P. v. Bell

Filed 9/19/07 P. v. Bell CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Allie James Bell appeals his jury convictions for first degree murder with special circumstances, and attempted robbery. He argues that one of the trial witnesses identified him as a result of a stationhouse lineup that was impermissibly suggestive, and that he was denied his right to confront the witness because the court excluded certain impeachment evidence bearing on credibility. We disagree, and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Levar Craft was killed by gunshot wounds to his back and the back of his head on February 6, 1999, at about 9:30 p.m.^[1] Crafts girlfriend, Angela Dossman, told police that a man she knew only as Jimmy shot Craft while trying to rob him.

Dossman testified that she and Craft were in Crafts car when Crafts phone and pager went off. Craft drove to Dover Villa where he said he was going to meet his cousin. When they arrived, one of two men standing outside got into the rear seat of Crafts car. Dossman heard Craft tell the man that he did not have what the man wanted. When the man in the back seat opened the door to exit the car, the interior light went on, and Dossman looked at the man and recognized him as Jimmy.^[2] She identified defendant as that man.

As defendant got out of the car, he told Craft, Break yourself. Give me everything you got, and pointed a gun at Crafts head. Craft replied, You dont have to do this. You can have everything. As Craft stepped out of the car, several shots were fired. Dossman panicked, moved into the driver seat, and drove away. She heard more gunfire, as Craft lay on the street.

Dossman flagged down a patrol car that was responding to a call regarding a shooting at Villa Circle. Hysterical and crying, she told the officer that her boyfriend was just shot by a man named Jimmy. Dossman described Jimmy as dark-skinned, skinny, with short hair. Later that night, Dossman was shown three photographic lineups at the police station, but made no identifications. A couple of days later she was shown a fourth array that included defendants photo and she immediately identified him. Dossman testified that she had no doubt that defendant was the one who killed Craft.

David Welch heard from his stepson that there was shooting out in the street. He also heard shots, and came out of his nearby condominium. Welch saw an African-American man pointing a gun at the street, where a body was lying on the ground. The man seemed to look at Welch, turned, and ran away. Welch described the man to police, and told them he could identify him if he saw him again.^[3] Welch later identified defendant as the gunman at a live lineup, and in court. On defense counsels motion, Welch was shown a six-person live lineup approximately 17 months after the shooting, and identified defendant as the gunman, after recognizing his left profile. After the lineup, Welch said that on a scale of one-to-ten, his certainty about the identification was a nine. During the first trial, he said he was 80 percent sure.

Defendant was arrested in San Bernardino in March 2000, approximately a year after the killing, when he was stopped for walking with an open container of alcohol. He first gave police two false names and birth dates. But after he identified himself he heard the police dispatcher say, Subject Allie James Bell is wanted for PC 187, warrant out of county. Defendant told the arresting officer, Thats not my name. Thats my cousins name. I lied to you again. Defendant also signed a false name on one of the booking forms. Defendant was convicted of murder and attempted robbery but the convictions were reversed on appeal due to instructional error. (People v. Bell (2004) 118 Cal.App.4th 249.)

On retrial, defendant moved unsuccessfully to exclude Welchs identification testimony. He also attempted to discredit the testimony of eyewitnesses Welch and Dossman, and elicited testimony on cross-examination regarding their prior convictions. Welch had a conviction for child abuse, and Dossman, a conviction for prostitution.^[4] Defendant presented expert testimony regarding the unreliability of eyewitness testimony. Defendant also called his cousins brother, Johnny Harper, as an alibi witness who testified defendant was in San Bernardino on Harpers birthday, March 18, 1999, but Harper did not know if defendant was in San Bernardino on February 6, 1999, the night Craft was killed. Defendant produced the testimony of a 12-year-old girl who gave conflicting reports on whether she told police that she saw someone other than the gunman. Another neighbor, who was a friend of defendants, testified that he saw Craft argue with a man early in the morning on the day of the shooting, and he last saw defendant three or four weeks before the shooting.

The jury convicted defendant of first degree murder with special circumstances, and attempted robbery.^[5] The jury found true the allegations that defendant personally used a firearm. Defendant was sentenced to a term of life in prison without possibility of parole, plus a 10-year enhancement for personal use of a firearm. The sentence on the attempted robbery conviction was stayed. He timely appealed.^[6]

DISCUSSION

A. The Lineup

Defendant argues that his in-court identification by witness David Welch was unreliable because the lineup at which he was identified by Welch was unduly suggestive. We disagree.

Defendant moved in limine to exclude Welchs identification on the grounds that defendants skin was darker than the other African-American men in the lineup, and the court considered the motion in an evidentiary hearing pursuant to Evidence Code section 402. At the request of defense counsel, the court took judicial notice of testimony in the first trial, given by Welch and defendants former trial counsel at the evidentiary hearing challenging the fairness of the lineup. The court also considered Welchs live testimony, a declaration by the deputy district attorney who was present at the lineup, the written admonitions given to Welch before the lineup, a portion of a police report from the night of the crime, and photos of the lineup. The court concluded the lineup was not unduly suggestive and did not violate defendants right to due process, and denied the motion in limine.

Generally, a pretrial procedure will only be deemed unfair if it suggests in advance of a witnesss identification the identity of the person suspected by the police. [Citation.] However, there is no requirement that a defendant in a lineup, either in person or by photo, be surrounded by others nearly identical in appearance. (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.)

Defendant bore the burden of showing an unreliable identification procedure. [Citation.] The issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary [citation]; and if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witnesss degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation [citation]. If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable. [Citation.] In other words, [i]f we find that a challenged procedure is not impermissibly suggestive, our inquiry into the due process claim ends.  (People v. Ochoa (1998) 19 Cal.4th 353, 412; see also Neil v. Biggers (1972) 409 U.S. 188, 199-200.) The trial court concluded the lineup was not unduly suggestive. We find no error under a standard of de novo review. (See Ochoa, supra, at p. 413 [standard of review for a claim of undue suggestiveness remains unsettled].)

The lineup was conducted by court order, at the request of and before defense counsel, whose investigator helped to position the individuals involved before Welch viewed the lineup. Defense counsel did not object to the lineup identification procedure, but later testified that the other men in the lineup were not anywhere near the color of [defendant, who was] one of the darkest African Americans [counsel had] ever seen. There were essentially four light-skinned [b]lacks, one medium-skinned [b]lack[,] and he stood out like the proverbial sore thumb.^[7] The deputy district attorney who was present at the lineup, and who identified herself as African-American, stated in a declaration that defendant was the darkest skinned male in the lineup. The police officer who conducted the lineup indicated that the lineup was appropriate in terms of height, weight, hair, and facial hair, and told the prosecutor that he couldnt indicate when, if ever, hed have participants who were similar to the defendants height, weight, hair, and facial hair and who [had] his skin color.^[8]

At the evidentiary hearing Welch testified that he stepped outside into his carport after he heard gunshots. He saw an African-American male approximately 10 to 15 or 20 feet away from him holding a gun.^[9] The area was illuminated by Welchs porch light, additional lighting in the carport, street lamps, lighting from the washer/dryer area and the other carports, and another nearby light fixture. Nothing blocked Welchs view, and while it may have been a tad bit misty, it did not rain until later that evening.^[10]

Welch looked at the gunman for 15 to 30 seconds^[11], and saw a [b]lack male wearing a black beanie cap or watch cap, . . . a . . . gray flannel checkered jacket, blue jeans, and he was pointing a gun towards the street so that I would see his left profile. His complexion was darker. Welch described the man as between five-eight and six foot, and 160 to 200 pounds, and characterized him as thin. He was approximately 18 to mid-20s in age. The man held a stainless steel automatic gun that looked to Welch like a .45 caliber but he could not be certain that it was. Welch told the police that he could identify the man if he saw him again. The court received a supplemental police report that stated Welch told an officer at the scene that the gunman was an African-American male, 18 to 19 years old, six feet tall, weighing 150 pounds, with a dark complexion and slim build. Later that evening, Welch told a detective at the police station that the gunman was a [b]lack male with a black or blue watch cap, dark complexion, almost about six foot, probably weighing about 150 pounds. He was pointing a .45 towards . . . the vicinity of the victim.^[12]

Welch was admonished before he viewed the lineup on July 31, 2000.^[13] Defendants expert stated that such admonitions were an important part of a fair, valid and reliable [eyewitness identification procedure]. Welch first viewed the individuals facing towards him, and did not immediately identify defendant. It was only after individuals in the lineup turned and presented their left profile view that Welch identified defendant.

Although defendant may have had the darkest complexion in the lineup, the evidence does not support defendants argument that this made the lineup unduly suggestive. Welch said when he chose defendant that he did so because he did remember that side-view; also [he] remember[ed] the person; and . . . [his] gut feeling also said it too. When he viewed the lineup, Welch did not immediately identify defendant, and it was some time before he selected defendant once he had a look at defendants left profile.

In the evidentiary hearing Welch testified that he recognized defendant because of his facial features . . . the distinctive feature . . . from the left profile. When asked after the lineup how sure he was, on a scale of one to 10, Welch said nine[,] based on the conditions were not met of that same night, the clothing was not the same, and obviously there was not a gun in his hand at that time as well.^[14] Welch also identified defendant in court as the man he saw outside his home on the night of the killing.

The court denied defendants motion to exclude Welchs identification, and observed that defendant had counsel present at the lineup and Welch was admonished that he was not obliged to identify anyone and that it was just as important to exonerate the innocent as to identify a suspect. The court observed that everyone in the lineup was African-American, that they were not disparate in height, and that Welch recognized defendant after viewing his profile. While Welch did not observe the suspect for an extended time on the night of the robbery, he told police then that he would be able to identify the suspect if he ever saw him again.

The court concluded: I dont think it was just the fact that a dark man was placed in a lineup that he picked the darkest person and that it was unnecessarily or unduly suggestive or a violation of his due process rights. I totally agree it could have been done better. But I think it does not cause this Court or any Court . . . to say that it is unconstitutional and should not be exhibited to the jury.

Defendant has not shown that the trial courts ruling was erroneous, or that his dark complexion in itself rendered the lineup unduly suggestive. (See People v. Phan (1993) 14 Cal.App.4th 1453, 1461, quoting People v. DeSantis (1992) 2 Cal.4th 1198, 1222 [ Defendant bears the burden of showing unfairness as a demonstrable reality, not just speculation ]; see also People v. Guillebeau (1980) 107 Cal.App.3d 531, 557 [While in the six-picture color photo lineup appellant was darker complected than the other [African-Americans], this does not by itself render the identification unduly suggestive especially in light of the fact that during that procedure the officer advised [the witness] that her assailant might not be among the pictures at all].)^[15]

Because human beings do not look exactly alike, differences are inevitable. The question is whether anything caused defendant to stand out from the others in a way that would suggest the witness should select him. (People v. Carpenter (1997) 15 Cal.4th 312, 367; see also People v. Johnson (1992) 3 Cal.4th 1183, 1217.) The circumstances here indicate that Welch selected defendant at the lineup based on his profile, not his complexion, and the lineup was not unduly suggestive.^[16] (See People v. Holt (1972) 28 Cal.App.3d 343, 350, fn. 2 [lineup not unduly suggestive when the defendants distinctive characteristic was not relied on by the identifying witness]; People v. Faulkner (1972) 28 Cal.App.3d 384, 392 [disparity in height between the defendant and others in lineup did not play a significant role in the identification procedure].) Review of the photographs of the lineup also supports the trial courts conclusion that the lineup was not unduly suggestive. Accordingly, we need not go on . . . to determine whether the identification itself was nevertheless reliable under the totality of the circumstances.^[17] (Johnson, supra, at p. 1218; see also People v.Ochoa, supra, 19 Cal.4th at p. 412.)

Defendant had an opportunity to attempt to cross-examine Welch, to argue to the jury that his identification was not worthy of credence, and to present expert testimony on the vagaries of eyewitness identification, and the trial court did not err when it denied defendants motion to exclude Welchs eyewitness identification. (See People v.Brandon, supra, 32 Cal.App.4th at p. 1052 [Based on the totality of the circumstances, we conclude [defendant] has not met his burden of proving the . . . lineup was unfair and unduly suggestive].)

B. Proposed Witness Impeachment

Defendant argues that his right to confront adverse witnesses was violated when the trial court excluded facts underlying a child abuse conviction used to impeach Welchs testimony. We conclude the court did not abuse its discretion when it excluded the evidence under Evidence Code section 352. (See People v. Hart (1999) 20 Cal.4th 546, 606-607.)

After defendants first trial, Welch pled guilty to misdemeanor corporal punishment on a child, and was placed on probation, for hitting his seven-year-old son with a wire hanger, and causing welts. The prosecutor stipulated that Welch was convicted of a crime of moral turpitude, and moved in limine to limit defense impeachment to only the fact of the conviction. Defendant sought to question Welch about his use of duct tape to secure the childs hands and feet to the legs of a stool before he hit him. The prosecutor argued such questions were inappropriate because they would inflame the jury. The court allowed defense counsel to ask Welch whether he hit his child with a coat hanger, but excluded, as too prejudicial under Evidence Code section 352, any mention of taping the child to the stool.^[18]

Defendant argues that the excluded facts were probative of Welchs moral turpitude, and the jury was entitled to the information to assess Welchs credibility.^[19] Defendant relies on Wheeler, where the court held: Misconduct involving moral turpitude may suggest a willingness to lie [citations], and this inference is not limited to conduct which resulted in a felony conviction. (People v. Wheeler (1992) 4 Cal.4th 284, 295-296.) But Wheeler also held that such evidence is subject to the courts discretion, under Evidence Code section 352, to exclude it when its probative value is substantially outweighed by its potential for prejudice, confusion, or undue consumption of time. (Wheeler, supra, at pp. 296-297.)

The court here allowed defendant to inquire about Welchs conduct when he hit his child with a hanger, and injured him. Defendant has not shown it was an abuse of discretion to exclude other details of the incident on the basis that they would unduly inflame the jury, and were substantially more prejudicial than probative of Welchs veracity. (See Delaware v. Van Arsdall (1986) 475 U.S. 673, 679-680 [trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination]; People v. Crittenden (1994) 9 Cal.4th 83, 134 [We have described the prejudice referred to in Evidence Code section 352 as characterizing evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value]; People v. Branch (2001) 91 Cal.App.4th 274, 286 [ evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors emotional reaction ]; see also People v. Chatman (2006) 38 Cal.4th 344, 373 [ courts may and should consider with particular care whether the admission of [impeachment evidence other than felony convictions] might involve undue time, confusion, or prejudice which outweighs its probative value ].) Defendant has not shown that the courts evidentiary ruling was arbitrary, whimsical, or capricious as a matter of law. (People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1614.)^[20]

DISPOSITION

The judgment is affirmed.

_________________________

Siggins, J.

We concur:

_________________________

McGuiness, P.J.

_________________________

Horner, J.^*

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.

^[1] Police collected casings and bullets at the scene and from Crafts car and person, which were determined to be from a .32 caliber semi-automatic gun that was never located.

^[2] Dossman had seen Jimmy at her sisters house, around Dover Villa, and at her own house a few days earlier. She had known him for three or four years, but did not know his last name when she first spoke to police.

^[3] Welch described the gunman as an African-American male, about 18 or 19 years old, six feet tall, 150 pounds, of dark complexion, with a slim build.

^[4] Dossman also admitted that she gave a false name to police in 1994 and again in December 2004.

^[5] The jury retired to deliberate at 3:00 p.m. on May 5, 2005. It returned its verdicts at 11:15 a.m. the next day.

^[6] On April 4, 2007, we granted the Peoples unopposed request for judicial notice of portions of the reporters transcript from defendants first trial, which are part of the record because they were also judicially noticed during defendants second trial.

^[7] Defense counsel also testified the deputy district attorney had no trouble understanding what the problem was, but the witness was available for a limited period of time, and it did not appear that different individuals could be substituted into the lineup on that day. Welch was in the Navy, and returned from duty specially to view the lineup.

^[8] Defendant does not argue that the other participants in the lineup were dissimilar to him in any respect other than skin tone. (Cf. People v. Brandon, supra, 32 Cal.App.4th at p. 1050.)

^[9] At the evidentiary hearing during defendants first trial, Welch estimated the gunman was approximately 25 to 30 feet away.

^[10] At the evidentiary hearing in the first trial, Welch agreed the weather was cloudy and overcast, possibly drizzling . . . a little bit. Defendant points to the testimony of two other trial witnesses that it was pouring down rain around the time of the shooting. We review the correctness of the trial courts ruling at the time it was made, however, and not by reference to evidence produced at a later date. (People v. Welch (1999) 20 Cal.4th 701, 739.)

^[11] During the first trial, Welch estimated he viewed the gunman for approximately 30 seconds. During cross-examination at the second trial Welch testified that the time he observed the gunman was probably shorter than 10 seconds, but that testimony was not before the trial court at the time it ruled on defendants motion to exclude the identification.

^[12] At the evidentiary hearing during the first trial, Welch said the man was taller than me, about six foot. . . . Not heavyset, but a little wiry. Welch also said he was dark-skinned, and agreed he was very dark-complected. Welch estimated his age as between 18 and about 20s, mid-20s and he told the police the man was holding a .45 caliber gun, pointed towards the victim. Welch told a detective that he was not sure about the identification he made at the lineup until the individuals turned and he could see their profiles.

^[13] The admonition that Welch received, and initialed, included the following: 1.  The fact you are looking at a live lineup should not influence your judgment; [] 2.  You should not conclude or guess that the person(s) who committed the crime is in the lineup; [] 3. You are not under any obligation to identify anyone; [] 4. It is as important to exonerate the innocent as it is to identify a suspect; [] 5. Examine each person carefully before reaching a decision; [] . . . [] 7. If you do not see the person(s) who committed the crime, do not mark any of the figures; [] 8. If you believe the persons(s) who committed the crime is in the lineup, but you are not positively sure, place a ?. . . . After viewing the lineup for approximately two to three minutes, Welch identified defendant.

^[14] Defendant points to Welchs trial testimony when Welch admitted that he testified at defendants first trial that he was about 80 percent certain of his identification of defendant during the lineup, but defendant does not claim Welch made such an inconsistent statement at the evidentiary hearing.

^[15] Defendant seeks to distinguish Guillebeau because it involved a home invasion robbery where the victim had an extended opportunity to observe her assailant. But the courts discussion of the suggestiveness of the lineup is not confined to those facts. And while defendants briefs identify Welch as [w]hite, defendant does not support that statement with a cite to the record, nor does he explain its relevance. Defendants expert witness testified that cross-racial identification makes people less accurate, but also stated: Does that mean its impossible to identify somebody of another race, clearly not.

^[16] Defendant cites United States v. Wade (1967) 388 U.S. 218 and argues the other participants in [defendants] lineup were grossly dissimilar in appearance to him. In that case, the court decided that the absence of defense counsel during a pretrial lineup violated the Sixth Amendment. The court referred to various instances of suggestive procedures mentioned in state reports. (Id. at pp. 232-233, 236-237.) But the state cases cited in Wade do not support defendants argument and are factually dissimilar.

^[17] But even assuming the lineup here were to be found unduly suggestive, we disagree with defendant that the resulting identification was unreliable when considered with respect to the factors identified in Neil v. Biggers, including the opportunity of the witness to view the criminal at the time of the crime, the witness[s] degree of attention, the accuracy of the witness[s] prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. (Neil v. Biggers, supra, 409 U.S. at pp. 199-200.)

^[18] On cross-examination, defense counsel asked Welch, On February 28th, 2003, you had the occasion to take your seven-year-old stepson bent over a stool and whip him with a coat hanger, didnt you? Welch answered: Not my stepson. I spanked my son.

^[19] Defendant contends Welchs conduct also constituted a separate crime of moral turpitudefalse imprisonment effected by violence. He argues the excluded details were more probative of Welchs credibility than the evidence of corporal punishment admitted by the court, because the kind of corporal punishment employed by Welch is fairly common in the United States. We do not find this logic compelling, and defendants own characterization of the excluded evidence as lurid supports the trial courts ruling.

^[20] In his opening brief, defendant also argues that the court erred when it instructed the jury that it could consider the false identification he provided police when they arrested him as tending to show consciousness of guilt, and that the cumulative errors in this case require reversal. He does not renew those arguments in his reply brief, nor do we find them meritorious.

^*Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.