P. v. Johnson

Filed 9/27/06 P. v. Johnson CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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To prove the attempted murder and assault charges against defendant Arties Johnson, Jr., the prosecution had to rely on the testimony of a brain-damaged victim and a volatile eyewitness with mental health and substance abuse problems as well as a 20-year history of criminal conduct. Defendant contends the trial court abused its discretion by excluding character evidence of the witness and by denying his motion for a mistrial after the victim blurted out prejudicial allegations of defendant’s prior conduct. Finding no abuse of discretion, instructional error, or incompetency of counsel, we affirm.

FACTS

Katherine Menefield testified that at about 1:30 a.m. on October 9, 2003, she and her friends, Rosa Elliott and defendant, pooled their resources to buy a “dime” of crack cocaine for $10 and a pipe for a dollar. After they shared the cocaine behind a Rite Aid drugstore, defendant became agitated and aggressive. He took out a butcher knife from the suitcase he was wheeling with him. Menefield saw him put Elliott in a chokehold and saw him strike her in the head, knocking her to the ground. Unable to get up, Elliott began shaking as if she was “going into some kind of fit or seizure” and urinated on herself. Defendant ordered Elliott to “‘[g]et your ass up.’” He insisted there was nothing wrong with her.

Menefield tried to intervene on her friend’s behalf and picked up the knife when defendant dropped it. Again defendant responded, “‘Ain’t nothing wrong with this bitch. Get up.’” He pulled Elliott up to a standing position and dragged her into the middle of the street. He hit her, and she fell down again. Menefield screamed for help and tried to stop defendant from continuing his attack. She saw defendant stomping on Elliott’s head with his foot. Her head was “busted open,” and there was blood running down the drain. The upper right side of her face and head appeared to be caved in, and she had a large amount of blood and fluids coming out of her nose and mouth. Defendant grabbed his suitcase and walked away toward a local McDonald’s.

Two men came out of a nearby apartment complex. Menefield solicited their help. When the police arrived, Menefield was still holding the knife. She was hysterical, afraid her friend was dying. A police officer took the knife from her. Crying, she kept repeating, “‘He did this to her, he did this to her.’” She identified the assailant as Art Johnson, a man Menefield had known most of her life, and provided a description of him. He was apprehended without fanfare a short distance away. Menefield identified him at a field show-up a few minutes later. He was transported to the county jail for questioning. The arresting officer testified that when he told defendant Elliott might not live, defendant insisted he did not know anything about it. Although defendant referred to Elliott as his wife and they purportedly had two children together, he never asked what happened to her, how she got hurt, or how she was doing.

Meanwhile, Elliott was placed on life support. At the time of trial, she could not walk and suffered from a permanent brain injury as a result of the beating. She was found competent to testify, but she was confused, she had slurred speech, and she testified from a wheelchair. At times she addressed defendant directly and accused him of beating her on different occasions. At one point she stated defendant had beaten a baby out of her. But she also claimed “Frederick Marshall” was the person responsible for her disabilities. Frederick Marshall is her son. His father, also named Frederick Marshall, had died 10 years earlier.

Defendant did not testify. His lawyer attacked Menefield’s credibility. The court allowed evidence that Menefield had been homeless on and off for years and had suffered from poor mental health and substance abuse. Specifically, the court allowed the defense to introduce evidence of Menefield’s convictions for a series of crimes relevant to her veracity, including petty theft, felony assaults on police officers, assault with a knife, brandishing a weapon, and resisting police, over a period of 30 years. The court did not allow the defense to introduce evidence of 14 other arrests for domestic violence, assaults, robbery, burglary, kidnapping, attempted murder, and resisting police officers. A jury convicted defendant of attempted murder and assault with great bodily injury under circumstances involving domestic violence. The jury found the great bodily injury allegations to be true, and the court found the prior conviction allegations to be true. Defendant is serving an aggregate term of 36 years to life in state prison.

DISCUSSION

I

We accept two of defendant’s premises. Nonfelonious conduct involving moral turpitude may be admissible to impeach a witness, including such crimes as assault by means of force likely to produce great bodily injury and the negligent discharge of a firearm. (People v. Wheeler (1992) 4 Cal.4th 284, 295 (Wheeler); People v. Feaster (2002) 102 Cal.App.4th 1084, 1093.) And, of course, evidence that a third party may have committed the crime for which a defendant stands charged is admissible if the third party was so closely connected to the crime a jury might find a reasonable doubt as to whether the defendant committed the crimes. (People v. Hall (1986) 41 Cal.3d 826, 834 (Hall); People v. Henderson (2003) 110 Cal.App.4th 737, 741.) Applying these basic precepts, defendant asserts that the trial court deprived him of a fair trial by refusing to allow him to introduce additional evidence to impeach Menefield and to suggest that she was the actual perpetrator of the injuries sustained by Elliott. We disagree.

The trial court retains broad discretion to determine the admissibility of impeachment evidence and evidence of third party culpability. (Evid. Code, § 352.) “[T]he latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. . . . . . . [I]mpeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.” (Wheeler, supra, 4 Cal.4th at pp. 296-297.)

Evidence Code section 352 applies as well to third-party culpability evidence. “[C]ourts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible ([Evid. Code,] § 350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion (§ 352). We recognize that an inquiry into the admissibility of such evidence and the balancing required under section 352 will always turn on the facts of the case. . . . . . . . . . Courts retain, moreover, a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice.” (Hall, supra, 41 Cal.3d at p. 834.)

As recounted above, the trial court allowed admission of 30 years of criminal convictions but excluded over a dozen other incidents including arrests and other bad conduct. The court concluded that the proof of these incidents “would take up an extraordinary amount of time and have little probative value.” The court reminded defense counsel that Menefield was not on trial, and while her credibility was certainly at issue, her long history of convictions gave the defense plenty of ammunition for impeachment. Thus, under Evidence Code section 352, the court found the admission of the other incidents of misconduct was minimally probative and would consume far too much time.

A trial court’s exercise of discretion under Evidence Code section 352 will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

We can find no abuse of discretion on the facts before us. The trial court was sensitive to its weighty obligation to provide defendant the opportunity to impeach the prosecutor’s key percipient witness and to raise a reasonable doubt that he was the perpetrator given the witness’s possession of the knife and her troubled past. Yet, as the court aptly pointed out, it was defendant, not Menefield, who was on trial. And she exhibited the strain of defendant’s piercing cross-examination into the facts surrounding her numerous criminal convictions. In fact, in the midst of her cross-examination, she stormed out of the courtroom screaming obscenities, and then absconded. The court was compelled to poll each of the jurors to determine what they had heard her say and to assure that they retained their ability to be impartial and objective. In short, the court was confronted with an extraordinarily volatile witness who, because of the infirmities suffered by the victim, was the only percipient witness to the beatings.

The jury, however, had ample opportunity to assess Menefield’s credibility. The evidence of the convictions was indeed similar to the evidence defendant sought to admit; that is, the misconduct demonstrated her propensity toward violence, her disdain for the police, her brandishing of weapons, and her disrespect for the property of others. The evidence that was admitted occurred over the same period of time as the evidence defendant sought to admit and involved a wide range of behavior demonstrating moral turpitude. In sum, the jury was presented with more than an adequate sampling of the witness’s “moral laxity.” (Elwell, supra, 206 Cal.App.3d at p. 177.) The cumulative nature of the evidence rendered its admission only marginally probative.

Moreover, the trial court made an eminently reasonable assessment that the cumulative evidence would consume an undue amount of time. In essence, what defendant demands is a trial within a trial. Misconduct spanning 30 years would require the examination of witnesses who might not be found or whose memories might have faded. As the jurors focused on the truth of the allegations defendant made against the witness, they could have easily lost sight that it was defendant who was on trial, not for events happening long ago, but for the discrete acts that occurred on the night of October 9, 2003. The court was well within the bounds of reason in determining that a trial on Menefield’s character would disrupt the orderly determination of defendant’s guilt or innocence of the charges against him.

As a result, on this record we can find no abuse of discretion in excluding the evidence. Defendant had ample opportunity to impeach Menefield, an opportunity he seized with great effectiveness. Because the additional evidence was cumulative in nature, it added little, if anything, to the damning evidence of the many convictions she suffered. And because of the number of other incidents of misconduct over such a protracted period, the admission of the evidence would have consumed an inordinate amount of time and distracted the jurors from their solemn duty to judge defendant’s conduct, not Menefield’s. In this context, the trial court properly excluded the evidence either to impeach Menefield or to suggest that she, and not defendant, beat Elliott and stomped on her head.

II

Defendant next asserts that his chance for a fair trial was irreparably damaged once the victim blurted out he had “beat the baby out of [her]” and, following the denial of his motion for a mistrial, his trial was constitutionally deficient. He fails once again to establish the requisite abuse of discretion to enable us to upset the trial court’s ruling. (People v. Silva (2001) 25 Cal.4th 345, 372.)

The record discloses that the victim remained in miserable shape at the time of trial. Her testimony is nearly incomprehensible and rarely responsive. She remained physically and mentally disabled at the time she testified. And as the lawyers and judge pointed out, her speech was slurred and very difficult to understand. To the extent she could be understood, she often gave inconsistent responses.

That is not to say that her unprovoked comment accusing defendant of such an egregious act of domestic violence was to be taken lightly. To accuse defendant of destroying the victim’s fetus had the obvious potential to prejudice the jury and compromise defendant’s right to a fair trial. The trial court, however, recognized the danger and instructed the jury to disregard the response. We assume the jury complied with that admonition. (People v. Sapp (2003) 31 Cal.4th 240, 300.) Under the circumstances presented here, we cannot say the court’s denial of the motion for a mistrial was an abuse of discretion.

There was some doubt as to whether the jurors could actually hear or understand what Elliott said. The trial court reiterated its belief that the comment might not have been heard because of the positioning of the victim’s wheelchair in the courtroom and the problems she had with her speech. But even if some, or even all, of the jurors were able to hear what she said, we cannot say the unsolicited remark fatally poisoned the jury. It is doubtful the victim’s testimony was of much consequence since her injuries precluded her from describing the events that transpired on the night in question and she obviously confused many events in her life. Thus, given a timely admonition to disregard the testimony, we conclude that defendant received a fair trial.

III

Defendant accuses his trial lawyer of incompetence, the prosecutor of misconduct, and the judge of failing to cure the lawyers’ misfeasance by ordering a new trial. The record discloses an eminently fair, if not perfect, trial. Defendant fails to demonstrate a reasonable probability that any shortcomings would have affected the jury’s verdict or undermined confidence in the outcome.

Defendant faults his lawyer for failing to investigate whether Elliott had a hysterectomy prior to her relationship with defendant and to cross-examine her on the subject; for failing to hire an expert to assess the impact of the injuries on Elliott’s memory; and for failing to investigate whether Elliott had been issued a new identification she, and not he, had been carrying. He dramatically inflates the impact that any or all of these minuscule bits of evidence would have had in this trial. There was no doubt that Elliott’s memory was impaired and expert testimony to reiterate the obvious would have served no additional purpose. Nor was the identification card of any significance. Even if, as defendant suggests, Elliott had been carrying a more recent card than the ones he was carrying with her name on them, this fact would not prove he had not been with her on the night of the beating. Defendant is grasping at straws.

But defendant insists that evidence that Elliott had undergone a hysterectomy would have minimized the harm to the defense occasioned by her claim that he had “beat the baby out of [her].” We cannot say defense counsel’s failure to explore the issue was legally deficient. (People v. Jennings (1991) 53 Cal.3d 334, 357.) First, he immediately objected and asked for a mistrial. As we pointed out above, it is unclear whether the jurors either heard or understood the remark at all. Defense counsel may have made the tactical choice not to draw further attention to the allegation. (People v. Terrell (1999) 69 Cal.App.4th 1246, 1253.) Even if he simply overlooked the medical report, we cannot say there is a reasonable probability that evidence of the hysterectomy would have exonerated defendant. (People v. Williams (1988) 44 Cal.3d 883, 937.) The prosecution had introduced evidence of defendant’s history of domestic violence. Thus Elliott’s outburst, while graphic, only added to what the jury already knew and therefore was unlikely to have impacted their ultimate decision, particularly in light of the overwhelming evidence of guilt.

Without any specificity or explication, defendant makes the sweeping allegation that “multiple instances of prosecutorial overstepping of the bounds in final argument resulted in a miscarriage of justice and require a new trial.” “‘”’A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘”the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’” [Citation.]’” (People v. Ochoa (1998) 19 Cal.4th 353, 427.) Nothing the prosecutor argued was so egregious as to infect the trial with unfairness, nor can we find deceptive or reprehensible methods designed to persuade the jury.

The trial court concluded that the prosecutor’s closing argument did not constitute grounds for a new trial. The court explained: “The arguments made by [the prosecutor] during closing arguments were not so egregious that they would have resulted in denial of due process. There were objections to some portions of the argument. Some of those objections were sustained. While they may have been sustained because the Court felt that they were not proper argument, that doesn’t lead to the conclusion that they created such unfairness that there was a denial of due process. I believe [the prosecutor’s] arguments were made in good faith, and that she attempted to comply with the rulings of the Court and the boundaries of law. Therefore, I find that there was not misconduct by the Prosecutor. Therefore, the motion for new trial is denied.”

The record supports the trial court’s ruling. Defense counsel was a vigilant advocate throughout the prosecutor’s closing argument, objecting to misstatements of the law and improper appeals to the jurors’ passions. But the court sustained many of those objections and instructed the jury to disregard the prosecutor’s statement. These minor transgressions did not, either individually or collectively, compromise the fairness of the trial. Defendant fails to explain how the prosecutor’s arguments infected the integrity of the proceedings, and we cannot see how any of the arguments, even if objectionable, were so egregious as to render the trial unfair. The trial court properly denied the motion for a new trial.

IV

Defendant recycles the familiar argument that the propensity instruction (here the 2000 revision of CALJIC No. 2.50.02) violates his federal constitutional right to due process. He objects to any inclusion of a preponderance of the evidence standard even if, as here, a multitude of instructions reiterate that proof of a prior crime involving domestic violence “is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged offenses” and that any inference proved by a preponderance of the evidence is “simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime.” (CALJIC No. 2.50.02.) He reiterates the familiar refrain that the propensity instructions impermissibly diluted the prosecutor’s burden of proof.

The California Supreme Court rejected these same arguments in upholding the constitutionality of the 1999 version of CALJIC No. 2.50.01, as defendant acknowledges, in People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016 (Reliford). That version of CALJIC No. 2.50.01 is identical to the 2000 revision of CALJIC No. 2.50.02 in its explanation of the law on permissive inferences and the burden of proof. We are in no position to reconsider the Court’s analysis or holding (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and by analogy to Reliford, we reject defendant’s argument that the 2000 revision of CALJIC No. 2.50.02 misstates the prosecution’s burden of proof.

DISPOSITION

The judgment is affirmed.

RAYE , J.

We concur:

SIMS , Acting P.J.

DAVIS , J.

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