P. v. Zmrzel
Filed 5/1/13 P. v. Zmrzel 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
(Placer)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT JOSEPH ZMRZEL,
Defendant and Appellant.
C066741
(Super. Ct. No. 6282501)
Defendant
Robert Joseph Zmrzel sexually abused his adopted daughter, S., on numerous
occasions over an eight-year period beginning when she was eight years
old. Defendant was convicted by jury of
one count of continuous sexual abuse of a
child (count 1), two counts of oral copulation of a person under 16 years
of age (counts 8 & 9), two counts of committing a lewd or lascivious act on
a child of 15 years (counts 10 & 11), one count of attempting to commit a
lewd or lascivious act on a child of 15 years (count 13 (lesser included)), and
one count of simple battery (count 12
(lesser included)). After dismissing
counts 8 and 9, as those crimes were alleged to have occurred during the time
period covered by count 1, the trial court sentenced defendant to state prison
for an aggregate term of seven years, eight months.
On appeal,
defendant contends: (1) the trial
court prejudicially erred by denying his request for a
in order to assess her competency to testify; (2) the trial court
prejudicially erred by declining defendant’s request to instruct the jury that
the defense expert, Charles L. Scott, M.D., was not allowed to conduct a
psychiatric evaluation of S.; (3) the trial court violated defendant’s
rights under Miranda v. Arizona (1966)
384 U.S. 436 [16 L.Ed.2d 694] (Miranda)
by (a) allowing testimony that defendant had been given an opportunity to
make a statement to police and had done so, and (b) requiring the jury to
be informed, during closing argument,
of the content of this statement; (4) the trial court prejudicially erred
by allowing the jurors to retain, during the remainder of the trial, their
copies of the transcript of a pretext phone call between S. and defendant; and
(5) the cumulative prejudice arising from the foregoing assertions of
error requires reversal.
As we
explain, the trial court was not required to order a psychiatric evaluation in
order to determine whether S. was competent to testify. Nor was the trial court required to instruct
the jury Dr. Scott was not allowed to conduct the requested psychiatric
evaluation. Without deciding whether the
trial court improperly required that the jury be informed of the content of a
statement defendant made during custodial interrogation before he was advised
of his Miranda rights, we conclude
any error was harmless beyond a reasonable doubt. With respect to defendant’s complaint that
the jurors were allowed to retain their copies of the transcript of the pretext
phone call, we also find no prejudice.
Finally, defendant’s claim of cumulative prejudice fails. Accordingly, we affirm the judgment.
Facts
In December
1999, S. and her three brothers were adopted by defendant and his wife,
Laurie. The Zmrzels already had three
children of their own. The family lived
in a two-story house on a 13-acre farm in Newcastle,
a small town between Lincoln and Auburn. At the time of the adoption, S. was nine
years old. S. and her biological
brothers lived with the Zmrzels during the year prior to the adoption becoming
final.
Defendant
began sexually abusing S. soon after she moved into the house. At bedtime, after Laurie went from room to
room saying goodnight to the children, defendant would do the same. Defendant stayed in S.’s room longer than
Laurie. Defendant would sit on the floor
next to S., who was on the bottom bunk of a bunk bed. Because S. was having trouble reading, she
would read to defendant for awhile and tell him about her day. Defendant would then say goodnight to S. and
tell her he loved her. S. would
respond: “I love you too, dad.†Defendant “got mad†if she did not tell him
she loved him.
At some
point during these nightly visits, defendant started to rub S.’s back while she
read. He then started to reach beneath
her underwear and place his hand on her buttocks and vagina. One night, when S. told defendant to stop, he
“got really mad†and “started yelling†at her.
S. also tried to end the touching by moving to the top bunk, wrapping
herself tightly with her blankets, and sleeping as close to the wall as she
could. These obstacles did not prevent
defendant from molesting her. When S.
was 11 years old, she began developing breasts.
Defendant’s bedtime routine continued as usual, except that he also began
touching S.’s breasts.
When S. was
about 12 years old, additional bedrooms were built upstairs. S. moved into one of these bedrooms. Around this time period, defendant started to
kiss S., placing his tongue in her mouth, and kissed her neck, legs, and
feet. He also began penetrating S.’s
vagina with his fingers. When S. was
about 13 or 14 years old, defendant began getting into bed with her. On one occasion, S. again told him to
stop. Defendant “got violently mad†and
“pushed [her] against the wall,†asking:
“[W]hat is wrong with you[?] Do
you think this is something sexual or something[?]†On another occasion, he told S. that “he was
in love with [her]†and “he didn’t love [Laurie].†Defendant continued to kiss and touch her on
a nightly basis.
When S. was
about 14 or 15 years old, defendant began kissing her vagina. Defendant brought condoms into S.’s room, and
would put on a condom and rub his penis against her vagina, saying that “he
didn’t ever want to take the chance of getting [her] pregnant.†Defendant also told S. he was saving money to
run away with her when she turned 18 and showed her a stack of $100 bills he
kept locked in an “army box.â€
Eventually, defendant bought a safe and S. believed he transferred the
money to the safe.
The abuse
ended when S. turned 16. One afternoon,
defendant came into her bedroom while Laurie and most of the other children
were at jujitsu practice. Two of the
children were home, but not in the house.
As S. explained the encounter with defendant: “I tried to leave, and he got mad and he
grabbed my arm. And I told him that I
was sick of keeping his dirty little secrets and I pulled away from him. And I ran down the stairs and he ran after
me.†S. then picked up a rocking chair
that was in the living room, threw the chair at defendant, and ran into the
bathroom, blocking the door with a towel drawer. As defendant yelled that he was going to
break the door down, S. found a bottle of Nix head lice treatment under the
sink and considered drinking it.
Defendant’s voice then went from “screaming and yelling†to “nice,†as
if he were “trying to calm [her] down.â€
S. put the bottle of Nix away, waited for defendant to leave the house,
and then ran away to a friend’s house.
The next
day, Laurie picked S. up at her friend’s house and drove to her
great-grandmother’s house so that S. could have another night away from home to
calm down. On the way, S. threatened to
“keep running away.†Laurie
responded: “What do we have to do to
make sure that doesn’t happen?†S. then
told Laurie she “did not want [defendant] coming into [her] room anymore.†S. did not reveal what defendant had done to
her. Laurie did not ask. Laurie then had a conversation with defendant
and told him she did not want him spending time alone with S. in her
bedroom. Defendant agreed. S. returned to the Zmrzel house. Defendant stopped coming into her room at
night.
A couple
days later, defendant brought S. down to the barn and showed her a gun that was
in his truck. He told her that when she
ran away, “his first response was to kill himself.†Defendant and S. then went to his workshop
and sat in her brother’s truck.
Defendant told S. he loved her, and she was “everything he ever
wanted.†He also told her he would not
be coming into her bedroom anymore, but if she changed her mind about wanting
to be with him, he would still be saving money for them to run away together
when she turned 18. During this
conversation, defendant had his arm around S. and put his hand inside her shirt. This was the last time defendant molested his
adopted daughter.
About a
month before S. turned 18, defendant found out she had a boyfriend. When S. returned home from spending the
weekend at her Aunt K.’s house, she discovered one of her goats had died over
the weekend. This particular goat had
been sick, so the death was not a surprise.
The location and condition of the body were. The goat was lying in the pasture with the
back legs spread open and the testicles removed. It appeared as though the testicles had been
“torn†from the body. S. told Laurie
about the goat and said that if a wild animal had killed the goat, it would
have taken more than the goat’s testicles.
Laurie responded: “Maybe someone
did that.†When S. asked who would have
done such a thing, Laurie answered: “Dad
was pretty mad when he found out about your boyfriend yesterday.†Laurie then laughed and said: “[I]t’s
probably what he wanted to do to your boyfriend.â€
S. went
back to her Aunt K.’s house. The
following weekend, she told her aunt what defendant had done to her. A couple days later, S. reported defendant’s
crimes to Detective Michael Davis at the Placer County Sheriff’s
Department. S. also made a pretext phone
call to defendant. During the call, S.
told defendant it was only six days until she turned 18 and asked where he
stood with respect to running away together.
Defendant responded: “You want to
go with me? Is that what you’re
saying?†He also cautioned: “There’s no turning back if you do it.†When S. said that she did, defendant insisted
they wait until she turned 18 and asked:
“What, what happened with you and that other guy?†S. answered:
“Nothing.†Defendant
responded: “All right. You know I love you. You know that.†He then asked: “And you don’t fuckin’ dump me in a month or
a week or something like that?†S. asked
if defendant would marry her. Defendant
answered: “Yeah, I would. Don’t, don’t, don’t be telling anybody this
shit either.â€
S. then
said she was “confused†and elaborated:
“It’s like, seriously, you are the only person that’s ever loved
me. I mean I don’t, I don’t understand
why you would have touched me and tried to have sex with me and all that stuff
if, if you didn’t. I, I don’t think that
you would do that.†Defendant
responded: “I wouldn’t. I would never do that. I’m telling you the truth.†S. asked:
“Is that why you touched me then and, and wanted to have sex with me
really?†Defendant answered: “Because I love you. Because I wanted you, and it was a confused
fucking mess that the alternative is a bullet in my head. That’s the alternative.†S. then asked whether he still wanted her
“even like after two years now of like not even doing anything.†Defendant answered: “I don’t give a fuck about that if we ever do
anything again. We don’t ever have to do
anything again. I’m dead serious. I don’t need to do that. You don’t want to do that, we don’t do that
ever.â€
S. then
asked defendant why he touched her when she was eight years old. Defendant answered: “No, I didn’t. Not, I didn’t touch you like that when you
were [eight].†After S. told him she
remembered him putting his hands down her pants when she was eight years old,
defendant responded: “Yeah, well that
was stupid.†And when she asked him why
he touched her like that, defendant answered:
“Because I loved you. I still
love you.†S. then asked whether
defendant loved her more than Laurie, to which he replied: “Look I’ll give everything up for you. If that’s what you, if you’re serious. If you’re just testing me, don’t, don’t do it
just to test me because I’ll do it.†S.
responded: “So then it’s me, it’s not
Mom?†Defendant answered: “Yeah, it’s you. It’s always been you. It’s you.â€
S. then asked him to confirm he spent time in her room and touched her
because he loved her. Defendant
answered: “Yeah†and “That’s it. That’s it.â€
Later in
the call, S. asked whether the “oral sex†was also defendant’s way of
expressing his love. Defendant
answered: “Yeah, I guess.†He then admitted what he did was wrong and
said: “When you care about somebody like
that, I know I fucked up, okay? It’ll be
different from now on, though. It’ll
just be you and I.†And when S. said, “I
was just a kid, Dad,†defendant responded:
“I know. I’m sorry about
that. Now it’s just you and I. Forget about that. I just want you. I don’t want anything, anything. Just, just want to be with you. Just want to talk to you; just want to do
things with you.†Defendant denied
touching any of the other children.
Detective
Davis arrested defendant later that day.
The house was searched.
Defendant’s safe did not contain any money, but an “army box†in the
garage contained two large stacks of $100 bills, totaling $39,000. Laurie was also interviewed by Detective
Davis. After listening to the pretext
phone call, Laurie confronted defendant with what she had heard during the
call. Defendant denied being in love
with S. and denied touching her before she was 16 years old, but admitted to
three instances of oral copulation that he claimed happened when she was 17
years old.
Discussion
I
Request for a
Psychiatric Evaluation
Defendant
contends the trial court prejudicially erred by denying his request for an
order compelling S. to submit to a psychiatric evaluation in order to assess
her competency to testify. He is
mistaken.
A. Legal
Principles
“Except as
otherwise provided by statute, every person, irrespective of age, is qualified
to be a witness and no person is disqualified to testify to any matter.†(Evid. Code, § 700.) A person is disqualified to be a witness only
if he or she is “[i]ncapable of expressing himself or herself concerning the
matter so as to be understood,†or is “[i]ncapable of understanding the duty of
a witness to tell the truth.†(Evid.
Code, § 701, subd. (a).) “Capacity to
communicate, or to understand the duty of truthful testimony, is a preliminary
fact to be determined exclusively by the court, the burden of proof is on the
party who objects to the proffered witness, and a trial court’s determination
will be upheld in the absence of a clear abuse of discretion.†(People
v. Anderson (2001) 25 Cal.4th 543, 573 (Anderson).)
“Even if a
witness is not entirely disqualified for incapacity to communicate or to
understand the duty to testify truthfully, his or her testimony on a
opinion testimony) is inadmissible ‘unless [the witness] has
personal knowledge must be shown before the witness may testify concerning the
matter.’ [Citation.] The testimony must be excluded unless ‘there
is evidence sufficient to sustain a
finding’ that the witness has such personal knowledge.†(Anderson,
supra, 25 Cal.4th at p. 573; see
also Evid. Code, § 702, subd. (a).)
Thus, “a
witness must be allowed to testify unless he or she (1) cannot communicate
intelligibly, (2) cannot understand the duty of truthful testimony, or
(3) lacks personal knowledge of the events to be recounted. But while the first two questions are
determined entirely by the court, its role with respect to the issue of
personal knowledge is more limited. A
witness challenged for lack of personal knowledge must nonetheless be allowed to testify if there is evidence from which a rational trier of fact could find
that the witness accurately perceived and recollected the testimonial
events. Once that threshold is passed,
it is for the jury to decide whether the witness’s perceptions and
recollections are credible.†(
B. Additional
Background
Prior to
trial, defendant sought an order compelling S. to submit to a psychiatric
evaluation for purposes of assessing her competency to testify. The motion was supported by a declaration
submitted by Charles L. Scott, M.D., which stated that a review of certain
records made available to the defense indicated (1) S. “was a likely
recipient of pathogenic (harmful) care during her early childhood,â€
(2) “[s]uch pathogenic care is an important risk factor for the
development of Reactive Attachment Disorder,†and (3) “a teenager or young
adult suffering Reactive Attachment Disorder from early childhood presents
concerns in relation to [his or her] ability to accurately relate factual
events.â€
Dr. Scott
explained that “Reactive Attachment Disorder is characterized by markedly
disturbed and developmentally inappropriate relatedness in teenage and adult
years due to pathogenic care beginning before the age of five. Pathogenic care, as described by [the
Diagnostic and Statistical Manual of Mental Disorders] may be evidenced by at
least one of the following: [¶] (1) Persistent disregard of the child’s
basic emotional needs for comfort, stimulation, and affection; [¶]
(2) Persistent disregard of the child’s basic physical needs; or
[¶] (3) Repeated changes of primary caregiver that prevent formation of
stable attachments (e.g., frequent changes in foster care).â€
The records
reviewed by Dr. Scott indicated S. was born with methamphetamine in her
blood. Her birth mother was incarcerated
for four months during the pregnancy and also drank alcohol and used other
drugs while pregnant with S. When S. was
about three months old, she was placed in protective custody while both of her
birth parents were incarcerated. At the
age of two years, S. was living with her birth father and his girlfriend. S. was found several blocks from home,
wandering the neighborhood with her brother, who was three years old, and the
girlfriend’s son, who was four years old.
The children were dirty and had head lice. The girlfriend’s son was carrying a dagger
and a lighter. The children were taken
into protective custody after the house they were living in was “declared a
dangerous building.†While at the
emergency shelter, S. reported “her dad burned her feet because he was mad at
her.†She had scars on the top of each
of her big toes. S. also reported that
“her daddy went to bed with her and that he beats her, and indicated that she
had been touched on her vagina and knee with a knife.†S. was interviewed by a psychologist at the
shelter, who noted S. exhibited “unsocialized feral-like behaviors,†including
eating off the floor and climbing on furniture, and described her as “starved
for affection.â€
S. and her
older brother were briefly placed in a foster home, and then returned to their
birth mother. S. later told a different
mental health professional “she was forced to consume beer at age [three to
four] and was raped at age [five] by her mother’s ‘druggie friend.’ †By this time, S.’s two younger brothers had
been born. S.’s birth mother was again
arrested for drugs when S. was six years old.
The house was dirty. The children
had head lice. Shortly thereafter, S.
and her brothers were placed in a foster home, where they lived for about two
years until moving into the Zmrzel house.
Records
from Koinonia Foster Homes, from June and August of 1998, also express a
concern that S. was “ ‘demonstrating a pattern which is quite typical of
an attachment disordered child,’ †including “[d]eviousness and lying,â€
“[t]heft followed by disclaimers of responsibility,†“[i]nappropriate sexual
talk,†“[m]inimization or denial of prior sexual victimization,†“[f]abrication
of stories not based upon reality,†“[l]ack of emotional response when informed
[she] would be removed from her mother and offered for adoption,†and
“[d]ifficulty in relating to surrogate mothers due to a love-hate relationship
with her own mother.†Laurie also
reported in August 1999 that S. “would seek attention inappropriately, at times
from strangers,†and “would discuss her life freely with people she barely
knew.†According to Dr. Scott,
these reported behaviors are consistent with Reactive Attachment Disorder
caused by the pathogenic care S. received early in life. He elaborated: “Persons such as [S.] who suffer from
Reactive Attachment Disorder often fail to develop a conscience, do not feel
empathy and having genuine affection for other people is beyond their
reach. Ability to implement an oath to
tell the truth, for example, in court proceedings may be significantly
impaired.â€
In addition
to Reactive Attachment Disorder, Dr. Scott expressed concern over a
Dissociative Experiences Scale (DES) questionnaire S. completed in July
2009. As Dr. Scott explained,
“[t]he DES questionnaire is a screening tool for Dissociative Identity Disorder
(DID) that includes 28 questions [asking] the individual about various
experiences they may have experienced in their life. In addition, the person is asked to what
degree (percentage of time) the experience described in the question applies to
him or her. Many of the symptoms
reported as part of the DES are symptoms of a variety of psychiatric disorders
to include Schizophrenia, Schizoaffective Disorder, Bipolar Disorder,
Posttraumatic Stress Disorder (PTSD), Dissociative Identi[t]y Disorder,
Substance Abuse Disorder, and/or an underlying medical illness.â€
According
to Dr. Scott, S.’s answers to certain questions “raise serious concerns
regarding her ability to accurately observe, recall, and relate factual
events. In particular, she acknowledges
that over 50% of the time she is not sure if things really happened to her or
if she just dreamed them up.
Furthermore, her ability to testify requires that [she] recall that she
is under oath to tell the truth and be attentive to the questions that are
asked of her. Her answer that 40% of the
time she finds that she is ‘listening to someone talk and does not realize or
hear part of all of what is said’ raises serious concern regarding her ability
to focus on questions asked of her at trial and respond as accurately as
possible. Furthermore, [S.] responds that
60% of the time she hears voices inside of her head that tell her what to do or
comment on things that they are doing.
Although she writes that she believes these ‘voices’ are ‘her own,’ she
also notes that these voices sometimes conflict with each other. [S.]’s description of experiencing ‘voices’
is a symptom that is also characteristic of auditory hallucinations noted in
individuals suffering from Schizophrenia and other psychotic illnesses. Persons suffering from such psychotic
disorders often lose touch with reality and also experience beliefs in things
or experiences that are not true (delusions).â€
Dr. Scott
concluded: “[T]he records substantiate
that [S.] met criteria for Reactive Attachment Disorder since early
childhood. In addition, more recent
records note the presence of marked dissociative symptoms that could
significantly impact her ability to accurately observe, recall, and relate
factual events. Her symptoms of having
amnesia for important events, for having impairment in listening to someone
talk, for being unsure if her recall of experiences actually happened or were
‘dreamed up,’ or for having the experience of hearing ‘voices’ inside her head
could be secondary to a wide variety of psychotic thought disorders or
dissociative disorders. A more
definitive diagnosis could be further supported by a psychiatric evaluation of
the identified victim.â€
The trial
court balanced the right of the defendant to receive a
victim to be free from an unjustified intrusion into her privacy and denied the
request for a psychiatric evaluation.
The trial court explained that Penal Code section 1112 (hereafter §
1112) prohibited it from ordering a psychiatric examination for purposes of
assessing S.’s credibility. Noting it
possessed the authority to order such an examination on the issue of
competency, the trial court stated that because competency is a matter for the
court to decide, even if an examination was ordered, Dr. Scott’s findings would
not be given to the jury to assist in assessing S.’s credibility. The trial court explained that the “really
intrusive process†of ordering S. to submit to a psychiatric examination was
not required to enable it to rule on her competency to testify. Instead, S. would be allowed to testify, and
if the trial court concluded based on her testimony that she was not competent,
it would “deal with that as a matter of how the evidence stands.†The trial court also noted there was a
“voluminous†record of S.’s background and mental health history, which had
been released to defendant.
Following
the jury’s verdict, defendant moved for a new trial. The motion was based, in part, on the trial
court’s failure to order S. to submit to a psychiatric examination. In denying the motion, the trial court
stated: “I found as a trier of fact
absolutely no basis to challenge the capacity or competency of the witness to
testify. Yes, she was very emotional. Yes, she was confused as to certain facts,
but there is nothing in my admittedly lay opinion that rose to a level of
concern by me because of her psychiatric status she either lacked capacity or
competency to give testimony.â€
C. Analysis
A trial
court has “broad discretion†to refuse a requested psychiatric examination for
the purpose of assessing a victim’s competency to testify. (Anderson,
supra, 25 Cal.4th at p. 576;
264-265.) The trial court did not abuse
its discretion in declining to order such an examination in this case.
Section
1112 prohibits the trial court from ordering “any prosecuting witness,
complaining witness, or any other witness, or victim in any sexual assault
prosecution to submit to a psychiatric or psychological examination for the
purpose of assessing his or her credibility.â€
trial court from ordering such an examination for the purpose of assessing a
complaining witness’s competency to testify.
(Anderson,
Cal.App.3d 660, 663, fn. 1.)
In
possesses no sua sponte duty to order a psychiatric examination to assess
testimonial competency. (
which a trial court may disqualify a witness as incompetent, or exclude the
witness’s testimony for lack of personal knowledge, are exceptionally
narrow. The witness must be allowed to
testify unless he or she cannot communicate intelligibly or understand the duty
to tell the truth, or unless no rational jury could believe the witness
actually saw the events he or she claims to have seen. In many cases, psychiatric testimony, itself
‘inherently [subject to] expert debate’ [citation], would be less useful on
these issues than the court’s own evaluation of the witness’s demeanor and
responses in light of all the evidence.
[Citation.]†(
The court
further explained that “serious privacy interests, as well as the policy of encouraging
witnesses to come forward and testify voluntarily, would be undermined if
courts were compelled to order psychiatric evaluations of potential witnesses
as a condition of their testimony.
Moreover, Ballard itself noted
the many ‘dangers’ of using psychiatric evidence to impeach credibility; ‘the
psychiatrist’s testimony may not be relevant; the techniques used and theories
advanced may not be generally accepted; the psychiatrist may not be in any
better position to evaluate credibility than the juror; difficulties may arise
in communication between the psychiatrist and the jury; too much reliance may
be placed upon the testimony of the psychiatrist; partisan psychiatrists may
cloud rather than clarify issues; the testimony may be distracting, time-consuming
and costly . . . .’
[Citations.] Many, if not all, of
these concerns are also pertinent to a court determination of competence. [Citation.]â€
(Anderson,
Here, the
trial court appropriately took into consideration S.’s privacy interests,
balanced these interests against the right of defendant to receive a fair
trial, and concluded that an additional psychiatric examination was not
necessary in order to assess whether she was competent to testify. (See, e.g., People v. Browning (1980) 108 Cal.App.3d 117, 125 [shooting victim
possessed a constitutional right against an unwarranted intrusion into his body
for purposes of extracting bullets for forensic examination; this right must be
balanced against the defendant’s constitutional right to receive a fair
trial].)
Defendant
complains the trial court appeared to rely on article I, section 28 of the
California Constitution (The Victims’ Bill of Rights) as the basis for the
privacy interests it balanced against defendant’s right to a fair trial. As one of the many listed victim’s rights,
this constitutional provision states that a victim shall “be treated with
fairness and respect for his or her privacy and dignity, and to be free from
intimidation, harassment, and abuse, throughout the criminal or juvenile
justice process.†(Art. I, § 28,
subd. (b)(1).) In addition, in
interests†as one justification for declining to impose a sua sponte duty to order
a psychiatric examination. (
involves an invasion into “ ‘personal dignity and privacy’ â€].) We see no reason to conclude that the
victim’s privacy interests cannot be considered by the trial court in ruling on
a request for a psychiatric examination.
Defendant
also suggests the trial court erroneously believed section 1112 limited its
authority to order a psychiatric examination for purposes of assessing
competency. Not so. The trial court clearly acknowledged that
section 1112 “is focused on the issue of credibility†and neither stated nor
implied that this statutory provision prevented it from ordering an examination
for purposes of assessing competency.
Moreover,
we do not believe a psychiatric examination would have changed the trial
court’s conclusion that S. was competent to testify. Again, the trial court was required to allow
her testimony unless it determined that she could not communicate intelligibly
or understand the duty to tell the truth, or unless no rational jury could
believe she possessed personal knowledge of the events that transpired between
her and defendant. (See
There was no claim that S. lacked the ability to communicate
intelligibly. With respect to her
ability to understand the duty to tell the truth, Dr. Scott opined that
Reactive Attachment Disorder “may†significantly impair her ability to testify
truthfully, and the trial court possessed the “voluminous†record relied upon
by Dr. Scott in forming this opinion.
However, during S.’s testimony, she stated she understood the duty to
testify truthfully and would do so. The
trial court was entitled to believe her.
Nor do we believe
that a psychiatric evaluation would have changed the trial court’s implied
finding that a rational jury could believe S. possessed personal knowledge of
the sexual abuse she suffered at the hands of defendant. Again, the trial court possessed Dr. Scott’s
declaration and all of the records he relied upon in concluding that S.’s
ability to accurately perceive and recall events may be impaired, including the
DES questionnaire. Nevertheless, many of
S.’s allegations were corroborated by defendant himself in the pretext phone
call and in his subsequent conversation with Laurie. Based on this corroboration, the trial court
was justified in concluding a reasonable jury could conclude S. accurately
perceived and recollected the abuse.
“Once that threshold is passed, it is for the jury to decide whether the
witness’s perceptions and recollections are credible.†(Anderson,
supra, 25 Cal.4th at p. 574; see also
People v. Dennis,
In this
regard, Anderson,
instructive. There, in order to prove
the defendant had engaged in violent criminal conduct other than the capital
crimes with which he was charged, the People introduced evidence that he had
previously murdered Mackey, i.e., Baros’s testimony that she witnessed the
murder. The defendant presented evidence
that Baros believed certain “imaginary†people existed, that an imagined son
named Anthony was present during the murder, that she remembered many events
through dreams, and that the defendant could communicate with her through
telepathy. (Id. at p. 570.) Nonetheless,
the trial court allowed Baros to testify, explaining that because she gave “a
coherent account [of the murder], many details of which were corroborated by
independent evidence and would not likely be known by one who was not present,â€
a rational trier of fact could conclude she was present and accurately
perceived and recollected what she had seen.
(Id. at p. 571.)
Our Supreme
Court held that “the trial court correctly allowed Baros to testify, and to
permit the jury to determine from all the relevant evidence whether her
perceptions and memories were true.†(
The court explained, “the trial court noted the many indicia by which a rational
trier of fact could conclude that Baros, despite her specific delusions, was
actually present during the Mackey robbery and murder, and had accurately
perceived and recollected those events.
Aside from her insistence that her son Anthony was present, Baros
presented a plausible account of the circumstances of Mackey’s murder. [Citation.]
Baros’s description included many details, unlikely to be known by a
person not present, that were corroborated by independent evidence.†(Id.
at p. 574.) The court also pointed out
that extensive evidence was presented to the jury indicating Anthony was a
delusion and certain other individuals were also imaginary. The jury also heard Baros’s disclosures
regarding dreams and telepathy.
Accordingly, the jury “had ample basis upon which to judge the
reliability of Baros’s observations.†(
357 [while Pridgon’s testimony “consisted of inconsistencies, incoherent
responses, and possible hallucinations, delusions and confabulations,†he
“ ‘presented a plausible account of the circumstances of [the victim’s]
murder’ â€].)
Similarly,
here, S. provided a plausible account of the sexual abuse defendant inflicted
upon her during the time she lived at his house. This account was corroborated by both
physical evidence and defendant’s own statements made during the pretext phone
call. S. testified the sexual abuse
began when she was eight years old as defendant spent extra time in her room at
bedtime. During the pretext call,
defendant initially denied touching her when she was that young. However, when S. said she remembered him
putting his hands down her pants at that age, defendant responded: “Yeah, well that was stupid.†And when she asked him why he touched her
like that, defendant answered: “Because
I loved you. I still love you.†S. then asked him to confirm that he spent
time in her room and touched her because he loved her. Defendant said that was true.
S. also
testified that defendant kissed her vagina, brought condoms up to her bedroom,
and rubbed his penis against her vagina when she was around 14 or 15 years
old. During the pretext call, she told
defendant she did not understand why he “would have touched [her] and tried to
have sex with [her]†if he did not love her.
Defendant agreed and explained in his own words why he did those
things: “Because I love you. Because I wanted you, and it was a confused
fucking mess that the alternative is a bullet in my head.†Later in the call, S. asked whether the “oral
sex†was also defendant’s way of expressing his love. Defendant answered: “Yeah, I guess.†He then admitted what he did was wrong and
said: “When you care about somebody like
that, I know I fucked up, okay? It’ll be
different from now on, though. It’ll
just be you and I.†And when S. said, “I
was just a kid, Dad,†defendant responded:
“I know. I’m sorry about
that.â€
S. further
testified that, when she was about 15 years old, defendant told her he wanted
her to run away with him when she turned 18 and he showed her a stack of $100
bills locked in an army box which was set aside for this purpose. During the pretext call, defendant confirmed
he wanted to run away with S. when she turned 18. And $39,000 in $100 bills was found in an
army box in the garage. S. testified
that the abuse ended when she turned 16.
This was corroborated by the portion of the pretext call in which she
asked whether defendant still wanted her “even like after two years now of like
not even doing anything.†Defendant
answered: “I don’t give a fuck about
that if we ever do anything again. We
don’t ever have to do anything again.â€
S. also testified about the incident involving the goat and defendant’s
discovery that she was dating someone.
During the pretext call, defendant asked “what happened with [her] and
that other guy†and was concerned she would “dump [him] in a month or a week or
something†if they did run away together.
We conclude that a rational jury could have found that S. possessed personal
knowledge of the abuse.
Nevertheless,
defendant asserts, “[a]t the very least, the [trial] court should have held a
competency hearing and heard testimony from [S.] and Dr. Scott. The prosecution case depended entirely on the
testimony of [S.], and the [trial] court had a duty to resolve the question of
her competency. It failed to do so, and
[defendant’s] convictions rest upon the testimony of a single witness of
doubtful competency.†The issue of
whether the trial court erred by failing to hold a competency hearing is
different from the issue of whether the trial court erred by declining
defendant’s request to order a psychiatric examination. The point is forfeited by defendant’s failure
to raise it “under a separate heading or subheading summarizing the point,†and
by the failure to provide any “argument†or “citation of authority†on the
issue. (Cal. Rules of Court, rule
8.204(a)(1)(B).) In any event, we
disagree. The trial court was able to
observe S.’s testimony and never expressed a doubt concerning her
competency. While, prior to S.’s
testimony, she ran out of the courthouse and a victim’s advocate talked to her
over the lunch break before she testified, the trial court was made aware of
this incident and stated: “It is
certainly subject to fair questioning by either [side], but I don’t feel there
is a need at this point as a preliminary matter. She appears to be oriented, calm, testifying
clearly, responsive to the questions. I
don’t see a need to go into that issue right now.†The record supports this assessment.
Finally,
defendant points out that “[a] conviction dependent upon the testimony of an
incompetent witness renders the trial fundamentally unfair and violates the
defendant’s due process rights under the state and federal
[C]onstitutions. [Citations.] Such a conviction cannot stand.†He also reviews the facts of two cases,
837, 844, in which the Court of Appeal held it was error to admit into evidence
at trial the preliminary hearing testimony of a witness who was “delusional and
unable to distinguish truth from lies at the time of the
Cal.App.4th 822, 833, in which the Court of Appeal issued a writ of prohibition
compelling the trial court to dismiss one count of an information charging the
defendant with lewd and lascivious conduct with a child, holding that while the
“otherwise incompetent†out-of-court statement of the three-year-old
complaining witness would have been admissible under Evidence Code section 1228
for the purpose of establishing the elements of the crime in order to admit as
evidence the defendant’s confession, there was no confession to admit into
evidence. However, while defendant
provides the foregoing “citation of authority,†he does not provide any
“argument†that S. was in fact incompetent to testify and that his due process
rights were therefore infringed by the admission of her testimony. (Cal. Rules of Court, rule
8.204(a)(1)(B).) In any event, as we
have explained, the trial court properly found that S. possessed the ability to
communicate intelligibly and understood the duty of truthful testimony, and
that a rational trier of fact could find she accurately perceived and
recollected the abuse inflicted by defendant.
Accordingly, this contention also fails.
The trial
court did not abuse its discretion by declining to order S. to submit to a
psychiatric examination before allowing her to testify or by failing to hold a
formal hearing to ensure such competency.
Nor were defendant’s due process rights violated by the trial court’s
decision to allow S.’s testimony.
II
Requested Defense
Instruction
Defendant
also claims the trial court prejudicially erred by declining his request to
instruct the jury that Dr. Scott was not allowed to conduct a psychiatric
examination of S. We disagree.
At the same
time defendant requested an order compelling S. to submit to a psychiatric
examination, defendant also argued that “[s]hould the Court determine that the
examination requested by Dr. Scott . . . is barred by . . . section
1112, [defendant’s] right to due process and a fair trial under the Fourteenth
Amendment to the United States Constitution mandates an offsetting jury
instruction.†The requested instruction
provided: “You have heard testimony from
Charles L. Scott, M.D., an expert witness.
Prior to commencement of trial Dr. Scott requested permission from
the Court to conduct a psychiatric diagnostic interview of the alleged victim
in this matter. Dr. Scott also
requested permission to conduct psychological testing if that became
appropriate. The requests of Dr. Scott
were denied by the Court. California law
prohibits the participation of an alleged victim in the requested procedures in
cases such as this one.â€
The trial
court declined to give the requested instruction. Explaining it denied defendant’s request for
a psychiatric examination in order to protect S.’s rights, the trial court
clarified that the fact Dr. Scott was not allowed to conduct such an
examination could not be used by the prosecution “as a sword against the other
side.†Thus, the prosecutor would not be
allowed “to ask of Doctor Scott or argue in front of the jury, [‘]well, he
didn’t even look at her, he didn’t meet her,[’] when clearly there has been a
request, a legitimate good faith request for that to happen.†The trial court continued, “if there is a
suggestion to the jury that Doctor Scott’s opinion should be discounted because
he did not personally interview her, then I will consider an instruction along
the lines that the defense has tendered here. . . . [¶] . . . No
instruction to the jury, unless somehow it is put into play by the
prosecution.†The prosecutor did not
comment on the lack of a personal examination.
Accordingly, the requested instruction was not given.
Defendant
argues: “The instruction was necessary
to ensure that the jury did not discount or devalue Dr. Scott’s opinion on
a false basis, i.e., that he could have interviewed [S.] but chose not to. It was clear to the jury that there had been
no interview; the danger was that they would conclude that the reason
Dr. Scott had chosen not to interview her was either because he feared an
interview would contradict his [Reactive Attachment Disorder] diagnosis or
because he was less than competent. The
instruction would have quickly and easily ended any such prejudicial
speculation.†The notion that the jury
speculated as to why Dr. Scott did not personally examine S. is itself
speculation. As mentioned, the
prosecutor was not allowed to bring up the fact that no such examination took
place.
More
importantly, a trial court “may properly refuse an instruction offered by the
defendant if it incorrectly states the law, is argumentative, duplicative, or
potentially confusing [citation], or if it is not supported by substantial
evidence [citation].†(
see also People v. Earp (1999) 20
Cal.4th 826, 886 [a pinpoint instruction is properly rejected as argumentative
if it invites the jury to draw an inference favorable to one of the parties
from specified items of evidence].)
Here, the proposed instruction misstates the law by stating that
“California law prohibits the participation of an alleged victim in the
requested procedures in cases such as this one.†As we have explained, while California law
does not allow the trial court to order a psychiatric examination for the
purpose of assessing credibility (§ 1112), such an examination is allowed for
the purpose of assessing competency to testify if the trial court determines,
in its discretion, that the examination is warranted. However, even if the instruction was modified
to more accurately state the law, it would still be argumentative. Had the prosecution requested an instruction
pointing to the specific fact that Dr. Scott did not personally examine
S., thereby inviting the jury to draw the inference that his testimony should
be discredited, the instruction would be properly refused as
argumentative. So too with respect to
the proposed defense instruction pointing to the specific fact that
Dr. Scott asked to examine S. but was prevented from doing so.
Even if the
proposed instruction should have been given, there is no conceivable
prejudice. Assuming for the sake of
argument that the jury discounted Dr. Scott’s testimony because he did not
personally examine S., being informed as to the reason for the lack of a
personal examination would not have changed the fact that such an examination
did not take place. In other words,
while the proposed instruction undoubtedly sought to add credibility to Dr.
Scott’s testimony by informing the jury he tried to conduct a personal examination,
the reason the examination did not occur is irrelevant to the jury’s assessment
of the believability of his opinion.
CALCRIM No. 332 correctly instructed the jury: “In evaluating the believability of an expert
witness, . . . consider the expert’s knowledge, skill, experience, training, and
education, the reasons the expert gave for any opinion, and
relied in reaching that opinion.â€
(Italics added.) Nowhere in this
instruction is the jury directed to consider either the reason the expert was given facts or information relied upon in
reaching his or her opinion, or the
reason the expert was prevented from receiving facts or information that
could have been useful in reaching such an opinion. Moreover, as mentioned, S.’s testimony was
corroborated by defendant himself in the pretext phone call and in his
subsequent conversation with Laurie.
Based on this corroboration, we conclude there is no reasonable
probability the jury would have disbelieved S.’s testimony had they been
informed Dr. Scott requested to conduct a psychiatric evaluation of her,
but was prevented from doing so.
The trial
court was not required to provide the requested instruction. Nor was defendant prejudiced by the absence
of this instruction.
III
Defendant’s
Statement to Police
Defendant
contends the trial court violated his Miranda
rights by (1) allowing testimony that he was given an opportunity to make
a statement to police and had done so, and (2) requiring the jury to be
informed, during closing argument, of the content of this statement. We conclude any error was harmless beyond a
reasonable doubt.
A. Additional
Background
Following
the pretext phone call, detectives with the Placer County Sheriff’s Department
drove to defendant’s work site.
Detective Michael Davis made contact with defendant, introduced himself,
and informed defendant he “had spoken with his daughter [S.]†and “wanted to
talk to him.†Defendant responded: “Well, let’s go then.†Detective Davis then placed defendant in
handcuffs, informed him he was under arrest, and put him in the back of the
police car. While in the car, prior to
being given Miranda warnings,
defendant was asked multiple times whether he wanted to make a statement. Eventually, defendant responded: “[s]hut the fuck up.â€
Prior to
trial, the People moved to admit this statement into evidence. Defendant opposed the motion, arguing the
statement was elicited in violation of his Miranda
rights and should be excluded. Ruling
that the second statement, “[s]hut the fuck up,†was inadmissible, the trial
court explained: “The transcript
reflects that the officers asked several times do you want to give a statement,
do you want to give a statement. They
kept pressing him. All this was before
the Miranda rights were given.â€
Detective
Davis testified at trial and did not mention the excluded statement. On cross-examination, defense counsel
asked: “You didn’t take [defendant] to
some safe place off the freeway to talk first?â€
Detective Davis answered: “Well,
the immediate lane where we were was closed, so I tried talking to him. I don’t know if I can talk about that.†Prior to redirect, the prosecutor requested a
bench conference and argued this line of questioning implied that Detective
Davis “bungled the investigation.†Defense counsel again objected to the
admission of any statements defendant made “after he was handcuffed because he
was not advised of his rights.â€
After
reviewing the transcript, the trial court stated: “The impression from those questions leaves
me with the suggestion that when the police arrived, they simply cuffed him up,
carted him off to jail without asking him any questions. That is the clear import of what has been
asked here, and that would have to be the reasonable conclusion drawn by the jury.†Nevertheless, the trial court maintained its
position that the “[s]hut the fuck up†statement was inadmissible under
The court elaborated: “I also do
feel, [defense counsel], you did open the area.
The clear tenor of your cross-examination has been to the effect that
the investigation was somewhat superficial, went directly from the pretext call
right into action, no investigation or minimal investigation. And certainly the comments that were elicited
that I stated verbatim on the record previously indicate to me that it
telegraphs to the jury that basically the police swooped in, picked him up and
moved him to the jail without giving him an opportunity to explain. That is the clear tenor of it. That to me is inappropriate. [¶] I
am not prepared to go to the point where the full statement however comes
in. I am going to permit the district
attorney to ask: Did you give him an
opportunity to give a statement and did he give one. Yes.â€
In
accordance with the trial court’s ruling, the prosecutor asked Detective Davis
whether he gave defendant an opportunity to make a statement. Detective Davis answered: “Yes.â€
Defense counsel then asked whether defendant in fact made a statement
when given the opportunity. Detective
Davis answered: “Yes.â€
During
closing argument, defense counsel
stated: “And we know from Detective
Davis that when they talked, [defendant] made a statement to him. If that statement had been an admission or a
confession in any way, shape or form about any of the allegations, you would
have heard it. You would have heard
it. You didn’t because it wasn’t.†A short time later, during a brief recess,
the prosecutor objected to defense counsel’s argument that defendant did not
provide an admission or confession when he spoke to Detective Davis. The trial court concluded this line of
argument violated the “spirit†of its ruling that defendant’s statement to
Detective Davis was excluded because of the Miranda
violation and ordered the statement read to the jury when defense counsel
resumed his closing argument. Defense
counsel expressed disagreement with the trial court’s ruling, but agreed to
read the transcript to the jury.
The jury
was then informed that defendant told Detective Davis to “[s]hut the fuck upâ€
when pressed for a statement.
B. Analysis
Defendant
first argues the trial court should not have allowed Detective Davis to testify
that defendant was given an opportunity to make a statement and had done so,
noting he “did not make a ‘statement’ in the commonly accepted understanding of
the word,†i.e., “a confession†or “an ‘incriminating response.’ †Accordingly, argues defendant, “the jury
would, understandably, think that [he] had made a statement that incriminated
him[self].†We disagree for two
reasons. First, defendant’s argument
ignores the fact it was his trial counsel who initiated this line of testimony
concerning whether Detective Davis tried to talk to him. And after the prosecutor was allowed to
elicit from Detective Davis that he did give defendant an opportunity to make a
statement, defense counsel was the one who followed up by asking whether
defendant in fact gave a statement.
Thus, defendant elicited the very testimony with which he now takes
issue. (See People v. Steele (2002) 27 Cal.4th 1230, 1247-1248.) Second, we do not accept defendant’s premise
that the jury would necessarily have taken the word “statement†to mean
“confession†or “incriminating response.â€
In common usage, the word “statement†means “something stated,†e.g., “a
single declaration or remark†or “a report of facts or opinions.†(Merriam-Webster’s Collegiate Dict. (11th ed.
2006) p. 1219, col. 1.) Moreover,
even if the jury initially believed defendant gave an incriminating response,
the jury was later informed what he really said was, “[s]hut the fuck up.†This statement in no way incriminated
defendant.
Second, defendant argues the jury
should not have been informed of the content of the statement. As the trial court correctly concluded, the
“[s]hut the fuck up†statement was elicited in violation of defendant’s
and placed in the back of a police car.
He was then asked a series of questions.
There can be no question this was a custodial interrogation in which
provided. (See People v. Pilster (2006) 138 Cal.App.4th 1395, 1404 [
suspect is placed under restraints normally associated with a formal arrest,â€
such as being handcuffed, “because the suspect understands the detention is not
likely to be ‘temporary and brief’ and therefore is ‘completely at the mercy of
the police’ â€].) Thus, the trial
court properly kept defendant’s statement out of evidence during the
trial. The question remains whether it
was error to inform the jury of the content of the statement during closing
argument as a remedy for defense counsel’s statement that defendant made no
admission or confession to police. We
need not decide the question because, assuming the trial court’s ruling
violated defendant’s Miranda rights,
the error was harmless beyond a reasonable doubt.
Federal
error analysis in accordance with Chapman
v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705].†(People
v. Racklin (2011) 195 Cal.App.4th 872, 877.) We must be convinced the error was “harmless
beyond a reasonable doubt.†(
711].) In light of S.’s testimony,
corroborated in large part by statements defendant made both during the pretext
phone call and during his subsequent conversation with Laurie, we conclude that
the statement, “[s]hut the fuck up,†in no way contributed to the verdict. Rather than an incriminating statement, the
jury heard four words that had no bearing on the facts, the evidence, or the
guilt or innocence of the defendant.
Defendant argues that because the jury was instructed with CALCRIM No.
357,
informing the jury on the use of adoptive admissions, “[a] juror could readily
conclude that [defendant] would have denied what [S.] had told the police if it
were not true and that his failure to do so was an adopted admission under the
court’s instruction.†We disagree. Detective Davis made no statement for
defendant to admit or deny. He simply
stated he had spoken with S. and asked whether defendant wanted to make a
statement. Defendant responded: “Shut the fuck up.†No reasonable juror would have taken this
statement to be an adoptive admission.
Accordingly, any error was harmless beyond a reasonable doubt.
IV
Retention of the
Pretext Phone Call Transcript
Defendant
further asserts the trial court prejudicially erred by allowing the jurors to
retain, during the remainder of the trial, their copies of the transcript of
the pretext phone call between S. and defendant. We need not determine whether the trial court
erred in this regard because we conclude there was no prejudice.
We first
note that the transcript of the pretext phone call was admitted into evidence
without objection. Thus, defendant has
forfeited any argument that the jury could not consider this transcript during
their deliberations. (
1186, 1213.) Defendant did object to the
fact that the jury was allowed to retain their copies of the transcript between
the time the phone call was played and the time they began their
deliberations. He argues this procedure
“ ‘unduly emphasize[d]’ †the content of the phone call, citing
976, a case in which the Court of Appeal found it to have been error for
| Description | Defendant Robert Joseph Zmrzel sexually abused his adopted daughter, S., on numerous occasions over an eight-year period beginning when she was eight years old. Defendant was convicted by jury of one count of continuous sexual abuse of a child (count 1), two counts of oral copulation of a person under 16 years of age (counts 8 & 9), two counts of committing a lewd or lascivious act on a child of 15 years (counts 10 & 11), one count of attempting to commit a lewd or lascivious act on a child of 15 years (count 13 (lesser included)), and one count of simple battery (count 12 (lesser included)). After dismissing counts 8 and 9, as those crimes were alleged to have occurred during the time period covered by count 1, the trial court sentenced defendant to state prison for an aggregate term of seven years, eight months. |
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