P. v. Alford















Filed 1/16/13 P. v. Alford CA2/4













NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS





California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.















IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE DISTRICT



DIVISION FOUR










>

THE PEOPLE, Plaintiff and Respondent, v. MARIO ALFORD et al., Defendants and Appellants.

B229548 (Los Angeles County Super. Ct. No. GA073596)

APPEALS
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Janice Claire Croft, Judge. Affirmed and remanded for resentencing.

Law
Offices of Bob Farahan and Babak Bobby Farahan for Defendant and Appellant
Mario Alford.

Corona & Peabody and Jennifer
Peabody, under appointment by the Court of Appeal, for Defendant and Appellant
Rashon McDaniels.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, and Michael R. Johnsen
and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and
Respondent.



A jury convicted
Mario Alford of attempted murder
(count 1) (Pen. Code, §§ 664 and 187, subd. (a)),href="#_ftn1" name="_ftnref1" title="">^[1] assault
with a firearm (count 2) (§ 245, subd. (a)(2)), and shooting at an
inhabited dwelling (count 3) (§ 246).
The jury convicted codefendant Rashon McDaniels of counts 1 and 3,
finding him not guilty on count 2. As to
count 1, the jury found that the attempted murder was committed willfully,
deliberately, and with premeditation, and that a principal personally used and
intentionally discharged a firearm, proximately causing great bodily injury to
another person. (§§ 12022.53, subds. (b)‑(e)(1)
& 12022.7, subd. (a).) The jury also
found true allegations that counts 1 through 3 were committed for the benefit
of, at the direction of, and in association with a criminal street gang, with
the specific intent to promote criminal
conduct by gang members. (§ 186.22,
subd. (b).) Finally, as to counts 1
through 3, the court found true allegations that Alford had suffered a prior
conviction of a serious and/or violent felony; it also found true that he had
suffered two prior felony convictions, that he served prison terms for each,
and that he thereafter committed another felony within a five-year period after
completing said terms. (§§ 1170.12,
subds. (a)-(d) & 667, subds. (b)-(i).)
The court denied Alford’s motion to strike his prior conviction for a
serious felony pursuant to People v.
Superior Court (Romero) (1996) 13
Cal.4th 497.

Alford
was sentenced to 68 years to life in state
prison, consisting of 55 years to life on count 1 and 13 years on count 2,
to run consecutively. On count 1, the
court imposed a term of 15 years to life under section 186.22, subdivision
(b)(5), doubled to 30 years to life under the “Three Strikes” law, plus 25
years to life for the firearm use enhancement pursuant to section 12022.53,
subdivisions (d) and (e)(1). As to count
2, the trial court selected the upper term of four years, doubled to eight
years under the Three Strikes law, plus five years for the gang enhancement
under section 186.22, subdivision (b)(1).
The court imposed a term of 55 years to life on count 3, to run
concurrently with the term on count 1.

McDaniels
was sentenced on count 1 to 40 years to life in state prison, consisting of 15
years to life for the attempted murder plus 25 years to life for the firearm
enhancement under section 12022.53, subdivisions (d) and (e)(1). An additional term on count 3 of 40 years to
life was stayed pursuant to section 654.

A
third codefendant, Melvin Mapps, was charged with counts 1 through 3, along
with additional counts of assault with a firearm (count 4), brandishing a
firearm at a person in a motor vehicle (count 5) (§ 417.3), and possession of a
firearm by a convicted felon (count 6) (§ 12021, subd. (a)). Mapps pled guilty shortly before trial. He is not a party to this appeal.

Appellant
McDaniels contends on appeal that the trial court erred by (1) admitting
Alford’s statements that purportedly implicated McDaniels, in violation of >Aranda/Bruton;href="#_ftn2"
name="_ftnref2" title="">^[2] (2) rejecting his motion to sever his trial
from that of Alford; (3) precluding him from calling a confidential
informant to testify at trial; (4) excluding other evidence tending to show he
was falsely implicated; (5) permitting the prosecution’s gang expert to testify
in a manner that usurped the role of the jury; (6) instructing the jury
that a defendant is “equally guilty” of a charged crime whether he committed it
personally or aided and abetted the perpetrator who committed it;
(7) committing the foregoing errors such that those errors had a
cumulative effect requiring reversal; (8) denying his petition for access to
juror contact information to enable him to pursue a claim of juror misconduct;
and (9) committing sentencing error by imposing an enhancement pursuant to both
sections 12022.53 and 186.22. Other than
the instruction given by the court on aiding and abetting we find no error, and
that error we find to be harmless; we conclude there was no error that requires
reversal. We agree with McDaniels that
the trial court imposed an unauthorized sentence and therefore remand the
matter to the trial court for resentencing.
We otherwise affirm the judgment of conviction as to McDaniels.

Appellant Alford contends on
appeal that the trial court erred by (1) violating his speedy trial rights; (2)
failing to require the jury to find he had a specific intent to strike an
inhabited building to convict him on count 3; (3) failing to instruct the jury,
sua sponte, on the lesser
included offense of negligent discharge of a firearm (§ 246.3) as a lesser
included offense of shooting at an inhabited dwelling (§ 246); (4) punishing
him for rejecting a plea offer and instead exercising his right to test the
state’s evidence at trial; and (5) imposing a sentence that constitutes cruel
and unusual punishment. Finally, Alford
contends that (6) the
jury’s true finding on the gang enhancement allegations were not supported by
substantial evidence. As to Alford,
we similarly find that the trial court imposed an unauthorized sentence by
imposing an enhancement pursuant to both sections 12022.53 and 186.22, and
therefore remand the matter to the trial court for resentencing. We otherwise affirm the judgment of
conviction as to Alford.

factual and
procedural background

I. The Prosecution’s Case

>A. The
Initial Incident

During
the evening of February 9, 2007, Michelle McDermott went for a drive with her
friend Jameelah Williams in a silver four-door Honda owned by Williams’s
mother. When Williams picked up
McDermott at her home, Williams’s boyfriend, whom McDermott identified in court
as Alford, was driving. Williams was
sitting in the front passenger seat.
Alford’s friend, whom McDermott identified in court as McDaniels, was
sitting in the back seat. McDermott had
never met either Alford or McDaniels before that night.

Alford
drove to Williams’s house so Williams could pick something up. McDermott moved to the driver’s seat because
she wanted to drive. She drove to a fast
food restaurant where they briefly stopped to eat. With Williams in the front passenger seat and
McDermott and McDaniels in the back seat, Alford began driving again and drove
to an area near the north end of the 605 Freeway. Alford drove into a cul-de-sac where he
picked up another friend, a “skinny” African-American male whom McDermott had
never met before. She did not know his
name. McDermott sat in the middle of the
back seat, with McDaniels to her right and the skinny man to her left.

McDermott
realized at some point that the skinny man had a gun. She did not want to be in the car anymore and
asked to be let out. The skinny man
pointed the gun at her face and told her to shut up. The skinny man and McDaniels then began
passing the gun back and forth.

Alford
stopped at a red light and a red car stopped immediately to the left of
Williams’s silver Honda. A Hispanic male
was driving the red car, and a Hispanic female, possibly in her teens, was
sitting in the front passenger seat. The
back windows of the red car were tinted and McDermott could not see if anyone
was sitting in the back seat. Alford and
the skinny man began challenging the occupants of the red car, shouting “Where
you from?” and “What you lookin’ at?”
The skinny man waved the gun around and pointed it at the other car,
which was about four feet away from him.
With the light still red, the driver of the red car attempted to make a
U-turn to get away from the silver car but the street was not wide enough. Alford turned and tried to block the red car
to prevent its escape, but the driver of the red car was able to make a
three-point turn and get away. McDermott
said they followed the other car for about two or three minutes, driving at
high speed, but eventually lost sight of it.

The
driver of the red car was 20-year-old Richard Wagner, who lived nearby in a
single family home on Los Angeles Street in Monrovia, along with his young son,
his wife Nora, and her family, which included her parents, her two sisters, and
her brother. One of those sisters,
15-year-old Lucero (Lucy) Calderon,href="#_ftn3" name="_ftnref3" title="">^[3] was the passenger in the front seat at the
time of the encounter with the vehicle in which appellants were seated. Her two friends, Goldie Murdock and Gracie
Perez, who were about Lucy’s age, were passengers in the back seat of Wagner’s
car; Perez was sitting behind Lucy and Murdock behind Wagner. Wagner was driving Lucy and her friends to a
street fair and movie theater at the time of the incident. They were listening to music at a relatively
loud volume.

Wagner’s
car was stopped in the turning lane on California Street, at the intersection
with Huntington Drive in Monrovia. There
were five people in the silver Honda in the lane immediately to the right. The driver, front seat passenger, and two
people in the back seat were African-American males in their late teens or
20’s, and the back seat passenger sitting in the middle was a blond female
around 18 years old, who was either White or Hispanic.href="#_ftn4" name="_ftnref4" title="">^[4] The occupants of Wagner’s car realized that
the driver’s side passenger in the back seat of the other car was yelling at
them. At first, Perez and Wagner thought
he was hitting on Lucy, and Wagner asked if she knew them. She said she did not. By this time the music had been turned off in
Wagner’s car. Wagner called out, “What?”
in a confused tone. He then sensed the
driver’s side passenger was angry and told Lucy to roll up the window. Perez saw the driver’s side passenger leaning
out the window and heard him say something about “bust[ing] a 187” in an angry
tone. Wagner heard him saying, “If we
don’t want any problems, if we don’t know what a .45 is, then just to shut our
mouth.” Wagner also heard him say,
“Cuz.” At the time, Wagner had a shaven
head and was wearing a white t-shirt. He
had no gang affiliation, but realized that he might be mistaken for a Hispanic
gang member. He knew there had been
recent violent confrontations between African-Americans and Hispanics in the
area.

As
Wagner managed to make a three-point U-turn despite Alford’s attempt to block
him, Perez told Murdock to “put her head down” because she was afraid the
driver’s side passenger in the other car was going to begin shooting at
them. Lucy used her cell phone to call
her sister, Nora.

Wagner
drove at high speed back down California, hoping to reach his home by turning
left onto Los Angeles Street before the other car could see where he went. He quickly pulled into his driveway. He and Perez saw the silver car reach the
intersection of California and Los Angeles Street. It stopped, but rather than continuing to
approach, it made a U-turn and drove in the opposite direction on California.

Wagner’s
wife, Nora, was waiting outside the house.
Wagner and the three girls talked to Nora about what had happened for
five to ten minutes, then everyone went into the house. After about 10 minutes, Lucy got permission
from her parents to continue with her plans to go out, so Wagner drove the
three girls to the movie theater, taking a slightly different route than
before. Wagner dropped them off and
returned home, where he and Nora stayed for about three hours without
incident. At around 11:00 p.m., Wagner
and Nora went and picked up Lucy and her friends. They stopped at a fast food restaurant
drive-through, then returned home. They
did not see the silver Honda again.



>B. The
Motel

McDermott
said that five minutes after the car chase ended, Alford stopped at a residence
and one of the men went in and retrieved something. Alford then drove to a nearby motel. McDaniels was holding the gun while waiting
in the parking lot for Williams to check into the motel. The group went inside the room and talked for
a short time. No one mentioned the car
chase.

Five
minutes later, the three men left but did not say where they were going. Alford was holding the car keys as they
left. McDermott and Williams stayed in
the motel room and conversed. They did
not discuss the car chase. McDermott
estimated that about two hours had passed since the time she had been picked up
in Williams’s car.

About
an hour and a half later, the three men returned to the motel room. They were jumping around and play wrestling
with one another, and “seemed very hyper.”
McDermott recalled that McDaniels was drinking a particular kind of
liquor. The three men smelled like
firecrackers, or like smoke, as if they had been using methamphetamines or
another drug, and they were acting “kind of crazy.” McDermott did not recall anyone mentioning
anything about a gang.

McDermott
said she was going out to get herself a drink and left the motel room. She went across the street and called some
friends to come and pick her up.



>C. The
Shooting and the Ensuing Investigation

Nora
and Lucy’s mother, Celia Calderon, was at home the evening of the car chase
incident. Around 9:30 or 10:00 p.m.,
Celia heard a knock at the front door.
Just as she answered the door, a man in a red hooded sweater turned away
from the door and began walking away quickly.
Celia said, “What happened?” The
man said something in English that Celia did not understand and kept walking
straight ahead without turning around.
The man’s hood was pulled up over his head, and Celia did not see his
face to be able to describe him or even identify his race; he walked quickly
and without any trace of a limp. As the
man was walking away, Celia heard a sound like “pop, pop” and felt something
hot on her shoulder. She did not see
anyone else outside or see where the shots came from. Shortly thereafter one of her sons arrived
home and called the police.

Wagner,
Nora, and the three girls returned to the family home about 20 minutes after
Wagner and Nora first left to pick up the girls. They entered the house and found Celia
bleeding from gunshot wounds to her shoulder, neck, arm, and leg. Police and paramedics arrived about two
minutes later and transported Celia to the hospital, where she remained
overnight. The bullets were never
removed from Celia’s body. Wagner and
Lucy spoke to Monrovia police officers and told them generally what had
happened earlier in the evening.

Charles
Robinson lived on the same street as the Calderons. Around 11:00 or 11:30 p.m. on the night of
the shooting, he was standing with his nephew in his front yard drinking a
beer. He heard two or three shots fired
down the street, in the direction of California. He then saw a dark-colored, four-door car
“c[o]me flying by,” traveling eastbound on Los Angeles. The car ran a stop sign at the corner of Los
Angeles and Sherman, and nearly hit the curb on the south side of the street. Robinson saw someone lying down in the back
seat. He glared at the driver but did
not see the driver’s face very well. He
could tell the driver was a light-skinned man, as was the person in the back
seat. The car turned right onto
Shamrock, traveling southbound. Robinson
went into his house.

Gloria
Hinostroza lived on the opposite side of the street and several houses down the
block from Celia. She was watching
television in her living room when she heard at least two gunshots. She looked out her window to see what was
happening. She saw a silver or white
Honda parked on the street with someone sitting in the driver’s seat. She went out to her front porch. Hinostroza recalled seeing three or four
people, all wearing hooded sweatshirts, running in the street toward the parked
Honda. She could not see them well
enough to identify their gender or race.
When they got into the car, the Honda quickly drove away, driving at a
high rate of speed eastbound toward Sherman.
Hinostroza spoke to a Monrovia police officer shortly after the incident. Over a year later, on May 3, 2008, she met
with Detective Timothy Brennan from the sheriff’s department and was shown a
photograph of a car, which she said looked like the silver or white Honda she
had seen parked on her street the night Celia was shot.

Monrovia
Police Department Officers Frederick Hirogoyan and Trevor Stevenson responded
to the crime scene. They entered the
house and found Celia and many other people in the house. Monrovia police officers took numerous
photographs of Celia’s wounds and later of the crime scene during the early
morning hours following the shooting.
Officer Stevenson photographed holes in the screen door at the front
entrance, in the front-facing windows, in the living room wall, and in the
stucco on the front wall of the home.
Police officers recovered copper-jacketed, lead bullet projectiles from
the sofa cushion and the floor, which appeared to be projectiles from a
.45-caliber weapon. A later examination
showed there were four bullet holes in the screen door, each about a quarter to
half-an-inch in diameter, and a gouge in the white paint on the front door
frame. There were also holes in the
living room window next to the front door and in the living room wall above the
sofa. The stucco on the edge of the garage
wall was chipped off and there was paint missing from the right front area of a
car parked in the Calderon’s driveway.
None of these holes or marks existed when Wagner and Nora left the house
to pick up the girls.

Officer
William Burkhalter went to the Calderon home that evening and located seven
shell casings in the front yard of the house next door to the east. Six of the casings were from a .45-caliber
weapon and one was from a .32- or .25-caliber weapon. He found the larger casings near some palm
trees about 32 to 33 feet away from the victim’s front door; the smaller casing
was on the driveway. Officer John
Donchig went to the crime scene the following morning, February 10, 2007,
and found a bullet lodged in a fence between the victim’s yard and her next
door neighbor’s. He noted that the
intersection of Los Angeles and California was clearly visible from the
driveway of the victim’s home.

Nora
told Officer Stevenson that at around 8:00 p.m. on the night of the shooting,
she received a phone call from Lucy, who said she was being followed by a gray
Honda Civic. She was coming home and
wanted Nora to wait in front of the house.
When Lucy arrived, a silver Honda Civic was following. As Wagner’s car stopped at the house, the
Civic drove to a point two or three houses to the west of hers, then made a
U-turn and drove away.

The
day after the shooting, Lucy was at a shopping mall and saw one of the
passengers in the Honda that had chased them.
She recognized him as the passenger who had been sitting directly behind
the driver.

Wagner
and the Calderons had never received any threats before the shooting incident
and did not have any feuds with anyone.
None of the residents of the home were involved in any gang or drug
activity. There had been shots fired at
the house next door in the month or two prior to Celia being shot, but the
person who lived there was apparently involved in questionable activities.



>D. The
Sheriff’s Department Investigation

In
early 2008, Deputy Sheriff Andrew Dahring joined his unit’s Gang Task Force,
which was investigating numerous cold cases dating back to 2006. Most of the incidents related to gang
activity in the area involving the Duroc Crips, Monrovia Nuevo Varrio (MNV),
and Duarte Eastside. The first is an African-American
gang, and the latter two have predominantly Hispanic members. The Crips are rivals with the two Hispanic
gangs and many of the cold cases involved violence between them.

Shortly
after Detective Dahring joined the task force, he and his partner, Detective
Timothy Brennan, were able to develop some leads in this case. On March 28, 2008, they spoke to a
confidential reliable informant. This
led them to obtain photographs of Alford and Mapps and to locate them. They were then able to locate Williams and
identify her vehicle. McDaniels was not
a person of interest at that time. They
first interviewed Alford in May 2008 and spoke with Williams on three occasions
in May 2008. After speaking with Alford
and Williams, their investigation expanded to include McDaniels. They began looking for the second female in
the car, but were initially told by Alford and Williams that her name was
Christina Roy. Eventually Williams
identified the other female in the car as being Michelle McDermott and the
detectives located her.

On
May 28, 2008, they interviewed McDermott for about 15 minutes. The interview was recorded. Before then, McDermott had not spoken to law
enforcement about the events of February 9, 2007. At trial, she said that she was not completely
truthful during the first interview in that she did not mention that a gun was
involved. She did not mention McDaniels
being in the car because she did not recall him being present. She said she did not remember smelling
anything or seeing anyone with a gun when the three men returned to the motel
room. However, on that same date, May
28, 2008, McDermott was shown a photographic six-pack lineup. Without hesitation, she stated the man in the
fifth position was “Mario.” She was
shown a second six-pack and identified the photograph in the sixth position,
depicting McDaniels, as the passenger in Williams’s Honda. She was shown a third six-pack and noted that
although she was “[n]ot positive,” she believed the photograph in the fifth
position looked “like the guy with the gun.”
The detectives interviewed McDermott again on June 13, 2008, for about
30 minutes. She stated she was
completely truthful with them during the second interview. She was interviewed a third time by Detective
Dahring and the prosecutor in March or April 2009, and again was completely
truthful with them. She never felt
threatened or coached in any way regarding what she should say. She was not offered anything in exchange for
her testimony and cooperation. Sometime
between the first and second interviews, McDermott spoke to Williams about the
case on one occasion for about five to ten minutes.

Detective
Dahring and other members of the sheriff’s department also interviewed Wagner,
Lucy, Murdock, and Perez, the occupants in the car during the incident with the
silver Honda. The detectives showed each
of them a series of photographic six-pack lineups, after giving them the
standard admonitions. Wagner did not
make a positive identification, but said one person looked a lot like the man
in the other car who had spoken during the confrontation. Lucy said that although she was not sure, the
person in one photograph looked like the driver. The investigating officer identified the
person in the picture as Melvin Mapps.
Wagner and Lucy were both shown a photograph of a vehicle, and both said
it looked like the one that had been involved in the confrontation and
chase. Lucy was unable to identify in
court any of the occupants of the silver Honda.

Perez
viewed the photographic line-up and said she did not remember the men’s faces
well. The investigating officer had the
impression that Perez was scared and did not want to be involved, especially
because the interview took place at her school and she seemed concerned about
being seen with the police. The officer
noticed that Perez seemed to be drawn to the picture of Melvin Mapps. Perez eventually identified his photograph,
saying it looked like the man sitting directly behind the driver.

Murdock
was unable to identify anyone in the six-packs and any of the occupants of the
silver Honda in court.

Detectives
Dahring and Brennan interviewed Nora.
She seemed uninterested in talking to them and had little information to
offer, so the interview lasted only about 10 minutes. They showed her a photograph of the car, and
she said it looked like the one she had seen make a U-turn on California when
her husband and sister had come home.

Detectives
Dahring and Brennan repeatedly attempted to locate Jameelah Williams in order
to serve her with a subpoena to testify, but they were unsuccessful. In attempting to locate her, they placed
Williams’s mother Elaine Williams under surveillance, and they monitored and
recorded Alford’s telephone calls while he was in custody. On January 14, 2010, Alford was in the
courthouse lockup and placed two telephone calls to his mother, Patricia
Griffen (aka Patricia Graves), and these conversations were recorded and
transcribed.href="#_ftn5" name="_ftnref5"
title="">^[5] Alford also spoke to Griffen by telephone
twice from the Pitchess Detention Center on January 15 and 17, 2010. As reflected in the written transcripts of
the conversations, the telephone calls were interrupted by automated warnings
that the conversation might be monitored and/or recorded. Heavily redacted audiotapes of the telephone
conversations were played for the jury.



>E. Gang
Expert Testimony

Melvin
Mapps, who Lucy said looked like the driver, had several gang-related tattoos
on his body. At least one of them was
associated with the Duroc Crips.

Detective
Brennan testified as an expert on gangs, and particularly on the activities of
three area gangs, the Duroc Crips, Duarte Eastside, and MNV. He was one of the investigating officers in
this case. He stated that different
members of gangs varied in their level of participation in gang
activities. Those members who
participated in shootings, including those who drove and supplied guns in
addition to the actual shooters, gained additional respect within their own
gangs and from their rivals, and inspired more fear in their communities.

During
2007 and 2008, the Duroc Crips and MNV frequently crossed out each other’s
graffiti, and were considered rivals.
Members of Duarte Eastside were also enemies of the Duroc Crips. As previously noted, the Duroc Crips gang
members are African-American, while the other two gangs have predominantly
Hispanic members.

The
primary activities of the Duroc Crips included narcotics sales, robberies, auto
thefts, burglaries, felony assaults, assaults with deadly weapons, vandalism,
murder, and attempted murder. Money
raised from narcotics sales was used to finance the gang’s other
activities. The gang engaged in
shootings in order to assert control over the neighborhood and claim it as the
gang’s territory. Duroc members had been
convicted in recent years of shooting at inhabited dwellings and vehicles,
assault with a firearm, and other crimes.
The gang claimed territory in Duarte and the unincorporated portion of
Monrovia.

Symbols
used by the Duroc Crips included a “D” written in old English script, the
abbreviation “DRC,” and the number three.
It was said their members would come at you three times harder than you
would come at them. Gang members often
used the phrase, “Where you from,” when confronting people they suspected of being
in a rival gang.

Detective
Brennan recognized both appellants in court, and he had reviewed field
interview cards for them as well as for codefendant Mapps. All three codefendants had tattoos that
referred to the gang lifestyle and to the Duroc Crips. McDaniels’s gang moniker was “Mac D” and
Alford was known as “Peep Game.” Mapps
was known as “Buck” or Bucc.”href="#_ftn6" name="_ftnref6" title="">^[6]

Detective
Brennan and other officers executed a search warrant on June 10, 2008, at a
home where McDaniels resided in Pomona.
They found a photograph of McDaniels displaying a gang sign, a
photograph of a deceased former member of the Duroc Crips who was killed in a
shooting involving rival gang MNV, and a composition book with several
gang-related phrases and names written on it.
Other photographs also had various gang slogans, monikers, and symbols
written on them. Detective Brennan
opined based on all of the foregoing information that McDaniels, Alford, and
Mapps were all members of the Duroc Crips.
When a hypothetical that mirrored the events of the crimes involved here
was described to Detective Brennan, he opined that such a shooting would be
committed in association with the Duroc Crips, at the gang’s direction, and for
the gang’s benefit. The driver of the
car, the shooter, and the person who knocked at the door would all be entitled
to claim credit for the shooting, and this would enhance their own prestige as
well as the gang’s image.



>II. The
Defense Case

>A. McDaniels

Leondra
Brinson testified she had been in an intimate relationship with McDaniels for
10 years and had a five-year-old daughter with him. In December 2006, McDaniels was stabbed in
his left leg and Brinson took him to the hospital. He was treated at Pomona Valley Hospital on
December 28, 2006, for a 12-centimeter laceration to the thigh that extended to
the musculature. The laceration was
closed using three layers of stitches and staples. Brinson said he had a “nasty” wound on his
thigh with staples in it and required the use of crutches to walk. After leaving the hospital, Brinson took
McDaniels to her grandmother’s home in Pomona, and later to the home Brinson
shared with her mother, so she could care for him. McDaniels had the sutures removed on January
19, 2007.

McDaniels
celebrated his birthday on February 3, 2007, at Brinson’s home. Brinson went to Las Vegas on February 16,
2007, for the NBA All Star weekend, leaving McDaniels at her home. He was still using crutches to get
around. When she returned at the end of
the weekend, he was no longer using crutches, but he still could not walk
normally and was hopping around on one leg.
Brinson was certain that McDaniels was staying at her home in Pomona for
the entire period of February 3 through February 15 or 16, 2007 (the shooting
occurred on February 9).



B. Alford

Alford
did not testify and did not call any witnesses.

At
the conclusion of the defense case, the parties stipulated that a Robert
McGehee was killed on August 6, 2007.

discussion

McDaniels’s
Appeal



I. Background
Relating to McDaniels’s Contentions I and II

Before
trial, McDaniels joined in the motion filed by codefendant Mapps to sever his
trial from that of Alford based on the anticipated admission of inculpatory
statements made to the police by Alford, implicating McDaniels and Mapps. Subsequently, Alford made statements to his
mother during telephone conversations while he was incarcerated on January 14,
15, and 17, 2010. Alford could be heard
discussing with his mother, for example, whether “they” would be using his
statements, or Williams’s statements, noting that “they looking for Jameelah
[Williams], for Jameelah [Williams] can get on the stand and testify against me
to make me get on the scene.” Alford’s
mother said of Williams, “fuck that bitch, that bitch fucked you over.” Alford said, “They find the bitch man, it’s a
wrap. They don’t find that bitch my
lawyer said, you are good. . . .
[C]ause nobody never pointed you out Mr. Alford. Nobody ever said you was the driver Mr.
Alford.” They discussed that “Bucc”
(Mapps) was no longer in the case, and his mother said, “[T]hat nigga was a
killer. He did the bullshit
anyway.” (Mapps had at that time
accepted a plea bargain and was no longer involved in the trial.) His mother said, “Y’all gonn be fine baby,”
and Alford responded, “They looking for them two bitches.” His mother replied, “Nigga if they recording
or listening I’ll kill that bitch myself, I’ll cut that bitch throat, on
everything. I’ll cut her motherfucking
throat. And I mean that!” Alford later said that the only thing
Michelle [McDermott] could say was about “[t]he altercation when we argued with
the Mexicans, that was it. That’s all
she can say so they need Jameelah to fill in the whole picture.” “They don’t have nobody get on the stand and
point me out and said I was the driver.
They don’t got nobody said I was the shooter.” McDaniels could also be heard talking to
Alford’s mother during one of these conversations.

McDaniels
argued that these statements were inculpatory and highly prejudicial to him,
requiring severance.href="#_ftn7"
name="_ftnref7" title="">^[7] The trial court reviewed the tape recordings
of the conversations between Alford and his mother and redacted the portions of
the conversation in which McDaniels participated, as well as any reference to
McDaniels and any statements that were unduly prejudicial. Counsel for McDaniels argued that plural
pronouns used by Alford still implicated McDaniels and offensive, prejudicial
remarks made by Alford painted McDaniels with the same extremely unfavorable
brush. After inviting counsel to propose
any further deletions or additions, the trial court ultimately denied the
motion to sever the trials.

Before
playing the redacted audiotapes of the conversations between Alford and his
mother, the court noted that portions of the statements had been deleted
because they had nothing to do with the case.
The court then gave the jury the following limiting instruction: “The other thing about the statement is that
it pertains only to Mr. Alford. It’s his
statement. It has nothing to do with Mr.
McDaniels. And in fact, you cannot use
what you hear Mr. Alford saying in that conversation. You can’t use it against Mr. McDaniels
in any way, because it doesn’t pertain to him at all. So during your deliberations, you can’t even
think about, well, I’m thinking about Mr. McDaniels, so I’m now going to
remember about Mr. Alford. Because it
has nothing to do with Mr. McDaniels’ case. Let’s see.
So this is what we call a limiting instruction. So when you listen to — this. This now, you’re hearing testimony. Remember, as [Alford’s counsel] told you at
the beginning, we have two trials in one.
We have Mr. McDaniels’ trial. We
have Mr. Alford’s trial. Now we’re
hearing something about Mr. Alford’s trial and not Mr. McDaniels’.”

In
addition, the written instructions given to the jury included the
following: “You are about to hear
evidence of audio recordings. This
evidence consists of extra-judicial statements of Mr. Alford and others. These recordings are admitted only against
Mr. Alford. You must not consider
this evidence against Mr. McDaniels. In
fact, this evidence must not enter into your consideration of the case against
Mr. McDaniels in any way and must not be considered or discussed during your deliberations
of the case against Mr. McDaniels.”



II. >Bruton Issue: Admission of Alford’s Statements That
Purportedly Implicated McDaniels

Because
the admission of Alford’s statements is central to many of the issues McDaniels
raises on appeal, we first address his contention that the statements violated
his right of confrontation under Bruton
v. United States, supra, 391 U.S.
123, and People v. Aranda, >supra, 63 Cal.2d 518. We later address McDaniels’s contention that
his trial should have been severed from Alford’s, a claim that also involves
Alford’s statements.

McDaniels relies
on isolated statements in which Alford and his mother referred to the
availability or unavailability of evidence against “us” (Alford speaking) or
“y’all” (his mother speaking), and also included Alford using “we” on
occasion. According to McDaniels,
because he was the only codefendant on trial with Alford, he was implicated in
these plural references to “us”, “y’all,” and “we.” As we have noted, the trial court edited
Alford’s statements to delete express references to McDaniels and instructed
the jury not to consider Alford’s statements against McDaniels. As we explain, under the circumstances of the
present case, the trial court’s instruction to the jury not to consider the
statements against McDaniels was sufficient to protect against >Bruton error.



>A. The
Law

“‘In >Bruton, the United States Supreme Court
held that the admission into evidence at a joint trial of a nontestifying
codefendant’s confession implicating the defendant violates the defendant’s
right to cross-examination guaranteed by the confrontation clause, even if the
jury is instructed to disregard the confession in determining the guilt or
innocence of the defendant. (>Bruton, supra, 391 U.S. at pp. 127-128, 135-137.)” (People
v. Burney (2009) 47 Cal.4th 203, 230.)
The court concluded that “‘when “the powerfully incriminating
extrajudicial statements of a codefendant, who stands accused side-by-side with
the defendant, are deliberately spread before the jury in a joint trial”
[citations],’” the presumption that the jury will follow a limiting instruction
is rebutted. (Ibid.)

In >Aranda, supra, the California Supreme Court reached a like holding, “but
. . . also held that a codefendant’s confession may be introduced at
the joint trial if it can be edited to eliminate references to the defendant
without prejudice to the confessing codefendant. (Aranda,
supra, 63 Cal.2d at pp. 530-531;
[citation].)” (Burney, supra, 47 Cal.4th
at p. 231.) Later, in >Richardson v. Marsh (1987) 481 U.S. 200,
211 (Richardson), the United States
Supreme Court considered whether a redacted confession made by one defendant
violated the codefendant’s rights under Bruton. The Richardson
court held that at a joint criminal trial, the confrontation clause is not
violated by the admission of a nontestifying codefendant’s confession when (1)
a proper limiting instruction was given to the jury, and (2) the confession was
redacted to eliminate the nondeclarant defendant’s name and any reference to
his or her existence. (>Id. at p. 208.)

During
the trial in Richardson, the trial
court permitted the prosecution to present to the jury the redacted confession
of one defendant, Williams, but only insofar as the confession would be
redacted so as to “omit all reference” to his codefendant, Marsh—”indeed, to
omit all indication that anyone other
than . . . Williams” and a third person had “participated in the
crime.” (Richardson, supra, 481
U.S. at p. 203.) The trial court also
instructed the jury not to consider the confession against Marsh. (Id.
at p. 205.) As redacted, the confession
indicated that Williams and the third person had discussed the murder in the
front seat of a car while they traveled to the victim’s house. (Id.
at pp. 203-204, fn. 1.) The redacted
confession contained no indication that Marsh—or anyone other than Williams and
the third person—had been in the car. (>Ibid.)

Later
in the trial, however, Marsh testified that she had been in the back seat of
the car when Williams and the third person discussed the murder. (Richardson,
supra, 481 U.S. at p. 204.) For that reason, in context with other
evidence presented at trial, Williams’s confession could have helped the jury
conclude that Marsh knew about the murder in advance and that she had knowingly
participated in the crime. (>Ibid.)
Nevertheless, the Richardson
court determined that the admission of the confession at issue was sufficiently
dissimilar from the admission of the codefendant’s confession in >Bruton so as not to constitute >Bruton error. Specifically, the Richardson court noted that the declarant’s confession in >Bruton was “incriminating on its face,”
and “‘expressly implicat[ed]’” Bruton, whereas, Williams’s confession amounted
to “evidence requiring linkage” that “became” incriminating with respect to Marsh
“only when linked with evidence introduced later at trial.” (Id.
at p. 208.)

In >Gray v. Maryland (1998) 523 U.S. 185
(Gray), the United States Supreme Court considered a redacted confession that
fell somewhere between the confessions at issue in Bruton and Richardson. In Gray,
“the prosecution . . . redacted the codefendant’s confession by
substituting for the defendant’s name in the confession a blank space or the
word ‘deleted.’” (Id. at pp. 188, 192.) The >Gray court concluded that simply redacting
a confession to replace a defendant’s name “with an obvious indication of
deletion, such as a blank space, the word ‘deleted,’ or a similar symbol,” is
insufficient under Bruton to
eliminate the constitutional confrontation problem identified in >Bruton.
(Id. at pp. 192-194.) The court explained: “Bruton,
as interpreted by Richardson, holds
that certain ‘powerfully incriminating extrajudicial statements of a
codefendant’—those naming another defendant—considered as a class, are so
prejudicial that limiting instructions cannot work. [Citations.]
Unless the prosecutor wishes to hold separate trials or to use separate
juries or to abandon use of the confession, he must redact the confession to
reduce significantly or to eliminate the special prejudice that the >Bruton Court found. Redactions that simply replace a name with an
obvious blank space or a word such as ‘deleted’ or a symbol or other similarly
obvious indications of alteration, however, leave statements that, considered
as a class, so closely resemble Bruton’s
unredacted statements that, in our view, the law must require the same
result.” (Id. at p. 192.)

>Gray further distinguished Richardson as follows: “>Richardson must depend in significant
part upon the kind of, not the simple
fact of, inference. Richardson’s
inferences involved statements that did not refer directly to the defendant
himself and which became incriminating ‘only when linked with evidence
introduced later at trial.’ [Citation.] The inferences at issue here involve statements
that, despite redaction, obviously refer directly to someone, often obviously
the defendant, and which involve inferences that a jury ordinarily could make
immediately, even were the confession the very first item introduced at trial. Moreover, the redacted confession with the
blank prominent on its face, in Richardson’s
words, ‘facially incriminates’ the
codefendant. [Citation.] Like the confession in Bruton itself, the accusation that the redacted confession makes
‘is more vivid than inferential incrimination, and hence more difficult to
thrust out of mind.’ [Citation.]” (Gray,> supra, 523 U.S. at p. 196.)

The >Gray court suggested that further
redaction, beyond simply using a blank space, the word “delete,” or a symbol in
place of a proper name, could render a confession admissible in a joint
trial. (Gray, supra, 523 U.S. at
p. 196.) The Gray court provided an example of an alternative method by which
the prosecutor and/or court could have redacted the confession in that case
that would have met Bruton’s
standards:

“Consider as an
example a portion of the confession before us:
The witness who read the confession told the jury that the confession
(among other things) said,

“‘Question: Who was in the group that beat Stacey?

“‘Answer: Me, deleted, deleted, and a few other guys.’
. . .

“Why could the
witness not, instead, have said:

“‘Question: Who was in the group that beat Stacey?

“‘Answer: Me and a few other guys.’” (Gray,> supra, 523 U.S. at p. 196.)

Whether specific editing satisfies the confrontation clause cannot
be resolved by a “‘bright line’” rule, but must be
determined on a case-by-case basis in light of other evidence. (People
v. Fletcher (1996) 13 Cal.4th 451, 456.)
“The editing will be deemed insufficient to avoid a confrontation violation
if, despite the editing, reasonable jurors could not avoid drawing the
inference that the defendant was the coparticipant designated in the confession
by symbol or neutral pronoun.” (>Ibid.)



>B. The
Statements

In the first
colloquy cited by McDaniels, Alford said that “they wanna find that bitch
Jameelah to use . . . on me.”
His mother replied, “Use on all y’all, on all y’all,” to which Alford
added, “On all of us.” His mother then
stated, “You feel me, if they get her, it’s done. But it will never happen on my breath.” Alford then declared that “[t]hey said it in
court . . . gonna use Jameelah against us.”

These statements
do not refer directly to McDaniels, unlike the express reference to the
codefendant in Bruton or the implicit
reference to the codefendant created by the redactions in Gray. Rather, any tendency
to incriminate McDaniels depended on the jury inferring that Williams had some
knowledge about the charged crimes (precisely what was not mentioned), that she
might testify to that knowledge, that such knowledge involved Alford and one or
more others (“us,” “y’all”), and that one of those others was McDaniels, who
was being tried with Alford. This chain
of inferences is analogous to the situation in Richardson. There, the
incriminating inference required reference to evidence introduced at
trial. Here, the incriminating inference
requires reference to some expected but unexplained testimony that might be
introduced at trial, and is not the kind of inference that “a> jury ordinarily could make immediately,
even were [the exchange] the very first item introduced at trial.” (Gray,
supra, 523 U.S. at p. 196.) Therefore, under Richardson, the court’s
limiting instruction was sufficient to obviate any claim of >Bruton error.

In the second
exchange, Alford’s mother referred to several teenage witnesses being sworn
in. Alford replied that “they can’t
identify us.” This statement is not
facially or obviously incriminating of McDaniels. Any inference tending to incriminate
McDaniels required the jury to first consider whether McDaniels was involved in
the crimes so as to be in danger of being identified at trial as one of the
perpetrators. That determination
required the jury to refer to the trial testimony
of McDermott, which implicated McDaniels in the crimes. Thus, this second exchange is likewise
analogous to Richardson, and a
limiting instruction was therefore sufficient.


In the third
exchange, Alford said that if they find Williams (referred to as “that
motherfuckin girl” and that “bitch”), then “your son is out of here.” His mother said simply, “I got y’all. Baby I got y’all.” This exchange is not remotely incriminating
of McDaniels. Alford’s mother’s
reference to “y’all” appears to be a colloquial reference to Alford alone. In any event, “y’all” did not obviously refer
to McDaniels and the jury would not immediately infer that it did or that
Alford’s statement that “your son is out of here” somehow applied to McDaniels
as well.

In the
fourth discussion, it was mentioned that Mapps was no longer in the case, and
Alford’s mother stated that “that’s a good thing. That nigga . . . was a
killer. He did the bullshit anyway.
. . . [L]ike I told Rhonda,
‘They gone be fine.’” Alford responded,
“Yeah, we . . . . Because
we gone be straight cuz.” His mother
then said, “Y’all gonn be fine baby,” and Alford said in relevant part,
referring to some unidentified “motherfuckers,” “that’s for somebody else
. . . , our lawyer said not for us.” His mother agreed that “[t]hey weren’t for
ya’ll,” and Alford added, “You know?
That wasn’t for us . . . my lawyer said no.
. . . ”

It is
difficult to find an inference incriminating McDaniels in this exchange, but
assuming one existed, it depended on the jury linking the statement to evidence
at trial that Mapps and McDaniels were involved in the commission of the
charged crimes. It thus clearly falls
within the scope of Richardson.

In
the fifth exchange, in discussing the evidence that would be used at trial,
Alford said that the prosecution got “the white girl” but “she ain’t saying
nothing . . . . [W]e
ain’t worried about her.” In this
exchange, the use of “we” is ambiguous.
It does not obviously refer to McDaniels, and could just as likely be a
reference to Alford and his lawyer. Even
if Alford did mean to refer to himself and McDaniels as not worrying about “the
white girl[’s]” testimony, Alford’s statement does not obviously incriminate
McDaniels. McDaniels’s lack of worry
does not tend to prove he was involved in the crimes, unless: (1) it is linked to trial evidence that
McDaniels was involved in the crimes, and (2) then it is inferred that his lack
of worry implies a consciousness of guilt or some other implicit inference of
guilt. As with the other exchanges, this
one, too, falls squarely within the ambit of Richardson.

In
the sixth conversation, Alford discussed the expected evidence at trial and
said “they taking us off Michelle’s. . . . [Michelle] can say what happened. The altercation when we argued with the
Mexicans . . . . That’s
all she can say so they need Jameelah to fill in the whole picture.” His mother replied that “y’all had an altercation. Y’all argued with it.” She later asked, “[s]o y’all not getting on
the witness stand right?”

In this exchange,
Alford (and perhaps his mother) refers to the existence of accomplices, but
does not obviously refer directly to McDaniels.
Indeed, Alford’s reference to “[t]he altercation when we argued with the
Mexicans” and his mother’s reference to “y’all had an altercation” are
nonspecific, just like the suggested permissible redaction in >Gray (“‘Me and a few other guys’” beat
the victim). (Gray, supra, 523 U.S. at
p. 196.) In both cases, the statements
simply indicate that multiple people were involved in the crime. Moreover, it was clear from all of the
evidence that Alford had not acted alone in the commission of the crimes, so
the fact that he used the word “we” and his mother referred to “y’all” added
nothing new. This exchange, too, falls
under the ambit of Richardson.

Finally,
we note that McDaniels’s attempt to aggregate all these statements into a
single theory on which Bruton error
occurred reinforces the conclusion that this case is analogous to >Richardson.
According to McDaniels’s theory, the incriminating inferences arise
because: (1) the jury might understand
that Alford and his mother are referring at one point to Mapps, the third
perpetrator implicated by evidence at trial who is no longer part of the case;
(2) therefore, because Mapps is no longer part of the case, every plural
reference made by Alford and his mother refers only to McDaniels; (3) further,
from that, the jury might understand that Alford is saying that “Michelle”
would place McDaniels and appellant in the vehicle during the Wagner assault;
and, (4) the jury might also understand that “Jameelah” would be able to fill
in the holes that Michelle could not by incriminating Alford and McDaniels in
the later shooting.

Only by a string
of inferences based on evidence at trial could the jury reach these
conclusions. In short, all the
statements McDaniels cites were admissible against him with a proper limiting
instruction under Richardson.



>C. Crawford
Issue

McDaniels
contends that the admission of Alford’s phone calls with his mother violated >Crawford v. Washington (2004) 541 U.S.
36, 51, which held that out-of-court testimonial statements are admissible
against a criminal defendant only if the declarant is unavailable to testify
and the defendant had a prior opportunity for cross-examination of the
declarant. We disagree. Even assuming (without deciding) that the
phone calls were testimonial, Crawford
does not overrule, limit or even address the rule of Bruton and its progeny, including Richardson. When, as here,
one defendant’s statement is properly redacted and the jury is instructed not
to use it against the codefendant, the declarant defendant is not a “witness
against” the codefendant, and the statement does not implicate the
confrontation clause. The same redaction
and instruction that prevents Bruton
error also prevents Crawford
error. (See People v. Stevens (2007) 41 Cal.4th 182, 199, quoting >United States v. Lung Fong Chen (2d Cir.
2004) 393 F.3d 139, 150 [“The same redaction that ‘prevents >Bruton error also serves to prevent >Crawford error.’”].)



>D. Due
Process

McDaniels
contends that Alford’s statements violated his due process rights because they
constituted an unreliable confession of a codefendant that implicated him. As we have already held, the reasoning is
flawed because under Richardson the
court’s limiting instruction was adequate to ensure that the jury did not
consider Alford’s statements against McDaniels.
Hence, no violation of due process occurred.



III. Severance

McDaniels
contends that the trial court erred in refusing to sever his case from
Alford’s. According to McDaniels,
Alford’s incriminating statements implicated him and were so inflammatory as to
make McDaniels guilty by association.
Also, McDaniels asserts that a joint trial with Alford prevented him
from presenting the theory that Alford falsely implicated him. We find no error.

As
previously noted, McDaniels’s attorney joined in the motion for severance filed
by Mapps. In so doing, McDaniels argued
that one of his defense theories conflicted with Alford’s. According to McDaniels’s attorney, Alford
would contend at trial that he was only driving and did not know what his
passengers were going to do. The trial
court indicated that Alford’s statements would not be used against Mapps and
that the purportedly inconsistent defenses of Alford and McDaniels were not
sufficient to justify severance.
Subsequently, the prosecution provided discovery of the recorded phone
conversations between Alford’s mother and Alford (which contain the statements
we have discussed in rejecting McDaniels’s Bruton
contention). The court ruled that
redacted versions of Alford’s conversations would be admissible with a limiting
instruction that they could not be considered against McDaniels. McDaniels twice renewed his motion for
severance, arguing (in his second renewal) that even with the redactions,
plural references to perpetrators in the statements prejudiced McDaniels, and
the portion of the statements admissible against Alford was unduly prejudicial
to McDaniels. The trial court denied the
severance.



A. The
Law

As
stated in People v. Souza (2012) 54
Cal.4th 90, 109 (Souza): “Our Legislature has expressed a strong
preference for joint trials.
[Citations.] ‘Section 1098 provides
in pertinent part: “When two or more
defendants are jointly charged with any public offense, whether felony or
misdemeanor, they must be tried jointly, unless the court order[s] separate
trials.” The court may, in its
discretion, order separate trials if, among other reasons, there is an
incriminating confession by one defendant that implicates a codefendant, or if
the defendants will present conflicting defenses.’ [Citations.]
‘Additionally, severance may be called for when “there is a serious risk
that a joint trial would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable judgment about guilt or
innocence.”’ [Citations.] [¶]
‘We review a trial court’s denial of a severance motion for abuse of discretion
based upon the facts as they appeared when the court ruled on the motion.’ [Citations.]
‘If we conclude the trial court abused its discretion, reversal is
required only if it is reasonably probable the defendant would have obtained a
more favorable result at a separate trial.’
[Citations.] ‘If the court’s
joinder ruling was proper when it was made, however, we may reverse a judgment
only on a showing that joinder “‘resulted in “gross unfairness” amounting to a
denial of due process.’”’ [Citations,
including People v. Soper (2009) 45
Cal.4th 759, 783 [‘“if a trial court’s ruling on a motion to sever is correct
at the time it was made, a reviewing court still must determine whether, in the
end, the joinder of counts or defendants for trial resulted in gross unfairness
depriving the defendant of due process of law.”’].]”



B. Analysis

Because
McDaniels and Alford were charged with common crimes involving the same events
and victims, this was a “classic case” for joinder. (People
v. Coffman and Marlow (2004) 34 Cal.4th 1, 40.) To the extent McDaniels argues severance was
required on the theory that Alford’s statements implicated him, we have already
rejected that theory. The court’s
limiting instruction was sufficient to protect McDaniels’s rights.

McDaniels
also contends that Alford’s and his mother’s statements contained inflammatory
references, including threats to kill Williams by Alford’s mother and
references by both to Williams being a “bitch” and use of other unsavory
language. According to McDaniels,
because he was forced to sit next to Alford during trial when these statements
were introduced, he was so unduly prejudiced by them as to require
severance. The contention is without
merit. McDaniels was not part of these
conversations and was never mentioned.
The notion that the threats and language used by Alford and his mother
would color the jury’s view of McDaniels and require severance is pure
speculation. No severance was required
on this ground.

McDaniels
contends that the joint trial with Alford prevented him from presenting one of
his defense theories, namely, that “Alford manipulated the investigation to
falsely implicate him and persuaded Jameelah [Williams] and Michelle
[McDermott] to participate.” As best we
understand the claim, it is that Alford and his mother arranged Williams’s
disappearance and conspired with McDermott so as to bolster evidence that
Alford was the driver in the shooting and that someone else, perhaps McDaniels,
was the shooter. The primary problem with
this claim is that there was no evidence in the record to support it: no evidence that Alford was seeking to frame
McDaniels, no evidence that Williams’s failure to appear at trial was because
of actions taken by Alford or his mother, and no evidence that McDermott
participated in a conspiracy to frame McDaniels. The unavailability of this theory of defense
was not caused by a joint trial with Alford, but by basic rules of evidence: it was entirely speculative and no evidence
supported it.

McDaniels
also contends that he and Alford had antagonistic defenses. But McDaniels’s defense at trial was
alibi. Alford’s defense (to the extent
he mounted one without calling any witnesses) was that he wa