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THE PEOPLE v. JOSEPH WAYNE WILLIAMS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT STATE OF CALIFORNIA DIVISION ONE


November 30, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOSEPH WAYNE WILLIAMS, DEFENDANT AND APPELLANT.

APPEAL from a judgment of the Superior Court of Riverside, Timothy F. Freer, Judge. Affirmed as modified. (Super. Ct. No. SWF022122)

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

P. v. Williams

CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

As a result of a violent incident at a video store in Hemet, California, a jury found Joseph Wayne Williams (Williams) guilty of the second degree murder of Anthony Scott (count 1: Pen. Code,*fn1 § 187, subd. (a)). Williams's brother and co-defendant, Anthony Edward Williams, Jr. (Williams's brother), who is not a party to this appeal, pleaded guilty to one count of assaulting Quadrus Wilson by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) during the same incident and admitted an allegation that he personally inflicted great bodily injury on him (§ 12022.7, subd. (a)).

The court sentenced Williams to an indeterminate state prison term of 15 years to life and ordered that he "is not to own or possess or have under his control any firearm or deadly weapon or related paraphernalia for life pursuant to [section] 12021."

Williams appeals, contending (1) the court prejudicially violated his rights under the confrontation clause of the Sixth Amendment to the United States Constitution by admitting into evidence, through the expert testimony of forensic pathologist Dr. Aaron Gleckman, testimonial hearsay that neuropathologist Dr. Stephanie Erlich, who did not testify in this matter, included in her report following her autopsy examination of Scott's brain; (2) he did not forfeit this Sixth Amendment claim, but if this court concludes he forfeited the claim because his trial counsel did not move for a new trial based on Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [129 S.Ct. 2527] (Melendez-Diaz), which was decided the day before he was sentenced on June 26, 2009, then he was denied effective assistance of counsel;; and (3) the judgment should be modified to delete the terms and condition relating to the lifetime ban on owning, using, or possessing weapons or related paraphernalia.

The People agree that Williams did not forfeit his Sixth Amendment claim and that the portion of the court's order banning Williams from owning, possessing, or having under his control any deadly weapons or related paraphernalia is in excess of the court's jurisdiction. The People contend, however, that (1) the court properly admitted into evidence Dr. Gleckman's expert opinion testimony, which was based in part on Dr. Erlich's neuropathology report, because Dr. Erlich's report was not a testimonial statement under People v. Geier (2007) 41 Cal.4th 555 (Geier); and (2) even if Dr. Erlich's report were a testimonial statement, any error by the court in admitting into evidence Dr. Gleckman's testimony regarding the contents of Dr. Erlich's report was harmless beyond a reasonable doubt.

For reasons we shall explain, post, we conclude that Williams did not forfeit his Sixth Amendment claim, and that any federal constitutional violation was harmless beyond a reasonable doubt. We modify the judgment by reversing the portion imposing on Williams a lifetime ban on owning, using, or possessing "any . . . deadly weapon or related paraphernalia" because the court exceeded its jurisdictions when it imposed such a ban. In all other respects, we affirm the judgment.

FACTUAL BACKGROUND

A. The People's Case

1. The video store incident

On November 30, 2006,*fn2 at around 7:00 p.m., 30-year-old Wilson and his 21-year-old friend Scott drove to Gary's Video in Hemet to return videos Wilson had rented. At trial, Wilson described Scott as "fair-skinned" and "part Hispanic." Wilson parked his car in the video store parking lot, to the left of a black Camaro.

Williams's brother was in the driver's seat of the black Camaro. Also in the Camaro were Williams, who was sitting in the rear passenger-side seat; and Williams's brother's girlfriend, Chilo Alvarado, who was sitting in the front passenger seat.

According to Wilson, as he and Scott parked the car in front of the video store, Williams's brother stared at them with a facial expression that was "like a frown." While Williams's brother was still staring at them, Scott exited the car and walked toward the video store. As Scott was walking to the store, Williams's brother said something to him, Scott said something back, and then Scott walked into the store.

A few seconds later, as the Camaro started backing out of its parking space, Scott exited the video store. Williams's brother stopped the Camaro, and he and Williams exited the car. The two men started walking toward Scott, who was in front of the store.

Wilson stepped out of his car and, standing next to Scott, engaged in a confrontational conversation with Williams's brother. At trial Wilson described Williams's brother's demeanor as "hostile." The two men said to each other something like, "What's up?" and "What are you doing?" Williams's brother was using Crips gang language, repeatedly using the word "cuz." Williams's brother then struck Wilson on the right side of his face, knocking off Wilson's glasses and causing him to fall to one knee. Williams's brother immediately grabbed Wilson's sweater and pulled it over Wilson's head, obstructing his vision.

During the altercation, Wilson heard Williams's brother say, "Fuck 'em, cuz. Fuck 'em, cuz. Fuck 'em, cuz. Fuck them." Williams's brother then kicked Wilson in the face, causing him to bleed. Wilson was unable to see anything in front of the video store while this was happening.

After he was kicked and the fight stopped, Wilson stood up and pulled the sweater off his head. He saw Scott lying unconscious on the ground a few feet from the video store door as the Camaro was driving away. Knowing that Scott was hurt and wanting to get the Camaro's license plate number, Wilson got into his car and searched for the Camaro. Unsuccessful, he returned to the parking lot and saw that Scott was standing up, but looking very "wobbly."

Scott told Wilson he felt "all right," but wanted to go to his grandmother's house so that he could go to sleep. As they drove to Wilson's grandmother's house, Wilson complained that he was not feeling well and his head hurt.

2. Witnesses to the incident

Steve Feddema, who was driving home, stopped at a red traffic light and observed two men fighting in front of Gary's Video. At trial he indicated that one of the men quickly went down to his knees as he was "fighting back," and then to the ground on his back. The other man, who had his back to the store entrance and was on the right side of the man on the ground, held onto a horizontal rail, and jumped up and down as he kicked the man on the ground six or more times. Feddema believed another man, who was on the left side of the man on the ground, was also kicking him.

Feddema stated that the man on his back had his hands out to his side as he was being kicked and did not move in any way to protect himself or cover his face. Believing the man was being injured in a violent attack, Feddema honked his horn three or four times, hoping to scare off the attackers, but the honking did not seem to work. The kicking lasted more than half the cycle of the red traffic light. Feddema saw the man who had done the kicking and another man get into a car and drive away. He saw a third man, whom he described as "the black guy," get into another car, start to leave, and then return. Feddema pulled his car into the parking lot where he saw the victim of the kicking "halfway standing" and leaning against a wall.

On December 5, Detective Michael Elmore of the Hemet Police Department interviewed Feddema about the November 30 fight in front of the video store. Detective Elmore took notes and recorded the interview. Feddema indicated that the suspect positioned closest to the video store was the one who was jumping up in the air and coming down on the victim's head and using a rail near the front of the store to gain more power with his kicks and stomps. Feddema described the man doing the stomping and kicking as a lighter-skinned individual with long hair.

Kapres Ward testified that in the evening on November 30, she was asleep in her car in the parking lot of Gary's Video while her sister was in the store renting a movie. She awoke and observed a dark-skinned African-American man and a lighter-skinned man with a ponytail fighting and struggling. The men were grabbing each other, and the one with the ponytail pulled the other man's sweater over his head, pushed him onto the ground, and hit him once or twice.

Ward also observed two other men, closer to the door of the video store, looking downward and making kicking motions. One was "scrawny" and the other was very heavy, about six feet tall, with short "buzz-cut" hair. Ward did not know what they were kicking, but they were an arm's length apart, they were not kicking at each other, and they did not appear to be fighting with each other. Her view was partially obstructed. She could see the larger individual down to his thighs and the scrawny one down to his kneecaps. She saw the scrawny individual lift his right knee and then move it downward quite a few times. He was by a pole with a hand rail as he was doing this, and he was not being attacked in any way.

According to Ward, a woman ran out of the video store, the man with the ponytail said, "Let's go," and the woman, the man with the ponytail, and the scrawny man got into a black car and drove away. She did not see the bigger man with the buzz-cut hair get into the car, but when the car drove off he "wasn't there anymore."

A few minutes later, Ward saw a Hispanic man with a buzz-type haircut sit up, looking dazed or confused as if he had just woken up, and then stand up. He had been lying on the ground in front of the video store door. Ward and the dazed man stared at each other, and then he turned his back to her and grabbed a pole on the side of the door and stood there. She testified she had not seen this man during the time the scrawny man was standing near the front door of the store making kicking motions. The man she saw stand up did not have a weapon.

Ward also testified that the African-American man whose sweater had been pulled over his head had driven away, and when he returned the dazed Hispanic man got into his car, and the two drove away.

Donna Throop was working as a clerk at Gary's Video when the incident occurred. She testified that at around 7:30 p.m. that night, Williams's brother and Alvarado entered the store. Throop was on friendly terms with Williams's brother, who had a ponytail, and his father. After Williams's brother and Alvarado left the store, Throop heard a woman yell, then Alvarado ran into the store and told Throop to "get help" and "call the police." Alvarado then went back outside.

Throop did not immediately call the police. Instead, she called Williams's father's house, spoke with Williams's sister, and told her to tell Williams's father to come to the video store because there had been a fight. Throop called 911 about 15 minutes after she called Williams's father's house. When she went outside the store, Scott looked dazed and was leaning against a wall, bleeding from the nose.

Throop denied knowing that Williams and his brother were "beating" on two other people. She also denied that she wanted to protect them.

The prosecution also called Williams's brother's girlfriend, Alvarado, as a witness. She stated she was with Williams and his brother when Williams's brother drove them to the video store in her black 1993 Chevy Camaro. Williams's brother started fighting with Wilson. Scott went over to where they were fighting and made a motion to help Wilson. Williams prevented Scott from walking forward two or three times by blocking his path. Alvarado claimed that Scott swung three times at Williams, missing each time, and then tackled Williams. She stated they both fell backwards, with Scott on top.

Alvarado also testified that Williams kicked Scott in the testicles, and then the fight "pretty much" ended. Alvarado acknowledged that she did not give this version of the incident to the police when she was interviewed the day after the incident.

3. Scott's death

When he arrived at his grandmother's house, Scott told her he had been in a fight and complained about having a headache. Scott started throwing up and took a shower.

The next morning, Scott's grandmother found him unresponsive in his bedroom floor and called the paramedics, who took him to the emergency room at the Riverside County Regional Medical Center.

Dr. Silvio Hoshek, a neurosurgeon, testified that a series of CAT scans showed that Scott, who was unconscious and bleeding from the nose, had fractures under his eyes and a large epidural hematoma (or blood clot) on the right side of his brain "severely" pushing the brain from right to left. Dr. Hoshek stated that an examination showed Scott also suffered bruises over the left chest or clavicle, bruises over the left eye and left frontal or scalp areas.

Dr. Hoshek also testified that although Scott's prognosis was "very, very poor," surgeons performed a craniotomy in an effort to remove the hematoma to relieve the pressure the blood clot was putting on the brain. However, Scott was pronounced brain dead within 24 hours.

4. Autopsy evidence

As discussed more fully, post, Dr. Gleckman of the Riverside County Sheriff Coroner's Office conducted Scott's autopsy. Scott's brain was removed by Dr. Gleckman and examined by Dr. Erlich, a neuropathologist who prepared a report based on her findings but did not testify at the trial. Dr. Gleckman testified that both he and Dr. Erlich observed "significant brain swelling."

Dr. Gleckman also testified that he examined the inside of the skull and observed that Scott had suffered a linear skull fracture towards the right temple that "most likely" was the cause of the "significant epidural hemorrhage" that Scott suffered. Relying on (among other things) his autopsy findings and Dr. Erlich's neuropathology report, Dr. Gleckman opined that the cause of Scott's death was "[b]lunt-force head trauma" from an assault. He also opined that "[a] fall certainly can't explain" all of Scott's injuries.

5. Evidence of Williams's prior bad acts

Bryan Flores and Raymond Jacobo testified regarding a May 2003 incident in which Williams and several other individuals attacked them. Flores was punched on the right side of his face. Jacobo suffered a broken jaw that required surgery.

Officer Heather Moon of the Riverside County Sheriff's Department testified that after she advised Williams of his Miranda*fn3 rights and he waived those rights, Williams told her he hit Flores and Jacobo because "[t]hey were looking at me and fronting me off, so I had to do something about it."

Jorge Mora and Dennis Grajeda testified about a July 2007 incident in which they and some friends were attacked by Williams, Williams's brother, and several other individuals during a brawl at a fast-food restaurant in San Ysidro. Grajeda testified that Williams came up to him "out of nowhere" and punched him in the face. Grajeda suffered two broken teeth and a broken jaw that required reconstructive surgery.

B. The Defense Case

Williams acknowledged that he hit Grajeda in the face during the July 2007 incident at the fast-food restaurant in San Ysidro, stating he did not mean to hurt Grajeda, and "it was kind of a reaction of a self-defense. It was just kind of the heat of the moment."

Williams confirmed he went to Gary's Video with his brother and Alvarado in Alvarado's black Camaro on November 30, 2006. He claimed that as they were about to leave, Wilson argued with Williams's brother, and Wilson got out of his car and opened the trunk of his car. Williams and his brother then got out of their car as Scott exited the video store.

Williams indicated that when Wilson reached into the trunk of his car, Scott said something about a "rumble," and he (Williams) told Scott, "Just go home. There ain't no need for all this." Williams then saw that his brother and Wilson were wrestling and fighting.

Williams also testified that when Scott started moving towards Williams's brother, he (Williams) blocked Scott's path and Scott angrily pushed Williams. Williams pushed Scott back, causing the left side of Scott's body to make contact with the Camaro, and Scott swung at Williams.

Williams claimed he then hit Scott "once or twice" in the face and head in self-defense, knocking Scott "directly to the ground." He indicated he then grabbed his brother, they got in the Camaro with Alvarado, and they left.

Williams denied kicking or hitting Scott after he knocked him to the ground, and indicated he did not see anyone else hit Scott when he was on the ground. He indicated he did not see two men beating Scott that night and claimed he did not intend to injure or hurt Scott.

DISCUSSION

I. RIGHT TO CONFRONTATION

Williams contends the court prejudicially violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution by admitting into evidence, through the expert testimony of forensic pathologist Dr. Gleckman, testimonial hearsay in the form of forensic medical findings that Dr. Erlich, a neuropathologist who did not testify in this matter, included in her autopsy report following her examination of the victim's (Scott's) brain. Williams asserts that "[t]o the extent [Dr. Gleckman] also relied on his own examination of Scott, [Dr.] Gleckman used the testimonial hearsay to corroborate himself." We conclude any error was harmless beyond a reasonable doubt.

A. Background

On direct examination, Dr. Gleckman indicated that he conducted Scott's autopsy and prepared notes based on it. He testified about his observations regarding the external trauma (unrelated to a craniotomy procedure) that Scott suffered to his head, face, shoulder, and hand, all of which (Dr. Gleckman concluded) resulted from multiple impacts. Dr. Gleckman also testified about the internal trauma, which included hemorrhaging, that he observed under the scalp when it was "reflected" (pulled back) during the autopsy procedure.

Dr. Gleckman indicated that he exposed the brain by removing a portion of the skull, and he then removed the brain. He stated that he knew the brain was going to be further examined by Dr. Erlich, and thus he "didn't do too much of an examination" of the brain, but he observed that "there was no obvious epidural hemorrhage left" because it had been taken out by the neurosurgeon.

Dr. Gleckman testified that Dr. Erlich, who is a board-certified neuropathologist, "examined the brain further" after it was detached from the body, and she prepared a report based on her findings. He stated that he reviewed Dr. Erlich's report, which "help[ed him] in [his] final determination of the cause of [Scott's] death." He also stated he used Dr. Erlich's report "as a basis for [his] opinion" regarding the cause of Scott's death.

Referring to Dr. Erlich, the prosecutor asked Dr. Gleckman, "Can you tell us what her findings were with respect to her examination of Mr. Scott's brain?" Dr. Gleckman replied:

"Well, in summary, she found acute subarachnoid hemorrhage, just a small amount. And subarachnoid hemorrhage, that's another space. Again, there's the bony skull, and then the dura, and then under the dura is the subdural space, and then there's a very thin membrane there almost like cellophane, it's called the arachnoid membrane. And then underneath that would be the subarachnoid space on the very surface of the brain tissue itself, and that's where she found some recent subarachnoid hemorrhage.

"She also found some acute cerebral cortical contusions or bruises on the brain itself. And those were bilateral frontal, or both sides of the frontal lobe of the brain, and bilateral temporal that were on the temporal lobes of the brain.

"She also [found], as I found when I did the initial autopsy, [that] there [was] significant brain swelling. And along with that brain swelling there were multiple brain herniations. And a hernia is just a fancy medical term for saying that something is in a place that it shouldn't be. And because the brain can swell up a lot when there's injury to the tissue, and [the skull is] a very strong structure─it's a fixed, bony structure─it doesn't have much place to go.

"And in this case, she found that there was herniation of the brain from right to left, which is called midline shift. There's also uncal and tonsillar herniation, which is parts of the brain getting compressed due to the pressure. And the uncal herniation is the temporal lobes that get pushed at a point, and the tonsillar herniation is the cerebellum, which is a little portion of the brain in the back of the brain, it gets . . . pushed down and compressed." (Italics added.)

Dr. Gleckman opined that the brain swelling and herniations were "a secondary effect of the trauma, the blunt-force trauma to the head, the skull fracture." He explained that "[i]t's a secondary effect. First you have blunt-force trauma to the head and the injuries, and then over a period of hours you have the swelling of the brain, and then the herniations come later. [¶] And what happens is that when your brain stem, the portion of your brain that connects down to the spinal cord, is tugged on and compressed, you basically─that's when someone dies, because your cardiorespiratory centers─the centers that control your heart, breathing, respirations─those are all regulations in the brain stem. And once that is injured, someone can't live anymore."

When the prosecutor asked Dr. Gleckman in what portions of the brain Dr. Erlich found the contusions or bruising, he replied that Dr. Erlich found bruising on the frontal lobes of the brain, which are in the front towards the forehead, and on both temporal lobes on the left and right side of the brain where the temples are.

Dr. Gleckman indicated that after he removed the brain, he observed the "internal portion," or "base," of Scott's skull. When the prosecutor asked him whether he discovered any trauma, Dr. Gleckman testified that on the right side of the skull base, "up towards the temple," he found a "one-and-a-half[-]inch linear skull fracture" that was unrelated to the craniotomy procedure performed on the skull.

Dr. Gleckman stated that, based on his observations, the linear skull fracture he found was a trauma that "most likely" was "the cause of the significant epidural hemorrhage that the neurosurgeons evacuated or removed at the time of the surgery."

The prosecutor then showed Dr. Gleckman a photograph of the internal base of Scott's skull that was taken during the autopsy, and asked him to "point out to the jury [his] observation of the linear fracture." Pointing to the photograph, Dr. Gleckman stated:

"[I]t is pretty obvious, and it's over on this side, the right side, the middle cranial fossa. And here you can see the fracture where the purple is. This is an actual break in the bone. And of importance that it was purple, too, people, when they're alive, and they get fractures, very often get associated hemorrhage or bleeding with them. If they're dead, then they get minimal to no associated bleeding. And this purple area of hemorrhage in here is significant that he was clearly alive when this happened."

The prosecutor then asked Dr. Gleckman, "[B]ased on everything you've told us to this point, your observations, your examination of Mr. Scott, do you have an opinion as to his cause of death?" (Italics added.) Indicating he did, Dr. Gleckman replied, "Blunt-force head trauma."

Next, the prosecutor asked, "And what evidence are you relying upon to support that particular opinion?" Dr. Gleckman answered, "Well, everything that I reviewed. The deputy coroner's report of the investigation, all of my autopsy findings, and also Dr. Erlich's neuropathology report."

Noting that Dr. Gleckman had "described all the trauma on the exterior portion of Mr. Scott's face and skull earlier, in addition to his shoulder and finger," the prosecutor asked Dr. Gleckman, "Is it likely the injury he suffered in this case happened from a fall?" Dr. Gleckman replied, "No. Certainly not all of those injuries could be explained by a fall."

Asking Dr. Gleckman to assume that Scott fell from a kneeling position, the prosecutor asked, "[C]ould the . . . blunt-force trauma of striking the ground have been a cause of death?" Dr. Gleckman answered, "Not from a kneeling position."

The prosecutor then asked Dr. Gleckman to assume that Scott fell unconscious from a standing position and struck his head on a hard surface. When the prosecutor asked Dr. Gleckman whether there was evidence to believe, based on his experience, that that occurred in this case, Dr. Gleckman replied, "I think it's unlikely," and explained:

"[T]here's a couple reasons. One, . . . certainly someone that falls from a standing position onto a hard surface such as concrete or asphalt, they can get a skull fracture, and they can get epidural hemorrhage and the brain contusions and swelling. Again, that would be from a standing fall, because you need at least a few feet or several feet to fall in order to generate enough force to cause all those injuries. And usually when someone gets a skull fracture when they fall, they usually get a fracture down in the posterior cranial fossa, and usually it's down in this area, and often it will form a connection down into the foramen magnum or the big hole at the front of the posterior cranial fossa.

"In this case, this fracture was up towards the temple or on the side of the skull. That is much more consistent with a very large force of compression, a blow more to the side of the head than a fall where people usually will hit the back of their head or sometimes the front of their head."

"And another constellation of findings that you can see in this case is that there's multiple different planes of blunt-force injury, meaning if someone falls, they usually only get abrasions or contusions─again, that's scratches or bruises─on where they actually fall, and that's one plane. . . . In [Scott's] case he had multiple planes on both sides of his head or marks on both sides. That's indicative of an assault not a ground-level fall." (Italics added.)

Dr. Gleckman then repeated his testimony that there were multiple planes of injury to both sides of Scott's head, which indicated that both sides of the head received blunt-force trauma on more than one occasion.

On cross-examination, defense counsel asked Dr. Gleckman whether in his opinion Scott's head injury could have happened from a fall. Dr. Gleckman answered, "In my opinion this is certainly not from a fall from someone who's kneeling. And even someone who is standing up falling onto a hard surface would not receive all of these injuries." Upon further questioning, Dr. Gleckman stated:

"I can't tell 100 percent just by looking at one fracture. And as I mentioned, I can't fully rule out that he got the fracture from the ground─you know, a fall where someone is standing upright. But the fracture to me is much more consistent with the head being compressed for some reason. But I can't fully rule out that that was from a ground-level fall. And the fact that he has multiple injuries on both sides of his face and multiple planes, front, back, left, right, is indicative that it was an assault. That wasn't from a fall, the totality of the injuries." (Italics added.)

On redirect examination, the prosecutor asked Dr. Gleckman the following hypothetical question:

"Say you have an individual, five-foot-nine, male, about 180 pounds, while lying on his back─and there's evidence that this male was struck on the left side of the face while lying on a flat, hard surface, both with fists, with feet, and stomping motions, and later injuries were observed on the face of the individual, including a contusion and abrasion in the base of the nose or the bridge of the nose, a contusion in the middle of the forehead, an abrasion on the left temple portion of the head, an abrasion on the left ear of the head, a contusion on the right upper temporal area of the skull, and multiple other abrasions and contusions, and in that person you find a linear fracture in the mid[-]right cranial fossa, would you have an opinion as to what caused the death of that person?"

Dr. Gleckman replied, "Yes," and stated, "Again, it's blunt-force head trauma, and it would be from some sort of an assault that caused compression or large forces on the head itself."

The prosecutor also asked him, "[I]n this particular case involving Mr. Scott, based on all the evidence you examined during the autopsy, in addition to the analysis of Dr. Erlich, was it more likely that the . . . death suffered by Mr. Scott was by blunt-force trauma as a result of an assault?" (Italics added.) Dr. Gleckman answered, "Yes."

Finally, when the prosecutor asked whether the fact that Scott suffered multiple planes of injury on both sides of his skull made it "even far more impossible" that his death resulted from a fall, Dr. Gleckman stated, "Yes. A fall certainly can't explain all of those injuries."

B. Sixth Amendment Confrontation Clause

The confrontation clause of the Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." (U.S. Const., 6th Amend.) The United States Supreme Court discussed this constitutional guarantee in Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and its progeny, including Melendez-Diaz, supra, 129 S.Ct. 2527. However, the contours of the confrontation clause remain elusive because the high federal court has not defined, for purposes of that clause, precisely who is a witness and what constitutes testimony. (See Melendez-Diaz, supra, 129 S.Ct. at pp. 2531-2532; Davis v. Washington (2006) 547 U.S. 813, 826-828; Crawford, supra, 541 U.S. at pp. 51-52.) Rather, the Supreme Court has described a "core class of 'testimonial' statements" that are covered by the confrontation clause, the various formulations of which include (1) "'ex parte in-court testimony or its functional equivalent─that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially'[; (2)] 'extra-judicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions'[; and (3)] 'statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.'" (Crawford, supra, 541 U.S. at pp. 51-52; Melendez-Diaz, supra, 129 S.Ct. at pp. 2531-2532.)

In Crawford, the Supreme Court explained that the confrontation clause applies to " 'witnesses' against the accused─in other words, those who 'bear testimony.' [Citation.] 'Testimony,' in turn, is typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' " (Crawford, supra, 541 U.S. at p. 51.) Crawford held the Sixth Amendment right of confrontation precludes the admission of testimonial hearsay against a defendant in a criminal trial unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. (Id. at p. 54.)

Since Crawford, courts have grappled with the question of what constitutes "testimonial hearsay." The California Supreme Court addressed this question in Geier, supra, 41 Cal.4th at pp. 597-605. The high court concluded "a [hearsay] statement is testimonial if (1) it is made to a law enforcement officer or by or to a law enforcement agent and (2) describes a past fact related to criminal activity for (3) possible use at a later trial. Conversely, a statement that does not meet all three criteria is not testimonial." (Id. at p. 605.) Applying this test, the Geier court determined that reports of DNA testing were not testimonial hearsay because they did not meet the second criterion. The court explained that DNA testing reports "constitute a contemporaneous recordation of observable events rather than the documentation of past events." (Ibid.) Moreover, the court reasoned that, when analysts performing DNA testing contemporaneously record their actions, observations, and test results, they are not acting to incriminate a defendant because their reports have the potential to be either inculpatory or exculpatory. Therefore, the analysts are not acting as accusatory witnesses and are not testifying when they prepare their reports. (Id. at pp. 605-607.) Accordingly, the Geier court held reports of DNA testing are not testimonial and their admission does not conflict with Crawford. (Geier, at p. 607.)

Most recently, in Melendez-Diaz, a case involving a prosecution for distributing and trafficking in cocaine, the United States Supreme Court analyzed a defendant's right to confront the preparer of a " 'certificate of analysis' " (or affidavit) (Melendez-Diaz, supra, 129 S.Ct. at p. 2531) from a laboratory analyst that contained only the bare-bones statement that " '[t]he substance was found to contain: Cocaine.' " (Melendez-Diaz, supra, 129 S.Ct. at p. 2537.) Concluding that the affidavit was "functionally identical to live, in-court testimony," the Supreme Court held that, for purposes of the confrontation clause, the analyst was a witness, the analyst's affidavit was "testimonial," and thus the affidavit could not be admitted in lieu of in-court testimony unless the analyst was unavailable to testify at trial and the defendant had a prior opportunity to cross-examine the analyst. (Id. at p. 2532.) The Melendez-Diaz court reasoned that the prosecution's failure to present the analyst at trial for cross-examination prevented the defendant from examining "what tests the analyst[] performed, whether those tests were routine, and whether interpreting [the] results required the exercise of judgment or the use of skills that the analyst[] may not have possessed." (Id. at p. 2537.)

C. Analysis

1. Forfeiture

Williams asserts he did not forfeit this Sixth Amendment claim, but if this court concludes he did forfeit the claim because his trial counsel did not move for a new trial based on Melendez-Diaz, supra, 129 S.Ct. 2527, which was decided the day before he was sentenced on June 26, 2009, then he was denied effective assistance of counsel.

Agreeing that Williams did not forfeit this claim, the Attorney General asserts that Williams "cannot demonstrate his counsel's performance was deficient when [his] counsel did not object to [Dr. Gleckman's] testimony regarding [Dr. Erlich's] neuropathology report because . . . under Geier[, supra, 41 Cal.4th 555], which was the controlling California Supreme Court precedent at the time of [Williams's] trial, the report was not a testimonial statement within the meaning of Crawford [, supra, 541 U.S. 36]. . . . Consequently, any objection based on Crawford would have been rejected as, at the time of [Williams's] trial, Geier was (and still is) controlling. Counsel was not required to make a groundless objection."

We agree with Williams and the People that Williams did not forfeit his Sixth Amendment claim. A defendant will be excused from the necessity of a timely objection if it would be futile. (People v. Hill (1998) 17 Cal.4th 800, 820.) Here, the United States Supreme Court decided Melendez-Diaz, supra, 557 U.S. ___ [129 S.Ct. 2527] on June 25, 2009, more than a month after the jury returned its verdict in this case on May 21 of that year. Thus, Geier, supra, 41 Cal.4th 555, was the controlling authority at the time the trial court received Dr. Gleckman's testimony regarding Dr. Erlich's neuropathology report in this case, and we are persuaded the trial court likely would have found itself compelled under Geier to overrule a defense objection to Dr. Gleckman's testimony on confrontation grounds. Accordingly, we need not address the issue of whether Williams was denied effective assistance of counsel.

2. Merits

The Sixth Amendment issue raised by Williams's appeal is whether the court's admission into evidence of Dr. Gleckman's testimony conveying findings from the report authored by Dr. Erlich, who did not testify at trial or at any point during the proceedings, regarding her examination of the victim's (Scott's) brain violated Williams's Sixth Amendment right to confrontation.

Because of the inconsistencies between Melendez-Diaz, supra, 129 S.Ct. 2527 and Geier, supra, 41 Cal.4th 555, Williams contends Geier is no longer good law and, under Melendez-Diaz, the trial court prejudicially erred in admitting the autopsy information contained in Dr. Erlich's report. The Attorney General contends Melendez-Diaz is "consistent" with Geier, and the court did not err by admitting Dr. Gleckman's testimony regarding Dr. Erlich's report because, under Geier, the report was not a testimonial statement within the meaning of Crawford, supra, 541 U.S. 36.

Even if we were to assume that Melendez-Diaz applies in this case, and that the court violated Williams's confrontation rights under the Sixth Amendment, we conclude any such error was harmless beyond a reasonable doubt. The question of how Melendez-Diaz affects Geier is currently pending before the California Supreme Court,*fn4 and thus, in light of our holding that any Sixth Amendment error was harmless beyond a reasonable doubt, we need not decide this matter or the issue of whether the court's admission of Dr. Gleckman's testimony regarding Dr. Erlich's report is a violation of Williams's constitutional rights under the Sixth Amendment.

"Confrontation clause violations are subject to federal harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24. [Citation.] 'Since Chapman, we have repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.' [Citation.] The harmless error inquiry asks: 'Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?' " (Geier, supra, 41 Cal.4th at p. 608.) The Chapman harmless-error inquiry requires consideration of "the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." (Delaware v. Van Arsdall (1986) 475 U.S. 673, 684.)

Here, Dr. Gleckman's expert opinion testimony that the cause of Scott's death was blunt-force trauma to the head inflicted during an assault, rather than sustained during a fall, undoubtedly carried great weight with the jury when it rejected Williams's defense that Scott died as a result of a fall outside the video store and that Williams was not responsible for that fall because he was acting in self-defense. Although Dr. Gleckman testified that he used Dr. Erlich's report as a basis for his opinion, he also indicated that he relied on his own observations during his autopsy examination of Scott's body. Specifically, Dr. Gleckman testified about external trauma he observed on Scott's head, face, shoulder, and hand that led him to conclude those injuries were caused by multiple impacts. He also testified about the internal trauma he observed, including significant swelling of the brain and the linear skull fracture he discovered inside the base of the skull near Scott's right temple. Of particular significance was Dr. Gleckman's testimony that, based on his observations, the linear skull fracture was a trauma that "most likely" was "the cause of the significant epidural hemorrhage that the neurosurgeons evacuated or removed at the time of the surgery."

The foregoing record demonstrates that Dr. Gleckman's opinion regarding the cause of Scott's death was based on his own autopsy observations and was essentially independent of Dr. Erlich's findings, although those findings─on which he relied in part─served to corroborate his own independent conclusion. Also, any error in receiving evidence of Dr. Erlich's findings was harmless beyond a reasonable doubt because Dr. Hoshek, a neurosurgeon who participated in performing the emergency craniotomy, testified that a series of CAT scans showed that Scott had a large epidural hematoma on the right side of his brain that was "severely" pushing the brain from right to left.

Apart from Dr. Gleckman's expert opinion testimony, the trial record contains overwhelming incriminating and admissible evidence from which any rational jury would have found Williams guilty beyond a reasonable doubt absent the assumed federal constitutional error of admitting the evidence of Dr. Erlich's findings. Williams himself testified he hit Scott multiple times in the face and head with both fists, knocking him to the ground. Williams's brother's girlfriend, Alvarado, testified that Williams kicked Scott after he fell to the ground, although she claimed Williams only kicked Scott in the testicles. Eyewitnesses Feddema and Ward testified they observed a man stomp on or kick the head of another man who was lying on the ground while the kicker was using a railing for leverage. Feddema also testified that the victim, who was lying on the ground and not moving in any way to protect himself, was kicked "half a dozen times, if not quite a bit more." Furthermore, Williams's own testimony shows that he fled the scene after he hit Scott and knocked him to the ground. Evidence of flight is admissible to show consciousness of guilt. (People v. Turner (1990) 50 Cal.3d 668, 694, fn. 10.) The record shows the court instructed the jury to consider the evidence of Williams's flight in determining whether he was aware he was guilty. In addition, the prosecution presented evidence that Williams had been involved in prior assaults involving other victims.

For all of the foregoing reasons, we conclude that any error in admitting into evidence Dr. Gleckman's testimony regarding the contents of Dr. Erlich's report was harmless beyond a reasonable doubt.

II. ORDER BARRING POSSESSION OF ANY "DEADLY WEAPON"

Williams also contends the judgment should be modified to delete the terms and conditions relating to the lifetime ban on owning, using, or possessing weapons or related paraphernalia. The People agree the judgment should be so modified because the court exceeded its jurisdiction when it imposed such a ban.

A. Background

In sentencing Williams, the court ordered that "[h]e is not to own or possess or have under his control any firearm or deadly weapon or related paraphernalia for life pursuant to [section] 12021." (Italics added.) This portion of the judgment is reflected in the abstract of judgment, which states in paragraph No. 11, "Not own[,] possess, or have under your control any firearm or deadly weapon or related paraphernalia for LIFE pursuant to 12021 PC/US 922 (G) (1)." (Italics added.)

B. Analysis

As a convicted felon, Williams is statutorily prohibited under section 12021 from owning or possessing a firearm. Specifically, subdivision (a)(1) of that section provides: "Any person who has been convicted of a felony . . . and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony." (Italics added.) Thus, the portion of the court's order prohibiting Williams from owning, possessing, or having under his control "any firearm" is authorized and proper under that subdivision.

However, as Williams points out and the Attorney General acknowledges, the portion of the judgment prohibiting Williams from owning, possessing, or having under his control any "deadly weapon or related paraphernalia" was in excess of the court's jurisdiction. Accordingly, that portion of the judgment is stricken.

DISPOSITION

The judgment is modified to provide that Williams is not to own, possess, or have under his control any firearm for life pursuant to section 12021. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment that reflects the foregoing modification of the judgment and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

WE CONCUR: HUFFMAN, Acting P. J. O'ROURKE, J.


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