P. v. Alger
Filed 9/19/13 P. v. Alger CA1/2
Opinion following remand Supreme Court
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JARED
THOMAS ALGER,
Defendant and Appellant.
A126581
(Contra Costa County
Super. Ct. No.
050714543)
This case returns
to us upon transfer from the California Supreme Court, with instructions to
vacate our previously issued opinion and reconsider the matter in light of
intervening authority from that court and the United States Supreme Court. Jared Thomas Alger was convicted of
imprisonment and misdemeanor assault.
Based on our analysis of then-existing authority, we reversed the
convictions, finding that appellant’s constitutional
right of confrontation was violated because the evidence presented at trial
concerning the results of the victim’s autopsy was not delivered by the
pathologist who performed the autopsy.
We now conclude no reversible error occurred with respect to the autopsy
testimony. As we did before, we reject
appellant’s additional contentions that the court erred in admitting some of
the statements he made to the police and that the evidence was insufficient to
support the manslaughter conviction. We
additionally reject appellant’s claim that the trial court abused its
discretion in denying his request for a continuance to allow retained counsel
to replace the public defender, an issue we found unnecessary to reach in our
previous opinion. Accordingly, we now
affirm the convictions.
STATEMENT OF THE
CASE
Appellant
was charged by information filed on September 19,
2007, with the murder of Steven Goodmason (Pen. Code,
§ 187)
title="">[1]
(count 1); kidnapping of Angela Cattoor (§ 207, subd. (a)) (count 2); and assault
of Angela Cattoor with a deadly weapon and force likely to produce great
bodily injury (§ 245, subd. (a)(1)) (count 3). It was alleged in connection with all three
counts that appellant personally used a rifle. (§ 12022.5,
subd. (a).) It was additionally
alleged that in the commission of count 1 appellant intentionally and
personally discharged a rifle, causing great bodily injury and death
(§ 12022.53, subd. (b), (c), (d)); that in the commission
of count 2 he personally used a rifle (§ 12022.53, subd. (b));
and that in the commission of counts 2 and 3 he personally inflicted
great bodily injury upon the victim (§ 12022.7, subd. (a)).
In
late March 2009, with trial set for April 13,
2009, the court denied appellant’s requests to substitute retained
counsel for the public defender who had been representing him since his
arrest. Appellant moved to suppress his
statements to the police. After a
hearing, the motion was granted in part and denied in part.
Presentation
of the case to the jury began on April 27.
On May 27, the jury returned verdicts finding appellant guilty of
voluntary manslaughter, with personal use of a firearm, of false imprisonment
and of misdemeanor assault. The jury found appellant not guilty of
murder, kidnapping or attempted kidnapping, and found not true the allegations
that appellant personally used a firearm and inflicted great bodily injury in
committing the false imprisonment.
On
September 4, appellant was sentenced to a total prison term of
16 years eight months, consisting of the middle term of six years for the
manslaughter, a consecutive 10 years for the firearm use enhancement, and
a consecutive one-third middle term of eight months for the false imprisonment. Sentence on the assault conviction was
stayed.
Appellant
filed a timely notice of appeal on September
4, 2009. On January 12, 2012, we filed our
opinion reversing the convictions on the ground that appellant’s confrontation
rights had been violated. The California
Supreme Court granted review and ultimately transferred the case back to us
with directions to vacate our opinion and reconsider the matter in light of
several cases decided since we filed our opinion: People
v. Lopez (2012) 55 Cal.4th 569 (Lopez), People v. Dungo (2012)
55 Cal.4th 608 (Dungo),
___ U.S. ___ [132 S.Ct. 2221] (Williams)
In
August 2006, Louis Aguilar was living at 55 Bixler
Road with his girlfriend, Heather Scott, and
a friend, Doug Coyle; his nine-year-old son, Blake, was with him every
other weekend. On the night of
August 26, Aguilar invited some friends to the house, including appellant
and Steve Goodmanson. Goodmanson
brought his sister, Andrea, and his girlfriend, Anna Cattoor. Cattoor and Goodmanson had been friends for
many years and romantically involved for about three years, exclusively for
about three months. Cattoor testified
that she had been romantically involved with appellant before she became involved
with Goodmanson, but she did not think Goodmanson knew this, then acknowledged
having told sheriff’s officers that Goodmanson initially “had a problem†with
her having been involved with appellant.
She testified that appellant still had feelings for her after she
started seeing Goodmanson, but she told him she did not return them. According to Cattoor, there was “a little
bit†of friction between the two men over her, but “it wasn’t much friction.†Aguilar testified that appellant continued to
have feelings for Cattoor but he never got the feeling appellant was jealous of
Goodmanson, nor did he observe friction between appellant and Goodmanson that
went beyond what he would expect in a friendship between guys. On August 26, Cattoor, Goodmanson and appellant
appeared to Aguilar to be under the influence of drugs; Aguilar did not see
them consume drugs at his house but on the telephone Goodmanson had mentioned
using drugs earlier in the afternoon.
Cattoor testified that she and Goodmanson had consumed beers and some
cocaine at a friend’s house before going to Aguilar’s.
Aguilar testified that shortly after
Goodmanson arrived at the house, he went across the street with Blake to see
the frogs in the pond. Blake had a
.22 rifle and Goodmanson had a pellet gun.
They went to the pond a second time with Cattoor and appellant. Then, with Aguilar joining them, the group
went out in Goodmanson’s truck to “shoot at frogs and whatnot.†They took the two guns Blake and Goodmanson
had previously taken, as well as a .22 rifle belonging to appellant that
had been left at Aguilar’s house. They
stopped along the levee road and appellant, Goodmanson and Blake walked off
looking for a rabbit the group had seen, while Aguilar and Cattoor stayed at
the truck. Appellant had his
.22 rifle; the other remained in the truck. After five or ten minutes, Blake came back to
the truck. Cattoor had walked off toward
appellant and Goodmanson meanwhile, then returned 10 or 20 minutes later. Blake told Aguilar that appellant and
Goodmanson had been arguing a little bit.
Aguilar had initially heard shots fired “in the rabbit area,†then heard
some more gunshots.
About
15 minutes after the last set of shots, Aguilar heard a single gun shot and a
minute later saw appellant running toward the truck carrying a gun. Appellant said, “it went down†or “it’s going
down.†Aguilar took this to mean
appellant and Goodmanson had gotten into a fight. He had not heard anything that sounded like a
fight, only loud, boisterous voices that were not unusual with appellant and
Goodmanson. Aguilar asked where
Goodmanson was and appellant said “he went fishing.†Aguilar understood this to mean there had
been a fight “and there was only one winner.â€
Appellant was pacing around and seemed agitated, surprised, and
scared. Appellant started to grab the
rifle he had put down on the bed of the truck and Aguilar told him to leave the
rifle if he and Goodmanson were fighting.
Appellant left the gun and ran back down the road. When appellant reached a distance of about
150 yards, Aguilar could no longer see him in the darkness but heard what
sounded like something rolling off the levee into the water. Aguilar felt, based on his hunting
experience, that his ability to estimate distance was fairly accurate.
Appellant
returned to the truck with a pair of boots.
This led Aguilar to think Goodmanson was “no longer awake.†In the area where Aguilar and appellant grew
up, if one person took another’s boots, it meant the first person had beaten
the other in a fight. Aguilar did not
think Goodmanson would lose a fight to appellant, who was smaller, and
therefore thought whatever had happened was “farther than just a
fistfight.†Concerned for his and his
son’s safety, Aguilar walked away with Blake, taking his rifle. Cattoor remained with the truck.
Aguilar
heard Cattoor scream and saw the truck move in reverse down the levee
road. Then, as he and Blake walked home
through a field, Aguilar saw the truck drive forward and make a right turn on
Bixler. The truck slowed down briefly as
it passed Aguilar’s house and continued north on Bixler. At the house, Aguilar found Scott and
Goodmanson’s sister tending to Cattoor, who was lying on the floor bleeding. Scott had the sheriff’s department on the
phone and handed the phone to Aguilar, who said there had been a fight and he
thought someone had been shot.
Aguilar
then saw the truck pull into his driveway.
Telling the others to stay in the house, he loaded his deer rifle,
barricaded the doors with chairs and stepped to the back of the house. Appellant got out of the truck and Aguilar
yelled to him; appellant did not have anything in his hands and Aguilar did not
feel alarmed, so he put down his rifle.
Appellant was doing pull ups from a tree branch. Aguilar tried to find out what had
happened. Appellant asked what he should
do, said he was going to go to Steve’s, and told Aguilar to tell the truth,
then got in the truck and drove back toward the levee road. Appellant did not, at the house or earlier at
the levee, say he had accidentally shot Goodmanson.
Cattoor
testified that at the levee, while the others were out looking for frogs, she
got back into the cab of the truck, turned on the radio and dozed on and
off. Aguilar and Blake joined her, then
she went to tell appellant and Goodmanson she wanted to go home, but they were
talking and did not listen to her; it seemed like a normal conversation about
“guy stuff,†but Goodmanson gave her a look she knew meant not to bother him,
so she returned to the truck. Goodmanson
had his .22 rifle. Back in the
truck, Cattoor dozed again and was not aware anything unusual had happened when
Aguilar and Blake left to walk home.
At
this point, appellant got into the driver’s seat and said “let’s get out of
here.†Cattoor asked where Goodmanson
was and appellant told her to “go see.â€
Cattoor, thinking Goodmanson would not have allowed appellant to drive
the truck because it was brand new, walked about 10 or 15 feet behind the truck
and saw Goodmanson lying on the ground.
She “freaked out,†screaming and trying to shake Goodmanson, and
appellant tried to restrain her.
Appellant was holding the rifle; he pointed it at her and told her to
shut up and get into the truck. He
forced her into the truck, hitting her with the rifle, and started to drive
away; she opened the door, jumped out and tried to run. Appellant followed her and forced her back
into the truck by her hair. Cattoor was
“terrified,†feeling “almost like being with a serial killer.†As appellant drove along the dirt road, she
jumped from the truck again and ran. She
saw appellant coming behind her with something in his hand, then remembered
nothing else until she woke up in the hospital.
She had a head injury that required about seven stitches, as well as bad
scrapes and a back injury.
name="_ftnref2" title="">[2] Appellant never said anything to her about
Goodmanson being shot by accident or in self defense.
Blake
testified that, at the levee, he walked away with appellant and Goodmanson
while his father and Cattoor stayed at the truck. Appellant had the .22 rifle. Appellant and Goodmanson were talking about
Cattoor; Goodmanson told appellant to stay away from her and they shook hands. Appellant was “jumpy†and Goodmanson seemed
calm. Blake returned to the truck, where
his father and Cattoor were talking in the bed of the truck, and sat on the
front passenger seat of the cab.
Appellant came back to the truck and said Goodmanson “went fishing,â€
then left again. Blake then saw
appellant walking toward the truck holding boots, at which point his father
told him they needed to leave. As he and
his father walked away, Blake looked back and saw appellant grab Cattoor and
slam her against the truck; she tried to run away, appellant followed her and
said something, and Cattoor burst out crying.
Blake then saw appellant drive the truck forward with Cattoor
inside. As he and his father walked home
through the field, Blake saw the truck turn onto the main road and drive to the
house. When the truck was about 25 yards
from the house, he saw Cattoor jump or get pushed out and fall on the ground.
At
about 1:45 a.m. on August 27, 2006, Contra Costa County Sheriff’s
Deputy Timothy Houlihan was dispatched to 55 Bixler Road, after a
caller reported there had been a shooting and the subject, Jared Alger,
had a gun. As he was driving north on
Bixler, Houlihan started to pull around a fire truck and saw a pickup truck
coming at him at a “fairly high rate of speed.â€
Houlihan stopped; the truck continued to within 20 yards of the officer,
then made a sharp left turn onto a dirt road.
Houlihan turned onto the dirt road and activated his emergency lights
and siren, the truck increased its speed to about 50 miles per hour and
Houlihan chased it for about a half mile until it stopped on the levee
road. A large dust cloud from speeding
down the road obscured Houlihan’s vision of the truck and he stopped and waited
about a minute for backup to arrive. The
officers then approached the vehicle, guns drawn and flashlights on, but found
no one in it. There was blood in the bed
and cab of the truck, and a puddle of blood on the road in front of the pickup,
along with a “camo†flashlight. There
was also a dead rabbit forward of the truck and down the levee.
Houlihan
heard yelling from the passenger’s side of the truck and looked down the
eight-foot embankment to see a man he identified as appellant next to the
water, cradling Goodmanson’s head. Other
deputies were yelling at appellant to come up; they eventually pulled him up
because of the steep slope. Appellant
had a pocketknife in one pocket and two .22 rounds in another pocket. Asked who he was, he directed the officers to
the ID in his wallet. He did not respond
when asked if he knew where any weapons were, whether he was injured, or who
the other person down the embankment was.
When asked whether anyone was with him, appellant said, “maybe you
should be looking.†Officers immediately
began searching the area and continued for several hours, using a dog and a
heat-imaging device borrowed from the fire department. The mood was tense because the area was
brushy, with many places to hide, and the officers did not know how many people
might be involved. No one else was found
and no weapons were located.
Once
he was put into the patrol vehicle, appellant banged his head twice into the
partition “pretty forcefully,†and Houlihan told him to stop. He sat in the car with his eyes closed most
of the time, and seemed emotional to Houlihan.
He made several statements:
“Steve was like my father, and I would call that man my father, and I
learned a lot from him, and I didn’t learn enough because I wasn’t able to stop
this.†After about three and a half
hours, Houlihan took appellant to the police station.
Officers
who examined the scene on the levee road at about 5:00 a.m. found a fired
.22 caliber cartridge case a few feet in front of the pickup truck, with a
pool of what appeared to be blood nearby.
A .22 rifle was recovered from the water next to the levee, about
15 feet from where Goodmanson’s body had been found.
A
police officer who interviewed Anna Cattoor after she was released from
the hospital in the morning testified that she told him appellant had said,
after she saw Goodmanson’s body, “this is what you wanted.â€
Terence Wong,
a criminalist who attended the autopsy of Goodmanson, testified that at the
beginning of the autopsy, Goodmanson was clothed and had binoculars on his
chest and a gun holster around his shoulders, but had only one sock and was not
wearing shoes. One of the photographs
Wong took showed a laceration on the back of the victim’s head with a scale
showing that the laceration measured four and a half centimeters (approximately
one and a half inches). Other
photographs showed a black circular perforation on Goodmanson’s right
cheek. Wong observed the pathologist,
Dr. Peterson, locate and remove a bullet from Goodmanson’s brain. He also observed Peterson determine the
trajectory of the bullet by placing a metal rod through the perforation on the
victim’s cheek and the area from which he had removed the bullet. Wong documented this procedure with
photographs that were not used at trial.
The court told the jury it had seen the photographs but the jury would
be spared seeing them and instead would be shown a re-enactment on a mannequin
of the procedure used to determine the bullet’s trajectory.
Pathologist
Gregory Reiber testified as an expert on the manner and cause of death and
injury, based on his review of the autopsy report and documentation, including
the approximately 150 photographs taken by Wong. As will be discussed in greater detail,
Peterson had concluded the cause of Goodmanson’s death was a gunshot wound to
the head, describing an entrance wound on the cheek, a path through the base of
the skull and a resulting injury to the brainstem that Reiber testified would
be almost immediately fatal. Reiber
testified that the photographs indicated a very close range injury;
demonstrated on a Styrofoam mannequin head Peterson’s probe showing the path of
the bullet; and, with the prosecutor, role played scenarios for a struggle over
the gun based on appellant’s description of the incident. Reiber testified that it would have been
possible for Goodmanson to shoot himself at the angle found in the autopsy but
would have required his hand to be in a very awkward position.
Reiber
also testified that an injury on the back of Goodmanson’s head was inflicted
when the victim was alive and could have resulted from a sharp blow with the
butt end of a rifle or a fall on a hard surface, possibly falling backward and
hitting his head on the packed earth surface of the levee after being shot
while he was standing. The gunshot
injury would have caused death within five minutes at the most. The autopsy report did not indicate that
Goodmanson had defecated or voided his bladder at the time he was killed.
Reiber testified,
based on photographs he was shown at trial, that appellant had abrasions and
scrapes on his forehead, left wrist, right shin, top of the left shoulder and
back of the right shoulder. The injury
on his forehead could possibly have resulted from pounding his head against the
barrier in a police vehicle but was more consistent with a scratch, as from
fingernails or twigs.
On
the evening of August 26, appellant left a voicemail message for his
father. Appellant’s father testified
that appellant had agreed to help him pour a concrete pad and the message said
that if appellant did not get to his father’s place the next day, his father
should look for him at 55 Bixler.
Detective Cary Goldberg, who discussed this message with
appellant’s father, testified based on his report that the message was left at
about 11:13 p.m. on August 26.
The detective testified that appellant’s father contacted him about the
message, describing as “odd†a part of the message that said something like “if
you don’t hear from me tomorrow . . . the answers or the
trail will lead you to 55 Bixler Road.â€
He testified that appellant’s father told him he thought the message
suggested appellant knew there was going to be some kind of trouble that
evening, although appellant’s father was not aware of any personal problems
between appellant and Goodmanson.
name="_ftnref3" title="">[3]
Appellant
was interviewed by the police on August 27, several hours after the shooting,
and a videotape of the interview was played for the jury. Appellant told the officers, “it’s been a
long standing issue that me and him hadn’t finished each other off in a fight
for many people. Many people wanted to
see it.†He said that Goodmanson “would
talk crazy to [him] about wanting to leave this place, he was done,†and
appellant would argue with him.
Appellant said that up to this point, he had not defended himself
against Goodmanson, “we hadn’t gone that far meaning both had come close multiple
times, I guess. And I had always defused
the situation.†That night, Goodmanson
was talking “crazy†about not wanting to be there, on the levee; then he
shifted the conversation and talked about “moments of enlightenment.†Appellant said Goodmanson would talk in such
a way that at first you would not know what he was talking about and “you’re
trying to understand advice from like a father figure,†and as Goodmanson
talked about these moments of enlightenment, appellant realized he was
“speaking of what . . . death must be
like . . . .â€
Appellant
said the conversation got “volatile,†with Goodmanson giving him the option of
“pack and run†or “me and himâ€; appellant was “scared with the crazy ways he’s
talking†but “looked to him [for] advice and things†and knew Goodmanson would
not respect him if he ran. Goodmanson
“egged [him] on,†saying “you even have the
rifle. . . . You got a gun.†Appellant ditched the gun and figured he
would “face†Goodmanson, and the two “tussled.â€
Appellant said he did not want it to be “deadly†but Goodmanson was
“pushing it†and yelled, “Come on! What
do you want me to do? Well, do it.†Appellant took this to mean “What do I have
to do to get you to kill me?†As they
were rolling on the ground, Goodmanson grabbed the gun. He lifted the gun at appellant, screaming at
him, then appellant was on his back with Goodmanson on top of him, pulling the
gun up with one hand. As Goodmanson
pulled the gun up, holding the butt and the handle, appellant pushed the barrel
or stock. “[I]t veers up, whacks him in
the head and ba[n]g . . . he rolls off of
me, . . . I’m looking at him and he’s, fuckin, sitting
there, you know, farting and fucking.
You know his shits fuckin coming out of and he’s pissing and everything
else. And, I mean, at this, at this
point I found (unintelligible) I pretty much know he fuckin, pretty fuckin
dead, right?†Appellant said he had a
lot of respect for Goodmanson and could not watch him suffering, so he shot him
again “like a wounded animal.†Because
of their relative positions, appellant said the first shot “should had been
right in here by the right [e]ar.â€
Appellant
said he ran back to the truck where Aguilar and Cattoor were, not knowing “how
they’re gonna to react because it seemed to me like other people have said,
this is planned. This was planned. It seemed like it was planned by a lot of
people. By everyone but me. . . . I’ve
been the one that had avoided it several times before.†When one of the officers commented, “Almost
like that’s why you [got] called out there tonight,†appellant said, “Oh, he
told me that’s why. . . . He told me, you know, at first
when he was bringing it up like I would accept it or jump on the idea. One of his attempts to talk me into it during
that period I was talking about talking. . . . like he had
other people he considered for the role of his possible death, you
know. . . . But me. . . . He wanted as
his. . . . He explained that as me being I got
something. I don’t know what it is. It’s a good thing kinda thing, but then
that’s also why he explained why he had gotten me out there.†Asked about why he took Goodmanson’s boots,
appellant said he had hoped to “get them to the water for him.†He told the officers he had last used
methamphetamine in the morning and had a beer just before the shooting. He insisted he never hit Cattoor.
A
criminologist tested stains on appellant’s clothing and determined that there
was blood on his tee shirt and on his shoes.
Defense
Appellant
described Goodmanson as a “very close†friend:
He did construction work for Goodmanson, spent time with him fishing,
camping, shooting, hunting and other activities, and lived with him for periods
of time. Goodmanson was older than
appellant and something of a father figure to him, but also used appellant as a
model for himself. Appellant had a
sexual relationship with Cattoor before she was involved with Goodmanson. Later, appellant slept with her and Goodmanson
“kind of laughed about it†but warned appellant, “that’s my girl now.†Prior to August 26, Goodmanson had made
it “official†that he and Cattoor were together. He and appellant had made an agreement that
appellant would not respond to Cattoor, who appellant testified was “flirtyâ€
and would “throw herself on you,†and that Goodmanson would handle whatever
Cattoor did. Appellant denied being
jealous of Goodmanson.
When
appellant arrived at Aguilar’s house that night, Cattoor ran to him and jumped
on him; he held his arms out, making a point of not hugging her back. Appellant felt uncomfortable because of the
situation with Goodmanson and Cattoor.
Everyone knew the history and it seemed strange to appellant that they
were acting like nothing was going on and did not answer when he asked where
Goodmanson was. Appellant felt that
Cattoor was flirting with him and that the others thought there was going to be
a fight between him and Goodmanson.
Appellant was concerned about his relationship with Goodmanson.
Appellant heard
gunshots that came from across the street, where Goodmanson and Blake were by
the water, and went to join them. He
tried to talk to Goodmanson about Cattoor, to say he was keeping to the
agreement although Cattoor was being sexually provocative, but Goodmanson avoided
the conversation and they returned to the house. Later, appellant, Goodmanson, Cattoor,
Aguilar and Blake left in Goodmanson’s truck and went to the levee. Appellant got out and went after a rabbit
they had seen, taking a .22 rifle that was kept at Aguilar’s house and
used by “everybody.†Goodmanson caught
up with him, and appellant tried again to talk to Goodmanson about
Cattoor. Goodmanson said, “this isn’t
going to work like I thought it was then,†and picked up his pace, walking
ahead of appellant. Eventually, they
stopped and agreed on a target to shoot at.
Blake caught up with them.
Appellant tried to shoot at something and the rifle jammed; Goodmanson
tried to take the rifle and appellant “yanked back just out of safety.†Appellant was “nervous†because “you don’t
handle guns that way.†The rifle jammed
again as appellant tried to clear it, Goodmanson grabbed the rifle aggressively
and appellant let go of it. Appellant
asked what Goodmanson meant by “it’s not going to work.†Goodmanson told Blake to go back to his
father, Blake left, and appellant pursued the conversation, but Goodmanson
remained evasive, his tone “aggressive and sharp.†Appellant backed off the conversation and
they started to talk about going after frogs, having heard a gunshot they took
to mean Aguilar had shot the rabbit they were looking for. Goodmanson was shooting at frogs appellant
could not see. Appellant testified that
the “whole situation†that evening did not feel “natural†to him, as though
everyone else knew something he did not.
After walking a
bit more, Goodmanson began to talk about many problems he had with appellant;
as appellant tried to voice his side of things, the conversation escalated and
became “volatile.†Goodmanson told
appellant, “you don’t get it, better figure it out, or you’re never leaving
this place.†Appellant did not know
whether Goodmanson said this more than once but it was “kind of the
theme.†At some point, Cattoor came and
tried to “butt in.†Appellant wanted to
hear what she had to say because he felt she was the real problem that
Goodmanson was not talking about, but Goodmanson got her to leave.
Goodmanson
became aggressive with appellant and the two began to fight, rolling on the
ground. At this point, neither was
holding the gun. It was not uncommon for
them to fight, but it generally did not get serious; while both men carried
knives, they had never used them against each other. This time, the fight “wasn’t even kind of
friendly†and appellant was scared of Goodmanson in a way he had not been
before. As they struggled, while
Goodmanson was on top of appellant, he grabbed the gun and tried to bring the
barrel down on appellant’s head.
Appellant could not believe the fight had gone “this far†and thought
Goodmanson was trying to kill him. As he
felt the barrel slide across his head, appellant pushed the gun up, heard a
bang and felt Goodmanson “jerking†on top of him. Goodmanson’s bowels “loosen[ed],†which
appellant took to mean he was dead. He
rolled Goodmanson off him. Appellant had
seen the video of the interview in which he told the police he shot Goodmanson
after rolling his body off, but testified that he did not do this and did not
know why he would have said he did.
Appellant’s
memory of what happened after this was vague.
He went back to the truck, finding Aguilar and Cattoor in the back, and
thought he heard Aguilar say “I didn’t think he had the balls to do it.†Appellant was scared and worrying about how
he had felt like “the one left out of something†the whole night; something was
“odd†from the time he arrived at Aguilar’s house. Aguilar asked what happened, but appellant
thought he already knew, and Cattoor said “some crazy shit, like, well, both of
you just relax, we’ll have a beer and we’ll talk this out.†Appellant went back to Goodmanson. He testified that before watching the video
of his police interview, he would not have remembered picking up Goodmanson’s
boots. He testified that his motivation
in taking the boots was to show respect for Goodmanson by taking his boots
“where he wanted to be†because Goodmanson had said he did not want to be on
the levee and wanted to be shark fishing.
When he returned to the truck, Aguilar “had a gun on†him, then left
with Blake.
Appellant
tried to talk to Cattoor, who was asking him what happened and screaming at
him. She went to Goodmanson’s body and
jumped on him, which seemed “fake†to appellant. He was angry at her and “might have said is
this what you wanted? Because the bitch
kept throwing herself at me.†Appellant
pulled her away from Goodmanson and she went back to the truck “pretty much
willingly†and got in. Appellant drove
back to Aguilar’s house, to get to a phone.
Cattoor jumped out of the truck and appellant got out, picked her up and
put her back in. Cattoor was screaming
that she could not go with him because she had a child, but appellant was not
trying to take her anywhere. He helped
Cattoor to the couch in Aguilar’s house and asked Heather to take care of her,
then walked through the house and checked the field, looking for Aguilar. He returned to the door he had initially
entered but found it locked, walked toward the back and was met by Aguilar
pointing his “30.06†at him. Aguilar
said something about running, then told appellant he should “get counsel†and
then, as the police arrived, that it was too late. Appellant drove back toward Goodmanson with a
police car following him; he testified that he was not trying to run from him
but to “take everybody.†He testified
that he went to the levee and this “must have been†when he threw the gun into
the water. He remembered having
Goodmanson in his lap and trying to tell the police that if he let him go,
Goodmanson would fall into the water.
Appellant
testified that he had used a line of methamphetamine at about 10:00 or 11:00
o’clock in the morning on August 26, and had a beer or two at Aguilar’s
house that night.
Appellant
testified that he loved Goodmanson, never wanted what happened to happen and
never wanted Goodmanson dead. He loved
Cattoor as a friend but would have had a hard time being in a relationship with
her because he “knew not to trust her.â€
Appellant
testified that the blood draw during his police interview may have affected his
ability to comprehend what was going on, to be honest, and to be influenced by
the situation, stating he was hypoglycemic and could faint from having blood
drawn.
Goodmanson’s
blood tested positive for methamphetamine, cocaine, a metabolite of cocaine and
ethanol. A defense expert witness
testified that methamphetamine, cocaine and alcohol, in adequate doses, are all
correlated with violent behavior, so that the combination of these substances
could be “explosive.†Appellant’s blood
tested positive for methamphetamine at a lower level than Goodmanson’s, and no
other substances were detected.
An
emergency medical technician (EMT) who spoke with appellant at the Martinez
Field Operations building on August 27 testified that appellant complained
that he was nervous, stressed and had a headache; he did not recall appellant
saying he was dizzy and confused. His
partner, after reviewing a tape of the encounter, recalled that appellant said
he was dizzy and said something about his speech, but stated that appellant did
not actually appear to be dizzy and his speech was clear. Appellant initially said he wanted to go to
the hospital, but while the medical personnel went to get a gurney, a sheriff’s
officer talked to appellant and then told them appellant no longer wanted to
go.
DISCUSSION
I.
Appellant
contends his constitutional right to
confront witnesses against him was violated because Dr. Peterson, the
pathologist who performed Goodmanson’s autopsy, did not testify at trial. As indicated above, Dr. Reiber testified
about the autopsy and cause of death based on review of the autopsy report and
other documentation of the autopsy.
Reiber and
Peterson had been part of the same forensic medical group prior to Peterson
relocating out of state in 2007, and they had reviewed each other’s work from
time to time. Reiber testified that,
based on the report and photographs, it appeared Peterson had conducted a
traditional autopsy that was “consistent with the information he had in front
of him at the time.†Reiber testified
that forensic pathologists tend to follow a “standard routine†in conducting
autopsies and that having worked alongside Peterson, he knew that Peterson
followed the same sort of procedures Reiber used. Reiber described the general process,
including that pathologists usually dictate a description of their actions and
observations as they proceed through the autopsy. The recorded dictation would then be
transcribed, the transcription reviewed and corrected by the pathologist who performed
the autopsy, and the final transcribed report signed by the pathologist. Peterson had signed off on the autopsy report
in the present case. Reiber testified
this report was the type typically prepared in the ordinary course of business
in his medical group and that such reports were prepared concurrently with or
just after the actual autopsy. The group
worked on a contract basis for Contra Costa County and the reports were kept at
the coroner’s office. The report of
Goodmanson’s autopsy was admitted into evidence without objection from the
defense.
Reiber
explained that the autopsy report and photographs showed a gunshot entrance
wound on the victim’s right cheek and a wound path through the base of the
skull to the brainstem at the bottom of the skull. Peterson described the brain stem as
lacerated, or torn, a type of injury that would be almost immediately
fatal. The injuries were “pretty
clearly†documented by photographs corresponding to Peterson’s description. For the actual laceration, Reiber was relying
on Peterson’s description; the photographs of the injury were not as clear
because of the amount of surrounding tissue that had been removed to get to the
location of the injury. Reiber was able
to see a hole near the bottom of the brain where the bullet passed through and testified
that “[t]he location of the bullet path would pretty clearly involve the
brainstem in a way that I would expect to result in a fatal injury also.†The report described finding a small caliber
projectile near the place where the brainstem connects to the spinal cord.
Reiber reviewed
photographs of the probe Peterson used to show the path of the bullet and,
based on the information described in the report and the photographs, believed
the probe accurately represented the bullet’s path. He had tried to recreate this investigation
using a Styrofoam mannequin head and demonstrated this recreation at
trial. Three of the autopsy photographs
in particular showed the angle of the probe from three different angles well
enough that Reiber believed his reproduction of what Peterson had done was
“very close†to accurate, but the styrofoam material made it hard for him “to
get the right-to-left angle quite as steep.â€
The photographs
also provided information about the angle of the bullet’s entry in that a dark
area of searing and soot indicated that one end of the barrel was tipped
slightly closer to the skin than the other.
The deposit on the skin indicated a very close range injury, with the
barrel probably one to two inches from the skin, depending on the type of
weapon used. Reiber testified that if
the victim was standing erect, the lower end of the barrel would have been
slightly closer to the skin than the upper end, indicating a slight upward
angle of entry.
Using the rifle in
evidence, the prosecutor and Reiber attempted to demonstrate scenarios based on
appellant’s description of the incident, in which two combatants struggling for
the rifle face-to-face on the ground could have caused the rifle to shoot with
the trajectory reflected in the autopsy report.
Reiber testified that for Goodmanson to have been shot at that angle, he
would have had to have his hands near the trigger and be looking down at his
hands, rather than at his opponent, with his head tilted toward the
barrel. If Goodmanson initially had
control of the gun, as appellant described, it would have been possible for
Goodmanson to accidentally shoot himself in the face at the angle found in the
autopsy, but it would have required his hand to be in an “extremely awkward
position†with his index finger on the trigger, or for him to have had a
“reverse grip†on the gun, with his index finger at the breach end of the gun
and his thumb inside the trigger guard.
Reiber
also described a series of small bruises and scrapes across Goodmanson’s lower
forehead, scraped areas on the top of the head that appeared to Reiber to have
occurred after death, a laceration from a blunt blow to the lower back of the
head, scrapes on the left cheek and right side of the neck, scratches on the
chest, bruises on the left upper arm and forearm, and bruises and scrapes on
the lower left armpit. A photograph of
the injury on the back of the head showed a type of wound that could have
resulted from a sharp blow with the butt end of a rifle or a fall on a hard surface,
as well as that the wound was inflicted when the victim was alive. Reiber opined that the injury could have
resulted from Goodmanson being shot while he was standing, then falling
backward and hitting his head on the packed earth surface of the levee. The autopsy report did not indicate that
Goodmanson had defecated or voided his bladder at the time he was killed, facts
Reiber would expect to find in the report if observed during the autopsy.
Under
the Confrontation Clause, testimonial statements of a witness who does not
testify at trial are admissible only if the witness is unavailable to testify
and the defendant had a prior opportunity for cross examination. (Crawford
v. Washington (2004) 541 U.S. 36, 68 (Crawford).) The “ ‘core
class of testimonial statements’ †covered by the Confrontation Clause
include “ ‘ex parte
in-court testimony or its functional equivalent—that is, material such as
affidavits, custodial examinations, prior testimony that the defendant was
unable to cross-examine, or similar pretrial statements that declarants would
reasonably expect to be used prosecutorially; extrajudicial
statements . . . contained in formalized testimonial
materials, such as affidavits, depositions, prior testimony, or confessions;
statements that were made under circumstances which would lead an objective
witness reasonably to believe that the statement would be available for use at
a later trial.’ †(
U.S.___, [129 S.Ct. 2527, 2531] (Melendez-Diaz), quoting Crawford,
supra, 541 U.S. at pp. 51-52.)
In People v. Geier (2007)
41 Cal.4th 555, applying Crawford,
our Supreme Court held that the testimony of a laboratory director concerning
DNA results, based on a report prepared by a nontestifying analyst, was not
testimonial. (Id. at p. 605.) The
a statement must be “made . . . by or to a law enforcement agent†and
“describe[] a past fact related to criminal activity†for “possible use at a
later trial.†(Ibid.) The laboratory report
in Geier did not meet this test
because it was “a contemporaneous recordation of observable events rather than
the documentation of past events.†(
Two years later, however, Melendez-Diaz held that a laboratory report “may
be testimonial, and thus inadmissible, even if it ‘ “contains
near-contemporaneous observations of [a scientific] test[.]†’ †(Lopez,
supra, 55 Cal.4th at p. 581, quoting Melendez-Diaz,
supra, 557 U.S. at p. 315.)
Melendez-Diaz held that
notarized certificates reporting the results of forensic analysis of material
seized by the police were “affidavits†within the “core class of testimonial
statements†covered by the Confrontation Clause, because they were made for the
sole purpose of establishing that the material was cocaine, the precise
testimony the analysts would be expected to provide in live testimony,
“ ‘ “under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later
trial.â€â€™â€ (Melendez-Diaz, at p. 2532, quoting Crawford, supra, 541 U.S. at p. 52.) The Court rejected the argument that the
Confrontation Clause did not apply to testimony concerning the results of
“ ‘neutral scientific testing,’ †noting that the methodology
used to analyze the substance “requires the exercise of judgment and presents a
risk of error that might be explored on cross-examination.†(Melendez-Diaz,
at p. 2537.) The Court also
concluded the certificates were not admissible as business
records: “Documents kept in the regular
course of business may ordinarily be admitted at trial despite their hearsay
status. See Fed. Rule Evid. 803(6).
But that is not the case if the regularly conducted business activity is the
production of evidence for use at trial.â€
(Melendez-Diaz, at
p. 2538.) In sum,
laboratory report “created specifically to serve as evidence in a criminal
proceeding†is “testimonial†evidence that cannot be introduced without “a live
witness competent to testify to the truth of the statements made in the
report.†(Bullcoming v. New Mexico (2011) 564 U.S. ____, 131 S.Ct. 2705, 2709
(Bullcoming).)
Bullcoming involved
a forensic laboratory report certifying that the defendant’s blood alcohol
concentration exceeded the threshold for driving while intoxicated. (Bullcoming,
supra, 131 S.Ct. at p. 2709.)
The analyst who signed the certification was not called as a witness;
rather, the prosecution called another analyst who was familiar with the
laboratory’s procedures but had not participated in or observed the test on the
defendant’s blood sample. (
Bullcoming found this
“surrogate testimony†insufficient to meet the constitutional requirement: “The accused’s right is to be confronted with
the analyst who made the certification, unless that analyst is unavailable at
trial, and the accused had an opportunity, pretrial, to cross-examine that
particular scientist.†(
rejected the view that the analyst who signed the certification merely reported
a machine-generated number, explaining that the analysts’ statements concerning
chain of custody and test protocol followed were “meet for
cross-examination.†(
p. 2714.) Cross-examination of the
certifying analyst could also expose “any lapses or lies†by that analyst,
while cross-examination of a surrogate could not. (Id.
at p. 2715.) Additionally, while
the report was not notarized like the certificates in Melendez-Diaz, the “formalities attending the ‘report of blood
alcohol analysis’ †were sufficient to qualify the statements as
testimonial: The evidence was provided
by law enforcement to a laboratory required by law to assist in police
investigations, the analyst who tested the evidence certified the results in a
signed document headed a “report,†and the report form referred to municipal
and magistrate courts’ rules providing for admission of certified blood-alcohol
analyses. (Bullcoming, supra, 131 S.Ct.
at p. 2717.)
Since we filed our initial opinion in this case, the
United States Supreme Court decided in Williams,
supra, 132 S.Ct. 2221, that expert testimony on the results of DNA testing
by a witness who did not perform the underlying tests did not violate the defendant’s confrontation rights. In Williams,
DNA in semen found on vaginal swabs
taken from an Illinois rape victim was analyzed by a laboratory in Maryland and
subsequently matched to the DNA profile developed by the Illinois crime
laboratory from a blood sample taken from the defendant upon his arrest for an
unrelated offense. At the time of the
Maryland laboratory’s analysis, no suspect had been identified in the rape
case. At trial, a forensic specialist from
the Illinois crime laboratory testified that the DNA profile the Maryland laboratory
derived from the victim’s vaginal swabs matched the defendant’s DNA
profile. The witness had not been
involved in the Maryland laboratory’s testing and neither the Maryland
laboratory report nor testimony from an analyst at that laboratory was introduced
at trial. The defendant challenged the
witness’s testimony that the DNA profile provided by the Maryland lab was
produced from semen found on the victim’s vaginal swabs on the basis that the
witness lacked personal knowledge to support this conclusion.
a fractured opinion: Four justices found
no constitutional violation, a fifth agreed with their conclusion but for
completely different reasons, and four justices found the defendant’s
confrontation right was violated by the expert’s testimony. The plurality opinion framed the question as
whether Crawford bars an expert
witness “from expressing an opinion based on facts about a case that have been
made known to the expert but about which the expert is not competent to
testify.†(Williams, supra, 132 S.Ct. at p. 2227.) The witness testified, based on her own
expertise, that the two DNA profiles matched.
The challenged testimony that the Maryland profile was derived from the
semen on the rape swabs was not offered for its truth: “Out-of-court statements that are related by
the expert solely for the purpose of explaining the assumptions on which that
opinion rests are not offered for their truth and thus fall outside the scope
of the Confrontation Clause.†(
testimony about it—was not testimonial because it “was not prepared for the
primary purpose of accusing a targeted individual†(id. at p. 2243): The report
was not sought to obtain evidence against the defendant, who had not yet been
identified as a suspect, but to help find a rapist who was on the loose, and
the profile was not inherently inculpatory.
(Id., at p. 2228.)
Justice
Thomas’s concurrence was based on completely different reasoning, finding no
Maryland lab “lacked the requisite ‘formality and solemnity’ to be considered ‘
“testimonial†’ for purposes of the Confrontation Clause.†(Williams,
supra, 132 S.Ct. at p. 2255.) In
reaching this conclusion, Justice Thomas noted that the report was not sworn or
certified, contained no attestation that its statements accurately reflected
the testing procedures used or results obtained, and, although produced at the
request of law enforcement, was not “the product of any sort of formalized
dialogue resembling custodial interrogation.â€
(Id., at p. 2260.) Justice Thomas disagreed with both of the
plurality’s reasons for finding no constitutional violation. He rejected the not-for-the-truth rationale,
stating that there is “no meaningful distinction between disclosing an
out-of-court statement so that the factfinder may evaluate the expert's opinion
and disclosing that statement for its truth,†because the expert’s opinion
depended on the truth of the lab’s statements.
(Id. at pp. 2257-2258.) The primary purpose test, he said does not
give courts a principled way to determine which of potentially multiple
purposes of a statement is primary, and “lacks grounding in constitutional
text, in history, or in logic.†(
The
Williams dissenters, like Justice
Thomas, rejected the plurality’s view that the expert’s testimony about the
report’s contents was not admitted for the truth of the matters stated (
2268-2270) and also rejected the plurality’s primary purpose test (
Thomas’s analysis of the formality of the report, finding that just as the
report in Bullcoming was sufficiently
formal to constitute testimonial evidence despite it lacking the formality of
the certificates in Melendez-Diaz,
function, and purpose dwarf the distinctions.
[Citation.] Each report is an
official and signed record of laboratory test results, meant to establish a
certain set of facts in legal proceedings. Neither looks any more ‘formal’ than the
other; neither is any more formal
than the other. [Citation.]†(Williams,
at p. 2276.) To the Williams dissenters, the testimony of the expert in that case was
“just like the surrogate witness in Bullcoming—a
person knowing nothing about ‘the particular test and testing process,’ but
vouching for them regardless.†(
In
a trio of cases applying Crawford,
Melendez-Diaz, Bullcoming and
Williams, the California Supreme Court concluded that while the high court
has not agreed on a definition of “testimonial,†its decisions indicate that
two critical components make a statement testimonial. (Lopez,
supra, 55 Cal.4th at p. 581.) First,
“to be testimonial the out-of-court statement must have been made with some
degree of formality or solemnity.†(
Second, “an out-of-court statement is testimonial only if its primary
purpose pertains in some fashion to a criminal prosecution.†(Id.
at p. 582.) The United States Supreme
Court justices disagree, however, on what that primary purpose must be: The Williams
plurality looked for a “ ‘primary purpose of accusing a targeted
individual’ †(Lopez, supra, 55 Cal.4th at p. 582, quoting
p. 2243); Justice Thomas asked whether the statement was “ ‘primarily
intend[ed] to establish some fact with the understanding that [the[statement
may be used in a criminal prosecution’ †(Lopez, at p. 582, quoting Williams,
at p. 2261); while the dissenters asked whether the report was prepared “
‘for the primary purpose of establishing “past events potentially relevant to
later criminal prosecution†– in other words, for the purpose of providing
evidence.’†(Lopez, at p. 582, quoting Williams,
at p. 2273.)
In
Lopez, the trial court admitted a
six-page laboratory report. The first
page, described by the analyst who testified at trial as a “ ‘chain of custody
log sheet,’ †contained a chart showing the results of nine blood tests
performed by a different analyst, one of which was the defendant’s, identified
by a number. The remaining pages of the
report consisted entirely of data generated by a gas chromatography machine to
measure calibrations, quality control and the concentration of alcohol in a
blood sample. The nontestifying analyst
had signed the second page of the report and initialed the other pages, but the
report contained no statement by the analyst. Lopez held that the five pages containing only machine-generated
data did not implicate the constitutional right to confrontation because
“unlike a person, a machine cannot be cross-examined.†(Lopez, supra, at pp. 582-583.) The first page of the report reflected
handwritten information concerning each blood sample, entered by a lab assistant
who initialed under the heading “logged by.â€
The critical information was the number associated with the defendant’s
blood sample—this, together with the machine-generated results, allowed the
analyst who testified at trial to offer his independent opinion as to the
alcohol level in the defendant’s blood, and it was undisputed that the notation
was admitted for its truth. (
this notation lacked sufficient formality or solemnity to be considered
testimonial because neither the analyst nor the laboratory assistant signed,
certified or swore to the truth of the contents and the notation linking the
blood sample to the defendant was “nothing more than an informal record of data
for internal purposes, as is indicated by the small printed statement near the
top of the chart: ‘FOR LAB USE ONLY.’†(
While
Lopez did not consider the primary
purpose of the report, the court addressed that issue in Dungo, supra, 55 Cal.4th 608—which, like the case before us,
involved testimony based upon an autopsy report. The report itself was not introduced into evidence
and the testifying expert did not discuss the report’s conclusions about the
cause of death. Rather, the testifying
expert described the condition of the body—the pathologist’s anatomical and
physiological observations—as reflected in the report and autopsy
photographs. (Id. at pp. 618-619.) Based
on these observations, the expert gave his independent opinion that the cause
of death was strangulation. (
the victim’s hyoid bone was not fractured and the expert witness testified that
this indicated the victim had been strangled for more than two minutes. (Id.
at p. 614.) This point was significant
because it undermined the defendant’s contention that he killed the victim in
the heat of passion. (
The
Dungo court held that the statements
in an autopsy report describing the condition of the body “merely record
objective facts†and “are less formal than statements setting forth a
pathologist’s expert conclusions. They
are comparable to observations of objective fact in a report by a physician
who, after examining a patient, diagnoses a particular injury or ailment and
determines the appropriate treatment.
Such observations are not testimonial in nature. (Melendez-Diaz,
supra, 557 U.S. at p. 312, fn. 2 [‘medical reports created for treatment
purposes . . . would not be testimonial under our decision today’].)†(Dungo,
supra, 55 Cal.4th at pp. 619-620, fn. omitted.)
The
Court then discussed various factors
bearing on the determination of the primary cause of the statements in the
autopsy report. The facts that a
detective was present at the autopsy and told the pathologist about the
defendant’s confession supported a view that the primary purpose was
investigating a crime; that the autopsy was mandated by a statute requiring
public findings and notification of law enforcement implied the primary purpose
was forensic. (Dungo, supra, 55 Cal.4th at p. 620.) The Court held, however, that
description of the condition of the victim’s body but only one of several
purposes. (Id. at p. 621.) Government
Code section 27491 requires the coroner to determine the circumstances of a
number of types of death, some resulting from commission of a crime and others
resulting from causes unrelated to criminal activity, such as alcoholism and
contagious disease. (
in all of these cases. (Id. at
pp. 620-621.) Dungo explained that autopsy reports are useful for a number of
equally important purposes besides criminal investigation and prosecution,
including allowing the decedent’s family to determine whether to file an action
for wrongful death or an insurance company to determine whether the death is
covered under its policy; satisfying the public interest when a death has been
reported in local media; and providing answers to grieving family members. (Id.
at p. 621.) “The autopsy report
itself was simply an official explanation of an unusual death, and such
official records are ordinarily not testimonial.†(Ibid.)
In
a separate concurring opinion, Justice Werdeger noted that the observations in
the autopsy report were introduced for their truth and therefore would have
been inadmissible if they had been testimonial.
(Dungo, supra, 55 Cal.4th
at pp. 621, 627, conc. opn. of Werdeger, J.)
They were not testimonial, however, because although signed, the autopsy
report was not sworn or certified and therefore lacked sufficient solemnity and
formality; and because the reported observations were not made primarily for
use as evidence at trial. (
The
present case differs from Dungo in
several ways. The autopsy report itself
was admitted into evidence. The
testifying expert related not only descriptions of the physical condition of
the body as documented in the report, but also the non-testifying analyst’s
conclusion as to cause of death. Most
significantly, the testifying expert described and attempted to reenact a
procedure employed during the autopsy to determine the trajectory of the
bullet.
It
is the last of these differences that compels us, under the analyses of the
above-described cases, to conclude that appellant’s confrontation rights were
not violated by Reiberâ
| Description | This case returns to us upon transfer from the California Supreme Court, with instructions to vacate our previously issued opinion and reconsider the matter in light of intervening authority from that court and the United States Supreme Court. Jared Thomas Alger was convicted of voluntary manslaughter, felony false imprisonment and misdemeanor assault. Based on our analysis of then-existing authority, we reversed the convictions, finding that appellant’s constitutional right of confrontation was violated because the evidence presented at trial concerning the results of the victim’s autopsy was not delivered by the pathologist who performed the autopsy. We now conclude no reversible error occurred with respect to the autopsy testimony. As we did before, we reject appellant’s additional contentions that the court erred in admitting some of the statements he made to the police and that the evidence was insufficient to support the manslaughter conviction. We additionally reject appellant’s claim that the trial court abused its discretion in denying his request for a continuance to allow retained counsel to replace the public defender, an issue we found unnecessary to reach in our previous opinion. Accordingly, we now affirm the convictions. |
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