P. v. Melanson
Filed 4/18/13 P. v. Melanson CA1/2
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opinion has not been certified for publication or ordered published for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
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ROY ALLEN
MELANSON,
Defendant and Appellant.
A133688
(Napa
County
Super. Ct.
No. CR152581)
INTRODUCTION
In
September 2011, a jury convicted Roy Melanson of the July 1974
the possibility of parole. On appeal,
Melanson contends the judgment must be reversed because (1) evidence of several
uncharged offenses was erroneously admitted at trial; (2) this case should have
been dismissed for precharging delay; and (3) a photographic line-up was
impermissibly suggestive. We reject
these contentions and affirm the judgment.
STATEMENT OF FACTS
A. The Murder of Anita Andrews
In
1974, Anita Andrews and her sister Muriel Fagiani owned Fagiani’s bar in Napa. Andrews, who was 52, had a day job at a
hospital and worked at the bar six evenings a week. Andrews was clean, neat and fastidious, with
set routines and habits. She always
dressed well, wore jewelry and carried a purse containing her checkbook, cash,
makeup and car keys. She would open the
bar at around 5:00 p.m. and closed up
some time between 9 and 11:00 p.m. There were never many customers. When she worked at the bar, Andrews wore a
black diamond onyx ring so customers would think she was married. She also wore a Bulova watch, and a
bracelet. She parked her 1967 tan
Cadillac in front of the bar.
On
the evening of July 10, 1974,
David Luce and two friends stopped at the bar for a drink while on their way to
dinner. There was only one other
customer; a Caucasian man, possibly in his 40’s, with a wet, flattened
hairstyle and thin lips, sat at the bar drinking a beer and smoking a
cigarette. The man, whose legs were
crossed in a strange manner, sat turned away from Luce and his friends and
covered his face with his hand. One of
Luce’s friends yelled at the man, wanting to know why he was hiding his face
from them. The man did not respond. Luce convinced his friend to stop and later
apologized and shook the man’s hand, which was soft and limp. At one point, Luce asked the bartender if the
man was her boyfriend and she said that he was.
more than half an hour and when they left, at around 9:30 p.m., Luce had the feeling the bartender was waiting
for them to go so she could close the bar.
Several hours later when Luce walked by the bar again, the door was
closed, the lights were out, and the Cadillac that had been parked outside
earlier was gone.
The
next morning, Napa Police Officer Joseph Moore responded to a call from the
bar. Muriel Fagiani, who looked to be in
shock, told Moore she thought her
sister had been raped and directed him to a storeroom where he found Andrews
dead on the floor. Her clothes were torn
and in disarray and blood pooled around her upper torso. Moore
secured the area, other officers arrived, and a bulletin was issued for
Andrews’ missing Cadillac. That morning,
David Luce heard about the Andrews murder and contacted the police to report
what he had seen. Later that same day,
an unidentified man used Andrews’ credit card in Sacramento
to buy gas for her Cadillac. However,
the car was never recovered.
B. The Crime Scene Investigation
On
the morning of July 11, 1974,
the Napa District Attorney employed a criminalist named Peter Barnett to work
on the Andrews homicide case. Barnett
arrived at the bar at around 10:45 a.m.,
collected evidence and documented observations that were relevant to the
investigation.
The
bar counter had been recently wiped with a towel and was clear except for an
ashtray containing one cigarette butt, a shot glass and a mixing spoon. At an angle from the ashtray, one bar stool
was moved out from the row of neatly arranged stools under the bar. The sink area behind the counter was also
clean and clear except for a screwdriver sitting on the drain which left a rust
mark where it had been placed when wet.
Three basins in the sink were filled with a small amount of water. The water from the middle basin tested
presumptively positive for blood. A
crumpled and stiffened towel was on the floor under the sink. There were blood stains on the bar floor,
about two feet from double doors connecting the bar area to a storeroom. The pattern of the stain suggested someone
had walked there after suffering an injury like a
Andrews
was found on the storeroom floor, on her back, partially unclothed. Blood pooled on the floor and was splattered
on the walls and over many of the objects in the storeroom. Andrews’ clothes were torn, punctured, and
partially removed from her body. Her
pants and underclothes were removed from her right leg, but remained on her
left leg, which left her genitals exposed.
Her blouse had been opened and her brassiere pulled down, exposing her
breasts. There was glass on the floor
and in Andrews’ hair. Two loose buttons
and one of Andrews’s shoes were on the storeroom floor and an earring was found
in the bar area just outside the storeroom.
Andrews was not wearing her watch, ring or other jewelry and
investigators did not find a purse, pocketbook, credit card or car keys. Bloody shoeprints that were not made by
Andrews led from the storeroom to an upstairs office which contained a cash box
and a safe. Another shoeprint was found
just inside the front door of the bar.
C. Pathology Evidence
On
July 11, 1974, Dr. David Clary conducted an autopsy of Andrews’ body. Dr. Clary died in 1982. Dr. Anthony Chapman, who testified at
Melanson’s trial as an expert in forensic pathology, reviewed Clary’s autopsy
report, photographs from the autopsy and various investigative reports
pertaining to the Andrews homicide. Dr.
Chapman determined that Andrews died from multiple stab wounds to the body,
especially to her chest, combined with an injury to the head. The nature and distribution of the injuries
that Andrews sustained confirmed that she was the victim of
The
13 stab wounds that Dr. Chapman independently documented were inflicted by a
thin, pointed instrument which could have been a screwdriver. Andrews also sustained several blunt force
lacerations, including a laceration on her scalp and a skull fracture that
could have been inflicted with a glass bottle.
Andrews also had bruises and abrasions on various parts of her body, a
broken nose and other injuries consistent with being punched. The condition and positioning of Andrews’
clothes, and a bloody towel found near her genital area were signs that a
sexual assault was intended. However,
there was no physical evidence that one occurred.
D. The Case Against Melanson
In
late 2001, Police Officer Peter Jerich reopened the Andrews homicide case and
submitted a request to the Department of Justice (DOJ) to conduct DNA testing
on several items from the crime scene and on two items from a man named Liston
Biel, who had been a prime suspect at the time of the murder. In May 2006, the Andrews case was reassigned
to Detective Donald Winegar. Winegar
took the case because he had recent experience on a major case that benefited
from advancements in the field of DNA evidence.
Winegar followed up on Detective Jerich’s earlier request for DNA
testing with a DOJ criminalist named Michelle Terra.
Through
her analysis, Terra determined that (1) Liston Biel’s DNA was not found on any
crime scene evidence she tested; (2) Andrews’ blood was on three towels
collected from various locations in the bar, including the towel found under
the sink behind the bar (the sink towel); (3) there were indications that male
DNA was also on the sink towel, but additional analysis called Y-STR testing
was required to identify a potential match.
In
November 2006, Terra sent the sink towel and reference samples to Serological
Research Institute (SERI) for Y-STR testing.
A partial DNA profile generated in 2007 excluded Liston Biel as a donor
of the blood on the sink towel.
In
2008, Terra tested additional items from the crime scene. Although she was unable to create a profile
for the screwdriver, Terra developed a full profile for DNA recovered from the
cigarette butt that was found in the ashtray at the crime scene. After Terra excluded both Andrews and Biel as
the source of the DNA, she conducted a database search which produced a perfect
match with appellant Melanson’s DNA.
In
November 2009, Detective Winegar interviewed Melanson who was 72 years old at
the time. The interview took place in a
Colorado prison.
title="">[3] Melanson said he had never been in Napa and
denied any involvement in a murder committed there in the summer of 1974. Melanson said he was living and working in
Colorado that summer and, before that, he lived with family in Texas after
spending some time in prison. Melanson
claimed he did not “even know where Napa Valley is.†When Winegar disclosed the DNA match,
Melanson said the evidence was wrong and he also denied that his fingerprints
were found at the crime scene. Winegar
obtained another sample of Melanson’s DNA, and also took his fingerprints and a
writing sample.
The
DNA sample Winegar obtained from Melanson confirmed a match with the DNA from
the cigarette butt. Michelle Terra, the
DOJ criminalist, calculated that such a match would occur among unrelated
individuals once in 8.8 quintillion Caucasians, once in 170 quintillion
Hispanics, and once in 570 quintillion African Americans. Melanson’s DNA also matched a profile of DNA
that was found on the sink towel which was developed by an analyst named Gary
Harmor in 2010. Harmor used Y-STR
analysis to obtain a sample from that towel that generated a 10-marker profile. Harmor concluded that all 10 markers matched
Melanson’s Y-STR DNA profile. Harmor
found only one match in his database of 11,393 males and calculated the rarity
of this profile as one in 3,846 males.
Experts
also analyzed Melanson’s fingerprints and handwriting. Melanson’s fingerprints were identified on
five empty beer bottles and a rum bottle that were found behind the bar at the
time of the murder.
title="">[4] A handwriting expert compared Melanson’s
writing sample to the signature on the credit card receipt for the gas that was
purchased for Andrews’ car after she was murdered. That analysis was inconclusive; there were
some similarities but the quality of the gas receipt was poor, and there were
also indications that Andrews’ forged signature was scribbled to disguise the
writing.
In
January 2010, Detective Winegar showed David Luce a photo lineup containing
photographs of six men, including a 1975 photograph of Melanson. Luce looked at the pictures for approximately
40 to 45 seconds and then identified Melanson as the man he saw in Fagiani’s
bar on July 10, 1974. Luce said that the
eyes were what he remembered most.
However, he also admitted that he was not 100 percent sure that Melanson
was the man from the bar.
On July 19, 2010,
the Napa County District Attorney filed a complaint charging Melanson with the
first degree murder of Anita Andrews. In
October 2010, the complaint was substituted with an indictment, and a jury
trial commenced in July 2011.
E. The Uncharged Conduct Evidence
In
addition to the evidence summarized above, the prosecutor presented evidence
that, between 1962 and 1974, Melanson raped three women, Reba R., Katherine O.,
and Sandra S., and that he murdered Michelle Wallace.
The
prosecutor presented documentary evidence
that Melanson was convicted of the March 29, 1962, rape of Reba R. and the
February 20, 1974, rape of Sandra S.
There was no evidence about the circumstances of the Reba R. rape, other
than that it happened in Jefferson County, Texas, and that Melanson was
punished for it. However, Sandra S.
appeared and testified at this trial.
Sandra
S. testified that she was 17 in February 1974 when Melanson pulled into a gas
station in Texas where she had stopped to look for gas. Sandra S. recalled that Melanson looked “like
an old cowboy†and that his hair was greasy and “slicked back.†There was a gas shortage at the time and the
station was closed, but Melanson said he knew another place to get gas. He suggested Sandra S. follow him in case she
ran out of gas. As she was following,
Melanson pulled over and gestured that he needed help. He asked her to try to start his truck while
he looked under the hood. As Sandra S.
complied, Melanson came over to the truck, pushed her down onto the floorboard
and threatened to kill her if she tried to get up. Melanson drove to an empty field, where he
raped Sandra S. several times. When she
tried to hit the horn to get the attention of a car passing in the distance,
Melanson slapped her, tied her up with her pantyhose and a rope and gagged and
blindfolded her. Sandra S. testified
that Melanson took her to a garbage dump where he raped her again and
repeatedly threatened to kill her. He
then drove her to another location, moved her to another car, and took her
across the Louisiana border into the swamps and woods. At the last location, he raped her
repeatedly, and told her if she did not enjoy it he would kill her. Sandra S. testified that Melanson was
“frustrated and mad and forceful.â€
After
the last time Melanson raped her, Sandra S. began to talk to him and he reacted
as though he thought that they could become friends. Sandra S. offered to tell her mother that she
had tried to run away, and told Melanson her mother would believe her because there
were problems at home. Melanson told
Sandra S. he would bring her to a pay phone where she could call her father
and, as they drove back to Texas, he showed her his driver’s license. He also told her that he was the uncle of a
girl she went to school with, and that he had been stalking her. Before letting her go, Melanson told Sandra
S. he would kill her if she reported him.
The
prosecutor’s evidence that Melanson raped Katherine O. consisted of prior
testimony that Katherine O. gave at an August 1972 preliminary hearing in
Texas. No evidence was presented that
Melanson was convicted of any crime against Katherine O.
Katherine
O. testified that on the evening of August 8, 1972, she was on her way to a
club in Orange, Texas, when her car got a flat tire. Two men in a pickup truck stopped to offer
assistance. The driver, Roy, was stocky
with a beer belly. The passenger was
younger, around 22, slender, and had short hair. The two men checked her spare tire, found
that it was also flat and offered to drive her to get it fixed. En route, Roy said he needed to change
trucks and then drove to a house where they left the passenger. Roy put the tire in a different truck and
Katherine O. got in with him, thinking they would head to the “Billups†to get
the tire fixed. Instead, Roy drove to a
secluded area where he “lunged†at Katherine O., acting as though she would
accept his advance. When she questioned
him, Roy said he was going to “fuck†her.
Katherine O. resisted, but the more she fought, the harder he fought
back while using offensive language to describe what he was going to do to
her. At one point, Roy punched Katherine
O. in the face with a closed fist which stunned her, but she continued to
resist until he twisted her arm back and pinned her down. Then Roy “forcibly†removed her clothing by
pulling her pants completely off one leg and down to the knee of the
other. He then repeatedly raped and sodomized
her and forced her to perform other sexual acts, all the time talking to her
and telling her to respect his wishes.
This conduct went on for an hour and a half until Roy finally
climaxed.
Katherine
O. testified that, after Roy finished, he just sat there, at which point she
decided to try to humor him, hoping she might outwit him. She made him laugh and offered him some
tissue to clean himself. She threw the
tissue out the window along with her torn underwear so that it could be found
later. After she put her pants on, Roy
started apologizing. Eventually, he
drove to a gas station and arranged for someone to fix the tire. Roy then drove Katherine O. back to her car
and changed her tire while she memorized his license plate number. Roy apologized again and told Katherine O. he
would follow her onto the highway. As they
began to drive in their separate cars, an acquaintance of Katherine O.’s drove
by and stopped to check on her, at which point Roy drove away.
3. The
Murder of Michelle Wallace
The
prosecution presented documentary evidence that in September 1993, a Colorado
jury found Melanson guilty of the 1974 murder of Michelle Wallace. The jury heard about the circumstances
surrounding that crime through the testimony of three witnesses, Charles
Mathews, Stephen Fry and Jimmie Smalley.
On
August 29, 1974, Charles Mathews met Melanson at a bar in Gunnison,
Colorado. Melanson complained about a
bear that was going after his horses, so he and Mathews decided to go after the
bear. They drove together to a cabin
where Melanson was staying. They had
been drinking a lot and arrived late, so they went to sleep. The next morning, Melanson and Mathews drank
some beer, spent some time driving around the cabin area and then headed back
to Gunnison. On the way, they had car
trouble and started to walk. Michelle
Wallace stopped and offered them a ride.
Mathews rode in the back with Wallace’s German Sheppard and Melanson
rode in the front. Wallace dropped
Mathews off at the bar where he had met Melanson the night before. However, Melanson asked Wallace to take him
somewhere else and the two drove off together.
Wallace,
a free lance photographer, was reported missing on September 3, 1974. Stephen Fry, the Undersheriff at the Gunnison
County Sheriff’s Department, headed the investigation into Wallace’s
disappearance, which included an extensive air and land search of the
mountainous park areas in the region where Wallace backpacked, camped and took
photographs. When Charles Mathews heard
a radio news report that Wallace and her dog were missing, he contacted the
sheriff’s department and reported that Wallace had given him and Melanson a
ride. The investigation expanded to
include a search for Wallace’s red Mazda, and for Melanson, the last person to
be seen with Wallace.
On
September 12, 1974, Melanson was arrested in Pueblo, Colorado, approximately
160 miles away from Gunnison. He’d been
stopped by police because he was driving an older model Cadillac that was
reportedly involved in selling drugs near the high school. A subsequent computer check revealed Melanson
was wanted in Gunnison.
Pueblo
Police Officer Jimmy Smalley interviewed Melanson who admitted he had been in
Gunnison and that he knew Michelle Wallace, but claimed not to know her
well. He said he had seen her hiking,
and he knew she had a dog. But Melanson
said he had never seen Wallace in a car and claimed he did not know what a
Mazda looked like. In the Cadillac that
Melanson had been driving, police found the registration for Wallace’s Mazda,
her insurance card and a Mazda tool kit.
They also found a set of Wallace’s car keys in the pocket of a pair of
pants in a bag on the back seat of the car.
Officer Smalley also discovered that Melanson signed a pawn ticket in a
Pueblo pawnshop on September 3, 1974, which he used to recover Wallace’s camera.
The
Pueblo police transferred Melanson and the evidence they had collected to the
sheriff’s office in Gunnison.
Undersheriff Fry found additional pawn slips and other papers belonging
to Wallace in Melanson’s wallet.
Melanson had pawned Wallace’s sleeping bag and backpack in Cedar Falls,
Iowa. Film from the camera that Melanson
had pawned in Pueblo contained a picture of Wallace, a picture of her dog and a
picture of Melanson with another woman in a motel room. At some point, Wallace’s car was located in
Amarillo, Texas. However, by the end of
October, there was no evidence of a body and the case went cold.
In
1979, a scalp with braided hair was found in the Bracken Creek area of Gunnison
County. Analysts determined that the
hair was human, but there was no DNA analysis at that time. The Wallace case was reopened in the early
1990’s. In 1992, the remains of
Wallace’s body were found in the same area where the scalp was previously
located.
III. DISCUSSION
Melanson’s
primary contention on appeal is that all of the uncharged conduct evidence
should have been excluded from his trial.
To support this claim of error, Melanson makes three distinct arguments: (1) the Wallace murder should have been
excluded under Evidence Code sections 1101 and 352
(2) the prior rape evidence should have been excluded under section 352; and
(3) section 1108 and a related jury instruction regarding the use of evidence
of uncharged sex offenses are both unconstitutional.
Section
1101, subdivision (a) (section 1101(a)), establishes a general rule excluding
“evidence of a person’s character or a trait of his or her
character . . . when offered to prove his or her conduct on a
specified occasion.†(See
274, 280 (Branch).) However, section 1101, subdivision (b)
(section 1101(b)), clarifies that this general rule does not exclude evidence
of uncharged conduct which is relevant to prove some fact other than bad
character or criminal disposition, like intent, common plan or identity. (§ 1101(b); People v. Ewoldt
(1994) 7 Cal.4th 380, 393 (Ewoldt).)
Furthermore,
section 1101(a) is subject to statutory exceptions which may make character
evidence admissible, including section 1108, which states: “In a criminal action in which the defendant
is accused of a sexual offense, evidence of the defendant’s commission of
another sexual offense or offenses is not made inadmissible by Section 1101, if
the evidence is not inadmissible pursuant to Section 352.†(§ 1108, subd. (a).)
If
a trial court determines that evidence of a criminal defendant’s uncharged
conduct is not excluded by the general rule codified in section 1101, the court
must also independently consider whether the evidence should be excluded
pursuant to section 352. (People v.
Balcom (1994) 7 Cal.4th 414, 426 (Balcom).) Evidence must be excluded under section 352
if its probative value is substantially outweighed by the probability that its
admission would “(a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.†(§ 352.)
On
appeal, we review rulings under sections 1101, 1108 and 352 for an abuse of
discretion. (People v. Foster (2010) 50 Cal.4th 1301, 1328-1329 (
Cal.App.4th 1091, 1104 [sections 1108 and 352].) “ ‘Under the abuse of discretion
standard, “a trial court’s ruling will not be disturbed, and
reversal . . . is not required, unless the trial court exercised
its discretion in an arbitrary, capricious, or patently absurd manner that
resulted in a manifest miscarriage of justice.â€
[Citation.]’ [Citation.]†(Foster,
supra, 50 Cal.4th at pp. 1328-1329.)
In
the present case, the prosecution moved to admit evidence of seven uncharged
acts. As reflected in our factual
summary, the trial court admitted evidence of four of those seven incidents.
The
trial court found that evidence of the 1962 rape of Reba R. was relevant under
section 1108 as a prior sex offense, and was not excluded by section 352. The court reasoned that the incident was not
too remote; the fact that there was a conviction established both certainty and
prior punishment; and presenting the evidence would not be unduly time
consuming because the prosecutor agreed to limit evidence to documentary proof
of the conviction and punishment.
The
trial court also admitted evidence of the 1972 rape of Katherine O. and the
1974 rape of Sandra S. under section 1108 and found that neither incident was
excluded by section 352. The Sandra S.
rape was committed six months before the charged offense, was a prior sexual
act, resulted in a conviction, and none of the section 352 factors weighed in
favor of exclusion. As for the Katherine
O. case, the court weighed the fact that Melanson had not been punished for
that offense, but it concluded that the incident was more probative than prejudicial. The court noted, among other things, that the
incident was close in time, involved a Caucasian woman who was a stranger to
the defendant, and the victim’s clothes were partially removed during the
sexual assault.
Finally,
the court found that the 1974 murder of Michelle Wallace was admissible under
section 1101(b) as probative of a common plan or scheme and that it was not
excluded by section 352. The court
reasoned that the two murders were committed within a six-week time period and,
in both cases, the defendant got the woman alone, attacked and killed her. In concluding that the probative value was
not outweighed by the danger of unfair prejudice, the court noted that neither
murder was more inflammatory than the other, and the evidence would show that
Melanson had already been punished for the Wallace murder.
However,
the trial court excluded evidence of three other uncharged crimes: a June 1962
sexual assault of Sandra C., Melanson’s 16-year-old cousin; the July 1988
disappearance and presumed murder of Pauline Klump; and the August 5, 1988,
sexual assault and murder of Charlotte Sauerwin. The trial court excluded evidence of these
three offenses pursuant to section 352.
The court was concerned that the jury would be inflamed by the facts of
the Sandra C. case, noting the victim’s youth and the fact that Melanson had
not been punished for this offense. In
the Klump case, there was no evidence of a sex crime since a body was never
found and the probative value was low because, as the court found, “[w]e don’t
really know what happened.†Finally, the
Sauerwin incident was relevant under section 1108 as a prior sex offense and
under section 1101 as evidence of a common plan. However, there was no prior conviction, a
mini trial might be necessary to prove the offense, and the jury might be
overwhelmed by the number of uncharged crimes that Melanson had committed. Ultimately, the court concluded that the
probative value of the Sauerwin evidence was outweighed by the substantial
danger of undue prejudice and confusing the issues.
3. The Wallace Murder
Melanson
contends that the Wallace murder was bad character evidence under section
1110(a) and that it was not admissible under section 1101(b) to prove a common
design or plan because that crime was not sufficiently similar to the charged
murder of Anita Andrews. Alternatively,
Melanson argues that this uncharged misconduct should have been excluded under
section 352.
Uncharged
act evidence is relevant to prove a common plan when “the uncharged misconduct
and the charged offense are sufficiently similar to support the inference that
they are manifestations of a common design or plan.†(Ewoldt,
supra, 7 Cal.4th at p. 402.) The
charged and uncharged acts need not be part of a “single, continuing conception
or plot.†(Id. at p. 401.) However, the
evidence must “demonstrate ‘not merely a similarity in the results, but such a
concurrence of common features that the various acts are naturally to be
explained as caused by a general plan of which they are the individual
manifestations.’ [Citations.]†(Id.
at p. 402.) Furthermore, although the
“common features must indicate the existence of a plan rather than a series of
similar spontaneous acts, . . . the plan need not be unusual or
distinctive; it need only exist to support the inference that the defendant
employed that plan in committing the charged offense. [Citation.]â€
(Id. at p. 403
In
the present case, the Wallace murder and the murder of Anita Andrews shared
significant common features. In both
cases, Melanson gained the trust of his victim; Wallace agreed to drive him
somewhere alone after dropping Mathews off at the bar, and Andrews told Luce
that Melanson was her boyfriend. In both
cases, Melanson was the last person seen with the victim before she died;
Wallace and Melanson were alone together in a car, and Andrews and Melanson
were alone together in a bar at closing time.
In both cases, there was evidence that Melanson killed his victim, took
personal belongings from her, and took her car.
Finally, in both cases, Melanson lied to authorities about his prior
association with the victim; he told Detective Winegar that he had never been
in the bar where Andrews was killed and he told Officer Smalley that he had
never been in Wallace’s car. Indeed,
both denials were unnecessarily exaggerated.
Melanson told Winegar that he did not know where Napa was and he told
Smalley that he did not know what a Mazda was.
On
appeal, Melanson contends the Wallace murder was materially different than the
Andrews murder because he was with another man when he met Wallace and he was
alone at the bar when he met Andrews.
Actually, there is no evidence about how Melanson first met Andrews. Regardless, this irrelevant detail does not
alter the common features summarized above including that Melanson was the last
person seen with the victim and the victim was left alone with him under
circumstances which made her vulnerable to attack.
Melanson
also contends that the Colorado case is not sufficiently similar to the charged
murder because there was no evidence about how Wallace was killed; in contrast
to the present case, there was no evidence that Wallace was physically or
sexually assaulted. Preliminarily, we
note that evidence Wallace’s scalp was discovered many years before
investigators found her other remains is consistent with the conclusion that
she, like Andrews, was the victim of homicidal
violence. In any event, Melanson
cannot undermine the trial court’s discretionary ruling simply by identifying
this one distinguishing feature of the Wallace murder. The fact that Melanson hid Wallace’s body so
well that it decomposed before her cause of death could be conclusively
determined does not preclude the inference of a common general plan in light of
the other similarities we have already mentioned.
The common
features of these two crimes support the inference that Melanson had a plan to
assault, murder and steal from vulnerable unsuspecting women. The fact that Melanson implemented that plan
in the Wallace case is relevant to show that he used the same general plan a
few months earlier when he killed Anita Andrews. Therefore, we reject Melanson’s contention
that the trial court erred by finding that evidence of the Wallace murder was
not excluded by the general rule codified in section 1101(a).
For
similar reasons, we reject Melanson’s alternative theory that evidence of the
Wallace murder should have been excluded under section 352. This argument rests on the same erroneous
premise that these two murders were “quite dissimilar.†Furthermore, Melanson makes the unsupported
assumption that the jury was unfairly prejudiced against him because of the
“reassurance†that another jury had found Melanson guilty of the Colorado
murder. As our Supreme Court has
recognized, the fact that uncharged conduct resulted in a
punishment decreases the potential for prejudice, undue consumption of time, or
confusing the issues in at least two ways.
(Balcom, supra, 7 Cal.4th at p. 427.)
First, the jury will not be tempted to convict the defendant of the
charged offense, regardless of guilt, in order to punish him for the uncharged
offense, because the jury will know he has already been sentenced to prison for
the uncharged crime. Second, the jury’s
attention will not be diverted to a determination whether or not defendant
committed the uncharged crime because that fact has already been established by
the prior conviction. (
Melanson
also argues that the danger of unfair prejudice was heightened because the
evidence against him in the Wallace case was “much stronger†than the evidence
that he killed Anita Andrews. For the
record, we disagree with the factual predicate of this argument; Melanson
consistently undervalues the strength of the evidence that he killed
Andrews. Indeed, absent any sufficiency
of the evidence claim on appeal, we take it as undisputed that the record supports
the jury’s finding that the prosecution proved beyond a reasonable doubt that
Melanson murdered Anita Andrews.
Furthermore, and in any event, the strength of the evidence supporting
the charged offense is not a relevant factor under section 352. “The supposed weakness of the rest of the
case would be relevant to the question of prejudice if there were error, but it
provides no reason to exclude this particularly probative evidence.†(People
v. Loy (2011) 52 Cal.4th 46, 64.)
We
conclude that the Wallace murder was probative of a common plan and that the
trial court’s decision to admit that evidence was supported by a thorough and
careful consideration of the section 352 factors. Finding no basis to question the trial
court’s sound exercise of its discretion, we reject Melanson’s contention that
the trial court committed reversible
error by admitting evidence of the Wallace murder.
4. The
Other Rape Evidence
Melanson
does not dispute that evidence of his uncharged rapes was relevant to prove
that he intended or attempted to sexually assault Anita Andrews. (§ 1108.) However, he maintains that the trial court
abused its discretion and committed reversible error by failing to exclude
evidence of these rapes pursuant to section 352.
Section
1108 expands “the admissibility of disposition or
cases.†(People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) “The effect of
section 1108 was ‘to assure that the trier of fact would be made aware of the
defendant’s other sex offenses in evaluating the victim’s and the defendant’s
credibility. In this regard, section
1108 implicitly abrogates prior decisions . . . indicating that
“propensity†evidence is per se unduly prejudicial to the defense. [Citation.]’
[Citation.]†(
“By
reason of section 1108, trial courts may no longer deem ‘propensity’ evidence
unduly prejudicial per se, but must engage in a careful weighing process under
section 352.†(Falsetta, supra, 21 Cal.4th at pp. 916-917.) This “careful weighing
process†ensures that section 1108 will be applied in a manner that does not
violate the defendant’s due process rights.
(Id. at p. 917.) Factors to consider when evaluating an
uncharged sexual offense evidence under section 352 include (1) its nature,
relevance, and possible remoteness, (2) the degree of certainty of its
commission and the likelihood of confusing, misleading, or distracting the
jury, (3) its similarity to the charged offense, (4) its likely prejudicial
impact, and (5) the availability of less prejudicial alternatives, like
excluding irrelevant inflammatory details or admitting some but not all of the
other sex offenses. (
The
record before us confirms that the trial court engaged in the careful weighing
process that section 352 requires. It
admitted evidence of some, but not all, of Melanson’s other sex offenses. Two of the three incidents that were admitted
were supported by prior convictions, which reduced the burden on defendant and
the danger of undue prejudice. The court
limited evidence of the Reba R. case to the conviction itself and the Sandra S.
testimony was brief, direct and clearly probative, not just of Melanson’s
propensity to commit a sex offense but also of his general plan to gain the
trust of unsuspecting female victims.
Furthermore, while the Katherine O. case was not supported by a prior
conviction, the probative value of that evidence was very high in light of the
similarities to the charged offense. In
both cases, Melanson was physically violent, punched his victim in the face
with a closed fist, and removed her pants and underclothes from only one leg
during the assault. Furthermore, the
trial court guarded against undue prejudice by (1) excluding evidence that
Melanson was held to answer for the Katherine O. rape; and (2) permitting the
defense to introduce substantial excerpts from cross-examination testimony that
Katherine O. gave at the preliminary hearing.
On
appeal, Melanson contends that the prior rape evidence was unduly prejudicial
because of the “great disparity in the strengths of the evidence in the current
case compared to the prior cases.†As we
have already explained, evidence Melanson killed Andrews was much stronger than
he admits and, in any event, its overall strength was not relevant to a section
352 analysis of the uncharged conduct.
Furthermore, the fact that evidence of the uncharged rapes was strong
does not mean it was unduly prejudicial.
“ ‘Evidence is not prejudicial, as that term is used in a section
352 context, merely because it undermines the opponent’s position or shores up
that of the proponent. The ability to do
so is what makes evidence relevant. The
code speaks in terms of undue
prejudice. . . .’ . . . [¶] ‘The prejudice
that section 352 is designed to avoid is not the prejudice or damage to a
defense that naturally flows from relevant, highly probative evidence.’ [Citations].
‘Rather, the statute uses the word in its etymological sense of
“prejudging†a person or cause on the basis of extraneous factors. [Citation.]’
[Citation.]†(
Melanson
argues that the prior rape evidence was inflammatory because it made him appear
“vicious and dangerous,†but those crimes were not more inflammatory than the
brutal assault and murder of Anita Andrews.
Furthermore, to the extent the prior offenses portrayed Melanson as
vicious and dangerous they shared that quality with the charged offense. In other words, that factor made the evidence
more probative as opposed to unduly prejudicial. Melanson also claims, but does not establish,
that the uncharged rape evidence was overwhelming and confusing to the
jury. The number of uncharged acts that
were admitted cannot be considered in a vacuum; the court excluded almost as
many acts as it admitted notwithstanding that the number of other offenses was
itself probative evidence. Furthermore,
we find no indication in this record that the jury was confused about any issue
material to the judgment in this case.
Melanson
also contends that the uncharged rapes should have been excluded because they
were not sufficiently similar to the charged crime. To support this contention, Melanson relies
on People v. Harris (1998) 60 Cal.App.4th 727 (Harris). In that case, a
mental health nurse was convicted of sex offenses based on allegations that he
took advantage of two vulnerable women in his care. (Id.
at p. 730.) On appeal, the defendant
argued the trial court abused its discretion under section 1108 by admitting
evidence of a violent sexual crime he committed 23 years before the charged
crimes. (Id. at pp. 733-734.) That
evidence included testimony by police officers who described finding the victim
in her home, severely beaten, naked from the waist down, with blood on her
vagina, mouth and face who “ ‘appeared to be unconscious,’ †and
finding the defendant, whose crotch was bloody, hiding nearby. (Id.
at pp. 734-735.) The
result of this prior conduct, the defendant was convicted of first degree
burglary with the infliction of great bodily injury. (Ibid.)
The
Harris court held that the trial
court abused its discretion under section 1108 and 352 by admitting this prior
act evidence. (Harris, supra, 60 Cal.App.4th at pp. 740-741.) The court reasoned that the evidence was
“inflammatory in the extreme,†the
remoteness of the crime weighed heavily in favor of exclusion, the stipulation
that the defendant was convicted of burglary left the jury to speculate about
whether he had been punished for rape, and evidence of the prior violent sex
offense had little relevance to the charged “ ‘breach of trust’ sex
crimes.†(Id. at pp. 738, 740.) With
regard to this last factor, the court noted that the charged offenses were “of
a significantly different nature and quality than the violent and perverse
attack on a stranger that was described to the jury.†(Id.
at p. 738.) Admitting that evidence, the
court found, “did little more than show defendant was a violent sex offender,â€
as it was not relevant to either bolster the credibility of the victims of the
charged offenses or to detract from the evidence impeaching their testimony. (Id.
at p. 740.)
Melanson
argues his uncharged sex offenses are no more probative than the prior sex
offense in Harris, pointing out that
his other victims were younger than Andrews, that he took them to secluded
places as opposed to a public bar, and that he did not kill them. This argument is legally and factually
flawed. First, as a legal matter,
numerous section 352 factors that weighed in favor of exclusion in
contrary conclusion in this case. Here, Melanson’s prior offenses were not
inflammatory, remote, or misleading.
Furthermore, the court guarded against the danger of unfair prejudice by
limiting evidence of the Reba R. rape to the fact of conviction and punishment,
admitting evidence that Melanson was punished for the Sandra S. rape, and
granting a defense motion to exclude evidence that Melanson was held to answer
for the Katherine O. rape, so the defense could develop its theory that
Melanson was not guilty of that offense at all.
Second,
and in any event, Melanson’s assessment of the probative value of his uncharged
rapes is patently unreasonable. Contrary
to his contention on appeal, the storeroom at Fagiani’s bar was a secluded
place. Furthermore, the evidence showed
that, although Melanson did not kill the victims of these other crimes, he
threatened to kill both Katherine O. and Sandra S., he employed violence to
strengthen those threats, and both victims submitted to his will because they
believed they would have died if they had not.
Melanson
argues that the Katherine O. rape was “particularly lacking in probative valueâ€
because the evidence that he was the perpetrator of that crime was extremely
weak. To support this contention,
Melanson relies on an excerpt from Katherine O.’s preliminary hearing testimony
when she was asked to point out the person that had been driving the truck that
stopped to offer assistance with her flat tire.
It appears that she pointed out a person other than the defendant who was
sitting in the courtroom. The prosecutor
responded that he did not know that person’s name. This particular excerpt is vague; it is not
clear if Katherine O. misheard the question and thought she was supposed to
identify the passenger of the truck, or if she really did identify someone other
than Melanson as the person who drove the truck. What is clear, though, is that whatever the
confusion at that hearing, sufficient evidence was presented to hold Melanson
to answer for the Katherine O. rape.
When
viewed as a whole, the evidence supports the trial court’s discretionary
decision to admit evidence of the Katherine O. rape. As we have already noted, that incident was
highly probative because of striking similarities with the present case,
including that both victims were isolated and vulnerable, that they were
punched in the face, and that their pants and undergarments were removed from
just one leg during the assault. To the
extent Melanson is arguing that Katherine O.’s possible misidentification of
someone other than the defendant at the preliminary hearing was relevant, the
jury heard that testimony and the defendant’s interpretation of it. Furthermore, the trial court granted a
defense motion to exclude evidence that he was held to answer for the Katherine
O. rape, which further strengthened his theory in the present case that he did
not rape Katherine O. Finally, the trial
court instructed the jury that it could not consider evidence of the Katherine
O. rape unless the prosecutor proved by a preponderance
of the evidence that Melanson committed that crime, that if the prosecutor
carried that burden the jury could still disregard the Katherine O. evidence
and that if the jury elected to consider the Katherine O. evidence it was only
one factor and not sufficient by itself to prove that Melanson committed the
charged offenses.
Melanson
argues that, in evaluating the trial court’s rulings under section 352, we must
consider the cumulative impact of the uncharged conduct evidence. As we have already demonstrated, every
individual ruling was supported by a reasoned section 352 analysis. Furthermore, when viewed as a whole, the
other act evidence covered roughly half of Melanson’s prior offenses, all of
which was potentially relevant evidence in this case. Yet, the trial court took steps to guard
against unfair prejudice by limiting both the number of uncharged acts that
were admitted and the evidence about the nature of those acts. Under all of the circumstances, we conclude
that Melanson has failed to establish that the trial court abused its
discretion in any way.
Melanson’s final
argument with respect to the uncharged conduct evidence is that section 1108
and CALCRIM No. 1191 “are facially unconstitutional†because they permit the
trier of fact to use the defendant’s uncharged crimes as
“Evidence
Code section 1108 allows bad conduct evidence to be admitted to prove
‘predisposition’ to commit sex crimes.â€
(Harris, supra, 60 Cal.App.4th
p.730.) This legal rule is reflected in
CALCRIM No. 1191, which the trial court used to instruct the jury about the
uncharged sexual offense evidence that was admitted in this case. That instruction stated, in part: “If you decide that the defendant committed
the uncharged offenses, you may, but are not required to, conclude from that
evidence that the defendant was disposed or inclined to commit sexual offenses,
and based on that decision, also conclude that the defendant was likely to commit
and did commit rape or attempted rape.
If you conclude that the defendant committed the uncharged offenses,
that conclusion is only one factor to consider along with all the other
evidence. It is not sufficient by itself
to prove that the defendant is guilty of murder of Anita Andrews.â€
On
appeal, Melanson does not challenge any specific language in CALCRIM No. 1191
but simply objects to it on the ground that it implements the exception
codified in section 1108 authorizing jury consideration of “dispositionâ€
evidence. However, Melanson also
concedes that the California Supreme Court considered and rejected his
constitutional argument in Falsetta,
supra, 21 Cal.4th 903. Since Falsetta
is binding on this court, we summarily reject Melanson’s facial challenges to
section 1108 and CALCRIM No. 1191. (See
(1962) 57 Cal.2d 450, 455.)
1. Issue
Presented and Standard of Review
Melanson
contends that the trial court erroneously denied his motion to dismiss this
case for precharging delay, i.e. the delay between the murder and the time the
state first charged him for it.
“Although
precharging delay does not implicate speedy trial rights, a defendant is not
without recourse if the delay is unjustified and prejudicial. ‘[T]he right of due process protects a
criminal defendant’s interest in fair adjudication by preventing unjustified
delays that weaken the defense through the dimming of memories, the death or
disappearance of witnesses, and the loss or destruction of material physical
evidence.’ [Citation.] Accordingly, ‘[d]elay in prosecution that
occurs before the accused is arrested or the complaint is filed may constitute
a denial of the right to a fair trial and to due process of law under the
this ground must demonstrate prejudice arising from the delay. The prosecution may offer justification for
the delay, and the court considering a motion to dismiss balances the harm to
the defendant against the justification for the delay.’ [Citation.]†(People
v. Nelson (2008) 43 Cal.4th 1242, 1250 (Nelson).)
“We
review for abuse of discretion a trial court’s ruling on a motion to dismiss
for prejudicial prearrest delay [citation], and defer to any underlying factual
findings if substantial evidence supports them [citation].†(People
v. Cowan (2010) 50 Cal.4th 401, 431.)
On
September 8, 2011, Melanson filed a motion
to dismiss this case because of the 36-year delay between the Andrews
murder and the filing of charges against him.
He argued that prejudice was presumed in light of the length of the
delay and the prosecutor’s negligence.
According to Melanson, the State was negligent in failing to identify
him earlier because (1) his fingerprints were on record in several states since
before this crime occurred in 1974; and (2) it took too long to conduct DNA
analysis on the crime scene evidence.
Melanson also claimed actual prejudice because several witnesses who had
died could have aided his defense. The
only specific witness Melanson discussed was Paul Grenier, who allegedly saw
someone driving Andrews’ car after the murder and helped create a composite
sketch that did not look like Melanson.
The
People opposed the motion to dismiss on the ground that “[t]he precharging
delay was justified because law enforcement did not have enough evidence until
the 2009 comparison of the crime scene evidence with the defendant’s DNA
resulted in a match.†To support this
proffered justification, the prosecutor outlined the following relevant
events: Fingerprint evidence collected
from the crime scene was used to conduct database searches in 1984, 1989 and
1990. The searches included California
and were expanded to other western states but not ever to Colorado. The case went cold and was not reopened until
late 2001 when Officer Jerich attended a cold case homicide training and was
encouraged to consider pursuing DNA evidence.
A few crime scene items were submitted in December 2001, but the DOJ
criminalist did not begin the DNA testing until January 2004 because of the
large backlog of cases. At that point,
Liston Biel, who was still the prime suspect, was excluded as the source of the
DNA samples, and the case went cold
again. In 2006, a new officer was
assigned to the case, additional evidence was analyzed, and the database hit
that led to Melanson was made in October 2009.
The DNA match was confirmed in December 2009 and, over the next eight
months, investigators shored up the case against Melanson.
In
opposing the motion to dismiss, the People also argued that Melanson failed to
carry his burden of showing actual prejudice and that, even if prejudice was
demonstrated, the delay was justified because it “was the result of limitations
of forensic technology and insufficient evidence to identify defendant as a
suspect.â€
The
trial court denied the motion to dismiss in a written order filed September 20,
2011. The court reasoned that Melanson’s
showing of actual prejudice resulting from the interim death of potential
witnesses was minimal because the claim that any of these witnesses could aid
the defense was “speculative at best.â€
By contrast, the justification for the delay in this case was strong
because “there was no basis to suspect defendant of this crime without DNA
evidence,†and, once the DNA match was found, there was only a short period
before the prosecution obtained the additional evidence necessary to support
the charges. The trial court also found
that the delay was solely an “investigative delay,†and that courts should not
second-guess prosecutorial decisions about how to investigate a given case, how
to allocate state resources, or when they have sufficient evidence to bring
criminal charges. Ultimately, the court
concluded that “balancing the prejudice defendant has demonstrated against the
strong justification for the delay, the court finds no due process violation.â€
Balancing
Melanson’s showing of prejudice from the delay in charging him with Andrews’
murder against the justification for that delay, we affirm the trial court’s
determination that Melanson failed to establish that his due process rights
were violated by the precharging delay.
First,
Melanson’s showing of prejudice was very weak.
His theory that prejudice was presumed from the length of the delay was
legally unsound. “To avoid murder
charges due to delay, the defendant must affirmatively show prejudice.†(Nelson,
supra, 43 Cal.4th at p. 1250.)
Furthermore, Melanson’s factual showing that some potential witnesses
had died was not compelling because he failed to address how any of those
witnesses could have impacted this case.
On appeal, Melanson does not specifically address any given witness but
claims only that the court “unduly minimized the importance of the lost
witnesses . . . .â€
This generic complaint, unsupported by any discussion of the evidence
itself, is simply not sufficient to establish an abuse of discretion.
Second,
the record supports the trial court’s finding that the justification for the
delay in charging Melanson was very strong.
As the trial court observed, the 2009 DNA cold case hit was the first
evidence that linked Melanson to this crime; before that he was not a
suspect. After that, there was a very
short period while the prosecutor collected additional evidence before the
charges were brought.
On
appeal, Melanson challenges the justification for the delay by claiming that
this case “did not need to await DNA science†because fingerprints on the beer
bottles and the rum bottle “also tied appellant to the scene of the
crime.†Melanson maintains his
fingerprints were “on record†in several states when Andrews was murdered and
concludes that the prosecution could and should have identified him as a
suspect at a much earlier date simply by broadening their database
searches. Although Melanson fails to
cite evidence that his fingerprints were “on record†in “several†other states,
the People concede they were on record in Colorado. However, Melanson does not identify any
evidence that was available to investigators before the DNA hit was made which
even suggested that Andrews’ murderer had fled to Colorado.
If
Melanson is suggesting that due process requires that law enforcement must, as
a matter of course, search every database in the country whenever it finds a
fingerprint at a crime scene, he is mistaken.
“A court may not find negligence by second-guessing how the state
allocates its resources or how law enforcement agencies could have investigated
a given case. . . .
‘Thus, the difficulty in allocating scarce prosecutorial resources (as
opposed to clearly intentional or negligent conduct) [is] a valid justification
for delay . . . .’ [Citation.] It is not enough for a defendant to argue
that if the prosecutorial agencies had made his or her case a higher priority
or had done things a bit differently they would have solved the case sooner.†(Nelson,
supra, 43 Cal.4th at pp. 1256-1257.)
Melanson
contends that, even if “it was not negligent to [not] run the fingerprints
through other databases, the justification for the delay is still wanting as
there was no non-negligent reason for the later delays in obtaining the DNA
analysis.†To support this argument,
Melanson makes numerous assumptions about when advancements in DNA science were
available to Napa County investigators and how those advancements should have
been utilized in this specific case.
These types of assumptions are precisely the type of second-guessing
that courts are not willing to make.
Finally,
even if there was some element of negligence, that would not be sufficient to
establish error on appeal. When there is
evidence of a purposeful delay, a weak showing of prejudice may suffice, but
when “the delay was merely negligent, a greater showing of prejudice would be
required to establish a due process
violation.†(Nelson, supra, 43 Cal.4th at p. 1256.) In the present case, the record supports the
trial court’s conclusion that Melanson’s showing of prejudice was extremely
weak. Thus, as the trial court found,
Melanson failed to establish that the precharging delay violated his rights to
due process.
C. The 2010 Photographic Lineup
1.
Presented
Melanson
contends that his due process right to a fair trial was violated because the
trial court denied his pretrial motion to exclude evidence that David Luce
identified him in a 2010 photographic lineup as the man Luce saw in the bar
with Andrews in 1974.
“ ‘Due
process requires the exclusion of identification testimony only if the
identification procedures used were unnecessarily suggestive and, if so, the
resulting identification was also unreliable.’
[Citation.]†(
698 (Avila).) “Defendant bears the burden of showing
unfairness as a demonstrable reality, not just speculation. [Citation.]
‘The issue of constitutional reliability depends on (1) whether the
identification procedure was unduly suggestive and unnecessary [citation]; and
if so, (2) whether the identification itself was nevertheless reliable under
the totality of the circumstances, taking into account such factors as the
opportunity of the witness to view the criminal at the time of the crime, the
witness’s degree of attention, the accuracy of [his] prior description of the
criminal, the level of certainty demonstrated at the confrontation, and the
time between the crime and the confrontation
[citation]. If, and only if, the
answer to the first question is yes and the answer to the second is no, is the
identification constitutionally unreliable.
[Citation.]†(
1198, 1222.)
“We
independently review ‘a trial court’s ruling that a pretrial identification
procedure was not unduly suggestive.’
[Citation.]†(
As
noted in our factual summary, in January 2010 Detective Winegar showed David
Luce a photographic lineup of six suspects including Melanson. All of the photographs were black and white,
were cut off just below the neck and were printed from Winegar’s computer in
the sa
| Description | In September 2011, a jury convicted Roy Melanson of the July 1974 murder of Anita Andrews. (Pen. Code, § 187, subd. (a).) Melanson was sentenced to life in prison with the possibility of parole. On appeal, Melanson contends the judgment must be reversed because (1) evidence of several uncharged offenses was erroneously admitted at trial; (2) this case should have been dismissed for precharging delay; and (3) a photographic line-up was impermissibly suggestive. We reject these contentions and affirm the judgment. |
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