P. v.
Filed 9/12/13 P. v. Davis CA1/2
Opinion following remand from 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opinion has not been certified for publication or ordered published for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.
JOHN DAVIS,
Defendant and Appellant.
A120428
(San
Francisco County
Super. Ct. No. 190226)
INTRODUCTION
A
jury found John Davis guilty of murder
(Pen. Code, § 187
name="_ftnref1" title="">[1])
and also found true special circumstance allegations that the murder was
committed in the course of rape and burglary (§§ 190.2, subd. (a)(17)(C)
& (G)). Davis
was sentenced to life in prison without parole.
On
appeal, Davis contends the judgment must be reversed and a new trial ordered
because: (1) the jury conducted an
unauthorized experiment; (2) the trial court excluded scientific material
relevant to the prosecution’s DNA evidence; (3) the jury was told that Davis
exercised his Miranda
rights during a police interview; (4) the prosecutor misled the jury during
denied his constitutional right to confront witnesses against him.
In
a decision filed September 14, 2010, this court found that juror misconduct and multiple violations of Davis’s
constitutional right to confrontation required us to reverse the judgment and
remand this case for a new trial.
Thereafter, the People filed a petition for review and, on December 21, 2010, the California
Supreme Court granted the People’s petition but deferred taking further action
in this case pending consideration and disposition of cases already before the
court which involved the federal constitutional
v. Davis
(Dec. 21, 2010) 2010 Cal.
LEXIS 13302 (S187515).)
On
May 22, 2013, the Supreme Court issued another order transferring this case
back to this court with instructions to vacate our September 2010 decision and
to reconsider the cause in light of four cases:
Williams v. Illinois (2012)
___ U.S. ___ [132 S.Ct. 2221] (Williams);
People v. Lopez (2012) 55 Cal.4th 569
(Lopez); People v. Dungo (2012) 55 Cal.4th 608 (Dungo); and People v.
Rutterschmidt (2012) 55 Cal.4th 650 (Rutterschmidt). (People
v. Davis
(May 22, 2013) 2013 Cal.
LEXIS 4431 (S187515).)
The
four new cases we have been instructed to consider are relevant to only one of
the many claims of error advanced on appeal:
Davis’s contention that he
was denied his constitutional right to confront witnesses against him. Therefore, we adopt without change and
reaffirm in this opinion the parts of our September 2010 opinion that do not
pertain to Davis’s constitutional
right to confrontation. In the final
part of this opinion, we reconsider Davis’s
confrontation claim. As we will explain,
the 2012 cases listed above support the conclusion that Davis
was denied his constitutional right to confront witnesses against him.
II. STATEMENT OF FACTS
On
December 4, 1985, at
approximately 8:30 p.m., Bobby Adams
went to meet his girlfriend, Barbara Martz, at her home at 1510
25th Street in the Potrero Hill district of San
Francisco. Adams
found the front door to the house open and Martz lying dead on the floor
inside. Martz was nude and had been
stabbed and cut several times. The
police found a blood stained knife that had been taken from Martz’s kitchen on
a walkway between her house and the street.
An
autopsy was performed by a Dr. Duazo whose report stated that Martz died from
loss of blood due to multiple stab wounds.
According to the autopsy report, sperm were found in smears taken from
Martz’s vagina and perineal area.
Bruising on the victim’s arms and legs was consistent with a
struggle. Swabs with blood and sperm
recovered from Martz’s body were placed in a sealed envelope and stored in a
freezer at the San Francisco Medical Examiner laboratory.
In
July 1986, a teenager went into the basement of a public housing project
located at 1626 25th Street
in San Francisco, in search of his
younger relatives. In this underground
play area, which neighborhood kids referred to as the “shack,†the boy found
credit cards that belonged to Martz. He
turned them into the police and then showed the officers the shack, where they
recovered Martz’s purse and wallet.
B. The 2002 Investigation
In
2002, the Martz homicide file was assigned to San Francisco Police Investigator
James Spillane who reopened the case to determine if there was evidence that
could be submitted for DNA analysis.
Shortly thereafter, Spillane took possession of the envelope of evidence
collected during Martz’s autopsy from the San Francisco Medical Examiner’s
office.
1. The
2002 DNA Testing
In
March 2002, Dr. Cydne Holt, supervisor of the DNA section of the Forensic
Division of the San Francisco Police Department, received a lab request from
Spillane to analyze the Martz autopsy evidence.
From the vaginal swabs that were collected during the autopsy, Holt
generated a DNA profile of the contributor of the sperm sample (the DNA donor
profile).
Using
a process called differential extraction, Holt isolated a “clean†single-source
sperm cell fraction from the swabs. She
then used a procedure called polymerase chain reaction (PCR) to generate the
DNA donor profile by focusing on specific DNA locations on the cell
sample. Loci is a scientific term for a
specific location on a chromosome which contains short tandem repeat (STR)
strands of DNA that have been identified as useful for DNA profiling. In this case, Holt used the PCR method to (1)
locate STR strands at nine specific loci, (2) amplify just those areas, and (3)
assign a type to those areas by means of a computer program which then
generated a string of numbers that comprised the DNA profile.
In
June 2002, the DNA donor profile was loaded into the California State Combined
DNA Index System (CODIS) database and, a few months later, the computer
reported a match with a DNA sample from Davis
that had been loaded into the database as an administrative consequence of a
prior robbery and burglary conviction.
(See § 295, et seq.) Police
investigators used the database match to obtain a warrant pursuant to which
they collected a DNA sample from Davis
on October 10, 2002.
Bonnie
Cheng, a criminalist at the Forensic Division of the San Francisco Police
Department, used the PCR process to analyze Davis’s
DNA and develop his DNA profile. Cheng
concluded that Davis’s DNA profile
matched the DNA donor profile that Holt had generated from the autopsy sperm
sample at all nine loci.
2. The
December 2002 Interview
In
December 2002, Officer Spillane interviewed Davis who was in prison at the
time. Spillane told Davis
that he was looking into an old case and wanted to “rule people in or rule
people out as the suspects.†Davis
agreed to talk with Spillane and was read and waived his Miranda rights. In response
to questioning, Davis said that he
grew up in the Potrero Hill area of San Francisco,
that his address was 1710 25th Street
and that he had family who still lived there.
Using
Polaroid photographs for orientation, Spillane explained to Davis
that the police had found some property under the foundation of a building near
the building where Davis grew
up. He then showed Davis
pictures of Martz’s purse and wallet and asked if he had seen them before. Davis
responded that he had not. Spillane said
the items were found a long time ago and asked if there was any chance Davis
might have seen them. Davis
responded that “[i]t’s possible†and said that the wallet looked “kinda
familiar.†Davis
confirmed that, when he lived in that area, he and his friends used to go into
the underground areas of those buildings, that they would make forts out there,
and that they found all kinds of things under there, like syringes, beer cans,
knives, a gun, and that they once found a machete. Spillane asked if there was any chance that Davis
may have touched the purse or wallet that were depicted in the
photographs. At first, Davis
said he did not think so. But, then Davis
admitted that if he had found the wallet when he was a kid, he probably would
have opened it and that it was possible that happened.
Spillane
then showed Davis several pictures
of Martz’s building, both inside and out.
Davis said he recognized the
building but then repeatedly denied that he ever burglarized that house. Then Spillane showed Davis
several pictures of Martz and asked whether he had ever seen that woman
before. Davis
said he had not. When Spillane said that
Martz had lived in the house depicted in the other photographs, Davis
seemed surprised that a white woman lived in that neighborhood. Davis
repeatedly stated that he did not recognize the woman at all. Spillane asked if Davis
had had a conversation with the woman 17 years prior, in 1985, would he
remember it. Davis
said he did not know, but that she did not look familiar to him.
Spillane
then asked Davis several questions
about his sexual partners in 1985. At
one point, Davis said “What is this
all about?†to which Spillane responded:
“This woman lived in this house in 1985 and on December the 4th of that
year, she was raped and murdered in her home.â€
Spillane also said that the “problem†was that the semen from the rapist
had been “DNA tested†and that it matched Davis. Davis
responded “Oh hell no.â€
Spillane
shared his hypothesis that Davis
went into Martz’s house that day with the intent to do a burglary, that he was
surprised and scared when the woman came home, which was understandable, and
that he took the knife from her kitchen just to scare her so he could get
out. Spillane said he had to go to the
District Attorney, but that he wanted to first give Davis
a chance to tell his side of the story. Davis
said he did not have a side of the story because it wasn’t him and that was all
he could say. Davis
repeatedly stated that he did not rape anyone.
Spillane suggested that Davis
had been carrying a “kind of a poison†around with him, that he thought Davis
was remorseful and felt badly and that the woman’s family needed closure. Davis
responded: “I ain’t got no more to say
to you ‘til I can get an attorney, you know.
This is fucked up.â€
An
August 12, 2003,
three-count indictment charged Davis
with murder with special circumstances, rape and burglary. Shortly thereafter, the rape and burglary
charges were dismissed on the ground that the statute of limitations had
expired.
In
2005, Bonnie Cheng reanalyzed both the sperm-cell sample from the Martz autopsy
and Davis’s October 2002 DNA
sample. Again using the PCR method,
Cheng examined four additional STR strands in the samples so that the results
could be combined with the earlier test results to generate 13-locus DNA
profiles. Cheng then determined that the
13-locus donor profile and the 13-locus Davis
profile matched at all 13 locations.
A
jury trial commenced August 6, 2007. The Martz autopsy report was admitted into
evidence as a business record, although Dr. Duazo did not appear at trial. Dr. Amy Hart, the San Francisco Medical
Examiner at the time of trial, testified about the autopsy that Dr. Duazo
performed, about the evidence that was recovered and preserved during that autopsy
and about the victim’s injuries and cause of death.
Officer
Spillane testified about his December 2002 interview with Davis
and an audiotape recording of that interview was played for the jury. Thereafter, the prosecutor asked Spillane
several questions about the interview and his investigation of this case. During that questioning, Spillane stated
that, at some point “apart from the interview†that was played for the jury,
Davis reported that he lived at 1710 25th Street
during the time period in late 1985 to early January 1986.
Spillane
testified that 1620-1638 25th Street,
the complex where Martz’s purse and credit card were found, is located in
between Davis’s former residence at
1710 25th Street and
Martz’s former residence at 1510 25th Street. Spillane testified that he walked from the
former Davis residence to the
buildings where the property was recovered in approximately 70 seconds and from
there to the former Martz residence in 35-40 seconds, completing the entire
trip at a normal walking pace in “about just under two minutes.â€
Spillane
also testified that he obtained information about Davis’s
brothers as part of his investigation, but that he did not speak with them or
any of Davis’s family. Spillane confirmed that Davis
has four brothers, two older and two younger than him, and that they all used
their mother’s maiden name as their last name, which was not Davis.
During
the trial in this case, the court permitted the jury to ask questions of the
witnesses. At the conclusion of
Spillane’s testimony, a juror inquired whether Spillane had obtained a DNA
reference sample from anyone other than Davis. Spillane responded that he had not.
The
prosecution introduced its DNA evidence through the testimony of Dr. Holt who,
by that time, was the Director of the San Francisco Police Department’s
Forensic Services Division. Holt
testified about the DNA testing she performed in 2002 and also about the tests
that Bonnie Cheng conducted in 2002 and 2005.
Cheng did not testify at trial.
Holt told the jury that the 13-locus DNA donor profile and the 13-locus Davis
profile matched.
Holt
also testified that Bonnie Cheng had performed a statistical analysis which
established that the probability that a “random unrelated person†would by
chance possess the same male DNA profile detected on the sperm fractions
recovered during the autopsy was “one in seven quintillion for U.S. Caucasians,
one in 25 quadrillion for African-Americans, one in 52 quintillion for
California Hispanics, and one in 99 quintillion for the general Asian
population.â€
The
trial judge asked Holt the following question, which had been asked by a member
of the jury: “If Dr. Holt were able to
test Mr. Davis’ brother’s DNA, would she expect to see matches, and if so how,
approximately how many markers or loci?â€
Holt gave the following response:
“I can’t say absolute numbers for that.
I can say that the amount of similarity between siblings is expected to
be closer than between unrelated people.
I can say that the amount of similarity between full sibling, meaning
both biological parents are the same, would be higher than between siblings
where only one parent is shared.
[¶] And I don’t know particulars here necessarily, so I can’t say
the number that is likely. I mean those
could be estimated, but I haven’t done that type of statistical analysis in
this case.â€
The
jury began deliberations on August 17,
2007, and returned a verdict on August 27, finding Davis
guilty of murder and that both special circumstance allegations were true. The trial court denied a
to life in prison without parole.
III. DISCUSSION
1. Issue
Presented and Standard of Review
In
his motion for a new trial, Davis
argued, among other things, that the jury committed misconduct during
deliberations by using evidence from outside the record and the expertise of
one particular juror to calculate the likelihood that one of Davis’s
brothers matched the 13-locus DNA donor profile. In this court, Davis
contends that the lower court erred by denying him a new trial on this ground.
“The
trial court is vested with broad discretion to act upon a motion for new
trial. [Citation.] When the motion is based upon juror
misconduct, the reviewing court should accept the trial court’s factual
findings and credibility determinations if they are supported by substantial
evidence, but must exercise its independent judgment to determine whether any
misconduct was prejudicial.†(
809.)
In
the present case, it appears that the trial court did not make any factual
findings or credibility determinations.
Indeed, we have been unable to confirm that the court conducted a
hearing regarding the alleged misconduct before it denied the motion for new
trial. We do have before us, however,
pleadings and declarations relating to the juror misconduct motion, all of
which were filed under seal in the lower court and subsequently unsealed by order
of this court. We assume, absent
evidence or any contention to the contrary, that the trial court considered
these declarations in reaching its conclusion that no prejudicial misconduct
occurred.
2. The
Juror Declarations
Davis’s
evidence that an improper experiment was performed consisted of the declaration
of a juror we refer to herein as C.D.
C.D.
stated that “[a] number of jurors mentioned that they were troubled that no
calculation of the likelihood of a brother of John Davis being the source of
the sperm was made,†and that several jurors attempted to calculate that
likelihood, some of whom used their calculators. According to C.D., one juror shared his
opinion, which was based on his “own personal medical experience,†that
whatever the odds were that a brother was a match, “it was a very large
number.†This juror gave the others “a
lot of information about genetics that had not been discussed in trial.†The jury used this information and their own
personal experience to discuss “statistical experiments†that could be done to
address the concern of several jurors that there was no independent evidence
regarding the likelihood of a match with a brother.
C.D.
also stated that one juror calculated the odds of a brother being a match as one
in eight million and told the others that this was a conservative
estimate. According to C.D., “[i]n the
end, we chose the one-in-eight million calculation as the “best estimate we
could come up with for use in our deliberations.â€
In its opposition
to the new trial motion, the prosecution argued that “[a]lthough jurors did
estimations of the likelihood of a brother having the same DNA profile as
Defendant, these actions do not rise to the level of misconduct recognized by
the courts.†It reasoned that the jury
calculations were proper because they did not utilize extrinsic evidence but
based their estimates on evidence presented at trial. The prosecution attempted to support this
claim with declarations from several jurors.
All
of the jurors who submitted declarations in this case confirmed that the jury
spent time discussing the likelihood that one of Davis’s
brothers might share his DNA profile, although many downplayed the significance
of this issue and insisted that the calculations were based on the evidence
presented at trial.
Juror
P.F. disclosed in his declaration that he proposed a formula to the jury for
calculating the likelihood that a brother might have the same DNA profile as Davis. P.F.’s juror questionnaire, which is part of
the appellate record, reflects that he is a psychology professor with a medical
degree.
In
his declaration, P.F. stated that he used the “fact that we inherit one allele
from our mother and one allele from our father at each of the 13 locations†to
formulate the expression of “1/4 to the 13th power.†P.F. stated that he then “did simple
multiplication by hand in the jury deliberation room in front of my fellow
jurors (1/4 times 1/4 times 1/4 times 1/4 . . .).†P.F. recalled that he described his estimate
to other jurors as conservative, although he never referred to it as the best
estimate.
P.F
also explained that he proposed this formula after he failed to dissuade a
particular juror from speculating that if defendant had a brother, that brother
might have the same DNA profile. P.F.
stated that he “addressed this juror’s speculation using high school level
biology and high school level math to estimate for this juror the likelihood of
a hypothetical brother with the same mother and father as the defendant having
the same 13 loci profile as John Davis.â€
Other
jurors from whom the prosecution obtained declarations made statements to the
effect that the jury accepted P.F.’s formula as valid and that they used it to
calculate the likelihood of brothers with matching DNA. For example, juror J.A. stated that “we did a
numerical calculation based on the evidence at trial to estimate the chances of
a brother having the same DNA,†and that “several of us†did the calculation by
hand “after we realized that the calculators on our phones would not work for
this calculation.â€
Another
juror, N.L., stated: “Since no
statistical information was giving [sic] on the chances of two brothers
matching at all 13 locations, we used the trial testimony that a person
inherits one of their mother’s two alleles and one of their father’s two
alleles at each location. This gives a 1
in 4 chance that the brothers would have a match at any one location. We then multiplied that number to the 13th
power since there were 13 locations tested.
I remember the result of the calculation being around either 1 in 8
million or 1 in 16 million. I do not
recall any juror using a calculator.â€
Some
jurors also acknowledged that one or two of the jurors shared specialized
knowledge during deliberations. Juror
P.S. stated that there was a doctor and a nurse on the jury, “but they did not
bring their independent knowledge to bear on the deliberations—other than
clarification of the evidence.†Juror
J.S. stated that “[t]here were jurors with specialized knowledge in various
fields that applied to the case. While
they did use their expertise to analyze certain evidence presented at trial, at
no time did any of the jurors express an opinion based on specialized
information obtained from outside sources alone.â€
“It
is not improper for a juror, regardless of his or her educational or employment
background, to express an opinion on a technical subject, so long as the
opinion is based on the evidence at trial.
Jurors’ views of the evidence, moreover, are necessarily informed by
their life experiences, including their education and professional work. A juror, however, should not discuss an
opinion explicitly based on specialized information obtained from outside
sources. Such injection of external
information in the form of a juror’s own claim to expertise or specialized
knowledge of a matter at issue is misconduct.
[Citations.]†(
(Malone).)
In
Malone, the court found that a juror
in a murder trial committed misconduct by expressing to her fellow jurors
“negative opinions on the reliability of petitioner's polygraph evidence, based
on her own professional study of psychology.â€
(Malone, supra, 12 Cal.4th at p. 963.)
The court acknowledged that statements by this juror which merely
reflected the evidence and argument presented at trial were “less egregious,â€
but nevertheless found that the juror’s assertion that her views were “drawn
from her own professional knowledge . . . was an improper injection
of extrajudicial specialized information into the deliberations.†(Id. at
p. 963, fn. 16.)
In
contrast to Malone, there was no
improper injection of extrajudicial specialized information into the jury
deliberations in Steele, supra, 27
Cal.4th at pages 1259, 1265-1267.
Steele was a death penalty
case in which appellant contended that four jurors with experience in the
military and in Vietnam
committed misconduct by offering their expertise to the other jurors. The Steele
court disagreed, finding that the views that were allegedly shared by the
jurors in question “were not contrary to, but came within the range of,
permissible interpretations†of the evidence presented at trial regarding
appellant’s military training and experience in Vietnam and its potential
effect on his crimes. (
The
Steele court reasoned that there was
extensive trial evidence pertaining to these issues, much of which was
“susceptible to various interpretations.â€
(Steele, supra, 27 Cal.4th at
p. 1266.) The court found that “[a]ll
the jurors, including those with relevant personal backgrounds, were entitled
to consider this evidence and express opinions regarding it.†(Ibid.) As the Steele
court explained, “it would be an impossibly high standard to permit these
jurors to express an opinion on this evidence without relying on, or
mentioning, their personal experience and background.†(Id.
at p. 1267.) The court also
acknowledged, however, that “[a] fine line exists between using one’s
background in analyzing the evidence, which is appropriate, even inevitable,
and injecting ‘an opinion explicitly based on specialized information obtained
from outside sources,’†which constitutes misconduct under Malone, supra, 12 Cal.4th at page 963. (Steele,
supra, 27 Cal.4th at p. 1266.)
Applying
these principles to the present case, we conclude misconduct occurred. There is no dispute that the jury performed a
calculation in order to estimate the likelihood of a DNA match among brothers. Furthermore, the evidence clearly shows that
the jurors used a formula to conduct this calculation that was not part of the
evidence presented at trial. That
formula was supplied to the jury by one of its members, juror P.F., who had specialized knowledge and
expressly identified himself as a specialist to his fellow jurors. Indeed, P.F. admitted that he shared his
formula with the other members of the jury for the express purpose of
dissuading them from “speculating†as to whether a brother might have
perpetrated these crimes. This was not
simply an interpretation of ambiguous evidence, as occurred in
evidence by a specialist.
The
People contend that there was no misconduct because the jury relied solely on
the trial evidence and their own general knowledge to estimate the possibility
that one of Davis’s four brothers
shared his DNA profile. This contention
is simply not supported by the record before us. Several jurors, including, P.F., stated that
the jury used the trial evidence that a person inherits one of their mother’s
two alleles and one of their father’s two alleles at each loci. However, this particular piece of evidence
was not the formula that the jury used to calculate the likelihood that brothers’
DNA would match at the 13-loci that were tested in this case. That formula was supplied to the jury by one
of its members, not by a trial witness.
In
other words, in contrast to the situation in Steele, juror P.F. did not simply use his specialized knowledge to
interpret the trial evidence. Rather, he
used it to construct a formula that had no support in the trial record. His formula filled an evidentiary void that
was expressly acknowledged by the prosecution’s expert witness, Dr. Holt. As reflected in our foregoing factual summary,
Dr. Holt testified that it was possible to estimate the likelihood of a
matching DNA profile among brothers, but that she did not perform that analysis in this case.
“A
juror’s misconduct raises a presumption of prejudice, which may be rebutted by
proof no prejudice actually resulted.
[Citations.] ‘A judgment adverse
to a defendant in a criminal case must be reversed or vacated
“whenever . . . the court finds a substantial likelihood that the vote of one or more jurors was
influenced by exposure to prejudicial matter relating to the defendant or to
the case itself that was not part of the trial record on which the case was
submitted to the jury.â€
[Citations.] . . . [¶] “The ultimate issue of
influence on the juror is resolved by reference to the substantial likelihood
test, an objective standard. In effect,
the court must examine the extrajudicial material and then judge whether it is
inherently likely to have influenced the juror.†’ [Citation.]
(Malone, supra, 12 Cal.4th at
pp. 963-964.)
“ ‘Such
“prejudice analysis†is different from, and indeed less tolerant than,
“harmless-error analysis†for ordinary error at trial. The reason is as follows: Any deficiency that undermines the integrity
of a trial—which requires a proceeding at which the defendant, represented by
counsel, may present evidence and argument before an impartial judge and
jury—introduces the taint of fundamental unfairness and calls for reversal
without consideration of actual prejudice.
[Citation.] Such a deficiency is
threatened by jury misconduct. When the
misconduct in question supports a finding that there is a substantial
likelihood that at least one juror was impermissibly influenced to the
defendant’s detriment, we are compelled to conclude that the integrity of the
trial was undermined: under such circumstances, we cannot conclude that the
jury was impartial. By contrast, when the misconduct does not support such a
finding, we must hold it nonprejudicial.’
[Citations.]†(
The
Malone court found that the
prosecution rebutted a presumption of prejudice resulting from the fact that a
juror injected specialized knowledge regarding polygraph evidence into the
deliberations by “showing the externally derived information was substantially
the same as evidence and argument presented to the jury in court.†(12 Cal.4th at p. 964.) As the court explained, “Because [the
juror’s] assertions were substantially the same as evidence and argument
presented at trial, her error was much less egregious than similar misconduct
we have found warranted reversal.
[Citations]. Viewed in context of
the evidence at trial, the misconduct here does not support a finding that at
least one juror was improperly influenced to petitioner’s detriment. (Id. at
p. 965.)
In
the present case, the formula proposed by juror P.F. and adopted by the jury
during deliberations was not substantially the same as evidence presented at
trial. Rather, as discussed above, the
formula was proposed and adopted in order to fill an evidentiary void with
respect to an issue that the jurors expressly identified as relevant to their
deliberations. Furthermore, the juror
declarations compel the conclusion that at least one juror, and likely many
more than that, were improperly influenced by the misconduct to Davis’s
detriment.
The
People argue the misconduct that occurred in this case should be overlooked for
two reasons. First, they contend that
the entire matter was simply irrelevant.
The People reason that, since there was absolutely no evidence that a
brother was responsible for these crimes, the jury’s experiment could not have
prejudiced Davis. However, the evidence regarding Davis’s
brothers, though brief, was not irrelevant and it unquestionably had an impact on this jury. As reflected above, one juror asked Officer
Spillane whether other DNA profiles had been tested. There was also a question from a juror as to
whether the prosecution’s DNA expert had calculated the likelihood of a DNA
match among brothers. The prosecution’s
tactical decision not to explore or more fully address these issues at trial
certainly cannot be used to render them irrelevant.
Alternatively,
the People argue that Davis was not
prejudiced because the jury over-estimated the likelihood of a DNA match
between brothers and, thus, the unauthorized experiments inured to Davis’s
benefit. Not surprisingly, Davis’s
appellate counsel argues the opposite is true, i.e., that the jury
under-estimated the likelihood that brothers could having matching DNA.
As
we have already established, the trial record does not contain any evidence
regarding the likelihood that one of Davis’s
brothers matched his DNA. Nevertheless,
both parties spend significant time proposing and defending formulas for making
that calculation. At least Davis’s
appellate counsel attempts to ground his proposed formula in the record of
pre-trial proceedings pertaining to the DNA evidence, which is before us on
appeal. The People, by contrast, base
their analysis on scientific reports and theories that were never presented to
the lower court and that are not a part of the appellate record. For this reason, Davis
has moved to strike the People’s analysis from their appellate brief. The People attempt to justify their decision
to provide this court with what they characterize as “the correct formulae, and
variables to insert into those formulae†by pointing out that they provided
citations to the formulae and data “which are readily accessible as public,
published materials.â€
We
would be inclined to grant the motion to strike if not for the fact that the
competing formulas and analyses proposed by these parties on appeal reinforce
our conclusion that Davis was
prejudiced by the unauthorized jury experiment.
The parties’ lengthy and complex discussions undermine the People’s
efforts to characterize the jury’s unauthorized experiment as nothing more than
a high school level math problem. Like
appellate counsel on both sides of this case, the jury went outside the trial
record for an answer they believed was relevant to the question of guilt. The resulting prejudice to Davis
requires a reversal of this judgment.
B. Evidence Pertaining to the
Database
Davis
contends the trial court erred by excluding evidence of a report titled
“Arizona Nine Plus Locus Match Summary Report†(the Arizona Report).
Report
In
or around July 2005, Bicka Barlow, a deputy public defender in the San
Francisco Public Defender’s officer, filed a declaration in this case, seeking
issuance of an out-of-state subpoena. In
her declaration, Barlow explained that she had become aware that an employee of
the Convicted Offender Section of the Arizona Department of Public Safety had
discovered multiple instances in which a pair of individuals whose DNA samples
were included in the Arizona Database matched each other at nine of thirteen
loci. Barlow stated that she had
contacted that employee and requested that she “memorialize her findings†in a
letter. That request was declined. After consulting experts, Barlow had
concluded that the Arizona data
was relevant to this case because, among other things, it would “demonstrate
the fallibility of the statistical calculations†that were done by the San
Francisco Crime laboratory.
On
August 24, 2005, the Honorable Mary Morgan, judge of the San Francisco Superior
Court, issued a certificate for the production of out-of-state documents (see
§ 1334) requesting that a judge of the superior court for the State of
Arizona, Maricopa County, issue an order directing the custodian of records of
the Arizona Department of Public Safety, DNA Data Base Unit, to produce
documents in this case including “[r]ecords of any matches within the Arizona
state convicted offender database between two individuals of nine (9) or more
loci within the thirteen (13) loci tested using Profiler Plus and Cofiler kits
or the fifteen (15) locus Identifier kit.â€
On September 22, the Honorable James H. Keppel of the Maricopa County
Superior Court acted upon Judge Morgan’s Certificate by issuing an order to
show cause to the custodian of records of the Arizona Department of Public
Safety, Product Documents/DNA Database Unit.
The
custodian of records in Arizona
produced the Arizona Report to the defense in this case. Although characterized as a report, the
five-page document is a spread sheet of data unaccompanied by substantive
analysis or any written explanation. The
following statement appears at the bottom of each page of this report: “Prepared as a special report by court
order. This report is not generated for
or used by the Arizona Department of Public Safety Crime Laboratory for any
statistical analyses. This report is
property of the Arizona Department of Public Safety. Use of this document beyond the limitation of
the court order by Judge Keppel is not authorized.â€
b. The Discovery Motion
The
defense used the Arizona Report as support for a pre-trial motion to discover
the California database that
first identified Davis as a match
to the DNA donor profile. Bicka Barlow
testified on behalf of the defense at the discovery hearing. Barlow, who has a background in genetics,
identified herself as an attorney-consultant to the defense in this case. Barlow testified that the Arizona Report
showed that a study of the Arizona database of 65,000 people, produced 122
pairs of people who had DNA that matched at nine loci, 20 pairs of people who
matched at 10 loci, one pair of people who matched at 11 loci, and one pair,
who turned out to be siblings, who matched at 12 loci. Barlow testified that many experts in the
field believed that the Arizona Study cast doubt on the validity of the random
match probability methodology that was used in this case. She further testified that many experts
believed they would find a 13-loci match among unrelated individuals in the
California Database if they had access to it.
At the conclusion of the lengthy discovery proceeding, Judge Morgan
denied the defense motion to discover the California Database. That ruling is not at issue in this appeal.
Before
the prosecutor called Dr. Holt to testify, she moved to prohibit the defense
from questioning Holt about the Arizona Report.
She argued the report was irrelevant and unduly prejudicial under
Evidence Code section 352. The defense
maintained that the report was relevant because it undermined or at least
called into question the reliability of the so-called “product rule,†which was
used to calculate the statistical likelihood of a random match between Davis
and the DNA donor profile. The trial
court took the matter under submission and proceeded with the trial. Thereafter, the court interrupted Dr. Holt’s
trial testimony in order to conduct an Evidence Code section 402 hearing.
During
the section 402 hearing, defense counsel cross-examined Holt about the Arizona
Report outside the presence of the jury.
Counsel stated that he had sent Holt a copy of the report and asked
whether she had looked at it. Holt
responded that she had not. Holt
testified that she had heard of the Arizona Report, but that she had not seen
or read it and that she could not authenticate the document that defense
counsel showed her. During questioning
by the prosecutor, Holt testified that she was not aware of any study that
concluded the Arizona Report cast any doubt on the reliability of the “product
rule†methodology that was used to calculate the random match probability
statistics in this case. The defense
stipulated that the product rule was generally accepted in the scientific
community.
Defense
counsel then asked Holt to review the Arizona Report “between now and Monday
morning.†The prosecutor objected and
the trial court responded it would not “allow†that. The court explained: “As I indicated off the record, I think that
what you really need to do is to bring in your own expert. This witness has not reviewed, relied upon,
considered the information that you had asked her to. She did not, she is not basing her opinion on
it in any way. And in order to get this
testimony in, I believe that you’re gonna need to bring in your own
expert.â€
Thereafter,
the defense called its “investigator†in this case, Bicka Barlow, to testify as
an expert on the “intersection of the legal field and DNA evidence in the
courtroom . . . .â€
Barlow has a masters degree in genetics and developmental biology and a
law degree, and has previously been employed as a consultant expert in numerous
criminal cases. She does not purport to
be nor has she ever been qualified as an expert in the field of population
genetics as it relates to human forensic identification.
Barlow
testified that the Arizona Report consists of a “set of data†that can be and
has been analyzed by experts who conduct statistical interpretation of DNA data. She also testified that experts had concluded
that the Arizona Report undermines the established scientific procedures used
to calculate population frequency statistics for human forensic DNA profiles. Barlow admitted, however, that she was not an
expert in that area.
As
the trial day drew to a close, the court indicated that it was “not impressedâ€
by Barlow’s testimony thus far. Defense
counsel responded that his other expert was in Southern California
and that it would be impossible to have him in court by the following Monday
morning. Defense counsel suggested that
he could ask Barlow to communicate with the other expert and obtain a detailed
declaration from him. The court
responded that there would need to be an opportunity to cross-examine the
expert and the problem was that the defense had failed to lay a proper
foundation for the Report. Thereafter,
the defense elicited additional testimony from Barlow about the content of the
Arizona Report, but it did not produce another expert.
After
the matter was submitted, the trial court ruled that “the study is not relevant
in this particular case and any discussion or testimony through Ms. Holt,
particularly would only . . serve to confuse the jury, would constitute an
undue consumption of time and under [Evidence Code section] 352, it
will . . . not be referred to or provide the basis of any
questioning to Ms. Holt.†The court
reiterated that Dr. Holt had not referred to, considered or relied on the
Arizona Report in formulating her opinions and that the report had not
otherwise been established as a reliable publication. On its face, the court found, the document
appeared unreliable because it was prepared during the course of some other
litigation. Furthermore, the court found
it was inappropriate for Barlow to act as co-counsel, investigator and also an
expert witness in the same proceeding and that it would not give her testimony
much weight.
When
defense counsel argued that it should have wide attitude to cross-examine Holt,
the court responded that the defense was attempting to “boot strap†by getting
an irrelevant summary before the jury.
The court clarified that it would not prevent the defense from
presenting its own expert, but that it could not get the summary into evidence
through its examination of Dr. Holt.
The
day after Dr. Holt completed her trial testimony, the defense sought
clarification of the court’s ruling regarding the admissibility of the Arizona
Report. Outside the jury’s presence,
defense counsel stated that it was his understanding from an off-the-record
discussion with the court that the finding that the report was irrelevant would
“preclude the defense from bringing its own witness to affirmatively testify
regarding those matters,†and asked if
that was a “fair statement.†The court
responded: “I found based on what you
put before me at this time that it is irrelevant, that that particular study is
irrelevant.†The court also reiterated
that it was “not excluding you from presenting an expert witness.†It explained again that, based on the defense
presentation, the court concluded that the report was not relevant. It also reiterated that if defense counsel
believed it could change the court’s mind, it was free to try, outside the
presence of the jury.
The
following day, the defense filed a “Declaration of Dr. Laurence Mueller.†Mueller, a professor of Ecology and
Evolutionary Biology at the University
of California, Irvine,
stated that he was familiar with the Arizona Report. Mueller further stated that he had reviewed
documentation which led him to conclude that the Arizona Department of Public
Safety searched for DNA matches in its database by using the same 13 loci that
were used to test the evidence in the present case. Furthermore, Mueller stated he had no reason
to question the authenticity of the Arizona Report and that the report ‘is the
type of material that experts in this field generally rely upon.â€
Mueller
opined that the results of that study “are scientifically relevant to every
case in which DNA evidence is presented in conjunction with the standard Random
Match Probability (RMP) statistical analysis.â€
He also stated that the study undermined an essential underlying assumption
of the RMP methodology and assessment.
Mueller further stated that he had spoken with several “experts†who
agreed with him that the Arizona Report was relevant and useable for purposes
of statistical analysis.
During
a break in the trial proceedings, the trial court inquired whether defense
counsel wished to discuss the Mueller declaration which had been filed that
morning. Counsel stated: “I simply want to indicate as the Court knows
this witness is down in the Los Angeles
area. So I, given the Court’s rulings
and my previous statements, I wanted to make sure there was a complete record
as to what the basis for our requesting to bring this evidence in.â€
The
prosecutor objected to the declaration and requested that it not be admitted
into evidence on the ground that she had not had the opportunity to
cross-examine Mueller. Defense counsel
responded that he thought the proffer was “perfectly acceptable†under the
circumstances, explaining that “if Dr. Mueller were in San
Francisco we would have him come in. But given the Court’s ruling, it seemed
unlikely since the Court had indicated that the evidence was not relevant—if
the Court believes that this makes it relevant, then I will, we can proceed
from there.â€
The
matter was submitted and the trial court issued the following ruling: “The Court cannot accept this declaration for
the truth of matter asserted. It is
hearsay. There is no cross-examination
of the declarant. [¶] The Court did
review the document and has allowed the defense to file it to preserve any
issues if there is an appeal. And the
Court’s ruling does not change.â€
In
their appellate briefs, the parties spend significant time debating whether the
Arizona Report can properly be used to attack the validity of the statistical
methodology that was used in this case, a methodology which indisputably has
been generally accepted in the scientific community. We will not resolve this debate because
questions of relevance and admissibility simply cannot be answered in a vacuum. The question before us is not whether the
Arizona Report could be relevant, but
rather whether relevance and admissibility were established in this particular
case. To answer this question, we
consider the evidence that was before the trial court. We will not analyze or address evidence that
was presented only to Judge Morgan or
that the parties have culled from sources outside this record.
In
this particular case, the only method
by which the defense attempted to present evidence of the Arizona Report to
this jury was through its cross-examination of Dr. Holt. Evidence Code section 721, subdivision (b)
(section 721(b)) states: “If a witness
testifying as an expert testifies in the form of an opinion, he or she may not
be cross-examined in regard to the content or tenor of any scientific,
technical, or professional text, treatise, journal or similar publication
unless any of the following occurs:
[¶] (1) The witness referred
to, considered, or relied upon such publication in arriving at or forming his
or her opinion. [¶] (2) The publication has been admitted in
evidence. [¶] (3) The publication has been established as a
reliable authority by the testimony or admission of the witness or by other expert
testimony or by judicial notice. . . .â€
By
its plain language, section 721(b) precludes cross-examination of an expert
about a report unless one of the exceptions set forth in that statute
apply. In the present case, our review
of the record confirms that no exception authorized the defense to
cross-examine Holt about the Arizona Report.
The
section 721(b)(1) exception did not apply because, as the trial court found,
Holt’s testimony during the section 402 hearing established that she did not
refer to, consider or rely on the Arizona Report in arriving at her opinion. As reflected above, Holt testified that she
had heard of the report but that she did not read it.
Davis
contends that section 721(b)(1) was satisfied notwithstanding the fact that
Holt did not rely on the Arizona Report.
He cites Jefferson’s California Evidence Benchbook (Cont.Ed.Bar 3d ed.
1982) section 29.72, pages 644-645, for the proposition that an expert may
be cross-examined about a report of a nonwitness expert if “the expert witness
testifies that he or she considered or referred to, but did not rely, on†the
report. But the record establishes that
Holt did not consider or refer to the Arizona Report. Indeed, she did not even look at it.
Davis
argues that Holt “can be deemed to have ‘considered’ the Arizona Reportâ€
because she testified that she was familiar with some aspects of it. This argument is unsupported by reason or
relevant authority. Davis also argues
that, even if “the witness must actually have read the publication, rather than
merely have heard about it, in order to be cross-examined on it, then the trial
court erred when it ordered Dr. Holt not to read the Arizona report.†That is not what happened. Rather, the court precluded the defense from
ordering Holt to read a report that had not been properly authenticated and
that she had not previously considered in reaching her expert opinion in this
case.
Turning
to section 721(b)(2), which authorizes cross-examination of an expert regarding
a report that has been admitted into evidence, this exception did not apply
because the Arizona Report was not admitted into evidence at trial. On appeal, Davis
contends the Report should have been admitted because it was relevant. However, as best we can determine, Davis’s
trial counsel never actually offered the Arizona Report into evidence.
In
any event, Davis fails to convince
us that he made a sufficient showing that the Arizona Report was relevant in
this case. Preliminarily, we reiterate
that this showing cannot now be made with evidence that was presented only to
Judge Morgan at the pre-trial proceeding.
Beyond that, Davis contends
that Mueller’s declaration establishes that the Arizona Report was relevant and
argues that the only reason he did not call Mueller to San
Francisco to testify was that the court refused to
change its prior ruling that the Report was not relevant. First, the trial court ruled that the Mueller
declaration was inadmissible hearsay, a ruling Davis
does not dispute on appeal. Second, the
court did not preclude Davis from
calling Mueller or any other expert to testify about the Arizona Report; indeed
it urged the defense to do just that.
Finally,
section 721(b)(3), which authorizes cross-examination of an expert about a
report if it has been established as reliable by the testimony or admission of
any expert or by judicial notice, did not apply in this case. As the trial court noted, the document
appeared unreliable on its face because it was not published and was
accompanied by the disclaimer that it had been prepared for litigation and
produced pursuant to a court order for a very limited purpose. Furthermore, Barlow’s testimony was
insufficient to establish reliability because she was attempting to act as both
defense counsel and an expert in the same case.
Furthermore, Barlow did not even purport to be an expert at calculating
random match statistics. Nor could the
defense properly use Barlow to introduce hearsay opinions of actual experts on
that subject. Finally, as noted above, the
court properly excluded the Mueller declaration because he was not present and
available for cross-examination.
name="_ftnref8" title="">[8] Therefore, there simply was no expert
testimony before this trial court establishing the reliability of the Arizona
Report.
To
summarize, the appellate record establishes that Dr. Holt did not consider,
refer to or rely on the Arizona Report, that report was not admitted or even
offered into evidence at trial, and the reliability of the report was not
otherwise established. Therefore,
Evidence Code section 721 precluded the defense from cross-examining Holt about
the Arizona Report. Furthermore, as a
purely factual matter, the defense was not precluded from presenting its own
expert to testify about the content and import of the Arizona Report.
C. The Prosecutor’s Comment
During
her closing argument to the jury, the prosecutor made the following
comment: “The defendant did suggest
during the trial that there was some issue with the statistics. There is no evidence however that there was any
issue with the statistics. None. [¶]
Every crime lab in the United States of
America, every single one, uses the same
method to calculate these statistics.â€
Davis
argues, as he did in the trial court, that this comment was misconduct because
“the sole reason†that contrary statistical evidence was not introduced at
trial “was because the prosecutor succeeded in excluding it.†According to Davis,
the prosecutor’s comment was an improper half-truth because she blamed the
defendant for failing to produce evidence when she was the one who prevented
him from doing so. To support his
conclusion that the comment was misconduct, Davis
directs our attention to People v.
Frohner (1976) 65 Cal.App.3d 94, 103 (Frohner).
The
Frohner court reversed appellant’s
drug conviction because it found his case was severely prejudiced by (1) the prosecutor’s
failure to make a reasonable effort to locate the state’s informant and (2) the
trial court’s refusal to reopen the case after jury deliberations commenced
once the informant was located. (
110.) The court also noted that other
trial errors had occurred including that the prosecutor committed misconduct
during closing argument by telling the jury that, if the defense had wanted the
jury to see the People’s informant, he could have used a subpoena to bring him
in. (Id.
at p. 108.) This comment was
inexcusable, the court found, because the prosecutor knew that a subpoena could
not be served on the informant and “[t]he only apparent reason for the commentâ€
was to improperly “suggest to the jury that defendant had purposely failed to
call [the informant] as a witness.†(
Davis
contends that the prosecutor in this case made the same type of comment that
the Frohner court characterized as
The Frohner prosecutor’s
comment was improper because he erroneously
blamed the defendant for failing to produce a witness who was unavailable
because the prosecutor had failed his duty to make a reasonable effort to
locate that witness. In this case, by
contrast, the prosecutor did not violate any duty by objecting to defense
efforts to admit the Arizona Report via its cross-examination of the
prosecution’s expert witness. Thus,
there was nothing erroneous or misleading about the prosecutor’s observation to
the jury that the defense challenged the prosecutor’s statistics but failed to
produce contrary statistical evidence.
Davis
insists that the prosecutor’s comment was erroneous because she “urged a
conclusion–that there was no contrary statistical evidence–which was wrong, and
which the prosecutor knew was wrong.â€
This contention hinges on the premise that the Arizona Report
constituted competent contrary statistical evidence, a premise that the prosecutor
rejected and that the defense failed to substantiate in the trial court. Our review of the record before us confirms
that there was no contrary statistical evidence presented at trial and the
prosecutor’s remark to that effect was fair comment.
Davis
intimates that a prosecutor commits misconduct by commenting on the absence of
evidence to which he or she successfully objected even if that objection was
sound. Case law holds otherwise. (People
v. Lawley (2002) 27 Cal.4th 102, 152-156 (Lawley).) Misconduct means
“the use of deception or reprehensible methods to persuade the jury. [Citation.]â€
(Id. at p. 156.) Thus, a prosecutor may commit misconduct by
improperly capitalizing on erroneous evidentiary rulings during closing
argument. However, when “the
prosecutor’s argument constituted fair comment on the evidence, following
evidentiary rulings we have upheld, there was no misconduct.†(Ibid.)
D. Miranda/Doyle Error
As
reflected in our factual summary above, the jury heard an audiotape recording
of Spillane’s December 2002 interview of Davis
which concluded with the following statement by Davis: “I ain’t got no more to say to you ‘til I can
get an attorney you know. This is fucked
up.†On appeal, Davis
objects to the admission of this quoted statement, contending that the fact that
he implicitly invoked his right to silence by requesting an attorney should not
have been used against him. (Citing
Davis
forfeited this claim of error by failing to raise it in the trial court. (People
v. Huggins (2006) 38 Cal.4th 175, 198-199 (Huggins); People v. Ramos
(1997) 15 Cal.4th 1133, 1171.) Although Davis’s
trial counsel did move to exclude the entire December 22 interview on the
ground that his Miranda rights were
viola
| Description | ) and also found true special circumstance allegations that the murder was committed in the course of rape and burglary (§§ 190.2, subd. (a)(17)(C) & (G)). Davis was sentenced to life in prison without parole. On appeal, Davis contends the judgment must be reversed and a new trial ordered because: (1) the jury conducted an unauthorized experiment; (2) the trial court excluded scientific material relevant to the prosecution’s DNA evidence; (3) the jury was told that Davis exercised his Miranda[2] rights during a police interview; (4) the prosecutor misled the jury during closing argument; and (5) Davis was denied his constitutional right to confront witnesses against him. In a decision filed September 14, 2010, this court found that juror misconduct and multiple violations of Davis’s constitutional right to confrontation required us to reverse the judgment and remand this case for a new trial. Thereafter, the People filed a petition for review and, on December 21, 2010, the California Supreme Court granted the People’s petition but deferred taking further action in this case pending consideration and disposition of cases already before the court which involved the federal constitutional right to confrontation. (People v. Davis (Dec. 21, 2010) 2010 Cal. LEXIS 13302 (S187515).) |
| Rating |
