*1 S050082. July [No. 2007.] PEOPLE,
THE Plaintiff and Respondent, GEIER,
CHRISTOPHER ADAM Defendant and Appellant.
Counsel Hersek, Defender, Michael J. Helft, State Public P. Barry Chief Deputy Defender, State Public for Defendant and Appellant. Brown, Jr.,
Bill Lockyer General, and Edmund G. Attorneys Robert R. Graves, General, Anderson and Jo Chief Mary Assistant Attorneys W. Gary Schons, General, Wood, Assistant William M. Attorney Wilkens and Holly *7 Mestman, General, Andrew S. for Deputy Attorneys Plaintiff and Respondent. Opinion a MORENO, J. was convicted Adam Geier Christopher Defendant Code, 261, (a)(2)), subd. (Pen. of Erin Tynan § the forcible rape
jury 187, Code, (a)), as to which subd. (Pen. of Erin Tynan § the murder Code, (Pen. be true found to circumstance was a felony-murder special (Pen. murder to commit 190.2, (a)(17)), two counts conspiracy subd. § James Dean murder of Curtis Code, 182, 187), and the (a)(1), subd. §§ 187, Code, gain, lying-in-wait to which financial (a)), subd. as (Pen. § Code, (Pen. to be true were found circumstances special multiple-murder convicted of 190.2, conspiracy was also (3), (15)). Defendant (a)(1), subd. § Code, 182, 187). The also (a)(1), (Pen. jury subd. Lebouef to murder Gail §§ a a knife and used that defendant personally allegations found true special Code, 12022, (b), subd. (Pen. of the offenses. §§ in the commission handgun the murders of verdicts for 1203.06, returned death (a)(1).) The jury subd. declined to modify The trial court James Dean. Erin and Curtis Tynan to death on Code, 190.4, (e)), and sentenced subd. (Pen. verdict § Const., VI, art. (Cal. § is automatic. This appeal the murder counts.1 (b).) (a); subd. subd. §
We affirm judgment. FACTS
I. Phase Evidence Guilt
A. Prosecution Erin Tynan and Murder
1. The Rape Fort Irwin in stationed at officer was a military police In Erin Tynan involved romantically Tynan and summer of In the Barstow. spring Tynan Jones and Jones, Jr., in the When Army. who was also with William Jones, relations, According a contraceptive. she used sponge had sexual African-American Caucasian, muscular a for preference who was Tynan, cared about who Tynan person Jones also described men like Jones. in good her fingernails routine she kept of her grooming As part
appearance. color. their change would regularly shape Caucasian, defendant, and who was also who is with was acquainted
Jones bought Jones At some point, at Fort Irwin. and stationed in the Army The defendant. pistol from semiautomatic pistol .22-caliber Jennings enhance one-year weapons prison, with eight years also sentenced Defendant was counts, count, conspiracy on the years to life and two terms of rape on the forcible ment enhancements. year weapons years and one terms of two with additional Code. are to the Penal statutory references unspecified All further *8 condition. There was
pretty poor with the something wrong firing pin created a with the problem ejection of the after the cartridge was fired. gun
Jones left the in late Army but remained July, in Barstow until the Barstow, beginning August. Before he left Jones attended a with party at the Tynan apartment which defendant complex lived. Defendant was at the present Defendant had been party. with acquainted Tynan before and had once told party Jones that if he had seen first “he Tynan would have been with her.” Jones understood this to mean that defendant wanted to have sex with Tynan.
When Jones left California in he left August with he Tynan pistol from bought October, defendant. When he to her in spoke she told him she wanted to rid of the get gun and had a He told her to buyer. sell it. Robert an Bishop, Army sergeant, who had a dating with in the relationship Tynan fall of saw a .22- or .25-caliber semiautomatic at her pistol apartment. She in her kept gun closet and it down to brought show him. Anthony Brunson, another Irwin, soldier stationed at Fort contacted in late Tynan September or mid-October about buying that Jones had pistol left with her. He had approximately four conversations with her about the gun was trying raise the money it purchase until the time up of her death in November. Knox,
Eugene Irwin, soldier stationed at Fort began dating Tynan November He 1990. spent night November 13 with Tynan they engaged sexual intercourse. The next both morning they went to work at Fort Irwin. Knox last saw her sometime after 12:30 p.m. afternoon. At 5:42 p.m., Robert called Bishop Tynan from Fort Irwin and asked her if he could come and see her. She told him no because she was tired and wanted to to bed. go About 8:00 Joni Lee friend, Jacobsen p.m., visiting Jesse who lived Hisquierdo, in the apartment adjacent Erin Tynan’s apartment. She and when, were Hisquierdo watching television about 8:30 she p.m., heard a woman scream in the next A few apartment. seconds later she heard a “like someone thump running into the wall” or into the wall.” She “bumping assumed the next door were people and did not “partying” investigate.
The next November day, failed Tynan report duty. About 3:00 officer, Schieb, p.m., Barstow police Alan to her dispatched apartment to check up her. When he arrived he saw that the lights were on inside the and the apartment television was rather The playing loudly. door was locked. door, He knocked at the but received no Schieb left and response. returned two hours later with Sergeant Beringer, officer. military police after Shortly 5:00 p.m., let apartment manager them into Tynan’s Schieb apartment. locked, observed that the dead bolt was not only doorknob lock. The *9 and went into did not to be disturbed. Schieb Beringer room living appear bed. on the body turned found light. They Tynan’s lying bedroom and on the her was in a housecoat that open, exposing She was clad turquoise-colored Schieb called the police A was to her navel. breasts. sheet pulled up detectives be alerted. and asked for the and paramedics dispatcher Griego call. Leo arrived at scene in Schieb’s response Detective Griego into the On there had not been a forcible entry apartment. determined remover he bottles nail and room table observed dining polish polish identification, with Tynan’s on a cloth mat. He also found a wallet out spread had There were indications that a struggle credit cards and some cash. no kitchen, on the In the found two Griego pots taken apartment. place stove, The reason- and the other broccoli. food was containing one noodles for In the he found two containers ably empty sponge fresh. bathroom wastebasket, in the but no contraceptives. contraceptives and He observed Tynan’s body. went into the bedroom examined Griego that was off and on her broken fingernail right-hand ring finger hand. The in the other nails of her right strands of hair were embedded in the left were also and hair was found damaged of her hand fingernails her hand. A was found rolled up area of left pair panties fingertip the housecoat. not other than wearing anything was carpet. Tynan including various had suffered Griego Tynan injuries Detective observed and bruises around her knees to her left abrasions and eyebrow, discoloration the same area. around left ear and a wound in blood smears her puncture later con- was a wound but gunshot believed initially puncture Griego was There was blood on her foot. There cluded it was a stab wound. also on the found a .22-caliber Griego blood on the and bedsheet. moist carpet closet, but no gun. on the shelf of bedroom top cartridge He testified was examined Edward body by Pathologist Yeager. Tynan’s artery. behind ear severed carotid Tynan’s partly that the stab wound head, neck, and legs, torso and upper He also found injuries Tynan’s an abrasion on her forehead. observed Yeager an abrasion” observed “impact The absence found evidence of abrasion. vaginal tearing to her anus but no however, nonconsensual did his opinion preclude such injuries, death the stab wound the cause of Yeager, sexual activity. According strangulation. manual and from various items from bedroom criminalists removed Police fingernails embedded in her The strands of hair testing. Tynan’s body serologist David Vreland. forensic analysis by were collected for microscopic have could found in hand Tynan’s that seven of the hairs Vreland concluded criminalist, from come defendant.2 David Gregonis, sheriffs collected forensic from hairs samples Tynan’s including vaginal body, pubic rectal swabs. fluid Seminal was detected on the it vaginal swab and submitted for DNA testing. That revealed that the DNA matched testing defendant’s DNA. DNA on a bedsheet that contained testing piece Tynan’s semen revealed that DNA banding was consistent with pattern Eugene Knox’s DNA. Other seminal fluid found on the comforter match did not defendant’s DNA.
Rhonda Contreras lived with Sue Kennedy, defendant’s *10 at the girlfriend Contreras, addict, time of murder. a Tynan testified that after drug shortly murder heard Tynan’s she defendant “the bitch had what say she gotten that, deserved.” Defendant said that was “kind of had Tynan sleazy” she been his girlfriend, he would not have with her He told put up behavior. Contreras that had been beaten and Tynan brutally stabbed in the back of the head, neck or information that had not in the Geier yet was appeared press. a cleaning semiautomatic he while made pistol these comments and referred Winstein, gun his James a “baby.” fellow Fort Irwin who soldier was involved in the (see to Gail post), testified under murder Lebouef conspiracy that, a in grant December immunity defendant told him he had murdered Tynan.
2. The Conspiracy to Murder Gail Lebouef Gail Hunter, Lebouef was ex-wife of Jeffrey defendant’s at sergeant Irwin; Fort the two divorced in She Hunter in September 1989. remained touch after Marrero, the divorce. In December Lebouef was in a living Orleans, suburb New with her two her daughters from to Hunter. marriage During Hunter had marriage, fife insurance purchased on Lebouef policies and their children. He continued to on the after the pay premiums policies He divorce. was the beneficiary of for Lebouef. policy Lebouef aware Hunter was financial and at experiencing problems least one his creditors had contacted her about Hunter’s credit card bill. Hunter had unpaid also told her he was concerned about whether he could make child support payments scheduled to in or he begin after had off her car. paid but, Lebouef had been with living her due to with parents disagreements them, sister, Castle, she the invitation Hunter’s Robin to accepted stay Castle’s home over the She and one of holidays. moved into daughters Castle’s house sometime mid-December. Hunter was aware his ex-wife was with his sister. He also knew that she at a staying worked toy store in mall. shopping Knox, also Boyd, Vreland examined hairs taken Eugene Bishop, from Louis Robert Kelvin Sloan, Rivera, may and Michael men who apparently Tynan. also have involved Erin been with
Vreland determined that of the none hairs came from of these men. In defendant.3 a tank in the same battalion as gunner James Winstein was $1,000 December, defendant offered Winstein pay late November early visit his After some if him to Alabama to parents. Winstein would drive conversations, Winstein that his real defendant confided to purpose further for someone insurance to New Orleans to commit murder go Orleans. He told Winstein He Winstein to drive him New wanted money. After him share of insurance proceeds. he would from defendant’s pay murder, more information about Winstein agreed, provided victim, He Gail Lebouef. Winstein a showing photograph including s from Hunter. Lebouef told Winstein he had obtained the photograph knife, contained a black double-edged was in a suitcase that also photograph a road semiautomatic rope a nine-millimeter .22-caliber pistol, pistol, told he to New Orleans. Defendant atlas in which a route highlighted Lebouef s Winstein that defendant to break into residence planned her, it like a Winstein’s burglary. job and kill look night making middle after he committed be wait the car and drive defendant away would murder. *11 18, 1990, and in New on December arrived
The two men left California bag 20. Defendant had in his a black possession gym Orleans on December knife, firearms, a Once a and of clothes. containing rope, map change the Orleans, and forth between in New went back Lebouef’s they arrived they worked, car, eventually mall she for her house and the where looking parent’s in lot it Defendant wanted to kill Lebouef the parking at the mall. locating mall, this was not the agreed-upon plan. but Winstein objected they to kill her the mall. That evening, decided not at Eventually, they did they to house for her car. When returned Lebouef s parent’s looking it, Hunter, directions Robin find who him to gave defendant telephoned but, and from the number Castle’s home. drove house cars They to street, a so they there be decided thought might on the they party, people later. return at Castle residence about and her oldest arrived daughter
Gail Lebouef of the house. Lebouef went the back bedroom 10:00 p.m. They occupied a.m., Winstein About 3:00 midnight. bed around returned Defendant, dressed in dark exited clothing, Castle’s residence parked. was awakened .22-caliber knife and Lebouef pistol, rope.
truck with the A gun pointed the bedroom was turned on. about 3:30 a.m. when light in the He her shooting her man she saw in silhouette. fired gun, face survived, damage four teeth and suffered face. she she lost Although $400 containing s purse, approximately and her face. Lebouef jawbone cash, was taken from residence. grant immunity. Winstein testified under a fallen
Winstein had his car. At some he heard defendant’s point, asleep and then He coming toward car saw him footsteps quickly running. said, into the car and “Let’s jumped go, They let’s let’s off. go, go.” sped Defendant had a black in his from he gave which Winstein purse possession north, $30 $40. As drove they crossed Defendant tossed they bridge. purse, his clothes and the over the side of the Defendant gun bridge. described to Winstein had how he entered house and shot Lebouef. He said that the he gun had him after had fired the first round. He jammed California, told Winstein he had killed Lebouef. After returned to they however, defendant told that she not died Winstein had and there would be no insurance payoff. Lebouef identified defendant as the
Subsequently, spontaneously shooter from a of him in a photograph article about the Dean newspaper Curtis James murder (post) sent to her at her Detective She request by Griego also identified him as her at the assailant preliminary hearing.
A .22-caliber and a case of a cartridge fragment .22-caliber bullet projectile Blondet, were recovered from the bedroom where William Lebouef shot. examiner, the firearms testified that there awas likelihood” the bullet “good had been fired from a Jennings handgun. .22-caliber He also that the opined gun was a poor quality could have if there was weapon jammed difficulty a round chambering after been fired once and the weapon casing ejected. Murder,
3. The Conspiracy and Murder Curtis James of, Dean *12 Jennifer, wife,
Curtis James Dean with lived his their and two small children in Victorville. in Sometime late Jennifer told Dean a coworker her she and husband were marital having Another coworker problems. heard Jennifer Dean more than once that she hated her say husband and time, wanted him dead. Around the same Jennifer Dean an began having affair with Jeffrey Hunter. 11, 1991,
On Winstein January defendant James and him told approached that a female friend of Hunter’s who lived in Victorville wanted her husband man, dead. Defendant told Winstein that if he the they in killing participated would receive insurance money from the on the life. man’s Winstein policy was to the The was to provide transportation. killing take supposed place times, within the month. him asked several Although participate Winstein turned him down. 7, 1991, Taco at a job the Jennifer Dean went to night February
On coworker, the but, her shift on most of according spent talking Bell to a as if acting “something testified that she was Another coworker telephone. left Taco Bell around 2:00 a.m. She wrong.” a.m., Benson, Deborah received Jennifer Dean’s neighbor, Around 2:30 arrived home Benson that she had just call from Dean. Dean told Deborah thought She said she from work and could not find her husband in house. on the wall.” Dean something her husband be sick because she “saw might may also her bedroom were in and that house things disarray said some Scott, husband, him Benson woke her told have been Deborah burglarized. call, him check on about the and asked Dean. go met and drove the short distance to Deans’ residence
Scott Benson in a of fact” voice Jennifer Dean at her door. Dean “matter spoke very front that her house and not or afraid. She told Benson agitated did be appear house, had was in When Benson entered the been burglarized disarray. however, it not or to have been disarray burglarized. did be appear the house. The Deans’ were through daughters asleep Benson walked Dean, down the hallway master bedroom. As Benson moved accompanied bathroom, He he blood and in the near the switch. guest light saw on wall on found the of Curtis James Dean body entered the children’s bedroom and as a “fetal the two twin beds in what Benson described floor between bed, He on the floor and wall. There were “vast amounts” blood position.” door, closed the went to the kitchen called 911. had
Jennifer what he Dean was as he told the 911 about operator present he whether Curtis or Because did not know speak. found. She did react alive, bedroom, knelt Dean dead Benson went back into James but to do so. He observed and tried to find was unable body pulse, kitchen, He back got numerous wounds to the returned to body. stab told her that “it we appeared the line with the 911 operator, did not react. death.” Jennifer Dean Again, arrived,
Later, two small Scott Benson took Deans’ after the police Sabrina, house, child the older arrived at his children to his house. When they *13 two or “the daddy,” about “the two mean men that killed said something Benson, Dean, and Jennifer At a later daddy.” mean men that hit her point, they in a car. While to the sheriff’s station police children were driven mean car, the two her comment “about were in the Sabrina repeated patrol officer, heard also Gryp, The Deputy men that hurt her daddy.” transporting in a blood “she saw bent over daddy pool Sabrina tell her mother that station, noticed blood smears were at the Benson the bedroom.” While they on Sabrina’s and her saw the blood nightgown also leg. Gryp spatters heard Sabrina about a on her head. complain bump
The revealed no Dean police investigation of forced into the signs entry residence or that the A deal signs residence had been ransacked. great blood was found inside and outside the Dean residence. Two of blood drops on found the cement in front were of the house later determined to be consistent with defendant’s blood. Blood found on a hand left on green towel the floor outside children’s bedroom with was also consistent defendant’s blood, floor, as was blood on the found bathroom and on doorjamb bedroom house, Much of the rest of blood hallway carpet. found in the the blood found on including Sabrina’s was consistent nightgown with Curtis James blood. Dean’s The blood on Sabrina’s indicated she spatters clothing was less than feet five from her father when he was stabbed. James Curtis wounds, Dean suffered knife a including series wounds that appeared have been inflicted after his death.
Police later recovered items to Jennifer Dean belonging from the apartment of friends where she often stayed. those items Among was mat paper place from Taco with Bell defendant’s name and a telephone number written on it. Police also obtained Dean’s bank records. showed $500 cash advance They on 1991. January
Defendant’s Sue girlfriend, testified that a woman named Kennedy, Jennifer called defendant at the shared she with defendant. She apartment testified further sometime in 1991 she cut February noticed a on defendant’s forehead that he said of a was result door garage shutting arrested, of his head. After top defendant was had a Kennedy phone conversation with defendant in which he told her he had gone to the Dean Redden, his, residence with Mark “beat friend Dean’s husband. up” that, He told Kennedy when Redden started Curtis James Dean with attacking iron, a tire defendant ran into the bathroom and there. asked stayed Kennedy defendant if he had Dean killed insurance money. for Defendant remained silent.
On May a statement gave regarding murder Curtis James Dean to an Lester Army investigator, Powlen. The interview for taped Defendant how tape played jury. described Hunter approached him and asked him to find someone kill Jennifer Dean’s husband. met Defendant with Dean and told her he would arrange $10,000. hit” “the She him a gave of her husband. At a photograph second she $500. advanced him meeting, *14 of Redden to with the murder. On night
Defendant recruited Mark help murder, he to Bell Jennifer Dean Redden and went the Taco where to drove to the Dean home They worked and obtained her house. key and Redden double-edged dagger entered. Defendant was armed with a The hit the tire iron from defendant’s car. Redden to plan carried But the tire iron while defendant stabbed him. Curtis James Dean with that, once inside bedroom where victim defendant told the investigator feet,” he he did not want to kill “cold told Redden sleeping, got victim, that Redden struck and went into the other room. Defendant claimed iron, and, even defendant on head. Dean with the tire one struck point, him, He hit he went into the bathroom. claimed After Redden defendant said heard Dean that Redden took defendant’s Defendant Sabrina dagger. being while her father was murdered. “screaming” the cut on his head with a towel. He and
Defendant said he cleaned green murder, his left After the threw dagger, Redden then the house. into He and Redden dumpster. some latex of Dean gloves pictures Later, defendant buried the tire and their in the desert. took clothing iron of and led him to a site where two sets homicide detective into the desert iron buried. The condition of the clothing tire were found clothing results or markers. ability serological genetic affected obtain negatively however, saturated stains and heavily Both pairs pants, displayed impact be areas that bloodstains. appeared Phase Guilt Evidence
B. Defense babysat Kennedy, girlfriend, Sandra who for Sue defendant’s Kay Hoyt, herself, Kennedy, testified that she had observed and then dated defendant Hunter, Kennedy’s meth” in “snorting Mark Redden and James Winstein at that Defendant was not time. apartment. present that, when he Gail Lebouef initially spoke
Detective testified Griego contained two one which photo lineups, about he showed her shooting, Hunter, others. Jeffrey among and a photograph defendant’s photograph ex-husband, of her but was unable Lebouef out photograph picked Later, to Lebouef he sent articles newspaper other identify any photograph. Hunter, Jennifer Griego Dean and defendant. photographs contained Winstein, initially Winstein testified that when he first contacted James also Las with his mother in Vegas. he Christmas holidays said spent $1,000 Later, to Louisiana for he he had to drive defendant agreed admitted he to do “some deal.” drug where defendant told him was going type *15 After Winstein of his said he not want Griego rights, advised Winstein did to and go jail would Winstein then told that defendant cooperate. Griego had told him he shot did had a woman but that she Eventually die. Winstein told he had all he known that and defendant were Griego along kill Louisiana to defend- going Hunter’s wife. Winstein said that Initially, death, ant had not said to him about Erin then said anything Tynan’s but told him Tynan killed because she was too close to a getting told he drug investigation. Griego Winstein needed on the that had help gun Winstein, been used to shoot Lebouef. He told me the I’ll gun and write “give letter the D.A. saying It was you’re helpful.” only Winstein’s he immunity that talked about hearing seeing disassembled and gun being thrown away.
Defendant also called Sabrina eight-year-old Dean. Sabrina testified that two men hurt her father. She denied told having her mother hurt police her father with a knife and the knife awith towel. She also wiped green denied showing drawer where her mother police knives kept telling that her had police mother blood her or shower she on took a after came However, home. Sergeant Brown of the Larry San Bernardino Sheriff’s testified that Department Sabrina first stated that men two had done “some- bad” to her father but also her thing said mother hit her had father in back Brown, with a knife. According Sabrina said that her mother took knife drawer, back, from the kitchen stabbed her father in the rinsed the knife off in sink, the kitchen then in the it kitchen drawer. The replaced took police her to Dean residence. She led them to the drawer knife out pointed the knife she said her mother had used.
Brown testified Sabrina her statement about her father repeated having been stabbed her mother. Sabrina also that her had again said father been murder, attacked two At men. a final interview a few after the days Sabrina said that her mother had stabbed father after the men had two him, attacked in contrast to her earlier statements which said her she mother had stabbed her father before two men attacked him.4 Penalty Prosecution Phase Evidence
C. The prosecution did not at the present additional evidence penalty phase the trial. Penalty Phase Evidence
D. Defense A number of defendant’s friends and members came defend- family from ant’s home state of Alabama to These his behalf. witnesses testified testify noted, As testified pathologist postmortem. that some of Dean’s knife wounds were leader, follower, who tried to please people was a rather than that defendant Two defendant’s uncles who important. whom acceptance *16 have led may trait of a follower being in the testified this military served Other testified Hunter. witnesses by Sergeant defendant to be manipulated in behavior Hunter. by Sergeant that defendant was influenced his was affected by Mends also testified that defendant deeply Defendant’s friend, old. years Eric when defendant was King, murder of his best and became witnessed murder having Defendant was shaken extremely by reclusive, Testimony regarding was also introduced and depressed. paranoid to live with a woman who came defendant’s difficult with relationship died, and his first Defend- after his father with family stepfather. defendant’s a that defendant had been and members also testified ant’s friends family shock at the was and growing up they expressed violent when he person of which he had been convicted. charges Fischer, defend- a testified about extensively
Edward clinical psychologist, Anniston, Alabama, ant, bom in a social Defendant was history. providing his As a child he target and was the of three brothers. was youngest five, he was and When defendant was ridicule because thin sickly. brother’s and, later, following a two died years father suffered stroke his approximately life because the central in his figure stroke. Defendant’s father was second were at Defendant and his brothers school. busy college his mother was with death, After father’s a “masculine father’s death. his felt his responsible live and fill family Sue came to with attempted woman” named brothers, his his and oldest She disliked defendant and role. was paternal was with them. living brother ran while she away named Virgil. mamed a man
After defendant’s mother Sue’s departure, criticized constantly old. Defendant’s stepfather Defendant was eight years left, also older brothers left. After defendant’s eventually Virgil him. Virgil in her her doctorate and was involved home and his mother left pursued activities, own. Defendant defendant his teaching leaving and church and karate. fantasy game, Dragons, became involved Dungeons defendant best friend. When also Eric who became his King, He befriended death, following in defendant’s presence, Eric was shot King shot someone shooting, other boys. Following confrontation with some who killed led defendant to believe boys defendant’s which dog, defendant’s reaction him well. Dr. Fischer described were after King of posttrau- indicative King’s guilt paranoia—as Eric death—depression, matic stress disorder. drank beer and used marijuana, defendant
During teenage his years, with LSD. experimented some
At in his late defendant’s mother remarried point teenage years, husband, moved with her new defendant alone in the house. leaving family Defendant lived with a named were They friend Watson. Bobby joined wife, who woman became defendant’s Kim. After Kim’s commit- boyfriend suicide, ted she an asked overdose and She hospitalized. attempted defendant to get her out of and moved in with him and Watson. hospital married,
After defendant and Kim defendant The mar- joined Army. riage disintegrated, and Kim became involved with another they man. After to exhibit what Fischer characterized separated, began as symp- toms manic have may behavior been the beginning hypomania. *17 Fischer, to According of a in the symptoms set forth hypomanic period, American Psychiatric Association’s and of Diagnostic Statistical Manual Edition, Mental Disorders—Third include decreased need for more sleep, self-esteem, energy, increased and creative extreme productivity thinking, excessive gregariousness, involvement activi- hypersexuality, pleasurable restlessness, with no ties concern negative for increased consequences, talkativeness and Fischer testified that another inappropriate laughing. aspect of is a to hypomania desire and to look for please external direction people from other than rather it people seeking from within. mania was Defendant’s use, exacerbated nitrate, his which of by drug included the use amyl liquid steroids, codeine and He also a used that can a amphetamines. drug make actions person’s unpredictable aggressive.
Fischer administered a series of tests to defendant including Wechsler Test, Adult Intelligence a Bender-Gestalt Test and Minnesota Multiphasic Personality (MMPI). The latter Inventory test indicated defendant was psy- chotic with a likely disorder or mania.” to diagnosis “bipolar According Fischer, a person with this profile single, would have a hard time usually himself, controlling and exercises Defendant tested in poor judgment. for mania and the percentile for ex- percentile Fischer schizophrenia. “When this plained, you to elevation . . . are get about you talking somebody who is generally Fischer concluded that defend- psychotic prepsychotic.” Fischer, ant was a full-blown manic. to while According suffering people from hypomania know the difference right between be wrong may “they data unreal . . . in the responding sense of hallucinations or delusions.” Fischer, According to willingness of a manic to accommodate feelings his others, and attitudes to those of “the arising from relative instability is “how are ego” who are used people mentally defective other people decisions, ... a He makes his he is his conspiracy. responsible decisions, but he is unduly influenced others.”
The defense also from Sergeant Hunter presented testimony Jeffrey his trial. Hunter that he testified had defendant about counseled defendant’s Dean, introduced defendant to Jennifer He admitted having drug problem. Dean. to kill Curtis James plan denied discussed with defendant having but Gail He in the Lebouef. shooting He also denied essentially participation that, Dean, Hunter if the murder of Curtis James defendant told testified after Dean would were Hunter and Jennifer defendant picked up questioned, been out.” told Hunter that Hunter was to have be “taken He also supposed said, “I won’t Orleans of Gail Lebouef and “in that room” in New instead fright- time.” Hunter testified that these statements make that mistake next him testified defendant admitted to his participa- ened him. Hunter also Dean, but in the of Curtis James Hunter whether questioned tion murder had murder. taken part for the of Jennifer Dean was also played A interview videotape police she Dean said stabbed her husband death with kitchen knife that she jury. when taken from the knife drawer in the kitchen. She said she naked had and, him, husband, it her cleaned the knife and killing she killed after put said in the said she then took a shower and dressed. She got back drawer. She that the killed he had hurt Sabrina. She claimed she had her husband because about killed had who earlier inconsistent statements she given police her She her husband were false. She said no one kill husband. helped *18 that comment about the two men who attacked Sabrina’s explained fattier referred to the paramedics.
II. ARGUMENT Issues; Joinder Pretrial
A. when it Defendant the trial court abused its discretion contends involving consolidate Erin charges Tynan motion to granted prosecution’s circumstances), those and with felony-murder murder with special (rape of commit and solicitation Gail Lebouef murder involving (conspiracy to commit murder) and Curtis James Dean involving (conspiracy those lying-in-wait murder and murder with financial gain, multiple-murder that, did even if the trial court circumstances). He additionally argues special motion, actually at the granted joinder abuse its time it discretion (People v. to a denial of due amounting process. unfairness gross resulted 398, 677].) (2006) Cal.4th 440 Cal.Rptr.3d 39 Ramirez [46 more accusatory “if two or In relevant section provides 954 part, offenses of the same are “two or more different charging filed” pleadings to be ... the court order them consolidated.” may of crimes or offenses class “ and, are crimes (§ 954.) against person ‘Murder and assaultive rape
575
such, are “offenses of the same
of crimes” within the
class
section
meaning
”
Ramirez,
954
were
joinable.
v.
properly
[Citations.]’
439,
342,
Cal.4th
(2003)
quoting People Maury
v.
30 Cal.4th
[133
561,
“Thus,
1].)
68 P.3d
that a
Cal.Rptr.2d
must show
substantial
danger ask whether
severance.
We
prejudice compelled
[Citation.]
discretion,
denial of severance was an abuse of
the record before
given
trial court.
A
ruling that was correct
made can be
pretrial
when
[Citation.]
reversed on
if
was so
as to
only
joinder
unfair
due
appeal
grossly
deny
514,
(2005)
process.” (People
Stitely
35 Cal.4th
Cal.Rptr.3d
“ ‘Refusal to sever abuse (1) be an of discretion may where: evidence the crimes be tried would not be jointly cross-admissible separate trials; (2) certain of the are inflame the charges unusually likely jury defendant; against (3) case, a “weak” case has been awith joined “strong” case, or with another “weak” so that the effect of “spillover” aggregate evidence on several charges well alter the of some might outcome or all of (4) one charges; the death charges carries penalty ” joinder them turns the matter into a case.’ capital (People Bradford 15 Cal.4th 259].) P.2d Because defendant he what asserts is the absence of emphasizes cross- admissible evidence between the and the Lebouef and Dean Tynan charges it charges, necessary out that section point 954.1 provides expressly “where two or more accusatory of the same pleadings charging offenses class consolidated, crimes or offenses have been evidence one concerning offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses be tried may before the same trier together Thus, of fact.” (Italics added.) sine is not the non “cross-admissibility qua joint (Frank *19 trials.” (1989) v. Court Superior 48 Cal.3d 641 [257 550, Therefore, 770 P.2d Cal.Rptr. 1119].) while “prejudice usually dis if pelled” “evidence of one crime would be admissible in a trial of separate the other crime” 531-532), v. (People Stitely, Cal.4th at “lack of pp. not, itself, cross-admissibility is by sufficient to show bar prejudice 532; (Id. joinder. see (1993) Belton v. Court p. Superior [Citations.]” 1279, 1286 Cal.App.4th a codification 954.1 “is Cal.Rptr.2d [24 34] [§ several Court cases . . . hold Supreme that while cross-admissibility may be considered as a factor suggesting absence of possible prejudice, itself, not, does cross-admissibility suffice to by demonstrate prejudice”].) aside for a moment Setting the issue of none of the cross-admissibility, other factors for from assessing arising defendant’s prejudice joinder support claim None granting that the trial court abused its discretion consolidation. other, each involved three cases was more than inflammatory of the of one Nor was the evidence case egregious significantly facts. comparably of a as to create the danger weaker than the evidence of others so strong with charges joined effect that occurs when “weaker “spillover” [are] the outcome might that the of the evidence alter aggregate so effect charges (1997) the trial.” Marshall 15 Cal.4th (People Cal.Rptr.2d [61 262].) 931 P.2d case, hairs were found in Tynan’s defendant’s Tynan
With respect that she in semen her He was aware vagina. possession hand and his her which was the item from only missing of the Jennings handgun, murder, he with a after after and was observed apartment handgun Furthermore, murder before defendant was aware of details murder. killed told Winstein that he had were released to the he they public, case, Winstein, testi- accomplice, the Lebouef defendant’s Tynan. Regarding Lebouef, and against fied about defendant’s commission the offenses man tried to kill As to the Dean Lebouef identified defendant as the who her. case, kill that he had been hired to defendant’s own statement established admitted the Dean Dean. been at the scene of Curtis James He also having murder, also impli- he tried to minimize his He was although participation. testimony blood and Sabrina Dean’s cated in the Dean murder evidence Thus, hurt defendant against that two men her father. the evidence in all three cases. strong equally were the result of of the various joinder
Finally,
capital charges
“[t]he
130, 162
(2000) 24 Cal.4th
incidents.”
Mendoza
150].)
6 P.3d
essentially
the issue of
concedes
cross-admissibility,
On
the Dean case because
in the
case was cross-admissible in
evidence
Lebouef
“the
but claims that
share
common characteristics”
both
some
“arguably
from
them.”
offense is
dissimilar
both of
Tynan
totally
Cal.Rptr.
577 Defendant contends that his use of the in the Lebouef case could handgun have been of established without admission evidence how he any regarding obtained the and that of the handgun his removal from gun, Tynan’s could have been without of his established the evidence apartment subsequent use of in the Lebouef case. But defendant was identified as the handgun and, therefore, evidence perpetrator kill Lebouef that he attempt used the taken from in the on Lebouef would gun Tynan’s attempt apartment constitute some evidence that he also the who removed the person gun and, Thus, from Tynan’s murdered by implication, Tynan. apartment offenses, trial evidence separate Tynan of defendant’s use of the gun Lebouef could be admissible on the attempt question identity. case, Similarly, in a trial of the Lebouef evidence that defendant was separate identified, evidence, DNA as the assaulted through Tynan who person removed the from her then gun gun which was used apartment, against Lebouef, could admitted be as some evidence that defendant was the person Thus, who to kill Lebouef. cross- attempted citing potential admissibility of the evidence as one reason consolidation handgun supporting of these cannot trial cases we court’s exercise of discretion was say “ ” v. Ochoa ‘outside the (People (1998) bounds reasons.’ Cal.4th 19 Johnson, 442]; 408 P.2d see supra, trials, Cal.3d at its to order weighing discretionary power separate [“In the trial court could consider this between the interplay evidence two occurrences”].) however, that,
We if even did not emphasize, cross-admissibility support cases, consolidation of the absence of alone cross-admissibility would not be sufficient (1) to establish where the offenses were prejudice properly joinable (2) under section no other factor relevant to the assessment of prejudice demonstrates an abuse of discretion. v. Stitely, (People 531-532.) Cal.4th at pp.
We with agree the various theories offered prosecution that evidence in the case was cross-admissible in the Dean Tynan claim, case are not there persuasive. Contrary prosecution’s so nothing distinctive about the use of knife in the cases as to two support an inference that defendant was the Nor does additional fact perpetrator. entry defendant’s into each victim’s residence was without accomplished v. Bean force to an such inference. 46 Cal.3d support 467, 760 P.2d be admissible as modus Cal.Rptr. operand! [to 996] evidence the than “common marks must be distinctive rather ordinary aspects such of crime. must be category they distinctive that They sufficiently Nonetheless, bear ”].) the lack of ‘signature’ defendant’s cross- unique admissible as evidence between the and Dean offenses does not Tynan where, establish prejudice offenses were of same class explained, 954.1, and therefore none under section of the factors statutorily joinable *21 to the defendant’s claim of preju relevant assessment prejudice supports above, Moreover, because the handgun dice. for reasons explained was and Lebouef cases and evidence evidence cross-admissible in Tynan case, was, turn, cross-admissible in Dean from the Lebouef case in the interest of judicial efficiency. consolidation of all three cases served Ochoa, at consolidation v. 19 Cal.4th (People p. [“Because it”].) Accordingly, law we conclude efficiency,the ordinarily promotes prefers it granted joinder that the trial court did not abuse its discretion when motion. that, not claim if the trial court did
We also defendant’s further even reject its actually its in the first by granting joinder, ruling abuse discretion instance to a denial of due resulted unfairness gross amounting process. 531.) at Defendant asserts evidence 35 Cal.4th
Stitely, supra, p. actions, and lack of regard well-being deliberative “planning, influ the Dean Lebouef offenses others” introduced in connection with offense, had which he argues enced the consideration of the jury’s Tynan was His that such evidence none of this of direct evidence. premise type with offense is erroneous. The circumstances Tynan lacking respect and a for her disregard well-being. the Tynan offense show planning, purpose Defendant, who interest and was aware she Tynan had a sexual expressed Jr., Jones, gained he had sold to William handgun possession her, and took the handgun admittance and murdered raped apartment, Therefore, defendant’s claim to use in the on Lebouef’s life. we reject attempt effect in connection with the that there was a of evidence admitted spillover case, less that such evidentiary Dean and Lebouef cases into much Tynan resulted in a due violation. spillover process court that the trial as defendant contends
Finally, corollary argument, that it could not use evidence failing jury erred to sua instruct the sponte that this him of crimes. Defendant maintains of one crime convict other jury his due unbiased rights, right instructional error violated process fair and determination. to a reliable penalty 17.02, concedes, to CALJIC No. jury
As defendant pursuant You decide “Each count a distinct crime. must charges instructed follows: guilty be found guilty each count The defendant separately. may in a Your as to each count must be stated or all the crimes charged. finding verdict.” separate 357], P.3d
In Catlin Cal.4th an instruction trial court refused to correctly give we concluded that the been should have as the defendant argues the same lines instruction along “ consid each must be charged here: ‘Evidence offense applicable given ” We (Id. it before the jury.’ ered as if were the accusation only *22 instruction, that to the explained “[c]ontrary import proposed special under Evidence Code section 1101 the could consider other- jury properly count, crimes evidence in connection with each and also could consider evidence relevant to one of the counts as it considered the other charged Catlin, (Ibid.) charged here, count.” We noted that in certain evidence would have been cross-admissible trials the offenses. separate Finally, we rejected instruction as cumulative of proposed (26 CALJIC No. 17.02. Cal.4th at p. Catlin, out, case,
As the General Attorney in this points unlike failed 17.02, even to a modification propose of CALJIC No. or to an propose instruction, additional thus the claim of forfeiting instructional error.
Kimble 480, 148, 44 Cal.3d 749 P.2d Cal.Rptr. 803] [where trial court law, instructed the “correctly jury regarding it was defendant’s obligation to request any clarifying amplifying instruction on that sub Even ject”].) claim, if defendant had not forfeited the we would it for reject the same reasons we argument advanced in Catlin. rejected comparable then, Necessarily, we reject defendant’s collateral claim that the instructional error lowered the prosecution’s burden of proof.
B. Guilt Phase Issues
1. Third Party Culpability Evidence Defendant contends that trial court erred when it excluded evidence that a Sloan, man defendant, named Kelvin rather than have murdered may asserts, further, Erin Tynan. He that the error violated his constitutional rights Fifth, Sixth, under the Eighth Fourteenth Amendments to the federal Constitution. We find no error.
a. Background At a hearing conducted to Evidence pursuant Code section the defense Sloan, Green, presented of Kelvin testimony Ruby and Nilia Harrison for purposes establishing third defense party culpability based on the theory Sloan, defendant, rather than killed Erin Tynan. Sloan testified that in November he was a Marine stationed at Fort Irwin and also worked time There, at a part restaurant called Naugles. November 5 or he her, met Tynan. A or two after day he met he spent several hours at her but he did not apartment, in sexual engage relations with her. He testified he occasion, went to her house on one other for about staying hour, an but he could not remember the date. evidence, murdered in Barstow on Erin
According Tynan he was at hospitalized Camp November Sloan testified that 1990. night disorder, 16, 1990, seizure from November November Pendleton birthday.” Camp the “Marine ceremony marking Corps after he collapsed For first two away days is 160 to 170 miles from Barstow. Pendleton *23 had up. to a bed that strapped guardrails Sloan’s he was hospitalization, he from on until was released the hospital The remained guardrails up that date. On He to leave the before hospital November 16. was not permitted 16, from to Fort ambulance hospital November Sloan was transported with his sister at her from to November he stayed Irwin and November 19 at the Documents hearing supported home in Moreno Valley. presented at Camp he was not from testimony discharged hospital Sloan’s that Defense two after murder. Tynan’s Pendleton until November days date of the “The record does show a discharge counsel that acknowledged That 16th .... is true.” part discharge Sloan’s and the introduction testimony hospital
Following counsel, “I am on the the trial defense that proceeding court told papers, him to that it was for impossible based on the witness’ testimony assumption to be date in leave the Pendleton in Barstow Camp facility question. Navy with Marine You will have check every personnel, opportunity it, whatever, I that But if are unable to rebut you to rebut assertion. personnel, in a true the fact that was confined being will have to accept [Sloan] that he could not which is a from therefore ways Barstow locality long at the the crime was committed.” Defense been in the Barstow area time have “is at that between Pendleton and Barstow counsel the distance agreed Camp least 170 miles.” record,”
Nevertheless, defense to the trial court allowed the “perfect Sloan Green testified that she and Green and Nilia Harrison. Ruby call Ruby until and continued live together in November 1990 living together were Naugles Green that she saw Sloan at testified April 1991.5 they separated night She knew it was that on the was murdered. Tynan with Tynan night “a later.” couple days read the murder newspaper because she about and, he did not home that when night further that Sloan come She testified had did, than uniform in which she Naugles he was clothes other wearing barracks some he had gone pick up him earlier. He told her seen he named dropped after and someone Boyd clothes and had fallen asleep had three that Sloan acknowledged spent off at house. Green Tynan cross-examination, she also November On in the 1990. days four hospital the date murder or did not know the date Tynan’s she acknowledged Sloan did not come home. when established, baby but Green had a relationship nature was not precise The of their living she with Sloan.
another man while that,
Nilia testified the end of was at the home Harrison toward she cousin, Lawrence, of her Eva with Sloan told her the had police Sloan. picked him he in connection with murder. Sloan told her up Tynan’s Tynan been close friends “and to set him the murder.” they trying were She up then testified that he told mean She her “he didn’t to do it.” said she told Sloan “that friend . . was talking . about his friend was getting [Harrison’s] set for the murder and that this friend was Jonathan Knox.” Sloan asked up “[bjecause her about a man named Rollins he said he wanted to Ephraim know that that looked like him he wanted to know person Ephraim, [and] Jonathan Knox.” Harrison then that Sloan said he didn’t mean testified “that to kill her.” On redirect cross-examination and examination she testified again that Sloan said someone had for the set him murder and that the up person who it committed “looked like him.” She just testified told again Sloan her he “didn’t mean to kill her.” She that she did not acknowledged *24 remember the when conversation occurred. had
Following argument, the trial court ordered the not defense to mention Sloan or the other witnesses the or in during opening argument, questioning witness, any to call Green or Harrison “until we have had a further the hearing outside to presence the establish the relevance of jury any their But testimony. my is that based on preliminary ruling hospital [the discharge documents on their face . least . . establish the fact that that] Mr. Sloan could not have been in Barstow on the the date of murder and therefore his and the testimony testimony of the other witnesses two would be irrelevant.” The defense did not renew its to this evidence. attempt present
b. Analysis “The of law are . clear. . . standard for principles admitting [T]he evidence of third the same other party as for culpability exculpatory [is] 350, evidence: the evidence to be relevant Code under Evidence section [has] [canjnot its value probative be the risk of ‘substantially outweighed by undue delay, or confusion’ under Evidence prejudice, Code section 352.” 648, 788, (1990) v. Kaurish 52 (People Cal.3d 685 802 P.2d Cal.Rptr. [276 278].) time, evidence, “At same we do not however require remote, must admitted be to show a third party’s . . . possible culpability. [Ejvidence of mere motive or to commit the crime in another opportunity more, without person, will not suffice to raise a reasonable doubt about a defendant’s there guilt: must be direct or circumstantial evidence linking third to the actual of the (1986) crime.” v. Hall 41 person perpetration Cal.3d 99]; P.2d see Panah Cal.Rptr.
35 Cal.4th 790].) 107 P.3d standard, she testimony—that this it is clear that Green’s Ruby Applying murder, that return saw with the victim the he failed to night Sloan their and later told her that he and night, Boyd dropped residence that off at her excluded. Such evidence does not Tynan apartment—was properly it be rise even to the status of motive evidence. While could generously as had the commit the possible opportunity construed evidence Sloan crimes, noted, as evidence of mere without further evidence opportunity the third the actual offense inadmissible linking party perpetration as third evidence. party culpability
Somewhat is the of Nilia Harrison that Sloan testimony more problematic that he Erin made comments that could be construed an admission killed not, maintains, that the trial court The here is as defendant Tynan. problem failed excluded because defendant testimony produce improperly evidence evidence that Sloan in a controverting documentary hospital was killed. The away Tynan or 170 miles from Barstow night minitrial is that admission of the evidence would have necessitated a problem on the of Sloan’s whereabouts on the of the murder thus night question issues, “of or of possibility confusing misleading jury.” creating Code, (Evid. § its Evidence Code trial court did base
Although expressly ruling and, 352, we review the not the court’s ruling, reasoning ruling section if *25 1“ of was we affirm. “No rule decision is better or ground, correct any more nor one a sounder basis of firmly resting established by authority, upon decision, law, and than or itself correct in will reason ruling propriety, not because for the reason. If merely wrong be disturbed on appeal given case, of law it must be sustained right any theory upon applicable which moved the trial court to its regardless may considerations have ’ ” (People Zapien 929, (1993) conclusion.” Cal.4th Cal.Rptr.2d v. 976 [17 704].) P.2d of and tenor of In the confused light contradictory at was one that Sloan said someone testimony—asserting point Harrison’s murder, another, him and that he to it—her for the at confessed framing noted, as value.” “minimal testimony possessed, prosecutor probative that the Balanced this minimal value was against probative “probability” con would undue testimony admission Harrison’s have “necessitate[d] issues, (Evid. . . . or the jury.” time or sumption misle[d] confus[ed] therefore, Code, 352.) was this the exclusion of ground, testimony On § not error. we trial erred admitting testimony
Even if assume that the court Harrison, than the minimally or error was harmless. Other Green direct witnesses, all, at there no evidence of these was testimony probative circumstantial, Sloan to the actual perpetration rape that connected contrast,
murder of Erin the evidence that Tynan. By defendant was was His was found in the victim’s perpetrator extremely strong. sperm hands, his were hairs found in her he revealed details of the murder to vagina, Rhonda Contreras that had not made he been used a firearm in the yet public, murder of Gail Lebouef that was similar to the firearm taken from attempted killed, she he Tynan’s apartment night told Winstein that he had Therefore, killed “we conclude it is not that a Tynan. reasonably probable result more favorable to defendant would have been reached in the absence Hall, v. the error.” (People citing People Watson Cal.3d (1956) 46 Cal.2d 243].) P.2d
2. Exclusion Dean’s Statement of Jennifer Defendant that the contends trial court excluded erroneously hearsay statement Jennifer Dean in videotaped which she claimed to have killed her husband. Defendant sought introduce the under the videotape hearsay Code, (Evid. for statements exception interest. He against penal § Fifth, asserts that the error violated his Sixth and Fourteenth Amendment to a rights fair trial. We conclude that the trial court excluded properly statement as Cudjo untrustworthy. 6 Cal.4th 607 [25 390, 863 P.2d is a threshold requirement 635] [trustworthiness Code, admission of a statement 1230].) under Evid. §
a. Background murder,
After her husband’s Jennifer Dean was questioned by police statements, three gave statement, two of which were In her first videotaped. which work, she said she came home from videotaped, was unable to husband, find her statement, and knew of his death. In a nothing second which was not she suggested that defendant and Hunter videotaped, Jeffrey had killed her husband on their own initiative to obtain insurance In a money. statement, third which was she told that she alone had videotaped, police *26 killed her husband because he had hurt their Sabrina. She claimed daughter, nude, to have stabbed him to death with a kitchen knife while she was husband, an with following argument him. After her killing she said she knife, shower, dressed, washed the took a and called her neighbors. stand,
Defendant called Dean to the but she asserted her against privilege self-incrimination and was declared the trial court to be unavailable.6 trial, At the time of acquitted defendant’s Dean had been tried and of the murder husband, murder, but possible charge conspiracy faced retrial on the commit a mistrial having been declared jury on this count after her failed to reach a verdict. against third statement as a statement to introduce the Defendant then sought Code, declined to the trial court (Evid. Ultimately, interest. § penal failed to meet the exception’s on the that it grounds the third statement admit that the first The court observed of trustworthiness. threshold requirement indicated which contradictory “virtually mutually were third statements it was unreliable because the versions was least one of ... found, further, taken as a The court another version.” contradicted setting whether it was up was the third statement “exculpatory, whole from murder to reduction of a charge or defense of self-defense possible found that the trial court Alternatively, whatever.” manslaughter rule to the because “to Evidence Code section 352 was barred by statement I think in evidence which whole trial to other would this up contrary open would confuse jury.” the final analysis Analysis
b. declara that the out-of-court section 1230 provides “Evidence Code statement, for its truth if be admitted may of an unavailable witness tion such made, interest. The proponent the declarant’s penal when was against unavailable, declaration that the declarant show ‘that the evidence must interest, declaration and that declarant’s penal against ” character.’ hearsay its to warrant admission despite reliable sufficiently 525, 415, P.2d v. Lucas (1995) 12 Cal.4th (People Cal.Rptr.2d hearsay to the interest “The of the declaration 373].) against exception focus In determining of the declaration. rule is the basic trustworthiness [Citations.] of Evidence within the meaning interest a statement is truly against whether admissible, be 1230, trustworthy and hence is sufficiently Code section under but the circumstances the words take into account just court may declarant, and the uttered, motivation of the which were they possible Frierson (1991) 53 (People to the defendant.” relationship declarant’s 1197].) hearsay when 808 P.2d Cal.Rptr. “[E]ven Cal.3d 745 [280 redaction interest and penal the declarant’s against runs generally statement of circum may, light the statement has excised exculpatory portions, . . . for admission. stances, indicia of trustworthiness qualify lack sufficient [1] ‘ “requires . . .We have the court to apply recognized that, peculiar this context, facts of the assessing individual trustworthiness case a conduct actually human beings with the ways acquaintance broad deep ”’ under the exception.” circumstances material in the themselves 1110].) 12 P.3d Duarte 24 Cal.4th statements, subject are nonetheless even if admissible such Finally, *27 weigh to “the trial court is required under which section 352 Evidence Code confusion, dangers prejudice, value against the evidence’s probative 609.) v. Cudjo, supra, 6 Cal.4th p. (People undue time consumption.” A trial court’s decision to admit or exclude evidence is a matter committed “ to its discretion ‘and will not be on a the trial disturbed except showing court exercised its discretion in an or absurd arbitrary, capricious, patently ” v. Brown manner that (People resulted in manifest miscarriage justice.’ 1137].) 31 Cal.4th 73 P.3d The trial court did not abuse its discretion in of the third statement. excluding videotape observed, As the court the third statement was utterly inconsistent with statement, Dean’s initial in which she told she knew of her police nothing death, husband’s and also inconsistent with her statement subsequent blaming Thus, face, defendant and Hunter for her husband’s murder. on their two of untruthful, her three were statements absolutely rendering reliability of the statements any The fact that Dean questionable. confessed to killing not, itself, her husband in the third statement did establish that the third by statement was more reliable than the other two. Dean’s admission was an accompanied by that she killed her explanation husband because she had just with him and that he quarreled had hurt their daughter. Dean have may believed that minimized this explanation her culpability excused Moreover, conduct Dean altogether. an affair having with Hunter and her statement, third excuse, the blame for the taking murder with an have may and, been her extension, confederate, him attempt protect his defendant. Thus, we conclude that Dean’s examining statement of “the light uttered, circumstances under which motivation . . . possible [it was] [Dean’s] Frierson, relationship [Dean’s] 53 Cal.3d at [Hunter]” 745), the trial court did not abuse its discretion in the statement. excluding We also with the trial agree court’s alternative justification excluding the evidence under Evidence Code section 352. Given Dean’s contradictory statements them, and the of her complexity motives for possible making admitted, the third statement been the trial would have devolved into an Thus, into those inquiry matters. value of that evidence questionable would have been “substantially outweighed” its probability admission would have undue of time” or “con- consumption “necessitate^] (Evid. Code, issues” and misled the jury. fuse[d] found no Having § error, it is to examine unnecessary defendant’s claims of constitutional error or prejudice.
3. Admission the Jones and Brunson Statements Defendant contends the trial committed reversible error when it witnesses, Jones, Jr., admitted statements by William prosecution Brunson, Anthony that defendant were argues inadmissible Jones was hearsay. permitted that Erin indicated testify Tynan that she muscular preferred African-American men as sexual The trial court admitted the testi- partners. over mony defendant’s as relevant objection “state of mind.” Tynan’s *28 586 .22-caliber
Branson, efforts to the Jennings to his testifying purchase 1990, told him she that in the fall of Tynan from testified Tynan, handgun defendant’s hearsay over testimony The trial court admitted the gun. conduct, i.e., he continued Branson’s evidence of nonhearsay objection her, still relevant to whether she possessed from gun to seek purchase the errors were Defendant argues she was murdered. the gun night and cumulatively prejudicial. both individually reviewed for abuse of discretion. are evidentiary rulings
The trial court’s
98,
774,
126 P.3d
(2006) Cal.4th
821
Cal.Rptr.3d
v. Jablonski
37
[38
377,
938];
4
264
(1992)
Cal.Rptr.2d
v. Rowland
Cal.4th
People
[14
rale/state
turning
“hearsay
of evidence
[admissibility
In this killed, that the General argues she was the Attorney with Erin Tynan night that, consent; i.e., given prefer- was relevant to the issue testimony defendant, ences, with consented to sexual relations would not have Tynan who is White. We agree. 30 Cal.4th People
As we observed Hernandez 446], to this exception 69 P.3d prerequisite “[a] factually conduct be mental state or rale is that the declarant’s hearsay statement a murder victim’s (Id. involved relevant.” Hernandez kill were going defendant and two others he was killed that week before out, him. killer bemay victim’s fear of the alleged “A murder As we pointed to an element of mind is relevant directly the victim’s state in issue when (Ibid.) the offense.” (1988) Thompson found in of this
An principle example evidence 37], held that P.2d in which we Cal.Rptr. Cal.3d *29 admissible afraid the defendant would kill her was that the murder victim was willingly it went to whether “she under the state of mind because exception defendant, which was much in issue given had intercourse with very murder the commission of As rape. expres prosecution theory during indicate she fear defendant of the murder tends to sion of very night (Id. intercourse, did not consent to it was relevant in this case.” p. omitted; v. Waidla (2000) fn. 22 Cal.4th 723 see Cal.Rptr.2d that feared defendant was P.2d decedent’s statement she 996 46] [the the defendant’s to whether the decedent would have consented to relevant circumstances robbery into her residence where entry burglary special were alleged].)
Here, the charge Thompson, as in the issue of consent was raised victim was of forcible and the circumstance that the rape allegation special murdered the commission of a into defend during dispute by rape, put (People ant’s of not and remained in until resolved. plea guilty dispute Waidla, Tynan Cal.4th at Jones’s that testimony indicated to him she liked muscular African-American men bore some relevance to whether she would have consented to sexual relations with assertion, defendant. evidence not defendant’s need have Contrary been on the issue of consent to have been admissible on that dispositive Code, (Evid. evidence is evidence ten point. “having any § [relevant in reason to fact that is of dency prove disprove disputed consequence action”].) determination of the Defendant’s further claim that evidence was inadmissible statement—that the truth of the prove Tynan African-American muscular “The evidence men—is preferred unpersuasive. admitted under section 1250 is it a mental or describes hearsay; physical condition, intent, or motive and is received the truth the matter plan, stated.” Cal.App.4th Ortiz 914], added.) italics we conclude that the trial court did not Accordingly, abuse its discretion Jones’s admitting testimony. discretion,
Even were we to conclude the trial court abused its we would find the error harmless. Jones’s was cumulative to testimony testimony Robert who had been in a with Erin Bishop, relationship Tynan. Bishop testified, men,” without “muscular Black only objection, Tynan preferred Thus, he also that he fit even had Jones’s acknowledged this category. excluded, been the evidence testimony concerning Tynan’s preferences Moreover, evidence that overwhelming before view of already jury. this refer- fleeting and murdered Erin admission of raped Tynan, ence to her in men could have made no difference to the verdict. predilections that the trial court Rather thornier is resolution of defendant’s claim when, the defendant’s it admitted objection, abused its discretion over Brunson’s his testimony regarding attempts Jennings Anthony purchase In the Robert .22-caliber left handgun Tynan’s possession Bishop. him had the Brunson testified that told she still Tynan course his testimony, gun.
To the extent Brunson’s related to his own testimony attempts *30 (Cf. not v. hearsay. People was purchase gun, testimony Alvarez 155, 385, P.2d (1996) [“Hearsay, 14 Cal.4th 185 926 Cal.Rptr.2d 365] [58 course, its to is evidence of an out-of-court statement offered by proponent However, Code, states”]; his as to testimony what it Evid. prove § him and does not to have been what told was Tynan hearsay appear Thus, of her under rule. his hearsay testimony admissible any exception that she still should have been excluded. gun statements possessed statements, however, harmless. The trial court’s failure to exclude the is There was in of the gun was substantial evidence Tynan possession killed, who left the with her gun she was Jones night including testimony by that, October, to sell it and had a she told him she wanted August, that he a .22- or. 25-caliber of Robert saw buyer; testimony Bishop 1990, her in the fall of and Detective semiautomatic in the closet of bedroom murder, that, in the search of her testimony following Griego’s apartment closet, but no on the shelf of her bedroom he found a .22-caliber cartridge top also, course, There the evidence that defendant was observed gun. and the testimony after the murder in of a similar gun shortly possession Blondet, examiner, likelihood the William the firearms that there was a good In view fired at Gail Lebouef was from a .22-caliber Jennings handgun. bullet evidence, to was not statements Brunson Tynan’s hearsay of this admission prejudicial. of Jones and testimony our conclusion that the admission
Finally, or, error, necessarily either not error if not prejudicial, disposes Brunson was defendant’s claim of cumulative prejudice. 2.03 4. CAUIC No. instructed, murder, over defend- with the Dean jury
In connection 2.03, “If find that before with CALJIC No. as follows: you ant’s objection, deliberately misleading made a false or willfully this trial the defendant tried, he now being you may crime for which statement concerning to a consciousness of as a circumstance tending prove consider that statement However, and its prove guilt, such conduct is not sufficient itself guilt. if are matters for determination.” any, your weight significance,
589 Defendant contends that the instruction was impermissibly “partisan and also draw argumentative” authorized “irrational jury permis observes, sive inferences” about As the Attorney defendant’s General guilt. we have such consistently rejected challenges to instruction.
Benavides 69, 507, (2005) Cal.4th 35 100 P.3d Cal.Rptr.3d [24 1099] instruction does irrational jury draw improperly permit [“The inferences, nor is it v. Nakahara People argumentative”]; impermissibly (2003) 1190]; Cal.4th 68 P.3d Cal.Rptr.2d Holloway 33 Cal.4th P.3d 164] [“The inference of consciousness of from willful falsehood or fabrication or guilt sense, of evidence is one suppression common which supported many jurors are likely indulge instruction”].) even without an Defendant’s arguments provide no reason to persuasive reconsider soundness of these conclusions, and we decline to do so.
5. CAUICNo. 2.71.5 *31 murder, In connection with the Dean the was instructed with CALJIC jury 2.71.5, No. admissions.7 regarding adoptive The instruction reflects the rule, admission to adoptive exception the under hearsay which: “Evidence of a statement offered is not against party made inadmissible the hearsay rule if the statement is one of the which party, with of the content knowledge thereof, has or by words other conduct manifested his his belief adoption Code, in (Evid. case, its truth.” 1221.) In this the § prosecution sought instruction based on former testimony by defendant’s Sue girlfriend, that, in arrest, call Kennedy, telephone she with defendant after his she asked him whether he had killed Curtis James Dean insurance proceeds and he remained silent. Defendant contends that the instruction was improper because failed prosecution to that defendant heard prove Kennedy’s or, did, if question he that his silence could be construed as an adoptive admission. 7 The you instruction was follows: as “If should find from the evidence that there was an defendant, 1) occasion when the reasonably under opportu conditions which afforded an him 2) false,
nity statements, reply, to failed to make a denial or made or contradictory evasive in accusation, an expressed face of directly to him or in presence, charging his him with the commission, crime for which such defendant now is on or tending trial to connect him with its 3) nature, he that heard the accusation and understood its then the circumstance of his silence and conduct may on that occasion him against indicating be considered an admission that the accusation thus made was accusatory true. Evidence of such an is statement not truth, the purpose only received for of proving meaning its but as it silence supplies conduct you accused in the face of it. Unless find that silence and defendant’s true, you conduct at time an accusatory indicated admission that the statement was should (Brackets entirely disregard omitted.) the statement.” this defendant has forfeited there of whether question is Preliminarily, he on the asserts grounds to the instruction argument by failing object to out, to no objection defendant made As the General Attorney points appeal. he object that did Defendant testimony. responds the admission of Kennedy’s have to that this sufficient argues objection to the instruction and the instruction Even if the to objection the issue on appeal. preserved issue, did he make objection in defendant’s nowhere generally preserved failed prosecution he advances here—that arguments one of the specific Thus, argument this demonstrate that defendant heard Kennedy’s question. forfeited.8 was that defendant’s objection basis of defense counsel’s
The specific “is the usual circumstance face of Kennedy’s silence question of in some- thought I admission. thought Usually which always adoptive this construing . . .” setting Generously of a more . interrogative thing contends, be, an that his silence objection as defendant statement admission, we did not an adoptive face of constitute Kennedy’s question the claim is merit. conclude without in so ... a direct accusation
“For the admission apply adoptive v. Fauber (1992) 2 Cal.4th words is not essential.” (People many 249].) it is sufficient admissibility, “To warrant 831 P.2d statement inference an accusatory the evidence a reasonable supports accusation; a fair deny under circumstances affording opportunity made an admission constituted actually adoptive whether defendant’s conduct v. Edelbacher (1989) 47 *32 a to decide.” jury becomes for question 983, 586, 1].) 766 P.2d Cal.Rptr. Cal.3d 1011 [254 discussing and were defendant girlfriend, defendant’s one-time
Kennedy, this In the course of Dean’s death. the circumstances of Curtis James had to gone that he and Mark Redden defendant admitted conversation Dean, then Kennedy he blamed Redden. although to Dean residence beat Defendant he killed Dean for the insurance. defendant whether had asked accusa- statement was an Kennedy’s implied silent. Embedded remained that defend- could have found killed Dean. The jury tion that defendant had told accusation, he had just since to particularly ant’s failure to respond Dean, an admission. to had killed was tantamount that Redden Kennedy silence that defendant’s was so complex claim that the question Defendant’s 8 claim, it is The record demonstrates part this of his meritless. if he had not forfeited Even conversation, telephone, in which in a albeit Kennedy engaged that and defendant were admitting, Kennedy’s and fully responding questions other participated Redden had beaten Dean residence that gone Mark example, that he and Redden exchange defendant heard this that jury reasonably have inferred from The could Dean. question.
591 event, should be construed is as bafflement In that convincing. one for the to decide. We conclude that question jury evidence and the given. instruction instruction was supported properly Felony-murder Instruction
6.
Defendant contends that instructions
him to be convicted of first
permitting
murder on a
degree
violated his
under the
felony-murder
theory
Eighth
rights
and Fourteenth
he
Amendments because
with second
charged only
“malice murder” under
degree
section 187 and not with first degree felony
murder under section
Defendant
189.
contends
trial court lacked jurisdic-
tion
him for
try
degree
first
murder. He
lack
also
claim a
of
appears
notice that he could
on
be convicted
Defendant’s
felony-murder
theory.
v. Dillon
People
argument rests
under
(1983)
that
premise
34 Cal.3d
390,
697],
441
668 P.2d
Cal.Rptr.
felony
[194
murder and premeditated
crimes,
and that Dillon
v. Witt
People
murder are
separate
overruled
implicitly
(1915)
928],
“ have held long murder pleading charging adequately ‘[W]e notifies a defendant of the possibility conviction first murder on degree a felony-murder People theory.’ Defendant relies on mistakenly [Citation.] Dillon[, supra,] 390, 34 Cal.3d 441 697], P.2d Cal.Rptr. on a statement in the particular that the . . plurality . murder opinion felony malice, and murder with express ‘are implied not the “same” crimes.’ however, As we have since this means explained, [Citation.] only differ; elements of the two kinds murder there but single statutory offense murder. ‘Felony murder murder are premeditated [Citations.] v. Silva not distinct . crimes . . .’ Cal.4th [Citation.]” connection, 769].) P.3d In this “numerous court appellate decisions have defendant’s rejected jurisdictional argument. Dillon, . . . [Subsequent 34 Cal.3d have [Citations.] we Witt, supra, reaffirmed the rule of Cal. that an accusatory pleading a defendant charging with murder need not specify theory *33 murder upon which the intends to have prosecution rely. Thus we implicitly rejected argument that murder and felony murder with malice are separate v. pleaded separately.” (People Hughes crimes that must be (2002) 27 Cal.4th 401, 369 432].) P.3d 39 It is true that “we have acknowledged that in some instances an informa- tion murder charging without elaboration not notice sufficient to may provide 592 to the the Fourteenth Amendment the due of law process guaranteed
afford Silva, Here, 368.) supra, v. 25 Cal.4th at (People p. Constitution.” federal however, on that the was proceeding defendant was aware prosecution amply murder, the information with the Tynan a In connection felony-murder theory. circum- alleging rape-murder special defendant with as well as charged rape stances, each crime introduced evidence supporting and the prosecution event, because circumstance “In alleged.9 any and each charged special he the court would did move when learned reopen defendant not to murder, is of insufficient notice not on his claim jury felony instruct (25 at review.” Cal.4th p. preserved appellate Instruction Unanimity
7. Failure to Give murder, on degree was instructed first jury As to the Tynan contends that and murder. Defendant degree felony murder first premeditated that it had to unanimously erred to instruct by failing jury the trial court before convicting defendant had committed on which murder agree type concedes, have As we previously him first murder. degree Benavides, at supra, 35 Cal.4th 101 this v. argument. (E.g., rejected here, leaves [“When, a discrete crime but single as the evidence shows only committed, that crime jury as to how disagreement exactly room for the defendant is under which theory need not on unanimously agree federal constitutional mus This rule of state law passes guilty. [Citation.] Jersey v. New (2000) by Apprendi ter”].) otherwise are not persuaded “We There, States S.Ct. the United L.Ed.2d U.S. 2348]. that increases requirement Court found constitutional Supreme fact conviction, crime, must be maximum a prior for a other than penalty element, finder, a criminal to the fact treated as charged, submitted formally We see in nothing doubt. and reasonable provided beyond [Citation.] verdict as jury particular a unanimous Apprendi require that would Ring (See theory Arizona first murder. also degree finding justifying 2443-2444, Ed. 153 L. S.Ct. 566] 536 U.S. 610 [122 essential to doubt reasonable jury finding beyond [requiring facts Nakahara, 712-713.) Cal.4th at pp. punishment].” us we see persuade decisions do Defendant’s criticisms our prior them. no need to reexamine Tynan appears primarily to be directed his conviction argument Defendant’s
murder, notice that the Dean contending that he had insufficient though he also seems to be allegations “malice murder” degree as first murder based murder would be tried murder, however, alleged lying-in- gain, financial information information. As the Dean 190.2, (3), (15)), wait, (§ (a)(1), evidence special circumstances subd. multiple-murder circumstances, all were found be special of which of each of those support was adduced Therefore, respect this than with argument persuasive no context his notice more true. *34 Tynan murder.
593 in CAUIC No. 10.00 8. Sufficiency Rape Definition of of With that defendant Erin respect allegation raped Tynan, forcibly 10.00, was instructed with CALJIC No. which defines as “an act jury rape sexual intercourse with a female is not of the who person spouse force, against such will means perpetrator accomplished person’s violence, duress, menace, fear and to bodily of immediate unlawful injury such Defendant contends that the of a person.” absence further definition “sexual intercourse” as vaginal as anal penetration, opposed penetration, renders the instruction deficient. constitutionally “
We have rejected that ‘sexual previously argument intercourse’ is a technical with term various meanings might and be misunderstood when v. Holt used in a definition of rape.” (People 15 Cal.4th 676 [63 213].) P.2d held have that ‘sexual intercourse’ “[W]e has a common meaning in the context of that no technical elaboration is rape, required, (Pe term can refer to or intercourse.” only vaginal penetration ople Stitely, supra, v. 554.) Cal.4th at p. Defendant attempts Holt that, Stitely distinguish cases, on the in those grounds jury also instructed with the definition of sodomy. Stitely, supra, [“Also, Cal.4th at p. no risk of confusion exists where the court properly Holt, other instructions gives defining as penetration”]; sodomy anal 15 Cal.4th at Our conclusion that “sexual intercourse” as used in CALJIC No. 10.00 has the common meaning does vaginal penetration not, however, on the of whether the depend fortuity defendant also committed case, moreover, In sodomy. this both counsel acknowledged closing arguments, the evidence relevant to defendant’s sexual assault on Erin Tynan—defendant’s semen in vagina—involved vaginal penetration; they differed only as to whether the absence of area injury vaginal supported rape allegation.10
9. DNA Evidence Cotton, Dr. Robin prosecution’s DNA testified in her expert, DNA opinion extracted vaginal from swabs taken from Erin matched Tynan sample defendant’s DNA. She also two calculations provided regarding frequency matched DNA in the profile general and in population former, 53,000 Caucasian for the population; one frequency latter, for the one 5.7 million. Defendant contends that admission of Dr. Cotton’s testimony violated constitutional on two rights his distinct First, he asserts that her grounds. violated his Sixth testimony Amendment abrasion, Although the prosecution’s pathologist briefly referred anal defendant was charged sodomy, during with did side closing argument. nor either refer to this evidence *35 594 v. in as the Court right by Supreme
confrontation
construed
Crawford
177,
1354],
124 S.Ct.
because
Washington
(2004)
a. Background Cellmark, a for-profit is director for laboratory private, Dr. Cotton the Cellmark in and criminal cases. paternity that DNA performs testing company defense; and its analysts both the criminal cases from accepts prosecution them. those who conduct the and the results to requested testing provide Laboratory Society American of Crime Cellmark was accredited the by of that included examination Directors after an and review inspection process Cellmark’s assurance quality procedures. and in molecular a and M.S. in a Ph.D. biology
Dr. Cotton has B.S. for the 15 had been her field of research and DNA biology biochemistry. director, Dr. Cotton As Cellmark’s testimony. laboratory years preceding the testing. the six who conduct analysts oversees testing supervises trial, testified as a DNA time she had at the of defendant’s Additionally, in as in other jurisdictions. about 20 times California well expert She testified about covered several areas. Dr. Cotton’s testimony DNA, it is how, testing of extraction and of characteristics DNA and a and match known a for each individual possible genetic profile to generate detail explained of which is unknown. She source sample sample the samples prepared which DNA is extracted and procedure restriction fragment length polymorphism called process comparison, using a difficult (RFLP).11 procedure DNA extraction Dr. Cotton testified that follows are at Cellmark which the samples prepared process by 11 unnecessary to validity analysis, it is challenge the of RFLP Because defendant does not description with testimony largely consistent any it in detail. Dr. Cotton’s discuss People Venegas (1998) Cal.Rptr.2d P.2d forth in 18 Cal.4th process set “ (1) processing analysis ... steps three discrete : explained: [RFLP] We ‘There are 525]. which indicate produce X-ray films suspect from and the crime scene [autorads] DNA (2) to determine fragments; examination lengths polymorphic [autorads] match, match; (3) match’s if is a determination fragments there whether sets of ” (Id. Barney Cal.App.4th significance.’ statistical quoting analysis—processing 731].) step first of RFLP explained As we farther out the order each Cellmark’s
protocol lays analysis. *36 step analysts may not deviate from the without protocol According permission. Cotton, know, Dr. a the is like first do and this protocol recipe—“You you then do this then heat it at 37 for a half and then you you hour degrees you do this other at each in the the is thing”—and, point procedure, analyst to fill out a form and also *37 notes, as her handwritten in RFLP out at various the points protocol filled ante, case, (See 11.) fn. the autorad. in the including well as all the other data case, in as well two followup the this report She and Yates DNA cosigned Bernardino Sheriff’s Department. letters the San a blood sample including
Dr. Cotton testified that the evidence samples, swabs, intact Cellmark. She by the were received from defendant and vaginal notes, that, her the in opinion on her review of Yates’s testified further based the Viewing genetic according conducted to protocol. DNA extraction was Yates, that, in DNA extracted testified her opinion, she profiles generated Knox. DNA provided by Eugene bedsheet matched a sample from the Further, DNA from samples swabs matched vaginal DNA extracted from the rule, she testified that Using and from defendant. Tynan product Erin and DNA Knox’s DNA Eugene match between of the DNA frequency profile in was one the African-American population from the bedsheet obtained DNA 700,000. between defendant’s the DNA match profile With respect swabs, calculations she the vaginal provided frequency DNA from former, rule; under the and the ceiling the interim method product both using 53,000, one in general of the frequency population profile latter, one in 5.7 Caucasians was among under the profile frequency million. Crawford claim
b. about the DNA trial, to Dr. Cotton’s testimony At defendant objected and DNA DNA between defendant’s match resulted analysis “didn’t actually on that Cotton grounds swabs vaginal extracted from the unless were inadmissible that the test results He argued run tests herself.” a business the results were court stated that The trial Paula Yates testified. Dr. Cotton that, “hearsay,” if Yates’s analysis also even record but said aas it of formulating opinion for rely purposes could nonetheless U.S. 36 Washington, supra, On appeal, citing DNA expert. Crawford violated testimony Cotton’s claim that Dr. (Crawford), renews his Amendment of confrontation. right his Sixth
Prior 541 U.S. “the Court Crawford, had held Supreme that an unavailable witness’s statement out-of-court a criminal against defendant could be admitted consistent with the [Sixth Amendment’s] ’ confrontation clause if it bore “indicia ‘adequate reliability.” [Citation.] test, To under that evidence had either to fall within a qualify rooted ‘firmly or bear hearsay exception’ ‘particularized guarantees of trustworthiness.’ 646, 711, v. Roldan 35 Cal.4th fn. [Citation.]” 289], 110 P.3d Ohio v. Roberts (1980) 448 U.S. quoting 2531].) L.Ed.2d 100 S.Ct. abandoned this approach Crawford statements, however, such and held that testimonial out-of-court statements against offered a criminal defendant are rendered inadmissible confrontation clause unless the witness is unavailable at trial and the defend ant has a prior cross-examination. U.S. opportunity (Crawford, supra, 541
Under Crawford, crucial determination about whether the admission an out-of-court statement violates the confrontation clause is whether the out-of-court statement is testimonial or nontestimonial. court reasoned “[T]he *38 the clause’s reference to express [that] ‘witnesses’ reflects its focus on those ‘ ’ ‘ who “bear which testimony,” is typically solemn declaration or “[a] ’ affirmation made for the purpose or establishing proving some fact.” 36, 51, (Crawford, Webster, 541 U.S. supra, An quoting American Dictionary of the English (1828).) Language ‘An accuser who makes a formal statement officers,’ court, to government said the ‘bears in a testimony sense that a who person makes a casual remark to (541 an not.’ does U.S. at acquaintance Thus, 51.) p. the court explained, the constitutional text reflects an ‘especially acute concern with a specific type {Ibid.)” out-of-court statement.’ (People Cage Cal.4th 977-978 155 P.3d 205].) hand, On the other made it clear that “not all hearsay implicates Crawford concerns,”
the Sixth Amendment’s core (Crawford, 51) 541 U.S. supra, at p. and, dissent, ato made in response point that acknowledged certain time exceptions against hearsay rule in existence at the the confrontation clause was fell outside originally adopted the clause because purview “there is scant evidence that were invoked to admit testimonial exceptions statements the accused in a against criminal case. of the hearsay Most covered exceptions statements that their nature were not testimonial—for business records or example, (Id. statements in furtherance of a at conspiracy.” omitted.) p. italics & fn. The court in declined to definitively state what a constitutes Crawford
“testimonial” statement for of its purposes discussion but observed: “Various formulations of this core class of ‘testimonial’ parte statements exist: "ex is, such as material or its functional equivalent—that in-court testimony examinations, defendant was affidavits, that testimony prior custodial cross-examine, declarants would statements that or similar pretrial unable to [citation]; state- ‘extrajudicial to be used prosecutorially,’ reasonably expect affidavits, materials, such as testimonial . . contained in formalized ments . confessions,’ [citation]; ‘statements that were or testimony, prior depositions, reasonably witness objective would lead an under circumstances which made at a trial’ for use later would be available to believe that the statement Moreover, 51-52.) the court supra, 541 U.S. at (Crawford, pp. [citation].” ex parte said, definition—for example, statements under qualify “[s]ome (id. “at 52), prior at a minimum at hearing,” p. a testimony preliminary trial; at former a a grand jury, before hearing, at a testimony preliminary with closest the modem practices These are interrogations. police (Id. was directed.” the Confrontation Clause to the abuses at which kinship 68.) p. Dr. Cotton’s that was the basis of that the DNA argues Defendant report “ a ‘made it was statement statement because testimonial
testimony witness objective reasonably would lead an circumstances which under ” for use at a later trial.’ be available the statement would believe (Crawford, 541 U.S. at the admission scientific occasion to decide whether
We have not yet evidence, statement testimonial constitutes laboratory like reports, testifies or who report unless the person prepared inadmissible Crawford’s for cross-examination—are conditions—unavailability opportunity prior to the answer. disagree this issue Courts that have addressed met. *39 a bright-line of some courts adopted Crawford, aftermath
In the immediate about the availability in that decision based on the language test defining is the and concluded that this for later trial out-of-court statements Thus, courts these such statements are testimonial. of whether characteristic reports, analysis, autopsy such evidence—fingerprint that because concluded for DNA reports—is prepared possible drug analysis serology reports, reports, unless the conditions criminal and inadmissible at trial it is testimonial use a admission, been met. Crawford, have for its outlined (Minn. 2006) 722 N.W.2d line of cases is State v. of this Typical Caulfield of that the Bureau Court held the Minnesota Supreme In Caulfield, 304. a substance (BCA) that established laboratory report Criminal Apprehension that the “We have said testimonial. was cocaine was seized from defendant testimonial whether a statement is in assessing determinative factor critical
599
whether it was
for
The BCA
litigation.
was
prepared
report
[Citations.] [f]
clearly
by
for
....
The BCA
was introduced
prepared
litigation
report
at
of
state
trial for the
a reasonable doubt that the
beyond
purpose
proving
(Id.
309;
(D.C.
substance was cocaine.”
see Roberts v. United States
2007)
By courts have held that scientific evidence is testimonial, even it though may have been use at prepared possible trial. Some have done so on the grounds that admission such evidence *40 which, does not at the abuses implicate according Crawford, confrontation clause was directed. Additionally, other courts have relied on in language indicating that records fall might business outside Crawford of confrontation clause concerns and held that such evidence is purview admissible as business or cite records. Some courts also public practical difficulties that would ensue were to this of evidence. applied type Crawford 600 “focusQ that reject readings those readings nuanced
These more
Crawford
document
be used
may
of whether a
on the
too narrowly
question
the several considerations
was but one of
This
litigation.
Crawford
of these
evidence is testimonial
on whether
bearing
[and n]one
identified as
v. Kim
(2006) 368
717
(People
Ill.App.3d
was deemed
factors
dispositive.”
92, 94,
machine
Breathalyzer
Ill.Dec.
N.E.2d
92] [certification
[859
testimonial].)
content not
to determine blood-alcohol
used
230],
v. Johnson
(2004)
Cal.Rptr.3d
121 Cal.App.4th
In
[18
defendant’s
at the
probation
admitted
laboratory report
the trial court
seized from
substance
as rock cocaine
hearing identifying
revocation
of the drug report
the admission
argued
On
appeal,
defendant.
The Court
construed by
Sixth Amendment
as
rights
violated his
Crawford.
are
that,
proceedings
because
revocation
concluded
“[probation
Appeal
,
. . .
to which the Sixth Amendment applies
not ‘criminal prosecutions’
not govern
of the Sixth Amendment does
probation
interpretation
Crawford’s
however,
1411.)
at
(121
Noting,
p.
revocation
Cal.App.4th
proceedings.”
determining
examples
. . . may provide helpful
“Sixth Amendment cases
held by
of confrontation
probationers
of the more limited right
scope
clause,”
defendant’s
rejected
addressed and
the court
under the due process
(Id.
“.
.
at
.
Johnson misapprehends
claim.
Crawford’s
Crawford
does
A laboratory report
to ‘testimonial’ hearsay.
discussion of what amounts
If the
testimony.
in-court
or function as the
testimony,’
equivalent
not ‘bear
merely
or
he
she would
hearing,
at Johnson’s
testify
preparer
appeared
v. Arreola
(1994)
In
(2005)
444 Mass.
N.E.2d
the
279 [827
Judicial Court of Massachusetts
held that
Supreme
similarly
certificates
chemical analysis identifying as cocaine a substance seized from the defend-
ant were not
testimonial.
“Certificates
chemical
are neither
analysis
rather,
nor
discretionary
based on
opinion;
they
state the results of
merely
well-recognized scientific test
the
determining
composition
quantity
substance.
. . .
are
Accordingly,
drug
these
certificates
well within the public
(Id.
records
to the
omitted.)
confrontation clause.”
exception
fn.
p.
Moreover,
this evidence did not
‘the
evil
“implicate
at which the
principal
Confrontation Clause was
.
.
of ex
directed
.
use
parte
its
particularly
examinations as evidence of the accused.’ Crawford, supra,
U.S. at p.]
[541
50,
In State v. Forte
(2006)
137],
In Lackey 332], Kan. 190 P.3d the Kansas Court, Supreme those joining jurisdictions that have concluded that an is not testimonial Crawford, autopsy report under cited the consider- practical ations that militated against conclusion. “We contrary believe reason these cases have why set forth adopted arguments reasoning is that it would have the effect of who requiring pathologist If, performed the criminal autopsy testify every as in this proceeding. case, unavailable, the medical examiner is deceased or otherwise the State case, would be from precluded using autopsy presenting its report which could of a preclude prosecution homicide case. We view this aas *42 generally reports fact light autopsy harsh and result in unnecessary in an body the physical observations of make routine and descriptive have little incentive the medical examiner would environment where Durio v. 351-352; (Id. People see also at the results.” pp. fabricate cannot 2005) N.Y.S.2d 869] 7 Misc.3d (N.Y.Sup.Ct. [794 [“[C]ourts treating would follow from autopsy ignore practical implications case. . . . This in a homicide testimonial hearsay inadmissible reports of the examiner who unavailability lead to the easily of time can passage Moreover, examiners who regularly medical the autopsy prepared report. recollec- to have unlikely independent hundreds of are perform autopsies testifying invariably case and in at issue in particular tion of autopsy it be against society’s . . . would Certainly on the report. rely entirely autopsy examiner who of the medical unavailability prepared interests permit case”].) of a homicide report preclude prosecution 4571, 853 N.E.2d St. 3d 306 Ohio Craig In State (2006) 110 Ohio are not 621], also concluded that autopsy reports Court of Ohio Supreme “ are that such ‘quint- under but on the grounds reports testimonial Crawford record of the business The essence essential business records.’ [Citation.] such or state- is that records contemplated hearsay exception Crawford in the ordinary because are they not testimonial in nature prepared ments are nature’ not and are their ‘by prepared conducted business regularly course lines, v. Brown (Id. these Along at litigation.” for 709], the trial court denied 2005) N.Y.S.2d 9 Misc.3d (N.Y.Sup.Ct. laboratory of DNA on the claim that admission a new trial motion based “The as construed violated the confrontation clause reports Crawford. DNA who tested the samples and records of the technicians laboratory *43 Indiana, Hammon v. No. 05-5705. Both involved by cases responses Davis, victims of domestic violence to In police inquiries. prosecution victim, introduced a 911 in which the Michelle described the tape McCottry, then, attack on her by 911 as it was operator occurring left, after he answered other “The arrived within four questions. police state, of the minutes 911 call and observed McCottry’s shaken the ‘fresh face,’ on her forearm injuries and her and her ‘frantic gather efforts to her ” (Davis, and her so belongings children could leave the they residence.’ supra, 547 at 2271].) U.S. 818 S.Ct. at p. p. [126 Hammon, In ato police responded domestic disturbance call and found the “ ‘
victim, Hammon, Amy alone on the front She “somewhat porch. appeared ’ ” “ ‘ ’ ” (Davis, but frightened” told police was matter.” “nothing supra, house, 547 2272].) U.S. at 819 S.Ct. at p. p. Inside Herschel [126 Hammon told there had been police an but it had never become argument, and it physical, was over. Over objection, his police from separated Amy Herschel and her. Based on questioned police her fill out responses, sign battery affidavit in which she recounted that Herschel had assaulted physically her. Her affidavit was against admitted subsequently Herschel in his trial for domestic battery and as probation violation was the (Id. testimony officer who had questioned her. at 820-821 S.Ct. pp. [126 at 2272-2273].) pp.
The
before the
question
Court
Supreme
was “when statements
to law
made
enforcement
personnel during
911 call or at a crime scene are ‘testimonial’
and thus subject to the
of the Sixth
requirements
Amendment’s Confrontation
(Davis,
supra,
Clause.”
In its
court
opinion,
emphasized
contemporaneity
Davis,
were
they
about events
“In
McCottry
speaking
statement:
(Davis,
actually
happening,
events’
‘describjmg]
rather than
past
[citation].”
contrast,
2276].)
entirely
at
By
547 U.S. at
S.Ct.
p.
“[i]t
p.
Ann
interrogation
from the circumstances
that the
Hammon]
clear
[of
conduct—as,
indeed,
into
criminal
possibly
past
of an investigation
part
(Id.
S.Ct. at
acknowledged.”
officer
testifying
expressly
*44
recounted,
in
“deliberately
Hammons
2278].) The statements of both
p.
events began
criminal past
to
how
questioning,
potentially
response
police
time after the events described
And both took
some
place
and progressed.
obvious
are an
interrogation
over.
statements under official
were
Such
does
what a witness
for live
because
do
testimony,
they
precisely
substitute
(Ibid., fn. & italics
examination;
testimonial.”
inherently
on direct
are
they
Cage,
omitted;
v.
supra,
[among
While like testimonial, a is courts on both report whether scientific evidence like DNA in Davis for their of the have nonetheless found support sides question United States v. (2d 2006) Cir. F.3d 227 (Cf. [autopsy Feliz position. a record is business record “because business nontestimonial report Court has suggested inconsistent with what the Supreme [in fundamentally of testimonial defining characteristics comprise Davis] Crawford v. Ellis U.S. records evidence”]; (2006) 460 F.3d 926-927 [medical were in defendant’s of methamphetamine system establishing presence were records because at the time the observations nontestimonial business in emergency an “like the declarant reporting made the medical professionals ” (italics . . and were ‘not testifying’ ‘not . acting Davis—were witnesses] with State v. March 2007) omitted)]; (Mo. [laboratory 216 S.W.3d defendant as cocaine base by identified substance possessed report and ‘testimonial’ definitions ‘testimony’ testimonial under “the Davis”]; Kent State Crawford, test in as well as ‘primary purpose’ ‘primary A.2d (2007) purpose’ [“the 391 N.J. Super. 637] a future anticipated evidence for was ... the blood certificate preserve Miller, State at reports 144 P.3d p. [lab DWI prosecution”]; smoking device urine and glass in defendant’s indicating methamphetamine were “for or a fact in requested police purpose establishing proving issue in the criminal prosecution”].)
While we have found no single analysis applicability Davis the kind of scientific case to evidence issue in this Crawford be entirely persuasive, we are nonetheless more those persuaded by cases testimonial, concluding such evidence is not based on our own interpre and Davis. For case, tation of our this purposes involving Crawford admission of a DNA what we extract from those decisions is that a report, statement is (1) testimonial if it is made to a law enforcement officer or to a law (2) enforcement criminal agent describes a fact related to past activity for use at a later trial. possible statement that does Conversely, not meet all three criteria is not testimonial. Regarding first as the court noted point, it is the Crawford
“involvement of government officers in the
of testimonial evi-
production
dence” that
implicates
confrontation clause concerns.
(Crawford, supra,
541 U.S. at
In this
we use the term
respect,
“agent”
only
designate law enforcement officers but those in an
with
agency relationship
*45
law enforcement.
Regarding
third
while the
use of such
point,
possible
consideration,
at
statements
a later trial remains an
as we noted
important
in
decision,
Cage
Davis “now confirms that the
our
focus
whether
proper
[about
an out-of-court statement is
is
the mere reasonable chance
testimonial]
that an out-of-court
statement might
later be used in a criminal
trial.”
Ellis,
v.
(People Cage,
supra,
14];
40 Cal.4th at
U.S. v.
fn.
see
supra,
p.
460 F.3d at
disturbance,
p. 926
reasonable person
a domestic
reporting
[“A
which is what
Davis in
McCottry]
will
doing,
be aware that
[Michelle
the result is the arrest and possible
of the
prosecution
perpetrator. [Citation.]
So it cannot be that a statement
is
in
testimonial
case
a
every
where
declarant
reasonably
it
be used
expects
might
prosecutorially”].)
It
second
drawn in Davis between the circum-
the distinction
point,
stances under which Michelle
911 statement was made—a
McCottry’s
con-
of
temporaneous
an
description
event—and the
unfolding
Amy
of
questioning
Hammon—the
recount[],
of which
purpose
was to “deliberately
in response
police
criminal
questioning, how potentially
events
past
began
pro-
(Davis,
gressed”—that
is critical here.
supra,
analysis, observations, “Therefore, made these [she]—like tasks. when [she] wit- ‘not as acting in emergency an reporting Davis—[was] [a] declarant ” Ellis, (U.S. F.3d at supra, v. 460 ‘not [];’ ness testifying.’ [was] 926-927, omitted.) italics pp. but pre- even in post find for this distinction
We support -Crawford in routine memorialized scientific evidence .Davis decisions that concluded unites these theme that testimonial. A common is not reports forensic are generated in which these reports is that the circumstances decisions (See, e.g., events. recordation of observable the contemporaneous involve Verde, at supra, N.E.2d Commonwealth p. v. [“Certificates scientific well-recognized . the results of . . state merely chemical analysis substance”]; State of the and quantity test determining composition because of of autopsy report P.3d at Lackey, supra, p. [Preclusion “a result unnecessary be harsh and of medical examiner would unavailability routine and descriptive make of the fact that light autopsy reports generally Brown, .”]; . . . body observations physical technicians laboratory and records of the *46 conducted business of a regularly if in the course with knowledge, kept to make activity that business it of practice and if was regular activity, ” Feliz, (United v. States memorandum, data compilation.’ record or report, U.S.C.; Evid., 803(6), 28 Rules rule Fed. supra, quoting 467 F.3d at p. Ellis, 926-927.)12 F.3d at pp. supra, see U.S. v. 460 above, cases,
Thus, holding those cited we find unpersuasive laboratory form in the of Davis various forensic evidence of types under a fact establish was to their purpose were testimonial because primary reports March, (State v. crime. charged of the guilt the defendant’s at trial regarding Miller, Kent, v. 626; State A.2d supra, State v. 663); 918 S.W.3d supra, statement of Davis a testimonial 1052.) equates This reading supra, 144 P.3d at be used will be reasonably anticipated that it might with statement Cage, v. Davis Cage, trial, that, in rejects. as we noted an approach it is not hold that record that qualifies as a business simply a document because We do historical could contain conceivably such document necessarily since some nontestimonial facts. view, Davis, 14.) 40 Cal.4th at fn. In our under
supra, p. determining whether a statement is to consider the circumstances testimonial us requires Davis, under which the statement was made. As we read the crucial point whether the statement of observ- recordation represents contemporaneous But, observed, able events. as have also before Davis a number of we even courts had under which were made pointed circumstances statements and other of forensic evidence as a reason find laboratory reports types those Crawford, notwithstanding statements nontestimonial under their pos- sible use at trial. Those same are also here. circumstances present
For Yates’s and notes were a example, report as generated part standardized scientific her she conducted protocol pursuant employ- at ment Cellmark. While the hired Cellmark in the prosecutor undoubtedly defendant, hope obtaining evidence Yates conducted her against analysis, and made her notes and not order to incriminate report, part job, Moreover, notes, defendant. to the extent Yates’s forms and report merely recount the she used to procedures analyze the DNA are not samples, they themselves as DNA can lead to either accusatory, analysis incriminatory results. exculpatory in this case—that defend- Finally, accusatory opinions ant’s DNA matched that taken from the victim’s and that such result vagina was very unless defendant unlikely was the donor—were reached and not conveyed through laboratory technician’s notes and nontestifying witness, but report, Dr. testifying Cotton.
Thus, Brown, like the DNA records analysis routine, 801 N.Y.S.2d Yates’s notes were made non-adversarial “during (Id. 712; meant to ensure accurate process analysis.” see also Rollins v. p. State A.2d in an Md.App. [“findings autopsy 954] decedent, routine, condition of report physical which are descriptive and not analytical,” nontestimonial].) held In Cellmark’s simply following noting each protocol recording the DNA what carefully step analysis, received, she did with each Yates sample against did “bear witness” Forte, (State defendant. supra, 629 S.E.2d at Records of laboratory followed and the raw protocols data are not resulting acquired accusatory. “Instead, neutral, are they having exonerate as well as convict.” power (Ibid.)
Accordingly, even under this earlier under authority, circumstances which Yates’s and notes were and not report generated, whether would they trial, be available for use at would have been determinative of whether they testimonial, were and pursuant this would not have been. authority they Davis confirms that the critical it might reasonably not whether be inquiry that a statement will be but anticipated used at trial the circumstances under which the statement was made. We conclude therefore that DNA report was not testimonial for and purposes Davis. Crawford 608
c. Harmless Error defendant’s Sixth on Yates’s violated Even if Dr. Cotton’s reliance report Crawford, any error harmless. was Amendment construed rights harmless-error analysis violations are to federal subject Confrontation clause 18, 705, (1967) U.S. 24 L.Ed.2d Chapman 386 [17 under California 673, L.Ed.2d (Delaware v. VanArsdall (1986) 475 U.S. 87 S.Ct. 824]. 674, 1431].) we have reaffirmed “Since Chapman, repeatedly S.Ct. if the not be set aside an valid conviction should that otherwise principle record, constitu the whole that the court confidently say, reviewing may (Delaware v. Van a doubt.” error was harmless reasonable beyond tional asks; Arsdall, “Is it clear beyond harmless error inquiry The p. have found the defendant guilty a that a rational would jury reasonable doubt L.Ed.2d (Neder v. United States (1999) 527 U.S. absent the error?” 1827].) Here the answer is yes. 119 S.Ct. victim were consistent in broken nails of the Hairs found embedded victim’s apartment item from the missing with defendant’s hair. The only had sold to Tynan’s which defendant Jennings handgun, .22-caliber Jr., Jones, was aware was in Tynan’s and which defendant boyfriend, William in the victim a sexual interest Defendant had also expressed possession. murder, was then a After Tynan’s conversation with Jones. during spoke to the Defendant Jennings handgun. seen similar cleaning gun that the and remarked that had not been made public details of murder that testified there what she deserved.” A ballistics gotten expert victim “had murder of defendant used in the attempted that the good gun likelihood taken from similar to one Jennings handgun was a .22-caliber Lebouef Winstein, his in the Lebouef accomplice Defendant told Tynan’s apartment. evidence, murder, we conclude In of this Tynan. light that he killed attempted beyond was harmless admission of DNA evidence that error reasonable doubt. counts remaining infected the also contends that the error
Defendant light The is meritless argument their reversal. against him requires the Lebouef defendant’s convictions both evidence strong supports ante) offenses, (see we have elsewhere recounted and Dean which here.13 need not repeat testimony law error Dr. was state argues that the admission of Cotton’s Defendant also (People testimony by expert opinion as to the of another. it one
because was tantamount 113].) expert disagree. As an Campos We Cal.App.4th 308 [38 witness, regarding forming opinions her own rely report free on Yates’s Dr. Cotton was (Ibid. examination, may the reasons for expert witness state direct the DNA match. [“On for that experts were the basis reports prepared by other opinion, testify his or opinion”].)
d. Wilson claim noted, As Dr. the Cotton testified about of the frequency genetic profile that matched defendant’s DNA and DNA extracted from the swabs vaginal rule; former, using both the interim method and the under ceiling product the 53,000; the the frequency of in the general one profile population under the latter the of the Caucasians in 5.7 profile among was one frequency Wilson, million. Citing People v. supra, Cal.4th contends that the trial court committed reversible error Dr. by permitting Cotton Caucasians, to the of testify the frequency profile among the racial only group to which defendant ethnic belongs, rather than for the three racial and major African-American groups—Caucasian, and Latino—for which DNA data- asserts, moreover, bases exist. He that error is federal constitutional dimension it because lowered the burden improperly prosecution’s of proof, thus violating his federal due process rights.
We conclude that defendant has forfeited his claim by failing specifically event, on he object now grounds advances. In we find the claim and, occurred, without merit if even error harmless.
Defendant concedes there was “no
objection to this
specific
testimony,” but
nonetheless
that the
argues
issue is
he
on
because
“had
cognizable
appeal
whole,”
previously objected
admission of DNA evidence
aas
and that
this
had been
He
objection
overruled.
in this
argues
connection that his due
flows
process objection
from his trial court
and is therefore
objection
Partida
under
preserved
“A or verdict be finding shall not set shall or nor the judgment reversed, decision based thereon be by reason the erroneous admission of (a) evidence unless: There an appears objection record to or a motion []]] to exclude or to strike the evidence that was made and timely so stated as to Code, make clear the ground (Evid. specific objection or motion.” 353.) court, “What is important objection inform the fairly § trial evidence, as well as the party offering reason reasons the specific excluded, objecting believes the evidence party should be so the party offering evidence can and the respond appropriately court can make a Partida, ruling.” fully informed 37 Cal.4th at Defendant’s failure to specifically object at trial fre- population quency testimony ground that evidence the Caucasian regarding only database was a member of defend- improperly suggested perpetrator ant’s race deprived either to prosecution opportunity present *49 or to defend its decision other two databases evidence for the frequency on this ground especially have a objection failure to lodged specific to. His ordinarily analyzes Dr. testified that Cellmark that Cotton given glaring and, database, on cross- for each major of a DNA profile frequency in the examination, genetic profile of the perpetrator’s provided frequency Therefore, timely had defendant lodged African-American population. to the fre- have testified presumably Dr. Cotton could objection, specific Alternatively, major for all three populations. of the DNA profile quency toas testimony decision to have defended its present could prosecution out, hairs recovered that example, by pointing Caucasian population only indicated that perpetrator and hands from the victim’s fingernails course, also, of have would objection A likely timely specific Caucasian. informed ruling. to have made a fully the trial court permitted that he had previously to excuse his failure by arguing Defendant attempts whole, and the specific objection evidence as to admission of DNA objected trial court that the objection a subset of merely larger at issue here was us to his Defendant refers pretrial We are unpersuaded. overruled. already trial, he all motion, his in which objected months before several argued was not analysis generally accepted on the that DNA grounds DNA evidence rule. community Kelly/Frye the scientific required 1240]; P.2d v. United Frye (1976) Cal.Rptr. 17 Cal.3d Kelly cited 1923) In (D.C. passing, Cir. 293 F. States 436], which he described 10 Cal.App.4th Pizarro to a assigned of statistical ratios particular as “questioning acceptability reference, defendant this brief Notwithstanding or ethnic data bases.” racial in not analysis rather that “D.N.A. but argued did not this press objection under the it failed to muster courts” because pass admissible in California rule. Kelly/Frye circumstances, on the that a attack general we disagree
Under these encompasses months before trial of DNA made testing scientific validity of a single the use regarding seeks to advance claim that defendant specific because profile, of a particular genetic calculate the frequency database to testing and of DNA validity assumes the general defendant’s claim present unfairly evidence was frequency whether the only population questions he was also fails to demonstrate to his detriment. Defendant skewed would because such objection at trial excused this raising objection from futile. have been we to the one similar that this case a scenario
Nor do we agree presents Partida, and specific objection in Partida. In timely addressed The issue was law grounds. on state of evidence was made admission claim a federal due process sufficient to preserve whether that objection where the due claim was “an additional process merely legal consequence *50 Partida, the asserted error . . . 37 Cal.4th at [state] 438.) Here no there was p. objection from which it could be specific timely that the constitutional claim argued flowed. we conclude that Accordingly, failure to object defendant’s forfeits his claim on We his further appeal. reject argument his constitutional claim is of such magnitude that of principles forfeiture should not apply. event, that,
In any the fails on claim its merits. While in we Wilson held the generally, the frequency perpetrator’s genetic should be profile as given to all three that, we major left the population groups, where open possibility the evidence, ethnicity is established perpetrator’s other frequency Wilson, that population only be might (People v. acceptable. supra, 38 Cal.4th Here, the hair analysis established that hairs removed from the Thus, victim’s fingernails were characteristic of Caucasians. there was other evidence before the jury that the suggesting Caucasian. perpetrator section, Finally, for reasons set forth even if there preceding were error, we conclude that the error was harmless a reasonable beyond doubt.
C. Phase Penalty Issues
1. Judicial Misconduct Defendant contends that remarks made trial court were inappropriate to the of a case solemnity capital and constituted misconduct. He argues further that the court’s remarks to two defense mitigation witnesses during phase undercut their penalty He asserts that credibility. the cumulative effect this misconduct reversal of the requires death verdict.
a. Background follows; The guilt phase comments of which defendant are as complains manicurist, Frances Hodges, a testified for the about the prosecution type nails she had acrylic to Erin applied Tynan’s and the amount force fingers, it testified, would require remarked, break such a After she nail. the court here, “As we long as have Mrs. Hodges want to make an anyone appointment before recess or have her check nails to see if your you need a manicure?” Schmitt, a Betsy customer service for a credit representative reporting agency, cross-examination, testified about defendant’s financial history. During defense identified an attorney amount defendant owed to the American motto, and referred to the Express Company, familiar “Don’t company’s Schmitt, leave home without it.” Before the court if dismissing asked her she would that Mr. Geier followed “agree the admonition not leave home without his American Card?” Express After Victorville Police Officer Peter firemen, at Dean murder were testified that well as police, present Gryp scene, firemen that ended brief about colloquy court him a engaged Irving As at the station?” friendly dog the court “Do have asking, they with Root, various wounds testifying prosecution’s pathologist, “flesh[ing] about made comment Curtis James Dean’s body, prosecutor intended, it?” “No I take judge pun out the The trial responded, picture.” stated, afterwards, court was entertained “Since the Shortly prosecutor to a head here.” matters bring I will another one. Let’s my try with pun, made when it the trial court also about comments complains Defendant *51 “the that we noted that reason Law The court recognize Day. to paused and order that based on law country because this is a is Day observe Law and have been you exposed to be thankful for many rights and we have have months and many, many you personally criminal now for system justice under in this case enjoy that observed both many rights parties State of California.” of the the federal Constitution and the Constitution both by system to the American justice concluded its brief encomium The court that we do were it not for laws “I think we recognize remarking, the other we unfortunately such as we would have more incidents enjoy, the people respon- a terrible day City, tragedy, hopefully Oklahoma all will rights people to but brought they enjoy sible will be justice, to trial.” brought are they Constitution when apprehended have under our comments, remarks defendant cites two to these guilt In addition phase he claims to witnesses mitigation made by judge during penalty phase Grantham, a their during friend of defendant their Eric credibility. denigrated Alabama, was about by prosecutor parties high years questioned school Before of their Alabama town. he attended in fields outside and defendant had 20, asked, Grantham, there were sometimes “You said judge excusing sir, “Yes, in the out The witness responded, hundred the group?” people asked, of Forrest the name “Was one of them field.” The then judge child, that when of defendant’s testified Sandra the mother Hoyt, Gump?”14 man, but had separated to another first met defendant she was married she asked, “Have him, The with her sister. judge and that he was involved from asked, say do “Why you she to In OprahV reply, ever been asked you go you.” free to Thank go. “You are excused and The judge that?” responded, the end of the remarks at about the trial court’s also complains Defendant which the court for their civility, both counsel complimenting penalty phase, during the previous week made the possibly referred a comment This remark While friend of defendant’s. Quincy, a childhood mitigation witness Dan examination stated, “That’s Auburn counsel University, defense he worked for Auburn testifying that counsel agreed, the witness Barkley went?” After University Bo Jackson and Charles where asked, went to Gump “And Forrest Alabama?” then
contrasted “a trial that has taken to the west us place Angeles in Los were because of the proceedings theatrical inclinations [where criticized] et cetera.”15 The asked the trial court participants, jurors give counsel “a round of for the have done for their clients.” job they applause
b. Analysis The General Attorney that defendant has forfeited claim of argues any judicial misconduct because trial counsel failed to object rule, remarks allegedly court. “As improper general judicial miscon- duct claims are not review if no made preserved objections were appellate v. Sturm on those ground (2006) trial.” 37 Cal.4th 1237 [39 v. Melton 10]; see Cal.Rptr.3d (1988) 129 P.3d also 44 Cal.3d 741].) 750 P.2d Cal.Rptr. Defendant that this claim argues involves “the due administration of therefore be justice” may raised on even without appeal an at trial. objection In he cites Catchpole support, Brannon Cal.App.4th 440].
Catchpole involved the trial a female claim of plaintiff’s sexual harass ment, action, other among causes of in which the trial a judge displayed “ gender bias pervasive that was alternately and ‘courtly or harsh patronizing ” Brannon, and reprimanding.’ (Catchpole supra, 36 at Cal.App.4th 251.) p. In the reversing for the judgment defendant and the remanding case for trial a before different the judge, court declined to reviewing apply forfeiture the to principles bias claim even she plaintiff’s though had not objected trial court’s comments. The improper court reviewing posited that she have may refrained from because of the risk of objecting offending Moreover, the trial judge. “doubt whether the could be cured problem (Id. objection might the discourage assertion of even meritorious claims.” at p. Additionally, forfeiture would “have the effect of unjust insulating {Ibid.) judges from accountability for bias.” The court concluded reviewing that the failure to the plaintiff’s object in case before it was excused because interest” “public “administration factors the justice” inherent in {Ibid.) issue of judicial gender bias.
The case before us does not a involve claim of bias or judicial gender is, therefore, other kind of invidious bias the trial court. Catchpole and does not excuse inapposite defendant’s failure to to the trial object court’s remarks. allegedly improper Defendant therefore has forfeited any forfeited, claim of the judicial misconduct. Even if claim it was is without merit. 15Evidently referring trial, the court was highly publicized Simpson the OJ. criminal taking place
which was at the same time as defendant’s trial. 614 manner prosecution the trial with jocular
Defendant that suggests judge’s of solemnity a lacking degree set tone during guilt phase witnesses case, affected the jury’s penalty phase to a have may appropriate capital Young He cites United States v. in a manner adverse to him. deliberations 1038], S.Ct. for the principle U.S. L.Ed.2d with maintain decorum in keeping responsibility “the trial has judge Sturm, at Cal.4th (See also proceeding.” nature venture humor are judicial “always risky [noting attempts offense”].) a trial for during capital trial, the of this four lengthy Considered in the context disagree.
We were complains of which defendant during guilt phase remarks fleeting Moreover, we find and did not constitute misconduct. judicial innocuous comments, the in the trial court’s Law Day apparent nothing improper their jurors larger meaning which impress purpose upon court’s nor in the trial compliments in the justice system, participation manner at trial. conducted themselves they counsel for the civil which to bolster tendency prosecution None of these comments had any defense, the record to defendant cite anything nor does denigrate on the jury’s remarks had a effect negative his that these speculation support deliberations. penalty phase hand, Gump” that the trial court’s “Forrest agree
On the other
we
no
were
even if
“Oprah”
during
penalty phase
improper,
remarks
witness, Eric
mitigation
was intended.
one
Associating
impropriety
Grantham,
dim-witted
that the
character and suggesting
with
fictional
witness,
the stuff of
another
Hoyt,
mitigation
life of Sandra
personal
*53
com-
derogatory
have been
as
by jurors
tabloid television could
perceived
Sturm,
37
v.
Cal.4th
(People
supra,
on the
of those witnesses.
credibility
ments
‘
making
if it
“persists
at
trial court commits misconduct
1238
p.
[“A
to a
counsel and witnesses
remarks
defendant’s
discourteous and disparaging
the
that
may
which
jury
plainly perceive
and utters
comment from
frequent
’ ”].)
the
Nonethe-
judge”
of the witnesses is not believed
testimony
brief,
of the
less,
comments “fall short
if
these
isolated
even
improper,
v.
warrants reversal.” (People
conduct which
judicial
or biased
intemperate
Melton,
to defense clinical
court’s comment
452, 756].) that courts should court Hernandez Cal.Rptr.2d The 461 [134
615 2. Denial Penalty Phase Instructions of Defense Defendant contends that trial court erred give four by declining errors, defense and special instructions that the individually cumulatively, violated his to a fair determination right penalty under Eighth Fourteenth Amendments to the federal Constitution. We these reject claims.
First, defendant
contends
trial court erred when it
declined
instruct
that the absence
jury
cannot be
mitigating factor
considered
factor
where,
here,
in aggravation. In cases
was instructed
jury
with CALJIC
8.85,
No.
we have consistently
this
claim of error.
rejected
particular
“[A]s
held,
we have
‘a reasonable
could
juror
not have believed .
. that
.
”
absence
v.
mitigation amounted to the
(People
presence
aggravation.’
Vieira (2005)
264,
337,
35 Cal.4th
299
106 P.3d
Cal.Rptr.3d
[25
990]
claim that trial court
[rejecting
“should have
instructed
. . . that
jury
absence of a mitigating factor could not be considered an aggravating
factor”];
v.
1048,
see
People Berryman
(1993)
6
Cal.4th
1100
Cal.Rptr.2d
[25
867,
Next, defendant contends that the trial court erred when it refused to instruct on As lingering doubt. such is acknowledges, instruction v. Lawley (2002) 27 neither state required nor federal law (People Cal.4th 102, 614, 166 Cal.Rptr.2d 461]), [115 P.3d and we have held consistently this concept sufficiently covered in CALJIC No. v. 8.85. (People 166; Lawley, (1995) 12 Cal.4th Sanchez 77-78 1129].) P.2d Cal.Rptr.2d Defendant’s arguments to the contrary notwithstanding, we see no reason to reexamine those in the principles case. present
Defendant also that the contends trial court erred it when declined to give held, his however, instruction on special “We sympathy. have consistently the trial court does not have give such an instruction” Champion Cal.4th 93]), P.2d that such instruction is anof “duplicative instruction the trial court given by that the jury could consider ‘[a]ny other circumstance which extenuates the gravity of crime even though it is not a excuse for the crime and legal other sympathetic aspects defendant’s character or record that the *54 death, offers as basis for a sentence less than whether or not ” related the to offense for which he is on Hines (People (1997) trial.’ 997, Cal.4th 388]; 1068-1069 938 P.2d see CALJIC Cal.Rptr.2d [64 8.85.) No. Defendant’s not arguments do us that persuade these principles should not here. apply equally apply this lower appearance judicial standard when “the of bias and unfairness colors the entire {Ibid.) Self-evidently,
record.” that is not the case here. when it declined to trial court erred contends the Finally, defendant life without the possibility parole the that it could impose instruct jury acknowledges, As defendant the factors. any mitigating even in absence that under CALJIC on the ground, this instruction rejected we have previously here, he or 8.88, would assume juror reasonable No. which was given “[n]o circum aggravating death insubstantial despite she was to impose required stances, exist.” circumstances were found to because no mitigating merely P.2d Johnson (1993) Cal.Rptr.2d 6 Cal.4th (People 673].) We adhere to this view. that, did err in the trial court under settled
We conclude precedent, instructions. Necessar- with the defense special to instruct the declining jury or cumula- or any singular find violations prejudice, we no constitutional ily, tive, determination. reversal of the penalty requiring the Modify Automatic Motion to Verdict Denial Improper
3. that, motion to the modify his automatic ruling Defendant contends upon 190.4, deferred the (§ (e)), jury’s the trial court impermissibly verdict subd. verdict, death consider each of two and failed improperly separately constitutional provi- that these errors violated various sentences. He contends of his motion. remand for reconsideration sions require states, 190.4, case in (e) every “In relevant part: Section subdivision death or finding has returned a verdict imposing which the trier fact be to have made an application the defendant shall deemed penalty, on .... In finding ruling application, modification of such verdict or account, evidence, consider, guided by and be take into shall review the judge 190.3, Section circumstances referred mitigating aggravating and verdicts findings a determination to whether jury’s and shall make are circumstances outweigh the mitigating that the circumstances aggravating record state on the evidence The shall judge law the contrary presented. his findings.” reasons for motion, reweigh independently the trial court must ruling “In factors trial and mitigating presented evidence aggravating whether, the evidence in its judgment, supports determine independent the trial court’s ruling we review death verdict. ... On independently appeal, record, de novo.” we not determine the penalty but do after reviewing 432, 47 P.3d v. Steele 27 Cal.4th 225].)
Defendant claims that the trial court failed to the engage in required review, but the independent concedes that trial court framed its analysis light of the review standard. The court “The applicable independent observed: trial has a judge to review the evidence to determine in his duty whether the the judgment evidence the independent weight ver- supports jury’s dict In whether his the determining judgment weight independent ....[][] verdict, of the evidence the the the supports to assess judge required witnesses, of the credibility determine the force of the probative testimony and the weigh evidence.” count,
In its review of the evidence as to each the trial court cited specific that evidence had led it “agree with the conclusion reached jury” counts, that all special circumstances and special allegations been established beyond reasonable doubt. trial The court also applied standard of review to the independent penalty phase evidence—again, citing evidence in specific mitigation aggravation—and that “the concluded evidence in so aggravation is substantial when to the evidence in compared mitigation to the selection of the support death as the penalty appropriate punishment and that this is overwhelmingly supported by weight of evidence.”
The trial court’s remarks demonstrate that it understood and applied (See v. Smith independent review standard. 30 Cal.4th case, 68 P.3d this court’s preliminary [“In 302] remarks show it understood duty precisely”].) Contrary to defendant’s [its] that suggestion the trial court’s invocation standard was independent rote, our of the record reading that us “the court persuades carefully Steele, conscientiously its under performed duty section 190.4.” 27 Cal.4th at p. We also find no merit in defendant’s other claim trial court failed noted, consider the Tynan Dean death sentences As separately. trial court considered the evidence that supported defendant’s conviction of each count in its separately analysis guilt verdicts. As phase penalty reveal, phase, defendant does not suggest, nor does the he record presented mitigating evidence that might have to one but applied case Thus, other. defendant’s claim must rejected. be
4. Constitutionality Lying-in-wait Circumstance Special Defendant contends that California’s circumstance lying-in-wait special (§ 190.2, (a)(15)) subd. fails to narrow the class adequately persons *56 618 therefore, and, Amendment. Eighth violates for the death
eligible penalty claim (e.g., have this consistently rejected decisions of this court Prior 1, 312, P.2d v. (1997) 15 Cal.4th 419 935 People Carpenter Cal.Rptr.2d [63 708]), that conclusion. and we see no reason reexamine Intercase Proportionality
5. to conduct intercase California’s failure propor Defendant contends that Fourteenth death sentences violates Eighth review of tionality inter- requires the federal nor state Constitution Amendments. “Neither 926, Cunningham v. (2001) 25 Cal.4th (People case review” proportionality 291, 519]), consistently rejected 25 and we have P.3d Cal.Rptr.2d Panah, 500; v. Lewis People v. supra, 35 Cal.4th at this argument. (People p. 28 P.3d also 26 Cal.4th (2001) 34] [“We 394-395 [110 does not intercase that because it require proportional defendant’s claim reject review, ensures arbitrary, discriminatory, death statute penalty California sentences”].) death impositions disproportionate Penalty to the Death Statute Challenges
6. Constitutional statute death challenges penalty Defendant mounts number consistently rejected. have considered and (§ 190.2) that our decisions prior We for us to reexamine those conclusions. He no reason provides persuasive because it (1) the is not unconstitutional therefore conclude that: statute again factors; aggravating as to the existence of does not burden assign proof outweigh that circumstances aggravation does not find jury require doubt; is that death an a reasonable mitigation beyond circumstances v. (People sentence; be so instructed or require jury appropriate Panah, Ramirez, v. 475; 35 Cal.4th at People supra, Cal.4th supra, p. 499; 573); nor is the statute Stitely, supra, (2) 35 Cal.4th at p. p. instructed, not are and were required, because not jurors unconstitutional Stitely, (People on the factors unanimously agree aggravating it does not 573); (3) require is the statute deficient because Cal.4th at nor life, nor there error be on the instructed jury presumption v. Young (2005) 34 Cal.4th was not so instructed. jury because 487].) 105 P.3d Cal.Rtpr.3d CALJIC No. 8.88 7. 8.88, which defines the that CALJIC No. scope
Defendant contends discretion, (1) because constitutionally deficient sentencing jury’s the mitigat- factors with to compare aggravating “so substantial” used phrase that its central to inform the (2) jury fails factors is ing impermissibly vague; determination is death whether is an an autho- merely appropriate, rized, that, if fails to instruct determine the factors penalty; jury they *57 the factors in are mitigation outweigh aggravation, they to return required and, (4) sentence of life without to instruct the parole; jury fails possibility does the that defendant not have burden to it the death that persuade penalty was inappropriate. have rejected
We each of these consistently challenges instruction. v. Carter (People 1166, 553, (2003) 30 Cal.4th 1226 P.3d 70 Cal.Rptr.2d [135 claim that “the ‘so standard [rejecting substantial’ here for employed 981] comparing and factors aggravating mitigating vague, was unconstitutionally conducive to and arbitrary and created an uncon capricious decisionmaking, v. Smith People death”]; stitutional in favor of presumption (2005) 35 Cal.4th 334, 554, 370 P.3d 107 that death Cal.Rptr.3d ‘By advising [25 [“ 229] verdict be should returned if only is “so aggravation substantial compari “warranted,” son with” mitigation that death is the instruction admon clearly ishes to jury determine whether the balance of and aggravation mitigation v. Taylor ”]; makes death the People (2001) appropriate penalty’ 26 Cal.4th 1155, 827, 1181 34 P.3d No. is not Cal.Rptr.2d 8.88 [113 937] [CALJIC deficient it because does not direct that it is jury to return required sentence of life without if it concludes parole mitigation circumstances outweigh the aggravation circumstances “in of other in this light language instruction, allowing a death verdict if only circumstances out aggravating Smith, People v. supra, weighed ones”]; mitigating 35 Cal.4th 370-371 pp. No. 8.88 is not deficient because it [CALJIC does inform the of the jury burden of persuasion because is no burden of penalty phase persua “[t]here sion”].) We adhere to our conclusions.
8. CALJIC 8.85 No. 8.85, Defendant contends that CALJIC No. the standard instruction regard- the section ing 190.3 factors in to mitigation aggravation that are be considered in whether to determining a death sentence life without impose (1) parole, because constitutionally infirm “circumstances the crime” 190.3, (§ factor in aggravation (a)) factor via the instruction results applied in the death arbitrary (2) the trial capricious imposition penalty; instruction; court failed delete to die inapplicable factors from sentencing (3) the instruction fails inform to that jury mitigating factors are relevant solely for mitigation; (4) use of in the adjectives instruction such as “extreme” and “substantial” erect a barrier consideration of jury’s and; mitigation, (5) the instruction failed to written require findings by jury regarding aggravating factors.
620 instruction. challenges each of these consistently
We have rejected Smith, the breadth v. Cal.4th at 373 p. [“Neither 190.3, (a) of nor disagreement the crime’ in factor section ‘circumstances of in arbitrary capricious are results aggravating, about what circumstances 512 U.S. of the death penalty”]; Tuilaepa application California chal- Amendment Eighth [rejecting L.Ed.2d 114 S.Ct. 2630] 190.3, Cal.4th at (a)]; People Stitely, supra, factor lenge § . assertedly to . . delete inapplicable trial did not err failing court [“[T]he v. Ramos factors”]; (2004) 34 Cal.4th sentencing is deficient claim instruction 101 P.3d [rejecting 478] only are relevant factors mitigating because it does not inform jury *58 and the identical this court has “considered rejected because mitigation cases, the jury and no evidence suggests recent contention several v. Box instruction”]; (2000) 23 Cal.4th People the apply unable properly 69, 1153, may are factors a jury 5 the 1217 P.3d Cal.Rptr.2d 130] [“Nor [99 crime, such as circumstances determining consider in penalty, ‘substantial,’ and ‘extreme’ adjectives or use defendant’s age, 574 Stitely, v. 35 Cal.4th at vague”]; People supra, p. unconstitutionally by failing review meaningful trial court did not appellate prevent [“The and reasons findings imposing a written statement require jury’s sentence”].) We adhere these conclusions. death Law International
9. law. We violates international that his death sentence Defendant contends Ramirez, supra, v. 39 Cal.4th at (People claim. have this consistently rejected Panah, v. Hillhouse 500-501; People 479; at People supra, Cal.4th pp. v. p. v. Ghent 45, 754]; P.3d (2002) 27 Cal.4th 1250].) 739 P.2d (1987) Cal.Rptr. 43 Cal.3d 778-779 [239 Errors 10. Effect reversal of of error requires the cumulative effect
Defendant contends that However, “has as defendant proceedings. both guilt penalty phase errors, errors or we found such already possible few have demonstrated conclude harmless, ‘we likewise cumulatively, either individually errors of the judgment.’ does not warrant reversal their effect cumulative Jablonski, Panah, (People 479-480.)” supra, Cal.4th at pp. 37 Cal.4th that, conviction or any special were we to set aside argues Defendant also sentenc- must remanded for new entire matter be circumstance finding, so, remand. no basis for have done there is As we ing hearing.
HI. CONCLUSION The judgment is affirmed. J., Kennard, J., Baxter, J., Chin, J., J., C.
George,
and Corrigan,
concurred.
WERDEGAR,
J., Concurring.
concur in the decision
defend
affirming
I
ant’s convictions and
of the death
imposition
but write
penalty,
separately
address the admission of
match
DNA
that was based on
testimony
analysis by
a nontestifying laboratory technician.
I
with the
agree
majority
technician’s notes and
were not
report
“testimonial”
and hence their
hearsay
introduction
through
DNA
did
prosecution’s
not violate defend
expert
ant’s confrontation
under
v. Washington
rights
As the majority explains, tied prosecution rape murder of Erin Tynan *59 partly through expert testimony of Dr. Robin Cotton, laboratory director for Cellmark. Cotton testified that DNA taken from Tynan’s matched vagina defendant’s DNA and that the fre- sample of the matched quency 53,000 DNA was between one in profile and one in million, 5.7 on the not, depending statistics used. did population Cotton however, or perform personally the supervise laboratory to analysis leading the match. That Yates, was done Cellmark technician Paula who was not called as a witness. In testifying used and the procedures analytical results, forms, Cotton relied on entirely Yates’s notes and and at report points or quoted paraphrased records, statements Yates had made in those written thus introducing them into evidence. The truth of Yates’s written statements the regarding she had taken steps to the various DNA compare samples critical to obviously Cotton’s that defendant’s DNA opinion matched profile that of semen found in the victim’s and the vagina, jury was not instructed that Yates’s were statements not to be considered for their truth. introduced,
The
Cotton,
thus
prosecution
through
of a
hearsay statements
technician,
declarant—the
Paula Yates—who was not
at trial and
present
whom defendant had had no
to
If
prior opportunity
cross-examine.
those
testimonial,
statements were
their admission violated defendant’s
under
rights
the Sixth Amendment’s confrontation clause.
(Crawford, supra,
The two reasons for majority gives Yates’s notes and were holding report First, nontestimonial. Yates’s written record of her laboratory procedures events rather than a recordation observable contemporaneous “constitute^] ante, Second, 605.) at of past (Maj. documentation events.” opn., p. surrounding produc- relies on broader set circumstances majority *60 Jr., scene, Jones, defendant had earlier sold to William gun found and may from the victim’s and defendant missing apartment, possessed roommate, a have used a similar gun regular later. Defendant’s girlfriend’s user, that defendant had made detailed statements testified amphetamine (the roommate) death before read about it in Tynan’s about manner she did not but on cross-examination she read admitted newspaper, did know if articles had appeared in fact every day newspaper An of defendant’s in accomplice to her conversation with defendant. prior murder, user under a immu- testifying grant another methamphetamine but no details. In stated that defendant had told him he killed nity, Tynan gave the highly hearsay contrast to the circumstantial evidence and impeachable statements, match testimony defendant’s Dr. Cotton’s DNA evidence of crime and scientifically. defendant’s involvement directly showed conclusive, Where, here, far guilt finding the other evidence of from beyond reasonable doubt evidence of DNA match with semen is, view, found in the victim’s had no effect on the verdict vagina my unsupportable.
In all other I concur in the respects majority opinion. notes required required handwritten keep recording his or This record is that activity. sufficiently complete Dr. Cotton or another could what the who analyst analyst reconstruct at processed samples did every step. Dr. Cotton also testified about the of a match in terms of significance of a DNA in a frequency given She particular profile population. explained: same, “If two are then profiles it means the be known can’t person excluded as donated the from having which the DNA in the sample profile evidence was . . obtained . . . . . Since each of the bands is a profile [ft] trait, well, genetic can say, how you often would another have this person same combination in the same .way ... But rather than it’s just saying [ft] rare, very small or the generally are can patterns you do a population . ... ... survey So a doing and then the DNA survey comparing profile HO matches—of known an that matches evidence [sample] [sample], you can ask question how often would I to see this DNA expect particular in a Caucasian or profile an population African-American or population a[n] And Hispanic population? by that exercise information to give others about whether this of particular grouping traits is a common genetic event a rare event.” that, Dr. Cotton testified for of purposes determining frequency DNA in a Cellmark particular profile given population, developed DNA databases for three racial and major groups—Caucasian, ethnic African-American and blood Hispanic—using obtained samples through vari- ous sources. Cellmark calculates the of a ordinarily frequency genetic profile for each the three Dr. Cotton testified groups. that there is an alternative calculation Cotton, called the “interim method.” ceiling According Dr. interim method does ceiling not calculate ethnic or by racial frequencies but groups “just each survey[s] group, whatever is the largest, frequency that one calculations, in the calculation. So instead of three having use[s] you are only to have one and are going use you going pick figure you “extraction, DNA samples generating substeps: autorads—involves seven distinct restric tion, transfer,’ electrophoresis, denaturing, hybridization, ‘Southern and autoradiography.” Venegas, supra, Again, citing Barney, provided at we descriptions of these (id. 60-62), substeps pp. may important which the reader What purposes consult. for Yates, Cellmark, Cotton, present biologist defendant’s claim is that Paula with rather than Dr. performed laboratory required completing step. work the first that’s the figure . . and picking all three racial . groups across looking by largest.” DNA obtained from testing the results of Dr. Cotton testified about Finally, and other individuals of DNA samples provided comparisons a bedsheet and extracted from and DNA samples who had known Erin Tynan, the victim herself. victim’s bed and from taken from the swabs vaginal Paula samples performed testified that the analysis Dr. Cotton Yates, the forms Yates Dr. Cotton reviewed biologists. one Cellmark’s
Notes
notes
but
made for investigative
prosecutorial purposes
in this case were not
of the
of ensuring
accuracy
made for the routine purpose
rather were
DNA
for
formulating
and as a foundation
done in the
testing
laboratory
who conducted
laboratory
.
the many'
personnel
. .
notes of
profile, [f]
[T]he
during
were made
days
over several
four
of DNA
steps
profiling
and not
routine,
accurate analysis
meant
to ensure
non-adversarial process
steps
DNA testing requires multiple
for trial. Because
prepared
specifically
steps
all
days,
over multiple
done
technicians
by multiple
and technicians
the benefit of
supervisors
must be documented
process
(Id. 711-712.)
functions.”
testing
pp.
who perform subsequent
on the
of what
further
light
question
The
Court shed some
Supreme
Washington
in Davis v.
statement
a “testimonial” out-of-court
constitutes
(Davis)
S.Ct.
L.Ed.2d
2266]
at notes 801 N.Y.S.2d [“The for the routine . . . were made in this case who tested the DNA samples laboratory done testing accuracy purpose ensuring federal cases the DNA The profile”].) post-Davzs foundation for formulating are business they not testimonial because held such statements are that have Evidence Rules of under Federal records with this theme since consistent “ record, memorandum, or data report, record is defined as a business ‘[a] conditions, form, acts, events, diagnoses, or opinions, compilation, by, person information transmitted near the time or from by, made
notes and notes: “Yates’s were tion and use of Yates’s records report conducted standardized scientific that she generated protocol as part Cellmark” recount the “merely procedures at employment pursuant while “the in this accusatory she used DNA analyze samples,” opinions vagina case—that defendant’s DNA matched that taken from the victim’s defendant was the donor—were unlikely that such a result was unless very laboratory reached and not technician’s conveyed through nontestifying (Id. witness, at notes and but Dr. Cotton.” testifying report, entire I second reliance on the set of agree with majority’s approach, facts and use of Yates’s statements. I am surrounding production hearsay could be every every laboratory not persuaded report properly part deemed because it did not recount criminal nontestimonial simply past events. A conclusion that a defendant’s fingerprints accusatorial report’s blood or DNA matched a latent at the scene or an semen print evidentiary some be considered testimonial under circum- sample, example, might it did recount stances even not criminal events. though past did not that Dr. Cotton’s match violate Having testimony concluded DNA assert, Crawford, which I agree, majority goes conclusion with be error in its admission would harmless under gratuitously, Chapman standard beyond-a-reasonable-doubt California ante, 824], U.S. L.Ed.2d 87 S.Ct. (Maj. opn., 606-607.) Tynan’s I cannot The other evidence agree. tying pp. and murder was circumstantial and was definitive: Defendant rape mainly hairs consistent with defendant’s were sexual Tynan, interest expressed