Opinion
A157165
05-28-2020
THE PEOPLE, Plaintiff and Respondent, v. SEAN DWAYNE GADSON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 5-181795-6)
Defendant Sean Dwayne Gadson appeals after a jury convicted him of inflicting corporal injury to a former romantic partner (Pen. Code, § 273.5, subd. (a)), assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)), dissuading a witness (§ 136.1, subd. (c)(1)), and contempt of court (§ 166, subd. (c)(1)). The victim was declared unavailable and her pretrial statements to law enforcement and medical personnel were admitted in evidence when she did not appear for trial pursuant to a subpoena. She was arrested midtrial on a bench warrant and refused to testify, even under a grant of immunity. Gadson contends that the trial court violated his confrontation and due process rights when it excused the victim without first employing the court's coercive powers to require her testimony, and by failing to instruct the jury on the purported reasons for the victim's refusal to testify. Finding no constitutional violation, we affirm.
All further statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Gadson was charged with several domestic violence offenses involving his former romantic partner, R.W. Two crimes were alleged to have been committed on April 8, 2018: infliction of corporal injury on a romantic partner (§ 273.5, subd. (a) (count 1)), and assault by means likely to produce great bodily injury (§ 245, subd. (a)(4) (count 2)), both with enhancements for personal infliction of great bodily injury (§ 12022.7, subd. (e)). Three crimes were alleged to have been committed on August 11, 2018: knowingly and maliciously dissuading a witness (§ 136.1, subds. (a), (b) (count 3)), with a special allegation that the offense was accompanied by force or threat of force (§ 136.1, subd. (c)(1)), and an enhancement for commission while on release from custody (§ 12022.1); battery on a person with whom he had a dating relationship (§ 243, subd. (e)(1) (count 4)); and misdemeanor contempt of court (§ 166, subd. (c)(1) (count 5)). As to the first three counts, the People specially alleged that Gadson previously had been convicted of felonies (§ 667), had served prison terms (§ 667.5), and was on parole (§ 1203.085, subd. (b)).
Jury trial commenced on February 7, 2019. Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence at trial established the following.
A. The Prosecution's Case
i. The April 8, 2018 Incident
On April 8, 2018, at approximately 1:45 a.m., R.W. called 911 and reported that she had been hit on the side of her face. When asked "who beat you up?" R.W. replied, "I don't want to say. I just need an ambulance." R.W. explained she had "[a] big knot" on the side of her face and that her face was hurting. Throughout the call, R.W. pleaded, "Please get here," "Please, my face [is] hurting," and "Please help me." R.W. eventually explained that Gadson, her former boyfriend, had struck her in the face with his fist. The operator answered, "[T]he police and the ambulance will be coming okay? 'Cause the ambulance isn't going to come without the officers being there to make sure he's not there." In response, R.W. told the operator that Gadson drove a Honda Accord and that he had left. An audiotape of the 911 call was played in court.
Officer John Hulleman and the paramedics were dispatched to R.W.'s apartment at approximately 1:47 a.m. and arrived approximately five minutes later. The paramedics kept their distance until Hulleman determined the scene was safe. Hulleman entered R.W.'s apartment and found her alone in the apartment, lying on the floor crying at the entrance to her living room. Hulleman saw red marks on the front of R.W.'s neck and took photos of her condition. The photos showed that the right side of her face and right eye were swollen and she had red marks on the front of her neck.
Hulleman recorded a brief interview with R.W. that was played for the jury. She was emotionally distraught and said she felt dizzy. In response to questioning from Hulleman, she explained that Gadson, whom she had been dating for a few months, hit her with his fist and strangled her "[j]ust now." She said she was unable to breathe and had passed out "[a] little bit" while Gadson was strangling her. When Hulleman requested Gadson's information, R.W. provided Gadson's date of birth and phone number and confirmed that he drove a Honda Accord. Hulleman asked if R.W. still had trouble breathing and if her throat hurt. R.W. responded that just her face hurt. Hulleman again asked R.W., "Just where you got punched? You're not having any trouble swallowing or talking?" and then stated, "Let me see your eyes. Okay, let me see your eyes real quick."
R.W. was treated by the paramedics and transported to Delta Medical Center Hospital's emergency department. According to hospital records, R.W. reported she had a fight with her boyfriend, who choked and then punched her in the right arm and right side of her face. R.W. was seen by nurse Jason Lauterjung, who checked R.W.'s vitals and assessed her skin. He noted that R.W. had an elevated heart rate, swelling to the right side of her face, and redness at the right front part of her neck.
Hulleman visited Gadson's home, which was two to three miles from R.W.'s apartment, at around 2:20 a.m. When asked about his whereabouts a few hours earlier, Gadson stated he had been at home with his wife, Mary Gadson. Hulleman noticed a Honda Accord at Gadson's home and told Gadson he would check the hood of the car to see if it had been recently driven. Gadson then admitted he had returned home about an hour earlier from running errands. Hulleman walked up to the car and found that its hood was "noticeably warm to the touch," unlike the cars parked nearby. Hulleman arrested Gadson and brought him to a detention facility. When they arrived, Gadson told Hulleman he drove his car around 2:00 a.m. that morning to get beer.
Gadson called his wife from jail that afternoon. A portion of the recorded call was played for the jury. Gadson told her that he had been charged with domestic assault with a deadly weapon, but the charges were false. He apologized to his wife and stated, "Now, I know I shouldn't have been out there. Let me tell you something, I know it's my fault for fucking with that bitch."
On April 11, 2018, Officer James Perkinson conducted a recorded interview of Mary Gadson. She stated she had been in bed when the police arrived at 2:30 a.m., and had gone to bed at 10:00 that night. Her husband was not in bed and she did not know if he was home on the night in question.
The People's forensic nurse, Tara Godoy, testified that the red marks on R.W.'s neck depicted in the photographs were "consistent with an external blunt force trauma to the neck that could have occurred during a strangulation assault." The strangulation assault was moderate to severe, and R.W. could have died if the assault had continued. On April 24, 2018, a criminal protective order was issued against Gadson.
2. The August 11, 2018 Incident
On August 11, 2018, Officer Matthew Allendorph responded to a call at R.W.'s apartment. When he arrived, another officer was present and had Gadson in handcuffs. A witness who was visiting her mother at the apartment complex told the officers that she heard two people arguing from R.W.'s apartment and heard a glass drop.
Allendorph placed Gadson in the back of his patrol vehicle. Allendorph tried to speak with R.W. on the stairs outside her apartment where she could see Gadson in the patrol vehicle. During their conversation, Gadson shouted about five times for her not to speak to the police. Allendorph went downstairs to the patrol vehicle and rolled up the windows while Gadson continued to yell at R.W. not to talk to the police.
B. The Defense Case
Gadson testified that he did not go to R.W.'s apartment the night of April 7, 2018. He did not leave his home after 8:30 p.m. and was awakened when police knocked on his door. Gadson also denied driving his Honda Accord in the hours before Officer Hulleman showed up at his home.
With respect to the August 11, 2018 incident, Gadson admitted that he went to R.W.'s apartment and admitted knowing that the protective order was still in effect. Gadson explained that he went to R.W.'s apartment to continue a conversation she had initiated at a car wash in which she revealed she was pregnant. When R.W. threatened to call his wife, Gadson threw her cell phone down and cracked the screen. He denied yelling or saying anything to R.W. and denied trying to stop R.W. from speaking to the officers.
Mary Gadson testified that she and her husband were in bed together at approximately 10:00 or 10:30 on the evening of April 7, 2018. She denied previously telling officers that her husband was not in bed with her that night and she did not know of his whereabouts. Part of her recorded April 11, 2018 interview with Officer Perkinson was then played to the jury.
R.W. was called to testify at trial but she refused. The circumstances of her refusal to testify are described in further detail below.
C. Jury Verdict and Sentence
Gadson was found guilty of counts 1, 2, 3, and 5, and was acquitted of count 4 and the count 3 special allegation that he used force or threats to dissuade a witness. The People moved to strike the great bodily injury enhancement alleged for counts 1 and 2. The trial court found true the special allegations that Gadson had previously been convicted of felonies (§ 667), had served prison terms (§ 667.5), and was on parole (§ 1203.085, subd. (b)). The court sentenced Gadson to a total term of 18 years. This appeal followed.
Gadson filed under seal several documents with this court pertaining to Gadson's criminal conviction and prison commitment history, the subject criminal protective order, and the probation officer's report. We have reviewed the publicly filed record and have concluded that we do not need to use or rely on any of the confidential documents filed under seal.
II. DISCUSSION
A. Admission of R.W.'s Pretrial Statements
Gadson contends that the trial court prejudicially erred when it excused R.W. without first employing the court's coercive powers to require her testimony. By failing to hold her in contempt or even discussing the possibility of sanctions, he asserts that the trial court did not safeguard Gadson's constitutional right to confront witnesses and to due process of law. We are not persuaded.
i. Additional Facts.
Shortly before the preliminary hearing, R.W. visited with prosecutors at the Contra Costa courthouse to inform them that she did not want to testify against Gadson because she was pregnant with his child. She explained that she intended to assert her Fifth Amendment right not to testify. R.W. was served with a subpoena to appear at the September 19, 2018 preliminary hearing, but she failed to appear. A bench warrant was issued for her arrest. R.W. was apprehended approximately four months later during the trial.
In pretrial proceedings, the People sought to admit statements made by R.W. on April 8, 2018 to various law enforcement and medical personnel under Evidence Code section 1370, the "physical injury" hearsay exception for a witness who is unavailable. The out-of-court statements involved R.W.'s statements to the 911 operator, Officer John Hulleman, and nurse Jason Lauterjung. Gadson objected to the evidence, asserting it was inadmissible hearsay and violated his Sixth Amendment right to confront witnesses against him. The trial court held a hearing to determine the admissibility of the statements and admitted the evidence. It determined that R.W. was unavailable under Evidence Code section 240, the statements were admissible under the "physical injury" hearsay exception, and admission did not violate the confrontation clause because the statements were not testimonial.
Evidence Code section 1370, subdivision (a), provides that a statement "is not made inadmissible by the hearsay rule if all of the following conditions are met: [¶] (1) The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant. [¶] (2) The declarant is unavailable as a witness pursuant to Section 240. [¶] (3) The statement was made at or near the time of the infliction or threat of physical injury. Evidence of statements made more than five years before the filing of the current action or proceeding shall be inadmissible under this section. [¶] (4) The statement was made under circumstances that would indicate its trustworthiness. [¶] (5) The statement was made in writing, was electronically recorded, or made to a physician, nurse, paramedic, or to a law enforcement official."
In the second week of trial, R.W. was arrested on a bench warrant and brought before the court. Outside the presence of the jury, R.W. indicated she would invoke her Fifth Amendment right to refuse to testify. At the prosecution's request, the trial court granted her use and derivative immunity under section 1324 and ordered her to testify. R.W. still refused, saying, "But he didn't do it. So what am I supposed to do?" She requested that she be returned back to her cell. The court responded: "Well, the witness is clearly refusing to testify. [¶] With that though, and because of the nature of the charges in this case, I'm not going to hold her in custody." The trial court ordered her to return the following morning.
The next day, R.W. was sworn in as a witness and questioned under oath. R.W. again refused to testify. The court excused her. ii. Applicable Law
"The confrontation clauses of both the federal and state Constitutions guarantee a criminal defendant the right to confront the prosecution's witnesses. (U.S. Const., 6th Amend.; Cal. Const. art. I, § 15.)" (People v. Cromer (2001) 24 Cal.4th 889, 892.) In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the United States Supreme Court "held that the admission of 'testimonial' out-of-court statements violates a criminal defendant's confrontation rights unless the declarant is unavailable to testify and the defendant had a prior opportunity for cross-examination [citation], or waived that right by his own wrongdoing." (People v. Leon (2015) 61 Cal.4th 569, 602-603.)
The Crawford court did not comprehensively define the meaning of a "testimonial" statement, but it explained that "it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and to police interrogations." (Crawford, supra, 541 U.S. at p. 68.) "As the Crawford doctrine evolved, the court concluded that not all statements made in response to police questioning would constitute testimonial hearsay." (People v. Sanchez (2016) 63 Cal.4th 665, 687.)
In Davis v. Washington (2006) 547 U.S. 813 (Davis), the United States Supreme Court considered whether statements by a domestic violence victim to a 911 operator and other law enforcement personnel are "testimonial" and thus subject to the requirements of the confrontation clause. (Id. at pp. 817-818.) The Davis court articulated a "primary purpose" test to evaluate whether statements to police may be testimonial or nontestimonial. "Statements are nontestimonial when . . . [the] circumstances objectively indicat[e] that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency," but "[t]hey are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Id. at p. 822.) The high court concluded that the caller's statements were nontestimonial because they pertained to an ongoing emergency situation, were elicited by the investigating officers to resolve the ongoing emergency, and were given in an informal setting. (Id. at p. 827.)
The Davis court contrasted its circumstances with Hammon v. State (Ind. 2005) 829 N.E.2d 444, a companion case. (See Davis, supra, 547 U.S. at pp. 829-832.) In Hammon, police officers responding to a domestic disturbance call found the victim alone on the front porch and the defendant inside the house. (Davis, at p. 819.) The victim initially reported that there had been no problems, but when later interviewed, acknowledged the defendant had attacked her. (Ibid.) An officer asked her to " 'fill out and sign a battery affidavit' " describing the assault. (Id. at p. 820.) The Supreme Court determined that the statements were testimonial because the circumstances clearly indicated "that the interrogation was part of an investigation into possibly criminal past conduct" and "[t]here was no emergency in progress." (Id. at p. 829.) We review the relevant facts in light of the foregoing principles.
iii. Admission of Hearsay Statements Did Not Violate the Confrontation Clause
Although Gadson claims his confrontation rights were violated, he offers no analysis as to whether R.W.'s statements were testimonial within the meaning of Crawford. Gadson has therefore waived the issue on appeal. (See People v. Stanley (1995) 10 Cal.4th 764, 793 [" '[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.' "].) Even if we reviewed the merits of his claim, we would conclude that the challenged statements are not testimonial and fall outside the scope of Crawford.
As noted, the trial court admitted R.W.'s statements to the 911 call operator describing the domestic violence incident on April 8, 2018. As in Davis, the recorded 911 call in this case came from a "frantic" domestic violence victim who was facing an ongoing emergency. R.W. called 911 to report she had just been punched in the face and was in pain. Throughout the call, R.W. pleaded, "Please get here," "Please, my face [is] hurting," and "Please help me." R.W. eventually identified Gadson as the person who struck her, to which the operator indicated she needed Gadson's information because police had to arrive with the ambulance to make sure he was no longer there. When viewed objectively, we conclude the primary purpose of the 911 operator's questioning was to facilitate emergency treatment and to allow emergency responders to take all necessary precautions against a possible suspect.
We reach the same conclusion with respect to Officer Hulleman's questioning of R.W. on April 8, 2018. Faced with an obviously distraught woman, who had just been strangled and struck in the face and requested immediate medical attention, Hulleman elicited information to take action "to resolve the present emergency, rather than simply to learn . . . what had happened in the past." (Davis, supra, 547 U.S. at p. 827.) He asked where she had been punched, whether she still had trouble breathing or felt dizzy, and insisted on looking into her eyes. While these questions were interspersed with questions about the assailant, we have no difficulty in concluding that the primary purpose of the questioning was to address an ongoing emergency situation. (See People v. Brenn (2007) 152 Cal.App.4th 166, 178 [" 'Such an unstructured interaction between officer and witness bears no resemblance to a formal or informal police inquiry that is required for a police "interrogation" as that term is used in Crawford.' "].)
We also conclude R.W.'s statements to hospital nurse Lauterjung were not testimonial. R.W. was admitted to the hospital less than one hour after her call to 911. R.W. volunteered that "she had a fight with her boyfriend who choked and then punched her in the right arm and right side of her face." Lauterjung did not ask R.W. to identify her boyfriend or pursue further details about the incident. He simply performed his routine duties to "assess[] . . . the severity of [R.W.'s] symptoms" and obtain "a general overview of what might be happening with the patient." These circumstances make clear that the primary purpose of Lauterjung's questioning was "to deal with a contemporaneous medical situation that required immediate information about what had caused the victim's [injuries]." (People v. Cage (2007) 40 Cal.4th 965, 970.)
In short, we conclude that the admission of R.W.'s pretrial statements to emergency and law enforcement personnel did not violate Gadson's Sixth Amendment rights.
iv. Due Process Claim
Gadson argues that his due process right to a fair hearing was also violated when the court failed "to use any of its powerful tools of persuasion to change [R.W.]'s attitude and persuade her to take the stand after she was granted use immunity for her testimony." The Attorney General responds that Gadson cites no authority for the proposition that there is a constitutional due process interest separate from the Sixth Amendment right of confrontation with respect to the admission of R.W.'s pretrial statements. We need not resolve this question because Gadson forfeited any due process claim by failing to raise it in the trial court below. (See People v. Koontz (2002) 27 Cal.4th 1047, 1082.) Even were the claim preserved for appeal, we would find no merit in it.
It is important to understand what Gadson's due process claim actually entails. He does not dispute, nor can he, that R.W.'s pretrial statements were properly admitted under Evidence Code section 1370. R.W. was legally unavailable at the time the hearsay statements were admitted in evidence based on her failure to appear at trial under a subpoena, and Gadson does not challenge on appeal the admissibility of R.W.'s statements under the other section 1370 factors. Rather, the issue he presents is whether due process required the trial court to do more to persuade R.W. to testify after her pretrial statements had been admitted.
Under Evidence Code section 240, subdivision (a), a witness is "unavailable" if he or she is any of the following: "(1) Exempted or precluded on the ground of privilege from testifying concerning the matter to which his or her statement is relevant. [¶] (2) Disqualified from testifying to the matter. [¶] (3) Dead or unable to attend or to testify at the hearing because of then-existing physical or mental illness or infirmity. [¶] (4) Absent from the hearing and the court is unable to compel his or her attendance by its process. [¶] (5) Absent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process. [¶] (6) Persistent in refusing to testify concerning the subject matter of the declarant's statement despite having been found in contempt for refusal to testify." --------
In People v. Smith (2003) 30 Cal.4th 581, our Supreme Court rejected a similar contention that the trial court was required to hold a sexual assault victim in contempt of court before declaring her unavailable and admitting her preliminary hearing testimony. As in the present case, the witness was found unavailable because she refused to testify at trial. (Id. at p. 624.) The Smith court noted that "[c]ourts have admitted 'former testimony of a witness who is physically available but who refuses to testify (without making a claim of privilege) if the court makes a finding of unavailability only after taking reasonable steps to induce the witness to testify unless it is obvious that such steps would be unavailing.' " (Ibid.) The high court concluded that the trial court's efforts to induce the victim to testify were reasonable under the circumstances, explaining that "[t]he [trial] court questioned her under oath and asked whether additional time or prosecution for criminal contempt would change her mind." (Id. at p. 624.) It further observed that "[t]rial courts 'do not have to take extreme actions before making a finding of availability.' " (Ibid.)
Here too, we conclude the trial court took reasonable steps to persuade R.W. to testify. After R.W. indicated she would invoke her Fifth Amendment privilege, the court granted her immunity, explained to her its implications with respect to the Fifth Amendment, and ordered her to testify. R.W. refused against the advice of her counsel. The court then released her from custody and ordered her to return the next day. R.W. was questioned under oath, and R.W. once more stated she would not testify. Given R.W.'s persistent refusal to testify despite the court's repeated orders, a grant of immunity, and an arrest for disobeying a subpoena, it is highly doubtful that a contempt order or warning would have induced her testimony. We do not find that the trial court's actions rendered Gadson's trial fundamentally unfair.
B. Failure to Instruct on R.W.'s Reasons for Not Testifying
Before the jury deliberated on the charges against Gadson, the trial court instructed the jury as follows: "[R.W.] did not have the right to refuse to answer questions in this case. You may consider that refusal during your deliberations." (CALCRIM No. 320.) Gadson did not object to this instruction or request an additional instruction. Nevertheless, he contends on appeal that the trial court erred when it failed to instruct the jury that R.W. was refusing to testify because "she did not want to testify against the father of her child."
We review the adequacy of an instruction based on "whether the trial court 'fully and fairly instructed on the applicable law.' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) "The trial court has a sua sponte duty to instruct the jury on the general principles of law relevant to the issues raised by the evidence." (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1331.) "Once the trial court adequately instructs the jury on the law, it has no duty to give clarifying or amplifying instructions absent a request." (Ibid.) A defendant's "failure to seek 'amplification or explanation' of the instruction precludes relief on appeal." (People v. Moon (2005) 37 Cal.4th 1, 29-30 (Moon).)
Gadson does not dispute that the instruction is a correct statement of the law. (See People v. Morgain (2009) 177 Cal.App.4th 454, 466-467 [no constitutional or statutory right to refuse to testify after a grant of immunity, and "[j]urors are entitled to draw a negative inference when such a witness refuses to provide relevant testimony" (italics omitted)].) Gadson also admits he did not request an additional instruction. Gadson's failure to object or to seek an additional instruction bars his claim on appeal. (Moon, supra, 37 Cal.4th at pp. 29-30.) "There being no error, we also reject [Gadson's] claim that the alleged instructional error violated his due process rights." (Id. at p. 30.)
DISPOSITION
The judgment is affirmed.
/s/_________
Sanchez, J. WE CONCUR: /s/_________
Humes, P.J. /s/_________
Banke, J.