Opinion
G039137.
1-6-2009
THE PEOPLE, Plaintiff and Respondent, v. TREVOR ANTHONY JOHNSON, Defendant and Appellant.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
Defendant Trevor Anthony Johnson was convicted of forcible rape (Pen. Code, § 261, subd. (a)(2)). The jury found true a one strike allegation that the rape was committed during a burglary with the intent to commit rape. (Pen. Code, § 667.61, subd. (a),(c), (d).) The court found true a one strike allegation that defendant had a prior rape conviction and that he had two strikes under the Three Strikes law (Pen. Code, § 667, subds. (d), (e)). The court sentenced him to 75 years to life. He challenges admission of testimony of a police officer who interviewed the victim and an expert who based her opinion on what the victim said to an intake nurse, claiming they were or relied on inadmissible hearsay statements and violated his right to confrontation under the Sixth Amendment to the U.S. Constitution. We find no error and affirm.
FACTS
In 1996 the 28-year-old victim, Cathy L., resided in a residential home for the mentally ill. Nacito Digal was a nighttime caregiver. At about 5 a.m. he saw the victim running naked from her room crying loudly and shouting, "Im rape, Im rape, Im rape." She asked for help and for Digal to call the police. When he asked who had raped her, she said, "I rape, a big man, a black man."
About a half hour later officer Steven Anderson arrived and interviewed the victim in her room; the interview lasted approximately one hour. The victim told him that at about 4:30 a.m. a man came into her room, covered her mouth, and told her to be quiet. She said he raped her and, in response to Andersons question as to what that meant, stated he made her take off her clothes and he inserted his penis into her vagina. When he asked her for a description of the attacker she said he was 510", 170 pounds. Anderson then put out a broadcast to officers so they would be on the lookout for the suspect. Several minutes later when the victim told him the suspect said he had a gun he put out a second call for the safety of the officers. He testified the victim "was upset," had "tears welling up in her eyes," made "small cries," and was "distressed."
At the conclusion of the interview another officer took the victim to the hospital, where nurse Teresa Morris took the victims history. The victim was then examined by Dr. Elizabeth Grimley, who concluded that her injuries were consistent with non-consensual, forcible sex. Grimley took vaginal swabs and a blood sample during the exam.
In 2007 police took an oral swab from defendants mouth. This was compared to samples taken from the victim. The DNA from the victims vagina and defendants mouth were the same. The expert testified the DNA in the sperm would "be found in fewer than one in one trillion individuals." Because there are only six and a half billion people on earth, the DNA profile was "rare" and she "would not expect to see" it in anyone else.
Additional facts are set out in the discussion.
DISCUSSION
1. Officer Andersons Testimony
Defendant asserts that Andersons testimony was hearsay, not subject to the spontaneous statement exception used by the court, and deprived him of his constitutional right of confrontation under the Sixth Amendment. This argument is without merit.
a. Testimony in Question
The court conducted a pretrial hearing on the admissibility of the victims statements to Anderson pursuant to Evidence Code section 402 (all further statutory references are to this code). The hearing also dealt with the statements by the victim to Digal, the security guard, which the court found admissible. They are not in issue in the appeal.
At the hearing Anderson testified that he arrived at the home at about 5:30 a.m., about 30 minutes after the victims 911 call. He described the victims demeanor as timid and said she found it difficult to talk about what happened.
The victim told him that at about 4:30 a.m., when she was asleep, a man entered her room, put a hand over her mouth while digging his fingers into her face, and told her to be quiet. She told him not to hurt her. He then ordered her to take off her clothes, after which he took pictures of her. The man removed his clothes and made her orally copulate him. He then had her get on her hands and knees and had intercourse with her in several different positions. In addition he partially penetrated her anus with both his penis and something sharp. There was also a second oral copulation. Andersons report stated defendants "roommate was mentally unstable [and could not] give . . . a statement."
Andersons purpose in speaking with the victim was first to elicit a description of the suspect so he could notify other officers and then to obtain details of the incident. About 10 minutes after he started speaking with the victim she told him the intruder was a black male, about 5-10" and 180 pounds, wearing brown pants. At that point he issued a broadcast to officers in the area to look for the suspect. Anderson also testified the victim said that, before he left, the suspect got dressed and told her "`Im on the run. I have — I have only 10 minutes. You can call the police, but Ill be gone."
The interview lasted about an hour. Another officer then took the victim to the hospital for a rape examination.
On cross-examination Anderson testified he did not put anything in his report about the victims state of mind or emotional state. On redirect he testified that the victim seemed to be in shock and although wanting to answer his questions, had difficulty in explaining. He described her as having "a distant look in her eye," "unsteady," and "nervous," "like she was trying to get a grip on what . . . has happened." He also stated that later in the interview, when he asked the victim to again describe the suspect she said he was a black man "over six feet tall and [weighing] approximately 250 pounds."
When testimony was completed, the judge gave some initial thoughts and advised that he would like some additional information about the timing and sequence of questions Anderson asked the victim, especially in relation to when Anderson put out the radio broadcast of the suspects description. He noted that questioning is a factor to consider in evaluating spontaneity and the testimonial nature of statements, observing that the longer the period of questioning the more likely it is the police are collecting evidence rather than responding to an emergency. He allowed the prosecution to reopen.
After reopening the prosecution elicited this testimony: When Anderson first began speaking to the victim he wanted to know what happened and when, so he could get an overview of the incident and see if a crime had been committed. When the victim said she had been raped, he asked her to elaborate, whereupon she said she had been told to take off her clothes and the assailant put his penis in her vagina. He then asked for a description of the suspect, after which he put out the broadcast. Thereafter she explained the suspect came into her room when she was asleep, put his hand over her mouth and dug his fingers into her face. He told her to be quiet, at which point she said, "Dont hurt me." He then told her he had a gun. Anderson then put out a second broadcast. Anderson then began questioning her to get additional details of the attack.
The court confirmed that the first broadcast was made about 10 minutes into the interview, and the second about 5 to 10 minutes later.
The court ruled that Anderson could testify about the conversation up to the time of the second broadcast but that the last 40 to 45 minutes of the interview would be excluded. It stated that this was "a hybrid situation" "where a line must be drawn and can be drawn." Although the foundation for whether the statement was spontaneous was "closer" because of the passage of the thirty minute time period, Andersons testimony about her demeanor convinced the court that she was "still under the stress of . . . the event."
At trial Anderson testified to the events as set out above in the statement of facts.
b. Spontaneous Statements Under Section 1240
Defendant contends the victims statements to Anderson were not spontaneous statements under section 1240 for two reasons: Anderson did not include any information as to the victims demeanor in his report and only remembered she was upset after cross-examination had elicited that omission; and the courts determination as to the victims mental state was erroneous because there was insufficient evidence her demeanor was based on the events as opposed to her overall "impaired mental condition." We disagree.
Section 1240 allows an otherwise inadmissible hearsay statement to be admitted if it "(a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception." To be admissible, "`(1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it. [Citations.]" (People v. Poggi (1988) 45 Cal.3d 306, 318.) We review the courts factual decison of spontaneity using the substantial evidence standard and its decision to admit the statement for abuse of discretion. (People v. Phillips (2000) 22 Cal.4th 226, 236.)
In determining the victims statements to Anderson were admissible under section 1240 the court found spontaneity based on Andersons testimony that she had "a distant look, being unsteady, nervous and crying." That Anderson did not include that information in his report and only on redirect testified to her demeanor were questions of fact for the court to consider in evaluating Andersons credibility. We may not reweigh that determination. (People v. Guerra (2006) 37 Cal.4th 1067, 1129.)
Further, the court did not err in relying on the victims demeanor in finding her statements were spontaneous. (Winzer v. Hall (9th. Cir. 2007) 494 F.3d 1192, 1200 [just because declarant seems upset does not mean statement spontaneous].) In Winzer the court considered the entire record and relied on facts negating spontaneity, such as the speakers "`calm call to 911 several hours after the exciting event," finding she had time to and did reflect. (Ibid.) Those were not the facts in the present case.
Defendant points to the courts statements in ruling on the section 402 motion where it limited Andersons testimony, stating that it did not want to hear additional details at trial based on Anderson "having a[n] "epiphany." He argues that is just what happened with Andersons testimony about the victims demeanor where Anderson remembered something 12 years after it happened despite a lack of such information in his report. But the court clearly was aware of the theoretical possibility of a witness remembering additional facts at trial and did not determine such was the case here. "[E]ven testimony which is subject to justifiable suspicion do[es] not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 403.) Andersons testimony was sufficient to support the courts finding.
Defendant also challenges the courts reliance on the victims demeanor because she was mentally ill. He argues that because her "mental state was self-evidently abnormal" and the court knew she had "`some mental health issues," it "could not conclude with any certainty that [the victims] unsettled emotional state" resulted from the rape as opposed to her "impaired mental condition." Again we disagree.
That the victim was mentally ill does not negate the requisite mental state for a spontaneous statement under section 1240. We will not hold that a mentally or emotionally ill person cannot be sufficiently nervous or upset to make a spontaneous statement after a rape. Nor are we persuaded by the claim that the victims condition might have been caused by "spending the night in a guarded, fenced-in residential facility with a mentally impaired roommate."
To the contrary, the record supports the finding the victim was under the stress of the event at the time she spoke to Anderson. Thirty to forty-five minutes before, the victim had been seen by a caregiver naked and running from her room, repeatedly shouting, "Im rape." She gave a description of the attacker and asked the caregiver to call the police. There was evidence that when the police arrived the victim was nervous, unsteady, crying, and trying to get a grip on things. This supports the finding she was distraught when she made the statements and was in no condition to fabricate them.
Further, that the victim may have been less excited when talking to Anderson than she was initially when Digal saw her does not mean her statements to Anderson were not spontaneous. There was testimony she was still upset at the time she spoke to Anderson. (See People v. Brown (2003) 31 Cal.4th 518, 525-526, 540-541 [statement made two and a half hours after crime found spontaneous by declarant who "was upset and started crying"].)
Defendant relies on Andersons statement that the victims demeanor was consistent throughout the one hour interview, both when she initially revealed she had been raped and described the suspect and that he had a gun and in her responses to the later interrogation style questions about the details of the attack. He argues that the victim was able to clearly describe what had happened to her. But Anderson testified the victim was in shock and said he had interviewed hundreds of witnesses, raising the inference that he had sufficient experience to recognize that emotion. Again, it was the courts duty to evaluate the evidence, including the witnesss credibility. In determining whether the victims statements were a result of "`nervous excitement," "the discretion of the trial court is at its broadest . . . . [Citation.]" (People v. Poggi, supra, 45 Cal.3d at pp. 318, 319.)
c. Nontestimonial Statements
Defendant argues that even if the victims statements fell within section 1240 they were still inadmissible because they were testimonial and barred by the constitutional right of confrontation as explicated in Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] (Crawford) and Davis v. Washington (2006) 547 U.S. 813 [126 S.Ct. 2266, 165 L.Ed.2d 224] (Davis).
In Crawford, the United States Supreme Court held that the confrontation clause barred "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." (Crawford, supra, 541 U.S. at pp. 53-54.) Crawford did not provide a comprehensive definition of "`testimonial" but explained the term "applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." (Id. at p. 68.)
In Davis, in the context of a 911 call where a victim described an attack on her as it was occurring, the court provided further assistance in determining what statements to police are testimonial: "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They 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." (Davis, supra, 547 U.S. at p. 822, fn. omitted.) Davis held the 911 statements were not testimonial. (Id. at p. 828.)
By contrast, statements made by a second victim in a consolidated case decided in Davis were found to be testimonial. (Davis, supra, 547 U.S. at p. 829-830.) The difference was that by the time the police arrived to the scene of a domestic dispute, it was over; the victim was in no immediate danger. Police interrogation was not to find out what was occurring but rather what had already occurred. "[T]he primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime . . . ." (Id. at p. 830.)
In People v. Cage (2007) 40 Cal.4th 965, the California Supreme Court "derive[d] several basic principles from Davis" (id. at p. 984), which include: To be testimonial a statement need not have been made under oath but "under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony," which are present in a nonemergency when a person "responds to questioning by law enforcement officials,"; and "the statement must have been given and taken primarily . . . to establish or prove some past fact for possible use in criminal trial," but is not testimonial if the main purpose "is to deal with a contemporaneous emergency . . . ." (Ibid., fns. omitted.) The primary purpose of a statement "is to be determined `objectively, considering all the circumstances . . . ." (Ibid., fn. omitted.)
Defendant argues the statements here were primarily to prove the facts of the event at trial. He points to Andersons testimony at trial that the purpose of the interview was to determine if a crime had been committed and to obtain the details of the crime. But a review of the information obtained shows Anderson was attempting to "assess the present situation" and learn what had happened to the victim, not primarily seeking to secure evidence to be used in a trial. (People v. Brenn (2007) 152 Cal.App.4th 166, 176, 177.) In addition, Anderson also testified at the section 402 hearing that, once he established those basic facts he was trying to get a description of the suspect to broadcast to other officers and then to find out what happened.
Defendant compares his case with the facts in People v. Cage, supra, 40 Cal.4th 965, where the court held the victims statements to an officer were testimonial. There the officer was dispatched to a home after a domestic dispute was reported. After interviewing the defendant and two others, the officer left believing no crime had been committed. About one hour later he was sent to a location a couple of miles away and found defendants injured son being tended to by paramedics. Later the officer went to the hospital and while the victim was waiting for treatment asked him "`what had happened between [him] and the defendant." (Id. at p. 971.) The victim then described the events leading to his injury by the defendant.
The court ruled the circumstances made the statement testimonial. By the time the officer spoke to the victim it was more than an hour after the incident, the victim and the attacker were separated by distance, and the victim was awaiting treatment. He was in no immediate danger for which police assistance was necessary. The obvious purpose of the officers questioning "was . . . to obtain a fresh account of past events involving defendant as part of an inquiry into possible criminal activity." (People v. Cage, supra, 40 Cal.4th at p. 985.)
We reject defendants argument in reliance on Davis that the statements were testimonial because made after the emergency ended, which he pinpoints as the time the suspect had fled. The objective circumstances show Anderson was attempting to determine if there was an ongoing emergency and whether the victim needed medical assistance. Further, that the facility was not searched and there is no evidence any other officer went to the group home does not prove there was no emergency. Until Anderson arrived and questioned the victim he could not know the status.
Defendant also points out that Anderson did not obtain a description until 10 minutes into the interview and information about a gun until 5 to 10 minutes later. But the court carefully considered the length of time that passed before these statements were made in light of the length of time after the incident and the remainder of the interview, which it excluded. This was reasonable under the totality of the circumstances. (People v. Cage, supra, 40 Cal.4th at p. 984.)
Similarly, defendants argument the statements resulted from structured police interrogation, the primary purpose of which was to obtain information about a crime, is unpersuasive. The trial court found the bulk of the questioning did fall within that description and excluded it. But the only testimony allowed in went primarily to determining whether a crime had been committed and its nature, a description of the suspect, and the fact the suspect had a gun.
Defendant also criticizes the courts reliance on People v. Brenn, supra, 152 Cal.App.4th 166, claiming its erroneous interpretation was an abuse of discretion. In considering the timing of Andersons broadcast, the judge referred to Brenn, which stated the responding officer spoke with the victim only a few minutes and asked "a few general questions" that bore "no resemblance to a formal or informal police inquiry." (Id. at p. 178.) The trial court here stated that after the questions the officer in Brenn put out a broadcast when in fact that did not occur. This makes no difference; it had no effect on the overall ruling of the court, which was correct. (People v. Marquez (1992) 1 Cal.4th 553, 578 [ruling upheld if correct on any basis].)
Andersons testimony recounting his conversation with the victim properly was admitted.
2. Dr. Grimleys Testimony
Again relying on Crawford, defendant challenges all of the testimony of Grimley, the doctor who examined the victim after the rape, because it was based on statements the victim made to her and to the intake nurse who was unavailable at trial. The Attorney General argues that because defendant did not object to Grimleys testimony based on a confrontation clause violation he has forfeited the right to raise the argument. Despite such failure, however, we may address the argument on the merits and choose to do so. (People v. Chaney (2007) 148 Cal.App.4th 772, 777, 780.) The court did not err in admitting the testimony.
a. Testimony in Question
The prosecution sought to have Grimley testify as an expert that the victim had been raped. Part of the basis of her opinion was a report by nurse Morris who conducted an intake interview with the victim. Defendant, who was representing himself at trial, objected to one page of the report claiming it was hearsay inadmissible under the business records exception.
The prosecution made an offer of proof that Grimley would explain that Morris was working with her when she took the victims history, the written report of which Grimley reviewed; and that the history, along with her own physical exam of the victim, was used to make a medical diagnosis. It also planned to ask Grimley if her findings were consistent with the history. That history included penetration of the victims vagina by penis, finger, or other object, "penetration of the rectum by a pointed sticky thing," and other types of touching of the victims body by the assailant. The prosecution stated that it was not offering the report for its truth. The court ruled Grimley could testify about what the victim had said to both her and Morris and gave a limiting instruction that the victims statements to the doctors were not admitted for their truth.
Grimley testified that she examined the victim, first visually, finding scratches and bruises on her right cheek, shin, and foot. She also examined the victims genitals and rectum and found abrasions and bruises in both areas. She took vaginal swabs. Grimley determined the injuries were consistent with forcible, non-consensual sex because of the number of injuries and their locations. This was based in part on research that concluded three or more such injuries precluded consensual sex. She also testified she reviewed the history to focus her exam, and that the injuries she saw were consistent with that history.
b. Nontestimonial Hearsay
Experts are allowed to rely on "material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field . . .," including hearsay. (People v. Gardeley (1996) 14 Cal.4th 605, 618; see also § 801, subd. (b).) Crawford did not change this rule. "This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the experts opinion. Crawford itself states that the Confrontation Clause `does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. [Citations.]" (People v. Thomas (2005) 130 Cal.App.4th 1202, 1210.)
Here no hearsay was admitted for its truth. Thus Crawford is not implicated. Further, the document containing the victims history was not admitted at all. Moreover, the statements about which defendant complains were discussed in only the most limited fashion by Grimley. The only specific reference was that the victim had been penetrated by a penis, a finger, and another object in her vagina and a "pointed sticky thing" in her rectum.
Grimley examined the victim and personally noted all of the bruises, abrasions, and wounds. She took the vaginal swabs. The fact that she focused her exam based on the history does not diminish the fact that she made her own observations and findings.
Defendant relies heavily on People v. Geier (2007) 41 Cal.4th 555. There an expert testified that the defendants DNA matched that on vaginal swabs taken from a rape victim based on sampling performed by and a report written by another employee of the laboratory employing the expert. The defendant argued a violation of Crawford because the other employee did not testify. He asserted the report was testimonial because it was "`made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. [Citation.]" (Id. at p. 598.) After a lengthy analysis the Supreme Court held the report was not testimonial. (Id. at p. 607.)
In determining the admissibility of a DNA report, the court distilled Crawford and Davis and held such a report is "testimonial if (1) it is made to a law enforcement officer or by or to a law enforcement agent and (2) describes a past fact related to criminal activity for (3) possible use at later trial." (People v. Geier, supra, 41 Cal.4th at p. 605.) All three elements must be found. (Ibid.) But we need not subject the evidence here to such an analysis because it was not admitted.
Defendant claims that although Geier does not state the report had not been admitted, its analysis of whether the statement was testimonial "appears to be a recognition . . . that Crawford/Davis does limit the use of testimonial hearsay as a basis for expert opinions in criminal cases." We do not read the case that way. There is nothing in Geier that states the hearsay was not admitted. Rather, although not explicitly stated, it appears it was admitted based on statements the court made, including that this was the first case where it would "decide whether the admission of scientific evidence, like laboratory reports, constitutes a testimonial statement . . . ." (People v. Geier, supra, 41 Cal.4th at p. 598, italics added.) More importantly, a holding that testimonial hearsay, although not admitted, could not be used as a basis for an expert opinion, would significantly change existing law. If the Geier court had made such a determination it would be spelled out and not left to speculation.
The court did not err in admitting Grimleys testimony.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
OLEARY, J.
IKOLA, J.