(Contra Costa County Super. Ct. No. 05-051554-4)
The opinion of the court was delivered by: Dondero, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant was convicted following a jury trial of first degree murder (Pen. Code, § 187) with a special circumstance (Pen. Code, § 190.2, subd. (a)(17)), and robbery (Pen. Code, § 211). He was sentenced to a term of life in state prison without the possibility of parole.
In this appeal he claims that the admission of the preliminary hearing testimony of a prosecution witness following the prosecutor's refusal to grant the witness immunity at trial constituted prosecutorial misconduct and resulted in a denial of his rights to confrontation and due process. He argues that the prosecutor committed additional acts of misconduct by relying on inadmissible evidence of his silence to prove guilt in violation of his privilege against self-incrimination. He also objects to the trial court's instruction on unjoined perpetrators.
We conclude that the prosecutor did not deny defendant the right of confrontation by refusing to grant immunity to a witness who testified at the preliminary hearing but was subsequently charged with murder. We conclude that the prosecutor's reference in closing argument to defendant's post-arrest silence in discussions with a friend was misconduct, but was not prejudicial to the defense. We find that no other prosecutorial misconduct was committed, and defendant's trial counsel did not afford him inadequate representation. No instructional error occurred. We therefore affirm the judgment.
The victim, Jacque Smith, was killed around 1:00 p.m. on August 22, 2005, at 12th Street and Maine Avenue in the Coronado Santa Fe area of Richmond. He suffered eight gunshot wounds, along with multiple fractures and abrasions "all over his body." His injuries were consistent with "being run over" and "dragged along" the pavement by a car, shot, and "pistol-whipped."
The primary testimony that implicated defendant in the murder of Smith came from Torry Buchanan, who, according to at least one account, had been involved for months in an intimate relationship with the victim. Shira Dennis, a close friend of the victim, testified that Smith was openly bisexual, but Buchanan was not, and "didn't want anybody to know" of his sexual relationship with the victim. According to Dennis, Smith and Buchanan lived together briefly in an apartment in Benicia, and acted as "boyfriend and boyfriend."
Not long before the murder, however, Smith became "upset" with Buchanan and did not trust him after his money and some items, including a television, were appropriated and "taken out of the house." Dennis testified that Smith was "tired of Buchanan stealing from him," and was in the process of breaking off their relationship. Smith recently moved to Stockton, and Dennis believed that he did not want Buchanan to know the location of his new residence. Smith was also fearful of Buchanan. Before the murder Smith received a message from someone that warned him Buchanan intended to rob and kill him.
At defendant's preliminary hearing, Buchanan testified after receiving use immunity from the prosecution. This testimony was later presented at defendant's trial. In Buchanan's preliminary hearing testimony, he denied that he had sexual relations with Smith. In fact, Buchanan acknowledged that he warned the victim he would "beat his ass" if Smith "kept telling people" they had a "homosexual relationship." Buchanan testified that he maintained a friendship with Smith to "play him" and "get as much" as he could from the victim. According to Buchanan, Smith bought him clothes and gave him money, and on one occasion provided him with bail in the amount of $45,000 to obtain his release from jail. Smith subsequently threatened to rescind the bond he had posted, which caused Buchanan concern that his bail would be revoked. Buchanan further acknowledged that shortly before Smith's death, the decedent accused Buchanan of "stealing money from him." Buchanan denied that he stole money from Smith, but Smith no longer trusted him.
Buchanan testified that two days before the murder occurred, defendant, whom he had known for a couple of years, approached him with a plan to rob Smith. Defendant said he "needed some money" and "wanted to rob" Smith, who he knew would be in Buchanan's company. Buchanan said "all right," and they exchanged cell phone numbers to remain in contact to set up the robbery.
About 9:00 on the morning of the murder, Smith drove his navy blue Cadillac to pick up Buchanan in Rodeo. After they stopped for food in Hercules, Buchanan began to drive. He drove the car to Oakland where they "purchased some weed." Buchanan used Smith's cell phone to call defendant to report to him that they were on the way to 12th Street in Richmond. During one call defendant told Buchanan that he had a gun.*fn2 Buchanan ultimately drove the victim's Cadillac to Richmond, where he parked as arranged with defendant at 12th and Florida.
Defendant approached the car with a gun in his hand and ordered Buchanan to drive around the corner to 13th and Maine. Buchanan did so, and parked the car in a lot near the residence of his friend Brenda. Defendant then struck Smith several times with his fist. Buchanan told Smith to call his mother to arrange for her to give him some money so defendant "wouldn't harm" him. Buchanan heard Smith on the phone with his mother exclaim, " 'Torry trying to rob me.' " Buchanan yelled to defendant not to kill Smith. After defendant struck Smith, the victim jumped from the car with the cell phone in his hand and "started running" away. Defendant chased after Smith as Buchanan left the car and went to Brenda's house.
From inside Brenda's house Buchanan heard the sound of five or six gunshots coming from Marina Way. He asked Brenda to "see what happened." She went outside for about five minutes, then returned to the house and said that "somebody got killed outside." Buchanan went back outside and observed defendant as he was walking "back towards the car." He threw defendant the keys to the Cadillac, then returned to Brenda's house to ask her to call him a cab.
Buchanan insisted that he did not want Smith killed, although he admitted that he willingly participated in the robbery. He also testified that defendant did not mention to him that he planned to kill Smith. Buchanan did not realize that defendant intended to kill Smith until the victim ran from the car and defendant chased after him.
When questioned after the murder, Buchanan lied to the police and claimed that he also had been a victim of the robbery of Smith. Buchanan identified defendant from a photo lineup as the man who robbed and killed Smith. He referred to defendant by the "moniker of Twin or Twig."
After Buchanan spoke with the police, he talked to defendant on the telephone. Defendant asked "why the police came to his house." Buchanan replied that he had been questioned by the police. Defendant said that he "was going to surrender himself to the police."
Buchanan acknowledged that he lied in his interviews with the police to protect himself, but claimed that his preliminary hearing testimony was truthful. Before the preliminary hearing, Buchanan was subpoenaed to testify by an investigator for District Attorney's Office. Buchanan expressed to the investigator that he "was afraid," and at his request was placed in a hotel room for his safety. He briefly absconded to Nevada, but voluntarily agreed to return to testify.
Buchanan was not charged with any crimes related to the murder of Smith before the preliminary hearing, and insisted that he has never been "promised anything" in exchange for his testimony. After the preliminary hearing but before defendant's trial, Buchanan was charged with felony murder.
Smith's mother, Joanne Fountaine, corroborated some of Buchanan's testimony. She was aware that her son was acquainted with Buchanan. Fountaine had heard Buchanan's voice over the telephone, and seen his photograph when a bail bondsman visited her house "looking for him." The day before the murder, she also heard Smith tell Buchanan, " 'You better give me my money. I want my money.' "
On the day of the murder, Fountaine loaned Smith her cell phone. Around 1:00 p.m., Smith called her on the cell phone, crying, and "said, 'Momma, they killing me and beating me.' " She heard an unidentified voice, not Buchanan's, order Smith to have his mother bring money. The same voice, which Fountaine identified only as "Black" and "young," said, " 'I'm gonna kill your ass,' " and " 'I'm gonna kill this motherfucker.' " She also recognized Buchanan's voice exclaim, " 'Korey, don't kill him' " a couple of times, before the other man yelled, " 'This guy's gonna run.' " Fountaine was "positive" that Buchanan used the name "Korey" to refer to the man beating the victim, although in an interview with an investigator she stated that she heard Smith mention the name "Torry" on the phone. Fountaine then heard "a lot of rattling" sounds, like Smith "was trying to run away," before the phone was thrown or dropped.
Fountaine immediately called the police, then "went looking" for Smith's blue Cadillac. She found her son's car near a school at the corner of 9th Street and Maine. The car had "blood all over the driver's side" and on the wheels.
Smith's body was located on the curb at the corner of 13th Street and Maine. "Lots of blood" was found nearby, and "a tire track" was detected across the body, as though Smith had been run over by a vehicle. The "blood-stained tread marks" on the asphalt where Smith's body was found were consistent with the pattern of the Cadillac tires. Expended .44-caliber shell casings were discovered close to the victim and in his clothing. Numerous fingerprints were taken from the Cadillac, but none belonging to defendant were identified.
Witnesses who were present near the scene of the murder heard or observed some of the incident, but none of them identified any of the principals. Juan Trujillo, Wanda Parker, and Crystal DeVaughn were in a house on 13th Street and Maine the day of the murder.*fn3 They heard screaming outside that sounded like a frightened woman pleading "stop" or "let me go," and a "male voice" that sounded angry. A few seconds later a Black person with "dreads" was chased by another, heavier Black person, then numerous gunshots fired in quick succession were heard. The "person who had the dreads" was then seen lying in the street, twitching, before a blue Cadillac ran over his body and "kept going." Trujillo also told the police that he observed a "Black male," around "5 foot 9," walk along Maine Street and toss car keys to another person.
Raymonde Magnier, who lived on the corner of 13th Street and Maine, heard shots outside her house. She looked through a window and observed "something down on the ground," which was "covered up," and a man walking past her house with a "gun in his hand." He was a "Black man," about 5 feet 10 inches tall, medium build, around 25 years old, wearing dark clothes. She did not identify defendant as the man with the gun.
Robert Jones, a landscape contractor "working at 15th and Florida that day," observed the shooting from three blocks away. He described the shooter as Black, 18 to 20 years old, with hair that was perhaps two and a half inches long and may have been braided, wearing a hooded sweatshirt. The shooter was standing with his arm extended, about five feet from the victim, who was sitting on the ground. The shooter was angry and walked around in a circle after he repeatedly shot the victim.
Brenda Murry lived at her grandmother's apartment on Marina Way near 13th Street and Maine when the shooting occurred. Buchanan was a family friend who came to the back door of Murry's residence on the day of the shooting, and mentioned that he was meeting her cousin there.*fn4 About two or three minutes later, gunshots were fired nearby, followed by police cars "flying down the street." Murry walked outside a minute or two later. Buchanan asked to use her phone and stayed in the apartment. Murry was only outside for "a couple of seconds" before she returned to the apartment. Defendant was still inside, on ...