P. v. Barnes

Filed 4/5/07 P. v. Barnes CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In case No. CC471971, a jury convicted defendant Greg Bruce Barnes of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1))[1] and found true the enhancement that he personally used a knife. ( 667.) To dispose of case No. CC587446, defendant pled guilty to possession of a billy club ( 12020, subd. (a)(1)), agreed to four years in state prison on both cases, and the prosecution dismissed the allegation that defendant was out on bail at the time of the offense. ( 12022.1.) This appeal challenges the trial courts refusal to require the assault victim to appear for an in-court identification by a defense witness after the prosecution rested.

FACTS

On October 29, 2004, Luke Hooven, the bar manager at the Ambassadors Lounge in San Jose, that night assisted security in clearing the club and the parking lot after closing. He observed five or six men in a semicircle around a car jawing or arguing with each other. [T]here were three guys with their backs to the cars and about four guys facing the front and we [security] kind of looped around them. Defendant was facing the cars. The victim, Chris Blodgett, was across from defendant somewhat at an angle. Defendant and Blodgett were not involved in the jawing. The first physical contact between any of the men was when defendant shoved and stabbed Blodgett.

Hooven later told an officer that he thought a fight was about to break out so he walked toward the men, and saw the guy that was in custody com[e] around the side [of the group] and poke a victim on the left side of his torso. . . . [T]wo guys separated the victim and the suspect and he said the victim realized that he had been stabbed.

Blodgett approached San Jose Police Officer Ronald Tabron, present with 19 other officers assisting security that evening, and said he had been stabbed and that defendant had done it. Tabron arrested defendant, who denied having any weapons. Tabron searched defendant and found a knife, whereupon defendant denied stabbing anyone. Officer Jeff Rickel transported defendant to jail.

At trial, Blodgett testified that he and four other men were outside the Ambassadors Lounge nightclub when it closed around 1:30 a.m. and they saw defendant standing with someone. That person was involved in a verbal confrontation with another person in the parking lot. Neither Blodgett nor defendant participated either verbally or physically in the conflict. However, there was jawing and trash talking going on and they were going back and forth swearing different things and you could just tell it was a heated situation. At trial, Blodgett denied that the people he was with were saying things such as Richmond, Richmond, or Richmond Gangsters, but when reminded of his testimony at preliminary hearing, he acknowledged that the people he was with were yelling out Richmond, Richmond. Blodgett grew up in Richmond. None of the people who were with Blodgett that night testified at trial.

Blodgett stated that at some point, one of the persons involved in the confrontation said something to one of Blodgetts friends and defendant walked over to Blodgett and stabbed him in the chest.

Defendant testified he had been at the club with his girlfriend, Rachael Sims. He denied being involved in a confrontation and claimed the officers suddenly arrested him as he was walking in the parking lot. Defendant denied ever using a knife.

Defendants girlfriend, Rachael Johnson, testified that she and defendant had come to the nightclub to have fun. When defendant went to get drinks, a five foot 10 inches to five foot 11 inches slim Black man with short hair and glasses asked her to dance. When she refused, he called her a stupid bitch and walked away. Johnson was surprised and shocked and she told defendant what happened when he approached with their beers. He told her not to worry about it, and they had the beer and danced the night away.

At some point, they had to go to the bathroom. Johnson emerged first and stood off to the side waiting for defendant. Another guy with dreads came and asked me to dance again and I told him no because I was there with my man and he called me a silly ho. And the next thing I know one of his buddies came up to me and slapped me on my butt and walked off to the same group of friends. The man with dreadlocks was tall. There was also a big burley [sic] guy and one had cornrows. They all kind of stank, kind of smelled like weed.

Johnson felt shocked and threatened. She told defendant about the second incident, but he had a nonchalant attitude. They decided to leave, but the slow dances started and they danced until the lights came up and everybody left the club. Defendants friend, Carlos, and his girlfriend walked out with them.

They got to defendants car and he opened the door and turned the key so the alarm was disengaged. Johnson got inside and then two thugs popped up at my door. The one with dreads was kind of crouched in front of the door telling me to leave and go with him. The other one was just kind of standing holding the door so I couldnt close it. Johnson wanted to get them to leave her alone, but at the same time she heard a ruckus coming from the back of the car, talking about the rims, the car, saying the car was nice shit, nice ass TV inside, this is a nice ass car. Johnson was afraid they were going to attack her and defendant and take the car.

Meanwhile, defendant was trying to get in the drivers door. Johnson saw three or four men coming toward them yelling and pulling up their shirts. One of the men was the man who asked her to dance earlier, the five foot 10 inches to five foot 11 inches Black man with glasses. Another of the men was the burly man, bigger than [defendant], probably about 6 feet, a lot huskier than he was too. Defendant yelled get out of here at Johnson; the two men near her rushed to the other side of the car and Johnson was able to run off. She saw three or four men basically coming towards [defendant] trying to cave him in as he stood by the drivers door. The two men who had asked her to dance earlier, including the one with glasses and the one who slapped her, were there. Johnson ran away down the street and found her sister whom she knew would be club hopping.

Johnsons sister drove her back to the Ambassadors Lounge. There was an ambulance there and police cars. Johnson had not noticed any police there when the men were surrounding their car. Johnson told an officer she needed to get defendants car keys, but he shooed me away and said this is a crime scene. Johnson never told the officer she had been attacked or assaulted by the goons who had approached you and your boyfriend. It also never occurred to her to contact the district attorneys office or the police because she was under the impression that they would be contacting me. Johnson stated [a] true investigation would take both sides of the story and take his side of the story and contact me even though defendant gave the wrong surname for her (she said they had only been dating a short time and he did not know her full name) and he thought she lived on another street (which, Johnson said, was understandable). Johnson was never contacted by any law enforcement officer or investigator for the police department, sheriffs office, or district attorneys office nor did she contact them.

Blodgett was recalled to the stand. He testified that he was not wearing glasses at the club. He admitted wearing glasses the first day in court, but he stated he uses them to read and work on the computer. He identified a photograph taken of him the night of the incident. He was wearing a Hawaiian-type shirt with a white or gray shirt with blood stains coming on from the left side. He did not have glasses on in the photograph.

A defense investigator testified that he interviewed Johnson at work for about 30 minutes on two occasions about a week apart during normal business hours. Johnson did not tell him anyone was wearing glasses but she stated the first man who asked her to dance was African-American and called her a bitch; the second man was 5-10, medium build, short dreadlocks, wearing jeans and a white polo shirt, whom she did not say called her a silly ho; and she described a third person in the parking lot as 6 foot 2, 250 pounds. She said that he stuck out because he was bigger than the rest.

Blodgetts internal organs were not damaged by the stabbing and his injury was moderate. He was released three hours after admission with a bulky bandage.

The jury convicted defendant as stated above and he was sentenced as agreed to state prison. This appeal ensued.

DISCUSSION

Defendant states that since his claim was self defense, it was prejudicial error for the court to refuse to allow an in-court identification of the victim because he was deprived of his constitutional rights to present a defense and due process. The identification would ensure that there could be no question that Mr. Blodgett and his friends were the people involved in the threatening behavior Ms. Johnson witnessed.

After the People rested, before Johnson testified, defendant asked the court to order the prosecutor to have Blodgett brought into the courtroom during Johnsons testimony so she could identify him as the person who first asked her to dance and first swore at her. The prosecutor objected because Johnson refused to return her telephone calls so the prosecutor was unable to ask her any questions and get her to further explain the identification of the people who were . . . allegedly in that group. Obviously, my concern is she would be unable to connect the victim to this group of people without being shown a single African-American male in the courtroom. Further, the prosecutor complained she had no opportunity to explore Johnsons bias or conversations she had with defense counsel. She stated the defendant was present at the trial every day and presumably report[ed] back to his girlfriend. And bringing the victim in and allowing the witness to identify the only other African-American male in the courtroom^[[2]] is highly prejudicial to the People and inappropriate under the circumstance. The prosecutor invited defense counsel to place on the record as an officer of the court his efforts to contact Blodgett before trial. Defense counsel responded, I guess I am being accused of lying, Your Honor.

The trial court stated the request was unusual and it wanted to do some research on it and noted that Blodgett was subject to recall. The court was concerned about the undue consumption of time and wondered [w]hy wasnt this done prior to trial and why wasnt he contacted? Why wasnt a photograph taken of him? Why wasnt the girlfriend here during his testimony so she could see him when he left the courtroom? Why wasnt a photographic lineup prepared with other African-Americans?

Later, after Johnsons direct testimony, the court stated the issue was whether the defense would be prejudiced by the court not allowing the defense to ask [Blodgett] to come back to court to be identified by a witness in this case. There is no case law that I can find that . . . indicate[s] that would be prejudicial and no case law that I could find that subject to recall means for the purpose of an identification in court as opposed to the purpose of testimony. [] The next factor the Court considered is that given the testimony of the witness Ms. Johnson, the Court believes that there is no doubt in anybodys mind that the person that she is describing is anybody but the alleged victim in this case. Identity of the alleged victim is not at issue for purposes of having him moreover identified with a live body in court. She said the guy with glasses and she said 510 and sometimes she said he was the thin guy. And this is according to her testimony the person who asked her for a dance initially and the person that was at the side of the car. So therefore, shes been able to distinguish between the three of them, meaning the three persons who were involved in the alleged fight with [defendant]. [] There was the really large man who was bigger than [defendant] and who is a large man. There was the person with dreadlock hair and the person with glasses. So there is no real necessity to have the alleged victim identified in court.

The court stated there would be an imprudent and undue consumption of court time for the jurors to wait for Blodgett to return to court and that it would be unduly suggestive to ask the witness is this the guy, he was the guy with glasses when he is the only [African-American] person standing in court. The court stated it obtained a photograph of Blodgett taken in the hospital which showed his face and that if it would be helpful, either party would be welcome to use it. The court denied the defense request.

During cross-examination, the prosecutor showed Johnson the photograph of Blodgett lying on a gurney being transported to the ambulance and asked if Blodgett was wearing glasses. Johnson stated, at this time, no. The prosecutor asked no other questions about the photograph. On redirect, defense counsel did not ask about the photograph. Blodgett was recalled to testify that he did not wear glasses in the club. The record does not show whether Johnson was present for that testimony; the defense did not recall her after Blodgetts rebuttal testimony.

Defendant asserts that the courts statement that it was clear Johnson was describing Blodgett was unfounded because the court denied the motion after Johnsons direct testimony but before cross-examination when her identification of Blodgett was called into question and before the prosecutions rebuttal case focused on Johnsons inability to identify Blodgett. Second, an in-court identification of Blodgett would not consume an undue amount of time. Finally, in-court identifications of defendants take place all the time and there are procedural safeguards available if it is anticipated that an in-court identification would be unduly suggestive. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1155.) The notion that a defendant can be identified in court but a victim-aggressor where self-defense is claimed cannot be identified in the same manner offends traditional notions of due process.

We conduct a two-step analysis to determine whether an identification procedure comports with due process. [Citation.] First, [the proponent] must demonstrate that the identification procedures were unduly suggestive. (United States v. Rogers (7th Cir. 2004) 387 F.3d 925, 936 (Rogers).) To determine whether an identification procedure is unduly suggestive, the court should ask whether anything would cause the person to be identified to stand out from the others present in a way that would suggest the witness should select him. (People v. Yeoman (2003) 31 Cal.4th 93, 124.) Second, we ask whether, under the totality of the circumstances, the identification was reliable despite the suggestive procedures. (Rogers, supra, 387 F.3d at p. 936.)

[R]eliability is the linchpin in determining the admissibility of identification testimony . . . . The factors to be considered are set out in [Neil v.] Biggers [(1972)] 409 U.S. [188,] 199-200. These include the opportunity of the witness to view the criminal at the time of the crime, the witness degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. (Manson v. Brathwaite (1977) 432 U.S. 98, 114.)

In this case, apparently the trial court would have allowed Johnson to testify that the man who first asked her to dance had testified at trial if she had been sitting outside the courtroom during his testimony. Or, she could have testified that the man who first asked her to dance was the person in the photograph lying on a gurney. Although Johnsons description of a five foot 10 inches to five foot 11 inches, thin man with glasses and short hair was not replete with detail, she did not mis-describe him.

The People find fault with the glasses and the height (Blodgett was not wearing glasses on the night of the stabbing; and Blodgett testified in the preliminary examination that he was approximately six feet tall). The Peoples first criticism is based on Blodgetts testimony that he was not wearing glasses that night and his photograph on the gurney. There was no evidence whether Blodgett was wearing glasses when he was placed on the gurney and whether they were removed when he was receiving treatment. The jury had seen Blodgett wear glasses on the first day of trial and he admitted it in his rebuttal testimony. Whether Johnsons memory of Blodgetts wearing glasses at the club was accurate was a matter for resolution by the jury and did not negate the fact that Johnsons description was accurate as far as it went. The second criticism, that Blodgett testified he was approximately six feet tall but Johnson said five foot 10 inches or five foot 11 inches, is ridiculous. As stated above, Johnsons description was accurate enough to provide evidence that she had seen the person in question at the time of the crime.

The next issue is the reliability of such testimony. Using the Biggers factors, Johnson had the opportunity to observe Blodgett face to face when he asked her to dance and to see him rejoin a group of men in the club. She saw him near defendants car during the frightening confrontation.

Her attention was drawn specifically to Blodgett when he stood face to face with her and asked her to dance. The first contact was made more memorable by his calling her a bitch when she refused his invitation; the later contact by the car evoked a high degree of fear in her.

Finally, the crime happened on October 29, 2004; Johnson testified at trial on November 8, 2005. That amount of time was not excessive; the effect, if any, on the witnesses memories was a matter for the jury to determine.

However, the trial court did not err in excluding the testimony. The admissibility of evidence is a matter for the discretion of the trial judge who may bar evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time. (Evid. Code, 352.)

Here, the totality of the evidence supported the trial courts exercise of discretion and defendant was not prejudiced thereby. First, defendants claim that he was acting in self-defense was not removed from the jurys consideration by the courts refusal to allow Blodgett to be recalled for a show-up in court. The jury heard Johnsons testimony about the incidents inside the club, her upset and alarm, defendants nonchalant response to them, their peaceful exit from the club, and the unprovoked attack on them by Blodgett and his friends or acquaintances. However, Johnson was not present when the stabbing took place and her identification of Blodgett would not establish the circumstances which caused defendant to believe self-defense was necessary.

Whatever motive there was for a brawl outside, defense counsel elicited an acknowledgement from Blodgett that the people he was with were yelling out gang epithets. Counsel implied in closing argument that this was a motive for the brawl that followed. The excluded testimony, presumably that Johnson would say Blodgett asked her to dance and called her a bitch and was there during the brawl, would not have added force or strength to defendants position.

Furthermore, defendant did not take the opportunity the court extended for Johnson to identify Blodgett from the photograph, and, when Blodgett was briefly recalled to testify after Johnson and another short witness, defendant did not seize on that opportunity to have Johnson observe Blodgett when he left the court and identify him thereafter.

Finally, the evidence was overwhelming that defendant stabbed Blodgett without provocation. Luke Hooven, an uninvolved third party witness, saw defendant stab Blodgett. That was the first physical contact of the confrontation. Blodgett had not said anything to defendant or anyone else involved in the confrontation. At the time of his arrest, defendant did not claim that he had been defending himself; he chose merely to deny having been involved. When a knife was found in his possession, he denied that he had used it. Defendant was not deprived of his due process or Sixth Amendment rights to present a defense. Under either Watson as the People assert or Chapman as defendant argues, the error was harmless. It was not reasonably likely that the outcome would have been more beneficial to defendant if the evidence had been admitted (People v. Watson (1956) 46 Cal.2d 818, 836) and the exclusion of the evidence was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)

DISPOSITION

The judgment is affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

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[1] Further statutory references are to the Penal Code unless otherwise stated.

[2] There was a female African-American juror.