P. v. Barker
Filed 6/3/13 P. v. Barker CA2/2
TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
STACEY
MARIE BARKER,
Defendant and Appellant.
B233873
(Los Angeles County
Super. Ct. No. MA045492)
APPEAL from a judgment of the Superior Court of
County. Hayden Zacky, Judge. Affirmed.
Charlotte E. Costan, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Margaret E.
Maxwell and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant and appellant Stacy Marie Barker (defendant)
appeals from the judgment entered upon her conviction of
contends that the trial court erred in denying her motion for a change of
venue, her Batson/Wheeler motion,
restricted cross-examination, that evidentiary rulings and instructional error
deprived her of a fair trial and due process, that her conviction of
substantial evidence, and that cumulative error deprived her of a fair
trial. In addition, defendant asks that
we review the in camera proceedings held pursuant to her Pitchess motion.
BACKGROUND
Procedural history
Defendant
was charged with three felony counts relating to the death of her 18-month-old
daughter Emma Barker (Emma):
name="_ftnref4" title="">[4] first degree murder in violation of Penal
Code section 187 (count 1);
name="_ftnref5" title="">[5] assault on a child under the age of eight,
causing death in violation of section 273ab (count 2); and child abuse in
violation of section 273a, subdivision (a) (count 3). Count 3 specially alleged infliction of
unjustifiable pain on a child by a caretaker under circumstances likely to
produce great bodily harm and death, and resulting in death, pursuant to section
12022.95.
After a
jury trial, defendant was convicted of all three counts as charged. The jury found the murder to be in the first
degree and found true the special allegations.
On June 17, 2011, the trial court sentenced defendant to 25 years to
life in prison on count 1. As to count
2, the court imposed a term of 25 years to life and stayed the term pursuant to
section 654. As to count 3, the court
imposed a prison term of six years, enhanced by six years under section
12022.7, subdivision (d), and also stayed pursuant to section 654. Defendant’s actual presentence custody credit
was 786 days. The court imposed
mandatory fees as well as a restitution fine of $10,000 and a parole revocation
fine of $10,000, stayed pending successful completion of parole.
Defendant
filed a timely notice of appeal.
Prosecution evidence
Defendant’s
pregnancy; Emma’s birth and life
Defendant moved back into the family home after she
became pregnant with Emma. Emma was born
September 2, 2007. Her father, Anthony
Hannaford (Hannaford), lived in Long Beach and although defendant never took
Emma to Long Beach to visit, Hannaford and his mother periodically travelled to
Lancaster. Hannaford had no contact with
defendant between December 2008 and Emma’s death on March 18, 2009. Defendant knew Hannaford’s cell phone number,
but not his addresses or that of his mother, in Long Beach.
Defendant’s
mother, Susan Barker (Susan), testified that defendant was on leave from work
for three months following Emma’s birth and did not go out socially during that
time. Susan thought defendant took good
care of Emma and was never abusive.
Defendant’s younger brother Nickolas Barker (Nickolas) testified that
defendant did not lose her temper with Emma or hit her, and merely punished her
with an occasional “No.†When defendant
resumed her social life, she usually went out after putting Emma to bed. Susan, Nickolas, or defendant’s father Gary
Barker (Gary) would babysit. When
defendant returned to work, Susan switched to a night shift to care for Emma
while defendant worked from 5:30 a.m. to 2:30 p.m. Nickolas also lived in the home and helped
care for Emma.
Defendant
met Brendon Borrelli (Borrelli) on New Year’s Eve, 2008. Thereafter, they regularly talked, exchanged
text messages up to 75 times per day, had sex at Borrelli’s house, and lunched
together on workdays. They spent
increasingly more time together, usually in the evening after Susan left for
work. Defendant began coming home very
late, spending less time with Emma and putting her to bed earlier. Even when defendant was home, she often
ignored Emma in favor of sending text messages to Borrelli.
Borrelli
was 23 years old at the time and did not want children. Borrelli had almost no interaction with
Emma. When he visited defendant,
Borrelli usually arrived after Emma was in bed, and the few times he saw Emma,
it was either a short visit or he watched television during their time
together. Defendant confided in Nickolas
that Borrelli did not want to spend too much time with Emma or take
responsibility for her. Defendant
expressed concern to Borrelli that Emma might scare him away.
While
seeing Borrelli, defendant had several sexual encounters with Nickolas’s
friend, Mario Villalobos (Villalobos).
Villalobos testified that he saw defendant and Emma together
occasionally at softball games where he and Borrelli played. Villalobos noticed that although other team
members often came out of the dugout to greet defendant and Emma, Borrelli
never did. Defendant explained to Villalobos
that Borrelli preferred to avoid her when she was with Emma.
Nickolas
testified he noticed that defendant would often drop everything to focus
completely on her boyfriends, wanting to spend all her spare time with them,
sometimes to the point of scaring them away.
Before Emma was born, defendant became so involved with a Hispanic man
that she dyed her hair black and tanned herself in an effort to look Hispanic.
Defendant
and Borrelli celebrated Saint Patrick’s Day 2009 by drinking beer at a bar, taking
a drive, and then having sex at Borrelli’s house. Defendant returned home at 4:00 a.m. on March
18, 2008, about two hours before she was scheduled to begin work. Though she dressed for work, at 5:30 a.m.,
defendant called in sick and went back to Borrelli’s house, where they slept
until noon before going to lunch together.
Over lunch, defendant and Borrelli discussed the potential of a
relationship between Borrelli and Emma.
Defendant reported that Hannaford was out Emma’s life and added that she
was not getting along well with Susan.
Borrelli told defendant that he preferred to postpone any relationship
with Emma until he determined what he wanted to do in life and was sure that he
could handle something as “big†as that.
Defendant
returned home sometime after 3:00 p.m. and she and Susan argued about
defendant’s late arrival. It was a loud
argument, and as in previous arguments, Susan told defendant that she would
watch Emma only while defendant was at work.
This time Susan told defendant to stop going out or find another
babysitter. Defendant responded that she
could not make anyone happy, adding, “I can’t make you happy. I can’t make work happy and I can’t make my boyfriend
happy.†Susan left the house at 3:30
p.m.
death and the initial investigation
About
4:30 p.m. defendant told Nickolas she was taking Emma to the park. Defendant sent Borrelli a text message about
the fight with her mother and that she was taking Emma to Lancaster Park.
that she was at the park with Emma and they were fine.
Borrelli
sent defendant several text messages before getting off work, but received no
response until about 10:30 p.m., when she called him, sounding hysterical. She said that “they took her†and she was at
the Palmdale Park and Ride facility.
Borrelli picked up Nickolas at the Barker home, and on the way to the
Park and Ride facility, Nickolas called 911.
They found defendant sitting in her car wearing just her underwear,
crying hysterically. Sheriff’s deputies
arrived soon after, followed by an ambulance and defendant’s parents.
Deputy
Scott Shean testified that defendant told him she placed Emma in her car seat
at 5:30 p.m. after visiting Lancaster City Park, and then opened the driver’s
door. The next thing defendant
remembered was waking up at 10:30 p.m. at the Palmdale Park and Ride; she found
her cell phone, looked at the time, and looked in the back for her daughter. Deputy Shean testified that defendant was two
or three minutes into her explanation before she mentioned that her daughter
was missing.
Defendant
had a small bump on her head and some scratches. She was transported to the hospital where a
deputy remained with her throughout the night.
Defendant did not ask whether her daughter had been found. At 3:00 a.m., defendant was given a sexual
assault exam by a forensic nurse who observed recent scratches on defendant’s
inner and outer labia and anus, but could not determine how the injuries were
sustained. During the exam, defendant
was quiet and gloomy, with poor eye contact; she said her daughter was missing,
but did not mention Emma again. After
leaving the hospital in the early morning of March 19, defendant was taken to
the Palmdale Sheriff’s Station and interviewed.
Defendant gave essentially the same story about Lancaster City Park as
she had given to other deputies.
Sherriff
Detective Nicholas Cannis of the Major Crimes Bureau began investigating the
kidnapping report soon after defendant was found at the Park and Ride. He testified that after obtaining defendant’s
cell phone records for March 18, he traced the movement of defendant’s cell
phone southward between 4:24 p.m. and 5:22 p.m., and then its northward
movement later in the evening, by determining through which cellular towers her
calls and text messages had been routed.
Defendant’s cell phone travelled from the Antelope Valley to the 405
Freeway in Los Angeles. At 9:09 p.m.,
when she received a text message or call from Borrelli and responded, defendant
was near the Los Angeles International Airport. Defendant then travelled north, and by 9:50
p.m., she was within one mile of the place where Emma’s body was found the next
morning, and within 39 miles of the Palmdale Park and Ride.
When
defendant was confronted with the discrepancy between the cell tower
information and her version of events, she told detectives that Emma had
accidentally died and she had left her body in Sylmar. At approximately 11:00 a.m., defendant led deputies
to the location. Defendant claimed that
while driving to Long Beach to seek help from Emma’s father, she handed Emma
her purse to play with, not knowing there was a plastic sandwich bag (baggie)
inside. Defendant realized that Emma had
choked on the baggie when she looked back sometime after Emma became very
quiet, and saw that Emma was no longer moving.
second interview
Sherriff
Sergeants Shaun McCarthy and Sandra Nava interviewed defendant again that
evening. A recording of the interview
was played for the jury. Defendant said
she had decided to go to Long Beach to ask Hannaford for financial
assistance. Defendant repeated the
explanation about the purse and baggie, and said she decided to make it appear
that she had been raped because she did not want to be considered a bad mother.
When
Sergeant McCarthy asked defendant whether she stopped to check Emma’s
breathing, defendant replied that she did not stop for 30 to 45 minutes because
she was sure Emma was not breathing.
Defendant explained that she knew Emma was dead rather than sleeping,
because she was slumped over with the baggie in her mouth, and Emma never slept
with her head hanging over in that manner.
When she finally stopped, defendant took the baggie from Emma’s mouth and
threw it out the window on the way home.
Defendant occasionally looked back at Emma, saw that her eyes were
closed, her lips were purple, and she had a bit of blood coming from her
nose. Defendant did not call for
paramedics because she was frightened.
After
Sergeant Nava expressed disbelief in much of the story, defendant admitted she
knew that Emma had been playing with a baggie, claiming that while she drove,
she played a peek-a-boo game by tossing Emma’s blanket over her head. Defendant surmised that the blanket caught on
the safety clip of the car seat and pushed the baggie into Emma’s mouth. Defendant then said she had played with the
baggie by holding it up to Emma’s face while playing peek-a-boo with the
blanket. Emma grabbed her arm at first,
and then, defendant explained, “I held [the blanket] for a couple of minutes
and then I kind of felt her hands let go.â€
After a few minutes, she removed the blanket and saw a “little bit more
than half†the baggie in her mouth. When
asked whether Emma had struggled, defendant replied that she thought so,
adding, “I think that’s why when she was grabbing my arm, I thought she was
just playing with me, but she was trying to breathe.†Defendant said, “I think I suffocated her.â€
After a
break, the interview continued with Sergeants Nava and Marsh. Defendant did not realize Emma could not
breathe or that this was the reason Emma pulled at her arm; nor did she realize
that two or three minutes had passed, or when she held the blanket against
Emma’s face she was also holding the baggie.
Defendant denied she held the blanket there on purpose. When Sergeant Marsh expressed doubt whether
she could have held the blanket over Emma’s face while driving on the freeway
at 65 miles per hour, and Sergeant Nava demonstrated the difficulty she would
have in reaching back, defendant replied that she was driving 65 or 70 mph.
experiments
Sergeant
Nava and crime scene reconstruction expert Paul Delhauer testified regarding
their attempts to recreate defendant’s peek-a-boo game in defendant’s Mazda,
with a mannequin in the child seat.
Sergeant Nava was the same height as defendant, but her hip to heel
measurement exceeded defendant’s by one inch and Sergeant Nava’s reach was
longer by one-half inch. Trying the
driver’s seat in the most forward position, Sergeant Nava was not able to touch
the mannequin. In a driving position
that was comfortable for Sergeant Nava, she could reach the mannequin, but had
to lift her hips off seat and stretch back on her tiptoes. With the seat all the way back, Sergeant Nava
could not reach gas pedal or steer the car.
and cause of death
When Los
Angeles County Coroner investigator Denise Bertone (Bertone) arrived at the
place where Emma’s body was found, about three hours later, she took
photographs, examined the body, noted physical characteristics, took a rectal
temperature, and prepared a report for the medical examiner. Bertone testified that among other things,
she observed blood on Emma’s nostril and upper lip.
Medical
examiner James Ribe, M.D. testified that he performed the autopsy. Due to Emma’s position and degree of rigor
mortis, he estimated the time of death at approximately three or four hours
before being placed where her body was found.
Dr. Ribe testified that the toxicology screen revealed diphenydramine
(Benadryl) in Emma’s system, in an amount above the normal therapeutic level.
against allergies, but was also a mild sedative that was sometimes used as a
sleeping aid, and would have made Emma sleepy.
Dr. Ribe
was unable to determine the cause of death with certainty, but ruled out all
possible causes except asphyxia. Dr.
Ribe did not see blood on Emma’s nostril, but the blood was visible in the
photographs taken where her body was found.
He explained that blood in the nose of infants was usually associated
with suffocation by facial occlusion, accomplished either by squeezing the nose
or by exerting pressure on the lower face.
The ensuing struggle to breathe would rupture the small capillaries in
the nasal membrane, resulting in bleeding.
Choking on a plastic bag would not cause blood in the nose.
the Barker home before defendant’s arrest
After
defendant returned home from the sheriff's station, she told her family she had
been heading toward Hannaford’s home intending to seek financial help from him
and that Emma died accidentally.
Nickolas testified that as far as he knew, Hannaford had no money. Nickolas and Susan both testified that
defendant was about to receive an income tax refund of approximately $5,000.
Defendant
told Nickolas that when Emma became fussy on the drive, defendant gave Emma a
granola bar and defendant’s purse to play with, and when defendant turned
around to look at Emma, she saw that Emma was dead. Defendant then pulled off the freeway and
took the baggie from her mouth.
Defendant told Susan that as she was playing peak-a-boo with Emma’s
blanket, a baggie somehow got into Emma’s mouth, and when the blanket became
caught on the back of the car seat, Emma accidentally suffocated. Defendant admitted to them that she had
invented the abduction, hit her own head on the steering wheel, and threw her
clothes away to support the story. Susan
testified that when she asked defendant whether she had tried to save Emma,
defendant said no, and expressed no regret.
Defendant did not cry while telling the story of Emma’s death, but cried
after Susan confronted her about the story and accused her of killing Emma.
Friends
and family gathered at the Barker home the evening before the funeral. Villalobos testified that he saw people,
including defendant, playing a game of beer pong. Defendant appeared to be intoxicated and
giggled.
Susan
testified that she did not sit next to defendant at the funeral service. She admitted telling detectives that she
believed that defendant had killed Emma.
and locked her bedroom door at night until defendant moved away a few weeks
after Emma’s death.
name="_ftnref10" title="">[10] Susan had not visited defendant during her
two years in custody before trial.
Susan
frantically called Sergeant McCarthy and asked him to arrest defendant because
she was planning to go to Texas.
Nickolas told Sergeant McCarthy that he had overheard a conversation
between defendant and Borrelli about leaving for Texas.
A portion of a telephone conversation between Gary and
defendant, recorded at the jail in January 2010 was presented to the jury. In the conversation, after defendant told
Gary that she was angry with Borrelli, she stated: “He said that he wished that the police would
have believed my first story so that I could be out there with him.†Sergeant Nava testified that when she spoke
to Susan alone on March 24, 2009, Susan said that she knew her daughter did
this and needed Sergeant Nava to prove it.
testimony
The prosecution called a witness identified to the jury
as John Doe (Doe)
name="_ftnref11" title="">[11] to protect his privacy. Doe testified he was serving a prison term at
the time of trial and his case had been pending in the Antelope Valley court at
the same time defendant was in custody awaiting trial. Their court dates coincided and he met
defendant on the bus from jail to the courthouse. After they became acquainted, defendant talked
about the charges against her, and Doe believed her claim of innocence at first,
but grew skeptical after he read about the case in a newspaper and defendant
gave inconsistent accounts. Because he
disliked crimes against children, Doe contacted homicide detectives to provide
them with information.
During
their conversations, defendant told Doe she was “pissed off†at her boyfriend
because he was out there watching football and having a blast while she was
sitting in jail. She said he owed her
and that they should have kept to the original story. Defendant never admitted killing Emma, but
always maintained that her death was an accident.
Doe gave
defendant his mailing address but warned her his mail was monitored. The trial court admitted 12 of the letters
defendant sent to Doe in November and December 2009, and January 2010. On some letters and envelopes, defendant made
elaborate drawings of flowers, butterflies, musical instruments, or a kissing
cartoon couple. Defendant addressed Doe
as dearest, called him handsome, told him he had beautiful eyes and what she
loved about him. In January, the letters
became more passionate. Defendant called
Doe “babe,†her “very own true love,†and her “vampire.†Defendant wrote that she prayed they would be
released soon so that they could “fully enjoy one another, emotionally and
physicallyâ€; that her heart was in his hands; that she wanted to “see what’s
underneath all the clothing. Be able to
touch and caress each other. Look deep
into each other’s eyes till we can see our souls.†Loyalty and honesty were common themes in the
letters. For example, defendant
wrote: “Everything between us will be
based on complete loyalty, honesty and trust. . . . Yes, I do see myself, you and me, in a
completely faithful, honest and healthy relationship. . . .â€
Defense evidence
Barker
Defendant’s father testified that defendant had
participated in sports in high school, made good grades, and exhibited no
violent tendencies or irrational behavior.
Defendant took care of herself during her pregnancy and took vitamins;
she did not take drugs or become intoxicated; she read about diet and baby
development; and she never said she did not want the baby. She appeared to be as “happy as could beâ€
before Emma’s birth and overjoyed afterward.
Defendant took responsibility for Emma’s care, prepared fresh vegetables
for her, and paid for everything. Gary
saw three new outfits for Emma the night before she died.
For
Emma’s first year, defendant stayed home all the time; later she socialized but
did not neglect Emma. Defendant was a
good mother, enjoyed her time with Emma, and did not spank, hit, or slap the
child. After December 31, 2008,
defendant started going out more. Gary
did not notice any change in defendant’s interaction with Emma after defendant
met Borrelli, but he worked long hours and was usually asleep when Borrelli
came over.
When
detectives came to the door after Emma’s body was found, Susan asked, “Did she
kill her?†Gary was upset with Susan for
thinking that defendant could have killed Emma, because he knew defendant could
not have done it. At the time of trial
Gary still visited defendant every other weekend; he loved her, was concerned
for her, and would do anything he could properly do for her.
Gary
described defendant’s mood during the beer pong game the night before Emma’s
funeral, as sad and tired. Someone had
to persuade her to get out of bed and come play with them. Gary also explained about Texas: one day, after Susan attacked defendant in
bed, Gary’s father offered defendant the chance to stay at his house until the
tension settled. Gary’s sister, who
lives in Texas, was there and offered to give defendant a place to stay after
everything was over.
defense witnesses
Gary’s
sister, Kimberlee Barker, testified that she lived in Texas, and offered to let
defendant come live with her after everything was resolved. Borrelli testified he spent more time at the
Barker house after Emma’s death than before because defendant needed a friend
and he was there for her. Defendant’s
supervisor, Jennifer Goodnight (Goodnight), testified that she spoke to
defendant at work daily. When they
discussed their children, defendant sometimes spoke negatively about Emma. Defendant posted photographs of Emma in her work
station, and when Goodnight noticed that they had been taken down, she informed
Detective Nava. Defendant’s grandfather
Lawrence Barker, testified that when defendant came to live with him, she
seemed to be depressed and in shock. She
cried and slept a great deal.
testimony
Defendant
explained that she took down the photographs of Emma at work because she shared
her desk with evening shift part-time employees.
Defendant
was working two jobs when she discovered she was pregnant in January 2007, but
quit one of them and gave up her apartment after a near miscarriage. Defendant found that moving back home with her
parents required an adjustment, as she was not on good terms with her
mother. She bought books on pregnancy
and a yoga video, kept all her doctors’ appointments, prepared her bedroom for
Emma, and took a Lamaze class with her mother.
Defendant’s family was excited about the baby and defendant felt
supported. She was prescribed bed rest
during the last few weeks of her pregnancy, and Emma was born a week and a half
early.
Defendant
testified that her relationship with Hannaford began in November 2005 and was
never serious or steady. Hannaford told
defendant that he never wanted children.
He wanted her to have an abortion, but defendant decided that she wanted
the baby. Defendant had dated others
before Hannaford, as well as two other men during the time they were together,
although they were just “flings.â€
Defendant denied ever stalking or trying to control Hannaford. She denied trying to change her looks when
she lived with a Hispanic man, and claimed that she ended that relationship
because he was abusive.
Defendant
put Emma in day care when she first returned to work, then with defendant’s
maternal grandparents when the day care provider did not take proper care of
Emma, and finally with Susan in January 2008.
Defendant claimed she came straight home from work to take care of Emma,
and that she played with her, fed her dinner, and bathed her, with no variance
in her routine, other than socializing with her friend Amber, Amber’s children
and Emma. Defendant denied dating or
going out to bars during Emma’s first six months.
Defendant’s
social life resumed New Year’s Eve 2008, when she met Borrelli at a bar where
she was celebrating. Defendant claimed
her relationship with Borrelli was not serious, that she never declared love
for him or tried to control him, and that she dated other people at the same
time, including Villalobos, with whom she had sex two or three times. Defendant estimated she went out socially about
12 times in 2008, and not always with Borrelli.
Defendant claimed she told Borrelli that Emma came first, and they both
agreed to take things slowly. Defendant
denied that she loved Borrelli or that having a man in her life was more
important than Emma.
On March
17, 2008, Gary agreed to babysit so defendant could go out with friends. Defendant met Borrelli at a bar after putting
Emma to bed. They remained at the bar
until nearly 2:00 a.m., and then went for a drive before defendant dropped
Borrelli off and went home. Defendant
slept for about two hours, called in sick to work and then went back to
Borrelli’s house, where they slept until about 1:00 p.m. before going out to
lunch. Over lunch defendant and Borrelli
discussed their relationship, Emma, and Hannaford. Defendant told Borrelli that if they were to
become more serious, she would like him to visit more often and get to know
Emma. Borrelli said he would see what he
could do, but defendant was not convinced, and was ready to end the relationship
if Borrelli did not put an effort into his relationships with both her and
Emma.
When
defendant went home after the lunch with Borrelli, Susan was upset because
defendant had spent the day with Borrelli rather than going to work. The ensuing argument lasted 15 minutes, but
defendant denied screaming. After
telling Nickolas she was taking Emma to the park, defendant put two or three
diapers, some diaper wipes, and a sippie cup in her purse, took some snacks,
Emma’s blanket and Bear Bear, and left between 3:30 and 4:00 p.m.
Defendant
did not recall a discussion with Borrelli about the dangers of Lancaster City
Park. She testified she intended to go
to the park, but once in the car, she decided to go to Long Beach to ask
Hannaford to help her move out of the house before she was evicted by Susan. Defendant did not want to go back home and
felt she had nowhere else to go. She did
not consider Borrelli to be her boyfriend at that time; Amber had her “own
situationâ€; and defendant’s brother Matthew was not speaking to her. She thought that Hannaford was her last
resort. His mother had told her to call
if she needed anything. However,
defendant did not try to call either of them.
She did not call or text Hannaford because he did not always answer and
she assumed he would not take her call.
Defendant intended to call them once she arrived in Long Beach, or
figure something else out if she did not reach them.
Defendant
denied that she killed Emma and denied that she killed her before leaving
Lancaster. Defendant claimed she did not
think anything was wrong with giving Emma her purse when she became fussy
because Emma had played with it before.
Emma had also played with a baggie; she like operating the zipper. When Emma grew tired of the purse, defendant
picked up Emma’s blanket and played a peek-a-boo game for 15 or 20
minutes. Defendant explained that she
tossed the blanket because she drove with the seat almost all the way forward
and could not touch Emma’s face from that position. She denied holding the blanket against Emma’s
nose and suffocating her. She also
denied giving Emma Benadryl, claiming that she gave her baby Tylenol.
Defendant
testified that after awhile she looked back, saw that the blanket was still
covering Emma, and when she pulled it off, saw that Emma’s lips were purple and
her face was bluish. Defendant did not
call 911 or pull over because she was in the middle of traffic, could not get
over, and was scared and uncertain what to do.
Defendant continued driving until she reached Cherry Avenue in Long
Beach, where she pulled over, got into the back seat with Emma, and found the
baggie in her mouth. Without removing
Emma from the car seat, attempting to resuscitate her, or even verifying she
was alive, other than feeling her face, defendant removed the baggie, sat for
awhile, and then drove home.
Defendant
threw the baggie out the window, but denied she intended to eliminate evidence,
claiming she discarded it because she blamed herself for having given Emma the
baggie and causing her death. Defendant
continued to drive for 30 or 40 minutes, and when she looked at Emma
periodically in the rearview mirror, she could tell that Emma was dead. Defendant claimed she left Emma’s body in
Sylmar and made up the kidnapping story because she was afraid she would get
into trouble for being irresponsible.
She denied that anyone helped her and claimed that Borrelli took no part
in Emma’s death or her attempt to cover it up.
The next
day (March 19, 2009), after taking the deputies to Emma’s body, defendant
returned to the Palmdale Sheriff’s Station around 1:00 p.m., but was not
interviewed again by Detectives McCarthy and Nava again until 9:20 p.m. Defendant remained at the Sheriff’s station
until 2:00 a.m. the next day, and although she was able to sleep on and off
during that time, she was tired and wanted to go home. She claims it was fatigue that caused her to
give conflicting statements. After
several hours of questions by McCarthy and Nava, she would have said anything
they wanted.
Regarding her conversations with Doe, defendant said when
they first met he appeared to believe her and told her not to discuss her case
with anyone or write anything down.
Later, he questioned her quite a bit and wanted to coach her so that her
story would make sense. Defendant denied
that she and Borrelli ever discussed getting their stories straight, and it was
Borrelli, not her, who said that he wished the police had believed her first
story so they could be together.
DISCUSSION
I. Motion for change of venue
Defendant
contends that the trial court erred in denying her motion for change of
venue. As the moving party, defendant
bore the burden in the trial court to demonstrate her need for a change of
venue. (People v. Lewis (2008) 43 Cal.4th 415, 447 (Lewis).) On appeal, “the defendant must show both that the court
erred in denying the change of venue motion, i.e., that at the time of the
motion it was reasonably likely that a fair trial could not be had, and that
the error was prejudicial, i.e., that it was reasonably likely that a fair
trial was not in fact had. The trial
court’s essentially factual determinations as to these factors will be
sustained if supported by substantial
evidence. We independently review
the trial court’s ultimate determination of the reasonable likelihood of an
unfair trial. [Citations.]†(People
v. Edwards (1991) 54 Cal.3d 787, 806-807, fn. omitted; see § 1033,
subd.(a).)
“Both
the trial court’s initial venue determination and our independent evaluation
are based on a consideration of five factors:
‘(1) nature and gravity of the offense; (2) nature and extent of the
media coverage; (3) size of the community; (4) community status of the
defendant; and (5) prominence of the victim.’
[Citations.]†(
1370, 1394 (Leonard).)
Defendant
has not established error based on factor Nos. 1, 4, or 5, as her position lack
merit. First defendant contends the
trial court failed to consider the general attitude toward murderers of
children. As respondent points out, the
trial court did in fact give serious consideration to the victim’s age, but
concluded a child victim would evoke sympathy in any jurisdiction. Thus finding that this factor was not grounds
for a change in trial location.
Defendant
does not argue that the trial court failed to consider defendant’s community
status or the prominence of the victim, but instead suggests that the trial
court should have given greater weight to the fact of a baby victim and thus a
sympathetic and tragic figure in the community, as well as the 20 years
defendant and her family lived in the area and the fact that defendant
participated in local sports. These
arguments are not persuasive as there is no indication that either the family or
the child victim were so prominent locally as to have an effect on trial
proceedings. The trial court was not
required to give particular weight to any single factor. (Lewis,
supra, 43 Cal.4th at p. 451.) There was no error.
Regarding
the nature and extent of the media coverage and size of the community,
defendant contends that she established that there was “unrelenting local media
coverage in this very high profile case.â€
However, defendant’s contention that the media characterized her as a
murderer and “baby killer†from the day Emma’s body was found to the
commencement of trial finds no evidentiary support in the record. In fact, despite her burden of proof,
defendant submitted no evidence; instead she relied exclusively on her
attorney’s written and oral arguments which she has summarized here as though
they were evidence. Defendant now
invites this court to do its own internet search to find media coverage of this
case and asks that we take judicial notice of United States Census Bureau
statistics. We decline her invitation,
as respondent rightly objects and defendant has not attached copies of
documents to be judicially noticed. (
134-135.)
We thus
limit our review of pretrial facts and the size of the community to those
judicially noticed by the trial court.
(See People v. Preslie (1977)
70 Cal.App.3d 486, 493.) As defendant
did not submit articles, recordings, studies, or declarations, the trial
court’s observations comprised the extent of the evidence of pretrial
publicity. The court was aware that when
Emma died and defendant was arrested, there was a “flurry of media coverage,
including coverage in the national media†and statewide media, and that “Nancy
Grace even did a piece on this particular case.†The court took judicial notice that the
combined population of Palmdale, Lancaster, and other areas from which jurors
were drawn was more than 450,000. Nearly
two years had passed between Emma’s death and jury selection, and the trial
court noted that the publicity had diminished in that time.
There
was no evidence of the nature of the publicity.
Even extensive media coverage will not warrant a change of venue unless
it was unfair or inflammatory or other factors require a change of venue. (People
v. Farley (2009) 46 Cal.4th 1053, 1083-1084.) Further, the passage of time since the most
extensive media coverage may attenuate any prejudice. (People
v. Ramirez (2006) 39 Cal.4th 398, 434.)
The California Supreme Court held that a change of venue from a
community of 405,000 people was properly denied where the publicity was not
shown to have been unusual, unfair, or inflammatory, and thus unlikely to have
had a prejudicial effect upon prospective jurors. (People
v. Balderas (1985) 41 Cal.3d 144, 178.)
Here, the community was larger, and although the trial court
acknowledged that media coverage had been extensive in the beginning, there was
no evidence that articles or commentary were anything but straightforward and
factual or that the coverage continued to be extensive.
Further,
defendant has not demonstrated that media coverage prejudiced the jury
panel. The record of voir dire may show
the extent of the prospective jurors’ exposure to pretrial publicity and
possible bias. (People v. Fauber (1992) 2 Cal.4th 792, 819.) Here, although the prospective jurors
answered written questionnaires designed to determine which people held some
bias due to pretrial publicity, the questionnaires have not been made part of
the appellate record and defendant does not contend that there were any
particular responses that show the extent or nature of the pretrial publicity
or the bias any such publicity may have caused.
record of voir dire shows that 48 percent of the first group, 27 of 60
prospective jurors, had “indicated some sort of bias because of their knowledge
of the case gleaned from the media†and all but five were excused for cause;
group had been “exposed to media accounts of the case.â€
The
purpose of defendant’s meager analysis of voir dire is not clear, but defendant
apparently seeks to show that a large percentage of prospective jurors had been
exposed to media coverage of the case, thus demonstrating that trial in that
community would be unfair. However,
“there is no requirement that jurors be totally ignorant of the facts of a
case, as long as they can lay aside their impressions and render an impartial verdict. [Citation.]â€
(Lewis, supra, 43 Cal.4th at p. 450.)
In Lewis, 72 percent of the
potential jurors had heard something about the case, but an absence of
prejudice was suggested by the fact that most of them “remembered the case only
in general terms, seemed to have no independent recollection of the facts, and
had not prejudged defendant’s guilt.†(
In any
event, defendant’s assertion that between 20 and 45 percent of the panel had
heard of the case does not establish extensive media coverage. Indeed, after reading the juror questionnaires,
the trial court expressed surprise that the number of people with media
exposure was less than expected. After
the jury was selected, the court was “very pleasantly surprised at the lack of
media knowledge†on the part of most jurors.
Moreover, defendant has not shown that the affected jurors’
recollections were specific or that any juror, other than those who were
excused, had prejudged defendant’s guilt.
In fact, none of those exposed to media coverage who remained after the
questioning focused on that issue could remember many details, and all of them
told the court they had not prejudged defendant’s guilt and could be fair and
impartial jurors.
We
conclude the trial court properly considered the five factors set forth in
meet her burden to prove her claim that the pretrial publicity was extensive,
unrelenting, pervasive, or inflammatory.
The trial court did not err in denying the motion, and regardless, there
was no prejudice.
To show
prejudice, defendant repeats her argument, unsubstantiated by evidence, that
there was nonstop publicity, that a large percentage of prospective jurors were
exposed to the publicity, causing the victim to become a “cause célèbre.†As we have already concluded defendant failed
to provide evidence of extensive or inflammatory pretrial publicity, we do not
presume prejudice. (See
Moreover, respondent represents that only one juror was seated despite
having heard of the case, and that defendant failed to exercise all her
peremptory challenges.
name="_ftnref16" title="">[16] Defendant’s failure to use her remaining
peremptory challenge, identify any sitting juror who had been exposed to
pretrial publicity, or to identify any sitting juror she challenged for cause,
demonstrates that the denial of the motion did not result in an unfair
trial. (People v. Farley, supra,
46 Cal.4th at p. 1085 & fn. 8.)
We
conclude that defendant has failed to demonstrate prejudice by showing a
“reasonable likelihood, as opposed to a mere possibility, that [she] did not in
fact receive a fair trial before impartial jurors. [Citation.]â€
(Lewis, supra, 43 Cal.4th at p. 450; see also People v. Jenkins (2000) 22 Cal.4th 900, 943.)
II. Batson/Wheeler motion
Defendant
contends that the prosecutor used peremptory challenges to systematically
exclude men from the jury. The use of peremptory
challenges to remove prospective jurors solely on the basis of a presumed group
bias violates both the state and federal Constitutions. (Wheeler,
supra, 22 Cal.3d at pp. 276-277;
The prohibition of such challenges extends to gender bias. (People
v. Bonilla (2007) 41 Cal.4th 313, 341; J.E.B.
v. Ala. ex rel. T.B. (1994)
511 U.S. 127, 130-131.)
In reviewing a
inquiry: the first requires the
objecting party to make a prima facie showing of prohibited group bias; in the
second, the burden shifts to the party who exercised the peremptory challenge
to give a nondiscriminatory reason; and in the third step, which is the
relevant inquiry here, the court determines whether the objecting party has
proven purposeful discrimination. (
384; Purkett v. Elem (1995) 514 U.S.
765, 767.) “The ultimate burden of
persuasion regarding [discriminatory] motivation rests with, and never shifts
from, the opponent of the strike.
[Citation.] The three-step
procedure also applies to state constitutional claims. [Citations.]â€
(People v. Lenix (2008) 44
Cal.4th 602, 612-613 (Lenix).)
Here, women made up 80
percent of the panel of prospective jurors, and the prosecutor challenged 10
men and 8 women. Defendant made
3881, 9882, and 8535. The trial court
expressly found a prima facie case of purposeful discrimination as to four of
the prospective jurors, made no express finding as to one, but in all five
instances, the court required the prosecutor to articulate her reasons for the
challenge. The court found the
prosecutor had justified each challenge with a nondiscriminatory reason, and
denied all five motions. Under these
circumstances, appellate review “‘skip[s] to Batson’s third stage to evaluate the prosecutor’s reasons for
dismissing [the male] prospective jurors.’
[Citations.]†(People
v. Riccardi (2012) 54 Cal.4th 758, 786-787 (Riccardi).)
“‘[T]he critical question in
determining whether a prisoner has proved purposeful discrimination’ at a
third-stage inquiry ‘is the persuasiveness of the prosecutor’s justification
for his peremptory strike . . .’ [and] whether the trial court finds the
prosecutor’s [gender]-neutral explanations to be credible. Credibility can be measured by, among other
factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the
explanations are; and by whether the proffered rationale has some basis in
accepted trial strategy.’
[Citations.]†(
evaluation of the prosecutor’s state of mind based on demeanor and credibility
lies ‘peculiarly within a trial judge’s province.’â€â€™ [Citations.]
[¶] Accordingly, because the
trial court is ‘well positioned’ to ascertain the credibility of the
prosecutor’s explanations and a reviewing court only has transcripts at its
disposal, on appeal ‘“the trial court’s decision on the ultimate question of
discriminatory intent represents a finding of fact of the sort accorded great
deference on appeal†and will not be overturned unless clearly erroneous.’ [Citations.]â€
(Riccardi,
at pp. 339-340.)
With these principles in
mind, we turn to the five challenged male jurors and the prosecutor’s reasons
for dismissing them. We find no merit to
defendant’s contention that all or any one of the reasons was pretextual or
reflected a discriminatory purpose.
The
prosecutor stated that Juror No. 6789 was “obviously very strangeâ€; his
responses on the written questionnaire were eccentric and the questionnaire
speaks for itself; his oral responses appeared to be an attempt to be funny,
and he could not give a straight answer.
Defendant disagrees, finding Juror No. 6789’s responses to be
straightforward and sober. Defendant
does not set forth what responses she finds to be straightforward or serious,
and does not contend that the absence of the questionnaires from the appellate
record prejudiced her ability to meet this issue. Further, defendant did not dispute below that
Juror No. 6789 appeared to be attempting humor.
For these reasons, we must accept the prosecutor’s characterization of
the prospective juror’s demeanor and her representation as to the content of
questionnaires. (See
970.)
Moreover, the record does
show that Juror No. 6789 may not have taken the questions seriously. For example, in response to the prosecutor’s
question whether he knew children or had ever worked with children, Juror No.
6789 replied, “Not in the manner of this question.†In addition, when the trial court was
reviewing questionnaires it noted that in answering the question whether he would
follow the law even if he disagreed with it, Juror No. 6789 replied, “I guess
if I have to.â€
The
prosecutor explained that Juror No. 6360 had no children or any experience with
children and did not know whether he ever wanted to have children. Defendant contends that this was not a
sufficient reason because Juror No. 6360 was “devoid of biasâ€; however,
defendant does not contend that the prosecutor was required to show cause for
dismissing the juror with a peremptory challenge. In fact, “[t]he justification need not support
a challenge for cause, and even a ‘trivial’ reason, if genuine and neutral,
will suffice. [Citations.]†(People
v. Arias (1996) 13 Cal.4th 92, 136.)
Again,
the prosecutor’s stated reason for rejecting this juror was that he had no
children and little experience with children.
The prosecutor explained that it was her intent to eliminate jurors
without experience with children. She
also stated that this prospective juror gave a “wise ass answer to No. 17†and
slouched in the jury box. The court
agreed, commenting that Juror No. 3881 gave a flippant and sarcastic
explanation of why he did not have children, when he wrote, “I like to use
protection.†Defendant does not explain
why the prosecutor’s reasons were invalid and cites no authority in support.
Explaining her challenge to Juror No. 9882, the
prosecutor noted that the prospective juror wore inappropriate clothing to
court: jeans and a “chintzyâ€
T-shirt. The prosecutor also rejected
him due to his constant twitching. The
court observed that Juror No. 9882 was constantly moving his legs, did not sit
still, and appeared to be under the influence of a stimulant. The court also noted that Juror No. 9882 sat
in the back corner of the courtroom wearing a purple watch cap with his juror
badge attached to the cap. When asked to
remove the cap, he displayed “a little bit of an attitude.â€
Defendant
contends that the prosecutor’s reason was insufficient because it was based
solely on the prospective juror’s demeanor.
On the contrary, so long as the prosecutor’s reasons are genuine and
neutral, “[a] prospective juror may be excused based upon facial expressions,
gestures, hunches, and even for arbitrary or idiosyncratic reasons. [Citations.]â€
(Lenix, supra, 44 Cal.4th at p. 613.)
The authorities on which defendant relies did not hold otherwise; in
those cases the prosecutor’s reasoning was so lacking in detail as to be no
reason at all. (See People v. Allen (2004)
115 Cal.App.4th 542, 551-553 [“her demeanor†without more]; People v. Turner
(1986) 42 Cal.3d 711, 725 [“something in her work†without more]; and McClain
v. Prunty (9th Cir. 2000) 217 F.3d 1209, 1223 [elbow on her chair].) Here, there was ample detail to support a
genuine, gender-neutral reason to excuse the prospective juror.
The
prosecutor excused Juror No. 8535 because his wife was a forensic nurse and he
was not very articulate. The court
agreed that the prospective juror did not have a clear answer about his wife’s
work, such as whether she conducted sexual assault examinations or examined
child abuse victims. Defendant contends
that this challenge was improperly permitted because “[o]ne would think that a
judge in a criminal court and a prosecutor would know the meaning of forensics.â€
Defendant argues that an
“instructive†case is People v. Long
(2010) 189 Cal.App.4th 826, where the judgment was reversed because the
prosecutor’s demeanor-based reason was contradicted by the record. (Id.
at pp. 839, 847-848.) The application of
that case to Juror No. 8535 or any other prospective juror in this case is
unclear as the prosecutor’s reasons here were supported by the trial court’s
own observations.
Defendant
contends that the trial court’s rulings on the parties’ Wheeler motions demonstrated bias.
In particular, defendant contends that the court accepted the
prosecutor’s challenge to men without children, while rejecting defense
counsel’s attempt to eliminate jurors with work experience caring for children. We find no bias or inconsistent rulings in
the record. Defendant’s complaint
involves one prospective juror, Juror No. 8832, the fourth African-American
woman challenged by the defense. Defense
counsel explained that Juror No. 8832 had worked in a day care center for two
years, helping with homework, changing diapers, toilet training, and
transportation from school. He also
reported that defendant claimed Juror No. 8832 had given defendant “dirty
looks†throughout the proceedings.
The
trial court discredited the first reason, noting that defense counsel had
permitted non-African-American parents and teachers to remain on the
panel. The court rejected the second
justification, as defense counsel admitted he had not observed the alleged
dirty looks, and despite closely watching, the court had observed no looks
indicating animosity or ill will.
As defendant does not
contend otherwise, we assume the court’s reasoning was supported by substantial
evidence. (See People v. Alvarez (1996) 14 Cal.4th 155, 196.) In addition, defendant does not contend that
the ruling was error; she merely complains that it was not fair. We agree with respondent that the
circumstances, as well as a review of the entire record of voir dire
demonstrate that the trial court made “‘a sincere and reasoned effort’†to
evaluate the reasons offered by both sides, and the court’s conclusions are
therefore “‘entitled to deference on appeal.’â€
(Lenix, supra, 44 Cal.4th at p. 613.)
As defendant has made no showing of error or bias, we defer to the trial
court’s conclusions.
III. Massiah
Motion
Defendant contends that the trial court erred in denying her motion to
suppress the testimony of Doe regarding his conversations and correspondence
with defendant.
The motion was brought
pursuant to Massiah, supra, 377 U.S.
201, which held that surreptitious interrogation by a government agent may
interfere with a defendant’s Sixth Amendment right to counsel. “To prevail on a Massiah
claim, a defendant must show that the police and the informant took some
action, beyond merely listening, that was designed deliberately to elicit
incriminating remarks. [Citations.] ‘Specifically, the evidence must establish
that the informant (1) was acting as a government agent, i.e., under the
direction of the government pursuant to a preexisting arrangement, with the
expectation of some resulting benefit or advantage, and (2) deliberately
elicited incriminating statements.’
[Citation.]†(
Cal.4th 1, 67.)
“Whether to allow an
informant’s testimony is ‘an essentially factual question, and we review it on
a deferential standard.’
[Citation.]†(
1223, 1247-1248.) We thus defer to the
trial court’s factual findings if supported by substantial evidence. (People
v. Wilson (2005) 36 Cal.4th 309,
345.) As in any substantial evidence
review, we examine the record in light most favorable to the trial court’s
ruling. (See People v. Carpenter (1999) 21 Cal.4th 1016, 1046.)
The trial court found no
government involvement in Doe’s discussions with defendant when their proximity
on the custody bus was coincidental.
However, after the time detectives arranged to have Doe deliberately
placed near defendant the conversations between them were deliberately arranged
and thus excluded. The court thus ruled
that the information Doe obtained during those early conversations was
admissible, including defendant’s unsolicited statements which Doe relayed to
Sergeant Nava in an interview recorded on February 24, 2010.
Defendant contends that Doe
was a government agent from the time of his first conversation with her on the
custody bus, and that the agency relationship was either express or implied by
Doe’s preextisting relationship with law enforcement officers other than those
involved in the investigation of this case.
She thus contends that all conversations with Doe should have been
suppressed.
A preexisting arrangement
may be inferred from a prior working relationship with law enforcement;
however, “[o]nce the defendant establishes ‘a preexisting arrangement,’ the
‘defendant must demonstrate that the police and their informant took some
action, beyond merely listening, that was designed deliberately to elicit
incriminating remarks.’
[Citation.]†(
916-818; United States v. Henry
(1980) 447 U.S. 264, 266-268.) Thus, “a
Sixth Amendment violation occurs when the government intentionally creates or
knowingly exploits a situation likely to induce the defendant to make
incriminating statements without the assistance of counsel, but not when the
government obtains such statements through happenstance or luck. [Citations.]â€
(People v. Dement (2011) 53
Cal.4th 1, 33-34 (Dement).)
To determine whether Doe was
a government informant, the trial court conducted a hearing outside the jury’s
presence, taking the testimony of Doe, Deputy Alan Sims (Doe’s jailer or
“module officer†in the county jail), Sergeant Nava, and Deputy District
Attorney Theodore
Swanson (Doe’s prosecutor) (Swanson).
The court also reviewed recorded interviews of Doe, including an
interview conducted by Sergeant Nava and another detective on February 24,
2010.
Defendant argues that the
agency relationship was established with Sergeant Nava’s statement to Doe that
he would be an agent with a badge. The
badge statement was made during Doe’s February 2010 recorded interview by
Sergeant Nava and another detective.
Sergeant Nava testified at the hearing on the Massiah motion that it was a joke.
Indeed, the humor is obvious:
“Detective No. 1†told Doe there were guidelines they were required to
follow, and when Doe suggested ways in which he could elicit information from
defendant, the following colloquy ensued:
“Det.
No. 2: Okay. ‘Cause this is the problem that we would
have. Because now obviously you’re gonna
become our agent is what it is.
“[Doe]: Do I get a badge?
“Det.
No. 1: You want one of them gold sticker
ones?â€
Substantial evidence
supports the trial court’s finding that Doe was not a government agent under an
express or implied arrangement with law enforcement prior to the time he was
deliberately placed near defendant on the bus or in lockup. Doe had been in jail since July 2008, as his
first trial ended in a hung jury and while he was awaiting his second
trial. Doe was in protective custody and
was guarded by Deputy Sims almost daily.
Sometime prior to September 2009, Doe met defendant when they
coincidentally rode the bus together from jail to the courthouse. In September 2009, defendant began sending
Doe letters. In October 2009, after
several conversations with defendant in which she gave conflicting stories, Doe
informed Deputy Sims that he had information about defendant and asked Deputy
Sims to contact homicide detectives.
Sergeant Nava received approval from the office of the district attorney
sometime in December 2009 to use Doe’s information. Sometime after that, Doe was deliberately
placed near defendant on the bus and in lockup, while he had a recorder in his
pocket.
Deputy Sims testified that
Doe did not ask for anything in return for the information. When Deputy Sims told Doe that he could not
offer him anything or make promises, Doe said he felt compelled to do the right
thing. Sergeant Nava and Doe both
testified that Doe never requested a deal or leniency in his pending case, was
never promised any benefit, was not threatened or instructed, other than to be
told not to ask defendant any questions.
Swanson testified that when
Doe’s case was called for a second trial, the parties negotiated a plea
agreement.
| Description | Defendant and appellant Stacy Marie Barker (defendant) appeals from the judgment entered upon her conviction of murder and related crimes. Defendant contends that the trial court erred in denying her motion for a change of venue, her Batson/Wheeler motion,[1] and her Massiah motion.[2] She also contends that the trial court unduly restricted cross-examination, that evidentiary rulings and instructional error deprived her of a fair trial and due process, that her conviction of first degree murder was not supported by substantial evidence, and that cumulative error deprived her of a fair trial. In addition, defendant asks that we review the in camera proceedings held pursuant to her Pitchess motion.[3] |
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