Opinion
C083248
12-28-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL MCKUIN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. STK-CR-FE-2014-0005641)
In the early morning hours of New Year's Day 2013, the victim's car was found on the side of River Road near McHenry Avenue and State Route 120; her body lay at the bottom of a ravine leading to the Stanislaus River. Defendant Michael McKuin, her estranged husband and father of her child, was arrested for her murder in April 2014. In September 2016, a jury found him guilty of first degree murder (Pen. Code, § 187, subd. (a)), and the trial court subsequently sentenced him to 25 years to life in state prison.
On appeal, defendant challenges the sufficiency of the evidence to establish that he was responsible for the victim's death. We shall affirm the judgment.
Given that the gist of defendant's argument requires an analysis of the evidence at trial, a separate statement of facts is not warranted. We instead include them in our Discussion.
DISCUSSION
In our review of the record where the sufficiency of the evidence is challenged, we first resolve any evidentiary conflicts and draw all reasonable inferences in favor of the verdict. (People v. Mack (1992) 11 Cal.App.4th 1466, 1468.) We accordingly disregard defendant's focus on any inconsistencies or credibility issues, his suggestions of third party culpability, or character evidence in his behalf. (People v. Curl (2009) 46 Cal.4th 339, 342, fn. 3.) The ultimate issue is whether a reasonable jury could have returned a verdict of guilty in light of the record as a whole as thus construed, rather than on speculative possibilities or conjecture. (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.)
The People refer to the evidence of defendant's guilt as "ample." The label is unwarranted. The evidence of a direct connection between defendant and the victim's disappearance and death is more accurately described as "scant."
1.0 Background
At the time of her death in late December 2012, the victim and defendant were in the process of divorcing after separating in 2009. Their son was three years old, and they had joint custody of him. Apparently "[i]t was ridiculous how much they argued over this child." The victim lived with her parents, and had recently begun dating another man. Defendant was living on Page Court in Modesto with another woman (whom he had been dating since 2010), her older child, and a roommate. The girlfriend was pregnant with defendant's child (who was born in January 2013).
We do not name the victim in order to protect the privacy of her son, as he matures, from Internet searches.
Defendant, his mother and his sister (the latter of whom were both still close to the victim), and the victim's mother all noted that the victim often ran late, and it was not unusual for her to change plans at the last minute (including picking up her child from defendant or his mother). Defendant asserted that the victim had even gone a month without having their child in her custody, and told an investigator that she would go "AWOL" from their son's life. However, defendant's mother and sister also noted that when the victim was unable to come at a designated time, she would call to let them know (or ask defendant's mother to pick up the child for her). The victim was glued to her cell phone, keeping it with her at all times (even in bed).
On Christmas Eve 2012, defendant and the victim had a heated confrontation about her failure to deliver their son to defendant as scheduled. This confrontation occurred at the victim's parents' home with the parents present. Ultimately, defendant left the child with the victim.
Defendant and his girlfriend asserted that they believed his son may have been molested while in the victim's custody, based on the behavior of defendant's son with the girlfriend's daughter and the son's remarks when challenged. They learned this shortly before Christmas. They filed a report apparently on Christmas Day 2012 with the Stanislaus County Sheriff's Department.
On December 26, 2012, defendant and the victim attended a custody hearing at the Modesto courthouse. As he later told an investigator, he had a dispute with the victim at the hearing about returning the child to her custody because of his belief that the son had been molested. The mediator intervened and directed defendant to return the child to the victim until the next day as scheduled, and left the custody arrangements unchanged. They then called child protective services, and "Tonya" interviewed the victim and told defendant that it was okay for the child to be there.
2.0 The New Year's Eve Timeline
On New Year's Eve 2012, the victim made plans to go to an adventure movie with her family and her son (because defendant would be working). She spoke with her mother around 2:00 p.m. and asked her to join them, noting that she was on her way from her boyfriend's home to defendant's home to get her son. She also texted a friend about her plans at 1:30 p.m., saying she was going to pick up coffee and then get her son. Her boyfriend testified that shortly before 3:00 p.m., they were still eating in the car at a fast-food restaurant; the victim then dropped him off at his house before driving to defendant's, which was about five miles away.
At 2:53 p.m., the victim's phone received a text from defendant's phone, asking if she would be there by 3:00 p.m. to pick up their son; a text responded, "Yes, I'm on my way." Records show defendant's phone was in the vicinity of his home; the victim's phone company did not keep location records for texts. Defendant's phone then received a text from the victim's phone at 3:26 p.m. stating, "Here." Defendant testified that he looked outside but did not see the victim; he later told his sister that he had also sent the victim a text asking where she was, although cell phone records do not reflect any text activity on his phone between 3:26 p.m. and a 4:18 p.m. text from his mother's phone asking if the victim had picked up the child (his mother's phone was in the vicinity of her residence at all times). Defendant's phone also received a zero-duration call from a nearby friend right after the 3:26 p.m. text; the friend left a message on voice mail at 3:48 p.m.
After texting defendant, his mother's phone texted the victim at 4:20 p.m. to ask if she had the child. The mother's phone finally received a text from defendant's phone at 4:48 p.m. that stated the victim had not yet arrived; defendant's friend also received a text at the same time from defendant's phone telling him to "hold on" while he awaited the victim's arrival. Thereafter, defendant's phone remained in the vicinity of his home through 6:55 p.m., during which time he did not respond to incoming texts or calls. Defendant explained that he had plugged in the phone in the bedroom to charge it during this time and he was in the living room. His girlfriend's phone was also in the vicinity of their home for the entire period of noon to midnight on that day. The girlfriend and defendant testified that they had been at home all day until they went to his mother's house.
At 5:10 p.m., defendant's mother received an odd text from the victim's phone, which apologized for deciding not to pick up her child. It was unusual because it contained misspellings, referred to the victim's son as "him" instead of her pet name for him, and used the word "sorry," none of which was characteristic for the victim.
Among the texts to defendant that went unanswered was one at 5:14 p.m. from his mother's phone, relating that she had just gotten a text that the victim was not coming, and asking defendant to call her about her picking up the child. His mother's phone then received a two-second call originating from the victim's phone that did not connect; the records were thus able to determine the phone's location as being in the vicinity of where the victim's body was later recovered. This call was shortly followed by two apologetic texts to defendant's phone at 5:29 p.m. After this, the phone was disconnected from the network as a result of being turned off or destroyed.
After the period of inactivity, there was a call at 6:56 p.m. from defendant's phone to his nearby friend. Defendant, the girlfriend, and their children drove to the home of defendant's mother to drop off laundry. Defendant's mother did not see who was with defendant, who came inside by himself to drop off the clothes (at trial, she testified she thought it was defendant's friend and their two sons; at the time, she told an investigator that it was the girlfriend). She was aware defendant would be at the friend's house, because that is where she was to pick up her grandson.
The girlfriend testified that after they came home, defendant went over to the home of his friend with his son to play video games until he left for work at 10:00 p.m. His mother picked up the child there about 8:00 p.m. Defendant's friend initially told police that defendant was there only briefly before 6:00 p.m.; at trial, he agreed with defendant's mother and girlfriend that defendant had been with him for a few hours playing games. Defendant's phone was in the vicinity of his job throughout his shift. His phone sent one more text to the victim's phone at 10:21 p.m.
3.0 The Car Sightings
A nearby resident noticed the victim's car parked on the shoulder of River Road at about 4:00 p.m. on December 31 as she was driving to Modesto. No one was in the car or around it. When the resident returned from Modesto at about 5:30 p.m., the victim's car was parked facing oncoming traffic on the south side of River Road. She passed by the car twice more that evening, going to a party at 6:30 p.m. and returning close to midnight. This location is about nine and a half miles from defendant's home.
Another couple was driving west on River Road to Modesto for dinner at about 5:30 p.m., and saw a green Honda and a small silver or white car both parked on the north side shoulder, both with their tail lights on. On their return after midnight, the green car was on the south side facing traffic. The witness could see a woman in the car, who appeared to be sleeping with her mouth open and her head atilt.
A third driver was driving through the same location heading west on his way home from Oakdale shortly before 6:00 p.m. He also saw the green car on the south shoulder of the road, and a silver-grey compact on the north shoulder, both with their tail lights on. On the following morning on his way to work, he saw officers around the green car, and he reported his observations. (He also believed he had seen the car there on the morning of New Year's Eve, when it was in fact still in the victim's possession.)
Defendant has a brown convertible Mustang with a black roof, and a green Dodge. His nearby friend owns a primer-grey Accord that is nonoperational because it does not have a smog certificate. The friend's mother-in-law had come by his house about 5:00 p.m. to pick up his son on New Year's Eve; when questioned three months later, she remarked that she did not see his car at that time, although it was there when she returned an hour later to drop off a pizza. At trial, she did not remember the detective asking about her son-in-law's car.
4.0 The Circumstances of the Body
Responding to a report of an unspecified "collision," officers located the victim's car on River Road just east of McHenry Avenue around 3:30 a.m. on January 1, 2013. The vicinity is pitch black, illuminated only by a flashing light at the intersection about a quarter-mile away. The car was covered with frost (it being about 30 degrees). Its front windows were open, the keys were in the ignition, and the contents of the car, including the victim's purse, were neatly positioned and did not appear to be disturbed. What seemed to be vomit was on the floor behind the driver's seat. Identifying the car through registration records and the victim's driver's license, the officers noted matted-down grass in a trail leading away from the driver's door. As they followed the trail, the slope of the hill rapidly declined. With their flashlights, they could see the victim's frost-covered body at the bottom of the ravine. The record does not indicate anything at the scene connected defendant with the victim's body.
We do not need to describe at length the autopsy findings, as nothing other than DNA evidence connects the victim's death specifically with defendant. Although her body had multiple other injuries, indications that her wrists and ankles had been firmly gripped, and indications of defensive wounds in a struggle, the cause of death was slow asphyxiation from compression of the mouth and nose with a soft object, which resulted in vomiting. The pathologist believed she had died between 3:00 p.m. and 6:00 p.m. on New Year's Eve, within two to four hours after her last meal with her boyfriend. The pathologist did not discuss how long the body may have been lying at the bottom of the ravine.
The only DNA evidence sufficient to identify defendant as the contributor was found underneath one of the victim's fingernails. DNA evidence under another fingernail was only a partial profile consistent with portions of defendant's profile, but insufficient to match him; the expert nonetheless was of the opinion that defendant was the contributor. DNA evidence retrieved from the interior of the victim's car was too incomplete to be interpreted. Only a single fingerprint from the car was sufficient for analysis, but it did not match anyone involved with the victim or anyone in the fingerprint database.
To be precise, the expert should have testified only that the DNA was consistent with defendant's profile, and not provided any statistical evidence because it is for the jury to determine the weight to be given the evidence. (People v. Her (2013) 216 Cal.App.4th 977, 982.) Defendant does not contend any prejudicial error arose from this testimony.
Defendant testified that notwithstanding the heated interactions with the victim on Christmas Eve and at the custody hearing on December 26 (the latter including him airing his suspicions of their son's molestation occurring on her watch that he had reported to the police), he and the victim still had sexual relations on the following day at her home while their son watched a video and (at the victim's invitation) on the evening of December 29 when the rest of the household was asleep. This was part of a surreptitious course of conduct of three to six rendezvous every month since their separation three years before. In the course of their sexual activity, defendant's skin cells and saliva would have gathered underneath the victim's fingernails. A defense expert asserted that a study had shown that a third party's DNA could persist under fingernails even with vigorous washing with a nail brush.
5.0 Aftermath
In the mid-afternoon on New Year's Day, representatives from both the San Joaquin and Stanislaus County Sheriff's Departments went to defendant's home to interview him. They did not announce their purpose in asking defendant to come with them to make a statement; the latter assumed it was in connection with the molestation report he made to Stanislaus County authorities. Defendant gave consent to a search of his home. (Nothing in the record indicates that the search resulted in any probative evidence.) Law enforcement took defendant and his girlfriend to the San Joaquin County Sheriff's Office in French Camp.
At the station, defendant initially began talking about the reasons he reported the possible molestation, and the confrontation with the victim at the custody mediation. Defendant had been calm up to this point. About a half-hour into the interview, the interrogator first revealed that the victim was dead; defendant appeared stunned, and began to cry. After the interview, a technician took photos of defendant's hands and face. His knuckles were reddened, there was an abrasion on his palm close to the wrist, and redness between his eyebrows, on the base of his nose, and on his cheek. Defendant and his girlfriend testified that he had a skin condition (they believed was eczema) that made his skin sensitive to his work environment at a truck stop and caused redness on his face and hands, and caused his knuckles to crack and bleed.
The girlfriend testified that she also assumed this interview related to the molestation report.
Defendant then went to his mother's home. He was visibly distraught, and was having difficulty talking. He said only that his son was in the custody of child protective services (without explaining the reason) and asked her to try and retrieve him. He did not mention that the victim was dead.
On the following day, defendant went to his mother-in-law's home. She ran out to hug him in the driveway and told him everything would be all right. Because he looked sad, and his eyes were swollen as if he had been crying, she assumed he knew about the victim. But when asked if he had heard about the victim, he said he had not, and she then explained that she was dead. He reacted as if he was hearing this news for the first time, and became upset. Defendant was a pallbearer at the victim's funeral.
Defendant never called his sister to tell her that the victim was dead. She found out about the death through social media.
6.0 This Evidence Is Sufficient, Even If Not Compelling
Our focus is on whether it is reasonable to find defendant guilty based on this evidence. Whether the evidence could also support finding another person guilty is irrelevant.
With respect to the issue of identity, a reviewing court can set aside a verdict only where the evidence in support is "so weak as to constitute practically no evidence at all." (People v. Braun (1939) 14 Cal.2d 1, 5; accord, People v. Mohamed (2011) 201 Cal.App.4th 515, 521.) In People v. Daya (1994) 29 Cal.App.4th 697, this court noted that it was sufficient to establish identity where there was ample evidence of motive and opportunity, coupled with significant evidence of consciousness of guilt. (Id. at pp. 708-712.) Moreover, the Supreme Court's remarks with respect to fingerprints are of equal significance in the post-DNA era: " 'Fingerprint evidence is the strongest evidence of identity, and is ordinarily sufficient alone to identify the defendant.' " (People v. Johnson (1988) 47 Cal.3d 576, 601.)
In the present case, there was ample evidence of motive in the continuous and heated disputes between defendant and the victim regarding their shared custody of their son. Into this already combustible relationship, just before her death defendant added the fuel of suspicions that their child was molested while under her watch.
As for opportunity, mere moments away from defendant's house the victim was still adhering to her announced intention of picking up her son and taking him to a movie with other members of her family; nothing in the record would account for a truly last-minute change of plans. It is therefore rational to infer that the text message "Here" at 3:26 p.m. was in fact from the victim on her arrival at defendant's home, even absent any corroboration that she arrived. It is difficult to align the evidence of the car sightings with defendant's ability to suffocate the victim, transport her to River Road and dump her down the embankment, place the texts and two-second call from the victim's phone between 5:10 p.m. and 5:29 p.m.in the vicinity of River Road, and have the means of returning home in a second car before going to his mother's house. However, it was for the jury to reconcile the earliest sighting at 4:00 p.m. (ignoring the impossible sighting on the morning of New Year's Eve) and the sighting of a woman still in the car at near midnight with the timeline of the killing and disposal of the body. It would not have been irrational for the jury to assume the participation of the extremely pregnant girlfriend—who also did not have any interaction with anybody else all afternoon—in at least the disposal of the body (given a motivation to assist the father of her soon-to-be-born daughter), limiting her activity to driving with the children to pick up defendant; the sightings of the second car accord with the activity on the victim's phone, at a time when extreme darkness would have helped cover the disposal of the body even before the second car arrived. That the witnesses did not see defendant around the car does not mean he was not down the embankment at the time they passed.
It is true the record lacks any evidence of where the murder may have taken place, or any connection between defendant and the victim's car. However, the body had defendant's DNA under one fingernail and consistent partial DNA under another (and there was not any evidence that anyone else matched this partial profile). Defendant's explanation for this borders on the ludicrous; while it may not be uncommon for former spouses to continue to have intimate relations with one another, it simply does not seem plausible that the victim would be interested in having sex with defendant on December 27th (and summon him for an encore on the 29th) after a heated argument on the 24th, being reported to child protective services on the 25th (leading to an interview with a social worker on the 26th), and having a face-to-face argument at the custody hearing on the 26th about the molestation accusation. While there might be other plausible reasons for the victim to have defendant's DNA under her fingernail(s), that does not mean it was irrational for the jury to conclude the transfer occurred while defendant was smothering her.
Furthermore, the jury could have rationally taken this specious explanation as evidence of consciousness of guilt. Although we do not believe that deviation from some presumed template of grief also unerringly points to consciousness of guilt, defendant's failure to speak of the victim's death to his mother or sister (both of whom were still close to the victim), and to act as if he was unaware of her death when talking to the victim's mother are nevertheless curious, and thus to some extent would support a rational inference of additional consciousness of guilt.
Accordingly, this evidence is sufficient to support the verdict. This is not to say that it is the conclusion we might reach in the first instance, or that it leads inevitably to a finding of guilt. But it is sufficient to establish that the verdict was not based merely on speculation. We therefore reject defendant's argument.
DISPOSITION
The judgment is affirmed.
BUTZ, J. We concur: NICHOLSON, Acting P. J. MURRAY, J.