IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
December 20, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
FREDERICK BERNARD SAVANNAH, DEFENDANT AND APPELLANT.
(Contra Costa County Super. Ct. No. 50815274)
The opinion of the court was delivered by: Ruvolo, P. J.
P. v. Savannah CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After a jury trial, appellant was convicted of second degree murder (Pen. Code, § 187)*fn1 with a deadly weapon enhancement (§ 12022, subd. (b)(1)) and two counts of dissuading a witness by force or threat (§ 136.1, subd. (c)(1)). After waiving his right to a jury, the court found appellant had suffered one serious felony prior (§ 667, subd. (a)(1)), one prison prior (§ 667.5, subd. (a)), and two strike priors (§§ 667, subd. (b)-(i), 1170.12). The court imposed a sentence of 45 years to life in state prison.
On appeal, appellant claims: (1) the trial court failed to conduct an inquiry sufficient to remove a juror who might have been prejudicially biased against him; (2) the trial court erred in admitting hearsay statements made at the scene of the crime identifying him as the person who stabbed the victim; and (3) the trial court erred by permitting a police officer to offer opinion testimony as to whether or not he believed several witnesses were being truthful during their police interviews. We reject appellant's first two contentions, but agree with appellant that it was improper for the police officer to offer his personal opinion regarding the credibility of several interviewees. However, we find this error harmless. Consequently, the judgment is affirmed.
FACTS AND PROCEDURAL HISTORY
On July 8, 2008 at 4:35 p.m., police officers responded to the report of an assault in Richmond, California. When police officers arrived, they found a large crowd of people and the victim, 29-year-old Antonio Green, lying in front of his residence at 1515 Maine Avenue. The victim was lying in a large amount of blood and was found to have two stab wounds, one to the chest and the other to the ribcage. An autopsy revealed that the victim was stabbed with a knife with a blade length from three and one-half inches to seven inches. The victim's heart was penetrated. There were no defensive injuries which, according to the doctor who performed the autopsy, indicated "that the decedent was unaware that he was going to be stabbed at that time, and probably didn't have enough time to react to it."
The victim was stabbed at a party at 250 Marina Way, an address down the street from where the victim was discovered by police. All of the witnesses at trial who were guests at the party agreed that appellant was also in attendance. Everyone had been drinking heavily all day. Several witnesses testified that appellant had been arguing with the victim before the stabbing, although they disagreed as to the seriousness of the argument. There was no eyewitness who testified as to the exact manner in which the stabbing occurred. However, several witnesses who denied seeing the stabbing itself testified that they heard a woman exclaim that appellant had stabbed the victim.
One witness told police who arrived at the scene that although she never saw the stabbing, she saw appellant holding a kitchen knife with a blade approximately five inches long.*fn2 She then saw appellant chase the victim, who was bleeding, out the back door of the residence down the street towards the victim's residence. A blood trail was located from where the stabbing occurred at 250 Marina Way to where the victim collapsed in front of his residence.
Immediately after the stabbing, appellant threatened two of the women, Renee Hart and Carol Baker, not to say anything to anyone about what had happened. He reportedly said something to the effect, "If you all say anything, I'm gonna fuck you all up too." The next day, appellant boarded a bus to Louisiana with a layover in Dallas, Texas. Law enforcement agents in Dallas were contacted, and appellant was detained at the bus station. Appellant's girlfriend was with appellant when he was arrested in Dallas. Richmond police detectives went to Dallas to interview appellant. After appellant was admonished, he denied knowing the victim or being at the party in Richmond when the victim was stabbed. Appellant was transported back to Richmond to stand trial for murder.
At the conclusion of the evidence, the court instructed the jury on first and second degree murder. The jury was also instructed on voluntary and involuntary manslaughter, reasonable and unreasonable self-defense, heat of passion, and the legal effect of voluntary intoxication. In closing argument, the prosecutor conceded that "it might be difficult for you folks to find the defendant guilty of first-degree murder . . . because of the alcohol involved and the lack of specific details about exactly what transpired." However, the prosecutor urged the jury to return a verdict of second degree murder. Appellant's attorney argued that the evidence was legally insufficient to establish the identity of the perpetrator. However, he argued that if the jurors found appellant was the perpetrator, the evidence presented by various witnesses at the party describing the interaction between appellant and the victim over the course of the day supported the conclusion that the killing occurred in the heat of passion or in self-defense.
As already noted, the jury convicted appellant of second degree murder. He was sentenced to 45 years to life in state prison.
A. Failure to Conduct an Inquiry into Possible Juror Bias
Appellant first argues that the trial court improperly failed to conduct an inquiry as to whether a member of the jury was biased against him. Appellant was charged with killing Green with a knife, but the murder weapon was never positively identified. On June 2, 2009, the prosecutor entered into evidence approximately 14 knives from appellant's home. The next day, the trial court held a discussion with the parties regarding a note received from an unidentified juror. The note stated: "Your Honor. [¶] Please secure (or put-away [sic]) the knives in the courtroom. The defendant is not hand-cuffed [sic] & the bailiffs are extremely lackadaisical. [¶] Respectfully, [¶] Thank You." (Original underscoring.)
The trial court declined to ascertain the identity of the juror who wrote the note or to question the juror, as requested by appellant. The court explained, "[C]oncerns about courtroom security are not something I think rises to a level that an inquiry should be made. I don't think it shows a bias." The trial court wrote on the note, "Please secure them down. They are Ex[hibit] 19. [¶] Thank you, [¶] Judge Laettner." Presumably, the trial court gave the note to court personnel and the knives were secured.
Appellant claims the court mishandled the situation, and that the note from the juror demonstrated a strong probability that the juror was biased and was not affording appellant a presumption of innocence, which triggered a duty of the court to inquire to determine whether there was juror misconduct. Appellant insists "reversal is the appropriate remedy where the trial court's failure to conduct an inquiry into a juror's impartiality deprived the defendant of an opportunity to make a record."
However, a defendant is not entitled to such an inquiry as a matter of right. (People v. Dykes (2009) 46 Cal.4th 731, 809 (Dykes).) "[N]ot every incident involving a juror's conduct requires or warrants further investigation." (People v. Cleveland (2001) 25 Cal.4th 466, 478.) " '[A] hearing is required only where the court possesses information which, if proven to be true, would constitute 'good cause' to doubt a juror's ability to perform his duties and would justify his removal from the case. [Citation.]' [Citations.]" (Ibid.; People v. Martinez (2010) 47 Cal.4th 911, 942 (Martinez); Dykes, supra, at pp. 809-810.) "The decision whether to investigate the possibility of juror bias, incompetence, or misconduct rests within the sound discretion of the trial court. [Citations.]" (People v. Burgener (2003) 29 Cal.4th 833, 878; accord, Martinez, supra, at p. 942.)
Several authorities inform our analysis this issue. In In re Hamilton (1999) 20 Cal.4th 273 (Hamilton), during the guilt phase of a capital case, a sitting juror believed she saw the defendant's sister and the sister's boyfriend in a parked car in an alley behind her home. (Id. at p. 304.) The car sped off when the pair saw the juror. In seeking post-conviction relief, the defendant argued that the juror's fear as a result of the incident caused or exacerbated the juror's actual bias against him. (Ibid.)
The California Supreme Court rejected this argument, concluding that the "objective circumstances [gave] rise to no substantial likelihood that the encounter resulted in [the juror's] actual bias against" the defendant. (Hamilton, supra, 20 Cal.4th at p. 306.) The court explained: " '[W]hen the alleged misconduct involves an unauthorized communication with or by a juror, the presumption [of prejudice] does not arise unless there is a showing that the content of the communication was about the matter pending before the jury, i.e., the guilt or innocence of the defendant. [Citations.]' [Citations.] As described by [the juror], the alley incident included no 'communication' about the trial, only a brief, nonverbal observation of persons parked outside her home. [¶] Finally, if the incident, real or imagined, might be interpreted as an improper attempt to intimidate [the juror] by silent menace, the result is no different. The objective circumstances give rise to no substantial likelihood that the encounter resulted in [the juror's] actual bias against petitioner." (Id. at pp. 305-306.)
More similar to the situation here is People v. Navarette (2003) 30 Cal.4th 458 (Navarette), in which a sitting juror sent the following note to the court after a witness at trial described the gruesome crime scene: "Your Honor, I would like the response to my question not to be answered in court, but done privately, or in the jury room. [¶] Has [defendant] seen or have access to the questionnaires? [¶] My concern is for property and family." (Id. at pp. 499-500.) During discussion of the note, defense counsel raised the issue of the juror's ability to remain impartial given the juror's evident fear of the defendant. While the court did not permit defense counsel to question the juror, the court explained to the entire jury panel that the juror questionnaires had only been seen by court personnel and the attorneys. The court also encouraged jurors to come forward if they could not be impartial. (Id. at p. 500.)
On appeal, the defendant asserted that the "court took inadequate steps to uncover 'latent bias[es]' jurors might have had on account of fearing defendant." (Navarette, supra, 30 Cal.4th at p. 500.) Our Supreme Court disagreed, finding that the "steps the court took were appropriate and sufficient. The court addressed the jurors' concerns about confidentiality without unnecessarily implicating defendant or calling the attention of the entire jury to the specifics of [the juror's] fears and thereby possibly spreading those fears." (Ibid.)
Given our Supreme Court's holdings in Hamilton and Navarette, it is evident that the test of bias is not whether a juror may have been affected in some way by safety concerns or even a fear of the defendant, but whether the decision making process and, ultimately, the juror's ability to deliberate impartially was likely to be influenced. Consequently, in this case, the mere fact that a juror contacted the judge about what he or she perceived to be a breach in courtroom security does not, by itself, cast doubt on his or her ability to serve as a juror. Objectively considering what took place in this case--a cache of unsecured knives, an unrestrained criminal defendant, and inattentive security personnel--we do not find it surprising that a juror might have been upset by the situation or might have harbored fears about his or her personal safety or the safety of others. The juror's note to the judge "appeared to reveal [the juror's] honesty in conveying what someone in [his or] her position might feel, rather than a bias against defendant or an inability to fulfill [his or] her duties as a juror." (People v. Farnam (2002) 28 Cal.4th 107, 142.) As such, we see no abuse of discretion in the trial court's decision to quickly resolve the issue by having courtroom personnel secure the knives and not to make any further inquiry, which would have called the "attention of the entire jury to the specifics of [the juror's] fears and thereby possibly spreading those fears." (Navarette, supra, 30 Cal.4th at p. 500.)
B. Improper Admission of Spontaneous Statement
Appellant next claims that the court erred in admitting testimony from several witnesses that they heard a female exclaim, shortly after the stabbing, that appellant stabbed Green. The court ruled the statement was made in response to a startling occurrence and, therefore, it met the foundation requirement of an excited utterance under Evidence Code section 1240.
Appellant summarizes the trial record at trial as follows: "The hearsay statement that [appellant] stabbed Green was repeatedly put before the jury by several witnesses. On the other hand, not one prosecution witness testified that she saw appellant stab Green or threaten him with a knife." The record supports appellant's synopsis of the evidence.
At trial, Renee Hart testified that she heard a female say in a hysterical voice, "Why Fred stab that man?" She claimed that she did not know who said it or whether the person was inside or outside the house. The court overruled appellant's hearsay objection to this testimony.
Devincenzia Baker testified that when she came out of the bathroom during the party, she heard LaTanya Coleman in the backyard say, "Fred stabbed Tone." She indicated LaTanya said it loudly and energetically. Devincenzia testified it had to be LaTanya because she and Letitia Hunt were the only ones in the backyard and she knew it was not Letitia. She testified, "I know their voice." "I know it was [La]Tanya for sure who said it." The court overruled appellant's hearsay objection to this testimony.
Subsequently, Carol Baker testified that she was in the living room at the time of the stabbing and "somebody said Fred had stabbed Tone." She could not identify the speaker, but thought that it was probably LaTanya or Leticia who said it.
LaTanya Coleman testified she was standing near her house when "the next thing I knew I saw [Antonio Green] running across the street, running towards his house. He was stabbed in the chest." She denied being the person who said that appellant stabbed Green. She claimed that she did not see the stabbing, and did not know who stabbed Green. She did see Green with his hand on his chest and he was bleeding. She assumed Green was stabbed at the party. When defense counsel asked LaTanya during cross-examination, "Did you yell, Oh, my God, Tone's been stabbed, something like that?," she answered, "I probably did." She also admitted that she told Green's mother that appellant was the person who stabbed Green. She explained that she identified appellant as the perpetrator because that is what other people had said.
Evidence Code section 1240 provides an exception to the hearsay rule for spontaneous declarations. In order to qualify as a spontaneous declaration, " '(1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.' [Citations.]" (People v. Poggi (1988) 45 Cal.3d 306, 318.)
As appellant emphasizes, "a hearsay statement, even if otherwise spontaneous, is admissible only if it relates to an event the declarant perceived personally. Otherwise, the statement would be hearsay on hearsay and admissible only if each layer of hearsay separately met the requirements of an exception to the hearsay rule. [Citation.]" (People v. Phillips (2000) 22 Cal.4th 226, 235.) " 'It must, therefore, appear "in some way, at least, and with some degree of persuasive force" that the declarant was a witness to the event to which his utterance relates. [Citations.] Although this does not require direct proof that the declarant actually witnessed the event and a persuasive inference that he did is sufficient, the fact that the declarant was a percipient witness should not be purely a matter of speculation or conjecture. [Citations.]'. . ." (People v. Provencio (1989) 210 Cal.App.3d 290, 302-303 (Provencio), quoting Ungefug v. D'Ambrosia (1967) 250 Cal.App.2d 61, 68.)
The "foundation, or preliminary fact [required to admit a spontaneous declaration], require[s] only proof by a preponderance of the evidence. [Citation.] In making its factual determination the trial court exercises discretion. [Citation.] If substantial evidence supports the exercise of that discretion we must uphold it. [Citation.]" (People v. Anthony O. (1992) 5 Cal.App.4th 428, 433-434; People v. Brown (2003) 31 Cal.4th 518, 541-542; People v. Phillips, supra, 22 Cal.4th at p. 236; People v. Saracoglu (2007) 152 Cal.App.4th 1584, 1588-1589.) With these principles in mind, we turn to appellant's arguments.
Appellant claims that the testimony by various witnesses that they heard a female voice exclaiming that appellant stabbed Green did not qualify for admission under the exception set forth in Evidence Code section 1240. He points out that "[n]o one admitted to police or at trial to having made the statement. . . . Although Devincenzia claimed to hear LaTanya Coleman make this statement from the backyard based on recognizing her voice but not seeing her, Coleman steadfastly denied making the statement or seeing the stabbing. . . . Since no one at trial admitted seeing appellant stab Green, it is entirely possible that the declarant may have assumed that appellant did so merely because she heard others mentioning his name."
However, none of these points required the trial court to rule that Evidence Code section 1240's requirements were not met. The fact a declarant's identity is unknown does not preclude admission of a spontaneous statement. (People v. Anthony O., supra, 5 Cal.App.4th at p. 436; People v. Gutierrez (2000) 78 Cal.App.4th 170, 178.) Furthermore, even without direct proof that the declarant perceived the event, it may be inferred from the circumstances that the declarant witnessed it. (Id. at p. 178.) For example In Provencio, supra, 210 Cal.App.3d 290, a child's statement, " 'There goes Angel,' "*fn3 made as the child saw a burglary suspect fleeing, was properly admitted as a spontaneous declaration. (Id. at p. 300.) The appellate court in Provencio held the child's statement was properly admitted even though the child's identity was unknown. From the child's statement, the "only reasonable inference [was] that the hearsay declarant (the unidentified child) actually perceived the exciting event at the time announced." (Id. at p. 303.)
As in Provencio, the statement here was made within minutes of the stabbing when the declarant was still under the stress of excitement of the event, before anyone had a chance to reflect or contrive. (People v. Gutierrez, supra, 78 Cal.App.4th at p. 178 [statement written within three to four minutes of robbery].) Based on the nature of the reported statement and the urgent manner in which it was communicated, there is sufficient evidence that whoever made the statement actually witnessed the stabbing. Moreover, the fact that LaTanya Coleman denied being the person who made the statement, despite being identified as the speaker by several witnesses, does not make the statement inadmissible. Rather, LaTanya's in-court denial provided the defense with a basis for impeachment of the declaration, which pertained to the weight the jury should give it, rather than its admissibility. In sum, substantial evidence supports the trial court's factual finding that the statement, heard by a number of witnesses, identifying appellant as the person who stabbed Green, was admissible as spontaneous declarations under Evidence Code section 1240.
C. Improper Vouching for Credibility of Witnesses
Appellant next claims the trial court erred in overruling appellant's objections to Richmond Police Sergeant Lee Hendricsen's opinion testimony about the veracity of Renee Hart and Carol Baker when he interviewed them shortly after the stabbing.
Sergeant Hendricsen interviewed Renee Hart several hours after Green's murder. In excerpts from that interview, Renee told Sergeant Hendricsen that appellant and Green had been "arguin', they been playin' with each other all day"; that she did not see the stabbing but that she saw appellant holding a kitchen knife with a black handle and six-inch blade; and that she saw appellant and Green run out the back door. At trial, Renee testified that she did not see appellant holding a knife.
Sergeant Hendricsen was allowed to testify at trial, over appellant's objection, to the effect that he believed Renee Hart was telling the truth during her police interview when she told him that she saw appellant with a knife immediately after the stabbing.
When Sergeant Hendricsen interviewed Carol Baker shortly after Green's murder, she said that she did not see blood in her kitchen after the stabbing and that she did not go outside after the stabbing. At trial Carol testified that she had been honest with the police during her interview.
At trial Sergeant Hendricsen testified that it was clear to him during the police interview that Carol was lying. After the trial court overruled appellant's objection, he continued: "She expressed no interest at all in the fact that somebody was stabbed, no interest at all in the blood. . . . She had absolutely no interest, which I thought was an outright lie . . . ."
Respondent claims that because Sergeant Hendricsen's testimony "could help the jury resolve credibility issues, it was properly admitted." In support of this argument, respondent points out that Sergeant Hendricsen "gave explicit reasons, based on his years of experience interviewing witnesses, why he thought Renee was ultimately truthful and why he thought Carol lied." (Italics omitted.) In rebuttal, appellant counters that because Sergeant Hendricsen did not qualify as an expert on the subject of witness credibility, and because he had no personal knowledge of the facts surrounding the crime, his testimony regarding the credibility of a particular witness was simply his personal belief. As such, defense counsel's objection to this testimony should have been sustained because Sergeant Hendricsen's personal beliefs were irrelevant and inadmissible.
The law in this area clearly supports appellant's position. It was recently summarized in People v. Zambrano (2004) 124 Cal.App.4th 228: "Our state Supreme Court [in People v. Melton (1988) 44 Cal.3d 713, 744-745] has recognized that a lay witness's opinion about the veracity of another person's particular statements is inadmissible and irrelevant on the issue of the statements' credibility. [Citation.] The high court reasoned that such lay opinion testimony invades the province of the jury as the ultimate fact finder, is generally not helpful to a clear understanding of the lay witness's testimony and is not 'properly founded character or reputation evidence,' and does not bear on 'any of the other matters listed by statute as most commonly affecting credibility' in Evidence Code section 780, subdivisions (a) through (k). [Citation.]" (People v. Zambrano, supra, at pp. 239-240, original italics.)
The court in People v. Sergill (1982) 138 Cal.App.3d 34 (Sergill), considered a situation similar to the one presented by this case. In Sergill, the defendant was charged with committing a sexual offense against his niece, who was eight years old at the time of trial. The prosecutor asked one of the investigating officers whether he had formed an opinion as to whether the child was telling the truth, and what was that opinion. (Id. at p. 38.) The officer testified that in his opinion the girl was truthful, and explained that as a result of his dealings with many children he could usually determine with a high degree of accuracy whether their statements were true. The trial court overruled the defense's objection to this testimony saying, "this officer has had . . . seven years of experience, and has written . . . a thousand or more reports, . . . and I think [in] the course of that he would be normally expected to judge whether a person, in his opinion, is telling the truth or not." (Ibid.) Additionally, the court allowed another police officer, who had also interviewed the girl, to express an opinion that the girl was telling the truth when she reported that her uncle had molested her. (Ibid.)
The Sergill court held that the veracity of those who report crimes to the police is not a proper subject of expert testimony; and, even if it were, the fact that the officers had taken numerous reports during their careers would not qualify them as experts in judging truthfulness. (Sergill, supra, 138 Cal.App.3d at p. 39.) The appellate court held, "Both these officers were able to describe their interviews with the girl in concrete detail and their opinions or conclusions as to her truthfulness were not 'helpful to a clear understanding of [their] testimony.' [Citation.] [¶] We also conclude that this opinion testimony was inadmissible because it was not relevant. [Citation.] . . . [¶] . . . [T]hese officers neither knew the child, nor knew her reputation for truthfulness. [Citation.] Instead, their conclusions that she was telling the truth were based on their own self-proclaimed expertise in assessing victim veracity, but the record is devoid of any evidence to establish their qualifications in this regard." (Id. at p. 40; see also, People v. Smith (1989) 214 Cal.App.3d 904, 915 [trial court erred in admitting a police officer's testimony that he believed the victim's dying declaration identifying defendant].)
Consequently, contrary to respondent's argument in this appeal, the investigating officer's personal opinion about the credibility of a witness did not assist the trier of fact, but instead drew conclusions on issues reserved for the jury. The instant record does not establish that Sergeant Hendricsen is an expert on judging witness credibility or on the truthfulness of persons who provide him with information in the course of investigations. As in Sergill, the fact that he had previously conducted many witness interviews did not qualify him as an expert in judging truthfulness. (Sergill, supra, 138 Cal.App.3d at pp. 39.) Furthermore, there is no evidence that prior to investigating Green's murder, he knew anything about Renee Hart and Carol Baker's reputations for veracity. While Sergeant Hendricsen was certainly free to describe his interviews with them in detail, leaving the jury to decide these witnesses' credibility for itself based on such factors as their physical demeanor and motives to lie (People v. Chatman (2006) 38 Cal.4th 344, 382-384), he should not have been allowed to offer an opinion regarding the veracity of their out-of-court statements or their courtroom testimony.
Having concluded the trial court erred in admitting Sergeant Hendricsen's testimony, we now examine the entire record in order to determine whether it is reasonably probable a result more favorable to appellant would have been reached in the absence of the erroneously admitted evidence. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) We conclude that any error was harmless, because the prosecution's evidence in this case was strong and Sergeant Hendricsen's improper opinion testimony was an exceedingly minor factor in the trial. Numerous witnesses testified as to the chain of events that occurred before the confrontation that resulted in Green's death. All of these witnesses agreed that appellant was at the party where Green was stabbed. Several witnesses testified that appellant argued and wrestled with the victim before the stabbing. He was seen holding a knife shortly after the stabbing. Appellant demonstrated his consciousness of guilt by fleeing from the scene of the stabbing; subsequently fleeing to another state; as well as lying to officers that he had not been in Richmond on the day of the murder. In defending these charges, appellant offered little or no evidence to disassociate him from Green's murder, relying instead on testimonial inconsistencies and evidence of the victim's character for violence. Given the strong evidence of appellant's guilt and his weak defense, we conclude it is not reasonably probable he would have obtained a more favorable verdict had the trial court excluded the improper opinion testimony on Renee Hart and Carol Baker's veracity. (Watson, supra, 46 Cal.2d at p. 836.)
The judgment is affirmed.
We concur: SEPULVEDA, J. RIVERA, J.