P. v. Hendricks
Filed 1/7/13 P.
v. Hendricks CA2/3
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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.
JESSE V.
HENDRICKS,
Defendant and Appellant.
B236488
(Los Angeles County
Super. Ct. No.
NA086442)
APPEAL
from a judgment of the Superior Court of
County, Arthur Jean Jr., Judge. Affirmed.
Landra
E. Rosenthal, under
appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and John
Yang, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant
Jesse V. Hendricks appeals his conviction for
of 36 years to life in prison. Hendricks
contends the court erred by failing to instruct the jury on involuntary
manslaughter and by excluding evidence.
We affirm.
FACTUAL AND PROCEDURAL
BACKGROUND
1. Facts.
a.
Viewed in accordance with the usual rules governing
appellate review (People
v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304; People v. Robinson (1997) 53 Cal.App.4th 270, 273), the evidence
relevant to the issues presented on appeal was as follows. In the summer of 2010, Jennifer Gallagher was appellant
Hendricks’s fiancé. They lived together
in a house located on Irving Street in Los Angeles. Gallagher was a methamphetamine addict and
would sometimes disappear for days at a time, leading to problems in her
relationship with Hendricks. Hendricks
was a drug user as well.
Gallagher
was friends with the victim, Patrick Ho.
Ho went by the nickname “Chino†and lived in a
studio apartment on Carson Street in Torrance. Gallagher and Ho were close confidantes. They had talked about having a sexual
relationship and were attracted to each other.
Hendricks was suspicious of their relationship and disapproved of them
spending time together.
Gallagher
was also friends with Genesis Galaz.
According to Gallagher, unbeknownst to Hendricks, she and Galaz were
involved in an intimate relationship.
romantically involved and disapproved of their friendship.
During the
three months preceding the murder, Ho, Galaz, and Gallagher frequently spent time together using crystal
methamphetamine, often at Ho’s apartment.
(i)
By July 30, 2010, Gallagher and Hendricks
were still living together but their relationship was deteriorating.
31, 2010, Gallagher and Hendricks had been fighting. Galaz and Gallagher went to Ho’s apartment
during the day and used drugs. Later
they returned to the Irving Street apartment and
unexpectedly encountered Hendricks. The
women arranged to go to Ho’s residence to obtain more drugs. Hendricks did not object and decided to join
them. At approximately 2:00 a.m. Gallagher drove the trio in
her car to an auto shop in Wilmington, where they picked
up Ho. Ho emerged from the shop with a
bottle of Jack Daniels in his hand. Ho
and Hendricks had met only once before.
They shook hands and were cordial to one another.
Gallagher
drove the group to Ho’s apartment. Ho had a
roommate, and the men had divided their space by stacking plastic containers
down the middle of the apartment.
kitchen to prepare the methamphetamine syringes. Gallagher injected Hendricks with
methamphetamine. Hendricks then sat on
Ho’s bed, watching pornography. Ho went
into the bathroom to inject himself with methamphetamine, but had difficulty
finding a vein due to his tattoos. He
called to Hendricks from the bathroom in a friendly way, and the two men
conversed calmly. Hendricks seemed
nervous but appeared to be trying to get along with Ho. After conversing with Ho, Hendricks returned
to the bed.
At some
point Gallagher entered the bathroom with Ho, and the two discussed the fact
Hendricks was “tripping.†When Gallagher
exited the bathroom, Hendricks complained that she had been “blatantly speaking
to another guy†right “in front of†him.
As the night wore on, Hendricks repeatedly indicated he was
uncomfortable or anxious and wanted to leave.
Instead of leaving, however, Gallagher and Galaz rummaged through a box of clothing in the
apartment.
Suddenly the
women heard Ho yelling, “ ‘Genesis, get him off of me.’ †They ran around the plastic divider and into
the bathroom. Hendricks, who was bigger
than Ho, had cornered Ho in the bathroom and was stabbing him with a knife with
a jagged, four-inch blade. Ho fell to
the ground, screaming. Hendricks pinned
Ho to the floor and stabbed him again.
Ho did not have anything in his hands and was unable to put up “much of
a struggle.†Galaz yelled,
“ ‘Jesse, what the fuck are you doing?’ †Hendricks stopped and looked at Galaz and
then resumed his attack on Ho, stabbing more forcefully than before. Galaz pulled Hendricks off Ho, who was
bleeding profusely, and called 911.
Hendricks left the apartment, taking the keys to Gallagher’s car with
him.
(ii) The
investigation.
Ho died from a combination of blood loss and stab
wounds to his liver and both lungs. He
had suffered four stab wounds and three incised wounds, including defensive
incision wounds on both his hands.
Gallagher
had seen the knife used by Hendricks at their Irving Street residence, and had
observed Hendricks in possession of it at least once prior to the murder. Gallagher’s keys and the knife were found in
the landscaping near Ho’s apartment.
b.
Hendricks testified in his own behalf, as
follows. He and Gallagher had argued
about Gallagher’s drug use at the end of July 2010. They agreed to meet on July 31, 2010, at
the Irving Street house. Gallagher
arrived with Galaz, and both women were high.
Hendricks and Gallagher agreed that they would go purchase
methamphetamine and then drop Galaz off at her residence. Hendricks had no idea the drugs were to be
purchased from Ho and would not have “got[ten] in the car†had he known. At Ho’s house Hendricks got high after
Gallagher injected him with methamphetamine.
There were no problems between him and Ho at first. Hendricks attempted to make small talk about
the fact they had both served time in prison, and Ho discussed his pornography
collection. Hendricks became nervous
after he observed several knives in Ho’s residence, including one that was on
the top of the toilet. After Ho
apparently ingested additional doses of methamphetamine, Ho’s demeanor abruptly
changed. He groped himself in a sexual
manner and toyed with the knife Hendricks had seen on the toilet. Ho demanded that Hendricks leave the
apartment with Galaz, but leave Gallagher behind. Gallagher had previously told Hendricks that
Ho had raped her after they used drugs together and she blacked out. Hendricks was afraid Ho had nefarious motives
and would harm Gallagher if she stayed behind.
He attempted to get Gallagher and Galaz to leave, but they ignored
him. While Hendricks was waiting for the
women, Ho came out of the bathroom with the knife and said, in an
expressionless tone, “ ‘Get out.’ †Ho
appeared to be “off the charts high.â€
Hendricks told Ho he would not leave without Gallagher, but Ho said she
would be alright. Ho, holding the knife,
stepped toward Hendricks. Hendricks
grabbed Ho’s wrist in an effort to disarm him.
He pushed Ho into the bathroom, causing Ho to fall. The knife fell on the floor, and Hendricks
picked it up. When Ho stepped toward
Hendricks, Hendricks stabbed Ho in the stomach area. Hendricks continued to stab Ho because he was
afraid and did not know how badly Ho was hurt.
Hendricks denied being armed with a knife or bringing a knife to Ho’s
house. He also denied intending to kill
Ho. Instead, he stabbed Ho in an effort
to protect Gallagher and himself. He
affirmed that he had not stabbed Ho in a fit of anger or jealousy.
The People
impeached aspects of Hendricks’s account with portions of his interview with
officers. Among other things, during
that interview Hendricks did not state that Ho had previously raped Gallagher
and did not clearly explain that Ho had stepped toward him with a knife. He declined to answer several questions that
might have incriminated him. He admitted
stabbing Ho at least four times, twice in the back and once in the
stomach. Significant portions of the
pretrial interview were consistent with Hendricks’s eventual testimony at
trial. Hendricks also admitted that a
few nights before the stabbing, he had spoken to Ho on the telephone and
threatened to “kick [his] ass.â€
2. Procedure.
Trial was by jury.
Hendricks was convicted of the second degree murder of Ho. (Pen. Code, § 187, subd. (a).)
personally used a deadly and dangerous weapon, a knife, in commission of the
murder. (§ 12022, subd.
(b)(1).) In a bifurcated proceeding, the
trial court found Hendricks had suffered a prior conviction for carjacking (§
215, subd. (a)) and had served a prior prison term within the meaning of
section 667.5, subdivision (b). The
court sentenced him to a term of 36 years to life in prison. It imposed a restitution fine, a suspended
parole restitution fine, a criminal conviction assessment, and a court security
fee. Hendricks appeals.
DISCUSSION
1. The
trial court did not err by omitting an instruction on involuntary manslaughter.
Hendricks’s
jury was instructed on first and second degree murder, homicide in self-defense
and the defense of another, voluntary manslaughter on an imperfect self-defense
theory, and related principles.
Hendricks contends the trial court erred by failing to also instruct,
sua sponte, on involuntary manslaughter with CALJIC Nos. 8.45 (defining
involuntary manslaughter) and 8.46 (defining caution and circumspection). He contends the omission deprived him of his
state and federal constitutional rights to due process and a jury trial. We disagree.
A trial court
must instruct, sua sponte, on the general principles of law that are closely
and openly connected to the facts and that are necessary for the jury’s
understanding of the case. (
548; People v. Abilez (2007) 41
Cal.4th 472, 517; People v. Breverman
(1998) 19 Cal.4th 142, 154.)
Instructions on a lesser included offense must be given only when there
is substantial evidence from which the jury could conclude the defendant is
guilty of the lesser offense. (
813; People v. Manriquez (2005) 37
Cal.4th 547, 584.) Substantial evidence
is evidence that a reasonable jury could find persuasive. (People
v. Benavides (2005) 35 Cal.4th 69, 102.)
In deciding whether there is substantial evidence of a lesser included
offense, we do not evaluate the credibility of the witnesses, a task for the jury. (Manriquez,
at p. 585.) The duty to instruct sua
sponte on lesser included offenses is not satisfied by instructing on only one
theory of an offense if other theories are supported by the evidence. (People
v. Lee (1999) 20 Cal.4th 47, 61.) We
independently review the question of
whether the trial court erred by failing to instruct on a lesser included
offense. (People v. Booker (2011) 51 Cal.4th 141, 181.)
Involuntary
manslaughter is a lesser included offense of murder. (People
v. Thomas, supra, 53 Cal.4th at p. 813.)
It is statutorily defined as a killing occurring during either: (1) the commission of an unlawful act not
amounting to a felony, that is, a misdemeanor; or (2) the commission of a
lawful act which might produce death, performed in an unlawful manner or
without due caution and circumspection.
(§ 192, subd. (b); People v.
Manriquez, supra, 37 Cal.4th at p. 587; People
v. Butler (2010) 187 Cal.App.4th 998, 1006-1007; People v. Garcia (2008) 162 Cal.App.4th 18, 27;
219, 227.) Additionally, an
unintentional homicide committed in the course of a noninherently dangerous
felony may properly support a conviction for involuntary manslaughter if the
felony is committed without due caution and circumspection. (People
v. Burroughs (1984) 35 Cal.3d 824, 835-836, disapproved on other grounds in
People v. Blakeley (2000) 23 Cal.4th
82, 89; Butler, at
p. 1007; Garcia, at p. 29;
647, 654.) The mens rea for all three
types of involuntary manslaughter is criminal negligence. (Butler,
p. 1007.) A defendant who, “acting with
conscious disregard for life, unintentionally kills in unreasonable
self-defense is guilty of voluntary manslaughter rather than the less serious
crime of involuntary manslaughter.†(
self-defense may sometimes be guilty of involuntary manslaughter, but not if
the killing was committed with a conscious disregard for life. (People
v. Johnson (2002) 98 Cal.App.4th 566, 575, fn. 10; Blakeley, at p. 91.)
Here, the
evidence did not support an involuntary manslaughter instruction. Hendricks grabbed a large, “Rambo†style
knife and repeatedly and deliberately stabbed Ho in the torso with it,
puncturing both Ho’s lungs and his liver, as Ho screamed for help. There was no evidence that would have
supported a finding the crime occurred during commission of a misdemeanor, a
lawful act other than self-defense, or a noninherently dangerous felony. Repeatedly stabbing Ho amounted to at least
assault with a deadly weapon, an inherently dangerous felony. (See, e.g., People v. Garcia, supra, 162 Cal.App.4th at p. 28, fn. 4 [assault
with a deadly weapon is an inherently dangerous felony]; § 245, subd. (a)(1); §
17.)
Hendricks
argues that the jury could have concluded he acted without the intent to kill
and without malice, and therefore an involuntary manslaughter instruction was
warranted. He urges there was evidence
he lacked the intent to kill Ho: he so
testified. He hardly knew Ho, he did not
want to visit Ho’s apartment, and repeatedly sought to leave before the
stabbing. He also posits that there was
evidence he acted without malice. He
suggests the evidence showed he was attempting to defend himself and Gallagher,
and overreacted to a perceived threat.
Thus, he theorizes, the jury could have found his attempt to defend
himself was lawful, but was carried out in a dangerous or criminally negligent
fashion.
Hendricks’s
arguments lack merit. In
evidence would have supported a finding he shot the victim by mistake, while
negligently attempting to defend against a perceived threat. (People
v. Manriquez, supra, 37 Cal.4th at p. 587.)
The court reasoned that the killing, which involved two fatal and three
nonfatal gunshot wounds inflicted at close range, could “only be characterized
as having been intentionalâ€; even if the first shot was an accident, the
defendant admittedly continued shooting as the victim was falling to the
ground. “[T]he trial court was not
required to instruct the jury on involuntary manslaughter in view of the
circumstance that defendant intentionally kept firing his weapon, inflicting at
least one other fatal wound.†(
four fatal wounds, at least some of them when Ho was already on the ground,
incapacitated.
Furthermore,
a defendant who kills in unreasonable self-defense is
guilty of involuntary, rather than voluntary, manslaughter only in the narrow
instance where the killing took place under circumstances not demonstrating conscious disregard for life. (People
v. Blakeley, supra, 23 Cal.4th at
p. 91; People v. Johnson, supra, 98
Cal.App.4th at p. 575, fn. 10.)
There was no evidence from which the jury could have concluded Hendricks
acted without a conscious disregard
for life. Hendricks stabbed and cut Ho
seven times, so forcefully as to puncture both his lungs and his liver; he
continued stabbing even after Ho was clearly incapacitated. These actions indisputably demonstrated a
conscious disregard for life. Thus, even
if the jury concluded Hendricks lacked the intent to kill and acted under the
actual but unreasonable belief in the need for self-defense, the crime would
have been voluntary
manslaughter. (Blakeley, at p. 92.)
18, is instructive. There, the defendant struck the victim,
Gonzalez, in the face with the butt of a shotgun,
causing Gonzalez to fall, hit his head on the sidewalk, and die. The court considered whether a jury could
“find Garcia guilty of involuntary manslaughter, rather than second degree
murder or voluntary manslaughter, based on Garcia’s testimony he hit Gonzalez
in an automatic response to Gonzalez’s lunge at the shotgun and did not aim for
Gonzalez’s face and did not intend to kill [him.]†(Id. at p. 22.) Garcia concluded: “An unlawful killing during the commission of
an inherently dangerous felony, even if unintentional, is at least voluntary
manslaughter. Because an assault with a
deadly weapon or with a firearm is inherently dangerous, the trial court
properly concluded the evidence would not support Garcia’s conviction for
involuntary manslaughter and, therefore, did not err in declining to instruct
the jury on involuntary manslaughter as a lesser included offense of
murder.†(Ibid.) Similarly,
Hendricks’s argument that he stabbed Ho in self-defense when Ho came at him did
not support an involuntary manslaughter instruction. (Id. at
pp. 32-33.)
Even
assuming the trial court erred by omitting an
conclusion we do not accept––any error was harmless. The erroneous failure to instruct on a lesser
included offense is an error of California law, and reversal is required only
if it appears reasonably probable the defendant would have obtained a more
favorable outcome had the error not occurred.
(People v. Moye, supra, 47
Cal.4th at pp. 555-556; People v.
Breverman, supra, 19 Cal.4th at p. 165.)
The jury was instructed on, and rejected, the theory that Hendricks
acted in self-defense, perfect or imperfect, and convicted him of second degree
murder rather than voluntary manslaughter.
Therefore it necessarily found he acted with a conscious disregard for
human life. (People v. Manriquez, supra, 37 Cal.4th at p. 588.)
Moreover,
there was strong evidence supporting the second degree murder verdict on both
an express and an implied malice theory.
The undisputed evidence showed Hendricks stabbed Ho repeatedly,
including after Ho was incapacitated and after Galaz asked what he was doing,
strongly suggesting an intent to kill. Even if a
defendant lacks express malice, that is, the intent to kill, he or she is
guilty of second degree murder if the People prove implied malice. (People
v. Garcia, supra, 162 Cal.App.4th at pp. 26-27.) “Malice will be
implied ‘when the killing results from an intentional act, the natural
consequences of which are dangerous to life, which act was deliberately
performed by a person who knows that his conduct endangers the life of another
and who acts with conscious disregard for life.
[Citations.]’ [Citations.]†(People
v. Taylor (2010) 48 Cal.4th 574, 623-624; Garcia, at pp. 26-27.)
It was undisputed that Hendricks deliberately stabbed Ho, conduct that
he must have known was dangerous to human life.
There was therefore no probability Hendricks would have obtained a more
favorable verdict had the court instructed on involuntary manslaughter.
2. Exclusion
of defense evidence.
Hendricks
next complains that the trial court erred by excluding the testimony of two
proposed defense witnesses: Ho’s
roommate, Paul Challender; and a defense drug expert. He contends exclusion of the testimony
infringed upon his rights to present a defense, to due process, and to a fair
trial. We discern no error.
a. Applicable
legal principles.
Only
relevant evidence is admissible. (Evid.
Code, § 350.) “ ‘Relevant evidence’
means evidence, including evidence relevant to the credibility of a witness or
hearsay declarant, having any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the action.†(Evid. Code, § 210; see also
642; People v. Mills (2010) 48
Cal.4th 158, 193; People v. Williams (2008)
43 Cal.4th 584, 633-634.) Relevant
evidence may be excluded, in the trial court’s discretion, if its probative value
is substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, § 352; Lee, at p. 643.) A trial
court has broad discretion in determining whether evidence is relevant and
whether Evidence Code section 352 precludes its admission. (Mills,
at p. 195; Williams, at p. 634.) We apply the abuse of discretion standard to
a trial court’s rulings on the admissibility of evidence, including those
turning on the relevance or probative value of the evidence in question. (Lee,
at p. 643; People v. Hamilton (2009)
45 Cal.4th 863, 930.) “Ordinarily a
criminal defendant’s attempt ‘to inflate garden-variety evidentiary questions
into constitutional ones [will prove] unpersuasive. “As a general matter, the ‘[a]pplication of
the ordinary rules of evidence . . . does not impermissibly
infringe on a defendant’s right to present a defense.’ [Citations.]
. . . [E]xcluding defense evidence on a minor or subsidiary
point does not impair an accused’s due process right to present a defense.â€
’ [Citation.]†(People
v. Thornton (2007) 41 Cal.4th 391, 443-444.) The erroneous exclusion of evidence requires
reversal only if it is reasonably probable that appellant would have obtained a
more favorable result had the evidence been allowed. (Evid. Code, § 354; People v. Richardson (2008) 43 Cal.4th 959, 1001;
880.)
b. Exclusion
of Challender’s testimony.
After
Hendricks testified, the defense sought to call Challender. The trial court asked defense counsel for an
offer of proof. Counsel averred
Challender would state that Gallagher and Ho had a sexual relationship, which,
in counsel’s view, would have (1) impeached Gallagher’s contrary
testimony, and (2) supported the defense theory that Gallagher engineered
the meeting between Hendricks and Ho because she wanted Ho to confront
Hendricks regarding the domestic violence Hendricks had purportedly committed
against her. The trial court excluded
Challender’s proposed testimony on the grounds it was based on hearsay, was
irrelevant, was more prejudicial than probative, and could only impeach
Gallagher on a collateral issue.
The
trial court’s ruling was correct. Any
out-of-court statements Challender heard would have been inadmissible hearsay
if offered for their truth. (Evid. Code,
§ 1200, subd. (a).) Evidence
Challender observed a sexual relationship between Ho and Gallagher would not
have been hearsay, but was largely irrelevant.
Evidence of the sexual relationship could not have been offered to prove
heat of passion: Hendricks had already
testified that when he stabbed Ho, he was not angry and did not act in the heat
of passion. A showing Gallagher lied
when she testified about her relationship with Ho would have impeached her, but
only on a collateral matter. A trial
court has the “ ‘power to control the presentation of proposed impeachment
evidence “ ‘ “to prevent criminal trials from degenerating into
nitpicking wars of attrition over collateral credibility issues.†[Citation.]’ †’ †(People
v. Riccardi (2012) 54 Cal.4th 758, 808-809; People v. Mills, supra,
48 Cal.4th at p. 195.) Moreover,
evidence Gallagher lied about having a sexual relationship with Ho could not
have had much impact on the jury’s evaluation of her credibility: among other things, she had already admitted
being a long-time methamphetamine addict, having a sexual affair with Galaz
while engaged to Hendricks, being attracted to and flirting with Ho, repeatedly
lying to Hendricks, stealing, doing “unacceptable†things while high, and
suffering prior convictions for grand and petty theft.
Hendricks
argues that Challender’s testimony would also have shown Gallagher “was
responsible for instigating the hostility between appellant and Chino,†a fact
he theorizes could have convinced the jury the killing was manslaughter. He posits that evidence Ho planned to confront
Hendricks about the purported abuse of Gallagher could have supported the
defense position that Ho was the aggressor.
There are several problems with this theory. It was highly speculative; defense counsel
did not aver Challender knew Ho planned to confront Hendricks, or that
Gallagher had sought to arrange such a confrontation. As noted, Challender’s testimony on this
point would have been inadmissible hearsay. (Evid. Code, § 1200, subd. (a).) Gallagher’s state of mind was
irrelevant. The proposed testimony was
cumulative. Gallagher had already
testified that she told Ho about Hendricks’s purported physical abuse, and in
response Ho offered to “get his friends in the valley to get Jesse.†Challender’s reiteration of such a
conversation would have served no purpose.
Finally,
contrary to Hendricks’s contention, the record does not demonstrate that the
trial court gave defense counsel an inadequate opportunity to explain the
relevance of Challender’s testimony. The
evidence was properly excluded.
c. Exclusion
of Dr. McGee.
After
excluding Challender’s testimony, the trial court asked defense counsel, “Any
other witnesses?†Defense counsel
replied, “Dr. [McGee]. And he won’t be
available until Tuesday.†When the trial
court asked what McGee would testify about, defense counsel replied, “He will
testify about the effects of methamphetamine on users.†The trial court replied, “[a]bsent a better
offer of proof than that, we are going to conclude today.†Defense counsel responded, “Okay,†and did
not provide further information about McGee’s proposed testimony. During deliberations the jury sent out
several questions regarding the role of intoxication in the case.
Hendricks
contends that Dr. McGee’s testimony was relevant to provide a “clearer pictureâ€
of “the impact methamphetamine has upon drug users,†including how the drug
affected Hendricks’s judgment. He
contends such testimony was “essential†to the defense, as demonstrated by the
jury’s questions indicating its focus on the role intoxication played in the
crime. The People counter that the
court’s ruling was proper because defense counsel provided an inadequate offer
of proof, and because presentation of the expert’s testimony would have
necessitated a brief delay of the trial.
Apart
from the delay issue, in our view the court’s ruling was correct because
defense counsel failed to demonstrate the probative value of the proposed
testimony. (See Evid. Code, § 354, subd.
(a) [a judgment may not be reversed on the ground of erroneous exclusion of
evidence unless the “substance, purpose, and relevance of the excluded evidence
was made known to the court by the questions asked, an offer of proof, or by
any other meansâ€].) Defense counsel gave
only a vague and general description of the expert’s testimony, that is, that
he would “testify about the effects of methamphetamine on users.†Counsel did not offer any specifics, and did
not describe how such evidence was directly relevant to the defense. Gallagher and Hendricks had both explained,
during their testimony, how methamphetamine affected them. It was not clear how the expert’s testimony
would have added to the testimony already presented. On appeal, Hendricks similarly fails to
specify the substance of the expert’s proposed testimony or give particulars
regarding how it would have assisted the defense. Instead, appellant relies on conclusory
assertions that the testimony would have been “helpful†to “shed some light on appellant’s use of
methamphetamine and its likely impact on his state of mind.â€
Given
the vague nature of the proposed testimony, we cannot say the trial court
erred. Nor is Hendricks’s argument that
the expert’s testimony would have been relevant to “the motives of the
witnesses with regard to their testimony†persuasive. In light of the trial evidence, we do not see
the connection. Finally, Hendricks is
incorrect when he urges that the trial court provided an inadequate opportunity
for defense counsel to describe the relevance of McGee’s testimony. To the contrary, the court’s statement
invited further explanation, but defense counsel declined to provide it.
DISPOSITION
The
judgment is affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH,
J.
We concur:
KLEIN, P. J.
CROSKEY, J.
name="_ftn1" title="">[1] Galaz denied being involved in a sexual relationship with
Gallagher. She testified that although
she was attracted to Gallagher, she did not pursue an intimate relationship
because she knew Gallagher was engaged to Hendricks.
July 31, 2010, she was Hendricks’s fiancé and they were living together; she
and Hendricks were not physically together; she knew the relationship “needed
to end but it hadn’tâ€; she intended to end the relationship, and the pair had “recently
separatedâ€; it was “obvious†they would not be able to stay in the same house;
the pair was “[not] together at the timeâ€; and they were “fighting†and “for
the most part . . . were broken up.â€
