P. v. Ransom
Filed 7/11/12 P. v. Ransom CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
TYWAN RENE RANSOM,
Defendant and Appellant.
E052215
(Super.Ct.No. FSB702709)
OPINION
APPEAL from the Superior
Court of
Bernardino County.
Michael A. Smith, Judge. (Retired
judge of the San Bernardino Super. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.
Dacia A. Burz, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney
General, Julie L. Garland, Senior Assistant Attorney General, and Ron Jakob and
Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
According to an eyewitness, defendant Tywan Rene
Ransom shot another teenager in the chest, once, at close range, killing
him. Defendant testified to an alibi.
A jury found defendant guilty of
§ 187, subd, (a)), with an enhancement for personally and intentionally
discharging a firearm and causing death (Pen. Code, § 12022.53, subd.
(d)). He was sentenced to 50 years to
life in prison, plus the usual fines and fees.
Defendant contends:
1. The
prosecutor committed misconduct by
asking leading questions which — although the trial court sustained objections
to them — disclosed inadmissible hearsay to the jury.
2. The
trial court erred by allowing the prosecutor to ask defendant about his uncle’s
presence at the scene of the shooting, when defendant had already testified to
an alibi and when defendant’s only source of knowledge on this point was his
uncle’s inadmissible hearsay statements.
3. When
defendant testified to inadmissible hearsay on cross-examination, defense
counsel rendered ineffective assistance by failing to object and move to
strike.
4. The
trial court violated the confrontation clause as well as state law by admitting
certain out-of-court statements that defendant’s cousin made to the police.
5. Defense
counsel rendered ineffective assistance by failing to object, based on
Ct. 2240, 49 L. Ed. 2d 91], to evidence that defendant had asked potential
alibi witnesses not to talk to the police.
We agree that the trial court erred by allowing
the prosecutor to question defendant about his uncle’s presence at the scene,
when defendant’s answers were necessarily based on hearsay. We conclude, however, that the error was
harmless. Otherwise, we find no
error. Hence, we will affirm.
I
FACTUAL BACKGROUND
A. The Prosecution Case.
As of July 16, 2007, defendant was 16; victim
Cecil Scott was 15.
On that date, sometime after 4:00 p.m.,
Scott and his friend Walter Chambers were walking to the Dorjil apartment
complex (commonly known as the Dorjils) in San Bernardino. Scott and Chambers were both members of a
drill team; they were going to the drill team director’s apartment to get a
ride to practice.
Scott was wearing blue shorts and blue
shoes. Neither Scott nor Chambers was a
gang member.
title="">[1]
Defendant came walking up behind them. Chambers went to the same school as defendant
and knew him as “Scooter.†Defendant was
wearing a baggy red T-shirt over blue shorts.
Defendant asked where they were from. They both replied, “I don’t bang.†At the time, Scott was dating a girl named
“Tati.†He asked defendant, “Did you
tell Tati that you was going to shoot me?â€
Defendant denied making this threat.
Defendant asked where they were going. They said to the Dorjils. Defendant then parted from them; Chambers saw
him take a shortcut that led to the Dorjils.
When Scott and Chambers arrived at the Dorjils,
defendant was standing in front of the Little Zion apartment complex, directly
across the street. Defendant walked up
to them and told Scott to take off his blue shoes. Defendant and Scott were nose to nose. Defendant then pulled out a gun, took a step
back, and shot Scott once, in the chest.
Scott fell. Defendant ran away,
toward Little Zion. Chambers ran to his
drill team director’s apartment.
Scott bled to death. Soot inside the wound and gunpowder on his
clothing indicated that the shot was fired from one to three inches away. The bullet’s path was slightly downward;
Scott was five feet six inches tall.
When the police first interviewed Chambers, he
described the shooter as a young Black male, five feet six or seven inches
tall. He did not tell them that he knew
the shooter by name.
In a second interview, however, about three hours
after the shooting, Chambers identified the shooter as “Scooter.†This time, he said that the shooter was five
feet five or six inches tall. Chambers
proceeded to identify defendant in a photo lineup.
According to defendant’s school records, he was
five feet three inches tall. However,
this information could have dated back a year or more before the shooting.
five feet six inches tall.
In October 2007, defendant’s cousin, Turell Clay,
who was in custody at the time, told the police that defendant was in North
Carolina with one Roman “Benzo†Arroyo.
Arroyo was a member of the Gilbert Street Bloods.
In 2009, defendant was arrested in North
Carolina. He was in a house with a
number of other people, including Leo Johnson, another member of the Gilbert Street
Bloods. Defendant was in possession of a
gun and over 50 Ecstasy pills. He
claimed he was “holding the[ pills] for somebody else inside the
house . . . .â€
In jailhouse phone calls, defendant answered to
the name “Scooter.†Also, he addressed
people as “blood,†which is “gang language†for persons associated with the
Bloods. He told his girlfriend not to
tell the police anything, or he would beat her.
He also asked a family member to make sure that his girlfriend did not
say anything to the police.
Janay Powell, who was acquainted with both
defendant and Scott, testified that defendant associated with gang members.
According to a gang expert, the scene of the
shooting is surrounded by the territories of various gangs, particularly gangs
affiliated with the Bloods. Gang attacks
were known to occur outside the Dorjils, because the Dorjils were surrounded by
a long, high wall that left “nowhere to run or
hide . . . .â€
In the expert’s opinion, defendant was an
associate of two interrelated gangs, the Gilbert Street Bloods and the Little
Zion Manor Bloods.
B. The Defense Case.
Defendant testified on his own behalf. He denied any gang affiliation. He admitted knowing “Tati,†but he denied
ever dating her.
Defendant admitted a prior conviction for unlawful
possession of a firearm. When arrested
on that charge, he was in possession of “3 nickel bags†of marijuana, for
personal use. As of the shooting, he was
still on probation.
Defendant was staying temporarily at his aunt’s
apartment in Little Zion. When he first
encountered Scott and Chambers, he assumed they were Crips, because they were
both wearing blue. Scott asked him, “Are
you Scooter from the Projects?â€
Defendant said, “No, I’m not from the Projects. I don’t gang-bang.â€
At that point, defendant recognized Chambers and
greeted him. Scott then asked, “Did you
tell Tati you were going to kill me?â€
Defendant denied making this threat.
He thought of telling Chambers to take off a “blue rag†around his neck,
but he denied actually telling either Chambers or Scott to take anything off.
After leaving them, defendant went to his aunt’s
apartment. He was there, with his aunt
and his aunt’s friend, when they heard one or two gunshots.
Defendant’s friends and family members started
phoning him; they told him that he was being accused of shooting Scott and that
he had been seen in the area. He was
afraid, so he immediately got a lift to the Greyhound station and went to North
Carolina.
On rebuttal, a police officer testified that, in
January 2007, he arrested defendant for possession of an unregistered handgun
and possession of marijuana. While being
booked, defendant admitted that he was a member of the Family Swan Bloods.
II
QUESTIONS ABOUT DEFENDANT’S
UNCLE’S PRESENCE AT THE SCENE
On cross-examination, the prosecutor asked
defendant a series of questions designed to establish that his uncle, Darrell
Fowler,
was present when the shooting occurred.
First, she asked him leading questions about out-of-court statements by
his cousin, Turell Clay, to the effect that Fowler was present. The trial court, however, sustained
objections to these questions. Next, she
asked if defendant “knew†that Fowler was present. The trial court overruled objections to these
questions, even after defendant testified that he knew Fowler was present only
from reading Fowler’s out-of-court statements.
Defendant contends that the first set of
questions, about Clay’s out-of-court statements, constituted prosecutorial
misconduct. Defendant also contends that
the trial court should have sustained the objections to the second set of
questions, about what he knew. Finally,
defendant contends that defense counsel rendered ineffective assistance by
failing to object to and move to strike defendant’s testimony that he knew,
from Fowler’s out-of-court statements, that Fowler was present.
A. Additional Factual and
Procedural Background.
1. Background.
Chambers testified that, just before the
shooting, he saw defendant talking to “this bum dude†outside the Little Zion
complex. After the shooting, the bum
dude said, “That’s fucked up. He didn’t
have to do him like that.†Chambers
handed the bum dude his cell phone and told him to call an ambulance, but the
bum dude stole it.
2. The challenged line of
questioning.
On cross-examination, when asked who Darrell
Fowler was, defendant answered that Fowler was his uncle. Defendant then testified that he did not see
Fowler on the day of the shooting at all.
The prosecutor asked:
“Q Well,
you know that Turell Clay said that Mr. Fowler was with you that day,
right?
“[DEFENSE COUNSEL]: I object.
That assumes facts not in evidence.
“THE COURT:
Sustained.
“Q
. . . [Y]ou’ve read the reports in this case, haven’t you?
“A Yes, my
discovery.
“Q
Okay. You’ve read the report of
Turell Clay stating that your uncle was with you when you shot [Scott]?
“[DEFENSE COUNSEL]: Objection.
Same basis.
“THE COURT:
Sustained. Calls for hearsay.
“Q
. . . Did you read that report?
“[DEFENSE COUNSEL]: Object.
Relevance.
“THE COURT:
Sustained.
“Q
. . . Have you ever seen Mr. Fowler at the Zions?
“[DEFENSE COUNSEL]: Objection.
Relevance.
“THE COURT:
Overruled. He can answer.
“THE WITNESS:
No, I haven’t.
“Q
. . . Did you know that Mr. Fowler is the one that took
Walter Chambers’ phone?
“[DEFENSE COUNSEL]: Objection.
Assumes facts not in evidence.
Lack of foundation from this witness.
“[PROSECUTOR]:
Asking if he knows.
“THE COURT:
Overruled. He can answer.
“THE WITNESS:
No, I did not find that out until later.
“Q
. . . But you found out, right?
“A Yes,
later.
“Q And
when you found that out, did you, then, know that Mr. Fowler was at the
Little Zions?
“[DEFENSE COUNSEL]: I object.
That would call for speculation.
“THE COURT:
Sustained.
“Q
. . . How did you find out that he had gotten that phone?
“[DEFENSE COUNSEL]: I object.
Relevance. And it would call for
hearsay, possibly.
“THE COURT:
Overruled.
“THE WITNESS:
In his statement that he made when he was incarcerated in West Valley.
“Q
. . . You knew that Darrell Fowler took . . . Walter
Chambers’ phone?
“[DEFENSE COUNSEL]: I object, because it calls for hearsay.
“THE COURT:
Overruled.
“Q
. . . You knew that, right?
“THE WITNESS:
I have my uncle’s statement that he made in 2009, in my discovery. He tells what happened.
“Q
. . . And Mr. Fowler was there when [Scott] got
shot. Darrell Fowler is the one that
said, ‘You didn’t have to do him that way,’ correct, when you shot [Scott]?
“[DEFENSE COUNSEL]: I object.
That calls for hearsay.
“THE COURT:
Overruled.
“THE WITNESS:
That’s not what it says in the discovery.
“Q
. . . I’m asking you, when you shot [Scott], isn’t it
Mr. Darrell Fowler that was there that said, ‘You didn’t have to do him
that way,’ and then he took [Chambers]’s phone?
“[DEFENSE COUNSEL]: I object.
That’s argumentative, and assumes facts not in evidence.
“THE COURT:
Overruled.
“THE WITNESS:
I did not kill or shoot [Scott], and I did not see my uncle that
day. So, you telling me what he say, I
wasn’t there to hear any of that.
“Q
. . . I’m not telling you.
You already told me you knew he took the phone.
“A In his
statement, he quoted, [y]es, after the boy got shot, he ran over and helped
[Scott].
“And the witness couldn’t talk. He was too emotional on the phone, so my
uncle grabbed the phone and said, ‘Somebody get help.’
“Q And
took his phone?
“A He did
not steal his phone. Chambers admits to
running off, so he left my uncle with that phone.
“Q And
your uncle said, ‘He didn’t have to do him that way,’ didn’t he?
“A He
didn’t say that in his statement.
“Q Do you
remember hearing him say that?
“A I don’t
remember hearing any of that. I wasn’t
there.â€
3. The prosecutor’s use
of the evidence.
Later during her cross-examination of defendant,
the prosecutor asked:
“Q
. . . [W]hen you . . . got to the Zions, your uncle
was there and you got a gun from somewhere, right?
“A Never
seen my uncle, and I never went to go recover a gun. [¶] . . . [¶]
“Q And,
when you walked up to [Scott] and told him to take those blue slippers off,
because this is a red neighborhood, he disrespected you . . . ,
didn’t he?
“[DEFENSE COUNSEL]: Objection.
Assumes facts not in evidence.
Misstates the testimony.
“THE COURT:
Overruled.
“Q
. . . He disrespected you, right?
“A I never
walked up to [Scott]. I never walked up
to Chambers. I never told them to take
off anything. . . . I never
pulled out no gun, and I never shot nobody.
[¶] . . . [¶]
“Q And,
when [Scott] wouldn’t take those shoes off, that was disrespectful in front of
your uncle, who’s involved in gangs, also; is that right?
“[DEFENSE COUNSEL]: Objection.
Assumes facts not in evidence.
Argumentative.
“THE COURT:
Overruled.
“THE WITNESS:
Never seen my uncle. I don’t know
if my uncle is a gang member or if he isn’t a gang member. If he is, I don’t know he’s a gang
member. And I never told anybody to take
off no . . . shoes.â€
During closing argument, the prosecutor stated:
“[PROSECUTOR:]
And this is the third element.
Was it done with malice? . . .
Even the defendant’s uncle, who was present during the murder, who took
[Chambers]’s phone —
“[DEFENSE COUNSEL]: I object.
That is a misstatement. It
misstates the testimony during trial.
“THE COURT:
Overruled.
“[PROSECUTOR]:
— indicated that the shooter did not need to do that to the victim.â€
She also argued:
“[H]e gets into the Little Zions, where his people are, where his
weapons are . . . . He’s
got his uncle there. And he arms
himself.â€
Similarly, she argued: “[Defendant]’s not going to get punked by
anybody. And he certainly isn’t going to
get punked by [Scott] in those blue shoes in front of his uncle.â€
Finally, she argued: “Everything that [Chambers] says in his
account is matched by the evidence. We
knew that his phone was taken. The defendant
tried to say, ‘Well, my uncle didn’t steal this phone. [Chambers] ran away.’ That’s not what [Chambers] said.
. . . [¶] He couldn’t call because there was no phone
for him to call on.
“So he had to leave his friend, and run around
all the way to the back of the [Dorjils] to make some type of contact with the
people who were expecting them to show up for drill team practice. Why?
Because the uncle took the phone.
Why didn’t the uncle just come in and say, ‘Well, I was there. And it wasn’t my nephew.’ There’s no reason for that not to have occurred. Why didn’t the uncle say, ‘Hey, police
officer, the guy wanted me to use this phone and call for help. But then he left. Here’s his phone.’â€
4. The jury’s question.
After about half an hour of deliberations, the
jury asked, “Who was the name of the uncle that took the phone?â€
The trial court proposed to give the jury a
readback of Chambers’s testimony regarding the “bum dude,†plus defendant’s
testimony regarding his uncle’s statement.
Defense counsel concurred with a readback of
Chambers’s testimony, but he objected to a readback of defendant’s
testimony: “[Defendant]’s testimony is
as to what’s in his discovery. That’s
all. . . . I made objections
throughout all this. I guess I’m sort of
arguing that my objections should have been sustained.â€
The trial court overruled the objection and
ordered the readback.
B. Analysis.
1. Prosecutorial
misconduct.
We begin with defendant’s contention that the
prosecutor’s questions about Clay’s out-of-court statements constituted
misconduct.
Defense counsel forfeited this contention by
failing to request an admonition. (
679-680.) We see no reason why this
would have been futile — especially as the trial court sustained defense counsel’s objections — or why it would not have
cured the harm.
In support of his argument that there was no
forfeiture, defendant relies on People v.
Tate (2010) 49 Cal.4th 635. There,
however, defense counsel did raise an evidentiary objection (“assumes a fact
not in evidenceâ€) and did request an admonition. (Id.
at p. 702.) The Supreme Court
proceeded to assume, without deciding, that the evidentiary objection was
sufficient to preserve a prosecutorial misconduct contention. (Id.
at p. 703.) Here, by contrast,
defense counsel never requested an admonition.
Defendant therefore argues that this very failure
constituted ineffective assistance. Once
again, however, the trial court had sustained
defense counsel’s objections. The jury
was instructed that the attorneys’ questions are not evidence, and that they
should ignore any question to which an objection was sustained. (CALCRIM No. 222.) Defense counsel could reasonably conclude
that an admonition was unnecessary, or that it would only call the jurors’
attention to the objectionable insinuation.
(See People v. Freeman (1994)
8 Cal.4th 450, 495 [“Since the objection was sustained, counsel may have felt
it best not to emphasize the matter in front of the jury. His failure to request a specific admonition
was therefore not incompetent.â€].)
2. Hearsay.
We turn to defendant’s contention that the trial
court erred by overruling his objections to the prosecutor’s questions about
what defendant knew about his uncle’s presence.
This testimony was based on the uncle’s
out-of-court statements. Moreover, as
defendant points out, it was actually based on police reports relating those
statements; thus, it involved a two distinct layers of hearsay. The prosecutor was clearly offering it for
its truth; it was not relevant for any other purpose. And, ultimately, she used it for its truth in
closing argument. It was not within any exception to the
hearsay rule. Hence, it constituted
inadmissible hearsay.
The People argue that the prosecutor’s questions
did not necessarily call for hearsay; she may have been assuming that defendant
was present (i.e., that he was the shooter), and thus he could answer them
based on personal knowledge. At a
minimum, they argue, she should have been allowed to cross-examine defendant
with regard to whether he was present.
Her questions, however, were not limited to
matters of which defendant had personal knowledge. For example, her very first objectionable
question was, “Did you know that Mr. Fowler is the one that took Walter Chambers’
phone?†If defendant knew this, whether
from personal knowledge or hearsay,
he had to say yes. At that point, it was
established as a fact, even if based on hearsay. Defense counsel quite properly objected that
no foundation had been laid as to how or whether defendant would know. The trial court erred by overruling that
objection. (See People v. Fusaro (1971) 18 Cal.App.3d 877, 886 [question asking one
undercover agent if he knew what another undercover agent had done was “devoid
of foundational inquiry to ascertain the witness’ personal knowledge and thus
invit[ed] potential hearsayâ€], disapproved on other grounds in
292, fn. 14.) The prosecutor could
easily have fixed her question by asking, “Did you see Mr. Fowler take Walter Chambers’s phone?â€
If the prosecutor (or the trial court) was
assuming that defendant was present, that assumption had not yet been
established as fact. To the contrary,
defendant had already testified, on direct, that he was not present during the shooting.
Accordingly, defense counsel’s additional objection, “Assumes facts not
in evidence,†also should have been sustained.
And finally, once defendant specifically stated that his only source of
information was Fowler’s own statement, the prosecutor had to know that she was
asking for hearsay.
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We turn to whether the error was
prejudicial. As defendant concedes,
“‘[a]bsent fundamental unfairness, state law error in admitting evidence is
subject to the traditional Watson
test: The reviewing court must ask
whether it is reasonably probable the verdict would have been more favorable to
the defendant absent the error.’
[Citation.]†(
686.)
The fact that defendant’s uncle was present at
the shooting was a pro-prosecution point, but a relatively minor one. The key evidence of guilt was that Chambers
identified defendant as the shooter.
Moreover, there was little doubt about that identification. Chambers saw the shooter up close. He already knew defendant from school. There was no evidence that he had any bias
against defendant or any other reason to lie about the identity of the person
who had just killed his friend.
The defense tried to cast doubt on the
identification in two respects. First,
when the police initially interviewed Chambers, he did not identify the shooter
as “Scooter.†However, there was no
evidence that, during that interview, they asked him if he knew the shooter. Second, Chambers told police that the shooter
was about five feet six inches tall.
Defendant’s school records showed that he was five feet three inches
tall. However, the defense never showed
the date of that school record. One
would expect a teenaged boy to grow. At
the time of trial, defendant was five feet six inches tall.
Moreover, defendant corroborated at least some of
Chambers’s testimony. He admitted the
first encounter with Scott and Chambers (including the discussion of whether he
had previously threatened Scott).
Although he denied the second encounter — and thus, he denied telling
Scott to take off his blue shoes — he did admit that he at least considered
telling Chambers to take off his “blue rag.â€
Defendant admitted that he was in the area. And his response to hearing that he was
accused of the murder was extraordinary.
According to his testimony, he had two alibi witnesses who could testify
that he was inside his aunt’s apartment when the shooting occurred. Nevertheless, defendant — a 16-year-old high
school student whose only income was from an allowance and mowing lawns — left
immediately for North Carolina. He did
not even stop home for luggage. He
stayed away for over a year. This was an
unusually compelling showing of consciousness of guilt.
Finally, the prosecution demolished defendant’s
claim that he was not affiliated with any gang.
Janay Powell testified that defendant hung out with gang members,
including some identified by the gang expert as Bloods. When defendant was arrested in North
Carolina, he was with a member of the Gilbert Street Bloods. In jailhouse phone calls, he addressed people
as “blood.†Most tellingly, in January
2007, defendant had admitted to a police officer that he was a member of a Blood
gang.
In light of this strong evidence of guilt, the
hearsay evidence regarding defendant’s uncle was overkill.
actually was a gang member. There was no
evidence that he actually had a gun or that he supplied defendant with one. While the uncle’s failure to step forward and
testify for his nephew was somewhat incriminating, in light of the similar
failure of defendant’s aunt and of defendant’s aunt’s friend (see part IV,
We recognize that the jury asked a question
regarding the uncle. However, all it asked
for was the uncle’s name. It was the trial court’s decision to give it
a readback of all of the testimony
regarding the uncle. Moreover, that was
only its first question. Ten minutes
later, it sent out a second question; the next day, it sent out four more, all
asking for evidence unrelated to the uncle.
The fifth question asked for the investigating officer’s “testimony
about [Chambers]’s ID of the shooter.â€
The sixth question asked for “Walter Chamber’s [sic] testimony[,] all of it.â€
This indicates that the jury’s focus had shifted to the crucial issue of
Chambers’s identification. It would
appear that the jury did not regard the testimony regarding the uncle as
dispositive or even particularly helpful.
At oral argument, defendant asserted that the
error was prejudicial because it enabled the prosecutor to argue that Chambers
was credible because he knew that, if he lied, defendant’s uncle could
contradict him.
In her rebuttal argument, the prosecutor
stated: “If [Chambers] was going to lie,
he could have picked anyone. If he knew
that this guy was around other people, why would he make that up? Because he would know, ‘Hey, if he’s with his
auntie, saying he’s the one that shot him, the aunt will merely come in and
say, “No, he was with me.†Now, I’m a
liar. Or the uncle will say, “I saw
the shooting.â€â€™ Walter knows
somebody else saw that shooting. He
knows two other people saw that shooting, the murderer and the uncle. And there’s a likelihood that either, most
likely the uncle will come forward, if
someone is falsely accused . . . .†(Italics added.)
This inference that Chambers was credible,
however, flowed from his testimony that a “bum dude†was present. It had nothing to do with the erroneously
admitted evidence the bum dude was, in fact, defendant’s uncle. Indeed, there was no evidence that
defendant’s uncle. Thus, this portion of
the prosecutor’s argument did not capitalize on the error in any way.
We therefore find no reason to suppose that
defendant would have obtained a more favorable verdict if his testimony that
his uncle was present at the shooting had been excluded.
III
DEFENDANT’S COUSIN’S STATEMENT
TO THE POLICE
THAT DEFENDANT TALKED TO HIM
ABOUT THE SHOOTING
Defendant contends that the admission of his
cousin Turell Clay’s out-of-court statements to the police violated the
confrontation clause, as well as state law.
A. Additional Factual and
Procedural Background.
The prosecution called Turell Clay as a
witness. However, he refused to answer
any questions, invoking his right against self-incrimination.
The prosecutor argued that her questioning of
Clay was not necessarily incriminating.
The trial court responded, “[I]f [Clay] told the police he knew where
[defendant] was in North Carolina, that could be [incriminating].â€
On cross-examination, the lead investigator
testified that he had talked to members of defendant’s family, including
Clay. Clay told him that defendant was
staying in North Carolina with somebody named “Benzo.â€
On redirect, the prosecutor asked:
“[PROSECUTOR]:
Let’s talk about what Mr. Clay told you. Mr. Clay also told you that [defendant]
would not be at [his grandmother]’s house . . . because they knew the
police . . . were watching that house, correct?
“[DEFENSE COUNSEL]: I object.
This is hearsay. It’s leading.
“[PROSECUTOR]:
Goes to the statement that he opened.
“THE COURT:
Overruled. It’s from an
unavailable witness. [¶] . . . [¶]
“THE WITNESS:
Yes.
“Q . . .
And he stated that [defendant] has been staying in the Little Zion apartment
complex with a [relative], correct?
“A
Correct.
“[DEFENSE COUNSEL]: I object.
That’s leading and hearsay.
Violation of the confrontation clause.
“THE COURT:
Overruled on hearsay grounds.
“Q
. . . Mr. Clay also said that [defendant] spoke to him
about the shooting, correct?
“A
“Q But
Mr. Clay didn’t want to give you that information. [¶] Is
that fair to say?
“A He did
not.
“[DEFENSE COUNSEL]: Objection.
Leading.
“THE COURT:
Sustained.
“Q
. . . Was Mr. Clay willing to give you the information
about what [defendant] told him about the shooting?
“A
(Italics added.)
B. Analysis.
Defendant does not challenge the admission of the answers to all of the prosecutor’s questions quoted above. To the contrary, he concedes that “some of
Clay’s information involved nonhearsay because it ostensibly assisted [the
officer] in apprehending [defendant] in North Carolina.†Defendant challenges only the admission of
the two answers that we have italicized.
Defense counsel forfeited this contention,
however, by failing to object to these questions. (People
v. Dement (2011) 53 Cal.4th 1, 23.)
Defendant argues that any objection would have been futile, because the trial
court had already overruled an objection on confrontation clause grounds to an
earlier question. As noted, however,
defendant concedes that the earlier question was distinguishable, because it
had a nonhearsay purpose. We cannot
conclude an objection to the challenged questions necessarily would have been
futile.
Defendant therefore argues that his trial counsel
rendered ineffective assistance by failing to object to these questions. “ . . . ‘In assessing
claims of ineffective assistance of trial counsel, we consider whether
counsel’s representation fell below an objective standard of reasonableness
under prevailing professional norms and whether the defendant suffered
prejudice to a reasonable probability, that is, a probability sufficient to undermine
confidence in the outcome.
[Citations.] A reviewing court
will indulge in a presumption that counsel’s performance fell within the wide
range of professional competence and that counsel’s actions and inactions can
be explained as a matter of sound trial strategy. Defendant thus bears the burden of
establishing constitutionally inadequate assistance of counsel. [Citations.]
If the record on appeal sheds no light on why counsel acted or failed to
act in the manner challenged, an appellate claim of ineffective assistance of
counsel must be rejected unless counsel was asked for an explanation and failed
to provide one, or there simply could be no satisfactory explanation. [Citation.]’
[Citation.]†(
391.)
“‘[E]xcept in those rare instances where there is
no conceivable tactical purpose for counsel’s actions,’ claims of ineffective
assistance of counsel generally must be raised in a petition for writ of habeas
corpus based on matters outside the record on appeal. [Citations.]
The rule is particularly apt when the asserted deficiency arises from
defense counsel’s failure to object.
‘[D]eciding whether to object is inherently tactical, and the failure to
object will rarely establish ineffective assistance.’ [Citations.]â€
(People v. Salcido (2008) 44
Cal.4th 93, 172.)
Here, the two challenged answers were not
particularly prejudicial. The first
indicated that defendant had talked to Clay about the shooting. However, it did not include what defendant
said; for all we know, his statement to Clay was perfectly consistent with his
trial testimony. The second indicated
that Clay was not willing to tell the police what defendant had said. This was not actually hearsay; it was
nonassertive conduct — a refusal to disclose.
(See People v. Zamudio (2008)
43 Cal.4th 327, 350-351 [victim’s failure to say that her wallet was missing
was nonassertive conduct, not hearsay].)
Defendant argues that, in light of Clay’s hearsay statement that
defendant had, in fact, talked to him about the shooting, Clay’s refusal to
reveal what defendant had said implied that defendant’s statement to Clay was a
confession. This is not at all
clear. Clay was defendant’s cousin, but
there was no other evidence regarding his relationship with (or attitude
toward) defendant. Indeed, as Clay was
cooperating with the police — at least to the extent of telling them that
defendant was in North Carolina with “Benzo†— it is a reasonable inference
that, if defendant’s statement had been a confession, Clay would have shared it
with them.
As we already discussed in part II.B,
strong. The two challenged answers, by
contrast, were only weakly and equivocally relevant. On this record, we see no reasonable
probability that defense counsel’s failure to object to them had any effect on
the outcome.
We therefore conclude that defendant has not
demonstrated ineffective assistance of counsel.
IV
DOYLE ERROR
Defendant contends that the admission of evidence
that he had asked potential alibi witnesses not to talk to the police violated
further contends that, by failing to raise this particular objection, his trial
counsel rendered ineffective assistance.
A. Additional Factual and
Procedural Background.
Defendant testified that, when the shooting
occurred, he was in his aunt’s apartment.
The aunt, Lanesha Moreno, and her friend, Nicole Jones,
On cross-examination, the prosecutor asked:
“Q And, has
[Lanesha Moreno] come to visit you recently?
“A She
came to visit me, like, two weeks ago, three weeks ago . . . .
“Q Did you
tell her, ‘Hey, Aunt Lanesha, I’m going to tell them now that I was with you at
the time of the shooting?[’]
“[DEFENSE COUNSEL]: Objection.
Relevance.
“THE COURT:
Overruled.
“Q
. . . Did you tell her
that?
“A No, I
didn’t make no specific — I told her I’m going to take the stand at trial.
“Q Did you
tell her, ‘Hey, I’m going to tell her I was with you. And, do you remember when we heard the
shots?’
“A No.
“Q Did she
say, ‘Tywan, my nephew, let me talk for you’?
“[DEFENSE COUNSEL]: I object.
Hearsay.
“THE COURT:
Overruled.
“Q
. . . Did you guys have a discussion like that?
“A I
wouldn’t put her in the type of position that you’re putting me in.
“Q
What? Having to tell the truth?
“A No,
trying to discredit my character.
“Q By what
means?
“A By any
means. Through family, through friends,
through living on the west side, just attacking my family as saying we’re intimidators,
we work with fear, we work with gang members, we have gang family. [¶] . . . [¶]
“So, I would not allow my auntie to try to take
the stand and try to plead for me. I
would take the stand and try to plead for myself.
“Q So your
auntie never told anybody that you were with her during the shooting, did she?
“[DEFENSE COUNSEL]: I object.
speculation. And, calls for
hearsay.
“THE COURT:
Sustained. [¶] . . . [¶]
. . . As calling for
speculation.
“Q
. . . Have you talked about that with your aunt?
“A No, I
haven’t.
“Q Do you
know whether or not she’s told the police?
“A I know
she haven’t made a statement.
“Q
. . . [H]ave you asked
her to?
“A No.
“Q Well,
she’s the one that was with you, right?
“A Nicole
Jones was with me, too.
“Q Did you
ask Nicole to make a statement?
“A No.
“Q So the
two people that were with you during this shooting, you asked neither one of
them to come forward to the police, to the District Attorney, in three years
and say, ‘Hey, you guys got the wrong guy —[’]
“[DEFENSE COUNSEL]: I object.
“Q
. . . ‘— he was with
me’?
“[DEFENSE COUNSEL]: Argumentative.
“THE COURT:
Overruled.
“THE WITNESS:
I wouldn’t allow them to make a statement, on the simple fact of the
same way I didn’t make a statement.
“Q You wouldn’t
allow them?
“A
No. They told me, ‘I will go to
the police and tell them.’ ‘No, don’t,
because whatever I say or whatever you say will be used against me in a court
of law. So don’t say nothing.’
“Q The
fact that you didn’t do it is going to be used against you?
“A That’s
the law, yes. Just like right now.â€
In closing argument, the prosecutor stated:
“But, now, we have a new story. You heard the story when I heard it. That there was an aunt that was with the
defendant. When did that story occur? We don’t know. And it’s just something that is now
said. Not subject to scrutiny, not on
tape, not — no reports written, nothing that can be tested.
“And that should cause you some concern, when
there are statements that are made and you can’t test the veracity of that
statement, because no one came forward at the time that it happened. That’s cause for concern.
“[DEFENSE COUNSEL]: I object.
That’s Griffin error.
“THE COURT:
Overruled.â€
After the jury had retired to deliberate, the
trial court stated:
“[D]uring the prosecution’s opening argument,
defense counsel made an objection that her reference to witness [
error, which the Court overruled.
“I want to further explain the Court’s ruling on
that.
“In context, the prosecutor was talking about the
witness, in particular the aunt not coming forward. And failure to call logical witness [
“To the extent that the argument was that the
defendant didn’t come forward, certainly, if the defendant had not testified
and there was an argument that, ‘Well, if the defendant wasn’t there, he should
have come forward,’ clearly, that would be Griffin error.
“But, here, the defendant did testify, did
testify that he was in the apartment with his aunt at the time of the
shooting. He was cross-examined about
that issue by the prosecution, as well as questioned about that issue by
defense counsel, as to, ‘Well, why didn’t you just tell people, “I didn’t do
it, I was in the apartment with my auntâ€â€™?
And, there was an explanation given.
So, there was evidence of his failure to come forward, and an
explanation of his failure to come forward.
This was part of the evidence in this case, and, therefore, it was
proper for the prosecution to argue inferences from that evidence.
“And, so, that was not Griffin error.â€
B. Analysis.
Under Griffin
v. California (1965) 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106], the
Fifth Amendment prohibits the prosecution from commenting on the defendant’s
failure to testify at trial. (
violation of Griffin in this
case. Defendant does not argue
otherwise.
In Doyle,
however, the Supreme Court held that due process similarly prohibits the
prosecution from “seek[ing] to impeach a defendant’s exculpatory story, told
for the first time at trial, by cross-examining the defendant about his failure
to have told the story after receiving Miranda[
warnings at the time of his arrest.†(
at p. 611, fn. omitted; see also id.
at pp. 617-619.) “The basis of the
rule is that ‘it is fundamentally unfair, and a deprivation of due process, to
promise an arrested person that his silence will not be used against him, and
then to breach that promise by using silence to impeach his trial
testimony.’ [Citation.]†(People
v. Clark (2011) 52 Cal.4th 856, 959.)
As defendant essentially concedes, his trial
counsel forfeited any claim of error under Doyle
by failing to raise it below. (
Defendant’s claim that this constituted
ineffective assistance of counsel fails because the record does not show that
defendant ever received Miranda
warnings. “[T]he Constitution does not
prohibit the use for impeachment purposes
of a defendant’s silence . . . after arrest if no
[citation].†(Brecht v. Abrahamson (1993) 507 U.S. 619, 628 [113 S.Ct. 1710, 123
L.Ed.2d 353].)
Defendant argues that it is inferable that the
police gave him Miranda warnings, as
they “typically†do so.
only if the defendant is subjected to custodial interrogation (
whether defendant was ever interrogated after his arrest. If not, this would explain defense counsel’s
failure to raise a Doyle claim. Because defendant cannot show that he was
given Miranda warnings, he cannot
meet his burden of showing that defense counsel’s representation was
objectively unreasonable.
This claim also fails for the additional reason
that the prosecutor did not question defendant about his own silence, but
rather about the silence of his aunt and her friend. Griffin
and Doyle do not prohibit comment on
the silence of potential witnesses. (
723, 736-737.) “‘Although a prosecutor
is forbidden to comment “‘either directly or indirectly, on the defendant’s
failure to testify in his defense,’†the prosecutor may comment “‘on the state
of the evidence, or on the failure of the defense to introduce material
evidence or to call logical witnesses.’â€
[Citation.]’ [Citation.]†(People
v. Castaneda (2011) 51 Cal.4th 1292, 1333.)
Here, defendant not only failed to call two logical witnesses, but, by
his own admission, he affirmatively told them not to talk to the police. The right to remain silent does not amount to
a right to dissuade witnesses. The
prosecutor was entitled to ask the jury to infer that these witnesses, if
called, would not actually support defendant’s alibi.
VI
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We
concur:
RAMIREZ
P. J.
KING
J.
of themselves on MySpace holding handguns and throwing apparent gang signs.
Chambers testified, however, that
the guns were BB guns and that the signs were (1) peace signs, (2) signs for
“three the hard way†(referring to their group of three friends), or (3)
meaningless. According to a gang expert,
the signs were not associated with any known gang.
of the shooting, he was five feet two inches tall.
