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People v. Brady

August 9, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ROGER HOAN BRADY, DEFENDANT AND APPELLANT.



Los Angeles County. Super. Ct. No. YA020910. Judge: Stephen E. O'Neil.

The opinion of the court was delivered by: Werdegar, J.

A jury convicted defendant Roger Hoan Brady of the first degree murder of Officer Martin Ganz of the Manhattan Beach Police Department. (Pen. Code, §§ 187, subd. (a), 189.)*fn1 It found true special circumstance allegations that the murder was committed against a peace officer engaged in the performance of his duties (§ 190.2, subd. (a)(7)) and for the purpose of avoiding or preventing a lawful arrest (id., subd. (a)(5)); it also found true a special circumstance allegation that defendant had previously been convicted of murder (id., subd. (a)(2)). The jury further found that defendant had personally used a firearm in the commission of the offense. (§ 12022.5, subd. (a).) The jury returned a verdict of death. The trial court denied the automatic application to modify the verdict (§ 190.4, subd. (e)) and sentenced defendant to death.

This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.

DISCUSSION

I. Guilt PHASE

A. Facts

1. Prosecution Evidence

On the evening of December 27, 1993, Officer Martin Ganz of the Manhattan Beach Police Department was on patrol duty in a marked police vehicle. He was wearing his patrol uniform, which was dark blue or black, and a badge. Ganz's 12-year-old nephew, Don Ganz (Don),*fn2 accompanied him on a department sanctioned "ride along." During the shift, Officer Ganz stopped numerous motorists for routine traffic violations; he also showed Don how to use the police radio.

About 11:00 p.m., while stopped at a traffic signal, Officer Ganz noticed on the opposite side of the street a small grey or silver car being driven by defendant, who was on supervised release following a federal prison term and was subject to the condition that he not possess a firearm or other dangerous weapon. The car was stopped past the limit line of the crosswalk, partially blocking the intersection. Officer Ganz activated the patrol vehicle's spotlight and shined it on defendant, and over the vehicle's public address system Officer Ganz instructed defendant to back his car up. Defendant backed up a short distance, but his car was still over the limit line, so Officer Ganz repeated his instruction to move back. Defendant again did so, but he still was not behind the limit line.

When the traffic light changed, defendant turned into a shopping mall parking lot. Officer Ganz drove behind defendant's car and activated his patrol vehicle's overhead flashing red and blue lights. Defendant stopped his car in front of a bank, and Officer Ganz stopped his patrol vehicle about three to four feet behind defendant. He got out of the patrol vehicle, approached the driver's side window of defendant's car, and spoke with defendant for a few minutes. Jennifer La Fond, who worked at one of the stores in the mall, was driving by as Officer Ganz walked toward defendant's car.

Defendant leaned toward the passenger seat of his car, as if reaching for something in the glove compartment or on the passenger seat. Don, La Fond, and several other people at the mall then heard a loud "pop." Officer Ganz leaned back, as if something had struck his upper body. He quickly moved backward toward the patrol vehicle in a crouched position. Defendant, armed with a firearm, got out of his car and followed approximately six to 12 feet behind Officer Ganz. When Officer Ganz was near the rear of his patrol vehicle, defendant shot him in the back. Officer Ganz either fell or dived behind the patrol vehicle. Defendant walked toward the back of the driver's side of the vehicle and, using both hands, fired again at a downward angle. He then moved back along the driver's side of the patrol vehicle, lowered his body for a few moments, stood up, returned to his car, and drove away. After Don heard defendant's car drive away, he used the police radio to call for help.

Several bystanders, including Robert Doyle and Jamie Timmons, came to Officer Ganz's aid. Timmons and another mall patron, David Thomas, also used the police radio to call for help.

Officer Ganz was lying facedown behind the patrol vehicle, with his right arm pinned beneath his body. He was making gurgling noises and was struggling to breathe and move. Timmons placed Officer Ganz's head in her lap to get him out of the puddle of blood that was choking him.

Officer Timothy Zins of the Manhattan Beach Police Department, who was on patrol two blocks away, responded to broadcasts requesting help. Within minutes, other officers arrived and secured the crime scene. Paramedics arrived, placed Officer Ganz in an ambulance, and transported him to a hospital, where he later died from his wounds.

About 1:00 a.m. on December 28, 1993, Detective Joseph Raffa of the Los Angeles County Sheriff's Department arrived at the crime scene. He recovered three spent shell casings; two were near the front of the patrol vehicle, and the other was near the driver's side. Detective Raffa contacted the bank located next to where Officer Ganz had stopped defendant and obtained a videotape from its security camera system. He likewise obtained the videotape from another nearby bank's security camera system.

After the shooting, numerous witnesses from the crime scene were transported to the police station and gave statements. Detective Delores Perales of the Los Angeles County Sheriff's Department and two other officers conducted the interviews. Don, La Fond, Doyle, Timmons, Thomas, David Brumley (a passerby), David Sattler (who was in a nearby parking lot), and other witnesses described defendant, his car, and the events of that night.

Later that day, Solomon Riley, M.D., a deputy medical examiner for the Los Angeles County Department of Coroner, performed the autopsy. Officer Ganz had suffered two gunshot entry wounds. One bullet entered the right front side of Officer Ganz's upper chest, passed through the chest wall without entering the chest cavity, broke the bone in his right upper arm, and exited through the back of his right arm. The other bullet entered the left side of Officer Ganz's face slightly below his eye, fractured his orbital bone, grazed the front of the left half of his brain, crossed to the right side of his brain, grazed the middle portion of it, and lodged itself beneath his right ear. In Dr. Riley's opinion, such a wound would have rendered Officer Ganz unconscious in a matter of seconds; he would not have been able to run a distance of even 20 feet. In addition, Officer Ganz had a contusion on his back that was consistent with being shot in the back while wearing a bulletproof vest. Officer Ganz also had numerous abrasions on his skin that were consistent with his having fallen down, including a cluster of them on the right side of his forehead and another cluster on the back of his left hand. In Dr. Riley's opinion, Officer Ganz died from the gunshot wound to his head, but he could not determine which wound had been inflicted first.

The videotapes from the banks' security cameras were delivered to an institute affiliated with the National Institute of Justice. After analyzing the videotapes, the institute advised police investigators that defendant was driving a Daihatsu Charade. It also noted that defendant's car had sustained damage to its front right side.

The Los Angeles County Sheriff's Department established a "hotline" to receive information from the public. A tip received on January 20, 1994, implicated defendant and led to a police search, to which defendant consented, of defendant's bedroom, the common areas of his parents' condominium, and his car. This search did not disclose anything of evidentiary value.

In May of 1994, the investigating detectives showed Don and La Fond photographic lineups that included defendant's picture, but neither identified defendant as the shooter.

By April 1994, defendant and his parents had moved to Vancouver, Washington, just over the Oregon state line.

On August 4, 1994, Deputy John Landon of the Washington County, Oregon, Sheriff's Office executed a search warrant on defendant's new residence in connection with crimes committed in Oregon. Outside the residence was defendant's Daihatsu Charade, which had damage consistent with that on the car depicted in the banks' videotapes. Inside the residence, Deputy Landon discovered a locked fireproof box. Defendant's parents had never seen this box before and did not know how to open it.

On August 9, Deputy Larry McKinney of the Washington County, Oregon, Sheriff's Office obtained a warrant to open the box, which contained a semiautomatic .380-caliber handgun, two ammunition magazines, a box of .380-caliber ammunition, an envelope, two pairs of gloves, and a knit ski mask. Deputy Dwight Van Horn of the Los Angeles County Sheriff's Department then performed ballistics tests on defendant's and Officer Ganz's firearms and recovered a bullet from the back of Officer Ganz's bulletproof vest. Officer Van Horn determined the bullets recovered from Officer Ganz's body and bulletproof vest had been fired from defendant's firearm.

On August 13, La Fond identified defendant in a lineup as the shooter. Don had initially identified another person from the lineup, but identified defendant after speaking with one of the investigating detectives. In November 1995, Don went to Oregon to testify in related proceedings there, saw defendant (who was in custody), and identified him as the person who had shot Officer Ganz.

2. Defense Evidence

John Gruen, M.D., the director of neurotrauma at the Los Angeles County and University of Southern California LAC儠 Medical Center, has treated more than 100 patients with gunshot wounds to the head. Dr. Gruen reviewed Officer Ganz's medical records and Dr. Riley's report. In Dr. Gruen's opinion, Officer Ganz could have been shot in the face while standing next to defendant's car and then moved to the rear of his patrol vehicle before losing consciousness without leaving a trail of blood.

Detective Perales testified as to inconsistencies between the percipient witnesses' statements given immediately after the crime and their trial testimony. For example, contrary to his trial testimony, David Brumley originally told Detective Perales that he had heard four shots and did not mention seeing defendant get out of his car. And contrary to his trial testimony, David Sattler originally told Detective Peralesthat he was not facing defendant when he heard two shots and that, when he turned around, the patrol vehicle's driver's side door was closed; Sattler also failed to tell Detective Perales that he saw defendant standing in a "military style position" over Officer Ganz and heard two more shots, and then saw defendant reach into the patrol vehicle, as if to use the radio.*fn3

3. Multiple-murder Special-circumstance Allegation

At the trial on the multiple-murder special-circumstance allegation, the prosecution presented evidence that defendant had been convicted of aggravated murder in Oregon on November 2, 1995. (See p. 24, post.) The trial court took judicial notice of the fact that aggravated murder in Oregon was equivalent to first degree murder in California.

Defendant presented no evidence during this phase of the trial.

B. Discussion

1. Exclusion of Evidence of Third Party Culpability

As noted, the Los Angeles County Sheriff's Department established a hotline to receive tips from the public concerning Officer Ganz's murder. Of the more than 2,000 clues that law enforcement received from the public and other sources (which were then numbered and catalogued), defendant sought to introduce five at trial: the one that implicated him (clue No. 1270); a confession (and subsequent recantation) made to a 911 operator on December 28, 1993 (clue No. 1796); the death of an Asian male who was killed shortly after Officer Ganz's murder when two Palos Verdes Estates police officers tried to apprehend him and were themselves killed in the attempt (clue No. 1506); reports that an associate of Jennifer La Fond "resembled" the person depicted in a composite drawing prepared by witnesses to the shooting (including La Fond) (clue No. 192); and an unsigned letter claiming responsibility for Officer Ganz's murder (no clue number). Prior to the start of defendant's trial, the trial court admitted the clue implicating defendant and excluded the remaining four clues on relevance grounds. During her guilt phase closing argument, the prosecutor noted there was no evidence suggesting that anyone other than defendant had committed Officer Ganz's murder. Defendant now contends the trial court erred by excluding evidence possibly implicating other suspects.*fn4

Only relevant evidence is admissible. (Evid. Code, § 350.) Evidence that raises a reasonable doubt as to a defendant's guilt, including evidence tending to show that another person committed the crime, is relevant. But evidence that another person had a motive or opportunity to commit the crime, without more, is irrelevant because it does not raise a reasonable doubt about a defendant's guilt; to be relevant, the evidence must link this third person to the actual commission of the crime. (See People v. Avila (2006) 38 Cal.4th 491, 577-578.) Evidence that is relevant still may be excluded if it creates a substantial danger of prejudicing, confusing, or misleading the jury, or would consume an undue amount of time. (See Evid. Code, § 352.)

We review for an abuse of discretion a trial court's exclusion of evidence. (People v. Avila, supra, 38 Cal.4th at pp. 577-578.) Applying this standard, we conclude the trial court did not abuse its discretion in excluding the four clues, as the proffered evidence suggested no link between the third parties and the actual perpetration of Officer Ganz's murder.

As to clue No. 1796, the caller who confessed to a 911 operator later recanted, and defendant made no showing that this third party had any connection to the commission of the crime other than this unsubstantiated and later withdrawn confession.

As to clue No. 1506, although several eyewitnesses to Officer Ganz's murder described the assailant as an Asian male and the clue referred to an Asian male who had killed two members of a nearby police department and was suspected of committing an armed robbery, no evidence implicated this person in Officer Ganz's murder. Although the man's ethnicity and his possible involvement in an unrelated robbery and killing of other police officers initially might have suggested some involvement in Officer Ganz's murder, defendant presented no evidence actually linking this person to Officer Ganz's murder. (See People v. Page (2008) 44 Cal.4th 1, 37 [rejecting the defendant's claim of third party culpability, stating, "The flaw in defendant's theory is that the proffered evidence has no tendency to establish any relevant fact."].)

As to clue No. 192, various individuals did tell the police that an associate of La Fond "resembled" the composite drawing, but none of the eyewitnesses (including, notably, La Fond) identified this third party as Officer Ganz's assailant, and La Fond stated that this third person was not involved with Officer Ganz's murder. Moreover, the trial court said it would revisit this matter if, for example, La Fond testified about this third person, but she did not, and defendant presented no evidence at trial about her associate.

Finally, the author of the unsigned letter that claimed responsibility for Officer Ganz's murder was never identified. Third party culpability evidence that does not identify a possible suspect is properly excluded. (See People v. Sandoval (1992) 4 Cal.4th 155, 176-177.)

Even were we to assume the trial court erred by excluding the proffered evidence, prejudice is lacking under either the state or federal standard of review. (See Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence of defendant's culpability was overwhelming: multiple eyewitnesses identified him as the shooter, ballistics tests indicated his handgun was used to shoot Officer Ganz, and videotapes from the scene of the crime showed a car of the same make and model as defendant's. In sum, defendant fails to establish entitlement to relief based on the trial court's exclusion of the evidence of the clues.*fn5

2. Exclusion of Evidence of Possible Bias in Key Witness's Testimony

Defendant contends the trial court erred by excluding evidence indicating a possible bias on the part of Robert Doyle, a key prosecution witness. On the night of the murder, Doyle was in a nearby parking lot at the shopping mall. He observed what looked to be a "routine traffic stop." While talking to some other people, Doyle observed Officer Ganz get out of his patrol vehicle and walk toward defendant's car. Doyle heard a gunshot and looked at the source of the noise, defendant's car. He saw Officer Ganz running away and "being chased" by defendant. Doyle then saw defendant twice shoot Officer Ganz; for the second shot, defendant pointed his firearm down as if Officer Ganz was on the ground or crouching down. Doyle then observed defendant run back to his car. He tried to catch defendant's car, but then ran over to Officer Ganz to help him. Doyle saw Officer Ganz lying facedown with his arms trapped beneath his body. He raised Officer Ganz off the ground to prevent him from choking.

In the year preceding defendant's trial, Doyle pleaded no contest to committing a battery (§ 243, subd. (e)(1) [battery against a current or former spouse, fiancé or fiancée, coparent, cohabitant, or partner]) and was placed on misdemeanor summary probation. The trial court ruled Doyle's conviction did not reflect moral turpitude (and thus could not be a basis for impeachment) and precluded defendant from impeaching Doyle as to any possible bias he might have harbored due to his probationary status. Defendant contends Doyle's trial testimony differed significantly from his original statements to the police and that the trial court should have allowed him to argue to the jury that Doyle sought to curry favor with the district attorney's office by shaping his testimony to match its theory of the case.

Defendant's contention lacks merit. Cross-examination may expose facts from which jurors can appropriately draw inferences about the reliability of a witness, including the possibility of bias. The trial court, however, has wide latitude to restrict such cross-examination, and such testimony is properly barred unless the defendant can show the prohibited cross-examination would have produced a significantly different impression of the witness's credibility. (People v. Smith (2007) 40 Cal.4th 483, 513.) Defendant made no showing that Doyle actually had been offered leniency or threatened with retaliation by the prosecution. In fact, the trial prosecutor was not even aware Doyle was on probation until his criminal record was checked during the course of defendant's trial.*fn6 As such, defendant has failed to demonstrate that the prohibited cross-examination would have left the jury with a significantly different impression of Doyle's credibility. (People v. Chatman (2006) 38 Cal.4th 344, 374.) Defendant's contention that the trial court violated his federal constitutional rights to present a defense and to confront witnesses similarly fails. (People v. Hamilton, supra, 45 Cal.4th at p. 943.)

Even were we to assume the trial court erred in limiting defendant's ability to cross-examine Doyle, defendant fails to demonstrate prejudice under either the Chapman or Watson standard. (See Chapman v. California, supra, 386 U.S. at p. 24; People v. Watson, supra, 46 Cal.2d at p. 836.) The jury was made aware of Doyle's purportedly inconsistent statements through defense counsel's extensive cross-examination of Doyle and through the testimony of Detective Perales. Moreover, the evidence of defendant's culpability was overwhelming, as Doyle was but one of many eyewitnesses to the shooting.*fn7

3. Sufficiency of the Evidence to Support First Degree Murder Verdict

Defendant contends there was insufficient evidence to support his conviction for first degree murder. At his trial, defendant argued to the jury that he "randomly fired" at Officer Ganz, which conduct would be insufficient to support the finding of premeditation and deliberation that is required for first degree murder.

The law is settled. In reviewing a criminal conviction challenged as lacking evidentiary support, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. An appellate court must accept logical inferences the jury might have drawn from the evidence, even if the court would have concluded otherwise. (People v. Hovarter (2008) 44 Cal.4th 983, 1014-1015.) " 'The standard of review is the same when the prosecution relies mainly on circumstantial evidence.' " (People v. Burney (2009) 47 Cal.4th 203, 253.)

A murder that is willful, deliberate, and premeditated is murder in the first degree. (§ 189.) " ' "Deliberation" refers to careful weighing of considerations in forming a course of action; "premeditation" means thought over in advance. [Citations.] "The process of premeditation . . . does not require any extended period of time. 'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . .' [Citations.]" ' " (People v. Halvorsen (2007) 42 Cal.4th 379, 419.)

" ' "An intentional killing is premeditated and deliberate if it occurred as the result of pre-existing thought and reflection rather than unconsidered or rash impulse." [Citation.] A reviewing court normally considers three kinds of evidence to determine whether a finding of premeditation and deliberation is adequately supported--pre-existing motive, planning activity, and manner of killing--but "[t]hese factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation." ' " (People v. Burney, supra, 47 Cal.4th at p. 235.) These three factors, however, are merely a framework for appellate review; they need not be present in some special combination or afforded special weight, nor are they exhaustive. (See, e.g., People v. Prince (2007) 40 Cal.4th 1179, 1253; People v. Bolin (1998) 18 Cal.4th 297, 331-332.)

As we will explain, the totality of the evidence is sufficient to support the jury's verdict.

a. Pre-Existing Motive

When Officer Ganz detained him, defendant had a firearm in his car, which was not only a violation of the terms of his federal supervised release, but also a crime. (See, e.g., § 12021, subd. (a)(1).) Discovery of defendant's firearm, therefore, could have led to defendant's arrest and incarceration.

Citing People v. Cummings (1993) 4 Cal.4th 1233, 1299-1300, defendant contends there was no evidence to lead either him or an objective observer to believe his arrest for illegally possessing the firearm was highly likely or imminent, as this otherwise routine traffic stop was not the type of police contact likely to result in an arrest. Cummings is distinguishable, however, as it concerned the sufficiency of the evidence to support a special circumstance finding of murder committed for the purpose of preventing a lawful arrest. (See § 190.2, subd. (a)(5).) The issue in Cummings--the imminence of the arrest--simply is not relevant to whether the possibility of arrest supported an inference that defendant had premeditated and deliberated the killing of Officer Ganz. The evidence at trial demonstrated that, at the time of his detention, defendant was committing an act that could have resulted in his returning to prison. A rational trier of fact could have found defendant shot Officer Ganz to prevent him from discovering the firearm that would have led to defendant's incarceration. (See, e.g., People v. Durham (1969) 70 Cal.2d 171, 189 [" ' "[K]nowing that they were all guilty . . . , it is easy to understand why they might take life before they would suffer themselves to be arrested, their crime found out, and the severe punishment meted out to them . . . ." ' "].)

Defendant contends he could not have harbored a pre-existing motive to kill Officer Ganz because it would have been impossible for the officer to discover his firearm, as the circumstances of the traffic stop did not justify a search of his car. Drivers, however, often keep the documentation necessary to operate a motor vehicle in the vehicle's glove compartment; it is not unheard of for a police officer to spot contraband when a driver opens the glove compartment to retrieve those documents. (E.g., Maryland v. Pringle (2003) 540 U.S. 366, 368; see also In re Arturo D. (2002) 27 Cal.4th 60, 89 (conc. & dis. opn. of Werdegar, J.).) Vehicles are also sometimes searched pursuant to a condition of supervised release, probation or parole, in an inventory search following an arrest, or for the safety of the police officer. (See, e.g., People v. Walker (1969) 273 Cal.App.2d 720, 724 ["For his own protection the officer was justified in opening the glove compartment himself, rather than to risk the possibility that defendant would pull a weapon out of it."].) Regardless of whether any of those circumstances actually existed with respect to defendant's stop, a rational trier of fact could have found that defendant feared his firearm would be discovered and decided to use it before Officer Ganz became aware of its existence.*fn8

b. Planning Activity

Defendant correctly notes there was no evidence of extensive planning or preparation, as only a few minutes passed between the time Officer Ganz first shined his patrol vehicle's spotlight on defendant's car and the shooting. But as defendant concedes, under California law premeditation and deliberation can occur in a brief period of time. (See, e.g., People v. Halvorsen, supra, 42 Cal.4th at p. 419.) The lack of evidence of extensive planning does not negate a finding of premeditation. (See People v. Millwee (1998) 18 Cal.4th 96, 134.)

Although defendant's interaction with Officer Ganz was brief, it was more than momentary. Officer Ganz twice instructed defendant to move his car out of the intersection, followed defendant into the mall parking lot, initiated a traffic stop, got out of his patrol vehicle, and then talked with defendant, all within the space of a few minutes. A rational trier of fact could have concluded defendant, knowing he illegally possessed a firearm, rapidly and coldly formed the idea to kill Officer Ganz during the course of these events, and therefore acted after a period of reflection rather than on an unconsidered or rash impulse. (See People v. Steele (2002) 27 Cal.4th 1230, 1249; see also People v. Millwee, supra, 18 Cal.4th at pp. 134-135 [the defendant arrived at the victim's house unarmed but could have thought about the use of lethal force while traveling there and then retrieving a stored rifle, deactivating the safety and chambering a live round].)

c. Manner of Killing

At trial, defendant argued that he lacked the requisite mental state when he attacked Officer Ganz, asserting that Officer Ganz had been fatally wounded by the first shot. The totality of the evidence presented, however, indicates defendant wanted to make certain Officer Ganz died. (See People v. Bolin, supra, 18 Cal.4th at pp. 332-333 [the killings took place within a few minutes of the victims' arrival and the evidence suggested rapid and purposeful planning in response to the potential consequences of his partner's carelessness].) Here, defendant did not merely fire one shot from his car and then flee; rather, he got out of his car, shot Officer Ganz again in the back as the officer was retreating, and then stood over the officer's prone body and fired a third shot while holding his firearm with two hands. (See People v. Koontz (2002) 27 Cal.4th 1041, 1080-1082 [intent to kill was shown by the defendant's shooting the victim in a vital area from only a few feet away and then preventing a witness from calling an ambulance]; People v. Mayfield (1997) 14 Cal.4th 668, 767-768 [gunshot fired at a victim's face was consistent with a pre-existing intent to kill]; see also People v. Hawkins (1995) 10 Cal.4th 920, 956-957 [shooting the victim in the back of the head in an "execution-style murder" was sufficient evidence of premeditation and deliberation despite minimal evidence of planning and motive].)

Defense counsel at trial did highlight the weaknesses of the prosecution's theory of the case: the witnesses not only contradicted each other on various points, but the testimony of several witnesses also contradicted statements they had originally given to the police; no shell casings were found near the rear of the police vehicle; defendant's medical expert testified it was possible for the fatal shot to the head to have been fired first; and Don and La Fond initially were unable to identify defendant as the shooter. On review, however, we do not reevaluate the credibility of witnesses or resolve factual conflicts; rather, we presume the existence of every fact in support of the verdict that reasonably could be inferred ...


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