P. v.
Filed 1/29/13 P. v. Walker CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
WOODROW TERRANCE WALKER,
Defendant and Appellant.
D060858
(Super. Ct.
No. SCE309881)
APPEAL from
a judgment of the Superior Court
of
Allan J. Preckel, Judge. Affirmed.
Woodrow
Terrance Walker appeals a judgment following a jury verdict convicting him of
one count of resisting an executive officer (Pen. Code., § 69)
and one count of battery on an officer (§ 243, subd. (b)). Walker
contends the trial court abused its discretion by halting his cross-examination
of a witness and commenting that the witness's prior statement was ambiguous,
rather than inconsistent. He argues the
court violated his rights to confront a
witness and present a complete defense.
We conclude Walker forfeited
these claims on appeal because he did not raise the issues at trial. Nevertheless, we conclude the court's
curtailment of the cross-examination and ambiguity comment were not an abuse of
discretion, and even if the court erred, the error was harmless.
FACTUAL
AND PROCEDURAL BACKGROUND
On March
28, 2011,
San Diego County Sheriff's Deputies Matthew Dolmage and Michael DaSilveira
responded to a 911 call from Walker's mother, Curtistine Walker
(Curtistine). She complained that Walker was causing a disturbance at
her workplace. She told the operator Walker had a history of mental
illness and had fought with deputies before.
When Dolmage and DaSilveira arrived, Walker was in an adjacent parking
lot. He told the deputies his mother was
harassing him. The deputies decided they
had no reason to detain Walker and told him he was free to
go. Walker walked towards the bus stop
and Curtistine came outside to speak with the deputies. She told them she wanted Walker taken to County Mental
Health. Walker approached the deputies and
Curtistine a few minutes later and yelled that she was a liar and was harassing
him.
The deputies put Walker in the back of a locked
patrol car to separate him from his mother but did not handcuff him. It is unclear how long Walker was in the patrol car. While he was in the car, Curtistine told the
deputies Walker had thrown her to the
ground. Walker became agitated and started
yelling and punching the car doors. The
deputies called the Psychiatric Emergency Response Team
(PERT) but no team was immediately available to pick up Walker. The deputies decided to take Walker to County Mental Health
themselves and when they told him he became upset.
The deputies opened the patrol car
door to handcuff Walker and he tried to push past
them to escape. Dolmage grabbed him
Walker by his shoulders and was dragged a couple of feet as Walker continued to move
forward. DaSilveira then grabbed Walker by his shoulders and Walker grabbed DaSilveira by the
shoulders and they struggled back and forth.
DaSilveira struck Walker on the side of the head to
get him to release his grasp. Walker swung his hands wildly and
DaSilveira felt an impact on the side of his head. The deputies dragged Walker to the ground, handcuffed
him in full restraints and arrested him.
Both officers suffered minor cuts, scrapes and damage to their uniforms
and DaSilveira had a headache. Walker was charged with resisting
an executive officer and battery on an officer.
At trial, Walker
represented himself and asserted the defense that he was unlawfully
detained. Both charges against him
require his detention to have been lawful.
He tried to use Dolmage's testimony at the preliminary hearing to show Walker
was detained for 45 minutes in the police car prior to his arrest. Walker
asked Dolmage if he testified at the preliminary hearing that he did not call
the PERT team because he "had already been waiting 45 minutes," while
Walker was detained in the police car.
When Dolmage responded that was not correct, Walker stated that in the
preliminary hearing transcript Dolmage said he was waiting 45 minutes.
Next, Walker asked if Dolmage had made
the determination to take him to County Mental Health before Walker got out of the car. Dolmage replied that it sounded like there
was a mix-up in the timeline, and Walker stated there was no
mix-up. He asked if Dolmage previously
testified he had been waiting for 45 minutes while Walker was in the police car. Dolmage refused to answer, stating that it
was a "trick question." Walker then asked if he had been in
the car for 45 minutes when Dolmage decided to take him to County Mental
Health.
At that point, the court
interrupted, explained what a preliminary hearing is, and defined the level of
proof required at a preliminary hearing. The court instructed Dolmage to read the
transcript of the preliminary hearing to himself and the court read the
pertinent lines to the jury as follows:
"Question: What was the estimated time of arrival from the
psychiatric response team? [¶] Answer: There was no estimated time given,
they just said it was extended, and we had already been waiting; I believe it
was more than 45 minutes to an hour."
After the court read the lines into
the record it asked if Dolmage recalled that question and giving that
answer. Dolmage replied that he
did. The court further questioned Dolmage
about what he meant by his statement in the transcript. Dolmage said that he meant "[they] had
been waiting approximately 45 minutes to an hour." The court asked him to clarify whether he
"had already been waiting that period of time, or that it would be [an]
additional period of time before [PERT] responded." Dolmage responded, "[t]he way it is
written, that could have been taken either way.
But I believe what I meant was it was going to take another additional
45 minutes plus." The court asked
if Dolmage knew how long he had been on the scene with Walker at the time he requested the
PERT team to respond. Dolmage said,
"I don't recall the exact amount of time." The court then allowed Walker to continue
cross-examination.
Walker again asked Dolmage, "we
had already been waiting 45 minutes, that is what you said. You said -- it says right here?" The court admonished Walker for being
argumentative with the witness and told Walker the answer had been read to the
jury "and [the preliminary hearing testimony] is capable of different interpretations. There is some ambiguity." Walker then asked Dolmage if he said PERT
would take another 45 minutes, and Dolmage replied he was not sure what he
meant and it was ambiguous.
Walker asked Dolmage, "you
don't know what you meant by that at the time? . . . I would take it that you had already been
with Mr. Walker 45 minutes; is that correct?" Dolmage replied that it was possible and
Walker countered that the transcript said they had been waiting 45
minutes. The court admonished Walker to
frame the question appropriately and move on.
Walker began to state that Dolmage testified under oath he had been
waiting and the court stopped him. The
court told Walker "we already covered that. It has been asked and answered two or three
times now. Let's move on to other
matters."
The jury convicted Walker of both
counts. The court sentenced him to three
years in county jail for count 1 and 315 days for count 2, which Walker had
already satisfied with presentence custody credits.
DISCUSSION
I
We conclude
Walker forfeited his appellate claims because he did not raise the issues in
the trial court. Constitutional claims
and claims of improper judicial comment
generally are not preserved for appellate review unless they were raised at
trial. (People v. Burgener (2003) 29 Cal.4th 833, 869; People v. Cash (2002)
28 Cal.4th 703, 730.) Walker argues an
objection would have been futile, thus excepting him from the standard
forfeiture rules. (People v. Sturm (2006) 37 Cal.4th 1218, 1237.) He contends the court showed a hostile
attitude prior to trial when it discouraged him from representing himself and
told him to not "run [his] mouth" and "ramble on." However, the court made these statements
after Walker interrupted the court before trial, and this attitude did not
pervade into trial. It is not
"evident from the attitude of the trial judge . . . that any
assignment of misconduct would have been disregarded" or "brought
upon [Walker] further attack." (
622; Sturm, at p. 1237.)
Walker also
asserts his claims can be raised for the first time on appeal because the court
characterized Dolmage's prior testimony as ambiguous and Dolmage later agreed
the testimony was ambiguous. He argues
an objection or admonition could not have cured the court's error. However, Dolmage had already said his prior testimony could be
"taken either way" before the court stated there was some
ambiguity. The court's characterization
was not incurable error and did not show insurmountable bias.
Any perceived error should have been
brought to the court's attention and could have been cured with an
admonition. The purpose of the
forfeiture requirement is to allow courts an opportunity to cure any alleged
misconduct or infringement. Walker had a
" 'duty of looking after his legal rights and of calling the judge's
attention to any infringement of them.
If any other rule were to obtain, the party would in most cases be
careful to be silent as to his objections until it would be too late to obviate
them, and the result would be that few judgments would stand the test of an
appeal.' " (Sommer v.
Martin (1921) 55 Cal.App. 603, 610.)
We conclude Walker forfeited his appellate claims because he was
required to object absent a compelling showing of judicial hostility. We
nevertheless address and reject the substance of his claims.
II
A. Opportunity to Cross-examine
Walker contends the trial court
abused its discretion by limiting the scope of his cross-examination. (U.S.
v. Larson (9th Cir. 2007) 495 F.3d 1094, 1101.) The Sixth Amendment to the United States
Constitution guarantees defendants the right to confront and cross-examine
witnesses. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678;
315-317 (Davis).) However, the Sixth Amendment Confrontation
Clause only "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. Fensterer (1985) 474 U.S. 15, 20.)
"[T]he accused, as is required
of the State, must comply with established rules of procedure and evidence
designed to assure both fairness and reliability in the ascertainment of guilt
and innocence." (
284, 302.) The right to cross-examine is
not unlimited, and judges "retain wide latitude" to impose reasonable
limits on defense counsel's cross-examination if the examination is harassing,
confuses the issues, or is repetitive, among other reasons. (Delaware
v. Van Arsdall, supra, 475 U.S. at p. 679.) Courts also " 'may exercise a
reasonable judgment in determining when the subject [on cross-examination] is
exhausted.' " (McCarthy v.
Mobile Cranes, Inc. (1962) 199
Cal.App.2d 500, 507.)
Walker had an opportunity to fully
cross-examine Dolmage. Walker asked
Dolmage similar questions six times before the court instructed him to stop
that line of questioning. Each time,
Dolmage either disagreed that he meant Walker had been detained in the car for
45 minutes, said it was possible, or was unsure of what he meant at the
preliminary hearing. Although Walker was
not getting the response he wanted from Dolmage, the question of whether Walker
had been detained in the police car for 45 minutes prior to his arrest had been
asked and answered.
Walker's repetition of the question
created a legitimate interest in the court's curtailment of the
questioning. Dolmage may have been a
forgetful or even challenging witness, but allowing Walker to continue to ask
the same question would have been repetitive and could have confused the
jury. The court reasonably exercised its
broad discretion to curtail the cross-examination after the subject was
exhausted.
B. Right to Present a Complete Defense
"Whether rooted directly in the
Due Process Clause of the Fourteenth Amendment [Chambers v. Mississippi,
supra, 410 U.S. 284], or in the Compulsory Process or Confrontation clauses
of the Sixth Amendment [Washington v. Texas (1967) 388 U.S. 14, 23;
Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.' " (Crane v. Kentucky (1986) 476 U.S.
683, 690.) The jury must have
" 'the benefit of the defense theory before them so that they [can]
make an informed judgment as to the weight to place on [the Government
witness'] testimony,' " (U.S.
v. Larson, supra, 495 F.3d at p. 1102; Davis,
at p. 317) and "sufficient information to assess the credibility of
the witness." (Larson, at p. 1103.)
Walker argues the court's
curtailment of his cross-examination of Dolmage denied him his due process
right to present a complete defense. We
agree Walker's goal of asserting he was unlawfully detained for 45 minutes was
important to his defense. (
815 [a defendant cannot be convicted of an offense against an officer if the
officer is performing his or her duties unlawfully].) However, the pertinent question was asked and
answered as stated above, and the court recited to the jury the preliminary
hearing testimony on which Walker relied.
As the preliminary testimony was the basis for Walker's illegal
detention defense, the jury had the benefit of his defense theory. The jury also had sufficient information to
assess Dolmage's credibility because it heard both the preliminary hearing
testimony and his testimony at trial regarding the detention. (Davis,
supra, 415 U.S. at p. 318.)
Moreover, the court questioned
Dolmage in an attempt to clarify the testimony.
(People v. Cook (2006) 39
Cal.4th 566, 597 (Cook).) The court
asked the question Walker had been attempting to get Dolmage to answer when it
asked, "Do you recall at the time you made the request for the PERT
team to respond, how long you had been on the scene with Mr. Walker?" and
Dolmage replied, "I don't recall the exact amount of time." The court's discretionary interruption and
curtailment of the questioning did not deprive Walker of his right to present a
complete defense.
C. Judicial Comment
We "evaluate the propriety of
judicial comment on a case-by-case basis, noting whether the peculiar content
and circumstances of the court's remarks deprived the accused of his
v. Rodriguez
(1986) 42 Cal.3d 730, 770.) "The propriety and prejudicial effect of
a particular comment are judged both by its content and by the circumstances in
which it was made." (
735.) Trial courts "may comment on
the . . . credibility of witnesses, so long as its remarks are
accurate, temperate, and 'scrupulously fair.' " (Id.
at p. 735.)
The court's comment that Dolmage's
prior testimony was capable of different interpretations and ambiguous was
proper, although not perfect. The
court's comment was accurate, as Dolmage's prior testimony could be interpreted
in more ways than one. The testimony
could be interpreted to mean the officers assumed PERT would be at the scene in
an additional 45 minutes to an hour, or it could be interpreted to mean the
officers had been waiting for 45 minutes before calling PERT. The court's statement was temperate and fair
because it did not indicate what it believed Dolmage meant by his prior
testimony or whether he was credible.
Considering the circumstances surrounding the ambiguity comment, the
court's comment was not error.
D. Any Error Was Harmless
Even if the court's curtailment of
the questioning and ambiguity comment were error, any error was harmless. The court's
curtailment of questioning and ambiguity comment made no difference to the
outcome of the trial under the "harmless
beyond a reasonable doubt" standard articulated in Chapman v.
California (1967) 386 U.S. 18. The
court read the disputed testimony to the jury in open court, allowed Walker to
cross-examine Dolmage at length, and its ambiguity comment was cured by jury
instructions.
Contrary to Walker's assertion, the
court did not create the prejudicial impression that Walker was conducting
unskilled and frivolous cross-examination.
There was no repeated and improper disparaging of Walker in the presence
of the jury. (People v. Sturm, supra, 37 Cal.4th at p. 1240.) The court did not intervene and disallow
questioning inappropriately. (
[holding it was reversible error when the trial court made inappropriate
comments during the entire trial and gave the jury the impression the court
aligned with the prosecution].) Here,
the court only intervened when the questioning became repetitive, unclear or
otherwise violated the ordinary rules of evidence.
Moreover, the court instructed the
jury multiple times that it was the trier of fact and sole judge of witnesses'
credibility. It further instructed the
jury not to assume anything the court said suggested anything about the
facts. "We must assume that jurors
followed their instruction not to 'disbelieve any witness' or to decide the
facts based on anything the court said or did, and to disregard any intimations
or suggestions the court may have made regarding the believability of any
witness." (People v. Harris (2005) 37 Cal.4th 310, 350, referring to CALJIC
No. 17.32.) The instructions
sufficiently conveyed that the jury had the responsibility of determining what
Dolmage meant by his prior statement and if it was inconsistent with his
testimony at trial.
The court's conduct would not
reasonably lead a juror to believe the court was advocating on behalf of the
prosecution or otherwise "abandoned its role as a neutral
arbiter." (Cook, supra, 39 Cal.4th at p. 597.)
Any error in the court's curtailment of cross-examination and ambiguity
comment was harmless beyond a reasonable doubt.
DISPOSITION
The
judgment is affirmed.
McDONALD, J.
WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.
name="_ftn1" title="">[1] All statutory references are to the Penal Code unless
otherwise specified.
name="_ftn2" title="">[2] PERT is a service provided by San Diego County to intervene
and render aid when a person is experiencing a mental health emergency.
