P. v. Jamison
Filed 2/25/13 P. v. Jamison CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
HOWARD JAMISON,
Defendant and Appellant.
D060805
(Super. Ct.
No. SCD222182)
APPEAL from
a judgment of the Superior Court
of
County, Laura W. Halgren, Judge. Affirmed.
A jury
convicted Howard Jamison of the first
degree murder of 83-year-old Ewing Scroggs in violation of Penal Code
section 187, subdivision (a) (undesignated statutory references will be to the
Penal Code unless otherwise specified).
The jury found true an allegation that Jamison personally used a deadly
weapon (a knife) within the meaning of section 12022, subdivision (d), and also
found true a special circumstance allegation that he committed the murder while
engaged in the commission of a burglary (§ 460) within the meaning of
section 190.2, subdivision (a)(17).
At trial,
the court denied a mistrial motion Jamison brought after a witness—Jim Rapuano,
Jamison's former probation officer in Connecticut—twice
volunteered the statement, in the presence of the jury, that Jamison had
"an extensive criminal record."
After
denying Jamison's new trial motion, which was also based on the probation
officer's volunteered statements about Jamison's criminal history, the court
sentenced him to life in prison without the possibility of parole plus a
one-year prison term enhancement for the true finding on the personal use of a
knife allegation.
Jamison
appeals, contending the court's denial of his mistrial motion "irreparably
damaged" his federal constitutional right to a fair trial and constituted
reversible error because Rapuano's improper disclosure that Jamison had an
extensive criminal history was "incurably prejudicial" as it was
"too dramatic for jurors to ignore."
We conclude the court did not abuse its discretion or violate Jamison's
federal constitutional right to a fair
trial. Accordingly, we affirm the
judgment.
FACTUAL
BACKGROUND
A.
On December 10, 1989, relatives went to
Scroggs's home to check on him, as he had not answered his phone or shown up
for Sunday dinner. They found Scroggs
dead under a mattress in one of the bedrooms of his two-bedroom house in the Pacific
Beach area of San
Diego. The
relatives called the police and waited outside.
A deputy
medical examiner for the County of San
Diego testified that Scroggs had been beaten in
the face and chest and stabbed once in the back. Scroggs had suffered significant internal
injuries associated with the stab wound and the blunt force trauma of the
beating. All the injuries were inflicted
at about the same time. The cause of
death was the loss of blood from a knife penetrating a kidney and the main vein
returning to the heart.
Scroggs's
niece testified she tried to call her uncle over the weekend, but he did not
answer. She testified that Scroggs, who
had been a widower for a couple of years, was "pretty meticulous" and
"kept everything in its place."
She also said he always carried cash in his wallet, put his car in the
garage every night, closed the curtains of the house, and locked the
doors. At the time of his death he lived
alone, and she never knew him to take in boarders or transients.
The police
found no sign of forced entry. Scroggs
was found in the bedroom floor, lying on his side with his head almost up
against the wall by the top of the bed and partially covered by the mattress,
which was off the bed. Things in the
bedroom were knocked over, which a detective interpreted as evidence of a
struggle. Drawers were pulled out, the
storage doors were open, and the room looked ransacked. Scroggs's front right pants pocket was
partially pulled out. The police found
his wallet, which contained no cash or credit cards, on a dresser. One of the relatives who discovered Scroggs
told the police she picked the wallet off the floor and placed it there. A red stain was on the bedroom door, and
another was on a dresser drawer.
Police found
a Marlboro cigarette butt on the floor of the rear bathroom. A kitchen counter drawer with silverware was
partially open, and a butcher knife with a bloodstain was found in the kitchen
sink. Blood samples were collected by
evidence technicians, as were the butcher knife, several latent fingerprints,
and the Marlboro cigarette butt.
The retired
detective who had been in charge of the crime scene testified it looked like
someone had originally committed burglary by entering the house to steal property,
but confronted and killed Scroggs, making the crime a robbery and a
murder. After some investigation,
however, the case went cold in early 1990.
In 2003 a
detective in the cold case unit reviewed the case and submitted three
bloodstains from the crime scene for DNA analysis. A sample taken from the dresser drawer in the
second bedroom was found to be from an unknown male who was not Scroggs. The DNA profile from that sample was entered
into the national Combined DNA Index System (CODIS) database to which every
crime lab is connected.
In 2009 the
blood sample from the dresser drawer was tested again, this time using the most
up-to-date DNA analysis that looked at 15 different markers. After the results of this updated analysis
were entered into CODIS, the DNA was determined to match Jamison, whose DNA had
been entered into the CODIS database by the Connecticut Department of Public
Safety. Additional testing showed that
the blood on the butcher knife was from Scroggs, and the DNA on the Marlboro
cigarette butt matched Jamison. The
positive results from the drawer and the cigarette butt were later confirmed
through a mouth (buccal) swab DNA sample taken from Jamison in August 2009.
In August
2009 Jamison was arrested in Milford, Connecticut,
by FBI Agent Allan Vitkosky, who interrogated Jamison and obtained the buccal
swab DNA sample from him. After he was
told why he was being arrested and after he waived his Miranda
title="">[1]
rights, Jamison admitted he was in San Diego about 20 years earlier, hanging
out by himself in the Mission Beach area and panhandling because he did not
have a job, and also admitted he turned himself in for "jump[ing]
probation." He denied ever being in
Scroggs's home, and denied committing the murder. Agent Vitkosky testified that Jamison later
started going into some hypotheticals and told the agent that—if he (1) had
been in a house in San Diego where he was not supposed to be, (2) did not know
whether an old man lived there, (3) left his DNA there by touching or dropping something
like a cigarette butt, and (4) then ran out of the house after seeing
"something gruesome"—that would not mean he killed somebody.
B.
The defense
presented no evidence.
DISCUSSION
Jamison's
sole contention on appeal is that the court's denial of his mistrial motion
irreparably damaged his federal constitutional right to a fair trial and
constituted reversible error because Rapuano's improper disclosure that Jamison
had an extensive criminal history was "incurably prejudicial" as it
was "too dramatic for the jurors to ignore." This contention is unavailing.
A.
Background
Jamison had an extensive criminal
history, including at least seven prior felony convictions from various
states. The prosecutor brought an in
limine motion seeking to introduce under Evidence Code section 1101,
subdivision (b), evidence of some of those prior convictions, including
convictions for residential burglary and
assault on an elderly victim, to show identity, common plan or scheme, and
intent to stab Scroggs. After hearing
argument and taking the matter under submission, the trial court excluded the
prior bad acts evidence. However, the
court ruled that evidence of Jamison's outstanding warrant was admissible to
show he was in San Diego during the relevant time period and to show he was
extradited back to Connecticut.
Prior to
the testimony of Jamison's half-brother, Jeff Jamison; his Connecticut friend,
Jay Sparks; and Rapuano, his former probation officer in Connecticut—all of
whom were familiar with Jamison's criminal past—the court told the prosecutor
to caution the witnesses not to volunteer information about Jamison's criminal
history.
During the
cross-examination of Rapuano, defense counsel asked him whether he remembered a
specific date, and Rapuano responded, "Counsel, I can't give dates. Mr. Jamison has an extensive criminal record—."
(Italics added.) The court
interrupted Rapuano's answer and admonished him to listen to the question asked
and answer yes or no.
Shortly
thereafter, defense counsel asked Rapuano about a certain timeframe following
Jamison's extradition to Connecticut, and the following exchange took place:
"Q: From the
time that—between the time that he came from San Diego and January 23rd of
1990, Mr. Jamison did not live at Orange Avenue, correct?
"A: He lived
intermittently at Orange Avenue.
"Q: I am
asking you, from the period of December 12 to January 23 of 1990, did he live
at Orange Avenue?
"A: That,
I'm not certain of.
"Q: You know
that he was brought back to Connecticut in custody, right?
"A: Yes.
"Q: And he
stayed in custody once he got back to Connecticut, right?
A: Um-hmm.
"Q: Is that
a 'yes'?
"A: Well, he
made bond at one point. [¶] Your Honor,
if I could have some leverage [sic]
Interrupting
Rapuano again, the court asked him to "please stop" and immediately
sent the jury out of the courtroom. The
court then inquired as to whether the prosecutor had properly admonished
Rapuano prior to his testimony, and the prosecutor replied that she had
"admonished him a hundred percent," just as she had admonished Jeff
Jamison and Sparks, and she specifically told Rapuano that if the only way he
could truthfully answer a question was to refer to Jamison's criminal history,
he should say he needed to refer to something in his report, and the prosecutor
would then request a sidebar to get a ruling from the court.
Accepting
the prosecutor's representation, the court admonished Rapuano that he was in
violation of the court's rulings and needed to refrain from volunteering such
information. The court then reiterated
the specific areas that Rapuano could not address, stating, "You must not
refer to incarceration. You must not
refer to prior convictions or any other information relating to criminal
history other than the limited portion relating to the absconding and then
extradition on the warrant."
Rapuano
explained to the court he had made the statement because it was extremely
difficult to answer questions regarding specific dates as Jamison had multiple
probation violations and escapes from custody and from mental health
institutions, and the document to which Rapuano had access was not specific as
to dates of dispositions. The court
instructed Rapuano he should answer that he did not have the information.
1.
Following
further discussion, defense counsel requested a mistrial. The trial court denied the request but
informed defense counsel it would give a cautionary instruction to the jury and
stated it believed it had already stricken the testimony.
Stating,
"[J]ust so we don't get into more issues," the court permitted
defense counsel to examine Rapuano at an Evidence Code section 402 hearing so
that counsel could ask him any remaining questions and elicit whether he knew
the answers. During the hearing, Rapuano
was unable to clearly testify as to defense counsel's previous question
regarding whether Jamison was in custody during a particular timeframe. The court ruled that further questioning as
to that issue would open the door to details about Jamison's criminal history
during the time period of December 1989 through 1991, which included a
burglary, contempt of court, and escape from custody. The court then asked defense counsel whether
it should say anything further about striking Rapuano's reference to Jamison's
criminal history or give a cautionary instruction at the end of trial
instead. Defense counsel requested a
cautionary instruction at the end of trial, stating, "I don't want to draw
further attention to the issue."
When the
jurors returned, the court told them, "The last answer of the witness
prior to excusing the jury will be stricken.
The jury is to disregard that."
Later,
shortly before the lunch break and out of the presence of the jury, the court
invited defense counsel to craft a suggested limiting instruction for the court
to read to the jury at the close of trial.
2.
Renewal and denial of Jamison's
mistrial motion
When the
proceedings recommenced after the lunch break, defense counsel renewed the
motion for a mistrial, claiming a curative instruction would not fix the problem
but, instead, would highlight the issue and further prejudice Jamison. The prosecutor opposed the motion, arguing
that "the situation was rectified" when the court interrupted
Rapuano, whose answer "tailed off" following his reference to
Jamison's criminal record, and when the court "quickly cured to the jury
and stated 'please disregard anything.' "
The court
again denied Jamison's mistrial motion, indicating that some sort of limiting
instruction might be appropriate. The
court suggested adding to the instruction regarding the limited use of the
evidence pertaining to Jamison's absconding from probation, an instruction that
any other information relating to criminal history be disregarded.
3.
During the
discussion regarding jury instructions, defense counsel changed his mind and
requested a limiting instruction. The
court later instructed the jury with the following modified version of CALCRIM
Nos. 303 and 375:
"During the trial, certain evidence related to
Defendant's connection with the criminal justice system was admitted for the
limited purpose of proving his presence in San Diego on December 11, 1989, and
subsequent extradition back to Connecticut.
[¶] Do not consider this evidence
for any other purpose. Do not conclude
from this evidence that the defendant has a bad character or is disposed to
commit crime. [¶] This evidence is not sufficient by itself to
prove that the defendant is guilty of the charged crime or allegations. The People must still prove the charge and
allegations beyond a reasonable doubt.
[¶] Do not consider any other evidence of criminal history for any purpose." (Italics added.)
4.
At the
sentencing hearing, the court addressed the issue again in the context of a
defense motion for a new trial. In
denying the motion, the court stated that Rapuano's reference to Jamison's
extensive criminal history was "essentially nonresponsive[]" during
defense questioning that was "a difficult area for [Rapuano] to correctly
testify to without addressing [Jamison's] criminal history." The court added:
"[U]nder the circumstances and the way it
developed, by immediately sending the jury out, discussing the matter with the
witness, then striking the testimony and later giving a curative instruction at
the end of the case, I feel that the court did everything it could do, and
prejudicial given the overall context of the case and the
evidence." (Italics added.)
B.
"'A
motion for mistrial is directed
to the sound discretion of the trial court [and ]should be granted if the court
is apprised of prejudice [it deems] incurable by admonition or
instruction.'" (People v. Cox
(2003) 30 Cal.4th 916, 953.) "'Whether a particular incident is incurably
prejudicial is by its nature a speculative matter, and the trial court is
vested with considerable discretion in ruling on mistrial motions.'" (People
v. Jenkins (2000) 22 Cal.4th
900, 986.)
Thus,
"[w]hether in a given case the erroneous admission of [evidence of the
defendant's prior criminality] warrants granting a mistrial or whether the
error can be cured by striking the testimony and admonishing the jury rests in
the sound discretion of the trial court."
(People v. Harris (1994) 22
Cal.App.4th 1575, 1581, citing People v.
McLain (1988) 46 Cal.3d 97, 113.)
"A
trial court should grant a mistrial
only when a party's chances of receiving a fair trial have been irreparably
damaged, and we use the deferential abuse of discretion standard to review a
trial court ruling denying a mistrial."
(People v. Silva (2001) 25 Cal.4th 345, 372.)
C. Analysis
We are
guided by the California Supreme Court's decision in People v. Bolden (2002) 29 Cal.4th 515 (Bolden). At trial in that
murder case, the prosecutor asked a police officer a question about the
defendant's address, and the officer answered, "It was at the Department
of Corrections parole office located at—."
(Id. at p. 554.) The prosecutor interrupted the officer's
testimony and redirected his attention to the question the prosecutor had
asked. (Ibid.) Later, outside the
presence of the jury, the defense moved for a mistrial on the ground the
witness's reference to a parole office was very prejudicial to the defendant
because it implied he had suffered at least one prior felony conviction for
which he had served a state prison
sentence. (Id. at pp. 554-555.) At the
hearing on the motion, the prosecutor assured the trial court he had warned the
witness on three occasions not to refer to the parole office, and he was
"taken by surprise" when the witness mentioned the parole
office. (Id. at p. 555.) In denying
the mistrial motion, the trial court found there was insufficient prejudice to
warrant a mistrial because the reference to the parole office was unlikely to
make a lasting impression on the jury. (
abuse its discretion in ruling that the defendant's chances of receiving a fair
trial had not been irreparably damaged because the witness's reference to the
parole office was brief, the prosecutor interrupted the witness's testimony
before he could complete the answer, and "[t]he incident was not
significant in the context of the entire guilt trial." (Ibid.)
Similarly
here, like the officer who testified in Bolden,
Rapuano briefly answered a question in a manner that allowed the jury to learn
that Jamison had a criminal record. As
in Bolden, the prosecutor had
admonished the witness not to divulge such information. When Rapuano twice referred briefly to
Jamison's criminal history, the court took steps above and beyond those taken
in Bolden to cure any possible
prejudice to the defense. Specifically,
when Rapuano first mentioned Jamison's criminal history, the court immediately
interrupted his answer and admonished him to listen to the question asked and
answer yes or no.
When
Rapuano briefly mentioned Jamison's criminal history a second time, the court
again immediately cut him off, excused the jury, admonished Rapuano, held an
Evidence Code section 402 hearing to prevent any additional references to
Jamison's criminal record in front of the jury, and then brought the jurors back
and told them Rapuano's "last answer" was stricken and they were to
"disregard" it.
In addition
to the foregoing effective steps the court promptly took to cure any potential
prejudice to the defense, the court later instructed the jury not to consider
evidence of Jamison's criminal history "for any purpose" except for
"the limited purpose of proving his presence in San Diego on December 11,
1989, and subsequent extradition back to Connecticut." " 'A jury is presumed to have followed an admonition to disregard improper
evidence particularly where there is an absence of bad faith. [Citations.]
It is only in the exceptional case that "the improper subject
matter is of such a character that its effect . . . cannot be removed by the
court's admonitions." ' " (People v. Olivencia (1988)
204 Cal.App.3d 1391, 1404, quoting People
v. Allen (1978) 77 Cal.App.3d 924, 934-935; see also People v. Cox,
supra, 30 Cal.4th at p. 953 [upholding the trial court's denial of a
defense mistrial motion, explaining that "[i]n the context of erroneously
offered polygraph evidence, we have held that a trial court's timely
admonition, which the jury is presumed
to have followed, cures prejudice resulting from the admission of such
evidence"], disapproved on another point in People v. Doolin (2009)
45 Cal.4th 390, 421, fn. 22.)
We are
persuaded this case is not exceptional.
The record is devoid of any showing of bad faith. As noted, the court took many curative
measures and, in any event, the jury permissibly knew from the testimony of
Jamison's former probation officer in Connecticut—Rapuano—that he had some sort
of criminal record and had absconded from probation before he was arrested in
San Diego in December 1989. We conclude
the court did not abuse its discretion in denying Jamison's mistrial motion.
Even if we
were to conclude the court erred, we would also conclude any such error was
harmless in light of the overwhelming
evidence of Jamison's guilt discussed, ante,
in the factual background. For example,
the evidence showed Jamison's DNA was found both in a bloodstain on Scroggs's
dresser and on the Marlboro cigarette butt collected from Scroggs's home. In addition, Jamison's half-brother, Jeff
Jamison, testified that Jamison had told him he had murdered someone in
California. Jeff Jamison also testified
that Jamison smoked Marlboro cigarettes, the brand of the cigarette found at
the crime scene. For all of the
foregoing reasons, we affirm the judgment.
DISPOSITION
The judgment is affirmed.
NARES,
J.
WE CONCUR:
HUFFMAN, Acting P. J.
McDONALD, J.
name="_ftn1" title="">[1] Miranda v.
Arizona (1966) 384 U.S. 436.
