California Court of Appeals, Second District, Fifth Division
Certified for publication 12/3/13 (order attached)
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA071275, Mark S. Arnold, Judge.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and Robert M. Snider, Deputy Attorney General, for Plaintiff and Respondent.
Marie Jackson (Marie) was found dead in the trunk of her car in 1994. Her husband, defendant and appellant Andre Jackson, was convicted in 2012 of first degree murder and sentenced to 25 years to life in state prison. The only substantive issue on appeal is whether the trial court erred in overruling objections to expert testimony of a former agent of the Federal Bureau of Investigation (FBI), explaining his assessment of various aspects of the murder. We hold the trial court did not err in admitting the expert testimony, modify the judgment to award 225 days of conduct credits, and otherwise affirm.
A. Prosecution Evidence
1. Discovery of Marie’s Car and Body
Marie’s body was recovered from the trunk of her impounded Saab automobile on November 15. Defendant had reported Marie missing on November 12. Police were lead to Marie’s car by Timothy Cunniff, a citizen who received a missing persons flyer from defendant at Dockweiler Beach. Cunniff saw the car described in the flyer shortly thereafter. He was surprised defendant had not seen the car, because there were no other cars in the area. The Saab was locked and the battery had been removed. The Saab could only be locked from the outside with keys, but no keys were located.
Marie was found wearing grey stretch pants, a purple nylon jacket, white tennis shoes, and a bra. She had on one earring and a wedding band. Forensic evidence was collected, including a blood drop from the hood of the Saab and scraping from under Marie’s fingernails.
2. Marie’s Disappearance
Marie and defendant married in March. They lived in a secure condominium complex in Inglewood with their son Marquis, Marie’s son Marcus (from a previous relationship), and defendant’s children Andrea and Andre, Jr. (also from a previous relationship). In October, a police officer was dispatched on a domestic violence call to the home, but no arrests were made and no report was written. Marie told friends on November 10 that she was thinking of ending her marriage to defendant.
On November 11, the day of her disappearance, Marie went shopping with a close friend, Jean Jones Apfel, along with Marie’s sons Marcus and Marquis. She was not wearing the same clothes she wore at the time her body was recovered.
Andre, Jr., had a football game on the night of Friday, November 11, which defendant attended. Andrea was at her grandmother’s house that night. Marie was last seen by Marcus at home before he fell asleep. When he awoke, Marcus discovered that Marquis was crying and Marie was not at home. Marie had never left them home alone in the past. Marcus placed a call for help, explaining they had been left alone. Defendant called Marcus to ask of Marie’s whereabouts.
Defendant reported Marie as missing on Saturday, November 12. Defendant explained to police that he had returned home the prior evening, found that Marie had been drinking, and he left home after arguing with her. When he came home later that night, Marie and her Saab were gone. Defendant told an officer he contacted family and friends, looking for Marie, before calling the police. He cut short the interview with the officer, stating he had a previous engagement, which struck the officer as odd under the circumstances.
Defendant went to the home of Jean Jones and Raymond Apfel on the night of Marie’s disappearance, asking if they had heard from her. Raymond noticed defendant had a swollen lip, which defendant said was from bumping into his son’s football helmet. Jean Jones saw that defendant’s hand was scratched, as did another friend that weekend.
That weekend, friends unsuccessfully checked Marie’s credit cards for activity. They helped defendant prepare the missing person flyer. When told the flyers were of low quality, defendant said the information about the car was the important part. Defendant suggested the flyers be distributed at the beach and by his mother’s house. The suggestion to hand out flyers at the beach seemed odd to Marie’s friends, as she was not known to go to the beach. One friend asked defendant what had happened, and he said Marie had followed him to the garage and he dressed her.
Marie missed her weekly hair appointment on Saturday, which had never happened before, causing her hairstylist to call Marie at home. Defendant told her Marie had been drinking and “stormed out of the house” after an argument. Defendant cut short the call by saying he needed to attend to plumbing problems. The stylist described Marie as someone with a very strong personality who was “real concerned” with her appearance, and friends testified Marie was a meticulous dresser who would not leave home in the clothes she was wearing when her body was recovered. The stylist and other friends did not believe Marie would ever leave her children unattended. In a conversation on Sunday evening, November 13, defendant told the stylist and another friend that he had not heard from Marie but had been paged a couple of times, and he believed one page was from a club in Mexico, where he felt she had gone with an ex-boyfriend.
Marie’s credit cards were found on a freeway onramp in Inglewood on November 15, less than two miles from her home. They had not been used after her disappearance.
3. Autopsy and DNA Results
The medical examiner concluded Marie died of manual strangulation. Death had occurred three to seven days before discovery of her body. She had injuries to her head, face, and neck that were consistent with resisting during a struggle. Her blood alcohol level was.12, although decomposition of the body may have elevated the result. There was no sign of sexual assault.
In 2005, the FBI analyzed the blood stain from the Saab and Marie’s fingernail scrapings, both of which matched defendant’s DNA profile. Defendant was a major donor of the DNA from the fingernail scrapings, an unusual result, because typically the major donor would be the person whose fingernails were sampled.
4. Defendant’s Conduct After Being Advised of Marie’s Death
When Detective Russell Enyeart returned to the Inglewood Police Station from the tow yard where the Saab had been impounded, he learned that defendant was waiting in the lobby. Detective Enyeart was surprised defendant was at the station, as no one had been notified about recovery of the car. In an interview with the detective, defendant said that on the night of Marie’s disappearance, he left work at 5:00 p.m. and arrived home between 5:10 p.m. and 5:15 p.m. Defendant had planned to go to his son’s football game with Marie but told her to stay home because she had been drinking. When he returned from the game, Marcus and Marquis were alone in the house. According to defendant, Marie was supposed to drive to his grandmother’s house that evening to pick up Andrea but failed to do so.
When Detective Enyeart advised defendant that his wife’s vehicle had been recovered and the body of a female was discovered in the trunk, defendant immediately fell to the floor, screaming and kicking his legs to the point of being hysterical, causing the detective to terminate the interview. Detective Enyeart had never seen a male respond in this fashion, which included a minimum of 300 notifications of victim deaths.
On November 30, defendant contacted Detective Enyeart and inquired if there was any additional information regarding the investigation. The detective informed defendant he was the primary suspect, and if defendant had any information regarding a motive or suspects in the murder of his wife, he should provide that information to be investigated and eliminate suspicion on him. Defendant said it was not his job, it was the detective’s job to investigate the crime. The detective was taken aback by the comment, which he documented.
5. Testimony of Mark Safarik
Safarik is the executive director of Forensic Behavioral Services International, a consulting firm that specializes in the analysis and interpretation of the dynamic interaction between offenders, victims, and locations in violent crime offenses. He has a bachelor’s degree in human physiology and a master’s degree in criminal justice. He has approximately 30 years of law enforcement, including 7 years with a university police department followed by various assignments as an agent for the FBI.
In 1995, Safarik joined the FBI’s National Center for the Analysis of Violent Crime (the Center), “the profiling unit, ” working as a liaison between the FBI’s Behavioral Analysis Unit and local law enforcement agencies that request analysis of a case. Safarik worked in the Center from 1995 to 2007, when he retired from the FBI. He had ongoing training with the FBI and trained and lectured to over 20, 000 others.
Safarik has been involved in empirical research and has been published in journals and textbooks, particularly in the area of sexual homicide of elderly females. He worked on or reviewed in excess of 4, 000 crime scenes.
Criminal investigative analysis is a process that analyzes a violent crime scene from a behavioral and physical evidence forensic standpoint. His role is to do the analysis and interpret that information to understand what happened at a scene, and how and why it happened. He conducts what formerly was called the criminal profile but really is an unknown offender assessment. His role is not to identify the perpetrator of a crime.
In this case, he performed a crime scene assessment, that is “irrespective of who committed the crime.” From an analysis of the crime and the behavior at a crime scene, he can sometimes draw specific conclusions about the crime or the motivation for the crime depending on the unique attributes of a case. The purpose of his analysis was to behaviorally and forensically assess the crime and crime scene dynamics through the interaction of the offender or offenders, Marie, and the location, in order to determine whether the crime scene had been staged, to focus on why the homicide occurred, and if an opinion could be rendered as to the offender’s motive.
Safarik treated defendant as a witness in his analysis and not as a suspect, because his role was to focus on the analysis of the crime scene. Defendant provided information as a witness that was part of the timeline of the offense. In drawing conclusions from the crime scene, Safarik did not consider defendant’s conduct regarding Marie’s credit cards, passing out flyers in the area where her body was recovered, the scratches observed on his hands, or the presence of blood containing defendant’s DNA on Marie’s Saab.
Safarik’s testimony reviewed the evidence he relied upon in conducting his analysis. Because no argument is made on appeal that Safarik relied on facts not contained in the evidence introduced at trial, we focus primarily on his ...