IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)
January 30, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
AARON LEE PATRICK, DEFENDANT AND APPELLANT.
(Super. Ct. No. 62095069D)
The opinion of the court was delivered by: Robie , Acting P. J.
P. v. Patrick
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Aaron Lee Patrick guilty of seven counts of second degree burglary. Defendant contends on appeal that his convictions must be reversed due to instances of prosecutorial misconduct resulting from what he characterizes as the prosecutor's decision to "defy" the trial court's ruling to exclude any references to defendant being in custody for a separate crime.
Because we conclude that defendant forfeited any claim of prosecutorial misconduct, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with eight counts of second degree burglary and two count of attempted second degree burglary for incidents that occurred on October 3, 8, 9, 29, and 30, 2009, and November 20, 2009. Three co-defendants were also charged with several counts of second degree burglary along with defendant, as well as additional counts of second degree burglary occurring on November 23, 2009. On November 21, 2009, defendant was arrested for stealing a pair of gloves from Kmart, and he remained in custody throughout the course of the trial in this case.
Before trial, the prosecutor filed a motion in limine to request that evidence of defendant's November 21, 2009, crime and subsequent conviction be admitted as evidence of motive, modus operandi, and common plan and scheme for the burglary allegations. In response, defense counsel filed a motion in limine to exclude evidence of defendant's prior conviction under Evidence Code section 1101, subdivisions (a) and (b).
After oral argument, the trial court determined that the facts of defendant's prior conviction were inadmissible and therefore granted defendant's request to exclude the evidence without prejudice. The trial court further made a sua sponte decision to prohibit any reference to defendant's custody status in front of the jury.
During trial, the prosecutor informed the court that the testimony by the officers who were present at defendant's jailhouse interview for the current crimes would inevitably indicate defendant's custody status because she could not "fathom a situation where the officer could testify fully and truthfully without indicating the circumstances under which [the officer] is questioning the [d]efendant." The prosecutor also argued that she needed to establish that defendant received his eyeglasses while he was in custody because defense counsel had asked witnesses on cross-examination whether any of the robbers were wearing eyeglasses on the nights in question. Lastly, the prosecutor argued that the jury needed to be aware of the fact that defendant was in custody because it established that he was unavailable to commit other robberies that occurred on November 23, 2009.
After conducting an Evidence Code section 352 analysis, the trial court found that the probative value of informing the jury that defendant received his eyeglasses in custody was small compared to the great prejudice inherent in informing the jury that defendant was in custody. As for the fact that defendant was interviewed in custody, the trial court further held that the prejudice outweighed the probative value. Lastly, the trial court found that the probative value of defendant's unavailability to commit the November 23, 2009, burglaries because he was in custody was also outweighed by the prejudice and, further, defendant's availability was not relevant because defendant was not charged in those particular burglary allegations.
The prosecutor subsequently questioned Jim Hudson, the detective who interviewed defendant about his involvement in the burglaries. According to Hudson, he interviewed each of the other defendants at the jail, one right after the other. After describing the interviews of several other co-defendants, the prosecutor began to specifically ask about defendant's interview by asking, "[n]ow, you interviewed [d]efendant Patrick as well; correct?"
Hudson testified that although he personally conducted defendant's interview, another detective was also present in the interview and was "tending to other sheriff-related matters." Specifically, Hudson testified that defendant had used the phone during his interview, to which the prosecutor asked, "[w]hose phone did he use?" Hudson answered, "[t]he jail phone."
Before the defense began its case-in-chief, the prosecutor informed the court at a side bar that she wanted to establish that defendant had made almost 100 phone calls from jail. The court asked the prosecutor why it was imperative that she establish where defendant's phone calls came from. The prosecutor answered that she needed to establish to the jury how she knew about the phone calls since she did not put a wire tap on defendant's private phone line. In making its decision of whether to let the information in, the trial court made note of the fact that the jury was already privy to the fact that defendant was in jail because "[i]t came out twice yesterday during [the prosecutor]'s questioning of Detective Hudson where he made the phone calls from -- he said from the jail, okay?" The trial court also noted that Hudson stated that there were four total defendants in custody, to which the trial court responded, "[s]o I think -- and that's why -- that's what brought the question from one juror where he said what was he in custody for, so they already know that [he is in custody]."
Indeed, after Hudson's testimony was finished, the jurors took advantage of their opportunity to submit questions during the course of the trial, and specifically asked the attorneys to clarify whether defendant was in custody and to describe the circumstances of defendant's interview. Defense counsel objected to the jury's question about defendant's custody status, and the trial court did not allow the question to be asked. Defense counsel never objected, however, to any of the prosecutor's questions throughout the course of the trial.
On appeal defendant claims his due process rights and right to a fair trial were violated by misconduct committed by the prosecutor. Defendant alleges that the misconduct resulted from the prosecutor's decision to "flout" and "defy" the trial court's ruling to exclude evidence that defendant was in custody at the time he was interviewed by Detective Hudson by "interrogat[ing] Detective Hudson exactly as she had planned, placing [defendant]'s interview directly in the context of the other suspect interviews." Defendant ultimately contends that the jurors' knowledge of his custody status was prejudicial and "rendered the trial unfair." Throughout the course of the trial, however, defense counsel did not object to any of the instances of alleged misconduct, nor did he request the jury be admonished. We therefore conclude that defendant's claims of prosecutorial misconduct were forfeited by defense counsel's failure to object or request an admonition in the trial court.
"As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety." (People v. Samayoa (1997) 15 Cal.4th 795, 841.) "A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if '"an admonition would not have cured the harm caused by the misconduct."'" (People v. Hill (1998) 17 Cal.4th 800, 820.)
Defendant offers two arguments to avoid forfeiture of his misconduct claims. Neither has merit.
First, defendant argues, without citing any authority, that his pretrial motion in limine to exclude evidence of his prior conviction served to preserve the prosecutorial misconduct issue for appeal. He contends that the motion in limine made the court and prosecutor "aware of the defense position," rendering any further objection "pointless." However, the motion in limine to exclude evidence of defendant's prior conviction did not constitute a timely objection to the later instances of alleged prosecutorial misconduct in eliciting evidence that tended to show defendant was in custody, in violation of the court's pretrial ruling. While it is true that the motions in limine prompted the trial court's decision to exclude evidence of defendant's custody status, that fact does not excuse defendant from making a timely objection to the alleged violations as required by law. Indeed, defendant filed the motion in limine well before the alleged misconduct occurred and before the court had a chance to cure any potential prejudice with an admonition. Our Supreme Court requires defendant to "timely" "ma[k]e an assignment of misconduct . . . ." (People v. Samayoa, supra, 15 Cal.4th at p. 841, italics added.) The pretrial motion in limine does not properly substitute for a timely objection.
Defendant also contends that an admonition to the jury would have "award[ed] . . . the prosecutor for her misconduct" and an objection at that stage would have "made matters worse." According to defendant, an admonition by the trial court "would have served to put [defendant]'s custody status before the jury in a direct way" and would have "confirm[ed] that [defendant] was in fact in custody when he was interviewed." Defendant therefore contends that "no suitable admonition [i]s possible."
While it is true that, in unusual circumstances, defense counsel may be excused from the "legal obligation to continually object, state the grounds of his objection, and ask the jury be admonished" if to do so would be futile and counterproductive to their client, there is nothing in the record to suggest that such action would have been futile here. (People v. Hill, supra, 17 Cal.4th at p. 821.)
According to defendant, the prosecutor elicited testimony that "suggested clearly that [he] was in jail." Specifically, defendant points to the fact that the prosecutor immediately "segued into questions about the interview of [defendant]" right after she asked about the other interviews that had taken place in jail. Defendant also points to the fact that the prosecutor asked what phone defendant used to make a phone call, which prompted Hudson to testify that defendant used the jail phone. Lastly, defendant refers to the fact that Hudson stated that the other detective was in the room during defendant's interview "tending to other sheriff-related matters." As a result, defendant argues that the prosecutor's questioning and the detective's testimony informed the jury that defendant was in custody when his interview took place, thereby prejudicing his case. Defense counsel never objected, however, to the prosecutor's line of questioning. Had defense counsel done so at the outset, the trial court could have warned the prosecutor to avoid any further implications that defendant was in custody.
Because such a warning from the trial court could have caused the prosecutor to not elicit further testimony that suggested defendant's custodial status, it is evident that an objection would not necessarily have been futile. As a result, defendant was not excused from his legal obligation to object to the alleged misconduct, and therefore defendant has forfeited any claim of prosecutorial misconduct.
The judgment is affirmed.
We concur: MAURO , J. DUARTE , J.
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