P. v. Holeman
Filed 7/19/13 P. v. Holeman CA4/2
NOT TO BE PUBLISHED IN OFFICIAL
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IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
>
THE PEOPLE, Plaintiff and Respondent, v. JONATHAN CRAIG HOLEMAN et al., Defendants and Appellants. | E053332 (Super.Ct.No. FSB035285) OPINION |
APPEAL
from the Superior Court of
Bernardino County.
Brian S. McCarville, Judge.
Affirmed.
Diane
Nichols, under appointment by the Court of Appeal, for Defendant and Appellant,
Samuel Charles Wright, Jr.
David
McNeil Morse, under appointment by the Court of Appeal, for Defendant and
Appellant, Jonathan Craig Holeman.
Kamala
D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
James D. Dutton, and Alana Cohen Butler, Deputy Attorneys General, for
Plaintiff and Respondent.
I
INTRODUCTION
A
jury convicted defendants Jonathan Craig Holeman and Samuel Charles Wright,
Jr., of killing John Painter and his daughter, Barbara Martin, in Painter’s
vacation home in Lake Arrowhead. The six counts included two counts of
two counts of robbery (§ 211), one count of burglary (§ 459), and one count of
automobile theft. (Veh. Code, § 10851,
subd. (a).) Counts 1 and 2 also included
allegations of special circumstances for multiple murders and for felony murder
based on robbery and murder—within the meaning of section 190.2, subdivision
(a)(3) and (17)(A) and (G).
The
two defendants were tried jointly with separate juries. The court sentenced both defendants to life
in prison without possibility of parole.
In separate, but
consolidated, appeals, defendants concede they killed the victims but they join
in arguing they were guilty only of second degree murder because they did not
intend to steal from the victims before they killed them. Wright particularly argues there is
insufficient evidence for robbery or burglary to support Wright’s convictions
for those offenses and for murder with special circumstances.
failed to instruct the jury on theft as a lesser included offense of robbery
and committed a variety of instructional
errors involving CALCRIM Nos. 362; 702 and 703; 730, 1603, and 1702; and
after-formed intent. Additionally,
Wright maintains there was no true finding regarding burglary and Holeman
contends there was evidentiary error in admitting evidence of a jacket bearing
a swastika patch. Finally, defendants
make claims of double jeopardy and cumulative error.
After
a thorough review of the extensive record, we conclude no prejudicial error
justifies reversal or any lesser relief as requested by defendants. We affirm the judgments.
II
FACTUAL BACKGROUND
A. Father’s Day, June 16, 2002, and Subsequent
Events
Painter, an 87-year-old man,
owned a vacation home in Lake Arrowhead.
One of his daughters, Janet Fischer, helped care for him because he
suffered from dementia. Wright had
performed handyman work for Painter over the years and more recently in April
2002.
In June 2002, Fischer went
on vacation to Hawaii while her sister, Barbara Martin, age 58, stayed with
Painter in Lake Arrowhead. Fischer
loaned Martin her Hyundai Accent so she would have reliable transportation.
Fischer spoke to her father
and sister on the telephone while she was out of town but was unable to contact
them after June 15, 2002.
In mid-June 2002, Wright
told his friend, Ariane Ingham, that he needed about $1,000 to pay off some
outstanding warrants and to hire an attorney.
About the same time, Wright complained to Rebecca Brown, a fellow
methamphetamine user, that Painter had underpaid him for work on some
cupboards. On the morning of Sunday,
June 16, 2002, (Father’s Day) Ingham gave Wright and Holeman a ride to a gas
station near Painter’s house.
Later on the night of June
16, 2002, Wright agreed to pay Shannon Holmberg and Melanie Goldfield to clean
the Painter house. The next morning,
June 17, 2002, Wright, Holeman, Holmberg, and Goldfield met at the Painter
house. Wright was driving the
Hyundai. Wright and Holeman showed the
women around and told them to avoid the basement due to some sewage
problems. While cleaning, Goldfield
noticed a fresh, dark red stain on the carpet in one of the bedrooms but she
did not ask about it. It looked like
someone had previously tried to clean it and Goldfield was unable to get the
stain out. Goldfield also found
Painter’s identification card under the toaster in the kitchen. Wright told her to put it back.
Also on June 17, 2002,
Holeman asked Holmberg to drive him to the Mountain Pawnshop in Crestline to
cash a check for $300 from Painter’s checking account with a note on the memo
line that said “yard clean up.†Because
the pawn shop owner was unable to verify the funds or to reach Painter by phone,
she refused to cash the check. Holeman
left but returned and asked her to call Painter again. The man who answered sounded like Wright,
whom the owner knew, so she still refused to cash the check.
Holeman tried to cash the
same check at Johnny’s Market in Crestline.
The owner did not know Painter but he knew Holeman did not do
maintenance work. The owner refused to
cash the check. Holeman finally
succeeded in cashing the check at Painter’s bank, Jackson Federal Bank.
Painter’s bank account
showed debits for three checks: 1) a
check for $1,600, with the memo “Decking,†dated June 14, 2002, payable to “Sam
C. Write,†cashed on June 17, 2002; 2) the check for $300, payable to Holeman,
with the memo “yard clean up,†dated and cashed on June 17, 2002; 3) and a
third check for $350, dated June 18, 2002, payable to “Jonathan C. Holeman,â€
cashed on June 19, 2002. On June 20,
2002, a white male presented to the bank another check in the amount of $1,250
which was refused. A check from
Painter’s account may also have been used to pay for pizza.
In the week following
Father’s Day, Holeman and Wright and their friends took a trip to Victorville
to score drugs and party at a motel.
They all stayed at another house on Crest Forest Drive, partying and
using drugs. Later on, Wright paid cash
to stay at the Lake Arrowhead Resort but left without paying for what was
consumed from the mini-bar in the room.
Finally, on June 20, 2002, defendants used methamphetamine and partied
at the Painter house with other methamphetamine users.
People who stayed at the
Painter home noticed that the house had a foul odor. Wright, claiming he was the caretaker,
explained that there had been a sewage leak.
B. Wright’s Arrest on June 21, 2002
On June 21, 2002, a CHP
officer pulled over Wright, driving Fischer’s Hyundai sedan, for not stopping
at a stop sign. Wright did not provide
identification but he gave the officer Fischer’s registration and expired
insurance card and claimed he was using his boss’s car. Because Wright had active warrants and a
suspended license, the officer arrested and searched him. The officer found a credit card bearing
Painter’s name, which Wright said his boss had given him to purchase gas in
lieu of payment for work. Wright was
held in custody for the mini bar theft at the Lake Arrowhead Resort, which he
admitted.
As discussed below, Joshua
Mitchell was a passenger in the Hyundai.
Inside the car trunk, the officer found a leather jacket that bore a
swastika patch.
C. The Investigation
On June 26, 2002, a
housekeeper for the property management company was cleaning Painter’s house
and noticed a foul odor and beer cans littered about, as well as items such as
a man’s belt, an empty man’s wallet, and a note from “Sam.†She alerted the rental agent because the
scene seemed suspicious.
Painter’s daughter, Fischer,
had requested that law enforcement conduct a welfare check since she had been
unable to contact her father or sister.
When the welfare check was conducted on June 26, 2002, Painter and
Martin’s bodies were found in the moderate stages of decomposition. The victims had likely been dead for
approximately two weeks. Martin’s body
was wrapped in a comforter and there was a plastic bag around her head. Painter’s
body was covered with a carpet. The back
pocket of his pants was turned inside out.
Painter’s death was caused
by blunt force trauma to the head. He
suffered bruises to the face and multiple skull fractures caused by at least
six blows to the head with an instrument consistent with a ball peen hammer. One of the injuries to the back of the head
likely occurred first and rendered him unconscious. The blood spatter evidence indicated that
Painter had been hit in the head in the basement in roughly the same position
where he was found.
Martin’s death was likely
caused by a combination of strangulation and suffocation. Extensive hemorrhages were located in the
muscles and tissues of the neck. The
hyoid bone above her voice box was broken.
Those injuries were consistent with strangulation. The bag over her head may have caused suffocation
but would not be apparent from any examination.
She had a dislocated shoulder and hemorrhages to her chest consistent
with a struggle.
Evidence collected at the
scene connected Wright and Holeman to the Painter residence. Wright’s fingerprints were found on a white
plastic bucket and a beer can located outside the back door. Holeman’s fingerprints were found on a vodka
bottle located in the kitchen.
D. Wright’s Statements (Admitted Only Against Wright)
Wright called his parents
from jail. During one call, Wright told
his mother that Holeman “need[s] to go clean up this one piece of property for
me. Tell him to go clean up . . . he
knows what it is.†His mother asked
about a check Wright had received from Painter and asked Wright for Painter’s
telephone number. He responded, “I can’t
fucking talk right now about that.†He
told her not to call the Painters because they were in Hawaii.
In another call
recorded the next day, Wright’s father asked how the Painters would find out
where their car was. Wright explained
that the police would notify them by mail and warned his father not to say
anything about the car if they called.
He admitted to his father that he had stayed at the Hilton with
Painter’s credit card and his father advised him to stop using it. When his father complained that they were
almost out of food, Wright told him to borrow money from Holeman.
In the final call to his
mother, Wright said he wished he had bought food but he was not sure if he
could have used Painter’s credit card.
His mother said she had spoken to Holeman who was “finishing up that job
supposedly that you said.â€
Detective Heard interviewed
Wright after he became a suspect in the homicides. Wright told him that he went with Holeman to
Painter’s house to fix cabinets. He
submitted a bill to Painter and then went upstairs after Holeman told him to
check a broken ceiling fan. Upstairs
Wright found Martin convulsing on the floor next to the pool table. Holeman called Wright downstairs where
Painter lay on the ground with severe head injuries.
Wright changed his story
during his interview. He said that he
told Holeman to put a bag over Martin’s head to kill her. Later, he admitted to putting his hands
around her neck and tying the bag over her head. He saw Holeman hit Painter twice in the
head. He told Holeman to “finish what he
had started†and put Painter out of his misery.
Wright admitted that it sounded like he was controlling the
situation. Wright used a white plastic
bucket to throw water on Martin to make it look like she had drowned. He and Holeman rolled Martin’s body into a
sheet and took it down to the basement.
When they returned some hours later, neither victim was moving so he
knew they were dead.
At the
conclusion of the interview, Wright wrote the following statement, “At one
point I couldn’t stand to see the victims in pain, I didn’t know what to do, I
said to John [Holeman] finish Mr. Painter to put him out of his misery, and on
the female to discontinue to get a grocery bag from kitchen [
one time [there] was no right state of mind or control when this happen. Sam L. Wright.â€
E. Holeman’s Statements (Admissible Only Against Holeman)
Brown had known Holeman for
several years. On June 27, 2002, Holeman
came to her home, acting strangely. He
expressed paranoia about being bugged and started writing her notes which they
passed back and forth. Holeman wrote
that, while hitting Painter in the head with a mallet hammer, he felt the life
escape from Painter’s body, which “gave him an overwhelming sense of power,†so
he continued to hit him. Brown and
Holeman burned the notes in the fireplace.
Brown was so horrified she left, even though Holeman told her he loved
her and would not hurt her. She did not
return home for a week.
When Holeman spoke to Stacy
Ray, a maternal figure to him, she noticed that he was wearing new
clothes. Holeman confided that he had
done something really bad. When he and
Wright had been hired to clean up some pine needles, Wright hit Painter on the
head with a hammer and instructed Holeman to help get Painter in the
house. Wright then killed a woman and
threatened to kill Holeman if he did not help.
Holeman admitted that he wrapped the man in a carpet and that it was
hard to kill the woman. Although he
changed the specifics of the story, he maintained Wright did all the
killing. Ray told Holeman to leave and
instructed one of her friends to contact the police anonymously about what
Holeman had said.
On July 1, 2002, Holeman
called a person named “Jamie†from jail.
He told her he was going to be in prison for about 15 years because “me
and Sam killed some people[,] dude.â€
When Jamie reacted with surprise, Holeman laughed. When she said it was not funny, he admitted
that it was “kinda fucked up.†He mused
that he might get life in prison or the death penalty but he hoped he would be
offered a deal.
Holeman boasted to Jamie he
had been arrested by eight officers in suits and ties who pulled their guns out
and chased him down the street. He
explained that he had beaten Painter with a hammer and that Wright had killed
the woman. He claimed he had flipped out
and “spun outta’ [his] mind.†He
referred to four additional murder charges and to shooting “some black dude or
whatever.†He called himself a murderer
but denied raping Martin because he still had “some values and morals.†He also claimed to have made $56,000 from the
murders. He laughed and joked throughout
the conversation.
F. Defense Evidence
Dr. Max Schneider testified
for the defense regarding methamphetamine addiction. He explained how methamphetamine impairs
perception and alters behavior. Used
long term, methamphetamine can cause psychosis or trigger schizophrenia. Large quantities of methamphetamine may cause problems with
impulse control and reasoning. Based on
a hypothetical question, Dr. Schneider opined that a person “spun out†on
methamphetamine may not be able to make rational decisions or weigh
consequences and have difficulty distinguishing right from wrong.
III
SUFFICIENCY OF EVIDENCE FOR
THE ROBBERY AND BURGLARY CONVICTIONS AND SPECIAL CIRCUMSTANCE FINDINGS
Wright argues that his
convictions for robbery and burglary,
in addition to the robbery and burglary special circumstances, must be reversed
because there was insufficient evidence to support a finding that Wright had
the intent to rob upon entering the Painter home or before he attacked Painter
or Martin. Respondent counters that the
jury had substantial evidence upon which to base its verdicts because Wright
needed money and was unhappy with Painter before the killings and, after the
murders, he stole a substantial amount of property, including Painter’s wallet,
and never offered any other motivation for killing Painter and Martin. We agree with the People.
The appellate court reviews
a claim of insufficient evidence in
the light most favorable to the judgment to determine whether the record
contains evidence that is reasonable, credible, and of solid value, from which
a rational trier of fact could find the defendant guilty beyond a reasonable
doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319;
170.) The reviewing court does not
reweigh the evidence or determine the credibility of the witnesses. (People
v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Rather, all reasonable inferences must be drawn in support of the
judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) It is the jury that must be convinced of the
defendant’s guilt beyond a reasonable doubt.
(People v. Ochoa, at p.
1206.) If the circumstances reasonably
justify the jury’s findings, the opinion of the reviewing court that the
circumstances might also be reasonably reconciled with a contrary finding does
not warrant a reversal of the conviction.
(People v. Kraft (2000) 23
Cal.4th 978, 1053-1054; People v. Stanley
(1995) 10 Ca1.4th 764, 793.)
Burglary is committed when a
“person . . . enters any house, room, apartment . . . or other building . . .
with intent to commit grand or petit larceny or any felony[.]†(§ 459; People v. Montoya (1994) 7 Cal.4th 1027, 1041.) Robbery is defined as, “the felonious taking
of personal property in the possession of another, from his person or immediate
presence, and against his will, accomplished by means of force or fear.†(§ 211; People v. Letner and Tobin (2010) 50 Cal.4th 99, 166.)
If the evidence shows that
the intent to steal only arose after the use of force, the taking will only
constitute a theft. (
253; People v. Lindberg (2008) 45
Cal.4th 1, 28.) Intent is rarely
demonstrated by direct proof but may be inferred by circumstantial
evidence. One such circumstance, the
theft of property from a dwelling, may create a reasonable inference of an
intent to commit theft at the time of entry.
(In re Leanna W. (2004) 120
Cal.App.4th 735, 741; People v. Lewis
(2001) 25 Cal.4th 610, 643.) More
specifically, “‘when one kills another and takes substantial property from the
victim, it is ordinarily reasonable to presume the killing was done for
purposes of robbery.’†(
529, citing People v. Turner (1990)
50 Cal.3d 668.)
Keeping these principles in
view, substantial evidence supported the jury’s findings that Wright entered
the Painter residence with the intent to commit robbery and that Wright had the
intent to steal before or during the murders.
(People v. Letner and Tobin, supra,
50 Cal.4th at p. 166.) Furthermore,
Wright could have formed the requisite intent any time after he entered
Painter’s house. (People v. Sparks (2002) 28 Cal.4th 71, 87-88.)
Shortly before the murders,
Wright had complained to Brown about Painter underpaying him. Wright told Ingham that he needed money for
outstanding warrants and a lawyer.
Painter, of advanced age and with dementia, and Martin an older woman,
were vulnerable targets, less able to defend themselves. When Painter’s body was discovered, his pants
pocket was turned inside out, leading to a reasonable inference that his wallet
was stolen. Wright was driving Fischer’s
car on the night of the killings and defendants began cashing Painter’s checks
soon afterwards. Wright had possession of Painter’s credit card and defendants
used Painter’s money to buy methamphetamine and party in hotels in Lake
Arrowhead and Victorville, and at the Cedar Grove and Painter houses. These substantial thefts continued well after
the murders were committed, making it reasonable for the jury to infer that the
thefts were intended upon entry of the Painter house and during the murders—and
not merely an afterthought to two otherwise motiveless killings.
In an effort at rebuttal,
Wright claims that the intent to steal was formed after the murders because
Wright used Fisher’s car hours after the killings and defendants did not try to
cash checks until the following morning.
Wright also asserts that the check cashing was done conspicuously and
the thefts were not part of a plan to murder.
In actuality, there was little delay in attempting to cash checks. The murders occurred on a Sunday and the
check cashing commenced the next business day.
Wright drove the car the same day as the killings and contemplated using
Painter’s credit card. The jury
reasonably rejected defendants’ theories.
Case law supports our
conclusion. In People v. Navarette (2003) 30 Cal.4th 458, the court found
sufficient evidence supported the burglary conviction and special circumstance
under similar facts. In that case, the
defendant argued there was insufficient evidence that he entered the victims’
apartment with the intent to steal or that he intended to take property by
force or fear because the intent to steal may have been formed after the
victims were dead. (Id. at p. 499.) The court
rejected the defendant’s claims, finding there was evidence that the defendant
was seeking money just before the murders and he took one victim’s property
after murdering her. The court reasoned
that the jury was entitled to infer that the defendant killed the victims to
take their property. The court also
acknowledged that a robbery cannot occur after a victim is dead; however, one
could rob a living person by killing him and taking his property. (Ibid.)
In People v. Castaneda (2011) 51 Cal.4th 1292, the court affirmed the
robbery conviction and special circumstance based upon the findings that the
defendant had taken property directly from the victim. It also concluded that the jury could have
reasonably found that the intent to steal was formed before death based upon
the fact that the defendant had only been working sporadically, was using
heroin regularly, and needed money to pay for drugs. The court cited to various cases noting that addiction
can demonstrate a motive for robbery. (
burglary conviction and special circumstance finding. (Id.
at p. 1326.)
As a final example, in
the defendant argued that the evidence was insufficient to show that he stole
the victim’s property by means of force or fear because the victim was already
dead when he took the property. The
court rejected the argument, noting that the actual theft of property and the
defendant’s request for money just hours before the murder was sufficient to
uphold the jury’s finding. (
on the burglary conviction and special circumstance finding based upon the
evidence that the defendant sought out money right before the murder and then
possessed stolen goods shortly after the crime which amounted to “strong
circumstantial evidence that he harbored the intent to commit larceny when he
entered the home.†(Id. at p. 508.)
Similarly
in this case, substantial evidence supported the robbery and burglary
convictions and special circumstances.
Wright needed money for warrants and to hire a lawyer. He felt that Painter had short-changed him on
a job. He was also a methamphetamine
addict. Painter’s wallet was taken from
his person. Wright used Painter’s money
to buy drugs and rent hotel rooms in Victorville and Lake Arrowhead while
driving Fischer’s car until he was arrested.
Given that Wright displayed
the presence of mind to try to cover up the crimes and to benefit from the
murders, the jury was entitled to reject the defense theory that the murders
were committed in a drug-induced haze.
Under the circumstances, a rational jury could have convicted Wright beyond
a reasonable doubt on these charges and special circumstances.
IV
INSTRUCTION ON THEFT AS A
LESSER INCLUDED
OFFENSE OF ROBBERY
Both defendants next contend
that the trial court prejudicially erred by not instructing the jury sua sponte
about theft as a lesser included offense of robbery. We conclude substantial evidence did not
support the instruction and any error was harmless.
Theft is a necessarily
included offense of robbery. Both
offenses require a taking with the intent to steal; but robbery requires the
additional element that the taking be accomplished by force or fear. (§§ 211, 484; People v Brew (1991) 2 Cal.App.4th 99, 104.) When there is substantial evidence that a
defendant decided to take property only after the killing a victim, a theft
instruction on the lesser included charge must be given. (People
v. Turner, supra, 50 Cal.3d at p. 690; People
v. Parson (2008) 44 Cal.4th 332, 348-349.)
Substantial evidence in this context means evidence “that a reasonable
jury would find to be persuasive†that the lesser charge was committed, but not
the greater. (People v. Wilson (2008) 43 Cal.4th 1, 16.) A lesser included offense instruction is not
required when there is no evidence to support a finding that the lesser
included offense was committed and not the greater. (People
v. Breverman (1998) 19 Cal.4th 142, 154; People v. Ortiz (2012) 208 Cal.App.4th 1354, 1367;
370, 392, citing People v. Mendoza (2000)
24 Cal.4th 130, 174.)
In cases where a lesser
included instruction on theft was deemed necessary, substantial evidence
demonstrated that the defendant killed the victim and then decided to commit
the theft as an afterthought. In
443, the defendant testified that he decided to take the victim’s keys and car
only after a struggle. In
page 690, defendant testified that he first killed the victim in self-defense
before deciding to take his property. In
People v. Kelly, supra, 1 Cal.4th at
pages 528-530, defendant told the police that he found the victim's rings in a
trash can only after raping and killing her.
In this case, substantial
evidence did not support the lesser included charge of theft instead of
robbery. Wright and Holeman’s statements
after the crimes notably do not demonstrate they decided to steal from Painter
as an afterthought to the killings.
Instead, Wright’s statement to Detective Heard focused on the manner of
killing but not on the thefts or why the murders occurred. Wright’s calls from jail focused on using
Painter’s checks and credit card and did not suggest that the idea of stealing
only occurred to him after the killings.
In Holeman’s written notes to Brown, he did not refer to the thefts at
all. He only described how he felt
empowered while striking Painter in the head.
Holeman’s various statements about the murders to Ray accused Wright of
forcing him to commit the crimes but said nothing about theft. While Holeman admitted having spent Painter’s
money afterwards, he did not claim that stealing only occurred to him after the
murders. Holeman’s jail call also
contained no evidence of after-formed intent.
When asked why he did it, he claimed he was “spun outta’ [his] mind,â€
admitted he took the money, and laughed about getting $56,000.
On this record, no evidence
allowed the jury to conclude that the thefts were not considered until after
the murders were accomplished. Although
the People assert that there is no evidence that defendants committed robbery
and burglary as an afterthought, defendants contend the absence of such
evidence demonstrated they did not have any plan to steal and, instead,
committed theft as a crime of opportunity.
But, based on the circumstantial evidence, it is far more plausible that
the robbery was financially motivated and planned before the murders were
committed.
The scope of the theft
committed after the murders was also relevant to defendants’ intent. We repeat again the principle that “‘when one
kills another and takes substantial property from the victim, it is ordinarily
reasonable to presume the killing was for purposes of robbery.’†(People
v. Kelly, supra, 1 Cal.4th at p. 529, quoting People v. Turner, supra, 50 Cal.3d at p. 668.) Defendants took Painter’s wallet and credit
card and Fischer’s car keys. Defendants
cashed checks from Painter’s bank account.
Defendants partied at the Painter house and other places using Painter’s
money. Furthermore, it is not unusual
for drug addicts to steal or rob to support their habit. It is not reasonable to conclude that, after
Wright and Holeman arrived to work for Painter, they spontaneously decided to
kill the victims because they were “spun out,†high on methamphetamine. The only reasonable conclusion based upon the
evidence was that two methamphetamine addicts preyed upon two vulnerable
victims to support their habit. No
instruction on theft was warranted on these facts.
Even assuming
the court should have instructed the jury on theft sua sponte it is not
reasonably probable that defendants would have obtained a more favorable result
if the instruction had been given. (
at p. 178; People v. Watson (1956) 46
Cal.2d 818, 836.) Defendants’ behavior
before the murders was consistent with a plan to commit a crime. When Ingham stopped at the gas station near
Painter’s house, Wright and Holeman left abruptly without asking her to pick
them up later, probably to conceal where they were going and because they would
not need a ride home. The Holeman jury’s
question about whether the intent to commit robbery or burglary develops after
a killing is too slender a reed to support a claim of prejudicial error.
cannot demonstrate it is reasonably probable either would have received a more
favorable verdict had the jury been instructed with the lesser included offense
of theft for the robbery charges.
V
CALCRIM NOS. 730, 1603, AND
1702
Defendants contend that the
trial court erred by instructing the jury based on CALCRIM Nos. 1603 and 1702,
explaining that an aider and abettor’s intent must be formed for robbery before
or while the property is carried to a place of temporary safety and for
burglary before the perpetrator left the structure. Defendants maintain the instructions could
have confused the jury into believing that an accomplice could form the intent
to aid and abet the underlying felony after the act causing death, which is
impermissible for felony murder and the attendant special circumstances. Wright argues this error was compounded when
the court omitted a portion of CALCRIM No. 730, specifically stating that one
must intend to aid and abet the underlying felonies before or during the act
causing death.
These arguments are
forfeited because defendants did not object to CALCRIM Nos. 1603 and 1702 and
Wright did not object to CALCRIM No. 730 as given. Generally, a failure to object to
instructional error forfeits the issue on appeal if the instruction is correct
in law and the defendant has failed to request clarification. (People
v. Catlin (2001) 26 Cal.4th 81, 149.)
CALCRIM Nos. 1603 and 1702 were correct statements of law with respect
to the substantive crimes of robbery and burglary. (People
v. Cooper (1991) 53 Cal.3d 1158, 1165-1167; People v. Montoya, supra, 7 Ca1.4th at pp. 1045-1047.)
Notwithstanding the issue of forfeiture, because the
prosecution charged two counts of robbery and one count of burglary, the
subject instructions were applicable to the substantive offenses. Different instructions applied to the felony murder
and special circumstances findings. The
court did not err when it instructed the jury with CALCRIM Nos. 1603 and 1702
because those instructions did not address under what circumstances defendants
could be found guilty of felony murder or culpable for the special
circumstances.
Although the bench notes for
CALCRIM Nos. 1603 and 1702 state that the instructions should not be given if
the defendant is charged with felony murder, such use notes do not have “the
force of law.†(People v. Alvarez (1996) 14 Cal.4th 155, 223, fn. 28.) It would be more accurate to say that the
instruction should not be given if a defendant is charged only with felony
murder and not charged with robbery. If,
on the other hand, a defendant is charged with both felony murder and robbery,
the trial court must instruct on all of the elements of robbery. These include, in an appropriate case, when
the intent to aid and abet the robbery must be formed. Because these defendants were charged with
both felony murder and robbery and burglary, the trial court had to inform the
jury of when the intent to aid and abet the burglary or robbery must be
formed. As we have already discussed,
there is no substantial evidence that “would permit the jury to find the
defendant[s] began aiding and abetting an enumerated felony only after the
killing[s] occurred, . . .†(
728.) An examination of the entire
charge reveals that the jury was properly instructed as to the timing of intent
for aiding and abetting purposes as it related to the felony murder and special
circumstances.
Furthermore, the jury
instructions were correct and it is unreasonable that the jury would have
misinterpreted them as defendants assert.
Instructions are not viewed in isolation: “‘“It is well established in California that
the correctness of jury instructions is to be determined from the entire charge
of the court, not from a consideration of parts of an instruction or from a
particular instruction.â€â€™â€ (
943, quoting People v. Burgener
(1986) 41 Cal.3d 505, 538.) The court
told the jury that the instructions were to be considered together and that
some of the instructions might not apply.
(CALCRIM No. 200.) With respect
to the special circumstances, the court specifically instructed the juries that
the prosecution was required to prove that, “The defendant must have intended
to commit, or aid and abet, . . . the felonies of robbery and burglary before
or at the time that he caused the death.â€
(CALCRIM No. 540B.) CALCRIM No.
549 required the prosecution to show that, “the robbery or burglary and the act
causing the death were part of one continuous transaction.†(CALCRIM No. 549.) The court also provided a special instruction
regarding the timing of force stating, “Where a killer wounds the victim, then
decides to steal, and thereafter finishes off the victim to accomplish the
theft, the perpetrator has committed robbery and robbery murder.â€
In Holeman’s
trial, the court gave CALCRIM No. 730 which specified, “[I]f the defendant did
not personally commit robbery or burglary then a perpetrator[,] whom the
defendant was aiding and abetting before or during the killing[,] personally
committed robbery or burglary.†The
instruction explains, “The defendant must have intended to commit[,] or aided
and abetted the felonies of robbery or burglary before or at the time of the
act causing death.â€
When read together, there is
no possibility that the juries would have misunderstood the court’s instructions
to mean that either defendant could have joined in the burglary or robbery
after the acts causing death and still be liable for felony murder or the
special circumstances. The instructions
pertaining to felony murder and special circumstances, particularly CALCRIM No.
540B, clearly conveyed that an aider and abettor’s intent must have been formed
before or during the killings for the accused to be culpable for felony murder
and special circumstances. The jury is
presumed to have followed the court’s instructions on those issues. (People
v. Boyette (2002) 29 Cal.4th 381, 436.)
As to
Wright, the modification of CALCRIM No. 730 was insignificant as that
instruction, with the others, adequately conveyed when an accomplice’s intent
to aid and abet must be formed for felony murder and the special
circumstances. Although the court
omitted an “intent†portion of part of CALCRIM No. 730, the instruction
nevertheless conveyed the point that the aiding and abetting must occur before
or at the time of death. The intent to
aid and abet is part and parcel of aiding and abetting. (CALCRIM No. 401.) Within the body of CALCRIM No. 730, it states
the same idea in another way. “If the
defendant did not personally commit robbery or burglary, then a perpetrator,
whom the defendant was aiding and abetting before or during the killing,
personally committed robbery or burglary.â€
There is no reasonable possibility that the jury would have understood
this instruction to allow someone to aid and abet a robbery or burglary before
or during the time of the killing and also intend to aid and abet the robbery
or burglary later. “[A] commonsense
understanding of the instruction in light of all that has taken place at the
trial is likely to prevail over technical hairsplitting.†(People
v. Huggins (2006) 38 Cal.4th 175, 193, quoting Boyde v. California (1990) 494 U.S. 370, 381.) We conclude the jury was properly instructed
when viewing the instructions as a whole.
Finally, even assuming the
court erred in providing the jury with CALCRIM Nos. 1603 and 1702 and
improperly modified CALCRIM No. 730, in light of the evidence, any error was
harmless beyond a reasonable doubt. (
1386, 1399-1400; Chapman v. California (1967)
386 U.S. 18, 24.) As we have reiterated,
the facts of this case do not fit an interpretation that either Wright or
Holeman intended to commit the robbery or burglary only after the murders were
committed. Defendants’
admissions—introduced before their respective juries—indicated that they both
actively participated in the killings of Painter and Martin and then proceeded
to exploit the situation. No jury
reasonably would have found that either Wright or Holeman did not form the
intent to commit the underlying felonies until after the murders because both
were so deeply involved in the murders and benefited by the deaths in a
calculated manner soon after the killings.
VI
CALCRIM Nos. 702 AND 703
Defendants next contend that
the trial court erred by not instructing the jury sua sponte with CALCRIM Nos.
702 and 703 involving special circumstances for an accomplice where the
multiple murder and felony murder special circumstances are alleged. (§ 190.2, subd. (a)(3).) Respondent concedes the trial court should
have instructed the jury with these instructions sua sponte but asserts any
error was harmless beyond a reasonable doubt.
The trial court has a sua
sponte duty to instruct the jury with CALCRIM No. 702 when special
circumstances requiring an intent to kill have been charged and sufficient
evidence supports the conclusion that the defendant was not the actual
killer. (People v. Jones (2003) 30 Cal.4th 1084, 1118.) Likewise, the trial court has a sua sponte
duty to instruct with CALCRIM No. 703 when sufficient evidence supports the
conclusion that the defendant was not the actual killer and felony murder was
alleged as a special circumstance. (See
and abettor’s participation in the crime begin before or during the killing.
Here, the evidence largely
suggested that Holeman killed Painter with Wright as an accomplice and Wright
killed Martin with Holeman as an accomplice to that murder. In both trials, it was evident that Wright
and Holeman went to Painter’s house together and the victims were killed at
roughly the same time. Wright admitted
strangling and suffocating Martin with Holeman’s assistance and participating
in Holeman killing Painter. Holeman
admitted that he bludgeoned Painter and it was difficult to kill Martin. Holeman’s statements show he was an
accomplice to either or both murders and he acted with an intent to kill. Defendants also apparently acted together to
move Martin’s body from the bedroom to the basement.
Because there was evidence
in both trials that defendants may have been aiders and abettors in one or both
of the murders, the trial court had a sua sponte duty to instruct the jury with
CALCRIM No. 702, as it pertained to accomplice liability on the multiple murder
special circumstance, and CALCRIM No. 703, dealing with accomplice liability on
the felony murder special circumstances.
Nevertheless,
the failure to instruct with CALCRIM Nos. 702 and 703 is subject to harmless
error analysis under Chapman v.
California, supra, 386 U.S. at page 24.
(See People v. Jones, supra,
30 Cal.4th at p. 1119, quoting People v.
Williams (1997) 16 Cal.4th 635, 689.)
On this record, the jury “could have had no reasonable doubt†that both
appellants participated in the homicides with intent to kill (for the multiple
murder or felony murder special circumstance) or were major participants in the
robbery or burglary and acted with reckless disregard for human life (for the
felony murder special circumstance).†(
instruction speaks is overwhelming, and the jury could not have had a
reasonable doubt about that evidence, the failure to give that instruction is
harmless beyond a reasonable doubt. (
45-46, disapproved on another ground in People
v. Rogers (2006) 39 Cal.4th 826, 879-880.)
Had the jury been instructed
that it needed to find intent to kill to satisfy the special circumstance
requirements, no different result would have occurred. The facts of this case overwhelmingly
demonstrate that both Wright and Holeman harbored such intent, whether as the
perpetrator of a killing or an accomplice.
The evidence of all the factors identified in CALCRIM Nos. 702 and 703
was substantial and, for the most part, uncontradicted. As to both defendants, the attacks on Martin
and Painter were clearly coordinated as they occurred in the same place at
around the same time. The manner of the
killings—by multiple blows to the head and strangulation—strongly supports a
finding of intent to kill. (
529-530; People v. Cain (1995) 10
Cal.4th 1, 40.)
The finding of felony murder
special circumstance could have been made as well. As discussed, the evidence that both men were
major participants in the underlying crimes and in light of the manner of the
killings they certainly acted with reckless disregard to human life. In sum, the failure to instruct with CALCRIM
Nos. 702 and 703 was harmless as the evidence of Wright and Holeman’s intent to
kill was overwhelming, whether as a perpetrator or an aider or abettor. Had the juries been given the instructions in
question, they would have had no reasonable doubt that either Wright or Holeman
in his role as an accomplice harbored an intent to kill for the multiple murder
and felony murder special circumstance or were major participants in the
underlying felonies and acted with a reckless disregard of human life for the
felony murder special circumstance.
VII
CALCRIM No. 362
Defendants next contend the
trial court prejudicially erred when it instructed the jury based on CALCRIM
No. 362 regarding consciousness of guilt stemming from false statements. Defendants claim the instruction permitted
the jury to presume guilt regarding defendants’ mental state.
We
disagree. The instruction as given could
not be misinterpreted and the jury was not permitted to infer defendants’ guilt
from false statements alone. Moreover,
in light of the other instructions and the persuasive evidence of guilt, any
possibility of error was harmless.
Neither Wright nor Holeman
objected to instructing the jury with CALCRIM No. 362. The court read: “[I]f the defendant made a false or
misleading statement before the trial relating to the charged crimes [or
allegations], knowing the statements were false or intending to mislead, that
conduct may show he was aware of his guilt of the crimes [and allegations] and
you may consider it in determining his guilt.
[¶] If you conclude that the
defendant made the statement, it is up to you to decide its meaning and
importance. However, evidence that the
defendant made such a statement cannot prove guilt by itself.â€
Defendants acknowledge that
the California Supreme Court has approved CALCRIM No. 362’s predecessor
instruction, CALJIC No. 2.03. “The
inference of consciousness of guilt from willful falsehood or fabrication or
suppression of evidence is one supported by common sense, which many jurors are
likely to indulge even without an instruction.â€
(People v. Holloway (2004) 33
Cal.4th 96, 142; People v. Geier
(2007) 41 Cal.4th 555, 589.) The
language contained in CALJIC No. 2.03 is not materially different than what was
given here. That instruction stated, “If
you find that before this trial the defendant made a willfully false or
deliberately misleading statement concerning the crime or crimes for which he
is now being tried, you may consider that statement as a circumstance tending
to prove a consciousness of guilt.
However, that conduct is not sufficient by itself to prove guilt, and
its weight and significance, if any, are for you to decide.â€
In
1099, the appellate court explained that CALCRIM No. 362 “is the successor to
CALJIC No. 2.03.†(McGowan, at p. 1103.) It
noted that there were only minor differences between CALCRIM No. 362 and CALJIC
No. 2.03. The McGowan court determined that CALCRIM No. 362 is not an improper
pinpoint instruction that highlighted particular evidence because, like CALJIC
No. 2.03, it warns the jury that a defendant’s false or misleading pretrial
statement cannot alone establish guilt.
(McGowan, at pp.
1103-1104.) The California Supreme Court
has also used CALJIC 2.03 and CALCRIM No. 362 interchangeably, without finding
any meaningful differences between the two instructions, when it held that the
instruction did not invite the jury to make irrational or impermissible
inferences with regards to a defendant’s state of mind at the time the offense
was committed. (People v. Howard (2008) 42 Cal.4th 1000, 1021, 1024-1025.)
Finally, the instruction
provided that the jury could not rely on the false or misleading statement as
proving guilt by itself. It is presumed
that the jury followed the court’s instruction.
(People v. Cain, supra, 10
Cal.4th at p. 34.) Also in assessing
whether CALCRIM No. 362 was given in error, the reviewing court must consider
the entire charge of the court, not only one particular instruction. (People
v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) When viewed as a whole, the jury could not
have presumed guilt based on that instruction alone. The jury was instructed it could not use
consciousness of guilt as proof of guilt by itself. Other instructions required the jury to find
each element beyond a reasonable doubt, including mental state. In light of the other instructions regarding
the requisite mental states and the prosecution’s burden to prove all the
elements of the offenses, there is no reasonable likelihood that the juries
applied the instruction in an unconstitutional manner. (Estelle
v. McGuire (1991) 502 U.S. 62, 72.)
Any error was harmless even
under the most stringent standard of prejudice.
(Chapman v. California, supra,
386 U.S. at p. 24.) Defendants’ roles in
the murders were proven overwhelmingly.
They admitted to participating in the murders and to taking Painter’s
money and his daughter’s car. Any error
in the wording of the instruction did not affect the verdict beyond a
reasonable doubt. (People v. Aranda (2012) 55 Cal.4th 342, 367.)
VIII
AFTER-INFORMED INTENT
Holeman asserts that his
counsel was ineffective for failing to request a pinpoint instruction on
“after-formed intent†following the jury’s inquiry during deliberations on
whether a robbery or burglary could occur after the victim was deceased. Defense counsel proposed an answer to the
jury’s question which the court rejected.
Counsel’s performance was not deficient and no prejudice can be established
because other instructions adequately addressed the jury’s question.
During deliberations, the
jury sent the following note: “If the
robbery or burglary takes place after someone is already dead, even if the
taking of the property or money is not intended prior to the killing, does this
constitute robbery or burglary by the
definition as being part of the murder?â€
The prosecutor indicated that the jury should be directed to the
instruction that addressed the question.
Counsel suggested that the court should simply answer the question “noâ€
to which the court followed up by stating that “[y]ou can’t rob a dead
body.†The prosecutor stated that the
instruction clearly stated that principle but the court disagreed. Counsel then read from part of CALCRIM No.
1600 which stated, “If the defendant did not form this required intent until
after using force or fear, then he did not commit robbery.†Counsel stated that it went directly to the
question being posed. Nevertheless
counsel requested again that the court answer the question “no.†The court denied that request and instead
responded to the jury by stating, “Please refer to the jury instruction number
49 [CALCRIM No. 1600] and jury instruction number 52 [CALCRIM No. 1700].†The prosecutor asked that the court also
refer the jury to the special instruction that had been provided regarding the
timing of force, but the court declined that request as wel1.
To prevail on this claim,
defendant must establish that counsel’s representation fell below an objective
standard of reasonableness and there is a reasonable probability that, but for
counsel’s deficient performance, a more favorable result would have been
achieved. (Strickland v. Washington (1984) 466 U.S. 668, 686-687;
153, 215.) The reviewing court must
indulge in a strong presumption that counsel’s conduct fell within the wide
range of professional norms. (
389.) To prevail on direct appeal, the
record must affirmatively disclose the absence of a rational tactical purpose
for the challenged act or omission. (
349.)
Under the circumstances, it
cannot be said that counsel’s performance fell below professional norms. To begin with, counsel twice suggested an
accurate answer to the question, i.e., simply to respond “no†to the jury’s
question. His performance was not
deficient. [¶] Counsel, having read the instruction, saw
that it did indeed answer the jury’s question and was under no obligation to
seek an additional pinpoint instruction when the jury’s question was in essence
answered. “[T]rial counsel is not
required to make frivolous or futile motions, or indulge in idle acts.†(People
v. Reynolds (2010) 181 Cal.App.4th 1402, 1409.)
The special instruction
referenced by the prosecutor stated, “Where a killer wounds the victim, then
decides to steal, and thereafter finishes off the victim to accomplish the
theft, the perpetrator has committed robbery and robbery murder.†In spite of trial counsel’s adequate response
to the jury’s question, Holeman criticizes counsel for not having requested
something more elaborate as was used in People
v. Turner, supra, 50 Cal.3d at page 691.
such a specific instruction, particularly when his suggestion answered the
jury’s question and counsel was aware that the standard instructions explained
the law. The concept of after-intent was
adequately covered by the instructions already given by the court.
It is the defendant’s burden
on appeal to establish prejudice “as a ‘demonstrable reality,’ not simply
speculation as to the effect of the errors or omissions of counsel.†(People
v. Williams (1988) 44 Cal.3d 883, 937.)
Holeman must show that there “is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.†(Strickland v. Washington, supra, 466 U.S. at p. 694.) It cannot be said that there is a reasonable
probability that Holeman would have achieved a better result had counsel asked
for a pinpoint instruction. The trial
court apparently felt that the instructions answered the jury’s question and
was unwilling to deviate. Moreover, the
instructions did answer the jury’s question.
As noted before, the instruction for robbery stated that the, “intent to
take the property must have been formed before or during the time he or she
used force or fear. If the defendant did
not form this required intent until after using the force or fear, then he did
not commit robbery.†(CALCRIM No.
1600.) The instruction on burglary was
also clear that the intent to rob must have been formed at the time of
entering. Both instructions answered the
jury’s question and do not meaningfully differ from the instruction that
Holeman proposes should have been offered by counsel. He has not met his burden to show that he
would have received a more favorable result had counsel requested a pinpoint
instruction on after-intent.
IX
TRUE FINDING REGARDING
BURGLARY SPECIAL CIRCUMSTANCE
Wright argues that the
burglary special circumstance finding regarding Martin should be reversed
because the verdict forms inadvertently named Painter and not Martin. We conclude any defect in the verdict form is
technical in nature. The form expressed
with a reasonable certainty a finding that the special circumstance applied to
Martin. The information charged two
counts of murder. With respect to
Painter (count 1), the information alleges his murder was committed while
defendants were committing a burglary and robbery. In count 2, the victim was Martin and it was
alleged her murder was committed while defendants were engaged in the
commission of a burglary and robbery.
Before closing arguments,
the court indicated to the jury that count 1 pertained to the murder of Painter
and count 2 pertained to the murder of Martin.
With respect to the burglary special circumstance allegation, the court
read, “The special circumstance allegation as to Count 2 is that the murder of
Barbara Martin was committed by the defendant, Samuel Charles Wright Junior,
while the said defendant was engaged in the commission of the crime of burglary
to the first degree, in violation of Penal Code section 460.†The court also explained the verdict forms to
the jury: “The second special circumstance
allegation as to Count 2 may be in one of the following forms: [¶]
‘We, the jury in the above-entitled action, find the murder of Barbara
Martin was committed by the defendant, Samuel Charles Wright Junior, while said
defendant was engaged in the commission of the crime of burglary of the first
degree, in violation of Penal Code Section 460, to be either true or not
true.’â€
Based on the verdict forms,
the jury found Wright guilty of the first degree murders of Painter (count 1)
and Martin (count 2); the residential robbery and burglary of Painter (counts 3
and 5); and the residential robbery of Martin (count 4). The jury found Wright guilty of residential
burglary of Painter, as charged in count 5.
The special circumstance findings showed that the jury specifically
found that Wright had murdered both Painter and Martin while committing
robbery. In an error in the two verdict
forms involving the burglary special circumstance, both name Painter as the
victim and omit Martin even though one refers to count 1 and one refers to
count 2.
“[T]echnical defects in a
verdict may be disregarded if the jury’s intent to convict of a specified
offense within the charges is unmistakably clear, and the accused’s substantial
rights suffered no prejudice. [Citations.]†(People
v. Webster, supra, 54 Cal.3d at p. 447; § 1258.) However, if a verdict is ambiguous, it must
be considered in light of the issues submitted to the jury and the instructions
of the court. (People v. Radil (1977) 76 Cal.App.3d 702, 710.) When so construed, if the verdict expresses
with reasonable certainty a finding supported by the evidence, it will be
upheld. (Ibid; People v. Jones (1997)
58 Cal.App.4th 693, 710-711.) Verdicts
will be liberally construed and their validity sustained if the intention of
the jury can be clearly seen. (
428, 437.) The verdict should be read in
light of the information, the plea entered, and the jury instructions. (People
v. Paul (1998) 18 Cal.4th 698, 706-707; Jones,
at p. 710.)
Here, the naming of Painter,
instead of Martin, was obviously a technical error. The jury was informed both orally and in
writing that count 2 pertained to the murder of Martin and that the burglary
special circumstance applied to her in addition to Painter. A technical violation may be found when the
verdict form is incorrect but the jury is correctly instructed. (People
v. Escarcega (1969) 273 Cal.App.2d 853, 857-858.) Moreover, on the verdict form, the special
circumstance referenced count 2, the murder of Martin, while mistakenly
identifying Painter as the victim, obviously demonstrating a technical
violation. (See People v. Reddick (1959) 176 Cal.App.2d 806, 819-821.) The error was overlooked but, as in the
decision of People v. Camacho (2009)
171 Cal.App.4th 1269, 1275, “there is no uncertainty in the record on appealâ€
that the jury intended to make a true finding on the burglary special
circumstance involving Martin, the victim in count 2. We decline to strike the burglary special
circumstance as to count 2 as to Wright.
X
JACKET WITH A SWASTIKA
A jacket with a swastika
patch was found in Fischer’s car when Wright was arrested. Defendants asserted the jacket was owned by
Mitchell, the passenger in the stolen car, and not by Holeman. Mitchell had ties with skinhead
organizations. Holeman, joined by
Wright, contends that the trial court erroneously admitted evidence of the
jacket and Mitchell’s affiliation with White supremacists, depriving defendants
of due process and the right to a fair
trial. We disagree.
The evidence was initially
proffered as evidence that Holeman had been present in the stolen car,
supporting the charge of auto theft (count 6).
When Mitchell denied that the jacket belonged to Holeman, the prosecutor
sought to establish bias in favor of Holeman.
Even assuming the evidence was improperly admitted, any error was
plainly harmless because the jacket was shown not to belong to Holeman and the
jury was given a limiting instruction.
No evidence was presented that showed Mitchell’s relationship with
defendants was based upon any skinhead ties and, once again, the evidence of
defendants’ guilt on all counts was overwhelming.
Before trial, Holeman sought
to exclude evidence about his membership in a White supremacist group,
including his statements admitting his membership, a letter written by him
using a type of alphabet typically used by such a group, and the jacket with
the swastika. The court addressed the
admissibility of letters authored by Holeman and found in the car, noting that,
“if the evidence shows that they’re in a car that he wasn’t supposed to have or
have any involvement with, that’s certainly circumstantial evidence that the
jury can consider on the [section] 10851.†Additionally, “[t]he same thing would apply
with respect to the jacket, if it can be established that it belongs to Mr.
Holeman. Certainly, it’s prejudicial. But the probative value, in my mind,
outweighs the prejudicial effect, especially if there is a limiting instruction
given at the time that the evidence is introduced and subsequent[ly] when the
jury is instructed.â€
Defense counsel argued the
jacket was unduly inflammatory, akin to calling Holeman a child molester. The prosecutor responded the jacket was
circumstantial evidence of Holeman’s involvement in the auto theft. Defense counsel protested that the
prosecution could use Holeman’s admissions that he was in the car and the
jacket was irrelevant. The defense asked
