P. v. Shammam
Filed 6/4/13 P. v. Shammam CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
FRANSWA SHAMMAM,
Defendant and Appellant.
D061462
(Super. Ct.
No. SCE286668)
APPEAL from
a judgment of the Superior Court
of
County, John M. Thompson, Judge. Affirmed.
Charles M.
Sevilla for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, William M. Wood and Meagan J. Beale,
Deputy Attorneys General, for Plaintiff and Respondent.
Franswa
Shammam appeals a judgment entered following his jury conviction of
§ 187, subd. (a)).
name="_ftnref1" title="">[1] Although the murder was committed in 1994,
Shammam was not charged with murder until 2008.
On appeal, he contends the trial court erred by: (1) denying his motion
to dismiss the case because the 14-year pre-accusation delay denied him his
state and federal constitutional rights
to due process; (2) instructing with CALCRIM No. 362 on consciousness of
guilt; and (3) not granting him an alternative remedy to dismissal of the case.
FACTUAL
AND PROCEDURAL BACKGROUND
16, 1994, David Binno died after being shot twice in the head. In December 2008, a felony complaint was
filed charging Shammam with the first degree murder of Binno (§ 187, subd.
(a)) and alleging he personally used a firearm in committing that offense
(§ 12022.5, subd. (a)). In April
2009, an information was filed charging him with the same offense and
allegation.
Before
trial, Shammam filed a motion to dismiss the case for pre-accusation delay or,
alternatively, for exclusion of testimony by certain witnesses. The prosecution opposed the motion. Following an evidentiary hearing, the trial
court denied the motion to dismiss for pre-accusation delay. The court balanced the prejudice Shammam
showed (i.e., fading memories of witnesses) against the prosecution's
justification for the delay (i.e., continuing investigation) and concluded his
constitutional rights to due process had not been denied as a result of the
14-year pre-accusation delay.
After the
first trial, the jury could not reach a verdict and a mistrial was
declared. Before the second trial,
Shammam filed another motion to dismiss the case for pre-accusation delay,
which the prosecution opposed and the trial court denied. At the second trial, the jury found Shammam
guilty of first degree murder and
found true the firearm allegation.
Shammam then filed another motion to dismiss the case for pre-accusation
delay, which the prosecution opposed and the trial court denied. The court sentenced Shammam to 25 years to
life in prison for first degree murder and a consecutive four-year term for the
firearm allegation. Shammam timely filed
a notice of appeal.
Brenda Konja Stine (Brenda) in an upstairs apartment in an apartment complex on
Sweetwater Springs Boulevard. Binno and Shammam had been close friends for
about two years. In the spring of 1994,
Shammam became friends with Jeremy Allen Wessels and began spending more time with
Wessels and less with Binno. Binno and
Wessels did not like each other.
At about
1:00 or 2:00 p.m. on September 16, 1994, Binno went to the home of his friend,
Haitham Marcos, to help him with his car.
Binno drove a black Volkswagen sedan and wore a gold bracelet and gold
necklace.
alarmed because he was late for a meeting at his apartment with a customer of
his (Binno's) cell phone and pager business.
to stop by his apartment and pay him money for a bill he owed. Binno left Marcos's house about five to 10
minutes later.
At about
4:00 p.m., Kristin Lybarger, a resident of Binno's apartment complex, returned
home and saw a small black Nissan truck with a camper shell parked in the spot
assigned to Binno. She believed the
camper shell was also black. At 4:09
p.m., Binno apparently was home and made a phone call responding to an advertisement
for a car for sale. Because the car's
seller did not pick up that call, Binno hung up without leaving a message on
the seller's answering machine. Between
4:15 and 4:30 p.m., Kara Walter, who lived in the apartment below Binno's,
heard two or three people talking as they walked upstairs to Binno's
apartment. A few minutes later, the
music in Binno's apartment was turned up excessively loud. Walter did not think much about the loud
music because it was a chronic problem.
Shortly after 4:30 p.m., Walter heard two pops that sounded like
firecrackers coming from Binno's apartment.
She then heard voices talking.
Not thinking much of it, Walter left her apartment and went to her
mother's house.
At about
4:40 p.m., Lybarger left her apartment to go to a gym class. As she walked to her car, she saw Binno's
black Volkswagen parked in its proper spot and the black truck with the camper
shell parked directly to its right.
During the
early evening, David Abdala was attending a Friday night football game at
Valhalla High School when Shammam called or paged him and arranged to pick him
up at the game. Abdala left the stands
and met Shammam in his (Shammam's) black or dark blue Nissan truck in the
parking lot. Abdala testified that
Shammam's Nissan truck had a red shell on it.
Shammam's girlfriend, Monica Bihouet, was with him in the truck. Abdala got in the truck and they drove away.
Shammam told Abdala that "Alan killed David," meaning Wessels had
killed Binno. Shammam also told Abdala
that if he (Abdala) ever told anybody, Shammam would kill Abdala and his
family. Abdala did not respond and
remained quiet. Shammam drove to his
cousin Ryan's house, parked the truck, walked to the back of the truck, and
grabbed a case from the back. The case
was about 18 inches long by four inches wide.
Ryan came out to meet Shammam, who handed Ryan the case. While Shammam was outside the truck, Abdala
asked Bihouet in Spanish if it were true.
She nodded her head affirmatively.
She looked pale and scared.
Shammam got back in the truck, drove to Abdala's home, and dropped him
off. Abdala did not tell law enforcement
officers about Shammam's statements until after Shammam's arrest in 2008
because he believed Shammam's threat and was afraid of him and Wessels.
At about
8:30 p.m., Walter returned to her apartment and heard very loud music still
emanating from Binno's apartment. She
called the apartment manager to complain.
When there was no response to knocking on Binno's door, a security guard
entered the apartment and saw Binno lying on the floor and some blood. Firefighters responded to the guard's call
for assistance. They turned on the
apartment's lights and turned down the music.
They saw Binno lying down against a wall in a small dining area near the
kitchen. They saw significant blood loss
and brain matter on the floor.
At 10:08
p.m., a deputy sheriff arrived. From
downstairs, she reported hearing loud music emanating from Binno's
apartment. Inside the apartment, the
television was turned on and music was blaring.
Binno was lying on the floor facedown with two gunshot holes in the back
of his head. Rigor mortis had set in his
body. There was blood spattered on the
wall and around Binno's head and face.
Two shell casings were found on the floor. One gunshot wound was near the top of his
head. The gun was fired close to Binno's
head and the bullet travelled down to the base of his skull. The second gunshot wound was to the back of
his head. The gun was held a few inches
from his head. The bullet came from the
side, moving from left to right and downward.
Each wound would have killed Binno.
An autopsy performed on September 18, 1994, showed Binno's stomach
contained undigested rice. Because
healthy persons usually empty their stomachs in a couple of hours, the forensic
pathologist believed it was "more probable than not that [Binno] had eaten
within two hours of death."
A crime
scene reconstructionist concluded Binno's head was on or near the floor when he
received both shots to the head. At the
time of his death, Binno's left arm was underneath his body cross-wise with his
left hand emerging from under his right hip, which position appeared to be the
result of being restrained in a wrestling, judo, or hand-to-hand combat type of
control hold. Binno had no defensive
wounds and there were no signs of a struggle.
It appeared Binno was taken by surprise or skill to the floor with
little or no resistance. He was shot on
the floor where he was taken down.
Although
Binno had $52 in his left front pocket, he did not have his cell phone or pager
on him and his gold bracelet and necklace were missing. There was no evidence of a break-in and his
apartment was not ransacked. Binno's
cell phone was missing from the apartment.
After his death, his cell phone was used three times--twice for outgoing
calls and once for an incoming call. One
call was on September 24, 1994.
A deputy
sheriff picked up Brenda at the restaurant.
She was informed of Binno's death and taken to the parking lot of their
apartment complex at about 2:00 a.m. She
identified her black Volkswagen in the parking lot. At a detective's request, Brenda called
Shammam in the early morning hours.
Shammam told her that he could not come there right away because he was
coming home from Disneyland. Shammam
eventually arrived there and, as Binno's body was being removed from the
apartment, consoled Brenda.
At 10:15
a.m. on September 17, 1994, San Diego County Sheriff's Detective Dan Jopes
began an interview of Shammam at the Lemon Grove sheriff's station. A tape recording of that interview was played
for the jury. Shammam stated he and
Binno had been good friends for about three years. The last time he had seen Binno was at
Abdala's home two nights before the interview.
Shammam said he first learned of Binno's death when Binno's brother,
Joe, called him the previous night while he was sleeping. However, Shammam did not really pay attention
to Joe's call because he was not fully awake.
Joe called him again in the morning and told him about Binno's
death. Shammam admitted to Jopes that he
had "kind of" a falling-out with Binno because he "starts
trouble" and Shammam's parents did not want him to "hang around"
with Binno anymore. Shammam later stated
he did not have any trouble with Binno.
When asked
when his truck was last at Binno's apartment, Shammam replied,
"Yesterday," and then gave a description of what he did on September
16, 1994. In the morning, he awoke about
10:00 a.m., drove to Abdala's house or taco shop, and then drove to Pacific Off
Roads and bought some lowering blocks for his truck. He stated he then met Wessels at "some
girl[']s house," but later said he met Wessels "[a]t this taco
shop." Shammam stated he and
Wessels went to a Nissan dealership, but later said they first went to eat
breakfast at Jimmy's Restaurant at about 11:30 a.m. before going to the Nissan
dealership in El Cajon. While they
waited two hours for his truck to be repaired, he and Wessels walked to a
nearby Honda dealership to look at motorcycles.
As they walked back to the Nissan dealership, Wessels told Shammam he
(Wessels) had to pay Binno for his cell phone bill. Shammam and Wessels drove to Binno's
apartment and Shammam parked his truck two or three stalls away from Binno's
car. He denied parking his truck in the
first stall next to Binno's or moving his truck after parking it. He and Wessels then walked up to Binno's
apartment door and each knocked on the door a number of times. Shammam stated they were at Binno's door
"probably about [2:30 p.m.] or somethin' . . . I'm not quite too
sure." When no one answered the
door, they walked back down to Shammam's truck and drove to a 7-11 store, where
Wessels paged Binno a couple of times and left a message on his answering
machine. The transcript of the message
Wessels left on Binno's answering machine reads: "David this is Alan. Aye we stopped by your house a while
ago. But ah, you, I guess you weren't
there or something um. We're about to go
to the beach right now. So ah, I'll page
you tomorrow and ah, I'll get that money to you tomorrow. All right dog. Bye.
Talk to you later man."
Shammam and Wessels drove to the beach and walked up and down the
boardwalk. Shammam then drove to
Bihouet's house in Chula Vista and picked her up. After Shammam dropped Wessels off at "some
girl[']s house," he and Bihouet drove to Abdala's house and waited with
him for someone to pick him (Abdala) up to go to a Valhalla football game. Shammam and Bihouet followed Abdala to the
football game and, after the game, dropped Abdala off at his house. Shammam then dropped Bihouet off at her Chula
Vista house and drove to his home. He
denied talking to Binno at any time on September 16.
Sheriff's
detective Frederick Rowe was assigned as the lead investigating detective on
the case. Rowe suspected Shammam and
Wessels murdered Binno and investigated the case for two and one-half years
while he was assigned the case.
In 1996,
Bihouet, after breaking up with Shammam, spoke to Brenda (Binno's girlfriend)
about his murder. Brenda took Bihouet to
speak with Binno's sister, Tanya, who told her to talk with Rowe. On August 27, 1996, Rowe interviewed Bihouet
at the sheriff's station and recorded the interview. At Shammam's second trial, Bihouet testified
regarding the events of September 16, 1994, and thereafter. Shammam and Wessels came to her door the
evening of September 16 when there was "some daylight." At the time, she was living at Yvette Godoy's
apartment. Shammam and Wessels were not
wearing any shoes and appeared as though they had just showered. As she was standing in the doorway, Shammam
told her that they had just killed Binno.
Shammam then handed her a heavy bag and told her to hold it for him. They then left and she closed the door. Bihouet looked inside the bag and saw a gold
bracelet and chain. The bracelet had the
name "Binno" spelled in diamonds on it. Weeks later, Shammam told Bihouet the details
about Binno's murder. Bihouet testified:
"[Shammam] told me him and
[Wessels] went to [Binno's] apartment, and they knocked on the door, and he was
reading a newspaper at the time when he got there. They started talking. They were joking around for a while, showing
some moves, jujitsu moves, or some type of martial arts moves. [¶] Then
. . . I believe [Shammam] said that [Wessels] grabbed [Binno] towards
his -- like, probably to the back and pulled him down to the floor, and that
[Wessels] asked [Shammam] to grab his [Wessels's] gun to shoot him."
Shammam told her that he grabbed Wessels's gun and shot
Binno twice in the head. Shammam told
her that he turned up the music very loud before he shot Binno. He never told her why he shot Binno.
A couple of
weeks after the murder, Shammam asked Bihouet whether she knew anyone who could
melt down the gold jewelry. She knew one
of her aunt's friends who lived in Mexico could do it. On September 27, 1994, Shammam took Bihouet
to Mexico. Shammam talked to the jeweler
and had the gold melted down. On the way
back home that day, Shammam made Bihouet pawn the gold at a San Ysidro pawn
shop because he did not want the pawn slip in his name. She received $1,128 for the gold and handed
all of the money to Shammam.
Bihouet
also testified at trial that when she was riding in Shammam's truck with
Shammam and Wessels days or weeks before the murder, Shammam and Wessels were
joking around and talking about killing Binno.
Rowe testified that Bihouet told him Shammam explained to her the
reasons he and Wessels killed Binno, stating they killed him "just for the
fuck of it," Binno talked too much or was a "shit talker," and
Binno owed money to Wessels.
Bihouet
testified that she did not tell anyone sooner of Shammam's statements about
Binno's murder because she was afraid of him and Wessels. Shammam had threatened her and her family
regarding talking about the murder.
Bihouet testified about an incident that occurred before Binno's
murder. After she told Shammam she
wanted to break up with him, he took her for a ride in Chula Vista to the end
of a street where there was nothing. He
told her to roll down her window, which she did, and then he pointed a gun
toward the passenger window and shot it twice in front of her face. He then asked her what she needed to talk
about. She remained silent.
Bihouet
testified that after talking to Rowe, Shammam's father suggested that she leave
the country and go to Mexico. She took a
flight out of Mexico to Cancun with a ticket bought by Shammam. She lived with her father there for about a
year and then returned in 1997 or 1998.
She testified she left the country because she felt threatened.
In 1998,
sheriff's detective Christopher Serritella was assigned responsibility for
investigating the case. He initially
intended to interview Bihouet but was not able to locate her. After running computer checks on her name, he
eventually was able to locate her and, on April 19, 2000, interviewed her. The interview was recorded. Bihouet told Serritella that a day or two
before the murder, she was a passenger in Shammam's truck with Shammam and
Wessels. When Shammam drove past Binno's
apartment complex, he told Wessels that was where Binno lived. Wessels then stated: "We should just
kill the motherfucker." Bihouet
also told Serritella that on the day of the murder, Shammam and Wessels came to
her home in the middle of the afternoon when it was bright and sunny, but she
did not know the actual time. Shammam
gave her some jewelry and told her to hide it for him. Bihouet believed Shammam and Wessels murdered
Binno because there was "some bad blood" between Wessels and Binno. She also told him that after the murder
Shammam and Wessels threw the gun in the ocean and disposed of their
clothes. She told Serritella that after
Shammam and his father learned she had spoken to Rowe, Shammam picked her up
and took her to his father's home where they encouraged her in a friendly way
to leave the country. Although she did
not want to admit she was scared, she was.
Serritella was involved in investigating the case until 2005 when he was
promoted and transferred.
In his
defense, Shammam presented evidence suggesting Binno may have been alive after
4:30 p.m. James Bassett, formerly known
as James Smith (Smith), testified that on September 16, 1994, he lived in
Binno's apartment complex and was interviewed by detectives late in the evening
that day regarding a death at the complex.
Smith did not recall knowing Binno or Brenda. Although Smith had no specific recollection
of what he told the detectives, he testified he told them the truth. Genaro Moreno testified that on September 17,
1994, he was a homicide detective and interviewed Smith just after midnight
that day. He prepared a report of his
interview. Smith told him that about
7:15 to 7:30 p.m., he heard an unknown male voice say: "Hey, listen, I
want to talk to you right now."
Smith then heard an unknown female voice scream, "No," in an
angry manner. Smith indicated that he
thought the unknown male voice was that of the male who drove the black
Volkswagen Rabbit and frequently slapped his girlfriend.
Vivian
Shabilla testified that on September 16, 1994, she was supposed to receive
delivery of a cell phone she purchased from Binno.
paged her. A few days later, she called
Brenda because Binno had not returned her calls. Brenda told her that Binno had been killed
about 3:00 p.m. on September 16.
Shabilla told her that was impossible because she received a page from
Binno at 4:58 p.m. She asked Brenda to
take her pager to the police, but nobody came and got it. However, Brenda testified that Shabilla asked
her help in how to read the information on her pager and, in particular, how to
read the time Binno had called her.
Shabilla told Brenda the pager showed a telephone number and a time, but
she did not state whether there was a date indicated on it. Furthermore, Binno had called Shabilla many
times the day before his murder to arrange either to deliver the cell phone or
have her pick it up.
DISCUSSION
I
Shammam
contends the trial court erred by denying his motion to dismiss the case
because he was denied his constitutional
rights to due process because of the 14-year pre-accusation delay.
A
based on pre-accusation delay, Shammam presented the testimony of various
witnesses at a preliminary evidentiary hearing to show he suffered prejudice
from the 14-year pre-accusation delay.
Binno's sister, Tanya, testified she had many conversations with Rowe
after Binno's death. Although she may
have mentioned to him various persons who might have killed Binno, she could
not remember any of those conversations with Rowe. She did not recall any discussion about Sal
Asker. She did not recall any
conversations with Rowe about possible drug dealing by Binno and Shammam. Although she knew a woman named Ophelia and a
man named Billy Hernandez, she did not recall discussing them with Rowe. Tanya testified Rowe spent a lot of time
investigating the case and "was doing his job above and beyond and maybe
doing extra work on his own time."
Based on
her conversations with Brenda, Bihouet, and Rowe, Tanya recalled that Shammam
and his father had threatened Bihouet after they learned she gave a statement
to Rowe. She recalled she heard that
Shammam and his father went to Bihouet's house, knocked down the door, put a
gun to their heads, and told them they better not testify or say anything. After that incident, Bihouet and her mother
went to Mexico. Tanya recalled Rowe
later telling her Bihouet had recanted or said she made it up.
Bihouet
testified that Shammam and Wessels came to her apartment. Shammam told her they had killed Binno and
handed her a bag. When she looked
inside, she saw Binno's gold with his last name on it. A few days later, Shammam told her the
details of Binno's murder, which she described in substantially the same manner
as she did at trial. Two years later,
Bihouet told Brenda those details and then Tanya, who told her to talk to
Rowe. Bihouet then gave a statement to
Rowe. She did not recall giving another
statement a few days later to a group of four or five men. She denied telling Rowe she made up the story
that Shammam told her he had killed Binno.
She remembered giving a statement to Serritella in 2000. Bihouet testified she continued to have an
on-and-off relationship with Shammam for a few years after the murder. Shammam told her that if she or her family said
anything, he would kill them. Bihouet
testified that Shammam walked into her mother's house without knocking and
pushed her mother. Weeks later, Bihouet
left for Mexico. Shammam's father asked
Bihouet if she knew anybody that lived far away. When she told him her father lived in Cancun,
Shammam's father stated: "Why don't you go stay with your dad for a while
until things get cleared up?"
Shammam paid for her airline ticket to Cancun. She lived in Cancun for about a year.
Richard
Martin testified that in 1996 he was an investigator for the district
attorney. Although his name appeared in
Rowe's notes bearing the date October 10, 1996, Martin could not recall meeting
Rowe, or the Binno case. He thought it
was possible Rowe's note referred to a planned meeting with certain people, which
never occurred.
Dan Jopes
testified that in 1996 he was a sheriff's detective. Jopes also had no recollection of an October
10, 1996, meeting. He stated it was his
custom to record interviews with main witnesses.
Rowe
testified that he was the sheriff's lead investigator in the Binno case from
1994 through 1997. He stated his memory
of the case was not as good now as it was back then. Tanya and the other Binno family members
proposed to him various people who might have been involved in Binno's murder,
including a woman named Ophelia and Diane Binno's ex-husband, Hernandez. He did not remember Sal Asker being named as
a possible suspect, but he believed Asker was in custody at the time of Binno's
murder.
In 1996
Bihouet came to the sheriff's department and Rowe conducted a recorded interview
with her. She told Rowe that Shammam was
involved in Binno's murder, came to her home, and handed her some gold. She told him she went to Mexico to melt down
the gold. His team obtained Bihouet's
receipt for a bar of gold from a San Ysidro pawn shop. Rowe did not recall any conversation with
Bihouet in which she said, in effect, she made up her story that Shammam told
her he killed Binno. Likewise, he did
not recall telling Tanya or other Binno family members that Bihouet told him
she made up the story. Rowe stated he
would have remembered, or at least documented on paper, any such significant
conversation.
Rowe did
not remember an October 10, 1996, meeting with Davis, Martin, and Jopes. However, based on his notes bearing the date
October 10, 1996, Rowe stated it appeared that the meeting occurred. He believed his notes referred to a meeting
in which they discussed Bihouet's statements and their strategies in the
case. Rowe testified he did not arrest
Shammam in October 1996 because he was still trying to obtain more information
about the incident and get more confirmation on some of the witnesses. In discussing the case with his supervisors,
they believed there was insufficient corroboration and correct information to
make an arrest. They never formally
presented the case to the district attorney's office for a decision on whether
there should be an arrest. Rowe stated
that in 1996 Mr. Pfingst (then acting as Shammam's trial counsel in 2010) was
the San Diego County District Attorney.
Rowe stated that it was his procedure to always record every interview
of a main witness. Deputy District
Attorney Gordan Davis testified that he had no recollection of, and no records
showing, any meeting regarding the case on October 10, 1996.
Based on the
evidence presented by Shammam, the trial court found Shammam suffered prejudice
as a result of the pre-accusation delay.
However, it stated "the delay has, in essence, prejudiced both
sides with regard to presentation of the case." In considering the justification for the
delay as set forth in the prosecution's papers opposing the motion to dismiss,
the court asked Shammam's counsel:
"Isn't the bottom line,
with all that is said and done, whether or not the Abdala interview pre-2008 is
such that it would lend credence to the People's position that they didn't have
enough to go forward up until that point in time; and once they got that
information, they felt they had a sufficiently strong case to present proof
beyond a reasonable doubt to the panel?
Isn't that what we are talking about?"
Shammam's counsel disagreed and argued the prosecution
should be required to present testimony and other evidence to justify the
pre-accusation delay. The prosecution
agreed that if the court found prejudice from the delay, then it must present
evidence showing justification for the delay.
As the
evidentiary hearing proceeded, the prosecution presented two days of testimony
to justify the pre-accusation delay.
Rowe testified that in following up on leads after Binno's murder,
Shammam and Wessels were developed as suspects.
He interviewed Wessels and another team member interviewed Shammam. Both statements were recorded. His team analyzed fingerprints found at the
scene and checked for DNA presence.
During the two and one-half years Rowe led the investigation, his team
continued to develop more evidence through the crime lab and witness
statements. During that period, he
contacted Davis to informally discuss the case.
On August 27, 1996, Rowe conducted a recorded interview of Bihouet. After that interview, they continued to
develop more witnesses and obtain more physical evidence. He also was hoping DNA techniques would
become more of a benefit as those techniques changed. Rowe tried contacting Bihouet after her August
27, 1996, interview, but he could not contact her and heard she had moved to
Cancun, Mexico. On his promotion in May
1997, Rowe transferred the case to another detective (i.e., Serritella).
Serritella
testified that he was assigned the case in 1998. He reviewed the case file and discussed the
case with Rowe and his sergeant, Steve Wood.
He tried to find Bihouet and finally located her in 2000. He looked for other evidence and witnesses
that could bolster her credibility. He
and Deputy District Attorney Glenn McAlister discussed the case but Serritella
and others agreed it was not strong enough to issue an arrest warrant. When he was promoted in 2005, Serritella gave
the case to Detective Curt Goldberg.
Serritella testified he did not purposely delay the case to gain a
tactical advantage over the defense.
Goldberg
testified he was assigned the case in 2005.
He spoke with Binno's family and followed up on any new leads. He contacted a crime reconstruction expert to
determine whether he could bolster Bihouet's testimony. He interviewed old and new witnesses. He requested that DNA testing be conducted on
hair found in Binno's bathroom, but it was determined to be unsuitable for
testing. He did not send the case to the
district attorney's office because he could not find anything to corroborate
Bihouet's statements. In 2007, the case
was transferred to Detective Rick Scully.
Goldberg denied he delayed the case to gain a tactical advantage over
the defense.
Scully
testified he worked on the case with Goldberg in 2005 and became its lead
investigator in 2007. He reviewed all
the evidence, interviewed many of the witnesses, and had blood evidence
reevaluated. He was particularly
interested in Abdala and went to his home several times to try to talk to
him. Abdala initially would not talk to
him. However, after Scully told him
Shammam said he was with him (Abdala) the night of the murder, Abdala stated it
was not true. Scully reviewed statements
given by Shammam and Wessels, and concluded they differed regarding when, and
the number of times, they went to Binno's apartment. After speaking with Abdala twice and
reevaluating the blood evidence, Scully believed there was sufficient evidence
to present the case to the district attorney's office. In July 2008, he presented the case to a
roundtable of several deputy district attorneys and members of the sheriff's
department. In September 2008, an arrest
warrant was issued for Shammam.
Deputy
District Attorney Brock Arstill, the prosecuting attorney, testified he
participated in the July 2008 roundtable discussion. At that time, he believed the case was thin,
but viable. The witnesses were still
alive, Bihouet's potential bias had diminished, and her credibility had been
enhanced because she no longer faced liability as an accessory after the
fact. Importantly, Abdala provided
information corroborating Bihouet's statement.
Arstill saw no indication the sheriff's department was delaying the case
to gain an advantage over the defense.
written order denying Shammam's pretrial motion to dismiss for pre-accusation
delay. The court stated:
"In the present case, the
defense has made a showing that [Shammam] suffered some prejudice due to the
delay in filing the felony complaint.
Sufficient evidence has been presented to establish that memories of
both civilian and law enforcement witnesses have faded due to the lapse of
time. The Court finds this to be the
sole basis of prejudice, specifically rejecting [Shammam's] claim that the
delay prohibited the investigation of potential third-party liability. The Court further rejects [Shammam's] claim
that an unrecorded or un-noted interview of a major prosecution witness
contained exculpatory evidence, specifically finding that insufficient evidence
has been presented to establish that the interview ever took place.
"As [Shammam] has shown
that memories have faded, the People must establish that the prosecution had a
legitimate justification for the delay in this case. The People contend the delay was justified
based on investigative purposes. [¶] . . . [¶]
"The investigation in this
case was ongoing between the commission of the crime in 1994 and the eventual
filing of a criminal complaint in 2008.
Certainly greater investigative activity took place during some periods
than others, but there is no evidence to suggest that either the investigating
agency or the District Attorney's office terminated or otherwise 'shelved' the
criminal investigation. As revealed in
the series of evidentiary hearings conducted in conjunction with this motion,
the investigation of the Binno murder was handed off to a series of detectives
between 1996 and 2008. In turn, each
detective re-examined the case, in some instances re-interviewed witnesses and
family members, and met with representatives of the District Attorney's office
to discuss the case and other avenues of investigation. This continuing investigation serves as an
adequate justification for delay. The
Court finds no evidence to support the conclusion that the delay in filing
criminal charges was motivated by a desire to gain some tactical advantage over
[Shammam] nor was the delay the result of any negligence on the part of either
the Sheriff's Department or the District Attorney. This is not to say that a more intense
investigation could not have been done, nor does the Court conclude that all
persons of interest were thoroughly investigated. However, any failure to interview or pursue
all leads was insufficient to support a conclusion that the delay in question
was unjustified.
"After considering the
evidence presented by the People at the motion hearing, this Court finds the
initial decision to delay prosecution was made after a good faith evaluation of
the evidence by the detectives and prosecutors reviewing the case, followed by
a subsequent good faith re-evaluation of the evidence prior to the filing of
criminal charges in 2008. The People had
discretion to delay filing the case in order to ensure law enforcement had
conducted a complete investigation. The
fact that no new substantive evidence was discovered by the investigating
agency or the prosecution during the delay, other than the David Abdala statement
on April 20, 2008, does not illustrate that there was no justification for the
delay. The People's good faith decision
to not prosecute this case constitutes justification for the delay. [¶]
Even though the People's justification may only constitute minimal
justification, it still overcomes [Shammam's] showing of prejudice in this
case. . . .
"In balancing the prejudice
[Shammam] demonstrated at the motion hearing against the People's justification
for the delay in filing the murder charge, this Court finds that [Shammam's]
due process rights have not been violated.
The purpose of the delay was not to gain a tactical advantage over
[Shammam]. The delay was the result of
the prosecution exercising its discretion to delay filing of the charges for
investigative purposes. In this Court's
opinion, the actual prejudice suffered by [Shammam] as a result of the delay is
slight to moderate prejudice. When
weighing that prejudice against the People's justification for the delay and
then taking into consideration the seriousness of the crime and the public's
interest in favor of this type of prosecution, the Court finds that no due
process violation has been shown."
trial, Shammam filed another motion to dismiss the case for pre-accusation
delay. Considering the evidence
presented at the first trial together with the evidence presented at the
pretrial evidentiary hearing on the first motion, the trial court denied the
motion. After the second trial in which
the jury found Shammam guilty of first degree murder and found true the firearm
allegation, Shammam filed another motion to dismiss the case for pre-accusation
delay. The trial court denied the
motion. After presiding over the
pretrial evidentiary hearing on the first motion and the two jury trials, the
court concluded there was nothing that would change the position it took in
denying the two prior motions to dismiss.
It stated:
"Clearly, the investigation
in this particular case was flawed.
Clearly, there was a problem with witnesses recalling things that took
place. Clearly, there was evidence of
[suggestibility] to a witness that was presented, and it was fully exposed both
in the first trial and in the second trial.
That, in and of itself, does not convince the court that Mr. Shammam has
met his burden to show that he did not receive fair trials in either the first
or second trial. The court's position is
to the contrary, that he did."
The court denied Shammam's third motion to dismiss for
pre-accusation delay.
B
"The
due process clauses of the Fifth and Fourteenth Amendments to the United States
Constitution and article I, section 15 of the California Constitution protect a
defendant from the prejudicial effects of lengthy, unjustified delay between
the commission of a crime and the defendant's arrest and charging." (People
v. Cowan (2010) 50 Cal.4th 401, 430 (Cowan);
see also People v. Nelson (2008) 43
Cal.4th 1242, 1250 (Nelson);
789-792.) "A defendant's state and
federal constitutional speedy trial rights [citations] do not attach before the
defendant is arrested or a charging document has been filed." (People
v. Abel (2012) 53 Cal.4th 891, 908.)
"A defendant seeking to dismiss a charge on 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.
[Citations.] A claim based upon
the federal Constitution also requires a showing that the delay was undertaken
to gain a tactical advantage over the defendant." (People
v. Catlin (2001) 26 Cal.4th 81, 107.)
The
defendant has the initial burden of showing prejudice before the prosecution is
required to offer a reason for the delay.
(People v. Morris (1988) 46
Cal.3d 1, 37.) Prejudice may be shown by
loss of material witnesses or evidence or by the dimming of memories because of
the lapse of time. (Cowan, supra, 50 Cal.4th
at p. 430; People v. Martinez (2000)
22 Cal.4th 750, 767; People v. Catlin,
supra, 26 Cal.4th at p. 107.) Because prejudice is not presumed, a
defendant must affirmatively show prejudice by means of competent evidence
rather than "speculation, surmise or conjecture." (Shleffar
v. Superior Court (1986) 178 Cal.App.3d 937, 947; Nelson, supra, 43 Cal.4th
at p. 1250.) A claim of faded
memory is speculative unless the defendant makes an affirmative showing of
actual prejudice suffered because of that faded memory. (People
v. Abel, supra, 53 Cal.4th at p.
908.)
"[T]he
law under the California Constitution is at least as favorable for
defendant[s]" as federal law regarding pre-accusation delays. (Nelson,
supra, 43 Cal.4th at p. 1251.) "Under the California standard,
'negligent, as well as purposeful, delay in bringing charges may, when
accompanied by a showing of prejudice, violate due process. This does not mean, however, that whether the
delay was purposeful or negligent is irrelevant.' [Citation.]
Rather, 'whether the delay was negligent or purposeful is relevant to
the balancing process. Purposeful delay
to gain an advantage is totally unjustified, and a relatively weak showing of
prejudice would suffice to tip the scales toward[] finding a due process
violation. If the delay was merely
negligent, a greater showing of prejudice would be required to establish a due
process violation.' [Citation.] The justification for the delay is strong
when there is 'investigative delay, nothing else.' " (Cowan,
supra, 50 Cal.4th at p. 431.) "A court should not second-guess the
prosecution's decision regarding whether sufficient evidence exists to warrant
bringing charges." (
"The
due process clause does not permit courts to abort criminal prosecutions simply
because they disagree with a prosecutor's judgment as to when to seek an
indictment. . . .
Prosecutors are under no duty to file charges as soon as probable cause
exists but before they are satisfied they will be able to establish the
suspect's guilt beyond a reasonable doubt. . . . Investigative delay is fundamentally unlike
delay undertaken by the government solely to gain tactical advantage over an
accused because investigative delay is not so one-sided. A prosecutor abides by elementary standards
of fair play and decency by refusing to seek indictments until he or she is
completely satisfied the defendant should be prosecuted and the office of the
prosecutor will be able to promptly establish guilt beyond a reasonable
doubt." (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 914-915.)
On appeal,
"[w]e 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]." (Cowan,
supra, 50 Cal.4th at p. 431; see also
People v. Morris,
are no credibility determinations, "[t]he question of whether
pre-accusation delay is unreasonable and prejudicial is a question of
fact" to be determined by the trial court and therefore a court does not
abuse its discretion if its determination is supported by substantial
evidence. (People v. Boysen (2007) 165 Cal.App.4th 761, 777; see also
167; People v. Mirenda (2009) 174
Cal.App.4th 1313, 1330; People v.
Dunn-Gonzalez, supra, 47
Cal.App.4th at pp. 911-912.)
C
Shammam
asserts the trial court erred by denying his motions to dismiss the case for
pre-accusation delay. He argues the
court erred by concluding the prejudice he suffered from the delay was
outweighed by the prosecution's justification for the delay.
support the trial court's finding that Shammam suffered some prejudice from the
14-year pre-accusation delay. The court
expressly found he suffered prejudice solely in the form of faded memories of
civilian and law enforcement witnesses.
We need not discuss each and every instance in which a witness, either
during the pretrial hearing on the first motion or during the first or second
trial, testified that he or she could not recall specific events or times of
events. As Shammam notes, the record is
replete with testimony of witnesses showing their faded memories of events in
1994 and thereafter. However, Shammam
cites little, if any, evidence showing that he was actually prejudiced by the
faded memories. He asserts the memories
of certain witnesses (e.g., Bihouet and Abdala) became more biased and
distorted against him over time, but provides only innuendo, and no proof, of
bias and distortion. Absent such proof,
that assertion is argumentative and speculative and does not provide a basis
for finding he suffered actual prejudice.
(Nelson, supra, 43 Cal.4th at p. 1250; People
v. Abel, supra, 53 Cal.4th at p.
908.) We likewise reject, as
argumentative and speculative, Shammam's argument that the 14-year delay
allowed prosecution witnesses (e.g., Bihouet and Tanya) time to change their
stories and "invent" new facts.
Shammam
also argues the pre-accusation delay prevented him from corroborating his
September 17, 1994, statement to police and refuting the "half
truths" argument made by the prosecution.
However, he did not present any affirmative evidence showing what
corroborating evidence would have been discovered had the pre-accusation delay
not occurred. Shammam's apparent claim
that Abdala would have provided corroborative or otherwise supportive testimony
had he (Abdala) been interviewed by law enforcement officers shortly after the
murder is, again, argumentative and speculative and does not constitute a
showing of actual prejudice. Shammam
argues investigators could have checked out Abdala's assertion that he
(Shammam) called or paged him while he (Abdala) was attending the football game
had they interviewed him shortly after the murder. Absent such timely investigation, Shammam
argues he was unable to refute Abdala's trial testimony and support his own
statement that he went to the football game with Abdala. Likewise, his assertion that their failure to
investigate the veracity of his September 17, 1994, statement (e.g., by
confirming whether or not he ate breakfast at the restaurant and got his truck
repaired at the dealership) deprived him of evidence potentially favorable to
the defense, is also argumentative and speculative, and does not show actual
prejudice. To the extent he likewise
asserts that other omissions in the investigation of Binno's murder deprived
him of potentially favorable defense evidence, that assertion is argumentative
and speculative and does not show he suffered actual prejudice.
Shammam
also apparently asserts he was prejudiced by the delay because he could not
impeach Bihouet's testimony as effectively as he could have had the case been
prosecuted in 1996. He argues that in
1996 Bihouet could have been prosecuted, and given immunity, for being an
accessory after the fact to the murder, receiving stolen property, or other
crimes. Had he been prosecuted in 1996,
Shammam could have used the immunity grant to impeach Bihouet's testimony
implicating him in Binno's murder by showing she had a motive to testify
favorably to the prosecution. He argues
that because of the prolonged delay in prosecuting him, Bihouet was not, at the
time of his 2010 trial, subject to criminal liability for those crimes because
the applicable statutes of limitation had run.
As a result, Bihouet did not need to demand, and did not receive, immunity
for those crimes, thereby depriving Shammam of one means of impeaching her
testimony. However, the trial court did
not find the lack of impeachment evidence constituted prejudice to Shammam
resulting from the pre-accusation delay.
As discussed above, the court found the sole basis of prejudice caused
by the delay was the fading memories of civilian and law enforcement
witnesses. Based on our review of the
record, we conclude there is substantial evidence to support the court's
implied finding that the absence of impeachment evidence did not cause actual
prejudice to Shammam.
Shammam
also argues the delay in prosecution prejudiced him because he could not
impeach Bihouet's testimony with evidence that in 1996 she recanted her
statement to police. He argues Rowe's
notes support an inference that Bihouet made new and inconsistent statements on
or about October 10, 1996, after her initial August 27, 1996, recorded
statement implicating him (Shammam) in Binno's murder. At Shammam's 2010 trial, Rowe could not
recall any inconsistent statements or second interview in 1996. Shammam argues that had the case been
prosecuted in 1996, he could have questioned Rowe regarding his notes and,
based on his more recent memory, potentially obtained evidence that Bihouet
did, in fact, recant, or otherwise make statements inconsistent with, her
August 27, 1996, recorded statement.
That evidence could have been used to impeach Bihouet's trial
testimony. However, Shammam's argument is,
again, speculative and does not show actual prejudice. Furthermore, the trial court expressly found
no second 1996 statement was made by Bihouet.
In denying Shammam's motion to dismiss, the court stated: "The
Court further rejects [Shammam's] claim that an unrecorded or un-noted interview
of a major prosecution witness contained exculpatory evidence, specifically
finding that insufficient evidence has been presented to establish that the
interview ever took place." Based
on our review of the record, we conclude there is substantial evidence to
support the trial court's finding that no second interview with Bihouet
occurred in 1996. Shammam has not
carried his burden on appeal to show otherwise.
Shammam
also apparently argues he was prejudiced by the delay because a more timely and
complete investigation of Binno's murder and of all leads regarding involvement
of third parties may have produced exculpatory evidence. However, Shammam's argument is speculative
and does not show actual prejudice.
Furthermore, the trial court implicitly found no prejudice resulted from
any inadequacies in the investigation of third party leads. On the contrary, the court found the only
prejudice Shammam suffered from the delay was due to the fading memories of
witnesses. As we stated above, there is
substantial evidence to support that finding and Shammam has not carried his
burden on appeal to show otherwise. To
the extent he cites People v. Archerd
(1970) 3 Cal.3d 615, 640 (abrogated on another ground in Nelson, supra, 43 Cal.4th at pp. 1254-1255) as setting forth
certain factors a court must weigh in determining prejudice, we presume the
trial court was aware of, and considered, those factors in finding Shammam was
prejudiced by the faded memories of witnesses.
It is not our function on appeal to reweigh those factors and make an
independent determination of prejudice if the trial court's finding is
supported by substantial evidence.
concluding the pre-accusation delay was justified by the continuing
investigation of Binno's murder. In
support of his argument, he presents in great detail omissions or other
deficiencies in the investigation of Binno's murder showing that investigation
was negligently conducted, and possibly intentionally delayed. For purposes of our opinion, we need not
discuss the details of each purported deficiency. Rather, we briefly describe those purported
deficiencies to provide context for our disposition. Shammam argues Rowe and the other members of
the sheriff's investigative team did not check the veracity of his (Shammam's)
September 17, 1994, statement to police.
He argues they did not investigate who made the calls from Binno's cell
phone on or about September 24, 1994. He
argues investigators did not ask the pathologist to determine the time of
Binno's death. He argues they did not
check the veracity of Smith's and Shabilla's statements. He argues they failed to adequately
investigate leads regarding potential third party commission of, or involvement
in, Binno's murder (e.g., investigation of Sal Asker, Ophelia, an unnamed
Mexican male, and the unidentified woman who left a message on Binno's
answering machine). He argues no
significant investigative activity occurred after 1996 while the case was
transferred from detective to detective.
Assuming
arguendo all of those purported investigative deficiencies exist, we
nevertheless conclude there is substantial evidence to support the trial
court's findings that the investigation was not negligent and the
pre-accusation delay was justified by the continuing investigation of Binno's
murder. In denying Shammam's first
motion to dismiss, the court stated:
"This continuing investigation serves as an adequate justification for
delay. The Court finds
that the delay in filing criminal charges was motivated by a desire to gain
some tactical advantage over [Shammam] nor was the delay the result of any negligence on the part of either the
Sheriff's Department or the District Attorney.
This is not to say that a more intense investigation could not have been
done, nor does the Court conclude that all persons of interest were thoroughly
investigated. However,
was insufficient to support a conclusion that the delay in question was
unjustified." (Italics added.)
The court further found that "[t]he People's good faith
decision to not prosecute this case [until 2008] constitutes justification for
the delay."
The trial
court in this case was in a unique position to judge the credibility of the
witnesses and weigh the extensive testimony and other evidence presented during
the pretrial evidentiary hearing on Shammam's first motion to dismiss, and
during the two jury trials that led his conviction. Based on our review of the "cold"
record on appeal, we cannot conclude there is insufficient evidence to support
the trial court's finding that the pre-accusation delay was justified by the continuing
investigation of Binno's murder. Shammam
has not carried his burden on appeal to show there is insufficient evidence to
support the court's finding and that the investigation was, instead,
negligently conducted, intentionally delayed, or otherwise unjustifiably
delayed. To the extent he cites evidence
and inferences favorable to him, he misconstrues and/or misapplies the
substantial evidence standard of review we apply in reviewing the trial court's
factual finding that the pre-accusation delay was justified by the continuing
investigation of Binno's murder and good faith decision not to prosecute the
case until 2008. (Cowan, supra, 50 Cal.4th
at p. 431; People v. Morris,
8 Cal.3d at p. 167; People v. Mirenda,
supra, 174 Cal.App.4th at p. 1330;
911-912.) Shammam's assertion that the
investigation of Binno's murder was flawed or should have been more promptly
and thoroughly conducted does not show there is insufficient evidence to
support the trial court's finding that the investigation was not
negligent. The court could reasonably
infer from the evidence that the investigation was not negligent. It is not our function on appeal to reweigh
that evidence or make inferences other than those reasonably made by the trial
court. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) Furthermore, "[t]he justification for
the delay is strong when there is
'investigative delay, nothing else.' " (Cowan,
supra, 50 Cal.4th at p. 431,
italics added.) "A court should not
second-guess the prosecution's decision regarding whether sufficient evidence
exists to warrant bringing charges."
(Nelson, supra, 43 Cal.4th at p. 1256.)
To the
extent Shammam argues the trial court's rulings denying his motions to dismiss
included language that may be inconsistent with its finding that the
investigation was not negligent and the pre-accusation delay was justified, we
conclude he again misconstrues and/or misapplies the standard of review. In reviewing the trial court's rulings, we
make all intendments and presumptions, including reasonable inferences, to
support that ruling. (
557, 564.) In so doing, we conclude any
inconsistent or ambiguous language in the court's rulings should be construed
as not conflicting with its finding that the pre-accusation delay was justified
by the continuing investigation and good faith decision not to charge Shammam
until 2008. He notes that in denying his
third motion to dismiss the case, the court stated: "Clearly, the
investigation in this particular case was flawed." However, the court implicitly found that
flawed investigation did not provide a basis on which to change the findings it
made in denying his first two motions (e.g., the investigation was not
negligent and the pre-accusation delay was justified by the continuing
investigation). We conclude Shammam has
not carried his burden on appeal to show the evidence is insufficient to
support the trial court's finding that the pre-accusation delay was justified
by the continuing, nonnegligent investigation.
D
Shammam
also asserts the trial court erred by improperly balancing the prejudice from
the delay against the justification for the delay and by considering an
improper factor (i.e., seriousness of the crime). He first notes the trial court described the
prejudice he suffered from the delay as "slight to moderate." He also asserts the court described the
justification for the delay as "minimal." He apparently then argues the court erred by
finding the minimal justification outweighed the slight-to-moderate prejudice
and therefore his due process rights were not denied. However, although the court described
Shammam's prejudice as slight to moderate, it did not find the justification
was, in fact, "minimal."
Rather, that adjective appears in the court's finding: "
prejudice in this case." (Italics
added.) Our interpretation of this
statement is that the trial court balanced the justification for the delay
against the prejudice from the delay and found the prejudice was so
insignificant that even a minimal justification for the delay would have been
sufficient to outweigh that prejudice and support its finding that Shammam's
due process rights were not denied by the delay. Furthermore, we doubt the trial court, in
fact, considered the delay for continuing investigation to be
"minimal." As we noted above,
the justification for delay is "strong" when it is investigative
delay and nothing else, as the trial court found in this case. (Cowan,
supra, 50 Cal.4th at p. 431.) Based on our interpretation of the court's
order, we do not conclude the court abused its discretion or otherwise erred by
finding the justification for the delay outweighed the prejudice from the
delay.
Shammam
also argues the trial court abused its discretion by considering an improper
factor in balancing the prejudice against the justification for the delay. In denying his motion to dismiss, the court
stated:
"In balancing the prejudice [Shammam] demonstrated at the motion
hearing against the People's
justification for the delay in filing the murder charge,
tactical advantage over [Shammam]. The
delay was the result of the prosecution exercising its discretion to delay filing
of the charges for investigative purposes.
In this Court's opinion, the actual prejudice suffered by [Shammam] as a
result of the delay is slight to moderate prejudice. When
weighing that prejudice against the People's justification for the delay and
then taking into consideration the seriousness of the crime and the public's
interest in favor of this type of prosecution, the Court finds that no due
process violation has been shown."
(Italics added.)
Shammam argues the court abused its discretion by citing
Cal.App.3d 941, 954, and including the "seriousness of the crime" as
a factor in its balancing process.
However, reading the trial court's findings as a whole and making all
intendments and in
| Description | Franswa Shammam appeals a judgment entered following his jury conviction of first degree murder (Pen. Code, § 187, subd. (a)).[1] Although the murder was committed in 1994, Shammam was not charged with murder until 2008. On appeal, he contends the trial court erred by: (1) denying his motion to dismiss the case because the 14-year pre-accusation delay denied him his state and federal constitutional rights to due process; (2) instructing with CALCRIM No. 362 on consciousness of guilt; and (3) not granting him an alternative remedy to dismissal of the case. |
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