P. v. Gray

Filed 4/17/06 P. v. Gray CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Sam Donte Gray appeals from his conviction of second degree murder. Defendant claims the prosecutor engaged in misconduct by withholding discovery, vouching for the credibility of evidence, and making improper argument to the jury. Although the prosecutor committed a few relatively minor missteps, we conclude that the measures taken by the trial court were adequate to avoid any prejudice, and thus affirm.

BACKGROUND

On April 8, 2003, the district attorney filed an information charging defendant with one count of murder (Pen. Code, § 187),[1] including a special allegation of personally using and discharging a firearm, causing death (§ 12022.5, subd. (a); § 12022.53, subds. (b), (c), & (d)). Defendant was also charged with two counts of unlawful possession of a firearm by a probationer (§ 12021, subd. (d)). Defendant originally pleaded not guilty to all counts and denied the special allegation, but later withdrew his not guilty plea as to the two counts of unlawful firearm possession and substituted a plea of no contest.

At trial on the murder charge, there was evidence of the following. Defendant first met Kenneth Rankin in 2001 at the Camp Sweeney Juvenile Detention Facility. At the time, Rankin and several others attacked defendant. Rankin threatened to kill defendant if he ever saw him again outside the facility. Shortly after the two were released, defendant again encountered Rankin on a street in Oakland. Rankin threatened to fight defendant, but defendant walked away.

Despite his professed fear of Rankin, defendant asked Rankin to supply him with cocaine to sell. The day before the shooting, defendant informed Rankin that his cocaine had been stolen. Rankin demanded payment for the cocaine. Defendant's grandmother testified that Rankin visited her house that evening, brandishing a gun, looking for defendant. Rankin told her he wanted to kill defendant. Because of the threat, defendant traded some cocaine for a loaded handgun.

The next day, September 7, 2002, Rankin found defendant playing dice in the street. Rankin told bystanders to hold defendant while he retrieved a firearm. Carrying the handgun he had purchased a day earlier, defendant ran around the corner, and saw Rankin walking down the street. Defendant pulled a hood over his head so Rankin would not recognize him. He walked past Rankin, then turned and fatally shot him in the back of the head. Defendant fled the scene.

A police officer testified that on September 29, 2002, he arrested Mitchell Baskin for speeding and for outstanding warrants. In a partially tape-recorded conversation following his arrest, Baskin told police he heard defendant threaten to kill Rankin, had witnessed the shooting, and provided many details about the crime. Baskin expressed his belief that defendant shot Rankin because of an argument at a dice game, and that defendant was not defending himself when he shot him.

The jury found defendant guilty of second degree murder and found true the special allegation that he personally discharged a firearm, causing Rankin's death. The court sentenced defendant to 40 years to life in prison. Defendant filed a timely notice of appeal.

DISCUSSION

The Prosecutor's Failure to Disclose Witness Statements Did Not Prejudice Defendant

Defendant claims he suffered prejudice as the result of the prosecutor's failure to disclose in discovery all of the statements obtained from Baskin. These statements were elicited in three unrecorded interviews between the prosecutor, Police Inspector Williams, and Baskin in the weeks before trial. At trial defendant objected, claiming that several (but not all) of Baskin's prior statements, which were elicited by the prosecutor on direct examination, had not been provided to the defense. According to defense counsel, statements that were not disclosed included those referring to Baskin's â€