P. v. Smith

Filed 3/27/07 P. v. Smith CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Steven C. Suzukawa, Judge. Affirmed.

Kathy M. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Paul M. Roadarmel, Jr., and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

INTRODUCTION

Defendant Jerome Ronnie Smith appeals from a judgment of conviction in a three-phase jury trial. In the first phase, defendant was convicted of the first degree murder of Anton Douglas (Douglas) and Ryan Logan (Logan) in counts 1 and 2 (Penal Code  187, subd. (a)),[1]with a true finding on the allegation of special circumstance multiple murders ( 190.2, subd. (a)(3)), and possession of a firearm by a felon in count 3 ( 12021, subd. (a)(1)). As to counts 1 and 2, the jury further found true firearm-use allegations under section 12022.53, subdivisions (b) through (d).

In the second phase, as to counts 1 and 2, the jury found a special circumstance based on a prior 1978 first degree murder conviction ( 190.2, subd. (a)(2)) and found defendant had suffered two prior serious or violent felony convictions within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).

In the third phase, the penalty phase, the jury returned a verdict of life without possibility of parole. Defendant was sentenced to life in prison without possibility of parole plus 35 years to life.

On appeal, defendant contends that the trial court failed to excuse two jurors who were improperly influenced by extraneous information, and defendants counsel was ineffective in failing to object to the prosecutors alleged misconduct and testimony from a detective. We disagree and affirm the judgment.

FACTS

Prosecution

Travon Young (Young) knew Logan, Douglas and Marquinn Busby (Busby). Young lived on the corner of 134th Street and Grandee Avenue. Defendant also lived near 134th Street and Grandee Avenue. Young had seen defendant in a white car belonging to defendants girlfriend, Lakeisha Thompson (Thompson).

On December 19, 2003, around 11:30 p.m., Young saw Logan get shot and killed. Earlier in the day, Young had seen defendant wearing a dark gray or black hooded sweatshirt. That night, Young was in his front yard and saw a white car going towards 133rd Street. Young saw Logan, who was walking, turn a corner going left and Douglas, who was also on foot, going right. Young saw defendant, who was wearing the same clothing as earlier in the day, shoot Douglas. When defendant shot Douglas, Douglas fell, and Logan began running in Youngs direction. Young then saw defendant turn and shoot in Logans direction. Logan fell and Young saw defendant stand over Douglas and shoot him again.

Doris Wright (Wright) knew defendant from the neighborhood. Around 10:00 p.m. on the night of December 19, she saw defendant, and he had two pistols behind his back. One looked like a nine-millimeter.[2]Fifteen minutes later, she saw a white car going fast down the street. She heard about 15 to 20 gunshots. Defendants brother had approached Wright several weeks before her testimony and said that whatever sentence defendant got, he would go on a shooting spree against the witnesses.

Sherman Wells (Wells) lived diagonally from defendant. He knew defendant and his girlfriend, Thompson, both of whom he had seen drive a white car. Around 9:30 p.m. on December 19, Wells saw defendant pull into the driveway of his house and return with a gun tucked into his front waistband. Later, Wells heard four gunshots.

Detective Stephen Davis interviewed Busby at Logans mothers house on January 7, 2004. He recorded the interview. During the interview, Busby identified himself as Davon Jones. Busby stated that he, Douglas, and Logan were walking from Brandons house at 130th Street, and when they reached Grandee Avenue and 133rd Street, the shooting just happened.[3] Two short men, both dressed in black, came out of a house across the street, and one of the two men started shooting. Busby saw the shooter shoot at Douglas and thought the shooter looked like defendant.

Detective Davis interviewed Busby again on July 30, 2004, while Busby was in custody. According to Detective Davis, Busby made a clear but lame attempt to disguise his voice in this tape.[4]During the July 30 interview, Busby admitted that he lied to police investigators about his name but claimed he told most but not all of the truth because of safety.

Busbys videotaped preliminary hearing testimony was played for the jury. At the preliminary hearing, Busby testified that he couldnt remember what happened the night of the shooting. He admitted he had told the police earlier that his name was Davon Jones. Having listened to the two tape recorded interviews, Busby denied it was his voice in the second tape, but stated that some of it in the first tape was his voice.

Defendants jail visits with Thompson were recorded. A copy of their conversation on January 9, 2004 was played for the jury. Thompson told defendant the police had asked her where she was on the night of December 19, 2003. Defendant told Thompson to tell Twinkle[5]that he went to her house around 9:00 p.m. or 9:30 p.m. and spent the night because he had been drinking. He also told her to tell Twinkle that Im gonna need her to say that [defendant was at her house between 9:00 p.m. and 9:30 p.m.]. He additionally told Thompson to tell defendants sister, Tamara, that when Tamara arrived at Twinkles house at 9:45 p.m., defendant was already there.

Defense

Thompson testified that it was true that defendant left her house in a car at 9:30 p.m. on the night of December 19. Thompson clarified that when she went outside, defendant was still in the car. She then drove him to his stepmothers house and she took the car. She also explained that during the tape-recorded jail visit of January 9, 2004, defendant was not telling her to lie.

Garrett Stone was in custody at county jail with defendant. Young was not in the module with them, but he came to visit defendant. Stone overheard Young say that someone offered him money to say that defendant was the shooter.

Davion Jones (Jones) was a close friend of Busby. Two weeks after the shooting, Busby told Jones that someone had offered him money to say something.

Harold Smith, the boyfriend of defendants sister, Tamara, saw defendant arrive at Tamaras home between 10:30 and 10:45 p.m. on the evening of the shooting.

DISCUSSION

Trial Courts Failure to Excuse Jurors

Defendant argues that the trial court abused its discretion in not excusing Juror No. 2 and Juror No. 9, who had heard extraneous information about the case. Defendant concedes that Juror No. 9 was ultimately excused for a medical reason and replaced by an alternate during closing arguments and did not participate in jury deliberations. Therefore, defendants argument as to Juror No. 2 only will be considered.

When a defendant makes a claim of jury misconduct, he has the burden of showing misconduct occurred. If he is able to do so, prejudice is presumed. (People v. Marshall (1990) 50 Cal.3d 907, 949.) The presumption may be rebutted if the prosecution affirmatively shows prejudice does not exist or if the court determines there has not been prejudice. (People v. Cumpian (1991) 1 Cal.App.4th 307, 312.) Prejudice occurs where the jurys impartiality has been adversely affected, the prosecutions burden of proof has been lightened or an asserted defense has been contradicted. (Ibid.)

At the end of a court day during trial, Juror No. 1, out of the presence of the other jurors, informed the trial court that Juror No. 2 had raised concerns as to conversations she had overheard in the hallway regarding the case.

On the next court day, the trial court questioned Juror No. 2 outside the presence of the other jurors. In response to the courts question about what she may have heard, she responded: It didnt necessarily upset me. It was just that I didnt think that we needed to be hearing, even though it was not anything that we hadnt heard, justjust the fact that they were just saying, and they were saying it loud enough for us to hear. She said the statements pertained to the taped conversation between defendant and one of the witnesses. The information related by the speakers in the hallway was mixed in with evidence heard in court and referenced the tape and other stuff and other people. [T]hey wanted to know if so and so was there, and did they have anything to do, thats all. Juror No. 2 had not discussed what she heard with any of the other jurors, but she said that we shouldnt actually be sitting out here. Maybe we should speak with someone because its uncomfortable, I think, for everybody. Other than that, that was it. Juror No. 2 answered no when asked if she thought the information was going to affect her ability to give both sides a fair trial.

Juror No. 2 was unable to provide details about what she heard. Nothing she heard disturbed her. She merely expressed concern about sitting in the hall. The trial court found her assurance that she could set aside what she had heard and give both sides a fair trial credible. Defendants counsel did not object to her continuing to be on the jury. On appeal, defendant points to no prejudice resulting from the trial courts failure to discharge Juror No. 2. The trial court therefore acted within its discretion in not discharging Juror No. 2 based on a lack of prejudice. (People v. Cumpian, supra, 1 Cal.App.4th at p. 312.)

Defendant also raises a claim of ineffective assistance of counsel in his trial counsels failure to object to the continued participation of the tainted juror. In order to establish ineffective assistance of counsel entitling a defendant to relief, the defendant must show that counsels performance was deficient, falling below an objective standard of reasonableness, and the deficiencies were prejudicial. (In re Avena (1996) 12 Cal.4th 694, 721.) Inasmuch as Juror No. 9 ultimately was dismissed from the panel and the continued participation of Juror No. 2 did not result in prejudice, defendant has not established ineffective assistance of counsel entitling him to relief. (Ibid.)

Defendants Claim of Ineffective Assistance of Counsel Based on Prosecutorial Misconduct

Defendant contends his trial counsel was ineffective for failing to object to two instances of alleged prosecutorial misconduct and one instance of introduction of alleged inadmissible evidence. We disagree.

A. Prosecutors Remarks During Opening Statement

In the opening statement, the prosecutor told the jury that one witness whos going to testify in this case is going to lie to you. Hes going to deny being [at the scene]. . . . [] What youre going to hear on a taped statement originally he told the police about this problem that occurred between the defendant and one of the [deceased]. Defendant contends that this portion of the prosecutors opening statement amounted to vouching. We disagree.

Vouching occurs where the prosecutor suggests to the jury that he has information undisclosed to the trier of fact bearing on the issue of credibility, veracity, or guilt. (People v. Padilla (1995) 11 Cal.4th 891, 946, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823). When the prosecutors comments regarding the apparent honesty or reliability of a witness are based on facts established by the record and reasonably drawn inferences, his comments are not improper vouching. (People v. Medina (1995) 11 Cal.4th 694, 757).

The opening statement is an attempt to give the jury a roadmap of what an attorney believes the testimony will show. Here the prosecutor was just attempting to set forth what he believed the evidence would show at trial: that a witness would feign memory loss in conflict with his earlier tape-recorded statements. (People v. Dennis (1998) 17 Cal.4th 468, 518). The prosecutor was not attempting to suggest that he had information that would not be presented to the jury. Hence, his comments were not improper. (People v. Medina, supra, 11 Cal.4th at p. 757.) In the absence of any misconduct, there can be no ineffective assistance of counsel in failing to object. (People v. Thomas (1992) 2 Cal.4th 489, 531.)

B. Prosecutors Remarks During Closing Statement

Defendant argues that the prosecutor attacked the integrity of defense counsel in his rebuttal argument. While we agree that there is a reasonable likelihood that the jury would have understood the remark to impugn defense counsels integrity, defense counsels failure to object did not constitute ineffective assistance of counsel.

In defendants closing argument, counsel argued that the taped conversation between defendant and Thompson could be interpreted in an innocent manner. Counsel argued that when Thompson told defendant what she had told the police, his responses were not an effort to concoct an alibi, but only an effort to correct what was her incorrect recollection of the events. Defendant asked her to write it down so that she would remember as he knew he would be on trial at some point in time. Counsel then asked the jury to return not guilty verdicts.

During the prosecutors rebuttal argument, he stated: And the alibi, ladies and gentlemen, the tape, the transcript that is supposedly the defendant telling his girlfriend what really happened that night. I was almost disappointed that counsel finished with that because its so unbelievable it sort of hurts his credibility with everything else. [] All you have to do is listen to that tape, and it is so clear and so obvious that the defendant is trying to get his girlfriend to set up a fake alibi, and innocent people dont do that. They dont say things like and what else did you say and shit keep talking. [] [Thompson] says the officers asked her what time they came from the Sizzlers. He says, what time did you tell them, you didnt give them no time and then follows up with thats what I told you, remember I said on the times. They talked about it even before this. (Italics added.)

Defendant contends that the italicized portion of the statement was an attack on defense counsels integrity. Personal attacks on the integrity of opposing counsel have been held to be prosecutorial misconduct. (People v. Gionis (1995) 9 Cal.4th 1196, 1215.) While it is misconduct to imply that defense counsel sought to deceive the jury, it is not misconduct to urg[e] the jury not to be misled by defense evidence. (People v. Cummings (1993) 4 Cal.4th 1233, 1302.)

In determining whether a prosecutors statements constitute misconduct, we must view the statements in the context of the argument as a whole. [Citation.] (People v. Dennis (1998) 17 Cal.4th 468, 522.) We must examine whether there is a reasonable likelihood that the jury would have understood the remark to cause the mischief of which the defendant complains. (People v. Ayala (2000) 24 Cal.4th 243, 288.) In doing so, we do not infer lightly that the jury gave the prosecutors remarks the most damaging interpretation possible. (People v. Frye (1998) 18 Cal.4th 894, 970.)

Here, viewing the italicized portion of the prosecutors statement in context, it is reasonably likely that the jury understood the statement to refer to defense counsel, not defendant. Further, it is reasonably likely that the jury understood the statement to amount to an attack on counsels integrity, implying that counsels argument was so unbelievable that his credibility in general was questionable.

Error on the part of defense counsel in failing to object to the prosecutors challenged statement was harmless, however. First, defendants claim of misconduct is based on a single comment, which, while impugning defense counsels integrity, did not otherwise inject improper material into the jurys consideration of the case. This thus is not a case of misconduct so frequent or severe as to detract from the jurys fair consideration of the evidence. (People v. Sandoval (1992) 4 Cal.4th 155, 185; accord, People v. Navarette (2003) 30 Cal.4th 458, 506.)

Second, the jury was instructed that it should determine the case based on the evidence before it and the statements of counsel were not evidence. (CALJIC Nos. 1.00, 1.02.) The jury is presumed to have followed the instructions given it. (People v. Holt (1997) 15 Cal.4th 619, 662; People v. Delgado (1993) 5 Cal.4th 312, 331.)

Defense counsels failure to object to the prosecutors statement cannot be said to have so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. (In re Cudjo (1999) 20 Cal.4th 673, 687.) There thus was no prejudicial ineffective assistance of counsel. (Ibid.)

Defendants Claim of Ineffective Assistance of Counsel Based on the Testimony of Detective Davis

During Detective Daviss direct examination, he was asked about his interview with Wells. In response to the question, How would you describe [Wellss] level of cooperation in the beginning, Detective Davis said: Well, he was cooperative in that he provided a truthful statement. However, he was afraid for his life because he lived across the street from Mr. Smith who was the person responsible for this and was afraid that if he became aware that he was talking then he would have a problem or his family would have a problem.

Defendant contends that the portion of the answer person responsible is inadmissible and should have been objected to. We agree.

Evidence of a police officers subjective belief that a defendant may have committed the charged offense is inadmissible. (People v. Torres (1995) 33 Cal.App.4th 37, 46-47 [a witness cannot express an opinion concerning the guilt or innocence of the defendant].) Detective Daviss testimony could have been interpreted as expressing his personal belief that defendant was the person responsible for the crimes, justifying Wellss fear of reprisals if he cooperated with the police.

The erroneous admission of evidence does not require reversal of the judgment unless it is reasonably probable defendant would have obtained a more favorable result had there been no error. (People v. Earp (1999) 20 Cal.4th 826, 878.) Here, there was a wealth of evidence against defendant, from a number of eyewitnesses. In addition, there was evidence of defendants attempt to fabricate an alibi, and a not very credible attempt to explain away that evidence. Under the circumstances, it is not reasonably probable defendant would have been acquitted had this one statement by Detective Davis been excluded. Therefore, the admission of the evidence was not prejudicial, and reversal is not required based on defense counsels failure to object to the officers testimony. (In re Avena, supra, 12 Cal.4th at p. 721.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

VOGEL, Acting P. J.

ROTHSCHILD, J.

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[1] All further statutory references are to the Penal Code.

[2] Eight casings were found at the crime scene. They were from a nine-millimeter gun.

[3] The tape was played for the jury. Busby denied that it was his voice on the tape.

[4] The tape was played for the jury.

[5] Twinkle was defendants stepmother, Paulette Smith.

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.