P. v. Smallwood

 

 

 

 

 

 

 

 

 

Filed 6/21/13  P. v. Smallwood CA3

 

 

 

 

 

NOT TO BE PUBLISHED

 

 

 

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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Sacramento)

----

 

 

 
>

THE PEOPLE,                           Plaintiff and Respondent,               v.   DETOURIANTAE KYMONO SMALLWOOD,                           Defendant and Appellant.

C070806   (Super. Ct. No. 10F03901)

 

 

            In December
2011, a jury found defendant Detouriantae Kymono Smallwood guilty of href="http://www.fearnotlaw.com/">second degree robbery, unlawfully carrying a
loaded firearm in a vehicle, possessing a short-barreled shotgun, and
concealing a short-barreled shotgun in a vehicle.  The jury also found true the enhancement
allegation that defendant personally used a firearm in the commission of the
robbery.  The court sentenced defendant
to a total of 13 years in prison. 

            On appeal,
defendant claims the judgment must be reversed because the trial court
unconstitutionally limited his cross-examination
of Sacramento Police Officer Amy Slay. 
He further claims that the court prejudicially erred by failing sua
sponte to instruct the jury on
accomplice testimony.  We disagree and
affirm.

FACTUAL
AND PROCEDURAL BACKGROUND

            In June 2010,
the victim was walking around a Sacramento
neighborhood selling corn out of a cart. 
A white car drove past her and then stopped.  Two people got out of the car, one from the
front passenger seat and one from the rear passenger seat.  The person who exited the front passenger
seat walked over to the victim, pulled a wooden-handled shotgun out from under
his sweatshirt, pointed it at her, and demanded money.  This person was later identified as
defendant.  The second individual walked
over and untied a bag the victim was wearing around her waist (sometimes
described as a fanny pack).  The bag was
black and contained the victim’s money and cell phone.  The two men returned to the car and drove
away.  

            Michael
Harris, an eyewitness to the crime, lived across the street from where the
robbery occurred and saw the whole event through his living room window.  He saw a white Nissan Altima drive by about
three times.  Harris then watched the car
stop at the curb across from his house. 
A male got out of the passenger’s side backseat of the car and stood by
the hood.  The driver stayed in the
car.  Another male got out from the front
passenger’s side of the car, approached the victim, and pointed a shotgun at
her.  Harris saw the victim give up her
belongings.  “The individual [who] had
the gun . . . casually walked back to the car and got in the car and they drove
off.”  Harris could not see if anyone
else was in the backseat of the car because a blanket covered the rear, driver’s
side window blocking his view.  He
immediately called 911 to report the robbery. 


            Upon
responding to the scene, Sacramento Police Officer Lilia Vasquez spoke with the
victim, and Officer Slay spoke with Harris. 
According to Officer Vasquez, the victim described the robber as “a
black male, approximately 18 to 20 years old, approximately six feet tall,
weighing possibly more than 200 pounds, wearing a black hooded sweatshirt with
a white T-shirt underneath . . . .  [H]e
was also wearing glasses.”  At trial,
Harris also described the robber as being a black male, around 20 to 21 years
old, 6 feet 2 inches or 6 feet 3 inches, weighing between 210 to 240 pounds,
having short hair, and wearing a black hooded sweatshirt and glasses.  Harris added that the robber had a design on
the back pocket of his jeans.

            After
speaking with Officer Slay, Harris drove to Home Depot.  As he was on his way, he saw the same white
Nissan Altima from earlier.  Harris again
called 911 and reported the car’s license plate number and that the car was at
a FoodMaxx parking lot.  The same two
males were in the front seats of the car and the third male was still in the
backseat.  In addition, Harris saw two
females in the back of the car whom he had not seen before because of the
blanket in the rear, driver’s side window.

            Sacramento
Police Officers Orlando Morales and Michael Pinola were the first to arrive at
the FoodMaxx parking lot; they immediately detained the people in the Nissan
Altima.  The person sitting in the
driver’s seat was identified as Timothy Kellogg.  Defendant was sitting in the front passenger
seat, and Demarrio Fearington was in the rear passenger seat.  Two females, Bonnie Owens-Pimentel and
Ralisha (“Shaniz”) Powell, were also in the backseat.  A surveillance video showed that defendant,
Kellogg, and Fearington entered the FoodMaxx store and stood next to the
Coinstar change machine.  The victim’s
fanny pack was also visible in the surveillance video and was recovered from
the top of the Coinstar machine by Officer Pinola later that day.   

            After
detaining the suspects, Officer Vasquez dialed the victim’s cell phone.  Upon dialing, she heard and then saw a phone
ringing on the back passenger floorboard of the Nissan Altima.  She hung up and dialed the same number again
to confirm that the phone inside the vehicle was the victim’s.  From where she was standing, she could see
that the number on the screen was her number. 
The victim later confirmed that the phone found inside the car was
hers.  Also found in the trunk of the car
was a 12-gauge, sawed-off shotgun wrapped in a blanket.

            The victim
and Harris were both asked to participate in a field showup in the FoodMaxx
parking lot.href="#_ftn1" name="_ftnref1"
title="">[1]  The victim was with Officer Vasquez and
Harris was with Officer Slay in her car during this process.  When an officer escorted defendant in front
of the police car where the victim was, according to Officer Vasquez, the
victim told her in Spanish that he “looked like the person [who] had the gun
that robbed her.” The victim was unable to identify Kellogg or Fearington.  Harris also identified defendant as the
person with the gun and said that he recognized defendant’s hair and face and
the rainbow design on the back of his jeans. 
Harris was also able to identify Kellogg as the driver and Fearington as
the rear passenger who had gotten out and stood by the side of the car.  Harris testified that he was “beyond
confident” of the identifications he made that day.  He was also able to identify defendant at
trial.  In addition, both Harris and the
victim identified the Nissan Altima as the car used in the robbery and said
that the gun found in the car looked like the gun used in the robbery. 

            Defendant’s
ex-girlfriend, Owens-Pimentel, testified on behalf of the prosecution in
exchange for a grant of immunity.href="#_ftn2"
name="_ftnref2" title="">[2]  She acknowledged that in June 2010, she owned
a white Nissan Altima matching the license plate number of the vehicle used
during the robbery.  However, during her
initial statements to Officer Morales, she said the three males left her at
Shaniz’s house while defendant borrowed the car to get money.  Then the males picked up her and Shaniz from
Shaniz’s house and they went to the FoodMaxx parking lot. 

            At trial,
Owens-Pimentel admitted she was in the backseat of the car during the
robbery.  She testified that prior to the
robbery, she did not hear about a plan to rob someone and she thought they were
driving to Sacramento for Kellogg, the driver, to finish his tattoo.  Only when she saw defendant get out of the
car and saw a gun under his sweater did she realize what was going to
happen.  During her testimony, she
described the following:  defendant was
sitting in the front passenger seat; Fearington was in the rear passenger seat;
defendant and Fearington got out of the car when it stopped; and Kellogg, who
was sitting in the driver’s seat, stayed inside the car during the
robbery.  

            Owens-Pimentel
testified  that she did not see the
victim because a shirt hung across her rear, driver’s side window blocking her
view.  However, when defendant and
Fearington got back in the car they had a black fanny pack and cell phone.  Fearington asked her if she spoke Spanish
because the cell phone was locked in Spanish and he wanted to unlock it.  Owens-Pimentel said that after the robbery,
the group drove to FoodMaxx to use the Coinstar machine.  She and Shaniz waited in the car while the
boys went inside with the fanny pack. 
Shortly after they returned from the Coinstar machine, the police
arrived. 

            At trial,
defense counsel cross-examined Officer Slay about her training concerning field
showups, the protocols she followed in this case, and her interactions with
Harris during this process.  Amidst this
topic, the following colloquy ensued:

            “[DEFENSE
COUNSEL]:  Did you ever receive any
training on how to present people for a lineup in the station, like we see on
television?

            “[OFFICER
SLAY]:  No, I haven’t.

            “[DEFENSE
COUNSEL]:  [D]id you ever receive any
training on how to do a photo lineup . . . ? 


            “[OFFICER
SLAY]:  Yes.

            “THE
COURT:  Counsel, what’s the relevance of
a lineup or a photo lineup?  She didn’t
do a photo lineup or a lineup.  You’re
questioning her about a field show-up . . . .  Come on, let’s move on.  Move on. 


            “[DEFENSE
COUNSEL]:  Did you ever receive any
training about the elements of a lineup? 


            “[¶] . . . [¶]

            “[PROSECUTOR]:  Objection. 
Relevance. 

            “[DEFENSE
COUNSEL]:  It’s very relevant.  It goes to the validity and the conducting of
this lineup. 

            “THE
COURT:  I understand.  And I will -- I’m prepared to sustain the
objection because you’re asking her about a lineup.  But there was no lineup in this case.  She’s talking about an in-field
show-up[.]  An in-field show-up is not a
lineup.  There’s [sic] two distinct things. 
There was no lineup in this case. 
There was an in-field show-up[.] 
So if you change your term, then I’ll overrule the objection.  Ask her about the in field show-up, not a
lineup.  There was no lineup here.

            “[DEFENSE
COUNSEL]:  Your Honor, may I
approach? 

            “THE
COURT:  No, you may not.  Ask her about a show-up; okay? 

            “[DEFENSE
COUNSEL]:  Have you ever been trained
about the difference between a show-up and a lineup? 

            “[OFFICER
SLAY]:  Yes. 

            “[DEFENSE
COUNSEL]:  Have you ever received
information about the difference between a show-up and a lineup? 

            “[¶] . . .
[¶]

            “[OFFICER
SLAY]:  I’m not sure where you’re going
with this.

            “[DEFENSE
COUNSEL]:  Okay.  [¶]  At
a field show-up one person is shown at a time; correct? 

            “[OFFICER
SLAY]:  Correct. 

            “[DEFENSE
COUNSEL]:  And that’s called a sequential
lineup; is that correct? 

            “[OFFICER
SLAY]:  Correct. 

            “[DEFENSE
COUNSEL]:  And in a photo array or
regular lineup, people are shown to a witness in groups; is that correct? 

            “[OFFICER
SLAY]:  Correct. 

            “[DEFENSE
COUNSEL]:  Have you ever been told why
people are shown in groups? 

            “[PROSECUTION]:  Objection. 
Relevance. 

            “THE
COURT:  This may have some marginal
relevance.  I’ll allow it.  [¶] 
You can answer the question. 

            “THE
WITNESS:  No. 

            “[DEFENSE
COUNSEL]:  You have not.  Okay. 
[¶]  Have you ever received any
information about something called a double blind show-up?

            “[OFFICER
SLAY]:  No.

            “[DEFENSE
COUNSEL]:  Have you ever received
information about a double blind lineup? 


            “[OFFICER
SLAY]:  No. 

            “[DEFENSE
COUNSEL]:  Have you ever received any
training so as not to accidentally give any nonverbal clues during a
show-up? 

            “[OFFICER
SLAY]:  Yes.

            “[¶] . . .
[¶]

            “[DEFENSE
COUNSEL]:  In your training, do you have
any information whether the use of weapons or force in a crime can affect a
show-up? 

            “[OFFICER
SLAY]:  No. 

            “[DEFENSE
COUNSEL]:  Okay.  [¶] 
Have you ever done anything other than a sequential display of people
during a field show-up? 

            “[OFFICER
SLAY]:  No.” 

            Defense
counsel then moved away from questioning about protocols and comparisons
between field showups and lineups and began asking Officer Slay about the
specific procedures she followed with Harris, such as statements she made to
him in the car on the way to the field showup; the advisement she read him
about the identification process; and where they parked in the FoodMaxx parking
lot in relation to the white Nissan Altima.

            The following day, defense counsel
moved for a mistrial “on the grounds that relevant areas of cross-examination
were foreclosed to the defense without proper examination of the
relevance.”  She stated that “[t]he Sixth
Amendment itself protects the right to cross-examine witnesses against you
thoroughly and to test relevant areas that may affect the outcome of this trial.  [¶] . . . [D]uring my
cross-examination of Officer Slay where I was . . . attempting to make a brief
inquiry into the reliability of the show-up . . . to see if any of the
safeguards present in . . . the elements of lineups were present[,] [¶] I was
foreclosed from asking anything about any of the safeties that were not present
in this show-up. . . . [and] was instructed to only speak about this
show-up.” 

            However, defense counsel did not
explain how additional questioning on the safeguards of a lineup would have
proven that the field showup was unreliable or defective. 

            The court denied the motion for a
mistrial, stating that some of defense counsel’s questions “were clearly
irrelevant.”  Defense counsel “proceeded
to go into a physical lineup . . . where people are actually shown a number of
different suspects, when this wasn’t a physical lineup.  [¶] 
[She] proceeded to go into a photographic lineup, when there was no
photographic lineup in this case. 
[¶]  . . . [She] seemed like [she
was] trying to feel [her] way around it, and then [she] finally figured it out
that where [she] needed to go with the officer . . . is whether she followed
proper procedures in conducting this particular show-up.  Okay. 
And then [defense counsel] did go into it.  And then [she] did question her about her knowledge
of certain procedures.  And I allowed
that.” 

            The jury
found defendant guilty on all counts. 
Defendant timely appealed. 

DISCUSSION

I

> Defense Counsel’s Cross-Examination Of Officer
Slay

            On appeal, defendant first argues
that “the judgment of conviction must be reversed because [he] was denied his
federal and state constitutional rights to due process of law and confrontation
[because] the trial court erroneously limited his cross-examination” of Officer
Slay regarding the field showup process used to identify defendant.  We disagree. 


            “If the defendant raises a
Confrontation Clause challenge based on the exclusion of an >area of inquiry, we review de novo.  [However, i]n reviewing a limitation on the >scope of questioning within a given
area, we recognize that ‘trial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits on such
cross-examination based on concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness’ safety, or interrogation that
is repetitive or only marginally relevant.’ 
[Citation.]  A challenge to a trial court’s restrictions on
the manner or scope of cross-examination on nonconstitutional grounds is thus
reviewed for abuse of discretion.”  (>United States v. Larson (9th Cir. 2007)
495 F.3d 1094, 1101, italics added.) 

            As applied here, defendant’s
challenge goes to the limitation on the scope
of his cross-examination of Officer Slay regarding procedural safeties in place
during the field showup.  The limitation
pertains to scope rather than area of inquiry because defendant was permitted
to question Officer Slay in detail about the safety procedures she followed
during the field showup, but claims to have been limited in the extent of this
line of questioning.  Therefore, we review for abuse of discretion.

            Defendant
argues that because the prosecution’s case “turned primarily on inherently
unreliably [sic] eyewitness
identification evidence,” it was imperative that defense counsel be allowed to
“fully question [Officer Slay] about the identification process.”  He claims that by limiting the
cross-examination of Officer Slay regarding the procedural safeties in place
for lineups, as compared to field showups, he was denied “the opportunity to
discover the truth.”  

            “ ‘[T]he Confrontation Clause
guarantees an opportunity for
effective cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish.’ ”  (Delaware
v. Van Arsdall (1986) 475 U.S. 673, 679 [89 L.Ed.2d 674, 683].)  Under an abuse of discretion review, “
‘unless the defendant can show that the prohibited cross-examination would have
produced “a significantly different impression of [the witnesses’] credibility”
[citation], the trial court’s exercise of its discretion in this regard does
not violate the Sixth Amendment.’ ”  (>People v. Chatman (2006) 38 Cal.4th 344,
372.) 

            Here, while it is true that defense
counsel told the court that questioning Officer Slay about stationhouse and
photo lineups went to the validity and conduct of the field showups, counsel
made no offer of proof as to what she
expected to uncover or how such
discoveries would impact the validity of the field showup or Officer Slay’s
credibility.  Even now, defendant does
not provide us with any explanation of how additional questioning on
stationhouse and photo lineups would have called into question the validity of
the field showup or the conduct or credibility of Officer Slay; he asserts only
that he was denied “the opportunity to discover” such information.  Defendant’s inability to show any specific
prejudice in this situation makes it impossible for him to show that the trial
court abused its discretion. 

            Furthermore, although defendant
claims that the cross-examination of Officer Slay was unconstitutionally
limited because defense counsel was prevented from “inquir[ing] into the
reliability of the show-up” by asking if “the safeguards present in . . . the
elements of lineups were present,” this assertion is inconsistent with the
facts.  While it is true that the court
directed defense counsel to “Ask [Officer Slay] about the in field show-up, not
a lineup” because “[t]here was no lineup here,” defendant fails to mention
that, following this interaction, defense counsel nevertheless proceeded to
question Officer Slay about lineups by comparing the procedures of lineups and
field showups.  Thus, defense counsel
asked Officer Slay about the safeties in place in a field showup as compared to
a stationhouse or photo lineup anyway. 
The court allowed this line of questioning and even overruled an
objection by the prosecution when defense counsel asked Officer Slay if she
knew why the police show people in groups in stationhouse and photo lineups,
stating that, “This may have some marginal relevance.  I’ll allow it.”  Because defense counsel’s further questioning
addressed the subject matter that defendant here purports he was
unconstitutionally restricted from addressing, defendant cannot “show the
limitation on cross-examination [was] a prejudicial limitation”;  (United
States v. Jorgenson (10th Cir. 1971) 451 F.2d 516, 520)  therefore, his claim cannot stand.

            Finally, in regard to defendant’s
due process claim, there is no meaningful analytical distinction between this
and the right to confrontation.  (See Strickland
v. Washington (1984) 466 U.S. 668, 684–685, [80 L.Ed.2d 674, 691] [“The
Constitution guarantees a fair trial through the Due Process Clauses, but it
defines the basic elements of a fair trial largely through the several
provisions of the Sixth Amendment”].) 
Thus, the resolution of defendant’s confrontation claim resolves his due
process claim as well.

II

Instruction On Accomplice Testimony

            Defendant
next argues that “the trial court erred prejudicially in failing >sua sponte to instruct the jury on
accomplice testimony” regarding the statements made by Owens-Pimentel during
trial.  Specifically, defendant claims
the court should have given two different instructions:  CALCRIM No. 335, regarding the testimony of a
witness who was undisputedly an accomplice; and CALCRIM No. 334, regarding the
need for corroborating evidence when it is disputed whether the witness was an
accomplice.  Defendant claims that the
omission of these instructions violated his right to due process of law and a
fair trial. 

            As to
defendant’s claim that the trial court should have instructed the jury on
CALCRIM No. 335 (accomplice testimony regarding a witness who was undisputedly
an accomplice), it was not error for the trial court to omit this
instruction.  All evidence points to the
conclusion that, it was at least disputed whether Owens-Pimentel was an
accomplice.  Defendant himself admits
this point when he says that “Owens-Pimentel . . . >could be found to be an accomplice in
this case.”  (Italics added.)  The use of the word “could” clearly
acknowledges that it is disputed whether Owens-Pimentel was an accomplice
because it implies that she could also not be an accomplice.  Furthermore, during closing arguments, it was
defense counsel who implied that Owens-Pimentel lied about her presence in the
car during the robbery and was “making up a new story” when she testified about
the details of the robbery at trial. 
This conflicting evidence regarding the extent of Owens-Pimentel’s involvement
in the robbery creates at least a dispute as to whether she was an
accomplice.  Therefore, CALCRIM No. 335
would have been inappropriate in this case. 
Accordingly, we are left with only defendant’s claim regarding CALCRIM
No. 334.

            The People
claim that the omission of CALCRIM No. 334 was not error because Owens-Pimentel
was not an accomplice.  In the
alternative, the People argue that any error regarding an instruction on
accomplice testimony was harmless beyond a reasonable doubt because the testimony
of Owens-Pimentel “was sufficiently corroborated by independent evidence of
[defendant]’s guilt.”  We agree. 

            Our Supreme Court has held that “
‘the failure to instruct on accomplice testimony . . . is
harmless where there is sufficient corroborating evidence in the
record.’ â€  (People v. Zapien (1993) 4 Cal.4th 929, 982.)  Here, the testimony of multiple, independent
parties including the victim and Harris provided sufficient corroborating
evidence supporting Owens-Pimentel’s testimony. 
Most significantly, Owens-Pimentel identified defendant as the person
with the gun, which was corroborated by the victim’s identification of
defendant as the robber with the gun to Officer Vasquez and Harris’s
identification of defendant -- immediately following the incident and at trial
-- as the front passenger who pointed the gun at the victim.  Owens-Pimentel testified that defendant had
the gun under his sweater when he went to rob the victim.  The victim corroborated this evidence when
she demonstrated in court that the robber had the gun under his
sweatshirt.  In addition, Owens-Pimentel
testified that defendant came back to the car with a black fanny pack that
contained coins and a cell phone.  This
testimony was consistent with that of the victim, who described that on the day
of the robbery, she was wearing a black fanny pack containing money and her
cell phone.  

            There was
also corroboration of the more minor details of the robbery.  For example, Owens-Pimentel described  how one of the other parties in the car asked
if she spoke Spanish because the victim’s phone was locked in Spanish and he
wanted to unlock it.  The victim speaks
Spanish.  Owens-Pimentel testified how,
prior to the robbery, Kellogg drove around the neighborhood “[l]ooking for
somebody” before pulling the car over, though she could not remember how many
times they drove around.  Her description
was consistent with Harris’s testimony that the Nissan Altima circled the block
three times before pulling over. 
Owens-Pimentel and Harris both testified that the rear driver’s-side
window was covered.  Finally,
Owens-Pimentel’s testimony that the driver, Kellogg, stayed in the car was
consistent with Harris’s testimony that only the front and back male passengers
got out of the car and that the driver stayed in the car. 

            Based on
the extent of the corroborating testimony
of the other witnesses, we are satisfied that any error in failing to give
CALCRIM No. 334 was harmless beyond a reasonable doubt.

 

 

DISPOSITION

            The judgment is affirmed.

 

 

 

                                                                                       ROBIE          , J.

 

 

 

We concur:

 

 

 

          NICHOLSON      , Acting P. J.

 

 

 

          DUARTE         , J.