Opinion
A156417
05-28-2020
THE PEOPLE, Plaintiff and Respondent, v. SCOTT ALEXANDER EASTMAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super Ct. No. 5-170279-4)
After a jury trial, appellant Scott Alexander Eastman was found guilty of the premeditated murder of his father, Relis Eastman. On appeal, Eastman contends that the trial court erred in admitting certain inflammatory evidence of his internet visits to pornography websites and his "sexting" messages with his girlfriends. Eastman also challenges the court's refusal to admit evidence that Kathleen Rogneby, Relis's ex-wife, repeatedly told others that she wanted Relis dead. He further argues that the prosecutor committed prejudicial misconduct during closing arguments. Seeing no error in the trial court's thoughtful handling of this tragic case, we affirm.
I. BACKGROUND
By information filed March 8, 2017, the Contra Costa County District Attorney charged Eastman (born July 1994) with murder (Pen. Code, § 187, subd. (a)) and alleged the intentional discharge of a firearm (Pen. Code, § 12022.53, subd. (d)), based on the June 25, 2016 shooting of Eastman's father, Relis. Relis was subsequently taken off life support and died on June 30, 2016. Eastman was arrested for the crime on July 9, 2016. Trial by jury commenced on July 31, 2018 and lasted for 34 court days.
Scott Eastman is referred to herein as Eastman. To avoid confusion, Relis Eastman, the victim, will be referred to by his first name. No disrespect is intended.
Kathleen Rogneby testified at trial under a grant of immunity. She identified Eastman as her stepson, whom she had raised since the age of two. She also had four biological children. Relis was Rogneby's ex-husband. They lived together in a co-parenting relationship with all five children to take advantage of Relis's medical insurance. Relis and Rogneby held a family meeting with the children in August 2015, telling the children that they were the beneficiaries under Relis's life insurance policy.
According to Rogneby, Eastman had a strained relationship with his father. Relis was reportedly concerned about Eastman's drug use and suspicious about Eastman sneaking out at night. He wanted Eastman to move out. Relis required that Eastman ask permission when he wanted to drive one of the family cars. Eastman typically drove the family's Volkswagen Beetle. In one incident before the murder, Rogneby woke up to yelling in the middle of the night and found Relis "upset and frantic." He told her that Eastman had tried to kill him. The next morning, Rogneby observed Eastman with a black eye.
On the night of the shooting, Rogneby gave Eastman permission to drive the Volkswagen Beetle. She and her younger children went shopping, then had dinner at a Chili's restaurant. Eastman had told Rogneby that he had broken his cell phone earlier that day. After Relis called expressing concern that Eastman had the car out after dark, Rogneby texted Skylyr S., Eastman's friend, to tell Eastman to return the car home. As Rogneby was driving back to the house, she noticed she was low on gas and drove to a gas station to fill up the gas tank before arriving home at 10:15 p.m. After the family entered their home, one of the children came out of the kitchen saying someone was in the house, while another screamed that she saw blood. Rogneby led the children outside and called 911.
During cross-examination, Rogneby testified that she and her friend Leigh made plans to move in together around the time of Relis's death. In the weeks before the murder, she had been on a 10-day trip to North Dakota with two of her younger children, Leigh, and Leigh's son, returning three or four days before Relis was shot. Rogneby also testified that she was familiar with guns, had gone shooting four or five times in the two years before the murder, and had taken Eastman shooting for his 21st birthday. On redirect, she expressly denied having any involvement in Relis's death.
Defendant's 21-year-old stepsister testified that Relis could be controlling and that Eastman and Relis did not really have a relationship and would sometimes fight and yell at one another. She identified for the prosecution a shell casing Skylyr found in the trunk of the Volkswagen Beetle after Eastman's arrest. She also testified that, when she visited Eastman in jail, he told her that he expected to receive all of the life insurance proceeds after Relis's death and that he planned to "disappear" for two weeks once he was released. Defendant's 18-year- old stepsister testified that Eastman bought drugs on the dark web, including LSD embedded in bits of colored paper known as NBOMe. Eastman gave her NBOMe to ingest, told her he received it in the mail, and had shown her drugs in his possession on more than 10 occasions. Defendant's 15-year-old stepsister testified that on the way home the night of the shooting, she, Rogneby, and her younger brother were driving around trying to locate the Volkswagen Beetle and then stopped to get gas. A few days after the shooting, she was required by Rogneby to loan her cell phone to Eastman for about two weeks because he had lost his.
This cell phone was referred to as the "Kansas phone" because it was recovered by investigators from the family after they relocated to Kansas.
Eastman was with his friends Damian M. and Skylyr S. on the night of the murder. Eastman had a driving curfew. According to Damian, Eastman dropped them off at Damian's house while he returned the car. Damian's house was a 5- to 10-minute walk from Eastman's house, and Eastman walked back to meet them within a "reasonable time." Skylyr testified that he and Damian walked to Damian's house while Eastman dropped off his car. Eastman appeared at Damian's house 20 to 30 minutes later and was a little bit out of breath. Damian's father testified that he saw Eastman drive over and drop off a lawn chair at his house on the night of the murder. Eastman returned about an hour later, knocking on the front door. He was out of breath and sweating, "like he'd run back from wherever he was." Damian had previously watched Eastman order NBOMe on the internet and had sampled one paper square supplied by Eastman. About 10 days after the murder, Skylyr told Eastman's 21-year-old stepsister he had found a .22-caliber bullet in the trunk of the Volkswagen Beetle while looking for a cigarette.
Paramedics found Relis on the kitchen floor surrounded by a significant amount of blood. Relis had been shot in the back of the head with a corresponding exit wound at the left temple above the left eye. An Antioch police officer saw no sign of forced entry into the family home and no sign of a struggle. Relis's phone and wallet were found in his pants pockets. Two mushroomed bullets were recovered from the scene, one in Relis's clothing and another in the television. The forensic pathologist who conducted the autopsy testified that Relis had no defensive injuries. The cause of death was a gunshot wound to the head.
John Murdock from the Contra Costa County Sheriff's criminalistic laboratory qualified as an expert in tool mark identification as it relates to firearms. He identified the mushroomed bullet found in Relis's clothing as a .22-caliber long rifle bullet with distinctive rifling impressions. Using an FBI database, Murdock concluded that the markings on the bullet were consistent with having been fired by an H&R Model 999 Top Break revolver. No other possible revolver identified by the database was a match. The bullet recovered from the television was also a .22-caliber long rifle bullet and could have been fired by the same gun. The cartridge casing found in the Volkswagen Beetle was for a .22-caliber long or long rifle bullet. Markings on the cartridge were consistent with having been fired from an H&R Model 999.
After the shooting, Antioch Detective Adrian Gonzalez checked a law enforcement database which tracks secondhand sales and discovered that Eastman had sold a cell phone through an EcoATM kiosk on the night of the murder. EcoATM is a secondhand dealer that purchases used electronic equipment at kiosks in various establishments. An EcoATM kiosk requires a seller's photograph, driver's license, and thumbprint to complete a transaction. EcoATM records and Walmart surveillance footage showed that at 5:50 p.m. on June 25, 2016, the EcoATM kiosk at the Walmart in Antioch accepted an LG cell phone from Eastman for purchase. Detective Gonzalez retrieved the cell phone from the EcoATM kiosk. We refer to this cell phone as the "primary phone."
Detective Gonzalez used specialized software to extract data from the primary phone. The data retrieved from the primary phone showed searches for gun auction sites, .22-caliber ammunition, H&R .22LR revolvers, how much damage a .22-caliber bullet causes from six feet away, and stepmother and stepsister-themed pornography. An expert qualified in cell phone forensics explained that the primary phone had an anonymous social media application known as Whisper that allows a user to superimpose words over pictures. The Whisper account on the primary phone was linked to Eastman under the username "thatoneguy." The Whisper account included references to drugs and drug sales, including NBOMe, and sexually explicit chats with another user.
Data was also extracted from the Kansas cell phone for the time period after the murder in which Eastman maintained possession of it. Web history included searches for stepmother and stepsister pornography, the dark web, NBOMe, police investigative techniques, and a Facebook account linked to Eastman. The data also contained emails associated with Eastman's email address.
The Volkswagen Beetle was found by police parked on a nearby street about 200 yards from the family home. Detective Gonzalez obtained neighborhood surveillance footage from the night of the murder. The recordings showed Eastman walking from the Volkswagen Beetle toward the family house, and then, approximately 25 minutes later, a person running from the car toward the camera and veering offscreen.
During the defense case, Erin P., Gerry D., G.M., and Brianna W. all testified that Rogneby was dishonest and had stated to them that she would benefit financially should Relis ever die. Brianna W. also testified that Rogneby told her she could not afford to leave Relis. According to Brianna W., she observed Rogneby using her older children's cell phones and going on their social media accounts too many times to count. Gerry D. confirmed it was common for Rogneby to go back and forth between phones. Erin P. testified that Rogneby "always [had] a different phone." In rebuttal, Erin P.'s mother and daughter testified that Erin P. was a liar and that Rogneby was trustworthy. Another defense witness testified that she worked with Relis at AT&T. She received a call from Rogneby two or three days after the shooting asking for the number for the company's life insurance program.
On September 27, 2018, the jury found Eastman guilty of first-degree murder and found true the gun use allegation. On January 18, 2019, the trial court sentenced Eastman to state prison for a total of 50 years to life. This appeal followed.
II. DISCUSSION
A. Standard of Review for Evidentiary Matters
The primary thrust of Eastman's appeal is that the trial court committed prejudicial error in both the admission and exclusion of certain evidence. Any analysis of the admissibility of evidence "begins from the premise that, '[e]xcept as otherwise provided by statute, all relevant evidence is admissible.' " (Kim v. Toyota Motor Corp. (2018) 6 Cal.5th 21, 31, quoting Evid. Code, § 351.) Relevant evidence is that which has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (§ 210.) "The standard of review for decisions as to whether or not certain evidence is relevant is abuse of discretion." (People v. Sanders (1995) 11 Cal.4th 475, 554-555.)
All statutory references are to the Evidence Code unless otherwise specified.
A trial court has "considerable discretion" to decide whether evidence, even if relevant, should nevertheless be excluded because its probative value is substantially outweighed by its possible prejudicial effects. (People v. Merriman (2014) 60 Cal.4th 1, 78 (Merriman); see § 352.) " '[E]vidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.' " (People v. Branch (2001) 91 Cal.App.4th 274, 286 (Branch).) A trial court's rulings on the issue of undue prejudice "will be upheld on appeal unless it is shown ' "the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." ' " (Merriman, at p. 78.)
Finally, a trial court's rulings regarding the admissibility of prior conduct evidence under section 1101, evidence impacting credibility under section 780, and third-party culpability evidence are all reviewed for abuse of discretion. (See People v. Rivera (2019) 7 Cal.5th 306, 340 [prior conduct under section 1101]; People v. Ghobrial (2018) 5 Cal.5th 250, 283 [third-party culpability evidence]; People v. Thorton (2007) 41 Cal.4th 391, 428 (Thorton) [credibility evidence under section 780].) B. Admission of Cell Phone Evidence
Eastman first challenges the trial court's decision to admit evidence extracted from cell phones he allegedly used that chronicled visits to internet pornography sites and detailed various "sexting" text messages, including images of male and female genitalia. According to Eastman, this evidence was not admissible under section 1101, subdivision (b), to show identity. He further contends that the evidence was highly inflammatory and entirely cumulative, rendering it unduly prejudicial and therefore inadmissible under section 352. We see no abuse of discretion in the trial court's handling of this evidence.
1. Factual Context.
In July 2018, the defense moved in limine to prohibit the prosecution from referencing searches involving pornography and web history involving pornography. The prosecutor explained that there were two separate phones on which the searches were conducted (the primary phone and the Kansas phone), and the search history evidence was relevant to show the identity of the person who was in possession of the phones and using them at particular times. According to the prosecutor, the identity of the user of the phones was "highly relevant" because, in the timeframe leading up to the murder, notices were being sent out from the primary phone searching for a gun on the dark web using an application called Whisper. In addition, there were searches on the phone regarding "how to kill somebody with a .22, how far do you have to be away, what's the most lethal spot on a body to shoot somebody to kill them with a .22. And then there's searches for ammunition, that was the same ammunition that was used in the murder." The prosecutor further represented that the type of gun searched for on the primary phone uses ammunition that matches the cartridge found in the Volkswagen Beetle, and that forensics would show that the type of gun searched for was the same firearm used in the shooting and capable of causing the markings on the recovered cartridge casing.
The prosecutor summarized the relevance of the pornography searches as follows: "The fact that the defendant has been searching for different things throughout the period of time when he's also searching these searches that the defense counsel is hoping to attribute to a third party, goes to the identity of who is doing the searching, which goes to the identity of the shooter in this case." The prosecutor argued the pornography evidence was necessary to rebut any defense suggestion that it was Rogneby using the phones to make the incriminating searches. She further suggested that explicit text messages between Eastman and his girlfriends during relevant timeframes also helped establish the identity of the person using the phone when incriminating searches were occurring.
Defense counsel acknowledged that the girlfriend text messages would go to the identity of the person using the phone at that time but argued that there was nothing in the pornography searches or the gun and ammunition searches directly linking them to Eastman. The prosecutor disagreed, arguing that "you need to see when he is texting and he is having a conversation and in the middle of those texts he is searching for porn. But then when you are trying to figure out something else at a different time period, you're seeing the searches for the porn with other relevant information. So the porn is the bridge to the identity of who is doing the other identification."
According to the prosecutor, the Kansas phone was also probative because, in the week or so that Eastman possessed that phone, there were similar stepmother- and stepsister-themed pornography searches and texts to the same girlfriend—that is, the searches on the Kansas phone during that time period "mirror and show that the other phone was the defendant as well, because you can see through those searches that the searches are similar to phone searches on the old phone."
The trial court found the pornography searches relevant and admissible under section 1101, subdivision (b), reasoning as follows: "I am assuming, as was represented in the arguments, that the evidence of these dark web searches, these porn searches, um, and this evidence in regards to searches for a gun, how to kill someone, and ammo, are intertwined in the evidence of the contents of this phone. But with that, I am finding that the information is relevant under 1101(b), um, and especially given, and I confirmed it twice, that the use and ownership of both phones is in dispute, that makes the information relevant, and anything—um, relevant meaning has a reasonably, um, related—let's see, evidence being relevant to the credibility of a witness, or a tendency to prove or dispute—disprove any disputed fact that is of consequence." The court stated that the evidence was admissible under section 1101, subdivision (b) to prove identity and "at least arguably" preparation. It also found the girlfriend text messages relevant.
Citing this portion of the court's ruling, Eastman argues on appeal that the trial court erred in concluding that the challenged evidence was admissible because it was relevant to the credibility of a witness. When read in context, however, it is clear that the court was simply reciting the definition of relevant evidence, which includes a reference to credibility, not finding a separate basis for admissibility. (See § 210 ["'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action."].)
In making its evidentiary ruling, the court acknowledged the sensitive nature of the pornographic evidence at issue and agreed with defense counsel that it was something to consider under section 352. The court then reasoned: "I agree it's prejudicial. The question is, is it so unduly prejudicial to outweigh the probative value? And again, because the ownership and use of the phone is in dispute, and the offers that I was given, including the searches that occurred in one phone and the second phone, since both are in dispute, that becomes relevant and I do not find that the prejudice . . . outweighs the probative value."
Later, during trial, the court considered defense objections to several sexting photographs, including multiple pictures of a girlfriend in underwear, an image of a portion of two clothed bodies, two images of an erect penis, and a picture of a female's vaginal area. Defense counsel argued that the erotic photographs had minimal probative value, were prejudicial, and were cumulative of the "hundreds of pages" of other evidence the prosecution was offering. The prosecutor disagreed, arguing that all the girlfriend pictures and texts constituted a conversational pattern supporting the inference that Eastman was the only one in possession of the phone during the relevant timeframes and that this evidence was necessary to rebut the defense suggestion that the phone "was in the possession of many other people at many other different times." The prosecutor also noted that the outgoing pictures of the erect penis supported the inference that the phone was not in the possession of a female, such as Rogneby. The pictures were also important because the evidence of a gun search on Whisper occurred "in and around the times that these text messages and these photographs were . . . passed to his girlfriend."
The court admitted the pictures not involving bare genitalia, concluding that "this evidence will be circumstantial evidence of who had use and possession of the phone at those particular times" and rejecting the argument that "the prejudice outweighs the probative value." The court agreed, however, that the explicit photos, although probative, were unduly prejudicial. It resolved the dispute in the following manner:
"So what I'm going to do and order is that for these specific photographs . . . that the image itself be redacted to read 'court redacted image of an erect penis' for the two pictures of the erect penis, [and] that the image—leave the box, but the box be blackened to read, 'court redacted image of a displayed vagina.' That removes the prejudice that the court agrees would outweigh
the probative value, given that no other portion of the body can be seen. [¶] That removed, at least in the Court's perspective, this dehumanizing highly prejudicial photograph, but it allows the jury to know there is an image of a male body part or a female body part in the context of the exchanges. They don't need to see the picture of Mr. Eastman, if it is Mr. Eastman's erect penis. They don't need to see the picture of this young lady's displayed vagina. They can know that is what is there. I think that removes the prejudice. I think that makes it appropriate and probative, if the jury wishes to accept and consider it, and it's not misleading, it's not taking out something, especially if the issue is the gender of the person in possession of this phone, et cetera."
2. No Abuse of Discretion Shown.
"[E]vidence of a person's character or a trait of his or her character," including "evidence of specific instances of his or her conduct," is generally inadmissible when offered "to prove his or her conduct on a specified occasion." (§ 1101, subd. (a).) However, admission of this prior conduct is permissible "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, [or] identity . . . ) . . . other than his or her disposition to commit such an act." (§ 1101, subd. (b).) The trial court below found Eastman's history of specific pornography searches relevant to both identity and intent and therefore admissible under section 1101. "Evidence of identity is admissible where it is conceded or assumed that the charged offense was committed by someone, in order to prove that the defendant was the perpetrator." (People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn.2 (Ewoldt).) "Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense." (Ibid.)
Here, the pornography searches were not admitted into evidence to prove Eastman's disposition to indulge in pornography. Instead, they were offered to show the identity of the shooter by proving the identity of the person using the primary cell phone—which contained damning circumstantial evidence of planning for the murder. In effect, the distinctive and repetitive pornography searches acted as Eastman's signature, suggesting he was in possession of the phone at critical points. Although we agree with the trial court that the extra analytical step in this case distinguishes it from more "traditional" applications of section 1101, we nevertheless believe it falls within the plain language of the statute. (Compare People v. Harrison (2005) 35 Cal.4th 208, 228-230 [evidence the defendant attempted to murder a witness to whom he had admitted the charged double murders was admissible to show defendant's consciousness of guilt, which in turn was probative of his identity as the perpetrator of the charged offenses].)
Relevant evidence otherwise admissible under section 1101 must still be excluded unless its potential prejudicial effect is substantially outweighed by its probative value. (Ewoldt, supra, 7 Cal.4th at pp. 404-405 [" 'Since "substantial prejudicial effect [is] inherent in [such] evidence," uncharged offenses are admissible only if they have substantial probative value.' "]; see § 352.) "Evidence Code section 352 requires the exclusion of evidence only when its probative value is substantially outweighed by its prejudicial effect. 'Evidence is substantially more prejudicial than probative [citation] [only] if, broadly stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome." ' " (People v. Tran (2011) 51 Cal.4th 1040, 1047 (Tran).) Here, the significant probative value of the pornography evidence justified its admission.
The prosecution's case against Eastman was entirely circumstantial. Although evidence of a possible motive was presented and the prosecution posited a timeline suggesting that Eastman was in the vicinity of the family home at the time of the murder, the only evidence connecting Eastman to the actual perpetration of the crime and establishing premeditation was the information recovered from the cell phones. Under these circumstances, evidence tending to establish identity—i.e., that Eastman was in possession of and was using the cell phones during relevant timeframes—was not just relevant in this case; it was critical. Eastman's argument that the pornography evidence was cumulative of other evidence because it was extracted from the phone during the same timeframe as the gun and ammunition searches thus misses the mark. The identity of the person who conducted the gun and ammunition searches on the primary phone was in dispute, making the pornography searches conducted in the same timeframe important evidence linking Eastman to the incriminatory gun and ammunition web research.
Undoubtedly, evidence of repeated searches for pornography, especially pornography involving stepsisters and stepmothers, could have some tendency to inflame the emotions of the jury. (Branch, supra, 91 Cal.App.4th at p. 286.) However, as stated above, all such prejudicial evidence is not, ipso facto, inadmissible. The instant case involved the alleged cold-blooded killing of a father by his son in their family home. Thus, not only did the challenged evidence have substantial probative value, it was no more inflammatory than the testimony concerning the charged offense. (See Tran, supra, 51 Cal.4th at p. 1047 [potential for prejudice decreased "when testimony describing the defendant's uncharged acts is no stronger or more inflammatory than the testimony concerning the charged offense"].) We find no abuse of discretion in its admission.
As for the "sexting" texts between Eastman and his girlfriends, defense counsel conceded below that the texts were relevant to show the identity of the person using the cell phones at those specific times. Thus, the only issue is whether the sexting pictures as modified by court order should have been excluded as unduly prejudicial. We conclude that the trial court's careful analysis under section 352 and its substitution of sexually explicit images with words describing the content of those images removed any possibility that the jury might be inflamed. We see no error, and certainly no abuse of discretion. C. Exclusion of Ex-wife Statements
Eastman next argues that the trial court erred by refusing to admit defense evidence that Kathleen Rogneby repeatedly told others she wanted Relis dead and that his death would benefit her. The defense theory was that Rogneby, while not the actual shooter, had conspired with an unknown third party to kill Relis. Eastman contends that the statements at issue were admissible as third-party culpability evidence and under section 780 to show Rogneby's bias or motive. Exclusion of this evidence, he argues, violated his federal constitutional rights to present a defense and to due process. We are not persuaded.
1. Relevant Legal Standards.
In the seminal case of People v. Hall (1986) 41 Cal.3d 826 (Hall), our Supreme Court clarified the rules for the admission of third-party culpability evidence, stating: "To be admissible, the third-party evidence need not show 'substantial proof of a probability' that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant's guilt." (Id. at p. 833.) Courts evaluating the admissibility of proffered evidence of third-party culpability must first determine whether the evidence "could raise a reasonable doubt as to defendant's guilt" and then consider its admissibility under section 352. (Ibid.) In other words, "courts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible (§ 350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion (§ 352)." (Hall, at p. 834.) "[A]n inquiry into the admissibility of such evidence and the balancing required under section 352 will always turn on the facts of the case." (Hall, at p. 334.)
The Hall court emphasized that "evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (Hall, supra, 41 Cal.3d at p. 833; see People v. DePriest (2007) 42 Cal.4th 1, 43 (DePriest) ["Under Hall and its progeny, third party culpability evidence is relevant and admissible only if it succeeds in 'linking the third person to the actual perpetration of the crime.' "]; People v. Edelbacher (1989) 47 Cal.3d 983, 1018 (Edelbacher) ["evidence of a third party's motive, without more, is inadmissible"].)
Numerous courts have applied the Hall rubric to reject tenuous third-party culpability claims. (See People v. Prince (2007) 40 Cal.4th 1179, 1239, 1242 (Prince) [evidence that victim had told six acquaintances that her boyfriend struck her, threatened her with a knife, and that they had "furious arguments" properly excluded because the evidence "did not directly or circumstantially connect [the boyfriend] to the actual commission of the crimes," showing "no more than motive"]; People v. Gutierrez (2002) 28 Cal.4th 1083, 1135-1137 [while evidence linking victim to drug trafficking might indicate that a third party involved in drug trafficking "had a motive or possible opportunity" to murder the victim, "additional direct or circumstantial evidence was required to link . . . some other third party to the actual perpetration of the crime"]; People v. Lewis (2001) 26 Cal.4th 334, 373 [third-party culpability evidence excluded as speculative and too remote in time and manner; the probative value of the evidence did not outweigh its prejudicial impact and possible confusion of the issues]; People v. Kaurish (1990) 52 Cal.3d 648, 684-686 [mere evidence of a third party's anger at the victim did nothing to link that third party to the actual perpetration of the crime as required by Hall]; Edelbacher, supra, 47 Cal.3d at pp. 1017-1018 [victim's involvement in drug dealing provided a possible motive only and was thus insufficient to raise a reasonable doubt as to defendant's guilt].)
Section 780 provides another potential path to admissibility. It specifies that, in evaluating a witness's credibility, "the court or jury may consider . . . any matter that has any tendency in reason to prove or disprove the truthfulness of his [or her] testimony at the hearing, including but not limited to any of the following: [¶] . . . [¶] (f) The existence or nonexistence of a bias, interest, or other motive. [[¶] . . . [¶] (h) A statement made by him [or her] that is inconsistent with any part of his [or her] testimony at the hearing." For example, "[p]roof of a witness' bias or prejudice against the specific individual who is a party in the litigation is clearly admissible." (In re Anthony P. (1985) 167 Cal.App.3d 502, 508.) However, section 780 "does not 'say that all evidence of a collateral nature offered to attack the credibility of a witness would be admissible. Under Section 352, the court has substantial discretion to exclude collateral evidence.' " (Thorton, supra, 41 Cal.4th at p. 428.) We review the relevant facts under the foregoing principles.
2. Factual Context.
In July 2018, the prosecutor moved in limine to exclude all evidence related to Rogneby offered by defense witnesses, including any third-party culpability evidence. The prosecutor specifically challenged statements purportedly made by Rogneby to potential defense witnesses Gerry D., G.M., Sarah H., Brianna W., and Erin P. as irrelevant, hearsay, and/or speculation. Defense counsel argued generally that the proffered evidence was relevant and admissible evidence that someone other than Eastman shot Relis.
The court stated it would not rule on specific evidence until it arose in the context of the trial. However, using Gerry D. as an example, it preliminarily opined that it would not allow hearsay statements made by Rogneby that she wanted Relis dead unless it was used for impeachment. In contrast, the court noted that other potential third-party culpability evidence—such as evidence that Rogneby had access to relevant cell phones and the car from which the shell casing was recovered—would be relevant and admissible. Evidence of Rogneby's actions with respect to Relis's life insurance policy would also be admissible. The court also rejected the prosecution's request that defense counsel be barred from suggesting in his opening statement that Kathleen Rogneby was involved and took steps to implicate Eastman in the murder.
In August 2018, Eastman filed a motion to admit Rogneby's hearsay statements that she wanted Relis dead under the hearsay exception for evidence related to state of mind. (See § 1250, subds. (a)(1) & (a)(2).) After a filed opposition and an initial hearing on the matter, defense counsel filed an additional document detailing anticipated areas of inquiry should Rogneby testify. The pleading included Rogneby's alleged prior statements that she wanted Relis dead and argued that, if Rogneby testified, these statements would be admissible under section 780 because they showed bias, intent, and motive to fabricate or otherwise give untruthful testimony.
Rogneby took the stand at a section 402 hearing and invoked her Fifth Amendment right against self-incrimination, refusing to answer numerous questions regarding the circumstances surrounding the crime beyond stating her name. The prosecutor responded by offering Rogneby use immunity with respect to her testimony in the case, and the court approved an immunity agreement. Rogneby then testified under direct examination by the prosecutor regarding her family and the circumstances surrounding the crime. She was not asked whether she had ever made any statements to the effect that she wanted Relis dead.
During a police interview, Rogneby reportedly denied ever saying that she wanted Relis dead. However, the prosecutor indicated that this prior statement would not be introduced in the case and Rogneby was not questioned about it.
Before defense counsel's cross-examination of Rogneby, the court revisited the evidentiary issues involving her alleged prior statements. The court conducted a detailed inquiry into the circumstances surrounding the Rogneby statements as reported by Gerry D. (" 'We would all be better off if Relis was dead. . . . Even better if he got hurt at work' "), G.M. (" 'If I could get away with killing him, I would' " and " 'My life would be so much better if he were dead' "), Erin P. [" 'Sometimes I wish Relis was dead, I'd be better off' "), Sarah H. (" 'I wish you would go away' "), and Brianna W. ("She could count on both hands the number of times that [Rogneby] said that she wanted Relis dead" and "[Rogneby] said she couldn't leave him because she needed money").
In a lengthy ruling from the bench, the trial court addressed the admissibility of Rogneby's hearsay statements and other related subject areas. It began by finding that Rogneby's state of mind was not at issue in the trial. It then discussed third-party culpability, citing several cases, including Hall and Edelbacher, in concluding that the evidence of Rogneby's prior statements proffered by the defense did not meet the threshold for admission. The court specifically noted that the defense had cited to no evidence in its offers of proof linking a third party to the actual perpetration of the crime.
The court next explained that a section 352 analysis was required under both third-party culpability and section 780 theories of admissibility. It addressed each of the challenged Rogneby statements, excluding all of them under section 352. The court found various statements vague (Sarah H., Erin P.), untrustworthy (Sarah H., Erin P., G.M.) and/or stale (Erin P.), and explained that reliance on section 780 did not override the court's third-party culpability analysis or the necessary weighing under section 352.
The court also described various evidence that would be admissible. The defense would be allowed to cross-examine Rogneby regarding her immunity agreement and explore whether she had a financial interest in the proceeding. Defense witnesses could testify regarding Rogneby's use of her children's cell phones, Rogneby's statements regarding Relis's insurance policy, and her statements that she could not leave Relis for financial reasons and would benefit financially if Relis was dead.
The next day, the court clarified its ruling, stating that the defense could ask Rogneby if she stood to benefit financially from Relis's death, but could not directly question Rogneby or any other witness regarding whether they had wanted Relis dead. The court found the latter question both irrelevant (other than in the already rejected context of possible third-party culpability) and likely to cause confusion under a section 352 analysis. During cross-examination, defense counsel asked Rogneby: "Did you ever tell anybody that you had a financial interest if Relis were to pass away?" Rogneby replied: "I never said that I had any interest in Relis passing away."
Several weeks later, prior to the presentation of the defense case, the court reiterated all of it previous rulings with respect to the Rogneby statements. In reaffirming its prior rulings, the court acknowledged that during cross-examination, Rogneby had testified in response to a defense question "as to whether or not she had a financial interest if Relis were to pass away" that she "never said that [she] had any interest in Relis passing away." Several defense witnesses were permitted to testify that Rogneby had told them she would benefit financially if Relis died.
3. No Abuse of Discretion Shown.
As our detailed recitation of the relevant facts makes clear, the admissibility of Rogneby's prior statements to others that she wanted Relis dead was heavily litigated by the parties and thoroughly addressed by the trial court. We find no fault in the trial court's comprehensive and thoughtful resolution of this evidentiary issue. Since Rogneby was with her children on the night of the murder, she could not herself have committed the crime. And, as the trial court recognized, none of the defense's offers of proof with respect to third-party culpability provided any evidence connecting Rogneby to a specific third person who could be linked to the actual perpetration of the murder. Under the circumstances, Rogneby's prior statements that she wished Relis dead at most provided a motive for the killing and thus did not meet the evidentiary threshold for admission as third-party culpability evidence. (See Hall, supra, 41 Cal.3d at p. 832; DePriest, supra, 42 Cal.4th at p. 43.)
To the extent Eastman is suggesting that the Rogneby statements should have been admitted under section 780 as evidence that she was somehow linked to the crime and thus had a motive to lie during her testimony, he is essentially rearguing third-party culpability which, as we have just stated, the trial court properly rejected. Moreover, the trial court expressly found several of the statements to be vague, untrustworthy, and/or stale. At best, the evidence was marginally relevant to the issue of whether Rogneby had a bias or motive to fabricate her trial testimony. But without any evidence of Rogneby's alleged involvement in the murder, the trial court concluded under section 352 that the limited probative value of the statements was substantially outweighed by the probability their admission would have confused the issues and misled the jury. We cannot find any abuse of discretion in the trial court's careful weighing of these factors.
Finally, Eastman's repeated assertion that the Rogneby statements should have been admitted to impeach Rogneby's testimony during cross-examination is misplaced. Rogneby testified that she had no "interest in Relis passing away," but she did so in response to a defense question about any potential financial interest she might have in his death. Since Rogneby's testimony can be reasonably viewed as addressing the topic of her financial interest, it did not provide a basis for admitting more general statements about her desire to have Relis dead as prior inconsistent statements under section 780. The trial court apparently construed her testimony in this way, as it allowed the defense to impeach Rogneby only with prior inconsistent statements related to any financial interest in his death. In sum, we see no abuse of discretion in the trial court's exclusion of Rogneby's prior statements wishing for Relis's death, either under a third-party culpability analysis or pursuant to section 780. D. Prosecutorial Misconduct
For the same reasons, we see no merit in Eastman's constitutional claims. Hall expressly rejected the argument that application of the ordinary rules of evidence in this context violates a criminal defendant's right to present a defense. (Hall, supra, 41 Cal.3d at pp. 834-835; see Prince, supra, 40 Cal.4th at pp. 1242-1243 [exclusion of third-party culpability evidence lacking significant probative value in comparison to its danger of distraction and consumption of time is not a constitutional violation].) Moreover, it cannot be said on this record that the trial court refused to allow Eastman to present a third-party culpability defense. Rather, it merely rejected certain evidence concerning that defense. (See People v. Bradford (1997) 15 Cal.4th 1229, 1325.)
Eastman points to two portions of the prosecutor's closing argument, claiming that they constitute prejudicial misconduct in violation of his federal constitutional rights to due process and a fair trial. " 'The standards governing review of misconduct claims are settled. "A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such ' "unfairness as to make the resulting conviction a denial of due process." ' " ' " (People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1266.) Advocates, however, "are given significant leeway in discussing the legal and factual merits of a case during argument." (People v. Centeno (2014) 60 Cal.4th 659, 666.) " ' " 'The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.' " ' " (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill); see People v. Wash (1993) 6 Cal.4th 215, 263 (Wash) [noting the "broad range of permissible comment on the evidence" allowed a prosecutor in closing].) "Finally, 'a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety" where such a request would not be futile. (People v. Stanley (2006) 39 Cal.4th 913, 952 (Stanley); Hill, at p. 820.)
We turn first to the following statements made by the prosecutor during her closing argument: "And you don't speculate. You cannot speculate. You cannot think about and go on tangents outside of this evidence. There will be focus on what's not here. There will be focus on and a lot of attention drawn to Kathleen Rogneby, with the specific intention to distract and deter away from the evidence." Defense counsel objected on grounds of "[i]mproper argument," and the court overruled the objection, stating, "It's argument, not evidence." Eastman contends that the prosecutor's comments improperly disparaged defense counsel by suggesting that he specifically intended to deter the jurors from considering the evidence. We disagree.
The Attorney General asserts that Eastman forfeited this claim because defense counsel did not specifically complain that the argument attacked his integrity and failed to request a curative admonition. However, counsel did object on grounds of "improper argument" and might reasonably have concluded that no admonition would be forthcoming because the court had already determined that the comments were not improper. We do not find that the claim has been forfeited.
It is true that "[a] prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel." (Hill, supra, 17 Cal.4th at p. 832; see People v. Thompson (1988) 45 Cal.3d 86, 112 ["Casting uncalled for aspersions on defense counsel directs attention to largely irrelevant matters and does not constitute comment on the evidence or argument as to inferences to be drawn therefrom."].) On the other hand, "prosecutorial comment upon a defendant's failure 'to introduce material evidence . . .' is not improper." (Wash, supra, 6 Cal.4th at p. 263.)
Here, one of the central themes of Eastman's defense was the suggestion that it was Rogneby, rather than Eastman, who was involved in the murder. The prosecutor was entitled to argue that insufficient evidence had been introduced by the defense to support this hypothesis. The prosecutor's characterization of the Rogneby theory as a speculative distraction from the actual evidence presented thus appears to be legitimate commentary about the state of the evidence rather than an impermissible attack on defense counsel's integrity. (See, e.g., Stanley, supra, 39 Cal.4th at p. 952 [comment that defense counsel " 'imagined things that go beyond the evidence' " not misconduct as it "did little more than urge the jury not to be influenced by counsel's arguments, and to instead focus on the testimony and evidence in the case"].) No misconduct appears from these statements.
Eastman cites a second instance of alleged misconduct based on the prosecutor's comments during closing that Relis was a good man who was trying to provide for his family. According to Eastman, these statements were an improper appeal for sympathy for the victim. However, defense counsel objected to these comments only on relevance grounds and the court overruled the objection on that limited basis. Defense counsel did not object on the specific ground here alleged and did not request a curative admonition. Moreover, we cannot conclude on this record that such a request would have been futile as the trial court repeatedly admonished the jury during closing arguments in response to other objections lodged. We deem this claim forfeited and decline to consider it. (See Stanley, supra, 39 Cal.4th at p. 952; Hill, supra, 17 Cal.4th at p. 820.)
Because we have identified no error in the proceedings below, we also reject Eastman's claim of cumulative error. (See People v. Griffin (2004) 33 Cal.4th 536, 600 [when there are no errors "to 'cumulate,' " a defendant's assertion of cumulative error "is clearly without merit"], disapproved on another ground as stated in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32.)
III. DISPOSITION
The judgment is affirmed.
/s/_________
Sanchez, J. WE CONCUR: /s/_________
Humes, P.J. /s/_________
Banke, J.