P. v. Holloway



















Filed 5/17/13 P. v. Holloway CA1/3

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California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.





IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST
APPELLATE DISTRICT



DIVISION
THREE




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THE PEOPLE, Plaintiff and Respondent, v. EDWARD HOLLOWAY, Defendant and Appellant.

A135885 (City & County of San Francisco Super. Ct. No. 10001941)

Edward
Holloway was charged with murder and convicted of three lesser offenses: href="http://www.sandiegohealthdirectory.com/">involuntary manslaughter;
assault with a deadly weapon and infliction of great bodily injury; and battery
with infliction of serious bodily injury. (Pen. Code, §§ 192, subd.
(b), 243, subd. (d), 245, subd. (a)(1), 12022, subd. (b)(1), 12022.7, subd.
(a).)href="#_ftn1" name="_ftnref1" title="">[1] The court sentenced
defendant to seven years in prison on the assault count and stayed sentence on
the remaining counts.href="#_ftn2"
name="_ftnref2" title="">[2] Defendant appeals upon
contentions that the trial court erred in (1) refusing a special instruction on
causation related to his claim that a superseding intervening cause was
responsible for the victim’s death; (2) responding to jury questions during
deliberations by referring the jury to the standard instructions on causation
without further elaboration; and (3) refusing to give an adverse inference
instruction based on the fact that police testing of drug residue found in the
victim’s apartment consumed the residue and precluded testing by the defense.
We shall affirm the judgment.

STATEMENT OF facts

Defendant
arrived at Carl’s Jr., a fast-food restaurant on Seventh and Market Streets in
San Francisco, after midnight on January 16, 2010. A restaurant cashier
testified that defendant was drunk, “abusive,” and “carrying on” by asking for
money and food and shouting “motherfucker” and other “bad names” at customers
in “a loud tone.” Defendant was carrying a large radio, or “boom box,” that was
playing loud music. Defendant was asked to leave because “he was making a lot
of noise.” A restaurant security guard tried to eject defendant, without
success. Defendant remained at the restaurant and continued his abusive
behavior for 15 or 20 minutes before the victim, Matthew Adams, arrived.

Adams
arrived at the restaurant with his girlfriend, Melissa Degrio. Degrio testifiedhref="#_ftn3" name="_ftnref3" title="">[3] that Adams was a drinker
and drug user. He was intoxicated when the couple went to the restaurant,
having consumed a fifth of vodka. Adams was also in the habit of crushing
methadone pills he bought on the street and drinking them with water. Degrio
did not know if Adams took any methadone in the hour or so they were together
before going to the restaurant.

When
the couple arrived at the restaurant, defendant was at the counter screaming
“violent stuff” and loudly shouting “I’m ready for war.” Adams and Degrio
ordered food at the counter, then sat in a booth. Defendant approached the
booth and, according to the cashier, made negative “comments” about Degrio
“because of the dress she was wearing and how she was looking.” Degrio
testified that defendant called her a “bitch.” Adams became angry, stood and
walked over to defendant. The cashier heard defendant ask Adams “Are you
challenging me?” Before Adams could respond, defendant swung his boom box at
Adams’s head, striking Adams on the right temple. The boom box weighed seven
pounds and struck Adams with such force that the back panel of the radio opened
and the batteries spilled out. Degrio testified that the blow knocked Adams
unconscious and he fell to the floor, where he struck his head. Defendant left
the restaurant.

Adams
lay unconscious on the floor for about two minutes, as confirmed by a videotape
of the incident. When he gained consciousness, he was incoherent and sweating
profusely. The police were called and arrived to find Adams seated at a table.
The investigating police officer did not see any outward sign of injury to
Adams but noted that he was slow to respond and appeared to be in a “stupor.”
The officer also noted that Adams’s pupils were constricted, which was
consistent with being under the influence of an opiate. The police urged Adams
to seek medical attention but he refused.

Another
police officer located defendant on the street, carrying a boom box, and
detained him. The officer told defendant she was investigating an assault at
Carl’s Jr. and defendant replied, “I hit him. I got fast hands. I’m an old man.
I’m 55.” The officer testified that defendant also said that “he hit Mr. Adams
because Mr. Adams was a big man and he was a little man, and he was afraid of
Mr. Adams because Mr. Adams was stepping up to him. So he hit him with his
radio first.”href="#_ftn4" name="_ftnref4"
title="">[4]
The officer released defendant after being advised that Adams did not want
police assistance and left the scene.

Adams
and Degrio walked a half block to Adams’s studio apartment. Degrio testified
that Adams was not well. He was “sweating so bad” it “looked like he was in the
shower” and his memory was “going in blinks” as he repeatedly asked Degrio what
happened. Degrio would tell Adams what happened and, two minutes later, he would
ask again. Adams said bells were ringing in his head and he started to vomit.
Adams lay on the floor and refused Degrio’s pleas that he get medical help.
Degrio was with Adams at his apartment for an hour or two when Adams told her
to stop “fussing” and go to her apartment to get their dog. Degrio did as he
asked: she walked a few blocks to her apartment and returned immediately to
Adams’s apartment with the dog.

When
Degrio returned, Adams did not answer the intercom buzzer or telephone. Degrio
did not have a key to Adams’s gated apartment building and the security guard
would not admit her. Degrio went home and repeatedly telephoned Adams but
received no answer. Degrio was worried because Adams was in the habit of
calling her often, “literally every 30 minutes.” Degrio called the building
management office but they refused help. Finally, at about 8:30 p.m., Degrio
convinced a building security guard to admit her to Adams’s apartment. Degrio
walked in to find Adams dead on the floor in the same position she left him
earlier that day.

The
police were called and, at first, thought Adams might have died from a drug
overdose. A bedside table contained 13 loose pills, several of them cut and
broken, next to a hand-held mirror with crushed powder on it. The broken pills
and powder were later tested and determined to be methadone. Degrio said Adams
liked to crush his methadone pills and drink them with water so the drug would
“hit him faster.” She believed the crushed pills were “probably” there when the
couple returned from Carl’s Jr. but could not be sure.

A
forensic pathologist, Ellen Moffat, examined Adams at his apartment and later
conducted an autopsy. Dr. Moffat testified that Adams had been dead for “some
hours” before he was discovered. The autopsy showed a skull fracture and
underlying epidural hematoma — “a collection of blood between the skull and the
tough covering of the brain called the dura.” Dr. Moffat opined that Adams died
“as a result of blunt force injuries to his head” sustained at the restaurant —
the initial blow to the right side of his head having knocked him to the floor,
he sustained a lethal injury to the left side of his head in hitting an object
on his way to the floor or when he hit the floor. The pathologist testified
that epidural hematomas are commonly caused by blunt trauma to the head and, in
this case, resulted from a tear in the left meningeal artery. Blood from the
torn artery collected in the space between the skull and the dura, leading to href="http://www.sandiegohealthdirectory.com/">brain compression, deprivation
of oxygen to the brain, and death. Alcohol, cocaine and methadone were
present in Adams’s blood at the time of his death but were not the cause of
death, the pathologist testified. The alcohol and drugs were contributing
factors but the blow to the head was the “lethal mechanism.” Dr. Moffat
testified that “the epidural hematoma was large enough, in and of itself, to
bring about someone’s death and certainly caused enough injury to the brain to
cause it to swell, cutting off oxygen to the brain, bringing about the death of
Mr. Adams.”

A
forensic toxicologist testified that Adams had .9 milligrams of methadone per
liter in his blood when examined. Methadone is a synthetic opiate developed for
pain management and prescribed to rehabilitate heroin addicts but also widely
used as an illegal street drug. Adams’s methadone level was “very high” and at
a level that “could easily be the cause of death” in a non-tolerant individual.
However, the toxicologist cautioned that methadone is “a very tricky drug” and
that “any number in isolation means nothing” because “[p]eople with methadone
exposure, chronic methadone exposure, build significant tolerance. And they can
tolerate concentrations of the drug that could instantly kill a naïve user.”
Laboratory tests showed that Adams was not “a naïve user” — methadone was
detected in his urine indicating prior use but the extent of that use could not
be scientifically determined. The toxicologist testified that Adams’s methadone
use was a factor to consider among the “totality of circumstances” in
determining the cause of death. The toxicologist said the forensic pathologist
was the one to assess the circumstances in determining the cause of death,
which was a determination he was not qualified to make. He relied upon Dr.
Moffat’s evaluation of the case and her determination that Adams died from an
epidural hematoma, not a methadone overdose, and refused to disagree with that
determination.

discussion

1>. The trial court properly refused a special
instruction on causation

Defendant
contends the trial court erred in refusing a special instruction on causation
which he asserts was needed to evaluate his claim that a superseding
intervening cause was responsible for the victim’s death. Among the defenses
offered at trial, defendant claimed that Adams did not die from head wounds but
from a drug overdose he took after being hit by defendant at the restaurant. In
was undisputed that Adams used methadone sometime on January 15th or 16th. The
prosecution suggested that Adams used methadone before he went to the
restaurant and, in any event, it was a blow to the head not the drug that
killed him. The defense argued that Adams took a lethal dose of methadone after
he returned home from the restaurant, emphasizing the large quantity of
methadone found during the autopsy and Degrio’s inability to state with
certainty that the crushed methadone pills found in his apartment when his body
was discovered had been there earlier in the day. Defendant requested a special
instruction on causation, which was refused in favor of standard instructions
on the subject. The refusal was proper.

Standard
jury instructions are approved for use as the “official instructions for use in
the State of California” after an exhaustive vetting process to ensure
accuracy, comprehensiveness, and comprehensibility. (Cal. Rules of Court, rule
2.1050.) Use of these standard instructions “is strongly encouraged.” (Cal.
Rules of Court, rule 2.1050(e).) The standard instructions accurately and fully
set out the applicable legal principles on causation, including the concept of
an intervening cause.

The
standard instructions that were given provided, in relevant part, as follows:
“The defendant committed involuntary manslaughter if: [¶] 1. The defendant
committed a crime or a lawful act in an unlawful manner; [¶] 2. The
defendant committed the crime or act with criminal negligence; AND [¶] 3. >The defendant’s acts unlawfully caused the
death of another person. [¶] . . . [¶] >An act causes the victim’s death if the
death is the direct, natural, and probable consequence of the act and >the death would not have happened without
the act. A natural and probable
consequence is one that a reasonable person would know is likely to happen if
nothing unusual intervenes. In deciding whether a consequence is natural
and probable, consider all of the circumstances established by the evidence.”
(CALCRIM No. 580, italics added.) As to causation, the jury was further
instructed: “There may more than one cause of death. An act causes death only if it is a substantial factor in causing the
death. A substantial factor is
more than a trivial or remote factor. However, it does not need to be the only
factor that causes death. [¶] The failure of Matthew Adams or another
person to use reasonable care may have contributed to the death. But if the
defendant’s act was a substantial factor causing the death, then the defendant
is legally responsible for the death even though Matthew Adams or another
person may have failed to use reasonable care. [¶] If you have reasonable doubt whether the defendant’s act caused the
death, you must find him not guilty.” (CALCRIM No. 620, italics altered.)

With
these instructions the jury was well-equipped to consider defendant’s claim
that Adams died from a drug overdose taken after he was hit on the head. The
jury was told that defendant was not responsible for Adams’s death unless
defendant’s act of striking Adams was “a substantial factor causing the death,”
the death was “the direct, natural, and probable consequence of the act,” the
death “would not have happened without the act” and “nothing unusual”
intervened between defendant’s act and Adams’s death. (CALCRIM Nos. 580, 620.)

Defendant’s
requested special instruction was properly refused. The requested instruction
was as follows: “The prosecution must show that a criminal act performed by the
defendant was a direct cause of the victim’s death and that death was the
natural and probable consequence of the defendant’s act. [¶] An act causes
the victim’s death if the death is the direct, natural, and probable
consequence of the act and the death would not have happened without the act. A
natural and probable consequence is one that a reasonable person would know is
likely to happen if nothing unusual intervenes. In deciding whether a
consequence is natural and probable, consider all the circumstances established
by the evidence. [¶] If you find that the People proved that [defendant]
Edward Holloway’s act was a direct cause of Matthew Adams’s death in that it
was the natural and probable consequence of Edward Holloway’s act, you must
also consider the following: [¶] The failure of Matthew Adams or another
person to use reasonable care may have contributed to the death. But if the
defendant’s act was a substantial factor causing the death, then the defendant
is legally responsible for the death even though Matthew Adams or another
person may have failed to use reasonable care. [¶] Edward Holloway claims
that he is not responsible for Matthew Adams’s death because he claims that Mr.
Adams’s subsequent conduct was grossly improper and caused his death. In
deciding whether this claim is proven, consider all the circumstances
established by the evidence. Proof by a preponderance of the evidence is a
different burden of proof than proof beyond a reasonable doubt. A fact is
proved by a preponderance of the evidence if you conclude that it is more
likely than not that the following facts are true: [¶] 1. That Matthew
Adams’s improper conduct occurred after the conduct of Edward Holloway;
[¶] 2. That a reasonable person would consider Matthew Adams’s subsequent
conduct as grossly improper, a highly unusual or an extraordinary response to
Mr. Holloway’s act; [¶] 3. That Edward Holloway did not know and had no
reason to expect that Matthew Adams would subsequently act in the manner that
he did; and [¶] 4. That Matthew Adams’s death resulting from his acts were
different from the kind of harm that could have been reasonably expected from
Edward Holloway’s conduct.”

Parts
of the proposed instruction repeat principles expressed in the standard
instructions on causation or in other standard instructions, making it
duplicative. Other parts of the proposed instruction are inaccurate,
inflammatory and confusing. In evaluating whether Adams used drugs after he was
injured by defendant, and if drug use was the cause of death, the jury needed
to consider if drug use was an “unusual” act intervening between injury and
death (as the standard instructions state) not whether drug use was “grossly
improper” (as the proposed instruction states). In appropriate circumstances,
“a trial court may be required to give a requested jury instruction that
pinpoints a defense theory of the case” but “a trial court need not give a
pinpoint instruction if it is argumentative” or duplicates other instructions.
(People v. Bolden (2002) 29 Cal.4th
515, 558.) The jury here received accurate and complete instructions on
causation, including guidance on evaluating defendant’s claim of a superseding
intervening cause of death. No additional clarification was needed. The trial
court did not err in refusing to give the requested instruction.

Moreover,
any error in refusing the requested instruction was harmless. As just
indicated, the standard instructions conveyed most of the principles stated in
the requested instruction. To the extent the defense wanted to highlight its
theory of death caused by unforeseeable drug use, this was done in defense
counsel’s closing argument to the jury. There was also overwhelming evidence
that Adams died from head trauma, not a drug overdose. The autopsy showed a
skull fracture with an underlying epidural hematoma and the pathologist
testified, without contradiction, that Adams died “as a result of blunt force
injuries to his head.” The pathologist acknowledged the high level of methadone
in Adams’s blood at the time of his death but concluded that the drug was not
the cause of death; a blow to the head was the “lethal mechanism.” A forensic
toxicologist expressed concerns about the large quantity of methadone Adams
ingested but did not disagree with the pathologist’s determination that a head
injury, not a drug overdose, was the cause of death. The evidence also strongly
supported the prosecution’s theory that Adams took methadone before, not after,
he was hit on the head. The police officer who interviewed Adams at the
restaurant testified that Adams showed signs of opiate intoxication at that
time. Degrio testified that Adams never answered the door bell or telephone
after she left him and that he died in the same position she last saw him,
suggesting that he died shortly after she left without rising to crush
methadone pills. While she could not be certain, Degrio believed the crushed
pills were “probably” on the table when she left. The evidence strongly
supported the jury’s finding that defendant caused Adams’s death. The requested
jury instruction, if administered, would not have led to a different finding.

2>. The trial court did not abuse its discretion
in responding to jury questions during deliberations by referring the jury to
the standard instructions on causation.

The
jury asked questions about causation during its deliberations and the court
responded by directing the jury to the standard instructions. Defendant
contends the court should have provided the jury with his proposed jury
instruction on causation, discussed above, or some other clarification beyond
the standard instructions.

The
jury asked multiple questions during deliberations, including three questions
on the issue of causation: “(1) Does a ‘substantial factor’ in a death need to
be a ‘but for’ cause of death, meaning death would not have occurred without
it? [¶] (2) If the defendant commits an act that would eventually have killed
the victim, but before it does so, some other cause intervenes and kills the
victim first, does that relieve the defendant of responsibility? [¶] (3)
In this case, can the defendant’s original act still be a substantial factor in
causing the death?” The court concluded that the standard instruction it had
given “is about as clear as we can make the causation issue.” Defendant’s
proposed instruction, the court said, “was not completely balanced,” “favored
the defense,” and would “mudd[y] the waters” were it administered.

The
court did not abuse its discretion in referring the jury to the standard
instructions on causation without further elaboration. “The court has a primary
duty to help the jury understand the legal principles it is asked to apply.” (>People v. Beardslee (1991) 53 Cal.3d 68,
97.) But “[t]his does not mean the court must always elaborate on the standard
instructions.” (Ibid.) Where, as
here, “the original instructions are themselves full and complete,” a trial
court may “merely reiterate the instructions already given.” (>Ibid.) The court did not abuse its
discretion in doing so here.

3.> The defense was not entitled to an adverse
inference instruction.

Defendant
contends the prosecution failed to preserve evidence from the victim’s apartment
that was potentially useful to the defense. The victim’s apartment had a
nightstand with 13 loose pills, several of them cut and broken, next to a
hand-held mirror with crushed powder on it. The police tested the pills and
powder and found them to be methadone. All the powder was consumed during
testing. In pretrial proceedings, the defense said “it would have liked to have
tested the methadone for its purity to see how strong it was, possibly to see
if it may have been a contributing factor as a cause of death” and asked the
court to instruct the jury that the state’s failure to preserve the methadone
powder permitted the jury to infer that the powder contained a “[h]igh quality
of methadone that was sufficient to cause [Adams] to reach toxic levels.” The
court denied the request.

A
criminal defendant’s right to due process imposes upon the prosecution a duty
to preserve “evidence that might be expected to play a significant role in the
suspect’s defense. To meet this standard of constitutional materiality
[citation], evidence must both possess an exculpatory value that was apparent
before the evidence was destroyed, and be of such a nature that the defendant
would be unable to obtain comparable evidence by other reasonably available
means.” (California v. Trombetta (1984)
467 U.S. 479, 488-489.) But police “failure to preserve potentially useful
evidence does not constitute a denial of due process” unless a defendant “can
show bad faith on the part of the police.” (Arizona
v. Youngblood (1988) 488 U.S. 51, 58.) “[A]n adverse [jury] instruction may
be a proper response to a due process violation.” (People v. Cooper (1991) 53 Cal.3d 771, 811.)

The
trial court here concluded there was no due
process violation and, thus, no basis for defendant’s requested jury
instruction adverse to the prosecution. The court noted that comparable
evidence concerning the strength of the methadone powder was available to the
defense by testing the remaining pills that had not been crushed into a powder
and by autopsy findings that established the amount of methadone Adams
ingested. The court also found the police did not act in bad faith in
conducting a chemical test of the powder that consumed the small amount
collected. Substantial evidence supports the court’s findings.

disposition

The
judgment is affirmed.









_________________________

Pollak,
Acting P.J.





We concur:





_________________________

Siggins,
J.





_________________________

Jenkins,
J.