s fingernail
scrapings, both of which matched defendant’s DNA profile. Defendant was a major donor of the DNA from
the fingernail scrapings, an unusual result, because typically the major donor
would be the person whose fingernails were sampled.
4. Defendant’s
Conduct After Being Advised of Marie’s Death
When
Detective Russell Enyeart returned to the Inglewood Police Station from the tow
yard where the Saab had been impounded, he learned that defendant was waiting
in the lobby. Detective Enyeart was
surprised defendant was at the station, as no one had been notified about
recovery of the car. In an interview
with the detective, defendant said that on the night of Marie’s disappearance,
he left work at 5:00 p.m. and arrived home between 5:10 p.m. and 5:15 p.m. Defendant had planned to go to his son’s
football game with Marie but told her to stay home because she had been drinking.
When he returned from the game, Marcus
and Marquis were alone in the house. According
to defendant, Marie was supposed to drive to his grandmother’s house that
evening to pick up Andrea but failed to do so.
When
Detective Enyeart advised defendant that his wife’s vehicle had been recovered
and the body of a female was discovered in the trunk, defendant immediately
fell to the floor, screaming and kicking his legs to the point of being
hysterical, causing the detective to terminate the interview. Detective Enyeart had never seen a male
respond in this fashion, which included a minimum of 300 notifications of
victim deaths.
On
November 30, defendant contacted Detective Enyeart and inquired if there was
any additional information regarding the investigation. The detective informed defendant he was the primary
suspect, and if defendant had any information regarding a motive or suspects in
the murder of his wife, he should provide that information to be investigated
and eliminate suspicion on him. Defendant
said it was not his job, it was the detective’s job to investigate the crime. The detective was taken aback by the comment,
which he documented.
5. Testimony of Mark Safarik
Safarik
is the executive director of Forensic Behavioral Services International, a consulting
firm that specializes in the analysis and interpretation of the dynamic
interaction between offenders, victims, and locations in violent crime offenses. He has a bachelor’s degree in human
physiology and a master’s degree in criminal justice. He has approximately 30 years of law
enforcement, including 7 years with a university police department followed by
various assignments as an agent for the FBI.
In
1995, Safarik joined the FBI’s National Center for the Analysis of Violent Crime
(the Center), “the profiling unit,†working as a liaison between the FBI’s Behavioral
Analysis Unit and local law enforcement agencies that request analysis of a
case. Safarik worked in the Center from
1995 to 2007, when he retired from the FBI.
He had ongoing training with the FBI and trained and lectured to over
20,000 others.
Safarik
has been involved in empirical research and has been published in journals and
textbooks, particularly in the area of sexual homicide of elderly females. He worked on or reviewed in excess of 4,000
crime scenes.
Criminal
investigative analysis is a process that analyzes a violent crime scene from a
behavioral and physical evidence forensic standpoint. His role is to do the analysis and interpret
that information to understand what happened at a scene, and how and why it
happened. He conducts what formerly was
called the criminal profile but really is an unknown offender assessment. His role is not to identify the perpetrator
of a crime.
In
this case, he performed a crime scene assessment, that is “irrespective of who
committed the crime.†From an analysis
of the crime and the behavior at a crime scene, he can sometimes draw specific
conclusions about the crime or the motivation for the crime depending on the
unique attributes of a case. The purpose
of his analysis was to behaviorally and forensically assess the crime and crime
scene dynamics through the interaction of the offender or offenders, Marie, and
the location, in order to determine whether the crime scene had been staged, to
focus on why the homicide occurred, and if an opinion could be rendered as to
the offender’s motive.
Safarik
treated defendant as a witness in his analysis and not as a suspect, because
his role was to focus on the analysis of the crime scene. Defendant provided information as a witness
that was part of the timeline of the offense. In drawing conclusions from the crime scene,
Safarik did not consider defendant’s conduct regarding Marie’s credit cards,
passing out flyers in the area where her body was recovered, the scratches
observed on his hands, or the presence of blood containing defendant’s DNA on
Marie’s Saab.
Safarik’s
testimony reviewed the evidence he relied upon in conducting his analysis. Because no argument is made on appeal that
Safarik relied on facts not contained in the evidence introduced at trial, we
focus primarily on his conclusions, making only limited references to the
evidence when necessary.
Among
the conclusions reached by Safarik were the following:
—Marie
was described as a very self-confident woman who would not back down from a
confrontation and would not allow herself to be abused verbally or physically
without fighting back if a situation threatened her with injury.
—Marie
had no known enemies or ongoing problems other than marital issues. She never reported to any family members or
friends that she was being followed or harassed by anyone, nor was there
evidence to suggest she was involved in an extramarital affair.
—Marie
was known as a loving mother, particularly in regard to her own children,
Marcus and Marquis.
—Marie
was very conscious of her appearance, wearing color coordinated and appropriate
clothing ensembles for the activity in which she was engaged.
—Marie’s
townhouse was accessed through a remote controlled gate. Access to the front doors of the townhome
development was blocked by a security gate and fence. A stranger would have to assume a high level
of risk to access Marie within a secure townhome complex. There were many residences without security
barriers in the immediate vicinity that afforded less risky access.
—Crime
statistics for the area of the family residence made it unlikely, based on the
location and time of the homicide, that Marie was randomly selected by an offender
operating within the geographic area of his choice. She was specifically targeted by the offender
because of who she was personally and what this represented to the offender.
—There
was nothing observed in the dynamics of this crime to indicate that Marie
placed herself into a situation in which risk to her was elevated. There was nothing to indicate that Marie intentionally
abandoned eight-year-old Marcus and eight-month-old Marquis alone at night in
order to go jogging on a beach some distance from her residence.
—The
evidence suggests the victim was not killed in her vehicle but rather at her
residence.
—Marie’s
body was placed inside the trunk area of her 1991 Saab by the offender. There was nothing either forensically or
behaviorally to indicate that Marie was contacted by the offender while in the
vehicle and subsequently killed.
—An
offender elevates the risk level by engaging with the victim or the scene
subsequent to committing the homicide.
—The
offender drove Marie’s vehicle to a small turnout on the road, locked the
vehicle, and removed the battery. The
Saab was left on a well travelled boulevard, directly west of the Los Angeles International
Airport and adjacent to the Dockweiler Beach.
These actions caused the offender to remain at the scene and
significantly elevate the risk of being identified or contacted by law
enforcement.
—The
offender was committed to moving Marie to a different location than where she
was killed and ensuring that the vehicle would not be moved or stolen. This level of commitment indicates a very
mission-oriented offender who engaged in very high risk behavior to further his
goals.
—Marie
was killed at her home because the offender had access to her there at that
time of the day, as well as the privacy to interact with her.
—The
medical examiner’s report indicated Marie’s legs were bent forward toward the
hip area. She would not have fit into
the trunk area with her legs extended. Her
right leg was pushed ahead of her left, in a position consistent with the
offender having pushed her further into the interior of the trunk by pushing on
her right buttock and leg area.
—The
cause of death was listed by the medical examiner as manual strangulation. There was evidence of a single pre-death blow
to the head. In order to manually
strangle someone to death, a significant amount of pressure must be applied for
a continuous time period, usually consisting of several minutes. During this time, the offender must contend
with the victim resisting the strangling by attempting to remove the offender’s
hands from the neck. Many offenders
initially resort to using blunt force trauma to subdue or incapacitate the
victim in order to render them easier to strangle. When victims of strangulation have minimal or
no blunt force injuries, it indicates that the victim did not perceive the risk
to which she was exposed until it was too late, or she did not possess the
physical strength to resist.
—Manual
strangulation is usually considered a personal crime, with the notable exception
of serial offenders. The reason the
offender resorts to manual strangulation has to do with the rapidly escalating
conflict situation and the lack of immediate access to a weapon. As a result, the offender uses what he has
access to, his hands and much less often his feet. A situation arises between the offender and
the victim that escalates quickly from a verbal confrontation to a physical assault
that ultimately ends in homicide, with little or no time to find a weapon.
—Marie
went shopping with her two sons and a friend on November 11, with Marquis in the
infant car seat that was always in the back of the car but had been removed
from the Saab at the time it was recovered.
—Marie
was not a jogger or runner and did not like the Dockweiler Beach area. There is nothing that can logically account
for Marie changing her clothes into jogging attire, removing the infant car
seat from the back seat of the Saab, and driving to the beach in order to go
jogging while leaving her sons alone.
—Marie’s
Saab has an electronic locking system that allows the vehicle’s front doors and
hatch to be locked from the outside using a key, unless one manually overrides
the system by reaching across to the driver’s side, locks the door, and then
exits from the passenger side after locking that door. This scenario requires specialized knowledge
of the locking options for this uncommon vehicle.
—The
hood of the Saab, which also has a unique opening mechanism, can only be
released by pushing the inside release handle under the left dashboard. Removal of the battery from the vehicle
complicates the locking of the vehicle and significantly elevates the risk to
the offender. If the offender popped the
hood and removed the battery, there would be no electricity available to lock
the vehicle with the key from outside the driver’s door. In order to lock the car with the key, one
would have to make sure the hood had been popped open before exiting the
vehicle and lock it from the outside in order to lock both doors and the hatch,
and finally, open the hood and remove the battery.
Removing
the battery required the use of a 10-millimeter wrench or socket to loosen the
battery terminals, since the terminal wires were not damaged. The offender either had the necessary tools
to effect the removal of the battery and brought them with him to the crime scene,
or knew the necessary tools were stored in the right wheel well of the
car. Either scenario required knowledge specific
to that particular vehicle.
—Nothing
at the crime scene indicated either forensically or behaviorally that sexual
assault was a motive. Marie was not
sexually assaulted, and her clothing was not in disarray.
—Offenders
often kill in the course of financially motivated crimes. The level of violence, the lack of ransacking
and theft, and the postmortem activity engaged in by the offender are
inconsistent with a motive of financial gain.
The offender did not need to kill Marie in order to successfully rob her. There was nothing observed to support the
hypothesis that Marie had been initially contacted at her residence by an offender
intent on committing a home invasion
robbery. Marcus was never contacted
by an offender either securing or searching the residence, and nothing at the
residence was disturbed, searched, or taken.
A murder for financial gain would not explain Marie’s change of
clothing. Assuming Marie left the
residence of her own volition and was attacked by an offender at some public
location, the failure to take her vehicle, jewelry, or take and use her credit
cards, later recovered on a freeway onramp in a bundle, is inconsistent with a
financial gain crime.
—The
movement of Marie’s body to the trunk, driving the vehicle with the body to a
high-visibility location, locking the car, and then removing the vehicle’s
battery is completely inconsistent with offender behavior in financial gain
offenses.
—A
thrill killing was also considered but readily dismissed because there was
nothing identified that was consistent with that motive.
—A
commonly identified motive in homicide is personal cause with the interpersonal
conflict between two people at the root for the homicide of one of them. The important question is why someone would
elevate their risk level by remaining with a vehicle containing a dead body in
a highly public place in order to take out an old, dirty battery and remove it
from the scene. There is no logical
reason for an offender who was a stranger to Marie to remove the infant car
seat.
—This
was a homicide that resulted from interpersonal aggression between the offender
and Marie, who was the primary target. The
offender used a personal weapon, his hands, to effect the homicide, instead of bringing
a weapon with him or obtaining one from the scene.
—There
are three primary manifestations of offender behavior at crime scenes that
provide significant information: modus
operandi; ritual; and staging. Staging
behavior is the intentional and purposeful manipulation of the behavioral
and/or forensic evidence found at the original crime scene. Staging at a crime scene is an effort by the
offender to create a new or different scene and a new motive for the purpose of
misdirecting the investigation. The
offender attempts to overwhelm what would otherwise be a law enforcement
investigator’s logical deduction regarding what occurred, perceiving that
without an attempt to redirect the investigation, law enforcement would quickly
focus on him as a logical suspect due to a preexisting relationship with the
victim, the location, or both.
—To
determine if staging has occurred, the totality of the circumstances of the
crime must be considered, including every observable behavior being analyzed
and reconciled with the logic of the available forensic evidence, crime scene reconstruction,
and the victim. Logical crime scene
attributes, both forensic and behavioral, that are noticeably absent from the
scene must also be considered. It is
important to consider what occurred prior to, during, and after the homicide
when constructing the most probable sequence of events.
—Safarik
was of the opinion the offender engaged in extensive and unnecessary
post-offense staging activity with Marie, and his primary motivation was her
death. This would indicate the offender
was not a stranger, but someone who had a personal relationship with Marie.
—There
was nothing investigatively, forensically, or behaviorally to indicate Marie
was aware of the threat to her life until it was too late.
—The
offender attempted to stage the crime by redressing Marie in the clothes he
thought would be interpreted as jogging attire, placing her into the hatchback
area of her vehicle, and driving to Dockweiler Beach, where he parked the car
alongside the road to make it appear as if Marie left her residence of her own
volition in her vehicle to go jogging.
—By
putting Marie at the beach, the offender hoped the police would conclude she
was killed by an unknown offender who happened upon her by opportunity. The staged motive appears to be the weakly
offered theft of the credit cards, immediate financial gain, and robbery. The credit cards and her identification were
found a couple of days later, none of the cards had been used, and the offender
also failed to remove any valuables from Marie’s body.
—Instead
of taking the car, the offender removed the battery and locked it up. He did this anticipating that police looking
for the car would find it quickly and recover her body at the beach, suggesting
she went there on her own.
—This
crime was staged to make it appear the offender’s motive for this homicide was
financial gain but was poorly executed with no continuity or nexus between the
actions. The offender failed to consider
the appropriateness of the staged scenario and failed to follow the actions
through to their logical conclusions.
—The
offender acted alone; that is, there was nothing observed at the murder scene
to indicate that more than one offender was involved.
Defense
Defendant
returned home between 5:10 and 5:20 p.m. on November 11, planning to go to his
son’s football game with Marie. Marie
had been drinking but was not drunk. Defendant
went to the football game with his son, leaving Marie lying on the bed. Defendant went onto the field after the game,
where he was bumped on the lip by his son’s helmet during the celebration.
Defendant
called home at around 7:30 p.m. Marcus
answered the phone. Defendant asked
where Marie was, but Marcus did not give him an answer. Defendant assumed Marie was in the house but
was out of earshot of the call, so he said he would call back.
Defendant
returned home, noticing that Marie’s car was not in the garage. He was never with her in the garage that
night, nor did he dress her. Marcus and
Marquis were home alone. Marcus said
that he last saw Marie while he was watching cartoons. Defendant tried reaching Marie by phone and
pager, and then went with his children to his grandmother’s house to pick up
his daughter and to see if Marie was there.
Defendant
contacted several people, looking for Marie. He called the police and was told he could
file a missing person report the next day.
Defendant
went to several friends’ homes the next day.
He had no cuts or bruises on his hands.
He filed a missing person report with the Inglewood Police Department. Along with friends, defendant created a
missing person flyer. A friend called Marie’s
credit card companies to see if the cards had been used.
Defendant
distributed the flyers in various areas, including Dockweiler Beach, where he
came in contact with Cunniff. Defendant
did not drive Marie to Dockweiler Beach. He went to Dockweiler Beach because he had an
appointment with a psychologist whose office was nearby. He did not urge others to post flyers at Dockweiler
Beach.
Defendant
went to the Inglewood Police Department with his sister Ronda on November 16,
because of a lack of response to his calls.
The interview ended when defendant was told Marie’s body had been
recovered, which resulted in defendant breaking down.
Detective
Enyeart told defendant several times on November 18 that he was convinced
beyond a shadow of a doubt that defendant killed Marie. The detective made the same accusation to
several other persons.
Defendant
went to retrieve Marie’s car from impound on November 30, where he discovered
the battery was missing. The blood on
the hood of the car was not his.
Defendant
described having a happy marriage to Marie, getting along well and engaging in
sexual relations. They did not engage in
a physical fight in October 1, 1994. No
family meeting about a breakup ever took place. Defendant denied killing his wife or knowing
who had killed her.
Friends
and coworkers described defendant and Marie as having a loving relationship. Numerous witnesses expressed the opinion that
defendant was nonviolent, peaceful, and honest.
Multiple
witnesses, including Detective Enyeart, testified they did not observe any
injuries to defendant’s hand.
A
forensic pathologist testified Marie was more likely to have been dead for only
three or four days, rather than for five days. The failure to use a sexual assault kit and
conduct a sexual assault examination resulted in a lost opportunity to collect
bodily fluids and trace evidence.
Defendant’s
DNA expert agreed that defendant’s DNA matched that of the blood found on the
Saab and under Marie’s fingernails.
There was nothing unusual about the amount of defendant’s DNA under
Marie’s fingernails, which could have resulted from normal activities.
Brent
Turvey, an expert in the area of criminal profiling, expressed the opinion that
while profiling can be useful before a suspect is identified, it should not be
used where there is a known suspect.
This opinion is consistent with FBI studies and protocol.
DISCUSSION
I
Defendant argues the trial court
committed prejudicial error by admitting Safarik’s testimony in violation of
Evidence Code sections 800, 801, and 352, as well as his federal constitutional
right to due process of law. Defendant specifically complains that Safarik
was allowed to express his expert opinion that Marie was not killed: by a stranger; by more than one person; during
a robbery; or during a sexual assault.
Safarik was further allowed to testify that Marie was killed: at her residence; by someone who was close to
her; by someone who was familiar with her residence; by someone who had a
personal motive to want to kill her; and by someone who wanted the police to
falsely believe she went jogging at Dockweiler Beach.
A. Background
The
trial court held a lengthy pretrial hearing on the admissibility of Safarik’s
testimony. The court considered each of
the 47 points contained in Safarik’s report and ruled on defendant’s objection
to the entirety of the testimony, as well as specific objections on individual
aspect of the opinion. The court
overruled the general objection and the majority of the individual objections
but did sustain objections relating to Marie’s conduct on various grounds,
including that the proposed opinion was cumulative to the testimony of lay
witness in some areas and substantially more prejudicial than probative under
Evidence Code section 352. An opinion
relating to the disabling of the Saab was also sustained under Evidence Code
section 352. The court ordered one
portion of an opinion modified to delete objectionable language. The court sustained objections to Safarik’s
opinions that (1) “Staging in this crime
was poorly executed with no continuity or nexus between the actions. The offender failed to consider Marie’s
victimology and the appropriateness of the staged scenario,†and (2) “the offender failed to follow the actions
through to their logical conclusions.â€
B. Expert Opinion, Crime Scene Analysis, and Profiling Evidence
A
witness may testify as an expert, in the form of an opinion, on “
subject that is sufficiently beyond common experience that the opinion of an
expert would assist the trier of fact.â€
(Evid. Code, § 801, subd. (a).)
Admission of expert witness opinion testimony is reviewed under the
deferential abuse of discretion standard of review. (People
v. Fuiava (2012) 53 Cal.4th 622, 672; People
v. Wallace (2008) 44 Cal.4th 1032, 1062-1063.)
Crime
scene analysis that is “relevant, probative, and not unduly prejudicial†is
admissible in a criminal action. (
148; People v. Robinson (2005) 37
Cal.4th 592, 643-644.) Expert opinion
testimony on crime scene analysis is not prohibited on the ground the jurors
may have some understanding of the sequence of events as a matter of common
sense, because “[e]xpert opinion on crime
scene reconstruction generally is
admissible†(People
v. Farnam (2002) 28 Cal.4th 107, 162), and the jury need not be wholly
ignorant of the subject matter of the opinion in order to justify its admission
(People v. McAlpin (1991) 53 Cal.3d
1289, 1299-1300 (McAlpin)). “Notwithstanding the ability of jurors to
review the evidence before them and draw commonsense inferences, it may aid
them to learn from a person with extensive training in crime scene analysis,
who has examined not only the evidence in the particular case but has in mind
his or her experience in analyzing hundreds of other cases, whether certain
features that appear in all the charged crimes are comparatively rare, and
therefore suggest in the expert’s opinion that the crimes were committed by the
same person.†(People v. Prince (2007) 40 Cal.4th 1179, 1223 (
The
admissibility of profile evidence has been treated somewhat differently than
crime scene analysis testimony. “A
innocuous—characteristic of certain crimes or criminals, said to comprise a
typical pattern of behavior. In
testimony, the expert compares
the behavior of the defendant to the pattern or profile
and concludes the defendant fits the profile. (See People v. Robbie (2001) 92
Cal.App.4th 1075, 1084 [(Robbie)];
see also People v. Smith (2005) 35 Cal.4th 334,
357, 358 [(Smith)].)†(Prince,
supra, 40 Cal.4th at p. 1226.) As explained in Robbie, supra, at pages
1084-1085, “[p]rofile evidence is generally inadmissible to prove guiltâ€
because it is premised on a false assumption:
“criminals act in a certain way; the defendant acted that way; therefore,
the defendant is a criminal. Guilt flows
ineluctably from the major premise through the minor one to the conclusion. The problem is the major premise is faulty. It implies that criminals, and only criminals,
act in a given way. In fact, certain behavior
may be consistent with both innocent and illegal behavior, as the People’s
expert conceded here.â€
Prince, supra, involved the testimony of FBI Special Agent Ankrom, who had “significantâ€
qualifications
as a crime scene expert, consisting of 13 years as special agent for the FBI
and 5 years in the same unit as Safarik.
(Prince, supra, 40 Cal.4th at
p. 1220.) “Ankrom received two
years of intensive training in criminology and other academic topics and, more
specifically, was trained to review comprehensive information concerning crimes
and to perform a ‘criminal investigative analysis’ of the case material for
various purposes, including to develop a profile of the perpetrator, to make
recommendations on interview strategy, and to give advice regarding ‘linkage’
between potential serial crimes.†(
Ankrom had experience as an active agent, had reviewed
information regarding hundreds of crimes, and offered expert advice to other law
enforcement agencies. (
by looking for common methods of operation among groups of crimes—that is, the
methods used by the criminals to complete their crimes and to achieve the
intended murder, rape, or other crime. In
addition to identifying common methods among a series of crimes, the agents
look for signature elements—actions that were not necessarily involved in or
necessary for completing the crimes, but that served as distinctive common
denominators among the crimes.†(
committed by the same person†in Prince. (Ibid.)
In
upholding admission of Ankrom’s testimony, the Prince court pointed out that Ankrom “did not evaluate defendant’s
behavior against a pattern or profile,†he “did not offer an opinion that he
believed defendant was the culprit, nor did he relate his findings to defendant
at all,†but “[i]nstead, he compared documentary evidence of the crime scenes
in the present case and, based upon his observation of common marks and his
experience, concluded the crimes had been committed by a single person. In any event, profile evidence does not
describe a category of always-excluded evidence; rather, the evidence
ordinarily is inadmissible ‘only if it is either irrelevant, lacks a
foundation, or is more prejudicial than probative.’ ([Smith],
supra, 35 Cal.4th at p. 357.) In sum, ‘[p]rofile evidence is objectionable
when it is insufficiently probative because the conduct or matter that fits the
profile is as consistent with innocence as guilt.’ (Id. at p. 358.)
p. 1226.)
C. Analysis
We
reject defendant’s contention that the trial court committed state evidentiary
error or federal constitutional error in admitting Safarik’s testimony. Prince
clearly establishes that testimony of this nature is admissible, subject to the
sound discretion of the trial court. (
To
the extent defendant argues Safarik’s testimony was substantially more
prejudicial than probative under Evidence Code section 352, the record is to
the contrary. The trial court engaged in
a thorough and thoughtful review of the admissibility of Safarik’s testimony,
admitting most of his opinions, but carefully excluding those that either did
not constitute true expert opinion, were cumulative, or unduly
prejudicial. Defendant makes no specific
argument that any individual component of Safarik’s testimony was subject to
exclusion under Evidence Code section 352, and our review of the detailed
record reveals no abuse of discretion.
The
argument that Safarik’s testimony should have been entirely excluded, as
running afoul of Evidence Code section 801, is without merit. The qualifications of Safarik, and the nature
of his expert testimony, cannot be materially distinguished from that of
Special Agent Ankrom in Prince, supra, 40
Cal.4th at pages 1219-1222. The special
agent in Prince opined that one
offender had committed six offenses; Safarik testified that Marie was killed by
a lone offender, who was described as someone close to her, based upon the
unusual circumstances of her murder.
Admission of Safarik’s opinion is consistent with the reasoning in
Defendant’s
contention that the jury did not need the assistance of Safarik’s opinions to
understand much of the evidence does not reflect the standard for admission of
expert testimony. An expert opinion may
assist the jury in evaluating the evidence, even when common sense would
explain its meaning. (
at pp. 1299-1300.)
The
trial court could reasonably conclude the jury would be assisted by Safarik’s
expert testimony. His analysis of all
the evidence could have assisted the jury in understanding that Marie’s murder
was committed by a lone killer who was close to her. This case involves the unexplained
disappearance of Marie from her secure home where her two young sons were under
her care, and the unusual circumstances in which she was recovered from the
trunk of her disabled car, in a location she did not frequent, and in clothing
she would not normally wear. The
significance of manual strangulation is not a matter of common knowledge and is
the proper subject of expert testimony.
Safarik’s opinion regarding the absence of evidence of robbery or sexual
assault of Marie helped to explain his conclusions regarding the staging of the
body and the car. In particular, Safarik’s
explanation of the staging element of Marie’s murder touched upon a subject
well beyond the common experience of jurors.
Defendant’s
characterization of Safarik’s testimony as inadmissible profile evidence
fails. Much of Safarik’s testimony
consisted of crime scene analysis, an indisputably admissible class of
evidence. Moreover, Safarik did not
compare defendant’s behavior to the characteristics of the killer. (Prince,
supra, 40 Cal.4th at p. 1226
[Ankrom’s testimony did not refer to the defendant or compare his conduct to
the profile created].) Safarik treated
defendant as a witness to certain events in the timeline of the disappearance
and discovery of Marie’s body in the Saab, but he specifically made no
reference to, and drew no conclusions from, highly incriminating facts such as
the DNA match of defendant to the blood on the car or the scrapings from under
Marie’s fingernails.
Assuming
portions of Safarik’s testimony were considered profile evidence, it does not
follow that the trial court abused its discretion by admitting the testimony. Contrary to defendant’s characterization of the
law, profile evidence is ordinarily inadmissible “only if it is either
irrelevant, lacks a foundation, or is more prejudicial than probative.†(Smith, supra, 35 Cal.4th at p. 357.) The trial court could reasonably conclude
that Safarik’s analysis of the evidence in this case was relevant to
determining who killed Marie and why, each of the opinions was supported by a
factual foundation established by trial witnesses, and the evidence was not
substantially more prejudicial than probative.
Safarik’s
testimony is not comparable to that found in the cases cited by defendant in
support of his contention that the trial court allowed inadmissible profile
evidence. For example,
by the prosecutor mirroring the conduct of the defendant as described by the
victim, and an expert’s response that the conduct was “‘the most prevalent type
of behavior that I’ve seen with sex offenders.’†The Robbie
court deemed this inadmissible profile evidence. (Ibid.) Nothing of a similar nature happened in the
instant case. Safarik was not asked to
express an opinion based on hypothetical questions tracking defendant’s
conduct. As pointed out above, defendant
was treated as a witness, and incriminating facts against him were not
considered in Safarik’s analysis of the crime scene and characteristics of the
killer.
Also
distinguishable are the drug courier cases cited by defendant, such as
Cal.App.4th 1. In Covarrubias, a narcotics agent testified at length to the
functioning of drug trafficking organizations.
(Id. at p. 16.) The defendant was charged with transportation
of marijuana and possession of marijuana for sale, but he was not charged with
conspiracy, nor was there evidence the defendant had a role in a drug
trafficking organization. (
The court held that admission of expert testimony “concerning the
structure and practices of drug trafficking organizations†was error, although
nonprejudicial. (Id. at pp. 18-19.)
cases in which the expert testimony is “‘irrelevant, lacks a foundation, or is
more prejudicial than probative . . .’†(Prince,
supra, 40 Cal.4th at p. 1226, quoting
Smith, supra, 35 Cal.4th at p. 357),
evidentiary defects not present in the instant case.
As
set forth above, we have rejected defendant’s state law contentions. Defendant’s due process violation arguments “are
without merit for the same reasons that defendant’s state law claims have been
rejected. (See People v. Ward
(2005) 36 Cal.4th 186, 211.)†(
Moreover,
as set forth above, the bulk of Safarik’s testimony consisted of crime scene
analysis, and there is no contention that his conclusions are not supported by
evidence presented at trial. Assuming
any portion of his testimony was inadmissible under Evidence Code sections 352
and 801, or the rules pronounced in Prince,
supra, any error was harmless. The evidence of guilt, apart from any part of
Safarik’s testimony that did not qualify as crime scene analysis, was
overwhelming. Most damaging was the DNA
evidence connecting defendant to the crime, which was not disputed by defendant’s
own expert except as to one minor point.
Defendant’s conduct from the time Marie disappeared was inconsistent
with innocence. Defendant has not
established prejudicial error. (
18, 24; People v. Watson (1956) 46
Cal.2d 818, 836.)
The
trial court awarded defendant credit for 1505 days in custody but no conduct
credits. Defendant argues that under the
version of section 2933.1 in effect in November 1994, when Marie was killed, he
was entitled to conduct credits equaling 15 percent of his custody credits,
amounting to 225 days. The Attorney
General agrees defendant was entitled to 225 days of custody credit under the
language of applicable version of section 2933.1.
DISPOSITION
The trial court shall amend the
abstract of judgment to reflect conduct credits of 225 days and deliver a copy
of the amended abstract to the Department of Corrections and
Rehabilitation. In all other respects,
the judgment is affirmed.
KRIEGLER, J.
We concur:
MOSK, Acting P. J.
KUMAR, J.
name="_ftn1" title=""> [1] For purposes of clarity, we
refer to multiple parties in the case by their first names because of a common
surname.
name="_ftn2" title=""> [2] All dates are in 1994,
unless otherwise indicated.
