IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
November 29, 2010
IN RE WILLIE EDWARD MOORE, JR., ON HABEAS CORPUS. THE PEOPLE, PLAINTIFF AND RESPONDENT,
WILLIE EDWARD MOORE, JR., DEFENDANT AND APPELLANT.
The opinion of the court was delivered by: Duffy, J.
P. v. Moore
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Willie Edward Moore, Jr., of crimes arising from his efforts to wound or kill two men at a predawn party. He claims that the trial court erred in admitting certain evidence. We will affirm the judgment. In a separate discussion, we will deny the habeas corpus petition and accompany the denial with a speaking order stating reasons.
PROCEDURAL BACKGROUND AND FACTS
I. Procedural Background
The jury convicted defendant of one count of attempted murder (Pen. Code, §§ 187, 664, subd. (a))*fn1 and two counts of assault with a semiautomatic firearm (§ 245, subd. (b)). It found true an allegation that the attempted murder was in the first degree because it was willful, premeditated and deliberate. (See § 189.) It found true a section 12022.53, subdivision (d), firearm-use allegation on count one, a section 12022.5, subdivision (a), firearm-use allegation on counts two and three, and a section 12022.7, subdivision (a), great bodily injury allegation for each count. Counts one and two involved Anthony Fairbanks as the victim; for count three, the victim was Sharvis Mitchell. The trial court sentenced defendant to life imprisonment with the possibility of parole, 25 years' to life imprisonment, and 19 years' imprisonment, each term to be served consecutively.
Two groups of men converged on an apartment on Gilchrist Drive in San Jose for a party that began in the predawn hours of April 5, 2009, a Sunday. Although some witnesses testified that the partiers were amicable, other evidence pointed to rivalries over women and status that emerged between the two groups. Around dawn defendant shot two members of the other group.
Specifically, several of the men were interested in some of the women in attendance at the party and tensions arose. Defendant engaged in a rapping competition, a type of music performance contest, with Anthony Fairbanks, who had arrived with the other group. Fairbanks won the audience's applause. A member of defendant's group sparred with another member of the other group, Sharvis Mitchell, over who was entitled to sit in a chair next to one of the women. About six a.m. defendant shot Fairbanks and Mitchell inside the apartment, then chased Fairbanks down Gilchrist Drive. Defendant caught up to Fairbanks and pistol-whipped him, stabbed him, and railed at him. Defendant also took another shot at Fairbanks as Fairbanks reached his car, but it missed. The police were not able to recover the gun.
At trial and in pretrial photographic lineups, both Mitchell and Fairbanks unequivocally identified defendant as the gunman.
After shooting Fairbanks and Mitchell, defendant drove to the Central Valley. At 8:09 a.m. he was near the San Joaquin County city of Lathrop, according to cell phone records, and called his cousin Robbie Hampton, Hampton is a garbage collector who works in Santa Clara County but he lives in the city of Manteca, near Lathrop. About 8:30 a.m. defendant arrived at Hampton's residence. His visit lasted for a few minutes. Hampton testified that defendant was acting normally and "didn't look . . . bothered or anything."
Defendant testified on his own behalf. He denied shooting either victim and did not understand their identifications of him. He left the party about 4:15 a.m. and was elsewhere when the two men were shot. This was the case notwithstanding prosecution evidence, which defendant did not dispute, that placed his cell phone near Gilchrist Drive at the time of the shootings. When he went to Manteca, it was not to dispose of a gun and the clothing he had been wearing.
Gunshot residue was obtained from one of defendant's hands 39 hours after the shootings. Prosecution and defense witnesses agreed that residue found that long after the shootings could not be connected to the shootings with any reliability. The defense's expert witness testified that "most . . . studies indicate that gunshot residue is effectively lost somewhere between after six to eight hours . . . ."
In this first part, we address defendant's appeal. In the next, we will address his habeas corpus petition.
I. Admissibility of Photographic and In-court Identifications of Defendant
Before trial, defendant filed a motion seeking exclusion, essentially on federal due process grounds, of the victims' identifications of him from police-administered photographic lineups and any in-court identifications that might follow. He argued that the photographic lineups had suffered from "impermissible suggestiveness" and that this defect would taint any in-court identifications, because the photographic identifications would influence the victims' perception in court that defendant was the shooter.
The trial court denied the motion to exclude and, as described, the jury heard evidence of the victims' identification of defendant as the shooter in photographic lineups and by their direct testimony in court.
Defendant renews his arguments on appeal, but we find no due process violation.
" 'In order to determine whether the admission of identification evidence violates a defendant's right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification. [Citations.] [¶] The defendant bears the burden of demonstrating the existence of an unreliable identification procedure.' " (People v. Huggins (2006) 38 Cal.4th 175, 243.)
"We independently review 'a trial court's ruling that a pretrial identification procedure was not unduly suggestive.' " (People v. Avila (2009) 46 Cal.4th 680, 698-699.)
Undertaking our review, we find no due process violation. We can stop at step one of the analysis--whether the identification procedure used for the photographic lineups was unduly suggestive and unnecessary--because the police carried out the lineups in line with internal rules designed to prevent suggestiveness. San Jose Police Detective Mark Riles testified that he showed a photographic lineup to Sharvis Mitchell in a hospital on the morning of the day after the shootings. Detective Riles showed Mitchell six photographs of male African-Americans, one after the other. Defendant was number four, but even if Mitchell identified defendant before the showing was complete, Detective Riles was to continue until Mitchell had seen all of the photographs. Mitchell was positive that photograph number four--that of defendant--showed the man who shot him. Among the measures Detective Riles described that are taken to ensure a lack of suggestiveness are that either a computer search is done through Department of Motor Vehicle records to locate individuals who look like the suspect or a photographic database of San Jose arrestees is used in the same manner. Detective Riles followed procedures to ensure a lack of suggestiveness in the photographic viewing.*fn2
San Jose Police Officer Todd Wellman testified in an in limine proceeding that he was given a photographic lineup to show to Anthony Fairbanks. Officer Wellman showed Fairbanks the lineup four days after the shootings. Fairbanks was also in a hospital, in its intensive-care unit, but Officer Wellman found Fairbanks to be "clear and lucid" nonetheless. Officer Wellman followed the procedure that Detective Riles described in his testimony. When Fairbanks "got to Photograph Number 4, he said, 'Number 4, that's him. He shot me.' " Before the jury, Officer Wellman testified that he did not prepare the lineup; another officer handed him the photographs. He did not know that defendant was the suspect. Fairbanks reacted to photograph number four: "He pointed at the photograph and stared intently and said, 'He shot me.' "
On independent review, we have no doubt that the trial court's ruling was correct. Defendant offers only speculation about suggestiveness: E.g., "[t]he fact that the victims were shown a photograph of only one of several black men who were at the party made it very likely that the victims would respond to that photograph"; "[t]here is reason to believe that someone else was the shooter"; "Fairbanks had smoked marijuana and drunk liquor during the party" and "[t]hese circumstances do not favor an accurate identification." In sum, according to defendant, "[t]he presentation of appellant's photograph likely affected both victims' memory . . . ." The record, however, contains nothing that would support these surmises. It contains no hint of undue suggestiveness. Accordingly, we reject defendant's claim.
II. Admitting Testimony About Gunshot Residue on Defendant's Hands
Defendant claims that the trial court abused its discretion under state law by allowing the jury to hear evidence that gunshot residue was found on his hands some 39 hours after the shootings. He contends, as he did before the trial court, that the evidence was irrelevant and substantially more prejudicial than probative. (Evid. Code, §§ 350, 352.) He asserts that the error was of such a magnitude as to violate his right to due process of law under the Fourteenth Amendment to the United States Constitution.
"On appeal, 'an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence . . . .' " (People v. Hovarter (2008) 44 Cal.4th 983, 1007-1008.) A trial court abuses its discretion when its ruling falls outside the bounds of reason. (People v. Benavides (2005) 35 Cal.4th 69, 88.)
Given the overall posture of the case, the evidence about gunshot residue was ancillary at most. As mentioned, gunshot residue was obtained from one of defendant's hands 39 hours after the shooting. Prosecution and defense witnesses agreed that residue found that long after the shooting could not be connected to it with any reliability. In substance, therefore, this is not properly a claim of a fundamentally unfair trial; it is a claim of error under state law on which defendant has overlaid a constitutional due process gloss. Our resolution of defendant's state law claim therefore will yield the answer to his due process claim. "[R]ejection on the merits of a claim that the trial court erred . . . necessarily leads to rejection of the newly applied constitutional 'gloss' as well. No separate constitutional discussion is required in such cases, and we therefore provide none." (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 990, fn. 5.)
The trial court did not abuse its discretion in admitting the evidence. During the hearing on the motion to exclude it, all that the parties and court knew was that the gunshot residue evidence was obtained from defendant at least some 18 hours after the shootings. This was because forensic records showed that the evidence was obtained from defendant's hands on April 6, 2009, the day after the shootings, but the records were not more specific than that. In theory the evidence could have been obtained at 12:01 a.m. that day. Only at trial did it emerge that the evidence was in fact obtained around 9:00 p.m. on April 6, and was therefore about 39 hours old. We must base our discussion here on the information available to the court during the hearing, because that was all that it had to go on when ruling on defendant's motion. To be sure, the court was told during the in limine hearing that even 18-hour-old gunshot residue evidence was unreliable. But the prosecution argued that it was for the jury to assess the weight of such evidence, and the court evidently accepted that view in denying the motion to exclude (it did not elaborate on its reasons).
Given the trial testimony, the gunshot residue evidence turned out to be essentially useless if linked only to the shootings 39 hours before. However, it was not quite as useless as either party suggests on appeal. As may be inferred from the expert testimony, gunshot residue lasts only a few hours. That suggests, in turn, that defendant was in the presence of gunshot residue within a few hours of being arrested and examined for it. This is not insignificant given that the gun was never recovered by the authorities. The jury could have inferred that it was slight evidence that defendant had handled the gun long after the shootings and disposed of it shortly before he was caught. Indeed, the gunshot residue witnesses' testimony hinted at this. The prosecution criminalist noted that "you could fire again" or "handle a weapon"; the defense forensic analyst noted that the evidence "overwhelmingly supports the fact that this gunshot residue, if it is . . . gunshot residue . . . , was introduced perhaps six to eight hours prior to the collection time . . . ." Of course, as the jury heard at trial, there could be any number of innocent explanations for the residue as well. Defendant had been apprehended by law enforcement, law enforcement agencies discharge weapons, and he could have acquired the residue at some point during the arrest and transportation process. In any event, the evidence turned out to be useless as regards the shootings themselves, but perhaps of some slight value in the interpretation of events following the shootings. The court did not abuse its discretion in admitting it, given what it was told during the in limine hearing. Defendant's state law claim of error is unfounded, and his constitutional claim also is unavailing.
III. Testimony About Defendant's Relationship With His Girlfriend
Defendant claims that the trial court abused its discretion under state law by failing to curtail the prosecution's presentation of evidence from defendant's girlfriend, Sonia Arechiga, about his fidelity in their relationship. The prosecution had called Arechiga as its witness and was questioning her on these matters when defense counsel objected. Defendant contends, as he did before the trial court, that the evidence was substantially more prejudicial than probative and amounted to improper character evidence. (Evid. Code, §§ 352, 1101, subd. (a).) He asserts that the error was of such a magnitude as to violate his right to due process of law under the Fourteenth Amendment to the United States Constitution.
Under questioning by the prosecutor, Arechiga testified that defendant had been her boyfriend for several years, that she still cared for him, and that they had pet names for each other. The prosecutor then asked questions about defendant's faithfulness to her and Arechiga denied "that he had cheated on me." Defendant objected, initially on relevance grounds, and at a sidebar conference the prosecutor said she was impeaching Arechiga on the credibility of a prior statement she had made in which "she lied about [defendant's] whereabouts immediately afterward. And I know she's going to lie. It's relevant." The prosecutor argued that she was entitled to show Arechiga's bias in defendant's favor, a bias that Arechiga would have given the closeness of her relationship with defendant, a closeness great enough that she would forgive his transgressions against the relationship, as the prosecutor was trying to illustrate. This approach was not based on idle speculation. "The letters in the relationship that I know about with the defendant and Ms. Arechiga is one of control and manipulation and paranoia of losing him. She has said she will do anything to keep him, despite the fact he's been unfaithful, so it's going to her motive to lie."
The trial court let the prosecutor continue, but eventually, after further prosecutorial questions of Arechiga and another objection by defense counsel, the court expressed misgivings that the questioning was hewing too close to impermissible considerations of character and directed the prosecutor to move on.
Later, Arechiga testified that defendant told her that he had gone to the party but "ended up leaving because he didn't know anybody there." The prosecutor then led Arechiga through extensive questioning about when she saw defendant before and after the shootings. She testified that she saw defendant in the house early Sunday morning, perhaps 8:00 a.m., at a time when according to other evidence he was approaching Robbie Hampton's house in a county in the Central Valley and was not in Santa Clara County.
The evidence was admissible. Although character evidence often is inadmissible (Evid. Code, § 1101, subd. (a)), the bar of that provision does not "affect the admissibility of evidence offered to . . . attack the credibility of a witness." (Id., subd. (c).) On appeal, defendant asserts that the evidence would not be useful for this purpose; in his view, it "might be expected to show the witness's prejudice against the defendant, not her bias in his favor." For the reasons the prosecutor explained to the trial court during the sidebar conference, however, we do not agree that the evidence was necessarily tilted in that direction. The constitutional gloss defendant attempts to place on his claim also fails; we need not discuss it separately. (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 990, fn. 5.)
IV. Admitting Evidence That Defendant's Cousin Was a Garbage Collector
Defendant claims that the trial court abused its discretion under state law by allowing the jury to hear evidence that his cousin, Robbie Hampton, worked as a garbage collector. He contends, as he did before the trial court, that the evidence was irrelevant and substantially more prejudicial than probative. (Evid. Code, §§ 350, 352.) He asserts that the error was of such a magnitude as to violate his right to due process of law under the Fourteenth Amendment to the United States Constitution.
At trial, defense counsel objected to the prosecutor's eliciting this information from Hampton. Counsel argued that it was irrelevant. The prosecutor replied that the jury could infer that defendant delivered the gun and incriminating articles of clothing to Hampton on Sunday morning, knowing that Hampton would have an inconspicuous and efficient means of disposing of them through his garbage collection duties. The trial court overruled the objection. It stated, "I don't see any prejudice from it, and I understand your relevance objection, but if she [the prosecutor] wants to make that inference [that] that's where the gun went, she can do that."
The trial court's reasoning is persuasive and we see no need to elaborate on it. No abuse of discretion occurred. As before, the constitutional gloss defendant attempts to place on his claim also fails; we need not discuss it separately. (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 990, fn. 5.)
V. Cumulative Error
Defendant claims that the foregoing aspects of the case, taken together, made his trial fundamentally unfair under the due process clause of the Fourteenth Amendment to the United States Constitution. (See People v. Rogers (2006) 39 Cal.4th 826, 911.)
Because we have found no errors, we must reject the claim. "Defendant was entitled to a fair trial but not a perfect one." (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) Defendant's trial was fair.
THE HABEAS CORPUS PETITION
In this second part, we turn to the habeas corpus petition. Incorporating the disposition of the petition into this opinion is authorized by the order we issued on August 19, 2010, in In re Willie Edward Moore, Jr., on Habeas Corpus (H035920). In that order, we stated that "[t]he petition for writ of habeas corpus will be considered with petitioner's pending direct appeal in case number H034940, People v. Moore."
We will deny the habeas corpus petition with the following speaking order:
Petitioner Willie Edward Moore, Jr., raises two claims regarding Detective Riles's testimony. (See ante, fn. 2, p. 3.)
I. False Testimony
Petitioner claims a due process violation because false testimony was introduced against him. He also offers an ancillary claim of prosecutorial misconduct because, in his view, the prosecutor must have noticed its falsity but did not act to impeach her witness or take other remedial action.
At the in limine hearing on the admissibility of the identification evidence, Detective Riles testified that his role in the investigation of the shootings was limited to two discrete and specific tasks, namely presenting a photographic lineup to Sharvis Mitchell and, later, assisting with the service of a search warrant. He did not prepare the lineup or know who petitioner was when he presented the photographs to Mitchell. Detective Riles later testified before the jury that he took no part in preparing the photographic lineup; rather, a sergeant handed it to him at the hospital. Detective Riles further testified before the jury that Mitchell identified the person in photograph number four as the man who shot him, but only later did Detective Riles learn that petitioner was the person in photograph number four. Detective Riles did not know petitioner's name when he arrived at the hospital to perform the lineup procedure.
At the preliminary examination, however, Detective Riles testified that the sergeant told him to prepare the photographic lineup and that he did so knowing that petitioner was the person in photograph number four.
Neither at the in limine hearing nor before the jury did defense counsel or the prosecutor challenge Detective Riles on the discrepancy in his recollections about the photographic identification procedure.
It is possible that Detective Riles's testimony in court was false in the sense that it was inaccurate--certainly it is irreconcilable with his testimony at the preliminary examination. Nevertheless, petitioner has not pleaded sufficient facts that, if established, would entitle him to habeas corpus relief.
It is a violation of criminal defendants' federal due process rights for the prosecution to present false testimony against them. "Originally . . . a defendant had to establish by a preponderance of the evidence that perjured testimony was adduced at his trial, that representatives of the state knew of its falsity, and that such testimony may have affected the outcome of the trial. [Citations.] Under the current rule, a showing that the false testimony was perjurious, or that the prosecution knew of its falsity, is no longer necessary." (People v. Marshall (1996) 13 Cal.4th 799, 829-830.) However, the outcome test survives, in this form: " 'False evidence is "substantially material or probative" if it is "of such significance that it may have affected the outcome," in the sense that "with reasonable probability it could have affected the outcome . . . ." [Citation.] In other words, false evidence passes the indicated threshold if there is a "reasonable probability" that, had it not been introduced, the result would have been different.' [Citation.] 'The requisite "reasonable probability" ' is 'determined objectively,' is 'dependent on the totality of the relevant circumstances,' and must 'undermine the reviewing court's confidence in the outcome.' [Citation.]" (In re Cox (2003) 30 Cal.4th 974, 1008-1009.)
Because petitioner does not meet this test, he is not entitled to relief on habeas corpus. Even if Detective Riles's testimony at the in limine hearing and at trial was false in that it was inaccurate, the evidence overall, including that of the other safeguards Detective Riles employed in showing the lineup to Sharvis Mitchell, Mitchell's identification of petitioner in court, Anthony Fairbanks's identifications of petitioner, and the other strong inculpatory evidence adduced at trial give us confidence in the outcome. Indeed, at the preliminary examination Detective Riles related the firmness of Mitchell's identification of petitioner in stronger terms than the officer testified to at trial. "Referring to my report," Detective Riles testified, Mitchell said "that's him. I never forget a face. He did this shooting in the apartment." Even if petitioner might also question this aspect of Detective Riles's testimony given the irreconcilability of certain testimony the officer gave, it remains true that throughout the record of this case neither Mitchell nor Fairbanks ever wavered in their identifications of petitioner as the man who shot them.
Prosecutorial misconduct occurs when the prosecutor's " 'conduct either infects the trial with such unfairness as to render the subsequent conviction a denial of due process, or involves deceptive or reprehensible methods employed to persuade the trier of fact.' " (People v. Lynch (2010) 50 Cal.4th 693, 760.) It is "fundamental fairness [that is] the touchstone of due process . . . ." (Gagnon v. Scarpelli (1973) 411 U.S. 778, 790, italics added.) Petitioner alleges that an unfairness occurred here, but even if the prosecutor knew of the discrepancy in Detective Riles's instances of testimony and did not act to correct him, the omission did not constitute such fundamental unfairness as to result in a due process violation.
II. Ineffective Assistance of Counsel
Next, petitioner claims ineffective assistance of counsel because his counsel failed to notice the discrepancy and challenge Detective Riles's testimony at the in limine hearing or before the jury.
There is, of course, a two-part test that determines the outcome of an ineffective assistance of counsel claim. A claim of ineffective assistance of counsel in violation of the Sixth Amendment entails deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an adverse effect on the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.) The Strickland standards also apply to petitioner's claim under article I, section 15 of the California Constitution. (E.g., People v. Waidla (2000) 22 Cal.4th 690, 718.)
We will assume for purposes of argument that defense counsel performed deficiently in failing to act on the discrepancy in Detective Riles's various instances of testimony. Like the prosecutor, he was also counsel at the preliminary examination, the in limine hearing, and the jury trial. "If the record 'sheds no light on why counsel acted or failed to act in the manner challenged,' an appellate claim of ineffective assistance of counsel must be rejected 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.' " (People v. Ledesma (2006) 39 Cal.4th 641, 746.) Here, however, there could be no satisfactory explanation for failing to challenge the discrepancy. Counsel's failure to challenge Detective Riles's recollections is evident on the face of the record.
Nonetheless, petitioner has not pleaded sufficient facts that, if established, would entitle him to habeas corpus relief. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.) For the reasons stated above, we are confident that the outcome was just and reliable and satisfied state-law and federal constitutional requirements.
The judgment is affirmed and the petition for writ of habeas corpus is denied.
Bamattre-Manoukian, Acting P. J.