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The People v. Marvel Montreal Barksdale

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


January 10, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MARVEL MONTREAL BARKSDALE, DEFENDANT AND APPELLANT.

(Super. Ct. No. 08F07078)

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

P. v. Barksdale

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant, acquitted of murder, appeals from a conviction for voluntary manslaughter of Robert Haynes, with personal use of a firearm and criminal street gang enhancements. (Pen. Code, §§ 192, subd. (a), 12022.5, subd. (a)(1), 186.22, subd. (b)(1).) Defendant's principal contention is that his trial counsel rendered ineffective assistance of counsel, resulting in the introduction of otherwise inadmissible polygraph evidence (Evid. Code, § 351.1)*fn1 of witnesses who identified defendant as the perpetrator, inadmissible opinion evidence concerning the credibility of those witnesses and evidence that defendant refused to take a polygraph. We agree and reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Pursuant to Welfare and Institutions Code section 707, subd. (d)(2), the prosecution charged defendant (age 15 at the time of the offense) with the murder (Pen. Code, § 187) of Robert Haynes on August 22, 2008, personal discharge of a firearm (Pen. Code, § 12022.53, subds. (b)-(e)(1)), personal use of the firearm (Pen. Code, §§ 1203.06, subd. (a)(1)), 12022.5, subd. (a)(1)), and commission of the offense for the benefit of, at the direction of, and in association with a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)).*fn2

SUMMARY OF FACTS

The murder occurred during a shootout at a residential party involving two rival Sacramento criminal street gangs, the Guttah Boyz*fn3 (a subset of G-Mobb from the Meadowood area) and the Fourth Avenue Bloods (FAB) (a subset of the Oak Park Bloods). Defendant is a member of the Guttah Boyz.

More than 50 people attended the house party in the Meadowview area of Sacramento.*fn4 Defendant was in the backyard with others when rival gang members from FAB -- likely armed and looking for trouble, according to the prosecution's gang expert -- announced their presence inside the house.

The people in the yard, some of whom were Guttah Boyz, moved toward the open sliding glass door of the house. Guns were fired on both sides. The prosecution contended that defendant fired a gun into the house and that he fired the first shots. Haynes, a FAB member, was in the living room when shot. Other people were injured but are not the subject of this prosecution.

No physical evidence tied defendant to the shooting. The prosecution's case was based primarily on the testimony of three eyewitnesses, Jasmine B., Larry H., and Earnest B. Much of the polygraph evidence involves the latter two.

The defense presented testimony and statements from other partygoers who identified Earnest and Guttah Boyz member Desmond O., not defendant, as shooters. Other defense witnesses indicated that FAB members had guns, including the victim, and that FAB members shot first from their position in the living room. Typical of many gang-related cases, witness accounts varied and witnesses made inconsistent statements.

The Prosecution's Case-in-Chief

The Testimony of Jasmine B. and Her Prior Statement

Partygoer Jasmine B. testified that before FAB arrived, she overheard defendant in the living room say to someone, "I got this banga," and she saw a gun in his waistband. She understood the word "banga" to mean a gun.

When FAB announced their presence, a friend pulled Jasmine into the kitchen. Shots were fired. Jasmine did not see anyone shooting, but it sounded to her as if shots were being fired from the middle of the living room and from another area, as if "they was [sic] shooting at each other."

Later in the trial, the defense impeached Jasmine's trial testimony with a statement she made to a detective on the day of the shooting, in which she said she saw defendant at the party, but did not see a gun in his possession. A stipulation was later read to the jury in which the parties agreed that on August 23, 2008, Jasmine told police that she did not see anyone with a gun or hear about anyone having a gun, but in her August 25, 2008 police interview, she said defendant had a gun.

The Testimony of Larry H. and His Refusal to Take a Polygraph Examination

Prosecution witness Larry H. was on probation and testified under a grant of transactional immunity. He had been a member of Guttah Boyz, but by the time of trial he had been labeled a snitch and consequently, was no longer a member.

Before the shooting, Larry was in the backyard along with approximately 15 people, including Earnest and defense witness, John Smith. Upon hearing that FAB members were inside, Larry moved toward the open sliding door, heard gunshots, looked and saw defendant standing next to him, about six feet away, shooting a gun into the house. It was too dark to see the gun, but Larry saw the flashes as the gun was fired. Gunshots were also fired from inside the house, but Larry testified he could not tell who shot first. Larry and others, including defendant, hopped over the backyard fence into a neighbor's yard. Larry testified on recross-examination that while they were in the neighbor's yard, he saw defendant reload the gun -- a point Larry said he had not mentioned before because no one had asked him. And, for the first time, Larry indicated the gun defendant had was a revolver.

Larry left the scene before police arrived because he was on probation. He was stopped by the police at the end of the street in a car with Desmond and other partygoers.

Larry testified that the police interviewed him for about eight hours. At first, he lied and said he did not know who shot the gun. He was worried about being a snitch. He testified he eventually named defendant because the police started talking about conspiracy, and he was afraid he might get in trouble for something he did not do, and "I thought if I said a name they would leave me alone and release me and stuff." When asked why he gave defendant's name, Larry said, "Because he did it." On cross-examination, Larry testified he felt pressured by the police, but he knew all along who fired the gun and was lying when he told police he did not know.

On cross-examination, defense counsel asked Larry about polygraph testing. This was the first mention of a polygraph examination, and the trial court had not been informed prior to trial of counsel's intent to allow the jury to hear polygraph evidence.

The following colloquy occurred between Larry and defendant's counsel regarding the polygraph:

"Q. Did he [the detective] say that you could be charged as an accessory to murder?

"A. Yeah.

"Q. Then eventually you give a name, right?

"A. Uh-huh.

"Q. And before you gave a name they said, 'We could give you a polygraph test, a lie detector test and all that'?

"A. Yeah.

"Q. And then you give 'em a name, right?

"A. Yeah.

"Q. And then they say, 'Okay, . . . you don't have to take the test now.'

"A. Uh-huh.

"Q. And you said you didn't want to take the test. You didn't want to take the test to prove you were telling the truth.

"A. If I -- 'cause they w[ere] asking me -- I asked them, 'Like what questions you going to ask me?' [¶] And they was like, 'The questions like: Do you know who shot him and stuff?' [¶] Then if I were to take the test, I would have been lying then.

"Q. I thought you said you were telling the truth.

"A. What you mean telling the truth?

"Q. I thought you said when you gave a name you were telling the truth.

"A. I said I gave them a name afterwards. After I told them like I don't want to -- like after, like, I told them I don't want to take the test.

"Q. So if you say you were telling the truth about seeing [defendant] shoot, why wouldn't you just take the test?

"A. Because at first I told them the name, they was like, 'You want to take a polygraph?' [¶] I'm like, 'No.' [¶] That's before I wasn't even saying nothing, but I didn't tell them the name. Then I just gave them the name, and I didn't have to take it. I was in a polygraph room when I told them the name before I took the test. I didn't take it.

"Q. You never did take the test?

"A. Yeah.

"Q. After you said [defendant] was the shooter, they gave you the option of taking the test to prove you were telling the truth.

"A. Yeah, but still I didn't -- I didn't want to take the test. I told them the name already.

"Q. You didn't want to show them that you were telling the truth and agree to take the lie detector?

[Objection overruled.]

"THE WITNESS: I don't want -- they was like, 'You want to take it?' They were like, 'You want to take a polygraph test?' before I got to the room. [¶] I'm like, 'No, I'm not taking it.' [¶] They got me to the room over there, they like, 'You want to take the test?' [¶] I'm like, 'No.' [¶] And they was just talking to me and stuff, and I just told them the name. They never -- after I told them the name, bro, they didn't ask me do I want to take it again. They just take me back to the other room and start talking to me, and I told them I refused to talk to them.

"Q. My question is this. You told the detectives over and over and over again that you didn't see -- that you didn't know who the shooter was.

"A. Yeah.

"Q. And then after hours, you finally say, '[Defendant] shot,' right?

"A. After they got me to the room in front of the equipment and stuff to take a polygraph test.

"Q. And after you told them [defendant] shot, they said -- they gave you the option of taking the lie detector test.

"A. They gave me the option before I told them the name.

"Q. And after.

"A. No, they didn't say afterwards.

"Q. You don't remember the following questions and answers.

"'We can do this polygraph if you want?'

"This is after you said [defendant] shot. 'We can do the polygraph if you want.'

"'I don't want to do it. I don't trust machines.'

"You don't remember saying that?

"A. No, I don't remember that."

The Testimony of Earnest B. and His Polygraph Examination

Earnest B. denied gang ties and said he got along with both Guttah Boyz and FAB.

Earnest testified he brought an inoperable .44-Magnum revolver to the party, but gave it to his friend Jashawn approximately 20 to 30 minutes before the shooting. Jashawn later told Earnest he put it in a barbecue pit at the house next door (where police found it after the shooting).

Earnest testified he was in the backyard with other people, heard gunshots coming from inside the house, did not see any guns, and did not see defendant shoot a gun. He denied telling police that he saw defendant holding a chrome revolver before the shooting or later seeing defendant shoot that gun. He testified he did not know whether defendant was inside or outside of the house when the shooting started. He also testified that it sounded like all the shots were fired from inside the house.

Without objection, but with a stipulation as to authenticity, the prosecution introduced recordings (and provided transcripts) of Detective Hanspeter Merten interrogating Earnest. Earnest initially told Merten he did not know who fired a gun. He was inside dancing when a number of males came in from the kitchen and started firing guns. Earnest denied having or shooting a gun. During the interrogation, Merten asked Earnest whether he would take a polygraph test and Earnest said he would. Merten at that point suspended his interrogation and turned Earnest over to Detective Mark Tyndale. Over defendant's section 352*fn5 objection, Detective Merten testified he did not believe Earnest had been honest with him prior to the polygraph. Defense counsel did not request a limiting instruction concerning Detective Merten's opinion.

Without objection, the prosecution then played for the jury a video recording (and provided a transcript) of Detective Tyndale administering a polygraph examination to Earnest and Tyndale's subsequent interrogation of Earnest. The defense stipulated to authenticity, but not specifically to introducing the polygraph evidence contained in the recording.

Earnest at first said he did not know who fired a gun. Tyndale explained the physiology measured by the machine and told Earnest the machine indicated Ernest was lying, maybe because he was leaving out information or maybe because he was the shooter.

Tyndale brought up defendant's nickname, "Dick."*fn6 That name had not been mentioned by Earnest or by Merten and Tyndale up until that point.

"[TYNDALE]: . . . Does anybody ever call you Dick?

"[EARNEST]: No.

"[TYNDALE]: No. Was there anybody in the backyard with you? Anybody by the name of Dick?

"[EARNEST]: I don't know but maybe. [¶] . . . [¶]

"[TYNDALE]: Why do you think you're having a problem with this test?

"[EARNEST]: I don't know. I'm just scared.

"[TYNDALE]: But see the problem is[,] is that you're not being completely honest. And I don't know what it is you're not being completely honest about. But until you're completely honest, you're not going to pass the test. And that's how it works. And I need you to be completely honest with me on this. And once you are, I'm going to have a test that you'll be able to pass."

Tyndale went on to emphasize, "You're failing the lie detector test . . . ." He said that other people were saying Earnest shot first. Earnest denied shooting a gun and denied seeing the shooter. Tyndale said, "See here's the thing with the test, it's not a big secret. You can't fool yourself. You know that's your body reacting. The reason your body reacts is because you know you're not telling the truth. You know when you're telling the truth, your body doesn't react to it. . . . [T]hey've brought people down here from jail who've already been booked on murder. And I do the test. And they pass it. And I go out and tell the detectives, you've got the wrong guy. But I can't tell them that with you. You're not passing the test." Tyndale told Earnest he intended to tell the other detectives that "Earnest isn't passing the test."

Earnest wanted to take the test again, but Tyndale said the results would be the same as long as Earnest did not tell the truth. Tyndale said, "you have to be 100 percent completely honest. And when you are 100 percent completely honest, you're gonna pass. Everybody does." Earnest said he was not sure who fired the gun. Tyndale said Earnest must know, because it was someone right next to him, trying to get into the house.

Tyndale then told Earnest, "We're not going to tell anybody what we talked about. This is private. I'm not going to tell you what the other people have told me that have come in here or the other people that come after you. I'm not going to tell him but I need you to tell me who it was that fired that shot. And when you do, you'll be able to pass this test."

Earnest responded by asking if the police had interviewed "Dick." The detective said not yet and asked if Dick was the one who fired the gun. Earnest said it was either Dick or someone with him. Earnest did not know Dick's real first name, but knew his last name is Barksdale. Earnest said, "I think he fired the gun."

After Earnest incriminated defendant, Detective Tyndale stopped the interview. He told Earnest he was not going to run any more tests because Earnest had named the person that someone else had already named as the shooter, and since Earnest had become emotional, it was "not the best time to give him another test." Tyndale asked Earnest if he would be willing to come back later if the detectives wanted him, but that he was going to tell the detectives that he thought Earnest was now being honest. Thereafter, Tyndale told Detective Merten that Earnest had "seen more while he was at the party" and that he now wanted to be "more honest." Merten resumed his interrogation of Earnest.

Earnest told Merten that before the shooting he saw defendant sitting in the backyard holding a chrome revolver in his lap. When someone came out and said, "They're here," Earnest, defendant, and others ran toward the house. At the sliding glass door, Earnest was right behind defendant and saw defendant fire the first gunshot, into the house. Earnest "took off" after defendant fired the first shot. While he was running, he heard at least three more shots from defendant's gun and then heard three or four more shots fired from what sounded like a different gun.

Without defense objection, Merten testified he felt Earnest was "more forthright" in the second part of the interrogation. On cross-examination, Merten repeated that he believed Earnest was "more forthright," "more honest" in the second interview, adding that he was of this opinion because Earnest gave more detail and because the information matched what "other witnesses" had said. Defense counsel did not object to Merten's reference to other witnesses.

Other Evidence

Police found two items in a barbecue pit at the residence next door to the crime scene -- a black replica nine-millimeter-style semiautomatic "Air Soft" gun and a long silver revolver similar to a .44-magnum that looked like a cowboy-style gun and was either inoperable or a replica. Earnest identified the latter as the gun he brought to the party. No other guns were found.

The victim died from a single gunshot wound to the top of the head. The bullet entered at a sharp angle and exited on the opposite side of the head. The entry wound was irregular, indicating that the bullet hit an intermediate object before it struck the victim.

Shortly after the shooting, the police detained a vehicle driven by Tito and occupied by Larry, Desmond, and three others. Larry and Desmond were in the backseat along with two others. No weapons were recovered from the vehicle.

Gunshot residue tests of Larry and Earnest revealed no gunshot residue on their hands. However, a gunshot residue test of Desmond's hands indicated that it was probable he had been in contact with a gun that had been fired. Based on the gunshot residue found on the victim's hands and palms, the prosecution's gunshot residue expert opined the victim either fired a gun, handled a gun that had been fired, or was in the vicinity of a gun when it was fired.

The prosecution's gang expert testified that defendant and Desmond are members of Guttah Boyz. The victim was "associated" with FAB. Earnest associates with both FAB and Guttah Boyz, having lived in the Oak Park area at one time as well as living in Meadowview at the time of the shooting.

The Defense Case-in-Chief

Detective Merten

The defense recalled Detective Merten and elicited that Merten brought Larry to Detective Tyndale after Larry agreed to take a polygraph examination.

After Tyndale was finished, Tyndale told Merten that Larry named "Dick" as the shooter. Merten then spoke to Larry, who told Merten he did not want to talk anymore or take the test.

Merten also testified that when Larry first mentioned the names of the people with whom he went to the party, he did not mention Desmond's name until about 45 minutes into the interrogation when Merten confronted Larry with Desmond's name.

Over a defense objection grounded on relevance, the court allowed the prosecutor to ask if Merten believed Larry was being honest in the first part of his interrogation prior to taking him to Tyndale, and Merten said no. Defense counsel did not request a limiting instruction. Merten further testified about why Larry did not want to take the test. Merten said, "one of the quotes was I don't want to be a snitch. You know, I've already talked to the other detective."

Pursuant to a question asked by a juror, the court asked Merten whether the police sometimes use polygraphs as an interrogation ploy. Merten said yes.

Detective Tyndale

The defense then called Detective Tyndale and elicited that he has "training and experience in conducting polygraph exams." He asked Larry "pre-polygraph questions," which include "a statement about what happened." During that statement, Tyndale felt Larry was being truthful. Thereafter, Larry declined to take the test. Defense counsel elicited the following:

"Q: . . . So you formed the opinion that he was being truthful?

"A: Yes, sir.

"Q: Okay. And so, therefore, you didn't push him any more to take the actual test to demonstrate that?

"A: No, sir. [¶] In generally [sic] what happens is you volunteer -- or the polygraph exam is voluntarily. So we don't want to try and push somebody into -- into taking one that's reluctant about taking one because it could have an adverse effect on the results.

"Q: Okay. So once you got the information that you felt was sufficient you didn't push him anymore to take the test?

"A: Yes, sir. [¶] That's correct."

On cross-examination by the prosecutor, Tyndale testified that the polygraph examination is used as an interrogation tool. Being in the polygraph room next to the polygraph, "has a tendency to make them become more truthful during the interrogation." Tyndale went on to explain, without objection, ". . . I have an extreme amount of faith in the polygraph instrument as being highly reliable. And bringing them into their pre-test, knowing that as they look at it, it will make them become more truthful toward the pre-test . . . . [¶] . . . [¶] In his particular case I felt he was being truthful by the end of the interrogation and I didn't see a need to actually administer the test."

The prosecutor elicited from Detective Tyndale that Larry initially did not identify defendant as the shooter, but by the end of the prepolygraph interview did identify defendant, aka "Dick," as the shooter.

Outside the scope of the defense direct examination, the prosecutor then asked Detective Tyndale about the polygraph examination administered to Earnest.

"Q. Now, in terms of Earnest [B.] did you actually give him a polygraph test?

"A. Yes, sir, I did.

"Q. What happened with that particular test? [¶] . . . [¶]

"[DEFENSE COUNSEL]: Objection, Your Honor. [¶] Polygraph results are inadmissible --

"THE COURT: Approach sidebar, please.

"[DEFENSE COUNSEL]: -- by statute.

(Unreported conference at the bench.)

"Q. [PROSECUTOR]: Detective Tyndale [¶] . . . [¶] -- without discussing what you believe to be specific results of the test how was the test used as an interrogation tool with Earnest [B.]?

"A. The results were inconsistent with his statement. And so I talked to him about that and continued to get more information from him." (Italics added.)

On redirect examination, defense counsel elicited that Detective Tyndale knows polygraph tests are inadmissible in court, because the scientific community believes they are not reliable. However, Tyndale went on to explain, "also I would say the polygraph is only as reliable as the examiner. And there are some examiners out there that I would consider unreliable."

The trial court, consistent with its policy, asked if the jurors had any questions. After an unreported sidebar, the trial court told the jury:

"THE COURT: All right. A juror has asked a question -- I want to make a -- give the jury some instruction before I allow you to answer the question. [¶] At what point did you feel [Earnest] was telling the truth? [¶] I'll allow the witness to answer that question only because it will give context to the course of the interrogation that that [sic] Detective Tyndale conducted with respect to [Earnest] . . . . [¶] As [defense counsel] said by way of questioning polygraph results are not ordinarily admissible in court. [¶] Now, in this trial you did obviously view videotape -- or video recording of an examination conducted by this detective. And that was done without objection. [¶] But we don't want to -- I don't want to go down that road very far because the law is very clear that polygraph results are not admissible in court. [¶] I want to remind the jury you as the jury having heard the evidence in this court must make the decision as to who is truthful and who was not, what witnesses were telling the truth, which witnesses were not telling the truth, and what parts of their testimony w[ere] true or not true. The decision is yours. [¶] The decision [is] not Detective Tyndale's. It's not. [¶] Detective Tyndale's polygraph equipment, his education, training, and experience with the polygraph are used as part of law enforcement. There's nothing wrong with that. They're used a lot. [¶] And I think what Detective Tyndale has said about the qualifications of an examiner have a lot to do with it. [¶] But at this point we don't just hook up people to polygraph machines and then decide whether or not charges have been proven beyond a reasonable doubt or not. [¶] So keep that caution admonition in mind as I put the juror questions to Detective Tyndale. [¶] At what point did you feel [Earnest] was telling the truth[?]

"A: My -- I felt at the very end of the interview when concluding the interview that he was being most truthful. And that's when I turned him back over to the homicide detectives so they could follow up and interview him more at length."

Again, at the request of a juror, the trial court asked whether Larry told Tyndale who shot a gun at the party. The detective answered that Larry first said a FAB member named Sumjay fired a gun. Then eventually, "[a]fter talking with him in length, basically conducting an interrogation," Larry said that "Dick" fired the first shot.

The court asked if Earnest identified the shooter. Tyndale said Earnest identified "Dick" as being Marvel Barksdale and saw him shoot a gun.

Hearing Concerning the Polygraph Evidence

After Earnest testified, proceedings were conducted outside the jury's presence. The trial court said, ". . . I've asked the lawyers at the very beginning of the case well before jury selection to give me a heads up and inform me about what issues are going to be in the case and let me know what's going to happen -- I don't like having to make a decision, you know, on the spur of the moment in the middle of the trial. . . . [¶] [n]o one ever told me there would be any issue as to polygraph results in this trial. The first time I had any information about that was when I watched the videotape of the polygraph examination being administered -- the very first mention of it. [¶] I assume, [defense counsel], that for tactical reasons you had no objection to that. [¶] And I'm going to ask you basically to articulate your position in just a moment. [¶] But at any rate we heard and saw during that video Detective Tyndale administered a polygraph examination and he told [Earnest] that he didn't think he was telling the truth -- essentially that he failed the examination. [¶] No follow-up was ever conducted. We heard and saw that evidence. [¶] And then we get to the point now where Detective Tyndale is -- has been called to the stand and we find out that there was some similar interview being [sic] with respect to Larry [H.] and follow-up as to [Earnest]. And the testimony was what it is. [¶] We got a juror question . . . . [A]t what points did you feel [Earnest] was telling the truth? [¶] And I called the lawyers to sidebar because although . . . Detective Tyndale clearly said in the course of that video, which I assume will be in evidence, that he didn't feel [Earnest] was telling the truth. [¶] And -- and in looking at that video you can -- you can determine exactly what he was referring to. [¶] A juror probably because the juror didn't recall specifically asked the question. [¶] I called the lawyers to side bar because I don't -- I said I don't want to go very far down this road in view of the law that polygraph results are not admissible. And I tried to get a sense from the lawyers . . . how far we can go with this. [¶] And I believe, [defense counsel], your position was that you didn't think I should ask the question. [¶] And [the prosecutor] wanted me to ask the question. [¶] I decided at sidebar that I was going to ask the question because I think the door had -- was, well, open at that point. [¶] But I wanted to admonish the jury concerning how they may consider the polygraph results in this case and to emphasize that it's a -- that they're the ultimate decision-makers. [¶] First of all, [defense counsel], do you have any objection as to the admonition that I gave to the jurors concerning that?

"[DEFENSE COUNSEL]: No. [¶] I thought it was appropriate.

"THE COURT: Did you want to put on the record anything regarding tactical decisions and -- and the decision to permit the evidence --

"[DEFENSE COUNSEL]: Yeah.

"THE COURT: -- and exhibits? [¶] . . . [¶]

"[DEFENSE COUNSEL]: Prior to trial [the prosecutor] and I discussed some of the interviews that were given, the fact that polygraphs were given. And I think both of us had the position that we are okay letting the jury know that the polygraph -- or -- or pre-polygraph questions were posed. It's in the video. [¶] I just didn't want to get into the -- you know, the ultimate pass-fail as dictated by the test. So . . . that's why I objected. [¶] I think we avoided that. [¶] But otherwise, yes, I want the rest in for tactical reasons.

"THE COURT: Is there anything else you want to put on the record at this point?

"[DEFENSE COUNSEL]: I don't believe so."

"THE COURT: [prosecutor], anything?

"[PROSECUTOR]: Your Honor, the [P]eople actually had no intention of playing Detective Tyndale's interview of Earnest [B.] until [defense counsel] suggested and requested that we do for [sic] tactical reasons. [¶] Based on that then I -- I said I still felt it wasn't bad for my case, but it was not something I intended on doing . . . . [¶] And I just wanted to make that record clear."

The trial court said, ". . . I want to know when issues are expected to arise. . . . [¶] If I had known we were going to hear all that polygraph evidence, I would have prepared something. I would have . . . written a limiting instruction into which both of you would have had a[n] opportunity to provide input." The trial court indicated it wanted to avoid "ad-libbing" and directed counsel "bring these issues up to me in advance."

No further instructions were given to the jury about polygraph evidence or the detectives' opinions concerning the credibility of the witness statements.

Defendant's Father

Defendant's father testified that, because of his own bad experience with police being unhelpful when he was shot in 2002, he told defendant not to cooperate with the police and to deny having been at the party.

Defendant's Testimony

Defendant testified. He considers himself "[a]ffiliated" with G Parkway, meaning he is not a "hardcore" Guttah Boyz member but "just hang[s] around with them for certain occasions," like playing football. He knew the victim from having played football against him and had no problem with him. At the party, people in the backyard were passing around a fake gun, the inoperable silver .44-caliber revolver later found in the next door neighbor's barbecue. Defendant held it for a few minutes. Everything at the party got loud when a bunch of people arrived and people yelled "FAB." Some people in the backyard ran toward the open sliding glass door. Defendant stayed back but may have moved two or three steps toward the house. He did not have a gun. He heard eight or nine gunshots but did not know where they were coming from. After he heard the first shot, he jumped over the fence and ran home. Defendant denied shooting any gun at the party and denied reloading a gun.

Days later, the police took him in for questioning. Defendant told the police he was not at the party because of his father's advice, and because defendant had heard it was a murder scene and did not want to put himself at a murder scene.

Testimony of Other Partygoers

The defense called as witnesses several partygoers. Catherina W. testified that she did not see the shooter and did not tell police Desmond was the shooter. She was impeached with a statement she had given to one of the first officers to arrive at the shooting scene. Initially, before the officer took a statement from her, she told the officer that she was inside, had seen what had happened and could identify the shooter. She told the officer she was positive Desmond did the shooting and said that Desmond was affiliated with Guttah Boyz. Thereafter, she told the officer she saw Desmond fire approximately four to five shots from a handgun.

John Smith, a G-Mobb member, testified that he saw Earnest fire three shots from the patio door area. The gun he saw Earnest fire was not the inoperable revolver Earnest said he brought to the party. Initially, Smith told the police he did not see who was shooting. While sitting alone in a police interview room, Smith made a call from his cell phone during which he told someone that Earnest shot first. Unbeknown to Smith, the police were listening. It was only after the police said they overheard him that he told them he saw Earnest shooting. Smith claimed to not have seen defendant or Desmond at the party.*fn7

Other Evidence

Other defense witnesses said FAB members, including the victim, had guns and that FAB started the gunfire. Defense counsel later used this evidence to argue self-defense in closing argument.

Prosecution Rebuttal Case

Defendant's Interrogation Statement

The prosecution played for the jury the recorded August 27, 2008 interrogation of defendant, in which defendant insisted he was not at the party. Defense counsel stipulated that Detective Beery conducted the interrogation, and to the location, time and date of the interrogation. The prosecutor also informed the court that the recording had been redacted. There was no stipulation specifically related to the polygraph evidence contained therein. The recording played to the jury included the following:

"DET. BEERY: Do you know who shot Rob?

"[DEFENDANT]: I don't know who shot Rob.

"DET. BEERY: If you didn't do it, who did it?

"[DEFENDANT]: I don't know.

"DET. BEERY: You were there. Everybody else saw what happened. How come you didn't see what happened?

"[DEFENDANT]: Man, I don't know nothing, man. Damn.

"DET. BEERY: So you are confident that you didn't do anything wrong and that you didn't shoot anybody --

"[DEFENDANT]: Yep. I know I didn't shoot (unintelligible).

"DET. BEERY: Then how about if you take a polygraph?

"[DEFENDANT]: (Unintelligble)

"DET. BEERY: How about if you take a polygraph and prove to me that you're telling me the truth?

"[DEFENDANT]: I don't want no polygraph. I'm not fixing to take no polygraph.

"DET. BEERY: Do you know what that is?

"[DEFENDANT]: Hell, no.

"DET. BEERY: It's a lie detector test.

"[DEFENDANT]: I fixing to take none of that.

"DET. BEERY: Why? If you're telling the truth, you got nothing to hide.

"[DEFENDANT]: Not taking none of that.

"DET. BEERY: Why?

"[DEFENDANT]: 'Cause.

"DET. BEERY: Why not?

"[DEFENDANT]: I don't got to.

"DET. BEERY: 'Cause you know you're lying, that's why.

"[DEFENDANT]: 'Cause my dad already told me don't take nothing they ask you. All that mean (unintelligible) and I don't feel like talking (unintelligible) 'cause you just trying to make me say something (unintelligible).

"DET. BEERY: I'm not trying to make you say anything that's not true. I want the truth out of you, and so far you haven't given me one bit of truth since I've been in here.

"[DEFENDANT]: No, you can't make me say something I don't know.

"DET. BEERY: You lied about being there. You lied about being at the party. You lied about being at your dad's house.

"[DEFENDANT]: (Unintelligible)

"DET. BEERY: You lied about having a gun."

Later, the interview ended with the following:

"DET. BEERY: And you know what? Here -- here's the thing. If you absolutely, positively know you're telling the truth --

"[DEFENDANT]: Uh-huh.

"DET. BEERY: -- then a polygraph is going to absolutely prove to me that you are, and it's going to be done. I'll be done. If I look at those polygraph results and the lie detector test tells me Marvel's telling the truth. He doesn't know who did this. He didn't do this. Then that's it. It's over with.

"[DEFENDANT]: I don't know. I don't really feel like talking no more, man."

Testimony and Prior Statements of Daniel B.

The prosecution called Daniel B. as a rebuttal witness. The People rely, in part, on Daniel's purported identification of defendant as the shooter in contending defendant was not prejudiced by defense counsel's performance.

Daniel is the victim's brother. He testified under a grant of immunity. He was a FAB member at the time of the shooting, but no longer is. He had just been released from jail and cut off his ankle monitor and went to the party with his brother and other FAB members after being invited. They were not expecting trouble. He grew up with and played football with some of the Guttah Boyz, but FAB do not get along with Guttah Boyz or Starz. When they entered the house party, one of Daniel's group announced, "FAB in the building." The lights went off. A "bunch of dudes" with rags over their faces ran in through the screen door, yelling, "Fuck FAB." Shots were fired. Daniel tried to give the victim CPR but fled when he saw people with face rags who appeared to be reloading guns. Daniel saw someone he thought was defendant, shirtless and yelling.

Daniel testified he did not have a gun, did not see anyone with a gun, and was not sure if anyone in his group had a gun. Daniel testified his brother did not have a gun that night, but admitted telling police that he wasn't sure if his brother had a gun. Daniel testified he did not remember telling police that he saw his brother with a gun that night or that, when he (Daniel) expressed concern to his brother about going to the party, his brother said not to worry because he had a gun. Daniel denied talking to his father, Thomas B., about what had happened. Daniel told his father he did not know who shot the victim but thinks his father did not believe him.

Testimony of Thomas B.

The prosecution called Thomas B., Daniel's father and the victim's stepfather, to impeach Daniel's testimony. Thomas said Daniel told him what happened. First, Daniel said they had been invited to a party, a bunch of guys came in from the backyard, shooting guns and yelling gang stuff. Daniel did not mention that the guys had rags on their faces. Thomas testified that Daniel later told him, "they busted the guy that had shot his brother." Thomas replied, "who?" Daniel said, "that guy there did it," referring to defendant. The prosecutor asked Thomas, "When you had your conversation with Daniel [B.] the week after the shooting -- at that point did you feel he was telling you the truth?" Without objection, Thomas replied, "[W]hen he's crying he's always telling me the truth. He can't look me and lie, you know. He'll look away when he starts crying."

On cross-examination, Thomas testified that his son told him "they got the right guy. . . . [H]e is the one that did it, Pop." However, Thomas was not sure how Daniel knew. Daniel told Thomas he was afraid to talk to the police because "some people told him he was next." Thomas testified that Daniel never mentioned the victim had a gun at the party and felt Daniel would have told him that. He said his son was a good boy. Thomas testified, however, that he was unaware that his sons, the victim and Daniel, were in a gang. When asked whether Daniel's identification of the shooter came after the publication of a newspaper article about the shooting, Thomas said he knew nothing of the article.

Defense Surrebuttal

Stipulation Concerning Prior Statement of Daniel B.

A stipulated excerpt of Daniel's police interview was read to the jury, in which Daniel told the police that the first shots came from the outside, he saw his brother respond by shooting a gun, Daniel was wary of going to the party, but his brother said it would be okay because he had a gun.

Prior Statement of Thomas B.

A defense investigator testified he spoke with Thomas B. that day and took Thomas's statement. Thomas B. said that during his first conversation with Daniel, Daniel did not say anything about knowing who shot the victim. The investigator understood Thomas to say that when Daniel told Thomas several days later that the killer had been arrested, Daniel was merely referring to a newspaper article about the arrest rather than personal knowledge. Thomas said Daniel never told him that he (Daniel) saw defendant shoot the victim. Daniel only told him that they arrested defendant for shooting the victim.

Defense Closing Argument

In closing argument, defense counsel told the jury that the issues to be decided were who shot the victim, and whether whoever shot the victim was acting in self-defense. He contended that because of conflicting evidence, "[w]e don't know what happened in what order -- who shot first, who shot second, who shot in self[-]defense, who didn't," and consequently, the prosecution failed to carry its burden of proof. Counsel argued to the jury that the police ignored evidence that pointed away from defendant, including the evidence indicating that Earnest was a shooter, because that evidence did not fit the investigator's theory.

Concerning the key prosecution witnesses, defense counsel argued: "These detectives didn't know all the facts and they're making conclusions about who lies and even though [Earnest] lies, lies, lies, lies, lies, and lies the detective at some points [sic] says so now you're telling the truth so we won't continue with the lie detector test. We got what what [sic] we wanted. Don't worry. No more tests. We got what we want. You're good. We don't have to do any more lie detector stuff." "[O]nce [the detectives] get a name they say okay. We don't need to run any more tests . . . . They just decided he's truthful. [¶] Well, folks, the judge instructed you when this all happened the detectives don't get to decide what the truth is because they don't know all the facts like you do. You know everything. That's your job."

Regarding Larry's refusal to take a polygraph, defense counsel told the jury: "And once he was so sure and everyone was so sure that, oh, he's finally told the truth, you know, it's like, oh, do you want to take a polygraph? And he says nah. No. I'm not going to do that. I'm not going to take a polygraph. Well, why not if you're telling the truth?" Counsel said nothing more about Larry's refusal, but instead counsel went on to argue that perhaps Larry was not lying, but was mistaken -- "maybe he honestly thought that he saw Barksdale shoot. . . . Maybe he really thought that."

Defense counsel said nothing in his closing argument about defendant's refusal to take a polygraph examination.

Jury Deliberations and Readback Requests

Forty minutes into the six days of deliberations, the jury asked for: "The testimony from Earnest [B.] while in the room [with] Detective Tinsdale [sic]" and "[a]ll of Larry [H.]'s testimony." On the next day, the trial court responded that it appeared the jury wanted the video/audio recording of Earnest's polygraph examination, which the court would provide. The court also suggested: "If the jury also requests Det. Tynsdale's [sic] trial testimony regarding his interview of Earnest [B.] in connection with the administration of a polygraph examination, and/or Earnest [B.]'s trial testimony regarding the portion of his interview with Det. Tynsdale [sic], please submit an additional request." Three deliberation days later, the jury took the court up on its offer. The jury requested readback of trial testimony of Earnest and Detective Tyndale, in addition to one other witness's testimony. Midway through readback of the testimony of the other witness, the jury indicated it needed no more.

The next day, the jury returned verdicts finding defendant not guilty of first degree murder or second degree murder, but guilty of voluntary manslaughter. The jury found true the allegations that defendant personally used a firearm and that he committed the crime for the benefit of or in association with a criminal street gang.

DISCUSSION

I. Ineffective Assistance of Counsel

A criminal defendant has a constitutional right to effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S. 668, 684-685 [80 L.Ed.2d 674] (Strickland); People v. Pope (1979) 23 Cal.3d 412, 422, overruled on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) To show denial of that right, defendant must show (1) his counsel's performance was below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. (Strickland, supra, 466 U.S. at pp. 687, 691-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) To show prejudice, defendant must show a reasonable probability that he would have received a more favorable result had his lawyer's performance not been deficient. (Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694; accord, Ledesma, supra, 43 Cal.3d at p. 218; People v. Williams (1997) 16 Cal.4th 153, 215.)

Defendant bears the burden to show, by a preponderance of evidence, that trial counsel's performance was both deficient and prejudicial. (Ledesma, supra, 43 Cal.3d at p. 218.)

We conclude that defense counsel's performance was constitutionally deficient because he failed to alert the trial court of his intent to introduce polygraph evidence, introduced polygraph evidence concerning Larry, acquiesced in allowing the polygraph evidence concerning Earnest, elicited or failed to object to opinion evidence concerning the credibility of Larry and Earnest, failed to object to evidence of defendant's refusal to take a polygraph examination, and failed to object to the trial court's inadequate admonition concerning the polygraph evidence and credibility opinion evidence. Defendant was prejudiced by his counsel's performance.

A. Deficient Performance

The performance inquiry must take into account all the circumstances. (Strickland, supra, 466 U.S. at p. 688.) We look to whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. (Id. at p. 689.)

1. Failure to Put the Trial Court on Notice of the Intent to Introduce Polygraph Evidence

The People contend that the parties stipulated to the polygraph evidence, including the polygraph examiner's opinions, thereby making the evidence admissible under section 351.1. We agree with defendant. There was no stipulation. Moreover, counsel's failure to put the trial court on notice of his intent to introduce polygraph evidence, by way of stipulation or otherwise, was not objectively reasonable.

"'A stipulation is an agreement between counsel with respect to business before a court, and is not one of the usual pleadings, but is a proceeding in the cause and as such is under the supervision of the court, and has been compared to, and distinguished from, a contract.' . . . [W]hile no particular form of stipulation is required when made orally in open court, except that it be noted in the minutes, its terms must be definite and certain to render the proper basis for a judicial decision." (Harris v. Spinali Auto Sales, Inc. (1966) 240 Cal.App.2d 447, 452 (Harris); 3 Cal.Jur.3d (2006) Agreed Case and Stipulations, § 32, pp. 34-35; see also 1 Witkin, Cal. Procedure (5th ed. 2008) Attorneys, § 263, pp. 340-341; see also § 266, p. 344.)

Defense counsel stipulated to the authenticity of the recordings of the interrogations of Larry, Earnest, and defendant. He did not specifically stipulate to the admissibility of polygraph evidence.

The authenticity stipulations resulted from the trial court's solicitations for stipulations. Regarding the exhibit containing Merten's interrogation of Earnest, the court asked counsel, "do counsel stipulate that that is what this exhibit is and what will be played for the jury?" Both counsel simply replied, "Yes." Before playing the recording of Tyndale's polygraph examination and interrogation of Earnest, the prosecutor identified the recording and transcripts as containing the "interview" of Earnest by Detective Tyndale and noted the date and time it took place. The court then asked defense counsel, "You agree with those stipulated facts?" Counsel replied affirmatively, only mentioning that the transcript bore an incorrect date. As we have noted, the only stipulation defense counsel made concerning Detective Beery's interrogation of defendant was to the location, time and date of the interview.

We recognize that counsel offered no objection to admission of the People's exhibits, which included the recordings of the three interrogations, but that occurred after the recordings were played to the jury. Not objecting to the exhibits after the recordings had been played for the jury is not the equivalent of a stipulation specific to the admission of the polygraph evidence. Nor was there any written agreement or notation in the minutes setting forth a stipulation to the polygraph evidence. While any agreement between counsel concerned the "'business before [the] court,'" it was not brought to the attention of the court and, as such was not "'under the supervision of the court.'" (See Harris, supra, 240 Cal.App.2d at p. 452.) Thus, there was no stipulation concerning the polygraph evidence here.

Defense counsel's failure to inform the trial court about whatever informal discussion he had with the prosecution or to otherwise alert the court to his intent to introduce polygraph evidence (whether by stipulation, in limine motion, or otherwise) had predictable negative results, including the prospect of rulings the trial court might not otherwise have made on objections and putting the court in the position of having to "ad-lib" a jury admonition that was insufficient for reasons we will discuss.*fn8 Counsel's failure was not objectively reasonable.*fn9

2. Polygraph and Opinion Evidence Concerning Larry & Earnest

In evaluating defense counsel's tactical decisions, we recognize that "'[re]viewing courts defer to counsel's reasonable tactical decisions . . . and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."' [Citation.] '[W]e accord great deference to counsel's tactical decisions' [citation], and . . . 'courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight' [citation]. 'Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts.' [Citation.]" (People v. Weaver (2001) 26 Cal.4th 876, 925-926.)

However, while counsel's tactical decisions are entitled to deference, "'[d]eference is not abdication' [citations]; it must never be used to insulate counsel's performance from meaningful scrutiny and thereby automatically validate challenged acts or omissions." (Ledesma, supra, 43 Cal.3d at p. 217.) "Even a deliberate tactical choice by counsel . . . may be an incompetent one." (People v. Wader (1993) 5 Cal.4th 610, 658.)

Where counsel's strategic reasons for the challenged decisions do not appear on the record, the defendant normally must proceed by way of habeas corpus, where an evidentiary showing can be made. (Pope, supra, 23 Cal.3d at p. 426.) However, where there simply could be no satisfactory explanation, or where "counsel was asked for an explanation and failed to provide one," relief may be granted on direct appeal. (Ibid., italics added.) Also, unlike when a claim of ineffective assistance is based on the failure to investigate or assert a defense or the failure to introduce evidence, when the claim is based on allowing the admission of normally inadmissible evidence, we can look to counsel's closing argument to determine counsel's strategy and evaluate the objective reasonableness of that strategy.

The trial court asked defense counsel if he wanted to put on the record his reasons for not objecting to the polygraph evidence and counsel said that he did. Defense counsel said that he had talked with the prosecutor before trial, that both of them were of the position that it would be "okay letting the jury know that the polygraph -- or . . . pre-polygraph questions were posed." This ambiguous statement concerning the "polygraph or pre-polygraph" calls into question just what evidence defense counsel and the prosecutor may have discussed allowing, since the prepolygraph interview and polygraph questions are two separate parts of the polygraph examination. Moreover, defense counsel never said anything to the court about Tyndale's postpolygraph interrogation. Counsel then stated he "just didn't want to get into the . . . ultimate pass-fail as dictated by the test," but he wanted "the rest in for tactical reasons." Counsel never explained what his tactical reasons were for "the rest" of the polygraph-related evidence.*fn10

Nevertheless, counsel's closing argument reveals his strategy. He sought to: 1) paint Larry and Earnest as liars, 2) discredit the detectives and their investigation by arguing that they relied on Larry and Earnest without confirming by polygraph examination that they were finally telling the truth when they incriminated defendant, and 3) discredit the detectives for "rushing to judgment" based on the interviews of Larry and Earnest and ignoring evidence that suggested someone else did the shooting and that FAB initiated the gunfire.

Defendant contends that counsel's apparent trial tactics were unreasonable because other evidence made the polygraph evidence "completely unnecessary." We agree. Given the other evidence,*fn11 the argument that the police conducted a shoddy investigation and "rushed to judgment" once Earnest and Larry fingered defendant could have been easily and credibly made without the polygraph evidence. More importantly, not only was the polygraph evidence unnecessary, but it actually substantially weakened the defense case by enhancing the credibility of Larry and Earnest and by showing that the police had good reason to believe Earnest's and Larry's identification of defendant as the perpetrator.

The firm and broad exclusion of polygraph evidence codified in section 351.1 "is justified by the unreliable nature of polygraph results, by the concern that jurors will attach unjustified significance to the fact of or the outcome of such examination and because the introduction of polygraph evidence can negatively affect the jury's appreciation of its exclusive power to judge credibility. [Citations.]" (People v. Basuta (2001) 94 Cal.App.4th 370, 390 (Basuta).)

"The state's exclusion of polygraph evidence is adorned with no exceptions, and its stricture on admission of such evidence has been uniformly enforced . . . ." (People v. McKinnon (2011) 52 Cal.4th 610, 663.) In McKinnon, a witness testified he initially told police he knew nothing about the murder because he was afraid but later told the police the truth, that he witnessed the defendant shoot the victim. (McKinnon, supra, at p. 661.) On cross-examination, defense counsel asked if the witness had changed his story because the prosecutor threatened to charge him with the murder. He said no, he decided to tell the truth because his conscience bothered him. (Id. at pp. 661-662.) Out of the jury's presence, the prosecutor sought to introduce evidence that the witness had taken and failed a polygraph test after the first interview. The defense objected, citing section 351.1, and further contending that admission of the polygraph evidence would "improperly place a 'stamp of approval' upon the version of events to which [the witness] ultimately testified." (Id. at p. 662.) The trial court allowed the evidence, reasoning it was relevant to the witness's credibility because he might have changed his story because he was told he failed the polygraph test. (Ibid.) The witness then testified he melded truth and lies in his initial interview, took a polygraph test, and was told the results showed he lied about some things and told the truth about other things. He was told to just tell the truth. After thinking about what the polygraph examiner said, he decided to tell the truth. (Ibid.) The Supreme Court found admission of the evidence error, but harmless given the other evidence establishing the defendant's guilt. (Id. at pp. 662, 664.) The Supreme Court declined the prosecution's invitation to create a "state-of-mind exception to . . . section 351.1," to admit the evidence to explain the witness's state of mind in changing his story. (Id. at p. 663.)

Earlier, in People v. Lee (2002) 95 Cal.App.4th 772 (Lee), the Court of Appeal held that the trial court committed reversible error by allowing the jury to hear a recording of the polygraph examination taken by a key prosecution witness and the subsequent interrogation of that witness based on the results of the polygraph. Before administering the polygraph, the examiner told the witness that he was going to use a "'computerized polygraph system' which was 'state of the art,' 'high tech stuff' and as accurate as a calculator." (Lee, supra, 95 Cal.App.4th at p. 782.) During the polygraph, the witness denied shooting the victim and denied knowing who did. Before sharing the results with the witness, the examiner emphasized the reliability of the polygraph by telling the witness the machine was "'copyrighted by [the] Johns Hopkins University applied physics laboratory--the same people that monitor the spacecraft when they go out and come back in.'" (Lee, supra, at p. 783.) The polygraph examiner then told the witness the polygraph showed he was lying. (Ibid.) The People contended on appeal that the evidence was not offered for truth or falsity of the witness's answers or to establish the defendant's guilt, but rather to establish the witness's state of mind when he changed his story. (Id. at pp. 790-791.) The court rejected that argument. (Id. at p. 791.)

The court concluded, "the effect of the test results was to cause [the witness] to name defendant as the killer after previously denying any knowledge about who killed [the victim]. It is impossible in this case to separate the inadmissible 'results' of the polygraph test from their 'effect' on [the witness]. Thus, the jurors were permitted to infer [the examiner's] 'high tech' polygraph caught [the witness] in a lie and caused him to abandon the lie and tell the truth--that defendant was the killer. This was tantamount to receiving into evidence the results of the polygraph examination. Its probable impact on the jury was to place the badge of credibility on [the witness's] postpolygraph statements to the police incriminating defendant, assuming they were admissible." (Id. at pp. 791-792, italics added.) The error in allowing the polygraph evidence was prejudicial because "[t]he polygraph evidence lent an unreasonable impression of credibility" to the witness's identification of the defendant as the killer in an otherwise weak case. (Id. at p. 792.)

Lee was decided well before defendant's trial, and counsel contemplating the introduction of polygraph evidence here should have been familiar with Lee's holding and reasoning. Criminal defense attorneys have a duty to investigate the law, and their strategic decisions should be informed by adequate preparation. (Ledesma, supra, 43 Cal.3d at pp. 210, 211, 215.) Yet, despite the appellate court's observation in Lee that allowing the same type of polygraph evidence admitted here places a "badge of credibility" on a witness's postpolygraph statements, counsel allowed the evidence anyway.

Moreover, the detectives offered predictable reasons for not subjecting Larry to a polygraph after he identified defendant as the shooter. These reasons had the predictable impact of drawing the sting of defense counsel's argument. During his testimony, Detective Merten quoted Larry as saying he did not want to be a snitch. His indication that this was a quote suggests the statement was in his police report, and defense counsel did not indicate this quoted statement was something he had not been provided in discovery. Defense counsel should know what is in the police reports. (See In re Jones (1996) 13 Cal.4th 552, 570.) Detective Tyndale explained that generally he administers polygraph examinations to people who volunteer. A test subject's reluctance to take the test could have an adverse effect on the results. The notion that voluntariness is sought by police investigators when administering polygraph examinations should have been apparent to counsel since a separate reason for the reversal in Lee was that the witness's statement was coerced and involuntary. (Lee, supra, 95 Cal.App.4th at pp. 782-789.) Larry could not be forced to take the polygraph.

Counsel's strategic goal concerning Earnest's polygraph examination did not align with his tactical decisions. He stated his goal was to keep out "the ultimate pass-fail as dictated by the test." His comment, "I think we avoided that," suggests he somehow believed the jury had not heard the results of Earnest's test. On appeal, the People argue that there was no evidence of whether a witness "passed or failed" the test. But the jury actually heard the results of Earnest's polygraph test twice -- first when the results were repeatedly referenced by Detective Tyndale in the recorded interrogation following the polygraph examination and again during the prosecution's cross-examination of Tyndale after he was called to testify in the defense case.

During the recorded interview, which the prosecutor had no intent on introducing until defense counsel suggested it should be admitted, Tyndale confronted Earnest with the results, saying the machine indicated Earnest was lying. He told Earnest that he would not pass the test if he continued to lie. He assured Earnest that everyone who is honest passes the test and that Earnest would pass if he was "100 percent completely honest." And he told Earnest he was going to tell the other detectives that "Earnest isn't passing the test."

Counsel let the results slip in when he failed to object to Detective Tyndale's answer to the prosecution's question, "without discussing what you believe to be specific results of the test[,] how was the test used as an interrogation tool with Earnest?" Tyndale effectively told the jury the results when he replied, "[t]he results were inconsistent with his statement." We are at a loss to understand how counsel, and now the People, think counsel successfully kept out the "ultimate pass-fail."

We are equally at a loss to understand why defense counsel did not want to introduce the "ultimate pass-fail," since his argument was that Earnest failed the test and his truthfulness was not confirmed by requiring him to take another polygraph examination after incriminating defendant. If there is an explanation for this apparent contradiction, we do not know what it is because, although counsel was asked to explain his strategy, he did not.

Furthermore, defense counsel's argument concerning the detectives' failure to have Larry and Earnest take the polygraph after they identified defendant was undercut by counsel's own trial tactics. In front of the jury, counsel objected to a prosecution question of Detective Tyndale on the ground that the polygraph results are inadmissible, despite the fact he had already let the jury hear the results of Earnest's test. Counsel then introduced evidence that polygraph results are inadmissible by having Tyndale confirm that rule. By that time, it had already been established that polygraph examinations are used by law enforcement as an interrogation tool -- first in response to a juror question to Detective Merten and then again by Detective Tyndale. Tyndale elaborated by testifying that the polygraph has a tendency to make witnesses more truthful during an interrogation. Just being in the room with the machine, "knowing that as they look at it, it will make them become more truthful." With the interrogation tool having served this purpose and the results ultimately being inadmissible, one could hardly expect the jury to hold it against the detectives for not verifying on the polygraph the witness's identification of defendant as the shooter.

Counsel further undercut his strategy when, after asserting that Larry refused to take the polygraph examination because he knew he was lying, counsel inexplicably told the jury maybe Larry was not lying. Instead, he suggested maybe Larry was simply mistaken.

Finally, allowing the polygraph evidence filled in what would otherwise have been a significant gap in the prosecution's case. Statements made during a polygraph examination are admissible under subdivision (b) of section 351.1, but the subdivision (a) ban on polygraph examination evidence*fn12 requires that any references to polygraph examinations be redacted from those statements. Thus, it should have been clear to counsel that without the polygraph evidence, the prosecution would have had no explanation for why Larry and Earnest changed their stories and finally fingered defendant as the shooter. Given Lee (and McKinnon) and the language of the statute, this circumstance always arises whenever the prosecution seeks to introduce statements made during a prepolygraph examination or statements made during the actual test. Defense counsel filled in that gap for the prosecution by highlighting that the witnesses changed their story after being exposed to Tyndale's polygraph.

Similar to Lee, the polygraph evidence here provided an inference that the highly reliable polygraph caught Earnest in a lie and caused him to abandon the lie and tell the truth. Fear of failing the exam made Larry tell the truth. The polygraph evidence effectively placed a "badge of credibility" on the witness's postpolygraph statements to the police in which they incriminated defendant.

Counsel's strategy was not objectively reasonable.

3. Opinion Evidence Concerning the Credibility of Larry and Earnest

Defendant also contends counsel's performance was constitutionally deficient because counsel allowed or elicited opinion testimony concerning the veracity of the postpolygraph witness statements. Lay opinion about the veracity of witness statements is normally inadmissible. (People v. Melton (1988) 44 Cal.3d 713, 744; People v. Sergill (1982) 138 Cal.App.3d 34, 39-40 [admission of investigating officers' inadmissible opinion of credibility of child victim's statement was reversible error]; see also People v. Smith (1989) 214 Cal.App.3d 904, 914-916 [admission of police officer's opinion about the credibility of victim's dying declaration was error but harmless given other evidence in the case].)

Opinion testimony concerning credibility was first injected here when Detective Merten gave his opinion about the veracity of Earnest's postpolygraph statement without defense objection. After calling Detective Tyndale as a defense witness, defense counsel established that Tyndale thought Larry was truthful when he finally incriminated defendant. Counsel's purpose for allowing this testimony, as reflected in his closing argument, was to argue there had been a rush to judgment without verifying the postpolygraph statements on the polygraph machine.

The strategy of highlighting the officers' opinions might have been reasonable in the absence of polygraph evidence since, as we have noted, the prosecution would not have had an explanation for the changed stories absent the jury hearing about the lie detector. But objectively reasonable counsel, familiar with the holding and reasoning in Lee, would not have embarked on a strategy of highlighting the officers' credibility opinions when the statements the officers found credible occurred after the witnesses failed or were confronted with the polygraph. The police opinion testimony here essentially added luster to the "badge of credibility" provided by the polygraph evidence. Thus, counsel's strategy of allowing the jurors to hear that the police believed the postpolygraph statements of key prosecution witnesses was not objectively reasonable.

4. The Trial Court's Admonition

The trial court allowed Tyndale to give his opinion about the veracity of Earnest's postpolygraph statements pursuant to a juror question, in part, because the court felt defense counsel opened the door to the testimony. Counsel appropriately objected to that question, but did not object to the court's admonition to the jury. Instead, counsel stated he thought the admonition was "appropriate." It was not.

The court told the jury that it was allowing the witness to answer that question "only because it will give context to the course of the interrogation . . . that Detective Tyndale conducted with respect to [Earnest]." It is not entirely clear what the court meant by "context to the course of the interrogation," and defense counsel did not ask the court to elaborate. Given the common meaning of the word "context," it would appear the context had already been established in the recording of the polygraph and interrogation.*fn13 If "context" was shorthand for explaining Tyndale's state of mind, that too was previously reflected in the recording. If "context" was shorthand for describing why the witness changed his story, the instruction was improper. Indeed, in rejecting the "state of mind" exception to polygraph evidence, Lee also rejected the trial court's limiting instruction, noting that the error in admitting the evidence was not cured by that instruction. The trial court in Lee instructed: "'Polygraph results are not admissible. You are not to discuss or consider the subject of polygraph, how it works [or] any facts relating to polygraph examination. Polygraph examination has been admitted in this court for the limited purpose of showing the effect of the knowledge of a polygraph test on the [witness]. You are not to consider the polygraph results for any other purpose." (Lee, supra, 95 Cal.App.4th at p. 791.)

Furthermore, telling the jury the answer was being admitted to "give context to the course of the interrogation" only served to explain why the court was admitting the evidence. The court did not tell the jury how it could use the evidence. The court did not limit the purpose for which the evidence could be used*fn14 and counsel never requested that the court give a limiting instruction. We recognize that the court admonished the jurors that the question of witness credibility was one for them to decide, and that credibility determinations were not up to the detectives. However, the court's instruction in no way limited the use of the detectives' opinions. The jurors were free to use the detectives' credibility opinions along with the other evidence in the case in making their independent determinations of the credibility of Larry's testimony and Earnest's postpolygraph statements identifying defendant as the shooter. Indeed, the jury was later given the standard instruction on lay opinion testimony, which tells the jury to give the opinion of witnesses whatever weight the jury deems appropriate.

The admonition was problematic in other particulars. The court told the jury that "polygraph results are not ordinarily admissible in court." Like the testimony elicited by defense counsel, that statement provided a reason why the detectives did not confirm the postpolygraph statements by requiring the witnesses to submit to a polygraph on their identification of defendant as the shooter. Also, the court inadvertently validated the detectives' testimony and the use of the polygraph as an interrogation tool, telling the jury, "Detective Tyndale's polygraph equipment, his education, training, and experience with the polygraph are used as part of law enforcement. There's nothing wrong with that. They are used a lot."

The court did not explain why polygraph examinations are not admissible or otherwise explain that the results are unreliable. To the contrary, the admonition provided a halo to Detective Tyndale's opinion that the reliability of polygraph examinations depends on the examiner, saying, ". . . I think what Detective Tyndale has said about the qualifications of an examiner have a lot to do with it." Defense counsel did not object to these comments. Nor does the record reflect that defense counsel ever requested that the court give the standard instruction on judge's comments on the evidence.*fn15

Unfortunately, as the trial court lamented, it was put in a position of "ad-libbing" the admonition on the "spur of the moment" and had defense counsel alerted the court to his intent to introduce polygraph evidence, the court would have had the opportunity to draft an "appropriate" admonition and limiting instruction, with the input of both counsel. Once the admonition here was given, defense counsel should have objected and suggested a curative instruction and an instruction on judge's comments on the evidence.

Counsel's failure to object to the admonition and his failure to request a curative instruction and an instruction on judge's comments on the evidence was not objectively reasonable.

5. Defendant's Refusal to Take a Polygraph Test

While the court asked defense counsel about his tactical decision to introduce polygraph evidence involving Larry and Earnest, the court did not specifically ask defense counsel for an explanation concerning defendant's refusal.

The People argue defendant's trial counsel had a tactical purpose for wanting the evidence that defendant himself declined a polygraph test, "so defense counsel could later argue that [defendant] lied and knew he lied during the interview because his father told him to." The strategy the People attribute to counsel is not apparent from counsel's closing argument. While counsel mentioned in his closing argument that defendant's father advised defendant to lie, counsel said absolutely nothing about defendant's refusal to take the polygraph. Having allowed this otherwise damaging evidence, it was simply not objectively reasonable to not offer some positive spin to the jury on that evidence, if there was one. Indeed, it seems more likely that counsel did not discuss this evidence during argument because counsel had no strategy for allowing the evidence, let alone a strategy that was objectively reasonable.

Moreover, counsel could have made the argument that defendant lied to the police on the advice of his father without allowing defendant's refusal to take a polygraph. Instead, counsel not only allowed the jury to hear that defendant refused a polygraph, but also allowed the jury to hear how defendant refused. Defendant's refusal was adamant.

Further, it should seem obvious that despite the advice of defendant's father, a jury would likely wonder why a truly innocent person would not take a test that could exonerate him. This seems particularly true in light of Detective Tyndale's statement to Earnest that Tyndale had exonerated people charged with murder who passed a polygraph examination), Tyndale's earlier testimony about the reliability of the polygraph, and Detective Beery's statements, "prove to me that you're telling me the truth," "[i]f you're telling the truth, you got nothing to hide," and her final statement during the interrogation in which she indicated defendant would be exonerated if he passed the "lie detector."

Also obvious is the danger the jury would find the refusal to take a polygraph evinced a consciousness of guilt. Yet, our high court has observed, a "'"suspect may refuse to take the test, not because he fears that it will reveal consciousness of guilt, but because it may record as a lie what is in fact the truth."'" (People v. Espinoza (1992) 3 Cal.4th 806, 817.) And our high court has observed that a defendant's refusal to take a polygraph examination is generally "highly prejudicial." (People v. Hogan (1982) 31 Cal.3d 815, 850, disapproved on another ground in People v. Cooper (1991) 53 Cal.3d 771, 836.)

We also observe that counsel did not request an instruction admonishing the jury that the refusal to take a polygraph cannot prove guilt by itself. Thus, the jury was permitted to use defendant's refusal as conclusive evidence of his guilt. Where false statements are admitted to show consciousness of guilt, the court must instruct that the jury is forbidden from basing a conviction solely on the fact the defendant made false statements. (See CALCRIM No. 362; People v. Williams (2000) 79 Cal.App.4th 1157, 1168.) While the trial court gave that instruction (which was appropriate given defendant's false statement to the police that he was not at the party), some of the prejudice may have been mitigated had counsel requested a similar instruction with respect to defendant's refusal to take the polygraph examination.

Finally, introducing evidence that defendant refused to take a polygraph undercut the strategy of highlighting Larry's refusal. On the one hand, counsel argued that Larry was not credible because he refused to take a polygraph to confirm his identification of defendant as the shooter. On the other hand, in his closing argument, counsel completely ignored the fact that defendant refused to take a polygraph -- a test that could have exonerated him in the eyes of the investigating officers.

Allowing the jury to hear that defendant refused to take a polygraph examination and allowing the jury to hear how he refused was not objectively reasonable.

B. Prejudice

Having concluded the performance of defendant's trial counsel fell below an objective standard of reasonableness under prevailing professional norms, we must now determine whether defendant was prejudiced. The question we answer is whether there is a reasonable probability that he would have received a more favorable result had counsel's performance not been deficient, i.e., whether counsel's errors were sufficient to undermine confidence in the outcome. (Strickland, supra, 466 U.S. at pp. 693-694, 695; Ledesma, supra, 43 Cal.3d at pp. 217-218.) We must make this determination based on the "totality of the evidence before the . . . jury." (Strickland, supra, 466 U.S. at p. 695.) "[A] verdict . . . only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." (Id. at p. 696.)

Here, Larry and Earnest were essential to the prosecution's theory that defendant was the shooter and that he shot first. Without Larry's testimony and prior statements and without Earnest's prior statements, a guilty verdict would not have been forthcoming.

In Basuta, the Court of Appeal reversed a judgment against a daycare provider convicted of assault on a child by force likely to produce great bodily injury or death. (Basuta, supra, 94 Cal.App.4th at p. 377.) The defendant and her housekeeper were the only adults present. The housekeeper initially told police the child fell (id. at pp. 376-379), but later told the police defendant shook the baby, and offered to take a polygraph test. (Basuta, supra, 94 Cal.App.4th at pp. 388-389.) Although the trial court excluded the evidence, a detective, when asked "what happened" after the housekeeper finished the interview, testified the housekeeper offered to take a polygraph test. (Id. at p. 389.) The trial court denied a mistrial because the reference was brief and did not reveal the results.*fn16 (Ibid.) The appellate court found error, however, noting the jury's decision on the housekeeper's credibility was central to the prosecution's case, and the detective's testimony had "a high potential to affect the jury's resolution of that issue." (Id. at p. 390.) The improper mention of the polygraph test, in combination with other error, compelled reversal of the judgment. (Id. at p. 391.)

Similarly, Lee involved a critical prosecution witness. The court observed that there were weaknesses in the prosecution's case absent the witness's statement blaming the murder on defendant. The court reasoned, "The polygraph evidence lent an unreasonable impression of credibility to that statement. Polygraph evidence is inadmissible because of the lack of scientific certainty about the results and also because lay persons tend to invest such evidence with an inordinately high degree of authority. . . . [T]he jurors heard nothing about the lack of scientific support for polygraph results but they did hear [the examiner] describe his machine as a piece of space age technology, as reliable as a calculator, 'state-of-the-art,' 'high tech stuff,' and 'copyrighted by [the] Johns Hopkins University applied physics laboratory . . . the same people that monitor the spacecraft.' For these reasons, we find it is reasonably probable that without the inadmissible polygraph evidence the jury would have reached a result more favorable to the defendant." (Lee, supra, 95 Cal.App.4th at p. 792, fns. omitted.)

McKinnon, distinguishing Basuta and Lee, found harmless the erroneous admission of polygraph references because the pathologist's testimony and other witnesses who unequivocally identified the defendant as the killer corroborated the testimony of the witness who took the polygraph. (McKinnon, supra, 52 Cal.4th at pp. 664-666.)

Here, there was prejudice. No physical evidence tied defendant to the shooting. Larry and Earnest were the only witnesses who said that they saw defendant fire a gun and that defendant was the first to shoot. Thus, their credibility and the credibility of their prior statements were vital to the prosecution's case. As in Lee, their credibility was enhanced by the polygraph, a machine the prosecution's polygraph examiner testified was highly reliable. Their veracity was further enhanced by the detectives' opinions. The trial court's admonition was insufficient to cure the prejudice.

We note also that the prosecutor capitalized on the windfall polygraph evidence in his closing argument when he asserted that Earnest lied during his testimony and that he told the truth when he spoke to Detective Tyndale after the polygraph examination. In his rebuttal argument, the prosecutor told the jury that the detectives convinced Larry he needed to "come clean" at the point he was confronted with taking the polygraph examination.

Defendant's credibility was essential to the defense case. Yet, the admission of his adamant refusal to submit to a polygraph examination undercut his credibility and his defense.

The People argue the polygraph evidence was harmless because it was brief, with no mention of specific test results, and the prosecution's case was strong. We are at a loss to understand how the People can characterize the sum of Earnest's polygraph and subsequent interrogation, the polygraph evidence related to Larry and defendant's refusal to take the polygraph as "brief." Moreover, unless the jury believed Larry's testimony and Earnest's prior statements, the prosecution's case can hardly be characterized as "strong." Certainly, the prosecution's case was not so strong as to render the polygraph evidence non-prejudicial.

Looking at the totality of the evidence, we note that other evidence undermined the credibility of the prosecution witnesses. Both Larry and Earnest lied repeatedly in their interviews with the police before identifying defendant as the shooter. Larry was on probation and given transactional immunity for his testimony. Earnest testified that he did not see defendant fire a weapon, so the prosecution impeached his trial testimony with evidence that he told police that defendant fired a gun. But before Earnest mentioned the name "Dick" during Tyndale's interrogation, Tyndale mentioned the defendant's nickname first and then resumed the theme that Earnest was lying -- a circumstance defense counsel failed to point out to the jury in closing argument.*fn17 It was only after Tyndale said he would not tell anybody what Earnest might say that Earnest asked if the police had interviewed "Dick" -- another circumstance defense counsel failed to mention during closing argument.

Catherine identified Desmond as the shooter moments after the shooting. The evidence suggested that Larry, who was friends with Desmond and had known him since elementary school, may have attempted to cover up for Desmond. Larry did not admit to Detective Merten that Desmond was one of the people with whom he came to the party until well into his interrogation, and then only after Merten confronted him with Desmond's name. Gunshot residue tests suggested Desmond may have fired a gun. Tito, the driver of the car in which Larry and Desmond fled, told a detective that Desmond had "the gun or had a gun" in the car when they left the party. Tito sent a text message to someone the day after the shooting in which he wrote that after the shooting, "one of the shooters got in my car." Jasmine and Earnest were friends with Desmond as well, and thus were potentially biased. On the other hand, Jasmine had no relationship with defendant, having never met him before, and having seen him only once in the Meadowview area.

John Smith identified Earnest as a shooter to the police, but only after being overheard implicating Earnest during a phone conversation he did not know was being monitored. Jasmine and Earnest were also friends. Jasmine initially told police she did not see defendant with a gun. She did not give police that information until three days after the shooting.

There were inconsistencies concerning the gun defendant purportedly used, undercutting the credibility of the prosecution's key witnesses. When Jasmine testified, she said the gun was black and, although she only saw the "handle," it appeared to be an automatic handgun based on being shown an example of an automatic and a revolver. Larry initially testified that the gun was probably black or grey, but then said he was not sure of the color. Yet he was sure that it was a revolver and, as a surprise to both counsel, testified he saw defendant reloading the gun with ammunition depicted in a photograph. In his statement to the police, Earnest also said the gun defendant had was a revolver, but he described the gun as chrome or silver.

Other witnesses indicated FAB had guns and fired first, contrary to Larry's and Earnest's statements to the police that defendant fired the first shots. Indeed, when Larry testified, he said he was not sure who fired first, and Earnest testified that the shooting came from inside the house.

As for the police investigation, there was evidence illustrating shortcomings without the polygraph evidence. The lead investigator, Detective Beery, testified that she was unaware Catherina had identified Desmond as the shooter. Detective Merten testified that he did not remember whether he had been told about Catherina's identification of Desmond as the shooter. The detective who obtained Tito's phone records (containing the text message indicating that one of the shooters had gotten into Tito's car after the shooting) did not remember whether he reviewed the records or what he had done with that lead. Nor did he know whether some other detective had reviewed the records, (RT 906) and as far as he knew the records were never discussed during the investigation, although he was sure he forwarded the records to either Detective Beery or the other lead detective on the case.*fn18

The People argue that the result would not have been different absent the polygraph evidence and credibility opinion evidence because Daniel, the victim's brother, also identified defendant as the shooter to their father. Daniel's credibility was highly suspect. His testimony that his brother did not have or shoot a gun was impeached by his contrary prior statement to a detective and the gunshot residue evidence suggesting the victim had fired a gun. His identification of defendant as a shooter is belied by his testimony that the Guttah Boyz had rags on their faces.

As for the purported identification of defendant to the father, Daniel actually never told the father that he saw defendant shooting. He merely told his father that the police had apprehended the right person, never saying how he knew they arrested the right person.

Finally, the closeness of the case and the evidence the jury found important is demonstrated by the requests the jury made during deliberations. (See People v. Pearch (1991) 229 Cal.App.3d 1282, 1295.) At the beginning of six days of jury deliberations, the jury requested to see the video recording of Earnest's polygraph examination and the subsequent interrogation and later requested a readback of Earnest's testimony and Tyndale's trial testimony concerning his polygraph examination of Earnest, although they later determined they did not need the readback. The jury's verdict, voluntary manslaughter grounded on sudden quarrel/heat of passion,*fn19 further illustrates the difficulty the jury had in arriving at a verdict.

We conclude there is a reasonable probability that defendant would have received a more favorable result had counsel's performance not been deficient. Counsel's errors were sufficient to undermine confidence in the outcome. Thus, prejudice is shown. The judgment must be reversed due to ineffective assistance of counsel.

II. Other Contentions

We need not resolve defendant's other contentions, but we make one observation. In the event of a new trial on remand, the trial court, in determining admissibility of the MySpace evidence, will want to consider People v. Beckley (2010) 185 Cal.App.4th 509, which issued on June 9, 2010, after the jury in this case began deliberations on June 8, 2010.

DISPOSITION

The judgment is reversed.

We concur: BLEASE , Acting P. J. ROBIE , J.


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