P. v. Harris















Filed 5/9/13 P. v. Harris CA2/3

Opinion following order recalling remittitur and
reinstating appeal











NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



SECOND APPELLATE
DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER HARRIS et al., Defendants and Appellants.

B222583 (Los Angeles County Super. Ct. No. BA284216)

APPEAL from judgments of the Superior
Court of href="http://www.mcmillanlaw.com/">Los Angeles County,
Charlaine F. Olmedo, Judge. Affirmed.

Eric R. Larson, under appointment by
the Court of Appeal, for Defendant and Appellant Christopher Harris.

Mark Shapiro for Defendant and
Appellant Kwana Harris.

Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka,
Assistant Attorney General, Stephanie A. Miyoshi and Eric J. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.



>_________________________







Christopher
Harris and Kwana Harris appeal the judgments entered following their
convictions by jury of first degree murder of Eric
Alexander. (Pen. Code, § 187.) Christopher Harris also appeals his conviction
by jury of second degree murder of
Kevin Decoud. The jury found Christopher
Harris committed these offenses for the benefit of a criminal street gang (Pen.
Code, § 186.22, subd. (b)(1)), personally and intentionally discharged a
firearm causing death (Pen. Code, § 12022.53, subd. (d)), and committed
multiple offenses of murder (Pen. Code, § 190.2, subd. (a)(3)). The jury also convicted Christopher
Harris of second degree robbery (Pen. Code, § 211) in which he personally
used a firearm (Pen. Code, § 12022.53, subd. (b)), and unlawful possession of a
firearm (Pen. Code, § 12021, subd. (a)(1); the jury found both of these
offenses were committed for the benefit of a href="http://www.mcmillanlaw.com/">criminal street gang (Pen. Code, §
186.22, subd. (b)(1)).

On
appeal, Christopher Harris contends the trial court erred in
admitting into evidence Kwana Harris’s hearsay statement identifying him as
Alexander’s killer and in failing to instruct the jury that Kwana Harris’s
statement required corroboration. Kwana
Harris contends the trial court erred in admitting gang evidence as to her and
her defense counsel rendered
ineffective assistance. We reject
appellants’ claims of error and affirm the judgments.

>FACTS AND PROCEDURAL BACKGROUND

1.
The
murder of Eric Alexander.

a.
The Shooting on September 17, 2004.

On September 17, 2004, Khaled
Fleming heard approximately 10 gunshots.
Fleming stepped outside his home and walked toward Sixth Avenue where he
saw the doors of a black SUV close and saw the vehicle leave the scene.

At
2:34 a.m. on September 17, 2004, Los Angeles Police Officer Winston Lee
received a radio call regarding a shooting in the 4300 block of Sixth
Avenue. Upon arrival, Lee saw a man,
later identified as Eric Alexander, lying unconscious. Lee found eight .22-caliber bullet casings
near Alexander. While at the scene, Lee
learned Alexander had died.

Los Angeles Police Detective
Stanley Evans found approximately $200 in Alexander’s jacket and pants and $150
on the ground nearby. Evans found no
cell phone at the scene. Evans inquired
of Alexander’s relatives regarding a cell phone without success.

A deputy medical examiner
testified Alexander sustained nine gunshot wounds, including two fatal
wounds.

b. The
family gathering in San Diego.

One week after the shooting of
Alexander, on or about September 24, 2004, members of the Harris family
gathered in San Diego at the home of James Hardgraves, the brother-in-law of
Christopher and Kwana Harris. The
visitors included Christopher and Kwana Harris, their sister Shanea, Mericca
Garner, who is the mother of a child by Christopher Harris, and Jamie
Hardgraves, James Hardgraves’s twin sister.


James Hardgraves recalled the
visitors arrived in a black Ford Expedition driven by Kwana Harris. The day the visitors arrived, Kwana Harris
told James Hardgraves there were rumors “going around” that she and Christopher
Harris had killed Alexander, aka Stoney.
Kwana Harris said she was present when Alexander was killed, she kicked
him after he was shot and she took his cell phone. Kwana Harris said she had chirped Alexander
to get him to the location and knew before he arrived he was going to be
harmed. Kwana Harris said Christopher
Harris killed Alexander.

During
the visit, James Hardgraves also heard Kwana Harris talking on her cell phone
in chirped phone calls. In one such
call, James Hardgraves heard the caller say, “We know that you killed Stoney,
and we know your brother killed Stoney, and we know you are in San Diego, and
we’re coming out there.” Kwana Harris
was nervous and called an individual known as L-Bone.

James Hardgraves admitted he was afraid to testify in this
case and was concerned for the safety of his children and himself. Kwana Harris once told James Hardgraves
not to come to court and he had been threatened by Jerry Anthony, aka L-Bone,
who was carrying a gun at the time.
James Hardgraves was relocated twice by the Los Angeles Police
Department.

James Hardgraves admitted that, at
the time of trial, he was on probation for a misdemeanor involving moral
turpitude.

On
cross-examination by Kwana Harris’s counsel, James Hardgraves admitted he and
Kwana Harris were not close. James
Hardgraves had been married to Christopher and Kwana Harris’s sister, Alicia,
for six years and they had three children.
Alicia was in a car crash on August 25, 2004, while driving to Los
Angeles to assist Christopher Harris.
Alicia died on September 4, 2004, as a result of injuries sustained in
the crash. Alicia had been unfaithful to
James Hardgraves with a woman introduced to her by Kwana Harris. Also, before Alicia died, one of the Harris’s
had been involved in a shooting outside the home of James Hardgraves’s
mother. James Hardgraves conceded “the
Harrises were bringing a lot of turmoil and trauma” into his life and he was
not happy with them.

During
the San Diego visit, Kwana Harris and her sister, Shanea, got into a fight in
which Shanea “was throwing knives.”
Shanea repeatedly told Kwana Harris, “You know what you did. You were wrong.” Kwana Harris denied Shanea’s accusations.

Jamie Hardgraves, James’s twin
sister, was present in her brother’s apartment when Kwana Harris received
chirped phone calls. One call from a
woman involved how much money Kwana Harris had obtained from “Stoney.” Kwana Harris stated it was not as much money
as the caller claimed. The caller also
said there was a witness but Kwana Harris said no one was around when Alexander
was killed. The caller also asked about
Alexander’s cell phone and Kwana Harris said she had it.

In a second chirped phone call, Jamie Hardgraves heard a
male say he knew Kwana Harris was in San Diego and he was going to kill her and
her mother.

On cross-examination by Kwana Harris’s counsel, Jamie
Hardgraves testified Kwana Harris regularly drove a silver car and, to her
knowledge, the black truck belonged to Shanea.


c. Telephone
Evidence.

Sprint Nextel cell phone and direct connection or “chirp”
records for subscribers Eric Alexander and Kwana Harris showed that, on
September 17, 2004, there were several brief telephone calls between them
commencing at 1:37 a.m. The last of
these calls was made at 2:27 a.m. The
records also showed numerous direct connect calls were made by Kwana Harris
between September 24 and 26, 2004.

Los Angeles Police Detective Sean
Hansen analyzed the telephone records for the cell phone numbers assigned to
Alexander and Kwana Harris for September 17, 2004. With the assistance of a computer program,
Hansen plotted the distance between the cell sites through which the calls had
been routed and the scene of the Alexander shooting.

2. The
shooting of Kevin Decoud.

a. The shooting; Eddie Gilbert’s
identification of Christopher Harris.

Eddie Gilbert testified that, on
January 15, 2004, he and Kevin Decoud were walking toward 41st Street and Van
Ness Avenue when a black Nissan Maxima driven by Christopher Harris stopped a
few feet from them.href="#_ftn1" name="_ftnref1"
title="">[1] When Christopher Harris asked where they were
from, Gilbert and Decoud yelled, “40 Neighborhood Crip[s].” As Decoud approached the Nissan to
fight, Christopher Harris said he was not there to fight and fired two shots at
Decoud. Christopher Harris also fired
twice at Gilbert but missed.

Decoud died as the result of a
gunshot wound to the chest. During an
autopsy, a deputy medical examiner recovered a bullet from Decoud’s body.

Gilbert recognized Christopher
Harris because, in December of 2004, Christopher Harris robbed Gilbert in the
backyard of a residence on Second Avenue.
On that occasion, Christopher Harris approached Gilbert from behind,
said, “C.J. This is 58 Neighborhood,”
“fuck 40’s . . . phonies” (disrespecting Rolling 40’s), and “break yourself,”
and placed a gun to Gilbert’s throat.
Gilbert surrendered a Yankees cap and a blue jacket with a dragon on the
sleeve and the back.

b. Arrest of Christopher Harris; recovery of Decoud murder weapon.

On January 1, 2005, a sheriff’s
deputy impounded a vehicle being driven by Christopher Harris. During an inventory of the contents of the
vehicle, the deputy recovered a nine-millimeter semi-automatic pistol.

A criminalist testified the bullet
recovered during the autopsy of Decoud had been fired from the firearm found in
Christopher Harris’s car.

3. Investigation.

a. Search
warrant served at the home of Merrica Garner.

On February 23, 2005, Detective
Jason Delacova applied for a search warrant for the home of Mericca
Garner. The items sought in the warrant
included a baseball cap, a jacket with a dragon on it, a handgun and
ammunition. The warrant was served on
February 25, 2005.

b. Garner’s
statement to detectives.

Following service of the warrant,
Garner was interviewed at the police station, first by Detectives Lee and
Delacova and then by Detective Evans.
Tape recordings of the interviews were played for the jury. Detective Evans testified that, after he read
Garner her rights, she made a statement and Evans asked her to put it in
writing. While Garner wrote the
statement, Evans discovered the tape had run out and put in a new one. The missing portion of the interview included
the reading of Garner’s rights and the statement in which Garner provided
information. After Evans restarted the
tape recorder, he went over Garner’s written statement with her. Garner was not aware the interview was being
recorded. Garner was at the police
station for approximately five hours, commencing at 10:00 a.m. She was interviewed for approximately three
and a half hours.

In
the initial interview conducted by Detectives Lee and Delacova, Garner said
Christopher Harris was a member of 48 Neighborhood, which was a small gang
associated with the “40’s,” but indicated the police had him on file as a
member of the 60’s. Garner denied
Christopher Harris ever told her that he had killed someone. Delacova advised Garner he had a pretty good
case against Christopher Harris for a crime he committed with a female. Garner denied she was the female and stated
the black Expedition was Shanea’s car.
Garner claimed Christopher Harris told her only that people thought he
was responsible for the murder.

After Detective Evans took over
the interview, Evans suggested Garner might have unwittingly driven Christopher
Harris to the scene of a crime and asked if she knew Eric Alexander, aka
“Stoney.” Garner identified a photograph
of Alexander as someone she had seen with Christopher Harris. Garner also identified a picture of Jerry
Anthony, aka “L-Bone.” Garner admitted
she had been very friendly with Kwana Harris, who was also known as “Lady
L-Bone,” which suggested “L-Bone” had brought Kwana Harris into his gang.

Garner
agreed that on September 17, 2004, Kwana Harris and Shanea had a black SUV and
that Kwana Harris was the primary driver of the vehicle. Evans told Garner he wanted to know if Garner
were an accomplice, an accessory or merely a witness. Evans indicated he was going to present the
case to the district attorney for filing and, if Garner lied to Evans, it would
suggest she had been involved in the crime.
Garner denied Christopher Harris spoke to her about what happened to
Alexander. However, he did tell her the
“40’s” were after him because they thought he had killed Alexander. Evans indicated that, at some point, Garner’s
lies would force Evans to read Garner her rights.

The second audiotape commences with Evans suggesting they
read over Garner’s written statement.
Evans then reads a statement which indicates that, on the night of
September 18, 2004, Christopher Harris told Garner that he killed Alexander
because of some things Alexander had said about him. The statement also indicated Christopher
Harris “felt bad about the situation . . . .”
Christopher Harris did not provide details but said,
“I did it.”

c. Recorded
telephone conversation.

On the evening of February 25, 2005, Christopher Harris
placed a telephone call from jail to Loretta Brown, his girlfriend at the
time. A tape recording of the call was
played for the jury. During the call,
Christopher Harris asked Loretta Brown to telephone Mericca Garner. After Garner entered the conversation,
Christopher Harris told her to “be careful what you say” and asked what had
happened. Garner said numerous police
officers, including Detective Evans, came to her house with guns. Garner and her baby were taken to the police
station from 10:00 a.m. until 3:00 p.m. because she “wasn’t cooperating.” Garner said the officers advised her of her
rights and threatened to arrest her and put her child in “the system.” Garner told the officers Christopher Harris
did not murder Alexander but the officers accused her of lying. When Garner told Christopher Harris the
search warrant involved a gun, a hat and a leather coat, he responded, “Oh for
real?”

After the conversation with Garner
ended, Christopher Harris told Brown he needed her “to really think . . .
.” Brown said she had heard what Garner
had said and indicated, “I know. I
know already.” After further discussion,
Christopher Harris told Brown to “go to Aneisha’s house. I need you to go to Sean’s room and get the
dragon thing out of there. It’s a
dragon. Remember, remember? . . .” When Christopher Harris asked if Brown “got
it,” she replied, “I already thought of that a long time ago . . . .”

4. >Garner’s trial testimony.

At trial, Garner denied that on September 18, 2004, she had
a conversation with Christopher Harris in which he said he had killed Alexander
and felt bad about it. Garner also
denied that Kwana Harris ever told her she took a cell phone or money from
Alexander. However, written statements
signed by Garner, exhibits 15 and 16, indicate she made these statements to
Evans. Exhibit 15 states: “Night of September 18, 2004, CJ
[Christopher Harris] spoke with me and told me that he had killed Stone because
of something he [said] about him. . . .
He cried and told me he felt bad about it.” Exhibit 16 states: “Kwana also told me that she didn’t find any
money and that she drove the truck over there to Stone. . . . Her main concern to me was that she wanted no
part of the murder. The cell phone would
have made it look like a setup because her name was the last name on the
phone.”

Garner admitted she did not want
to testify in this case because the defendants were her son’s father and aunt.

On
cross-examination by Christopher Harris’s counsel, Garner testified the
detectives indicated they thought Garner was involved in the killing of
Alexander. Garner thought she was going
to be arrested for murder and Detective Evans “guided” her through the written
statement and told her she had to sign it.


On
cross-examination by Kwana Harris’s counsel, Garner testified the written
statements were not true and Garner wrote them because she believed she had no
choice. Garner thought her child would be
taken from her if she did not cooperate.
Further, Garner told the detectives the fight between Shanea and Kwana
Harris in San Diego was over a SIM card.

Kwana
Harris’s counsel called Garner as a defense witness and elicited that James
Hardgraves has a reputation in the community for lying. Garner also testified Shanea used Kwana
Harris’s cell phone. Further, everyone
in San Diego used her cell phone because it was a chirp phone and everyone had
their own code they could use on her cell phone. In September of 2004, Kwana Harris lived with
her mother.

5. Testimony
of the gang expert.

Los Angeles Police Officer Aron Algren testified as a gang
expert. In the 1980s, the Crips gang
split into numerous subsets including the Rolling 40’s and the Rolling
60’s. Algren estimated that in 2004 and
2005, the Rolling 60’s had between 2,000 and 3,000 members, and the Rolling
40’s had approximately 1,000 members.
Both gangs have rather large territories. In 2005, the 48 Neighborhood Crips had 15 to
20 members. The 48 Neighborhood Crips
was aligned with the Rolling 40’s and the Rolling 60’s and its territory was
between the territory claimed by the Rolling 40’s and the Rolling 60’s. The primary activities of these gangs
included the sale of narcotics, robbery, attempted murder and murder. At times there were violent rivalries between
the Rolling 40’s and the Rolling 60’s.
Gangs wield power based on the threat of violence which prevents
citizens from reporting crimes committed by gang members.

In Algren’s opinion, in 2004 and
2005, Christopher Harris was a member of the 48 Neighborhood Crips and an
associate of the Rolling 60’s.
Christopher Harris had extensive gang tattoos. Also, during a traffic stop in 2003,
Christopher Harris admitted to a Los Angeles police officer that he was a
member of the 48 Neighborhood Crips and an associate of the Rolling 60’s. Algren also testified Kwana Harris was an
associate of the Rolling 60’s.

Based on hypothetical questions, Algren opined the shooting
of Eric Alexander, the robbery of Eddie Gilbert, and the shooting of Kevin
Decoud, each of whom was a member of the Rolling 40’s, had been committed for
the benefit of the 48 Neighborhood Crips and the Rolling 60’s.

6. Defense
evidence presented by Christopher Harris.

With
regards to Eddie Gilbert’s competence, a forensic psychiatrist testified
Gilbert was admitted to Patton State Hospital in February of 2009. At that time, Gilbert was severely disabled
and was diagnosed as having disorganized schizophrenia and polysubstance
abuse.

A second forensic
psychiatrist testified that, in a videotaped interview, Gilbert displayed signs
of schizophrenia and a rhythmic motor tremor which is a side effect of
medications commonly prescribed for schizophrenia. The use of PCP can cause aggressive
outbursts, hallucinations and extreme emotional volatility.

The parties stipulated PCP was found
in Decoud’s blood.

CONTENTIONS

Christopher
Harris contends the trial court erroneously admitted into evidence Kwana
Harris’s hearsay statement identifying him as Alexander’s killer and committed
instructional error in failing to instruct the jury the statement required
corroboration. He further contends the
cumulative prejudice attributable to these errors requires reversal of his
convictions even if either error, considered alone, would be insufficient to
warrant that result.

Kwana
Harris contends the trial court erred in admitting gang evidence as to her and href="http://www.mcmillanlaw.com/">defense counsel rendered ineffective assistance.href="#_ftn2" name="_ftnref2" title="">[2]

DISCUSSION

1. The
trial court properly admitted Kwana Harris’s hearsay statement incriminating
Christopher Harris as a statement against her penal interest.

Prior to trial, the prosecutor
filed a motion seeking to admit into evidence statements made by Kwana Harris
to James Hardgraves and Mericca Garner, and statements overheard by James
Hardgraves, Jamie Hardgraves and Mericca Garner during Kwana Harris’s chirped
telephone calls. The trial court conducted
a hearing on the motion and concluded these statements were admissible as
declarations against Kwana Harris’s penal interest.

On appeal, Christopher Harris
contends the statement in which Kwana Harris identified Christopher Harris as
the individual who shot Alexander was not “specifically
disserving” of Kwana Harris’s interests and thus was not admissible under the
declaration against interest exception to the hearsay rule. (People
v. Lawley (2002) 27 Cal.4th 102, 153-154; People v. Duarte (2000) 24 Cal.4th 603, 612; People v. Garcia (2008) 168 Cal.App.4th 261, 289.) Christopher
Harris notes People v. Lawley, supra, at pp.
153-154 and People v. Garcia, supra, at pp. 289-290, held the portion of
an aider and abettor’s statement identifying a confederate was not admissible
as a statement against interest.
He reasons that, similarly, the portion of Kwana Harris’s
statements identifying Christopher Harris as the shooter did not incriminate
Kwana Harris and should have been excluded.


Christopher Harris claims the only
other evidence implicating him in the murder of Alexander was Garner’s written
statement to Detective Evans which was unreliable in that Garner initially told
the detectives Christopher Harris did not admit the killing and she testified
at trial that she attributed incriminating statements to Christopher Harris
only because the detectives threatened her with arrest, prosecution and the
loss of her child. Christopher Harris
notes Detective Evans accused Garner of driving the shooter to the crime scene
and said he would assume she was “a player” unless she told him the truth. Garner’s statement also was suspect because
the portion of the interview in which Garner was advised of her rights and
initially incriminated Christopher Harris was not recorded.

Christopher
Harris concludes that, absent Kwana Harris’s
improperly admitted hearsay statement, it is reasonably probable he would have
been acquitted of count one. Thus, the
conviction and the multiple murder special circumstance finding must be reversed. Further, because the error likely had an
adverse effect on the jury’s evaluation of his self defense claim as to count
four, the murder of Decoud, that conviction should also be reversed.

We conclude the
trial court correctly found the statement admissible as a declaration against
Kwana Harris’s penal interest. Under
that exception to the hearsay rule, “Evidence of a statement by a declarant
having sufficient knowledge of the subject is not made inadmissible . . . if
the declarant is unavailable as a witness and the statement, when made, was so
far contrary to the declarant’s pecuniary or proprietary interest, or so far
subjected him to the risk of civil or criminal liability, . . . that a
reasonable man in his position would not have made the statement unless he
believed it to be true.” (Evid. Code, §
1230.)

name="citeas((Cite_as:_2008_WL_4099017,_*7_(Ca">In order for a
statement to be admissible as a declaration
against penal interest, “ ‘[t]he proponent of such evidence must show “that the
declarant is unavailable, that the declaration was against the declarant’s
penal interest, and that the declaration was sufficiently reliable to warrant
admission despite its hearsay character.” ’
[Citation.] ‘The focus of the
declaration against interest exception to the hearsay rule is the basic
trustworthiness of the declaration. [Citations.] In determining whether a statement is truly
against interest within the meaning of Evidence Code section 1230, and hence is
sufficiently trustworthy to be admissible, the court may take into account not
just the words but the circumstances under which they were uttered, the
possible motivation of the declarant, and the declarant’s relationship to the
defendant.’ [Citation.]” (People v. Geier (2007) 41
Cal.4th 555, 584.)

Because
of concerns that declarations against penal interest may contain self-serving
and unreliable information, the exception generally does not “apply to
collateral assertions within declarations against penal interest.” (People v. Campa (1984) 36 Cal.3d 870,
882.) Further, “[e]ven
a
hearsay
statement
that
is
facially
inculpatory
of
the
declarant
may,
when
considered
in
context,
also
be
exculpatory
or name="SR;7249">have a
net
exculpatory
effect. [Citation.]
Ultimately,
. . . ‘whether
a
statement
is
self-name="SR;7262">inculpatory name="SR;7263">or
not
can
only
be
determined
by
viewing
it
in
context.’ [Citation.]” (People
v.
Duarte,
supra, 24 Cal.4th at p. 612.) Only those portions of the declaration that
are “specifically disserving” to the declarant’s penal interests are admissible
under Evidence Code section 1230. (People
v. Leach (1975) 15 Cal.3d 419, 441)

“Courts applying [Evidence Code]
section 1230 to determine the basic trustworthiness of a proffered declaration
are . . . to ‘consider all the surrounding circumstances to determine if a
reasonable person in [the declarant’s] position would have made the statements
if they weren’t true.’ ” (name="SR;3374">People
v.
Duarte,
supra, 24 Cal.4th at p. 618.)

We
review a trial court’s determination under Evidence Code section 1230 for an
abuse of discretion. (People v. Brown
(2003) 31 Cal.4th 518, 536; People v. Lawley, supra, 27 Cal.4th at pp. 153-154.)

Here,
there is no dispute that codefendant Kwana Harris was
unavailable as a witness at trial. This
leaves us to consider whether the statement was against Kwana Harris’s penal
interests when made and whether it was reliable.href="#_ftn3" name="_ftnref3" title="">>[3] With respect to the first issue, Christopher
Harris agrees the trial court properly admitted evidence of many of Kwana
Harris’s statements to James Hardgraves as contrary to her penal interest, such
as her statement she lured Alexander to the scene of the shooting and took his
cell phone. Christopher Harris focuses
on Kwana Harris’s statement that Christopher Harris shot Alexander and appears
to argue a statement implicating a codefendant, by
definition, cannot be specifically disserving of the declarant’s penal
interest.

However,
the law does not require blanket exclusion of such statements. Rather, whether such a
statement is admissible as against the declarant’s penal interest depends on
the circumstances under which the statement was made, the declarant’s possible
motivation and the declarant’s relationship to the defendant. (People v. Geier, supra, 41 Cal.4th at p. 584.)
The distinction to be drawn is between statements which are truly
self-inculpatory, and therefore admissible, and those which are partially
self-serving and exculpatory, and therefore inadmissible.

Review
of the case law reveals the statements at issue in the cases cited by
Christopher Harris were excluded not because they incriminated individuals
other than the declarant, but because they were exculpatory, self-serving, or
collateral to the declaration against interest.
This point is illustrated by a review of relevant cases.

For example, in name="sp_999_15">People v. Leach, >supra, 15 Cal.3d 419, several defendants
were charged with conspiracy to commit murder.
Prior to trial, some of the defendants made statements that described
the conspiracy and inculpated themselves and other defendants. (Id. at pp. 438-442.) Leach
held the statements should not have been admitted at trial, noting the exception
for admissions against penal interest was “inapplicable to evidence of any
statement or portion of a statement not itself specifically disserving to the
interests of the declarant.” (Id. at pp.
441-442, fn. omitted.) People v.
Duarte explained the holding in Leach rested on considerations of
reliability, noting a facially inculpatory statement, when viewed in context,
may actually be exculpatory or self-serving, and thus untrustworthy.

In
Duarte, the defendant and another man were charged with shooting at a
dwelling. (>People v. Duarte,
supra, 24 Cal.4th
at pp. 607-609.) Prior to trial, the defendant’s accomplice
gave the police a statement acknowledging participation in the crime, but
minimizing his role. A redacted version
of the statement was admitted at the defendant’s trial as an admission against
penal interest. (Id. at p.
609.) Duarte reviewed case
authority and stated: “Under the rule of
Leach, a hearsay statement ‘which is in part inculpatory and in part
exculpatory (e.g., one which admits some complicity but places the major
responsibility on others) does not meet the test of trustworthiness and is thus
inadmissible.’ ” (People v. Duarte, supra,
at p. 612, quoting In re Larry C. (1982) 134 Cal.App.3d 62, 69.) Applying this rule, Duarte concluded the redacted statement, viewed in context, was
self-serving and thus should have been excluded from evidence. (People
v. Duarte, supra, at pp. 612-613.)

However, People
v.
Samuels
(2005) 36
Cal.4th
96,
clarified that Leach and Duarte do not
exclude a statement that inculpates the declarant and other individuals,
provided the declarant’s facially inculpatory statements are not, in fact,
exculpatory, self-serving, or collateral.
In Samuels, the defendant
asked one Bernstein to murder her husband and, once Bernstein had done so, she
successfully solicited two other men to murder Bernstein. At trial, a witness testified Bernstein said,
“ ‘He had done it and . . . [the defendant] had paid him.’ ” (Id.
at
p.
120.) name="citeas((Cite_as:_2010_WL_2367376,_*16_(C">On appeal, the defendant contended
Bernstein’s statement the defendant had paid him to commit the murder was
inadmissible as it constituted an attempt to shift blame to her. (Ibid.) Samuels held the entire
statement was properly admitted as against the declarant’s penal interest,
notwithstanding the reference to the defendant.
Samuels stated, “This
admission, volunteered to an acquaintance, was specifically disserving to
Bernstein’s interests in that it intimated he had participated in a contract
killing – a particularly heinous type of murder – and in a conspiracy to commit
murder. Under the totality of the
circumstances presented here, we do not regard the reference to [the] defendant
incorporated within this admission as itself constituting a collateral
assertion that should have been purged from [the witness’s] recollection of
Bernstein’s precise comments to him.
Instead, the reference was inextricably tied to and part of a specific
statement against penal interest.” (Id.
at
p.
121.)

Here, as in Samuels, Kwana Harris’s statement that
Christopher Harris shot Alexander was not an attempt to mitigate her
involvement in the offense, deflect responsibility
for the crime or shift blame to others. Rather, the statement
explained her involvement in
the murder, namely, luring Alexander to the location where her brother,
Christopher Harris, shot him and thereafter taking Alexander’s cell phone in an
attempt to eliminate evidence connecting her to the offense. Because the entire statement was against
Kwana Harris’s penal interest, it fell within the exception and properly was
admitted at trial as substantive evidence of Christopher Harris’s guilt.

We reached a similar conclusion in People v.
Cervantes (2004) 118 Cal.App.4th
162. In that case, a nontestifying
codefendant, Morales, inculpated himself and two codefendants in a murder and
an attempted murder while speaking to a friend of all three
defendants. (Id. at pp.
166-167.) On appeal, the two
codefendants contended Morales’s statement to the friend should have been
excluded. (Id. at p. 169.) Cervantes
found the trial court properly admitted evidence of the statement at the
defendants’ joint trial as a declaration against penal interest. (Id. at
p. 177.) Cervantes noted Morales did not attribute blame to the codefendants
but accepted an active role in the crimes and described how he had directed the
activities of one of the codefendants. (Id.
at p. 175.) Further, because the
declarant was acting in concert with the codefendants, a statement
incriminating a codefendant also incriminated the declarant. (Id. at p. 176.)

>Cervantes
relied heavily on an earlier case, People v.
Greenberger
(1997)
58 Cal.App.4th 298, which involved
a kidnapping and murder committed by several defendants. Greenberger
held the trial court properly admitted evidence of a codefendant’s statement in
which the codefendant admitted planning the kidnapping and acting as an aider
and abettor while a codefendant held a gun on the kidnapped victim. (Id. at
pp.
339-340 & p.
340,
fn.
16.) Greenberger
held the reference to the codefendant was “name="SR;4278">an
integral
part
of
the
statement
in
which
[the
declarant] implicated name="SR;4288">himself name="SR;4289">in
planning
and
participating
in
the
kidnapping
and
murder
. . . .” (Id.
at
p.
340.)

Lawley
and Garcia, the cases cited by
Christopher Harris, excluded portions of statements not because the statements
inculpated individuals other than the declarant, but because the circumstances
under which the statements were made suggested the statements were not
reliable.

In> People
v. Lawley, a statement by the actual killer that
he was hired to kill the victim was properly admitted as a declaration against
penal interest. (People
v. Lawley, supra, 27 Cal.4th at p. 154.) However, the trial court did not abuse its
discretion in excluding the killer’s statement he had been hired by the Aryan
Brotherhood, rather than the defendant, because that portion of the statement
was not “specifically disserving” of the declarant’s interest. (Ibid.) Lawley
found the portion of the declarant’s statement indicating the identity of the
entity that paid for the murder did not make the declarant more culpable. (Id. at pp. 153-154.) Rather, the declarant’s
reference to the Aryan Brotherhood could only be understood as an attempt to
exculpate the defendant. Thus, it was
collateral to the declarant’s inculpatory statements. (See People v.
Samuels,
supra, 36
Cal.4th
at
pp.
120-121.)

People
v. Garcia, addressed the admissibility of a note
sent by the cellmate of a defendant. >Garcia rejected the argument the note
was admissible as a declaration against penal interest because, while one
statement in the note asserted the author had written the note, another said he
had done so as a favor to the defendant.
(People v. Garcia, supra,
168 Cal.App.4th at pp. 286-290.) Thus,
the statements were not wholly inculpatory.
Here, Kwana Harris’s statement that her brother shot Alexander was not
collateral, exculpatory or self-serving.
Rather, it implicated her in the murder of Alexander and thus qualified
as a declaration against Kwana Harris’s penal interest.

Kwana
Harris’s statement also was reliable.
“[A]ssessing trustworthiness
‘ “requires the court to apply to the peculiar facts of the individual
case a broad and deep acquaintance with the ways human beings actually conduct
themselves in the circumstances material under the exception.” ’ [Citation.]”
(People v. Duarte, supra, 24 Cal.4th at p. 614.) Generally, the least reliable circumstance is
when the declarant has been arrested and makes his statement to police in an
attempt to improve his situation. The
most reliable situation is one in which the conversation occurs between friends
in a non-coercive setting. (People v.
Greenberger, supra, 58 Cal.App.4th at p. 335; People v. Cervantes, supra,
118 Cal.App.4th at p. 175.)

Kwana
Harris made the statement at issue to James Hardgraves, Kwana Harris’s brother
in law, one week after the shooting during a family gathering long before
police had focused their investigation on the Harris family. Further, the statement incriminating Christopher
Harris as the shooter in the murder of Alexander was not made for self-serving
motives or under circumstances that rendered it suspect or unreliable. Kwana Harris was not trying to deflect
responsibility for the crime. Rather,
the statement was part of her admission she had taken an active role in causing
Alexander’s death. In sum, the
circumstances under which the statement was made indicate it was reliable.

We
therefore conclude the Kwana Harris statement was
against her penal interest and bore a particular guarantee of trustworthiness
such that the trial court did not err in admitting evidence of the statement
against Christopher Harris.

Moreover,
even assuming the statement should have been excluded, any error in its
admission was
harmless in light of Garner’s written statement in which she told Detective
Evans that, on September 18, 2004, the day after Alexander was killed,
Christopher Harris told her that he killed Alexander because Alexander was
saying things about him. (People
v. Watson (1956) 46 Cal.2d 818, 836; see
People v.
Samuels, supra, 36 Cal.4th at p. 120 [applying Watson standard of
review to error in admitting hearsay under Evid. Code, § 1230]; >People v. Duarte,
supra,
24
Cal.4th
at pp.
618-619
[same].)href="#_ftn4" name="_ftnref4" title="">[4]

Although
Christopher Harris denigrates Garner’s statement as the likely product of
coercion, it appears the detectives did no more than urge Garner to tell the
truth. name="sp_999_6">It is settled that, name=SearchTerm>“ ‘ “[w]hen the benefit pointed out by the police to a suspect is
merely that which flows naturally from a truthful and honest course of
conduct,” the subsequent statement will not be considered involuntarily
made. [Citation.]” ’ ” (People v. Holloway (2004) 33 Cal.4th
96, 115.) Given that Garner’s written
statement incriminating Christopher Harris properly was admitted at trial, any
error in the admission of Kwana Harris’s statement must be seen as harmless.

name="sp_999_5">2. >Accomplice instructions unnecessary.

Christopher Harris contends the
trial court erred in failing to instruct the jury, sua sponte, to determine
whether Kwana Harris was an accomplice, and, if so, that her statement
incriminating him required corroboration.
CALCRIM No. 334 would have advised the jury it could use Kwana Harris’s
statements to convict Christopher Harris only if: “The accomplice’s statement is supported by
other evidence that you believe,” the “supporting evidence is independent of
the accomplice’s statement,” and the “supporting evidence tends to connect the
defendant to the commission of the crime.”
(CALCRIM No. 334.) Although Kwana
Harris’s self-incriminating statements were corroborated by the phone records
and the fact Alexander’s phone was never found, this evidence did not connect
Christopher Harris to the crime. Rather,
the only supporting evidence that tended to connect him to the crime was
Garner’s written statement, which Garner retracted at trial and was the product
of at least some coercion. Christopher
Harris concludes that, had the accomplice instruction been given, it is
reasonably probable the jury would have determined Kwana Harris’s statement
incriminating Christopher Harris was not sufficiently corroborated and
acquitted him on count one. (>People v. Lewis (2001) 26 Cal.4th 334,
371.)

Based on our conclusion in the
foregoing discussion section that Kwana Harris’s statement incriminating
herself and Christopher Harris properly was admitted as a declaration against
Kwana Harris’s penal interest, accomplice instructions were not required.

Penal
Code section 1111 provides: “A
conviction cannot be had upon the testimony of an accomplice unless it be
corroborated by such other evidence as shall tend to connect the defendant with
the commission of the offense; and the corroboration is not sufficient if it
merely shows the commission of the offense or the circumstances thereof.” The purpose of Penal Code section 1111 is
“[t]o ensure that a defendant will not be convicted solely upon the
testimony of an accomplice because an accomplice is likely to have self-serving
motives.” (People v.
Davis (2005) 36 Cal.4th 510, 547.) name="sp_999_24">“Testimony,”
as used in Penal Code section 1111, includes “all out-of-court statements of
accomplices . . . used as substantive
evidence of guilt which are made under suspect circumstances.” (People v. Williams (1997)
16 Cal.4th 153, 245; People
v. Brown, supra, 31
Cal.4th at p. 555; People
v. Belton (1979) 23 Cal.3d 516, 524-525.)

However, as explained in >People v. Brown, the corroboration
requirement does not apply where the accomplice’s statement bears sufficient
indicia of reliability to permit admission under the declaration against the
penal interest exception to the hearsay rule.
“ ‘The usual problem with
accomplice testimony – that it is consciously self-interested and calculated –
is not present in an out-of-court statement that is itself sufficiently
reliable to be allowed in evidence.’
[Citation.]” (>People v. Brown, supra, 31 Cal.4th at pp. 555-556; see also People v. Williams
(1997) 16 Cal.4th 635, 682 [instructional duty not triggered where accomplice
statements “made in
the
course
of
and
in
furtherance
of
the
conspiracy
were
not
made
under
suspect
circumstances
and
therefore
were
sufficiently
reliable
to
require
no
corroboration”].)

Here, Kwana Harris’s statement to
James Hardgraves that Christopher Harris shot Alexander was made under
conditions sufficiently trustworthy to permit admission of the statement into
evidence as a declaration against penal interest. Therefore, although Kwana
Harris was an accomplice in the murder of Alexander, corroboration was not
necessary and the trial court was not required to
instruct the jury her statement required corroboration. (People
v. Brown, supra, 31 Cal.4th at
pp. 555-556.)

Christopher
Harris attempts to distinguish Brown
on the ground the defendant in that case did not identify a codefendant by
name. However, as previously discussed,
the fact a statement inculpates individuals other than the declarant does not
render the statement suspect where an examination of the surrounding
circumstances indicates the statement was reliable when made.

In any event any error was
harmless. As Christopher
Harris concedes, the trial court instructed the jury to view out of court
statements with caution. (CALCRIM
No. 358.) Further, the “failure
to instruct on accomplice liability under [Penal Code] section 1111 is harmless
if there is sufficient corroborating evidence in the record. [Citation.]
‘Corroborating evidence may be slight, may be entirely circumstantial,
and need not be sufficient to establish every element of the charged
offense. [Citations.]’ . . . The
evidence ‘is sufficient if it tends to connect the defendantname="sp_7047_184"> name="citeas((Cite_as:_31_Cal.4th_518,_*556,_7">with the crime in such a
way as to satisfy the jury that the accomplice is telling the truth.’ [Citation.]”
(People v. Lewis, supra, 26 Cal.4th at p. 370.)

Here,
Kwana Harris’s statement was corroborated by Garner’s written statement in
which she indicated that on September 18, 2004, Christopher Harris told her he
had killed Alexander. Thus, an
instruction requiring corroboration of Kwana Harris’s out-of-court statement,
had it been given, would not have resulted in a more favorable outcome for
Christopher Harris. (People
v. Watson, supra, 46 Cal.3d at p. 836.)

name="______#HN;F53">3.
The trial court properly admitted gang evidence against Kwana Harris.>

Prior to trial, Kwana Harris moved
to exclude gang evidence as to her because she was not alleged to have
committed the murder of Alexander for the benefit of a criminal street
gang. The trial court ruled the
prosecution could introduce gang evidence as to Kwana Harris, but that its use
would be limited.

Thereafter,
the trial court instructed the jury on the uses of gang evidence in accordance
with CALCRIM No. 1403, as follows: “You
may consider evidence of gang activity only for the limited purpose of deciding
whether: [¶] The defendant acted with the intent, purpose,
and knowledge that are required to prove the gang-related enhancements charged;
OR [¶]
The defendant had a motive to commit the crime charged. [¶]
You may also consider
this evidence when you evaluate the credibility or believability of a witness
and when you consider the facts and information relied on by an expert witness
in reaching his or her opinion. [¶] You may not consider this evidence for any
other purpose. You may not conclude from
this evidence that the defendant is a person of bad character or that he has a
disposition to commit crime.”

On appeal, Kwana Harris contends
the trial court should have excluded the gang expert’s testimony as to her,
claiming it amounted to evidence of bad character, which is inadmissible under
Evidence Code section 1101, subdivision (a), and it encouraged the jury to make
negative inferences about her character which were not relevant to her guilt or
innocence. (People v. Archer (2000) 82 Cal.App.4th 1380, 1392.) Further, the prejudicial effect of the
evidence far outweighed any probative value the evidence possessed. (Evid. Code, § 352.) Kwana Harris concludes the admission of this
evidence rendered the trial fundamentally unfair and requires reversal of her
conviction.

Despite its potential for
prejudice, gang evidence “is not insulated from the
general rule that all relevant evidence is admissible if it is relevant to a
material issue in the case other than character, is not more prejudicial than
probative, and is not cumulative.
[Citations.]” (>People v. Samaniego (2009) 172
Cal.App.4th 1148, 1167.)

Here, in order to explain the
circumstances leading to the murder of Alexander, the prosecution was entitled
to demonstrate the relationship of Christopher and Kwana Harris to the gangs
involved in this case because this evidence was relevant to the issues of
intent, motive and witness credibility.
The gang expert testified Christopher Harris was a member of the 48
Neighborhood Crips and an associate of the Rolling 60’s, and that Kwana Harris
was an associate of the Rolling 60’s.
This evidence was significant because Alexander, the victim in count
one, was a member of the Rolling 40’s, a gang that sometimes feuded with the
Rolling 60’s. Because Kwana Harris’s
gang association tended to provide a motive for her involvement in the murder
of Alexander, evidence about gang culture and her gang association was relevant
to the charge against her. (People
v. Samaniego, supra, 172 Cal.App.4th at
pp. 1167-1168; People v. Albarran (2007)
149 Cal.App.4th 214, 223-224.)

Additionally, evidence of
intimidation by gangs was relevant to assist the jury in determining the
credibility of witnesses who were reluctant to testify or who recanted earlier
statements.

Regarding the
assertion the gang evidence amounted to evidence of bad character, the gang
expert did not testify Kwana Harris committed any prior bad acts and indicated
only that she was an “associate” of the Rolling 60’s.

With respect to Kwana Harris’s claim the evidence should
have been excluded under Evidence Code section 352 as inflammatory and unduly
prejudicial, no abuse of the trial court’s discretion appears. name="citeas((Cite_as:_172_Cal.App.4th_1148,_*">“ ‘[B]ecause
a motive is ordinarily the incentive for criminal behavior, its probative value
generally exceeds its prejudicial effect, and wide latitude is permitted in
admitting evidence of its existence.’
[Citations.]” (People v.
Gonzalez (2005) 126 Cal.App.4th 1539, 1550; People v. Garcia, supra,
168 Cal.App.4th at p. 275; People v. Martinez (2003)
113 Cal.App.4th 400, 413.)

In
any event, the testimony as to Kwana Harris’s involvement in gangs, as
differentiated from the testimony regarding Christopher Harris, was
minimal. Moreover, the trial court
instructed the jury to limit its consideration of gang evidence to proof of the
gang enhancement, which was not applicable to Kwana Harris, and to issues of
motive and credibility, and not to consider the evidence for any other
purpose. The trial court specifically
told the jury not to “conclude from this evidence that the defendant is a
person of bad character or that [s]he has a disposition to commit crime.” We presume the jury acted in accordance with
the instructions given. (People v.
Sanchez (2001) 26 Cal.4th 834, 852; People
v. Holt (1997) 15 Cal.4th 619, 662; People
v. Delgado (1993) 5 Cal.4th 312, 331.)

Finally, any abuse of discretion
in admitting gang evidence as to Kwana Harris was harmless in light of her
incriminating statements that indicated she lured Alexander to the scene of his
demise knowing he would be harmed and, after Alexander was killed by
Christopher Harris, she took his cell phone to eliminate evidence of her
involvement in the crime. These
statements were corroborated by telephone records that showed numerous calls
between Kwana Harris and Alexander in the hour preceding his death and the fact
Alexander’s cell phone was never recovered.


In light of this evidence, under
any standard of review, the outcome would not have been more favorable had the
trial court excluded the gang expert’s testimony as to Kwana Harris. (Chapman
v.California (1967) 386 U.S. 18
[17 L.Ed.2d 705]; People v.
Watson, supra, 46 Cal.2d at p. 836.)

4.
No ineffective assistance of counsel appears.

Kwana Harris contends her counsel rendered ineffective
assistance by failing to present an opening statement, written motions or
witnesses on her behalf. She further
asserts “there appears to have been no investigation of James Hardgraves or any
other witness involved in this matter.”
Kwana Harris claims her main defense, that she was at home at the time
of the shooting of Alexander, was not presented even though several witnesses
confirmed they were with her and overheard Alexander’s final phone call in
which he claimed he was being followed and was frightened. Kwana Harris asserts there is no reasonable
explanation for counsel’s failure to call these witnesses. She claims defense counsel failed to
investigate and failed to present witnesses who would have contradicted James
Hardgraves’s account of her statements.
Finally, she asserts defense counsel also failed to present James
Hardgraves’s preliminary hearing testimony, which contradicted his trial
testimony he bore Kwana Harris no animosity.


The
law to be applied is well settled. “In
assessing claims of ineffective assistance of trial counsel, we consider
whether counsel’s representation fell below an objective standard of name="sp_4040_207">name="citeas((Cite_as:_37_Cal.4th_168,_*207,_1">reasonableness under
prevailing professional norms and whether the defendant suffered prejudice to a
reasonable probability, that is, a probability sufficient to undermine
confidence in the outcome.” (>People v. Gray (2005)
37 Cal.4th 168, 206-207, citing Strickland v. Washington (1984) 466
U.S. 668, 694 [80 L.Ed.2d 674] and People v. Ledesma (1987) 43
Cal.3d 171, 217.) A reviewing court
defers to “ ‘ “counsel’s reasonable tactical decisions in examining
claims of ineffective assistance of counsel [citation], and there is a ‘strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.’ ” [Citation.]’
” (People v. Hinton (2006)
37 Cal.4th 839, 876.) If the record
on appeal sheds no light on why counsel acted or failed to act in the manner
challenged, an appellate claim of ineffective assistance of counsel must be
rejected unless counsel was asked for an explanation and failed to provide one,
or there simply could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15
Cal.4th 264, 266.) Otherwise, the claim
is more appropriately raised in a petition for writ of habeas corpus, which
permits the opportunity to present additional evidence regarding trial
counsel’s reasons for acting or omitting to act. (People v. Mendoza Tello, >supra, 15 Cal.4th at
pp. 266-267.)

Taking
Kwana Harris’s complaints in turn, our Supreme Court has recognized that the
decision to waive an opening name="SR;5281">statement
can be a reasonable trial strategy. (People
v. Carter (2005) 36 Cal.4th 1114, 1189; People v. Mitcham (1992) 1
Cal.4th 1027, 1059 [“The decisions whether to waive opening
statement
and whether to put on witnesses are matters of trial tactics and strategy which
a reviewing court generally may not second-guess”].)

With respect to the assertion
defense counsel failed to file written motions or call witnesses, Kwana
Harris does not specify what motions should have been filed or identify
witnesses counsel should have called.
Regarding the claim defense counsel should have called witnesses to
establish an alibi, the record contains no evidence of any witnesses who could
have provided an alibi defense. Further,
Kwana Harris makes no attempt to show what the omitted witness’s testimony
would have been or that the testimony would have been sufficient to create a
reasonable doubt as to her guilt.
Therefore, this argument is more appropriately presented in a habeas
corpus proceeding.

Moreover,
defense counsel called prosecution witness, Mericca Garner, as a witness for
the defense and elicited that James Hardgraves had a reputation in the
community as a liar. Defense counsel
also elicited from Garner that other individuals regularly used Kwana Harris’s
cell phone.

The record also contradicts Kwana
Harris’s assertion defense counsel apparently failed to investigate James
Hardgraves. On cross-examination by
Kwana Harris’s counsel, James Hardgraves admitted he and Kwana Harris were not
close, his wife had been unfaithful to him with a woman introduced to her by
Kwana Harris, and his wife died a week after a car crash that occurred while
she was traveling to Los Angeles to assist Christopher Harris. Also, before his wife died, one of the
Harris’s had been involved in a shooting outside the home of James Hardgraves’s
mother. James Hardgraves conceded “the
Harrises were bringing a lot of turmoil and trauma” into his life and he was
not happy with them. Kwana Harris’s
counsel also asked James Hardgraves about the fight between Kwana Harris and
her sister, Shanea, during which Shanea produced a knife and Kwana Harris
repeatedly denied Shanea’s accusation that Kwana Harris had been involved in
wrongdoing. Defense counsel also
cross-examined James Hardgraves at length as to his memory of incriminating
statements made by Kwana Harris.

During cross-examination of Jamie
Hardgraves, defense counsel established that she, unlike James Hardgraves, did
not recall any specifics in the statements made by Kwana Harris during the
weekend in San Diego. Jamie Hardgraves
admitted she never heard the name Alexander in the chirped phone conversations
and never heard “anything concerning a killing or murder . . . .” Counsel also attempted to show, through the
testimony of Jamie Hardgraves, that Kwana Harris regularly drove a silver car,
Shanea was the driver of the black SUV and Shanea’s behavior was unstable.

Defense counsel also elicited
Mericca Garner’s testimony that she felt her child would be placed in
foster care if she did not give the police a statement. On cross-examination, Garner testified
the written statements implicating Christopher and Kwana Harris were
false. Further, when Shanea accused
Kwana Harris of killing someone, Kwana Harris denied the accusation. Also, Garner did not hear Kwana Harris admit
involvement in any killing while they were in San Diego.

The record also indicates defense
counsel vigorously cross-examined Detective Evans regarding Garner’s written
statement and Detective Hansen regarding his analysis of the cell phone
records.

Defense counsel thereafter
utilized the evidence adduced at trial to urge the jury to acquit Kwana
Harris. Defense counsel argued the
People’s evidence consisted of “word on the street [and] rumors flying around”
which were uncorroborated and insufficient for a conviction. Counsel asserted there was no proof Kwana
Harris took Alexander’s cell phone and there were calls made on the phone after
he died which the prosecution had failed to explain. The black SUV was not driven exclusively
by Kwana Harris and her cell phone was used by other people. Also, there was evidence indicating Kwana
Harris and Shanea fought over a SIM card.
Thus, someone might have taken Kwana Harris’s SIM card on the night Alexander
was shot. Counsel argued Shanea, Garner,
Christopher Harris or some other person could have been calling Alexander. Thus, there was an “absence of evidence.” Counsel noted James Hardgraves had been
convicted of a crime of moral turpitude and his testimony could not be
trusted. Further, James Hardgraves did
not like Kwana Harris and, according to Garner, a prosecution witness, James
Hardgraves had a reputation in the community as a liar. Counsel explained the other people present in
San Diego were not called as witnesses because they did not overhear the
allegedly incriminating statements and even Jamie Hardgraves, who did testify,
did not hear Kwana Harris confess.
Counsel noted only James Hardgrav