Opinion
H031321.
4-25-2008
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM MAURICE DILLON, Defendant and Appellant.
NOT TO BE PUBLISHED
A jury convicted defendant of selling cocaine. (Health & Saf. Code § 11352, subd. (a).) Prior to trial, defendant admitted the enhancement allegation that he had previously suffered a conviction for possession of cocaine base for sale. (Health & Saf. Code §§ 11370.2/11351.5.) The court struck the prior conviction and sentenced defendant to prison for four years, the midterm.
Unless otherwise indicated, all statutory references are to the Health and Safety Code.
On appeal, defendant contends that the trial court committed prejudicial error by (1) allowing evidence that defendant had participated in drug sales at the same location six years earlier; (2) failing to instruct the jury sua sponte that defendants out-of-court statements were admissions that should be viewed with caution; and (3) refusing to admit portions of the San Jose Police Departments Duty Manual. He argues that the cumulative effect of these errors requires reversal. He also challenges the correctness of the trial courts decision to uphold Officer Guerras claim of privilege as to the location of his surveillance post, and asks this court to review the sealed reporters transcript of the in camera hearing. We will affirm.
STATEMENT OF FACTS
The Charged Offense
On the afternoon of June 13, 2006, San Jose Police Officer Paul Guerra conducted a narcotics surveillance of the area known as Fountain Alley in downtown San Jose from a concealed location. Fountain Alley is a transit hub as well as a business district, but it is also known for drug trafficking. The day was bright and sunny, and Officer Guerra had an unobstructed view of the area. At 4:00 p.m., using binoculars from a distance of 64 yards, Officer Guerra noticed defendant "standing about," briefly contacting passersby, and ignoring buses and trains. A woman approached defendant. They had a short conversation and then defendant walked away, with the woman following him at a remove of five feet. She looked about furtively.
Next, defendant approached a man, later identified as Andrew Lewis. The two talked briefly face-to-face and then exchanged a small object with cupped hands. After the transaction both men walked away from each other. Defendant stayed in the Fountain Alley area, while Lewis headed toward Santa Clara Street.
Officer Guerra, who had extensive training and experience investigating transactions involving the sale of cocaine, and who had participated in at least 30 arrests for cocaine sales in Fountain Alley, concluded that defendant and Lewis had just engaged in a "hand-to-hand" sale of drugs. He alerted the other members of his team.
Lewis was detained on Santa Clara Street between First and Second Streets by Sergeant James Ford. Ford asked Lewis if he had just purchased drugs and Lewis said "Yes." Ford searched Lewis and found a small rock of cocaine in Lewis front pocket. Shortly thereafter, on Officer Guerras instructions, Officer Jason Barton stopped defendant. Defendant was with a female and had $89 in cash and a cell phone in his pockets.
Andrew Lewis did not want to testify at defendants trial but he did so pursuant to a subpoena from the District Attorneys Office. He did not receive any benefit from the District Attorneys Office for his testimony. He testified that on June 13, 2006, he purchased cocaine from defendant and was arrested. He pleaded guilty to possession of cocaine for personal use.
Lewis knew that Fountain Alley was a place where one could purchase crack cocaine: he had himself purchased drugs there previously. Lewis had never seen defendant before that day, but he had observed defendant make two cocaine sales before he approached defendant. Afterwards, defendant walked away with a girl. Lewis bought his first rock of cocaine that day from defendant at noon and immediately left the area to go home and smoke it.
In 2003, Lewis was convicted of selling a counterfeit controlled substance to an undercover officer.
He returned to Fountain Alley in search of more cocaine at about 3:30 p.m. that same afternoon. He saw defendant, who was with a girl. He did not know if this girl was the same one he had seen with defendant earlier in the day. Lewis again approached defendant and asked for a $20 rock of crack cocaine. Defendant recognized him. Defendant spit a rock out of his mouth into his hand and gave it to Lewis, while Lewis gave defendant a $20 bill that was folded up in his hand. Lewis put the rock in his pocket and walked around the corner to the bus stop on Santa Clara Street between First and Second Streets, where he was immediately arrested.
Immediately after his arrest, Lewis was taken to a parking lot where there were other people who had been arrested, including defendant. The police showed Lewis a photograph of defendant and asked him: "Is this who you bought [the rock of cocaine] from?" He said "Yeah." At trial, Lewis identified a photograph of defendant as the one he was shown by police and confirmed that defendant was the person from whom he had bought the cocaine rock. Lewis admitted that at the time of his arrest he was under the influence of Lithium as well as cocaine.
Lewis and defendant rode to the police station in the same paddy wagon. According to Lewis, defendant repeatedly — about a dozen times — asked him if he had told the police anything. Lewis repeatedly denied that he had spoken to police. He finally asked defendant to leave him alone.
Lewis was interviewed at the police station by Officer Raul Martinez. At 7:20 p.m. Lewis was again shown a photograph of defendant and he signed it. Lewis then wrote and signed the following statement: "Officer Martinez showed me the picture of the man that I twice bought two individual rocks of crack [from], and this is my acknowledgment stating that the picture he showed me is the man I bought the drugs from in your arrest of me." At trial, Lewis reaffirmed that the statement was true and correct.
According to Lewis, the police told him that if he helped them he could get an early release. He was never told that charges would be dropped. Since he was still going to jail, he decided to testify against defendant because he "wanted to clean up [his] act at this point." The police put pressure on him to make a statement, but the reason he did so was "to clear my conscience over this issue I have with drugs."
Officer Martinez testified that Lewis was "nervous, scared" and "[a]t times he would start crying" during the interview. According to Martinez, he explained to Lewis "what could happen, what would happen if he didnt make a statement. ... The district attorney would review it and they will give their opinion if they are going to use that statement or not. Cant promise them anything." Martinez denied telling Lewis that he would get an early release if he cooperated.
Martinez further testified that the police department has a policy about photographic lineups, and that the policies and procedures are laid out in a duty manual. He had read the duty manual. The departments policy depended on the circumstances. "If the subject does not know the person in the lineup, they are supposed to show them six photographs" consisting of one suspect and five fillers.
Officer Martinez was shown a two-page exhibit that said "duty manual" on the front and had a section about photo lineup procedures which, according to the second page of the exhibit, had been revised in 2003. The officer reviewed the exhibit "real fast" and testified that he was not familiar with and did not remember any "Form 200-12, a photo lineup form" in the police department manual, even though the second page of the exhibit referred to such a form. He also said he had conducted "maybe one" lineup under the "new system." He showed Lewis the one photo after talking to Officer Guerra, who said that a lineup would not be necessary.
The Prior Offense
On November 20, 2000, San Jose Police Officer Gustavo Perez was conducting surveillance of the Fountain Alley area. He watched as defendant and two other men loitered in the area, ignored arriving buses and trains but made eye contact with passing pedestrians and motorists. At one point, he saw defendant remove a white baggie from his mouth, inspect it, and re-insert it in his mouth. At an other point, he saw a man hand money to one of defendants associates, who then removed six to eight baggies from his mouth and placed them in his open hand. The man then picked up one baggie, inspected it, put it in his own mouth and walked away. In the meantime, defendant and the other associate were "following close behind looking side to side, looking behind."
Perez testified that in his experience drug traffickers often worked in teams, with one person handling the sales and another person acting as lookout. Based on this experience, Perez believed defendant was "serving as the lookout" for this team. On this particular day, Perez instructed other officers to detain defendant as well as the person who made the hand-to-hand transaction and the other man who was part of the group. He detained the person who did the hand-to-hand transaction and spit out the rocks of cocaine. In addition to the cocaine, that person had $370 in his pocket. Defendant had $221 in his pockets but no narcotics.
Documentary evidence showing that defendant pleaded guilty to possession of cocaine base for sale (§ 11351.5) was introduced at an Evidence Code section 402 hearing but not at trial.
Defense
On June 13, 2006, Michael Fennell rode in the same paddy wagon with defendant and Lewis. He heard defendant twice ask a heavy-set white man why he was arrested. At first the white man did not respond, but the second time he said he was arrested because he had dope. Defendant then asked the white man "[D]id you say anything about me, or if I sold you anything or anything, because they arrested me too." The white man told him "[N]o, I didnt say nothing about nobody, ... I got caught with dope on me so thats why they arrested me." That was the extent of their conversation.
DISCUSSION
Other Crimes Evidence
a. Factual Background
Defendant contends that the trial court committed prejudicial error by admitting the evidence of other crimes to prove common scheme or plan and knowledge.
At the defendants request, the court gave a limiting instruction to the jury on the proper and improper uses of the evidence, which stated in relevant part: "If you decide that the defendant committed the offense, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶] The defendant knew the nature of the controlled substance when he allegedly acted in this case; or [¶] The defendant had a plan or scheme to commit the offense alleged in this case. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offense and the charged offense. [¶] ... [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. [¶] If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of sales of controlled substance. The People must still prove each element of the charge beyond a reasonable doubt." (Judicial Council of Cal. Crim. Jury Instns. (2006) CALCRIM No. 375.)
Prior to trial, defendant filed a written in limine motion seeking exclusion of evidence, summarized ante in the statement of facts, of a prior cocaine sale transaction in which defendant was involved on November 21, 2000, in the Fountain Alley area. He also requested a hearing pursuant to Evidence Code section 402.
In his moving papers, defendant argued that the evidence was barred by Evidence Code sections 1101, subdivision (a) and 352. Following a hearing at which Officer Perez testified, the trial court concluded that the evidence was sufficiently similar to the charged offense to show common scheme or plan, and that the probative value of the evidence outweighed its prejudicial effect. Accordingly, the court denied the motion and admitted the evidence. As noted below, the trial court instructed the jury that the evidence could be considered by them on the issue of knowledge as well as common scheme or plan.
b. Relevant Legal Principles
Prior misconduct evidence is inadmissible if its only relevance is to establish that the defendant possessed a disposition or propensity to commit the charged offense. (People v. Gibson (1976) 56 Cal.App.3d 119, 127; Evid. Code, § 1101, subd. (a).) This rule does not apply to prior misconduct that is "relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident....)" (Evid. Code, § 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt), superseded by statute on other grounds as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505-506.) Since substantial prejudice is inherent in admitting evidence of uncharged offenses, such offenses are admissible "`only if they have substantial probative value." (Ewoldt, at p. 404.) On appeal the question is whether the trial court abused its discretion in admitting evidence of other misconduct. (Id. at p. 405.)
"`To be relevant on the issue of identity, the uncharged crimes must be highly similar to the charged offenses.... [¶] ... [¶] A lesser degree of similarity is required to establish relevance on the issue of common design or plan.... [¶] The least degree of similarity is required to establish relevance on the issue of intent." (People v. Lewis (2001) 25 Cal.4th 610, 636-637 (Lewis).)
"[E]vidence of a defendants uncharged misconduct is relevant where the uncharged misconduct and the charged offense are sufficiently similar to support the inference that they are manifestations of a common design or plan. [¶] ... [¶] ... [I]n establishing a common design or plan, evidence of uncharged misconduct must demonstrate `not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations. [Citation.] `[T]he difference between requiring similarity, for acts negativing innocent intent, and requiring common features indicating common design, for acts showing design, is a difference of degree rather than of kind; for to be similar involves having common features, and to have common features is merely to have a high degree of similarity. [Citations.] [¶] To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. ... [E]vidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense." (Ewoldt, supra, 7 Cal.4th at pp. 402-403.)
However, a conclusion that other crimes evidence is admissible under section 1101, subdivision (b) does not end the inquiry. Because of its potential for prejudice, to be admissible, such evidence "`must not contravene other policies limiting admission, such as those contained in Evidence Code section 352." (Ewoldt, supra, 7 Cal.4th at p. 404) "`The probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury." (Lewis, supra, 25 Cal.4th at p. 637.)
"`The principal factor affecting the probative value of the evidence of defendants uncharged offenses is the tendency of that evidence to demonstrate the existence of the fact for which it is being admitted.... [Citation.] Other factors affecting the probative value include the extent to which the source of the evidence is independent of the evidence of the charged offense, the amount of time between the uncharged acts and the charged offense and whether the evidence is `merely cumulative regarding an issue that was not reasonably subject to dispute. [Citation.] The primary factors affecting the prejudicial effect of uncharged acts are whether the uncharged acts resulted in criminal convictions, thus minimizing the risk the jury would be motivated to punish the defendant for the uncharged offense, and whether the evidence of uncharged acts is stronger or more inflammatory than the evidence of the charged offenses." (People v. Walker (2006) 139 Cal.App.4th 782, 806, citing Ewoldt, supra, 7 Cal.4th at pp. 404-406; People v. Balcom (1994) 7 Cal.4th 414, 427 (Balcom).)
c. Analysis
Defendant argues that the prior drug transaction in the Fountain Alley area was not sufficiently similar to the charged offense to warrant an inference of common scheme or plan. We disagree. The trial court found that, in order to be admissible on a theory of common scheme or plan, the prior offense and the charged offense must be similar enough to indicate that "the conduct in question was directed by design and not mere coincidence. ... [¶] In this case, the use of one member of the group to act as the actual transactor, the use of other members or member of the group as a lookout, the identity, location and circumstances of the transaction are more than sufficient to establish its relevance as to common plan or scheme."
In a later part of his argument, defendant argues that the evidence was not sufficiently similar to prove identity. However, the evidence of defendants prior offense was not admitted to prove identity, and the jurys consideration of the evidence was limited by instruction to the issues of knowledge and common scheme or plan only. Therefore, we need not and do not address defendants argument with respect to the degree of similarity required to prove identity.
Defendant argues that the two offenses were not sufficiently similar because in the prior case, there were two male lookouts, instead of a single female, and defendant was one of the lookouts, not a seller. And, less cash was discovered on defendant in connection with the charged offense ($89) than was discovered in the prior case ($221). It is true that "[t]he probative value of [common scheme or plan] is decreased ... by the dissimilarities between the uncharged and charged offenses." (Balcom, supra, 7 Cal.4th at p. 427.) In our view, these dissimilarities are minor, and do not undermine the conclusion that in each case defendant acted as part of a team for the purpose of selling cocaine while escaping detection. Defendant has not established that the trial court abused its discretion in finding that the evidence was admissible to prove common scheme or plan and knowledge of the contraband nature of the sale item.
Defendant also argues that the evidence was inadmissible under Evidence Code section 352 because it was "cumulative." He relies on the following dicta in Ewoldt: "Our holding does not mean that evidence of a defendants similar uncharged acts that demonstrate the existence of a common design or plan will be admissible in all (or even most) criminal prosecutions. In many cases the prejudicial effect of such evidence would outweigh its probative value, because the evidence would be merely cumulative regarding an issue that was not reasonably subject to dispute. (People v. Schader [1969] 71 Cal.2d 761, 775.) This is so because evidence of a common design or plan is admissible only to establish that the defendant engaged in the conduct alleged to constitute the charged offense, not to prove other matters, such as the defendants intent or identity as to the charged offense. [Citation.] [¶] For example, in most prosecutions for crimes such as burglary and robbery, it is beyond dispute that the charged offense was committed by someone; the primary issue to be determined is whether the defendant was the perpetrator of that crime. Thus, in such circumstances, evidence that the defendant committed uncharged offenses that were sufficiently similar to the charged offense to demonstrate a common design or plan (but not sufficiently distinctive to establish identity) ordinarily would be inadmissible. Although such evidence is relevant to demonstrate that, assuming the defendant was present at the scene of the crime, the defendant engaged in the conduct alleged to constitute the charged offense, if it is beyond dispute that the alleged crime occurred, such evidence would be merely cumulative and the prejudicial effect of the evidence of uncharged acts would outweigh its probative value. In ruling upon the admissibility of evidence of uncharged acts, therefore, it is imperative that the trial court determine specifically what the proffered evidence is offered to prove, so that the probative value of the evidence can be evaluated for that purpose." (Ewoldt, supra, 7 Cal.4th at pp. 405-406.)
This passage is dicta because Ewoldt in fact found the uncharged crime evidence in that case admissible to prove common plan or scheme. (7 Cal.4th at p. 405.)
In People v. Schader, on which Ewoldt relied, the court stated: "Before permitting the jury to hear evidence of other offenses the court must ascertain that the evidence ... is not merely cumulative with respect to other evidence which the People may use to prove the same issue. ... Some commentators have suggested that if the People propose to introduce evidence of another offense in its case in chief, the court should permit the defendant to stipulate the truth of the issue which the People seek to prove." (People v. Schader, supra, 71 Cal.2d at pp. 775-776, fns. omitted.) In Schader, the court found that the other crimes evidence at issue "was not merely cumulative of other proof on the same issues, but necessary to the Peoples case." (Id. at p. 777.) And, elsewhere in Ewoldt, the court noted that "`defendants plea [of not guilty] does put the elements of the crime in issue for the purpose of deciding the admissibility of evidence [of uncharged misconduct], unless the defendant has taken some action to narrow the prosecutions burden of proof. (Fns. omitted.) In Estelle v. McGuire (1991) [502 U.S. 62, 69], the high court stated, `[T]he prosecutions burden to prove every element of the crime is not relieved by a defendants tactical decision not to contest an essential element of the offense." (Ewoldt, supra, 7 Cal.4th at p. 400, fn. 4; see also Walker, supra, 139 Cal.App.4th at p. 796, fn. 13.)
We conclude that the evidence was not cumulative of other evidence proffered by the prosecution to prove that the transaction observed by Officer Guerra was, in fact, a hand-to-hand sale of cocaine rather than some other kind of transaction. Nor was it cumulative of other evidence proffered to prove that defendant knew the nature of the controlled substance involved in the transaction. Both of these matters were elements of the offense which the prosecution was required to prove beyond a reasonable doubt.
Defendant took no action to narrow the prosecutions burden of proof. On the contrary, the defense opted not to inform the jury that defendant had suffered a prior drug conviction. Under these circumstances, the prosecutor was not required to rest his case solely on the accuracy of Officer Guerras observations through binoculars from a distance of 64 yards, or on the credibility of Mr. Lewis, both of which were contested by the defense, or to rely on the circumstances of the offense alone to prove defendants knowledge.
In all other respects, the prior crimes evidence was highly probative of a common plan or scheme to sell cocaine in Fountain Alley. The two offenses shared significant similarities. The evidence came from an independent source. Defendant was, in fact, convicted of the offense, although the jury did not learn that fact, at his request. The offense was not remote, given that he was serving a one-year county jail sentence as a result of a probation violation, as late as 2003. Finally, the evidence of the 2000 offense was neither stronger nor more inflammatory than the evidence of the charged offense. Considering all of the circumstances, we conclude the trial court did not abuse its discretion in admitting the evidence of defendants prior offense. No error occurred.
Inasmuch as we conclude there was no error, we need not and do not reach defendants claim that the error was of federal constitutional dimension and violated due process.
Failure to Instruct on Oral Admission
Defendant contends that the trial court prejudicially erred in failing to give CALCRIM No. 358 sua sponte with respect to the statement or statements that he allegedly made to Lewis while he was in the paddy wagon with Lewis and defense witness Fennell. We agree with defendant that the trial court erred in failing to give CALCRIM No. 358; however, we do not find the error prejudicial.
CALCRIM No. 358 provides: "You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether or not the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such [a] statement[s]. [¶] [You must consider with caution evidence of a defendants oral statement unless it was written or otherwise recorded.]"
When incriminating out-of-court statements allegedly made by a defendant are used by the prosecution to prove guilt, the trial court is required to instruct the jury sua sponte that these statements must be viewed with caution. (People v. Marks (1988) 45 Cal.3d 1335, 1346.) This rule applies to "any oral statement of the defendant, whether made before, during, or after the crime" that is used by the prosecution to prove the defendants guilt. (People v. Carpenter (1997) 15 Cal.4th 312, 393.) While it is error for a court to fail to give the cautionary instruction, "[t]he omission ... does not constitute reversible error if upon a reweighing of the evidence it does not appear reasonably probable that a result more favorable to defendant would have been reached in the absence of the error." (People v. Beagle (1972) 6 Cal.3d 441, 455, superseded by constitutional amendment on another point as stated in People v. Castro (1985) 38 Cal.3d 301, 306-313.) The prejudice analysis focuses on whether "there was any conflict in the evidence about the exact words used, their meaning, or whether the admissions were repeated accurately." (People v. Pensinger (1991) 52 Cal.3d 1210, 1268.) The prejudice attributable to the lack of a cautionary instruction is in proportion to the importance of the defendants admission to the prosecutions case. (People v. Deloney (1953) 41 Cal.2d 832, 840; People v. Lopez (1975) 47 Cal.App.3d 8, 14.)
In this case, independent of the defendants purported statement or statements, the prosecutions case against defendant was strong. Not only did the prosecutor present observations by the police witness; he also produced the buyer, who not only confessed that he bought cocaine, but identified defendant as the person who sold it to him. Furthermore, the buyer testified that he also observed defendant make two sales to other customers. In addition, the dispute between Lewis and Fennell over defendants statement or statements focused not on what he said — both agreed defendant asked Lewis in so many words if Lewis had ratted on him — but on how many times he said it. Under these circumstances, defendant was not prejudiced by the failure to instruct. There is no reasonable probability that the jury would have reached a different result if the court had instructed the jury to view defendants statements with caution. (People v. Watson (1956) 46 Cal.2d 818, 836.)
In Camera Hearing on Undisclosed Surveillance Location
Defendant challenges the correctness of the trial courts ruling sustaining Officer Guerras claim of privilege regarding the confidentiality of the surveillance location. (Evid. Code §§ 1040, 1042.) He asks this court to review the sealed reporters transcript of the in camera hearing concerning this matter. The Attorney General agrees this court should review the transcript to determine whether the court properly denied the defense motion to disclose the confidential surveillance location. We agree with the parties that this is the correct procedure, and we have reviewed the transcript. Having done so, we conclude that the trial court employed the correct standard and did not err in upholding the privilege.
Exclusion of Defense Evidence
Defendant contends the trial court deprived him of his constitutional right to present a defense when it excluded a defense exhibit consisting of two pages of the police departments duty manual pertaining to the procedures for showing photographic lineups. The court excluded the exhibit because it lacked the proper foundation. The admissibility of evidence is determined by the court (Evid. Code § 310) and the courts determination is reviewed for abuse of discretion. (Schomaker v. Provoo (1950) 96 Cal.App.2d 738, 740.) In our view, the courts ruling was correct. Officer Martinez could not "attest" to the authenticity of the copy which he was shown; he was not personally familiar with the section of the revised duty manual which the copy purported to show. (See Evid. Code §§ 1530 & Law Revision Commission Comments, 1531.) "Application of the ordinary rules of evidence ... generally does not deprive the defendant of the opportunity to present a defense [citation]...." (People v. Snow (2003) 30 Cal.4th 43, 90.) "Although completely excluding evidence of an accuseds defense theoretically could rise to [the level of an unconstitutional deprivation of the right to present a defense], excluding defense evidence on a minor or subsidiary point does not impair an accuseds due process right to present a defense." (People v. Fudge (1994) 7 Cal.4th 1075, 1103.) The court did not abuse its discretion, or deny defendant due process by ruling that Officer Martinez testimony failed to provide a proper foundation for the admission of a copy of a two-page excerpt from the police departments duty manual.
Cumulative Error
We have found one error, and concluded it was not prejudicial. Inasmuch as we have not found any other errors, we reject defendants claim of cumulative error.
CONCLUSION
The trial court did not abuse its discretion in admitting evidence of defendants involvement in a prior sale of cocaine in Fountain Alley in 2000. The trial court erred in failing to instruct the jury sua sponte that defendants admissions must be viewed with caution; however, the error was not prejudicial. The trial court did not abuse its discretion in ruling that defendant had not established a proper foundation for the admission of a documentary exhibit. We have reviewed the transcript of the in camera proceedings related to Officer Guerras assertion of a privilege not to disclose the location from which he made his observations and have not discovered any error in the courts decision to uphold the privilege. There is no cumulative error.
DISPOSTION
The judgment is affirmed.
We Concur:
Bamattre-Manoukian, Acting P.J.,
Mihara, J.