P. v. Packard
Filed 1/30/14 P.
v. Packard CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
NANETTE ANN PACKARD,
Defendant and Appellant.
G046934
(Super. Ct. No. 09HF0844)
O P I N I O N
Appeal
from a judgment of the Superior Court of
Orange County, William R. Froeberg, Judge.
Affirmed.
Eric S.
Multhaup, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General,
for Plaintiff and Respondent.
* * *
Defendant
Nanette Ann Packard was sentenced to state prison for life without the
possibility of parole after a jury convicted her of first degree murder for a 1994
homicide and found she committed the crime for financial gain. Defendant asserts claims of undue delay in
charging her with the murder, ineffective
assistance of counsel, and errors in the admission of evidence at
trial. Finding no prejudicial error, we
affirm the judgment.
FACTS
Shortly
after 9 p.m. on Thursday, December 15, 1994,
William McLaughlin, a man in his mid 50’s, was shot to
located in a gated Newport Beach community. At the time of
his death, McLaughlin had a net worth exceeding $20 million.
Defendant
met McLaughlin in 1991, when she was in her mid-20’s. Shortly after they met, defendant moved into his
home. Kevin McLaughlin, the victim’s
adult son from a prior marriage who had suffered serious injuries in an accident,
also lived in the home. He attended
Alcoholics Anonymous meetings on Thursday evenings.
At some
point, McLaughlin made defendant the beneficiary of a $1 million life insurance
policy, appointed her as the trustee of a trust containing the bulk of his
assets, and made a will leaving her $150,000, a car, and the use of a beach
house he owned for a year after his death. In addition, he gave defendant the authority
to write checks in amounts of $1,500 or less on an account used for household
expenses.
The
prosecution’s theory of the case was that defendant and her boyfriend Eric
Naposki, a one-time professional football player, conspired to kill McLaughlin
for financial gain.
In
1994, defendant began surreptitiously withdrawing funds from the household
checking account. One means she used to
accomplish the thefts was forging McLaughlin’s name on checks. Initially, the amounts she stole were
small. But the thefts began to increase
and in the week before McLaughlin’s murder, she forged his name on checks totaling
$365,000. One check dated December 14, 1994, was for $250,000. Defendant
deposited it into the account of her recently formed
“as the amounts got larger, the likelihood would have been [she]
. . . would have been caught by [McLaughlin]
. . . .â€
During
the summer of 1994, defendant and Naposki visited a new residential development
with home prices ranging from $800,000 to over $2 million. Defendant told a sales agent that they would
not be able to buy a home until the spring of 1995. Around this time, Naposki purchased a 9
millimeter Berretta 92F handgun.
At the
time, Robert Cottrill worked as a trainer at a fitness center frequented by defendant
and Naposki. Shortly after McLaughlin’s
murder Cottrill and his fiancée made an anonymous call to the police department. It was not until 2008 that an investigator
learned Cottrill’s identity and questioned him.
At trial, Cottrill testified he saw defendant and Naposki working out
together, holding hands, and kissing each other. Cottrill also said that he and defendant discussed
the possibility of her investing in a software program he was trying to promote. He testified that, at a meeting in September
or October 1994, defendant expressed interest in investing in his venture, but
the money was “offshore†and it would take her sometime to obtain the
funds.
During
this same time period, a locksmith at a Tustin hardware
store made copies of two keys for Naposki.
Suzanne
Cogar lived in the same apartment complex as Naposki. Cogar contacted the police in early 1995, but
when asked to call back and give a statement, she lost the nerve to do so. She called the police again in 1998 and,
while providing the police information concerning McLaughlin’s murder, gave
only her first name. In 2009, an
investigator discovered Cogar’s identity and she agreed to cooperate with the
police.
At
trial, Cogar testified she often saw defendant with Naposki at the complex’s
pool. Over a hearsay objection, she
testified that before Thanksgiving, Naposki said he was upset with a man named
“Bill†and wanted to kill him because “Bill†was coming into defendant’s
bedroom and “making unwanted sexual advances†towards her. Before Cogar testified to Naposki’s
statements, the court instructed the jury that the statements were “not being
admitted for the truth of what Mr. Naposki said†or “as proof that [defendant],
in fact, made any claims to . . . Naposki,†but could only be
“consider[ed] . . . as evidence of Mr. Naposki’s state of mind,
that is, his motive to kill Mr. McLaughlin, or as circumstantial evidence of
the existence of a conspiracy.â€
On December 15, 1994, defendant purchased a pair of alligator skin boots for $429. She told the sales clerk the boots were for
“her boyfriend†and described him as “a N.F.L. football player.â€
Later
that day, defendant and Naposki drove to Walnut, California to
watch defendant’s son play in a championship youth soccer game. The game lasted longer than expected. At 8:20 p.m., after the game ended
but before the awards ceremony, defendant told her ex-husband that she and
Naposki had to leave because Naposki had an 8:00 p.m.
appointment. She also canceled her
visitation with the children that weekend.
As they departed the field, defendant and Naposki began running. The evidence showed defendant made a call
from her car phone at 8:24
p.m.
At 9:11 p.m., Kevin McLaughlin called 9-1-1 from the Newport Beach
residence, reporting his father had been shot. McLaughlin was struck six times with 9
millimeter rounds in a pattern of two shots, followed by a pause, two more shots,
followed by second pause before the final two shots. The prosecution presented evidence that
Naposki, who worked in security, had received training in this shooting
technique.
A forensics
report on an examination of the bullets recovered from the residence prepared
shortly after the murder listed 28 firearms that could have been used to kill
McLaughlin. In December 2010, another forensics
expert reexamined the bullets and cross-referenced the results of his
examination with a Federal Bureau of Investigation database on rifling
characteristics. This expert concluded
only two types of firearm could have been used in the McLaughlin murder, one of
which was a Beretta F series handgun. At
trial, the same ballistics expert testified the bullets were fired by “a
Beretta 92F or a 92F-series-type firearm . . . .â€
The
police found a key in the front door of the McLaughlin residence and a second
key on the ground outside of it. The key
retrieved from the door was similar to the type Naposki had purchased from the
locksmith. The other key was for a
nearby pedestrian gate. The police later
learned defendant had a key to the front door of the McLaughlin residence, but
not to the pedestrian gate.
Defendant
and Naposki were questioned by the police at least twice during the
investigation of McLaughlin’s murder. Each
gave conflicting statements.
When
questioned upon her return to the McLaughlin residence the night of the murder,
defendant told the police she left her son’s soccer game by herself and went
shopping. She presented a receipt
showing she made a purchase at 9:29 p.m. The next day defendant called her ex-husband,
told him about the murder and said, “‘You don’t need to tell [the police]
anything about [Naposki] because he’s not involved.’†Nonetheless, the police learned the truth. When questioning defendant in late January,
she admitted Naposki attended the game with her, but claimed she dropped him
off at his Tustin residence before going shopping.
Although the police questioned defendant’s ex-husband twice shortly
after McLaughlin’s murder, it was not until an investigator re-interviewed him
in 2010 that he mentioned defendant’s phone call.
Based
on an outstanding warrant, the police arrested Naposki. The police found a notebook in his car. It contained the license plate number for
McLaughlin’s car and a calendar with the following notations written in the
space for January
1, 1995:
“‘New Year’s, January’†and “‘P-R-O-P-O-S.’†The police also discovered a receipt for a
$600 watch Naposki acknowledged he purchased for defendant.
During
his first interrogation on December 23, Naposki admitted going to the soccer game
with defendant. But he claimed she took
him to his apartment in Tustin after the game, arriving between 9:00 p.m. and 9:15 p.m. Naposki said he changed
clothes and went to work as a security guard at a nightclub near the McLaughlin
residence, arriving between 9:30 p.m. and 9:45 p.m. He initially denied owning
any guns, but later acknowledged recently purchasing a Beretta. However, Naposki claimed he loaned the gun to
a man named Jimenez and the gun was later stolen.
The
police located Jimenez and learned Naposki gave him a .380 caliber gun and
bullets that could be fired by a 9 millimeter gun. When confronted with this evidence during the
second interview, Naposki admitted he previously lied to them about the
weapon. He then claimed the Beretta was
stolen from his vehicle one night when Jimenez used it for a security job.
During
this interview, Naposki also told the police that on his way to work on the
evening of December 15, he received a page from the nightclub’s manager. Naposki said he stopped at a restaurant in Tustin and called
the manager on a pay phone. Later, he
claimed this call was made at 8:52 p.m.
The
police searched Naposki’s storage locker.
Inside, they found three motorcycles and documentation indicating
defendant had purchased at least two of them.
Cogar also
testified to a second conversation she had with Naposki in January 1995. Naposki asked her, “‘Did you hear that man
was killed?’†When Cogar responded that
she did not want to know if Naposki was the murderer he replied, “‘maybe I did,
maybe I didn’t.’†She testified Naposki
went on to tell her the victim was killed with the same type of gun he owned,
“‘but they’ll never find the murder weapon on me because I don’t have that gun
anymore. I gave that gun to a buddy of
mine.’†According to Cogar, Naposki also
mentioned a key found at the murder scene was made at a store in Tustin that he
frequented.
Police
officers conducted timed test drives between the soccer field in Walnut and the
McLaughlin residence in Newport
Beach, including routes from
Naposki’s Tustin residence and the restaurant where Naposki claimed he made the
telephone call. They determined that
under any of these scenarios it was possible to make the trip in time to commit
the murder.
In April
1995, defendant and Naposki met with a man about buying a house. Defendant told the man that she had money
coming from either a trust or insurance, but did not have the funds to make an
immediate purchase.
Shortly
thereafter defendant was arrested and charged with grand theft and forgery arising
from her check writing and her signing McLaughlin’s name on a change of title
for a vehicle after his death. She later
pleaded guilty to the charges. Defendant
filed a civil palimony action against McLaughlin’s estate. The civil action was ultimately settled with
defendant receiving $220,000 from the life insurance policy and the balance
paid to the estate as restitution.
The
police twice submitted the case against defendant and Naposki to the district
attorney in the mid- and late 1990’s, but charges were not filed. After further review of the file by a cold
case investigator, the prosecution charged defendant and Naposki with
McLaughlin’s murder in May 2009. The
trial court later severed defendant’s trial from Naposki’s trial.
DISCUSSION
Background
Defendant
and Naposki separately moved to dismiss this prosecution on the ground the
delay in charging them with McLaughlin’s murder violated due process of
law. Defendant argued the delay
prejudiced her ability to defend against the charge, citing: (1) the loss or destruction of documentation supporting
Naposki’s claim that he called the nightclub from a Tustin restaurant at 8:52
p.m. on the night of the murder; (2) the loss of information showing defendant
and Naposki attended the soccer game on December 15, 1994, including when the
game ended, her location when making the car phone call at 8:24 p.m., the
traffic conditions on the night of the murder, and the time of her arrival at
the shopping mall; and (3) evidence relevant to other possible suspects.
The
trial court issued a six-page order denying both motions. It concluded the 15-year lag in charging
defendant and Naposki with McLaughlin’s murder resulted from “only investigative
delay.†The court noted the case against
them “was entirely circumstantial,†and there was no indication the prosecution
either purposefully delayed filing the case or did so for a tactical purpose. In support of its finding, the court cited the
fact the police did not discover the identity of persons who made anonymous
telephone calls relating to defendant’s and Naposki’s possible involvement
until 2008 (Cottrill) and 2009 (Cogar), and first learned defendant asked her
ex-husband to lie about Naposki attending the soccer game when an investigator
re-interviewed him in 2010.
As for defendant’s
claim of prejudice it found that, except for the lack of documentation for
Naposki’s phone call to the nightclub, the assertions of lost or missing evidence
“are at best speculative.†On the
missing pay phone records, the court found their value was limited to
“corroborating Mr. Naposki’s testimony that he made such a call.†Further the court concluded “the loss of the
phone records is as much, if not more attributable to [defendants] as it is the
prosecution†because a defense investigator claimed he had a copy of a credit
card receipt for the call “in early 1995†and “[i]f they did not have the hard
copy, the[ defendants] were in better position than the Newport Beach Police
Department to secure†it. In addition,
although the defense claimed the nightclub’s manager “no longer has any memory
of the page†triggering Naposki’s pay phone call, the court noted the
prosecution located nightclub manager in 2009 and he gave a “statement†that “casts
doubt on a portion of Naposki’s alibi.â€
Defendant
reasserted the claim of prejudicial precharging delay in her motion for a new
trial. In denying the renewed motion to
dismiss, the court ruled “the evidence produced in both trials only reinforces
my belief in the accuracy of th[e prior]
ruling . . . . I am less convinced than ever
that such [a] receipt [of the pay phone call] even existed.â€
Analysis
Defendant
contends the trial court erred in denying her motions to dismiss for the delay
in charging her with McLaughlin’s murder.
She claims the loss of pay phone records precluded her from presenting
“a defense based on . . . Mr. Naposki’s innocence,†which “would
have been far stronger†than her claim he committed the murder alone. She also cites “the absence of
contemporaneous interviews with employees of the
. . . [n]ightclub where Naposki worked†as prejudicing her
defense. Finally, she complains no
justification exists for the delay because the police “could have but did not
pursue the available evidence with sufficient diligence to initiate a charge
near the time of the offense.â€
The
principles governing a claim of precharging delay are well settled. “The due process clauses of the Fifth and Fourteenth
Amendments to the United States Constitution and article I, section 15 of the California
Constitution protect a defendant from the prejudicial effects of lengthy,
unjustified delay between the commission of a crime and the defendant’s arrest
and charging.†(People v. Cowan (2010) 50 Cal.4th 401, 430; see also
783, 789 [97 S.Ct. 2044, 52 L.Ed.2d 752].)
But “‘[p]rejudice . . . from precharging delay is not
presumed’†and when “‘seeking relief for undue delay’†the defendant “‘must
first demonstrate resulting prejudice . . . .’†(People
v. Jones (2013) 57 Cal.4th 899, 921.)
“Prejudice may be shown by ‘“loss of material witnesses due to lapse of
time [citation] or loss of evidence because of fading memory attributable to
the delay.â€â€™ (People v. Cowan, supra, 50 Cal.4th at p. 430.)
“‘[A]lthough
“under California law, negligent, as well as purposeful, delay in bringing
charges may, when accompanied by a showing of prejudice, violate due process,â€â€™â€
where “‘“the delay was merely negligent, a greater showing of prejudice [is]
required to establish a due process violation.â€
[Citation.] If the defendant
establishes prejudice, the prosecution may offer justification for the delay;
the court considering a motion to dismiss then balances the harm to the
defendant against the justification for the delay. [Citation.]
But if the defendant fails to meet his or her burden of showing
prejudice, there is no need to determine whether the delay was
justified.’†(People v. Jones, supra, 57 Cal.4th at p. 921.)
“We
review for abuse of discretion a trial court’s ruling on a motion to dismiss
for prejudicial prearrest delay [citation], and defer to any underlying factual
findings if substantial evidence supports them [citation].†(People
v. Cowan, supra, 50 Cal.4th at p. 431.) “In evaluating the correctness of a trial
court’s denial of a defendant’s speedy trial motion, we consider all evidence
that was before the court at the time the trial court ruled on the motion.†(People
v. Jones, supra, 57 Cal.4th at p. 922.)
We find
no abuse of discretion here. The court
found only investigative delay hampered the prosecution’s filing of the murder
charge. “The justification for the delay
is strong when there is ‘investigative delay, nothing else.’†(People
v. Cowan, supra, 50 Cal.4th at p. 431.) The record supports its conclusion. Several Newport Beach Police Department
officers testified at trial, reflecting the fact that the department assigned a
significant portion of its resources to the McLaughlin murder investigation. The police department twice unsuccessfully
submitted the case to the district attorney in the mid- and late-90’s. In denying the pretrial dismissal motion, the
trial court noted the identities of the anonymous callers, Cottrill and Cogar,
were discovered only after “long hours and hard work†by a cold case
investigator who reexamined the case.
Further, “[i]t should be equally obvious that prosecutors are under no
duty to file charges as soon as probable cause exists but before they are
satisfied they will be able to establish the suspect’s guilt beyond a
reasonable doubt. To impose such a duty ‘would
have a deleterious effect both upon the rights of the accused and upon the
ability of society to protect itself,’ . . . .†(United
States v. Lovasco, supra, 431 U.S. at
p. 791].)
Defendant
does not challenge the court’s investigative delay finding. Thus, her argument that had the police
conducted a more diligent investigation, the case would have been filed sooner
amounts to merely challenging the police department’s allocation of its
investigative resources. (
Cal.4th 891, 911.) “A court may not
find negligence by second-guessing how the state allocates its resources or how
law enforcement agencies could have investigated a given case. ‘. . . Thus, the difficulty in
allocating scarce prosecutorial resources (as opposed to clearly intentional or
negligent conduct) [is] a valid justification for delay . . . .’â€
(People
v. Nelson (2008) 43 Cal.4th 1242, 1256-1257.) “For the same reason, the difficulty in
allocating scarce investigative resources provides a valid justification for
delay.†(People v. Abel, supra, 53 Cal.4th at p. 911.)
The
court also reviewed the assertions of lost evidence defendant cited and found
the bulk of them to be only speculative.
As for the loss of the pay phone call records, both defendant and
Naposki knew shortly after McLaughlin’s murder that they were suspects and thus
had an incentive to collect and retain exculpatory evidence. (People
v. Cowan, supra, 50 Cal.4th at p. 432.) In fact, defendant presented evidence
documentation of the pay phone call was initially obtained. But copies of it were never provided to the
prosecution and, given the fact the police continued to investigate defendant’s
and Naposki’s possible participation in McLaughlin’s murder for sometime
thereafter, no justification exists for the failure to maintain what is now
claimed to be key evidence.
Defendant
argues that if she had access to this documentation, it would have changed her
entire defense from claiming Naposki committed the murder alone, to asserting
he did not kill McLaughlin. Considering
the very strong evidence produced at trial pointing to Naposki as the murderer,
this contention is unpersuasive. Even
assuming Naposki stopped to make the phone call, the prosecution presented
testimony that he could have reached McLaughlin’s home in time to commit the
murder.
We
conclude the trial court properly exercised its discretion in denying both of defendant’s
pretrial and posttrial motions to dismiss because of the delay in charging her with
McLaughlin’s murder.
The
attorney initially retained by defendant demurred to the felony complaint
charging her with McLaughlin’s murder, relying on Kellett v. Superior Court (1966) 63 Cal.2d 822 to dismiss the
case. However, the demurrer was
overruled and the public defender who thereafter took over her defense did not
renew this claim when she was bound over for trial. Defendant now claims the failure to renew the
Kellett argument constituted
ineffective assistance of counsel, entitling her to a reversal of the
conviction.
This
argument lacks merit. To establish a
claim of ineffective assistance of counsel, a defendant “must establish not
only deficient performance, i.e., representation below an objective standard of
reasonableness, but also resultant prejudice.â€
(People v. Bolin (1998) 18
Cal.4th 297, 333; see also In re
Crew (2011) 52 Cal.4th 126, 150.)
We begin with “a presumption that counsel’s performance fell within the
wide range of professional competence and . . . [d]efendant thus
bears the burden of establishing constitutionally inadequate assistance of
counsel.†(People v. Carter (2005) 36 Cal.4th 1114, 1189.) For prejudice, “the record must demonstrate ‘a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’†(People
v. Bolin, supra, 18 Cal.4th at p. 333.) Further, since “‘[t]he object of an
ineffectiveness claim is not to grade counsel’s performance’†(
1019), where “‘it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, . . . that course should
be followed’†(id. at pp. 1019-1020;
quoting Strickland v. Washington
(1984) 466 U.S. 668, 697 [104 S.Ct. 2052, 80 L.Ed.2d 674]).
We
agree with the Attorney General’s argument that any effort to renew the
and therefore defendant did not suffer any prejudice from the public defender’s
failure to seek dismissal of either the murder charge or the financial gain
special circumstance on this ground. Penal
Code section 654, subdivision (a) declares in part, “An acquittal or
conviction and sentence under any one [provision of law] bars a prosecution for
the same act or omission under any other.â€
In Kellett v. Superior Court,
supra, 63 Cal.2d 822, the petitioner was arrested and charged with
brandishing a firearm, a misdemeanor.
Subsequently, it was learned he had a prior felony conviction and he was
charged in another proceeding with possession of weapon by a felon, a
felony. The petitioner pleaded guilty to
the misdemeanor charge and then sought to dismiss the felony charge under Penal
Code section 654.
The
Supreme Court granted relief. Citing the
policies of avoiding “needless harassment and the waste of public funds†(
Cal.2d at p. 827), it declared, “[w]hen, as here, the prosecution is
or should be aware of more than one offense in which the same act or course of
conduct plays a significant part, all such offenses must be prosecuted in a
single proceeding unless joinder is prohibited or severance permitted for good
cause. Failure to unite all such
offenses will result in a bar to subsequent prosecution of any offense omitted
if the initial proceedings culminate in either acquittal or conviction and
sentence.†(Ibid., fn. omitted.)
Cal.App.4th 786 noted, “[a]ppellate courts
have adopted two different tests to determine a course of conduct
for purposes of
multiple prosecution. [¶] One
line of cases finds Kellett not applicable where the offenses are
committed at separate times and locations.â€
(Id. at p. 797.) “A second
test . . . consider[s] the totality of the facts and
whether separate proofs were required for the different offenses. . . . ‘What
matters . . . is the totality of the facts, examined in light of
the legislative goals of [Penal Code] sections 654 and 954, as explained in Kellett.’†(Id.
at pp. 798-799.)
Defendant’s
reliance on the Kellett doctrine
fails under either approach. Her check
forgeries and thefts from the household account occurred before McLaughlin’s
murder while she forged the vehicle title certificate after he was killed. Defendant may have signed McLaughlin’s name
on the checks at the residence, but the thefts occurred when she cashed the
checks. There is no evidence the
post-murder forgery occurred at the McLaughlin residence. As for the financial gain special
circumstance allegation, “‘“the relevant inquiry is whether the defendant
committed the murder in the expectation that he would thereby obtain the
desired financial gain.â€â€™â€ (
Cal.4th 1263, 1309.) The jury could
have concluded defendant expected to acquire the life insurance policy benefits,
money, a car, and use of the beach house by killing McLaughlin.
Nor did
“‘the evidence needed to prove one offense necessarily suppl[y] proof of the
other[.]’†(People v. Valli, supra, 187 Cal.App.4th at p. 799.) The thefts and forgeries helped establish the
motive for killing McLaughlin, but they were not essential to proving defendant’s
guilt of the murder or the financial gain special circumstance. “The evidentiary test . . . requires
more than a trivial overlap of the evidence. Simply using facts from the first prosecution
in the subsequent prosecution does not trigger application of Kellett.†(Ibid.)
While
the police strongly suspected defendant was involved in McLaughlin’s murder that
was not enough to require joint prosecution of this crime with the forgeries
and theft charges. (People v. Davis (2005) 36 Cal.4th 510, 558 [“We have
recognized an exception to the multiple-prosecution bar where the prosecutor ‘is
unable to proceed on the more serious charge at the outset because the
additional facts necessary to sustain that charge have not occurred or have not
been discovered despite the exercise of due diligence’â€].) Nor would “the policies underlying [Penal
Code] section 654—preventing harassment of the defendant and the waste of
public resources through relitigation of issues . . . be served
here by holding†the murder prosecution barred because defendant was previously
charged and convicted of forgery and theft.
(Id. at pp. 558-559
[kidnapping and robbery charges not barred by the defendant’s prior plea to taking
the victim’s car].)
Since
defendant has failed to establish a timely renewal of the multiple prosecution
argument would have succeeded, we conclude her ineffective assistance of
counsel claim lacks merit.
Background
Defendant
challenges two evidentiary rulings by the court during trial. The first involved Cogar’s testimony that
Naposki told her he wanted to kill a man named “Bill†for making unwanted
sexual advances toward defendant shortly before McLaughlin’s murder. The second concerns testimony by the district
attorney’s investigator that Cottrill told him defendant said she planned to
marry Naposki. “We review the trial
court’s rulings on the admission of evidence for abuse of discretion.†(People
v. Cowan, supra, 50 Cal.4th at p. 462.)
Naposki’s Statement to Cogar
Defendant
argues “Naposki’s remark[] to Cogar do[es] not qualify [as circumstantial
evidence of a conspiracy] because Cogar was not a co-conspirator, and his
remarks to an uninvolved third party in no way furthered the conspiracy.†She also argues this evidence was
inadmissible to show Naposki’s state of mind because “it was too prejudicial
. . . to be admitted even with a limiting instruction.â€
As to
defendant’s first point, the only authority cited in support of it are cases
applying the co-conspirator exception to the hearsay rule. (People
v. Leach (1975) 15 Cal.3d 419, 428; People v. Saling (1972) 7 Cal.3d 844, 852;
Cal.App.4th 994, 1005-1007.) That
is not the case here.
Rather,
the appropriate rule is that “a statement which does not directly declare a
mental state, but is merely circumstantial evidence of that state of mind, is
not hearsay. It is not received for the
truth of the matter stated, but rather whether the statement is true or not,
the fact such statement was made is relevant to a determination of the
declarant’s state of mind.†(
Cal.App.4th 377, 389; cited with approval in People v. Harris (2013) 57 Cal.4th 804, 843.)
Defendant
has failed to show the court committed an abuse of discretion
on this issue. The trial
court admitted Cogar’s testimony for a relevant nonhearsay purpose. As the Attorney General notes, “[e]vidence of
Naposki’s state of mind, i.e.,
his motive to kill premised on information he received, was
relevant, as [defendant] denied entering into a conspiracy with him and
contended that he acted alone due to jealousy . . . .†(People
v. Ortiz, supra, 38 Cal.App.4th at p. 389 [“such evidence must be
relevant to be admissible—the declarant’s state of mind must be in issueâ€].) Further, before doing so, the court found the
prosecutor had “crossed the threshold of [a] preponderance of the evidence†to
establish the existence of a conspiracy.
Defendant
argues Cogar’s testimony violated the Bruton/Aranda
rule. (Bruton v. United States (1968) 391 U.S. 123 [88 S.Ct. 1620, 20
L.Ed.2d 476]; People v. Aranda (1965)
63 Cal.2d 518.) Not so. These cases “are inapplicable, because the[y]
involve the use of out-of-court statements by un-cross-examined codefendants to
incriminate a defendant at a joint trial.â€
(People v. Williams (2013) 56
Cal.4th 630, 668.) Defendant was
not tried jointly with Naposki. Further,
as already noted, Naposki’s statements were offered for and admitted for a
nonhearsay purpose.
She
also claims Cogar’s testimony about what Naposki said before the murder was too
prejudicial and the trial court erred in failing to rule on her Evidence Code
section 352 objection. First, merely
because the trial court did not expressly mention this statute in denying
defendant’s objection to this evidence does not mean it failed to consider that
ground. “‘[A] court need not expressly
weigh prejudice against probative value or even expressly state that it has
done so, if the record as a whole shows the court was aware of and performed
its balancing functions under Evidence Code section 352.’†(People
v. Doolin (2009) 45 Cal.4th 390, 438.)
Second, defendant provides no explanation of why Cogar’s testimony was
too prejudicial. “‘The prejudice which
exclusion of evidence under Evidence Code section 352 is designed to avoid
is not the prejudice or damage to a defense that naturally flows from relevant,
highly probative evidence. . . . “The ‘prejudice’
referred to in Evidence Code section 352 applies to evidence which
uniquely tends to evoke an emotional bias against the defendant as an
individual and which has very little effect on the issues. In applying [Evidence Code] section 352, ‘prejudicial’
is not synonymous with ‘damaging.â€â€™â€ (
Cal.4th 1028, 1059.) Because of its
probative value, Cogar’s testimony was certainly damaging to the defense, but
was not the type of evidence that would constitute prejudice under the statute.
Defendant
also asserts the limiting instruction given before Cogar testified to what
Naposki said was insufficient. But “[t]he
presumption is that limiting instructions are followed by the jury.†(People
v. Waidla (2000) 22 Cal.4th 690, 725.)
Defendant cites a federal case for the proposition that there are circumstances
where a limiting instruction cannot suffice to protect against the jury’s
misuse of evidence introduced for a limited purpose. However, nothing in the record supports a
conclusion the jury in this case failed to adhere to the court’s
admonition. Further, “we are
v. Bradley (1969) 1 Cal.3d 80, 86.)
Next,
defendant argues the prosecutor misused this testimony during closing
argument. However, since she failed to
assert a prosecutorial misconduct claim, we conclude any such contention is
waived. (People v. Stanley (1995) 10 Cal.4th 764, 793[“‘[E]very brief
should contain a legal argument with citation of authorities on the points made’â€
and “‘[i]f none is furnished on a particular point, the court may treat it as
waived, and pass it without consideration’â€].)
In any event, “[t]he court’s instructions, not the prosecution’s
argument, are determinative, for ‘We presume that jurors treat the court’s
instructions as a statement of the law by a judge, and the prosecutor’s
comments as words spoken by an advocate in an attempt to persuade.’†(People
v. Mayfield (1993) 5 Cal.4th 142, 179; see also People v. Boyette (2002) 29 Cal.4th 381, 435-436.) Again, defendant again fails to cite anything
in the record dispelling the presumption.
Thus,
we reject defendant’s claim the trial court erred in allowing Cogar testify to
what Naposki told her before the murder.
Statement to the Investigator
Finally,
defendant argues the trial court erred in allowing an investigator testify Cottrill
told him that defendant said she planned to marry Naposki. We agree the trial court erred in admitting this
evidence, but find it was harmless.
Laurence
Montgomery, an investigator with the district attorney’s office, testified that
he interviewed Cottrill after learning his identity. Over a defense objection, Montgomery stated
Cottrill said defendant told him that she was planning to marry Naposki. The court admitted this testimony as a prior
inconsistent statement under Evidence Code section 1235 [“Evidence of a
statement made by a witness is not made inadmissible by the hearsay rule if the
statement is inconsistent with his testimony at the hearing and is offered in
compliance with [Evidence Code] Section 770â€].
Defendant
argues this was error because there was no compliance with Evidence Code
section 770 [witness’s prior inconsistent statement not admissible unless
the witness was either “so examined while testifying as to give him an
opportunity to explain or to deny the statement†or “has not been excused from
giving further testimony in the actionâ€].
After Cottrill completed his testimony he was excused as a witness. While on the stand Cottrill was never asked
whether defendant made the statement Montgomery
attributed to him. The Attorney General
does not dispute this point, but argues any error was harmless because there
was other evidence supporting the fact that defendant and Naposki were planning
to marry.
We
agree with the Attorney General’s argument.
Where evidence admitted under Evidence Code section 1235 is “merely
cumulative,†“it is not reasonably probable that such erroneous admission
affected the verdict.†(
Cal.4th 92, 153.) That is the case
here. There was other testimony and
documentary proof that strongly suggested defendant and Naposki planned to
marry and live together once McLaughlin was killed.
The
real estate agent who showed defendant and Naposki homes in the new development
during the summer of 1994 testified she “assumed they were married†because
“they acted like they were†and “said they had four children and were looking
for a home.†Cottrill himself testified
that at the fitness center defendant and Naposki “came in together,
. . . worked out together,†“h[e]ld hands,†“kissed,†and would
“leave together.†The entries in
Naposki’s notebook also suggested that he and defendant planned on getting
married. Thus, defendant has failed to
show prejudice from this isolated evidentiary error.
For the
same reason, defendant’s claim the admission of this testimony violated her
constitutional right to due process of law also fails. “Only when evidence ‘is so extremely unfair
that its admission violates fundamental conceptions of justice,’ [citation],
have we imposed a constraint tied to the Due Process Clause.†(Perry
v. New Hampshire (2012) ___ U.S. ___, ___ [132 S.Ct. 716, 723, 181 L.Ed.2d
694, 706]; see also People v. Partida
(2005) 37 Cal.4th 428, 439 [“the admission of evidence, even if erroneous
under state law, results in a due process violation only if it makes the trial fundamentally
unfairâ€].) Given the other evidence
establishing defendant’s romantic involvement with Naposki, the erroneous
admission of Cottrill’s prior inconsistent statement did not render defendant’s
trial fundamentally unfair.
DISPOSITION
The
judgment is affirmed.
RYLAARSDAM,
ACTING P. J.
WE CONCUR:
BEDSWORTH, J.
THOMPSON, J.
