Opinion
E032383.
10-27-2003
THE PEOPLE, Plaintiff and Respondent, v. LARRY DALE PARKER, Defendant and Appellant.
Colin J. Kooyumjian and Charles F. Magill for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Matthew Mulford and Douglas P. Danzig, Deputy Attorneys General, for Plaintiff and Respondent.
1. Introduction
Defendant Larry Dale Parker appeals from a judgment convicting him of voluntary manslaughter. On appeal, defendant claims the trial court erred in denying his request to admit his videotaped police interrogation. Defendant also claims the court made certain instructional errors, including that the court failed to provide instructions on involuntary manslaughter and antecedent threat.
We conclude that the trial court did not abuse its discretion in excluding the videotaped interrogation as inadmissible hearsay not falling within any recognized exception. As to defendants claims of instructional error, we conclude the court was under no sua sponte obligation to provide the instructions because the evidence did not support the theory of imperfect self defense and because defendant failed to request an instruction on antecedent threats. We therefore reject all of defendants arguments and affirm his conviction.
2. Factual and Procedural History
On December 18, 2000, Michael Marsh told his wife, Debra, that he was going to defendants house to check on him. By the evening of the next day, Michael had not yet returned home. Debra went to defendants house in search of Michaels van. Not finding the van that night, she returned to the house the next morning. In the morning, defendant was standing outside his house. Debra asked if defendant had heard from Michael. Defendant responded that he had been driving around and noticed some police tape and a van. Defendant took Debra to this location.
When they arrived, defendant and Debra got out of the car and walked down an asphalt road and then a dirt road to the ditch where the van was parked. After recognizing the van, Debra walked over to it. Defendant reached the van first and reported that there was a man inside and there was blood. Debra ran back to her car and called 911.
California Highway Patrol Officer Donald Finn arrived at the scene. After informing Officer Finn about the van, defendant led the officer to the location where the van was parked. After discovering the body, the officer described the man to defendant, who confirmed that Michael matched the description. During this conversation, defendant told Officer Finn that he had a gun in his back pocket. It was later discovered that the gun was a .357-caliber gun.
During his police interview with Detective Brad Toms, defendant, after initially denying any involvement and providing different accounts of the incident, later admitted that he shot Michael in the head. Defendant explained that, after he had noticed Michaels van parked in front of his house, he went out to the van and got into the passengers seat. Inside the van, Michael pulled out a knife and held it up to defendants neck. Defendant drew his gun and shot Michael on the right side of his face. After the shooting, defendant drove the van to the location where it was found. Defendant also informed Detective Toms that he had hidden the gun and some ammunition near some railroad tracks. After the interview, defendant led Detective Toms to that location to retrieve the weapon. The weapon was a nine-millimeter Derringer.
The medical examiner reported that Michael died of a gunshot wound to his head. The bullet entered on the right side of Michaels face and exited above his left ear.
The drivers side window broke when defendant shot Michael. After moving the van, defendant later returned to the location and broke the passengers side window to make it appear that the gunman shot Michael from outside the van.
In front of defendants house, one of the crime scene investigators discovered glass consistent with the drivers side window of the van. Another officer, Detective Carlos Espinoza, found a knife wrapped in a note in defendants water heater closet. Detective Espinoza also found two other firearms in defendants house.
The San Bernardino County District Attorney charged defendant with killing Michael Marsh with malice aforethought. The district attorney also charged defendant with the following firearm enhancements: personally and intentionally discharging a firearm causing great bodily injury and death; personally and intentionally discharging a firearm; and personally using a firearm.
Penal Code section 187, subdivision (a). All further statutory references will be to the Penal Code unless otherwise stated.
Section 12022.53, subdivision (d).
Section 12022.53, subdivision (c).
Sections 12022.5, subdivision (a)(1), and 12022.53, subdivision (b).
Defendant testified during his trial. Consistent with his final description of the killing to Detective Toms, defendant testified that he shot Michael because Michael tried to kill him with a knife. Defendant described Michael as a "gangster-type" who manufactured methamphetamine. Defendant also characterized Michael as a violent man. Other defense witnesses confirmed Michaels reputation for violence. Defendant explained that he had told Michael that he no longer wanted to associate with him.
According to defendant, on December 18, 2000, after he had returned from the store, he noticed Michaels van parked in front of his house. Defendant assumed that Michael would follow him into the house, but Michael remained in his van. After a few minutes, defendant walked out to Michaels van and got inside. As he entered the van, defendant pulled out his gun from his back pocket and set it beside his leg. When Michael pulled out his knife and held it at defendants throat, defendant struggled with Michael, trying to push the knife away. Defendant then lifted his gun to Michaels head and fired.
The jury convicted defendant of the lesser-included offense of voluntary manslaughter. The jury found true two of the firearm enhancements. In addition to striking the remaining enhancements, the court found the section 12022.53, subdivision (d), enhancement could not be imposed on a voluntary manslaughter offense. The court therefore struck all the section 12022.53 allegations, leaving one firearm enhancement under section 12022.5, subdivision (a)(1), for personally using a firearm. The court then imposed the midterm of six years for the voluntary manslaughter and a consecutive term of four years for the firearm enhancement.
Section 192, subdivision (a).
Sections 12022.5, subdivision (a)(1), and 12022.53, subdivision (d).
3. Evidentiary Error
Defendant claims the trial court erred in denying the defense request to admit into evidence the videotape of his police interrogation.
The People respond that the trial court properly denied defendants request because the videotape was hearsay evidence that did not fall within an exception to the hearsay rule.
During the trial, the prosecution did not admit into evidence a copy of the videotaped interview or a transcript of the interview. The prosecution relied entirely on Detective Tomss account of the interview. After the prosecution rested its case-in-chief, defendants attorney informed the court that he had found several inconsistencies between the videotaped interview and Detective Tomss trial testimony. Defendants trial attorney requested that the court admit the taped interview as impeachment evidence. The prosecutor noted that the taped interview had not been edited and the transcripts were inaccurate. The court noted that, while videotaped police interviews usually were admitted into evidence as party admissions, that exception to the hearsay rule did not apply because defendant was making the request. The court also noted that defendant could impeach Detective Tomss testimony by calling the other officer who was present during the interview. The court denied defendants request.
In general, hearsay is evidence of an out-of-court statement offered to prove the truth of the matter stated. Unless the statement falls within an exception to the hearsay rule, the statement is inadmissible. In reviewing a trial courts decision to exclude a statement as inadmissible hearsay, we apply the deferential abuse of discretion standard.
Evidence Code section 1200, subdivision (a); People v. Alvarez (1996) 14 Cal.4th 155, 185.
Evidence Code section 1200, subdivision (b); People v. Alvarez, supra, 14 Cal.4th at page 185.
People v. Waidla (2000) 22 Cal.4th 690, 725.
The People observe that, while defendants videotaped statements were admissible in the prosecutions case as party admissions under Evidence Code section 1220, that exception does not make the statements admissible in defendants case.
Defendant nevertheless argues that the videotape should have been admitted to impeach Detective Tomss testimony and to provide a full and accurate account of the police interrogation. Defendants arguments lack merit. Regardless of whether defendant seeks to admit the videotape as impeachment evidence or to provide an accurate account of the interrogation, the videotape is being offered for truth of the matter asserted. Hence, to be admissible, it must fall within an exception to the hearsay rule. Defendant fails to cite any applicable exception to the hearsay rule.
In support of its arguments, defendant relies on Evidence Code section 356. That section provides: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence." This provision, however, does not authorize the admission of evidence that is intrinsically inadmissible, such as hearsay evidence.
Crosby v. Martinez (1958) 159 Cal.App.2d 534, 539.
Moreover, in this case, the trial court provided defendant with other alternatives to impeach Detective Tomss testimony. The court noted that both defendant and another officer were present during the interrogation. Defendant could have called the other officer to provide a different or more accurate account of the interview. If such impeachment evidence was available, defendant cannot complain of his failure to take advantage of it.
People v. Goodner (1992) 7 Cal.App.4th 1324, 1332.
Additionally, defendant failed to lay a proper foundation for the videotape as impeachment evidence with prior inconsistent statements. As noted by the court, Detective Toms often testified that he could not recall or remember what was said during the interview. Even on appeal, defendant refers only to the parts of Detective Tomss testimony where he could not remember certain details of the interrogation.
See People v. Fierro (1991) 1 Cal.4th 173, 222.
Based on the absence of an applicable hearsay exception, defendants inadequate offer of proof, and the availability of other evidence, the trial court did not abuse its discretion in denying defendants request to admit the videotaped interrogation.
4. Instructional Error
Defendant claims the trial court, in its charge to the jury, should have given instructions on both involuntary manslaughter and antecedent threat, and should not have given CALJIC No. 17.41.1.
In general, a trial court must instruct on only the principles of law relevant to the issues raised by the evidence and necessary and helpful for the jurys understanding of the case. The courts duty includes the obligation to give instructions on lesser included offenses when there is evidence that the offense committed was less than the offense charged. Under the normal, as opposed to the constitutional, harmless error standard, the courts failure to provide a necessary instruction requires reversal only if a different outcome would have resulted.
People v. Prettyman (1996) 14 Cal.4th 248, 265.
People v. Koontz (2002) 27 Cal.4th 1041, 1085.
See People v. Marks (2003) 31 Cal.4th 197, 222.
A. Involuntary Manslaughter
Defendant first contends that the court failed to instruct on involuntary manslaughter as a lesser included offense of murder on the theory of unreasonable or imperfect self defense.
The People respond that defendant waived this claim, and alternatively, the evidence did not support defendants theory. The People note that the trial court offered to instruct the jury on involuntary manslaughter, but defendants trial attorney refused the instruction. According to defense counsel, defendants conduct was not accidental, but deliberate or intentional. The defense tactic, therefore, did not include an argument for involuntary manslaughter. Based on defense counsels rejection of the trial courts offer to instruct on the lesser included offense, the People contend that defendant waived or invited the error. Nevertheless, a trial court has a sua sponte duty to instruct on all relevant principles of law even when the defendants trial attorney, as a matter of tactics, fails to request the instruction or even objects to it.
See People v. Bunyard (1988) 45 Cal.3d 1189, 1234.
People v. Koontz, supra, 27 Cal.4th at page 1085; People v. Lee (1999) 20 Cal.4th 47, 61.
The People also argue that, because the evidence showed that defendant acted intentionally, the court was not required to instruct on involuntary manslaughter.
Manslaughter is a lesser included offense of murder, which, unlike manslaughter, requires malice. As properly instructed by the court, while the crime of voluntary manslaughter does not require malice, it does require that defendant intended to kill the victim or that he acted with conscious disregard for human life. The element of malice also is negated by evidence of a sudden quarrel or heat of passion or by evidence that defendant killed the victim based on an actual, but unreasonable belief that he was in imminent danger of death or great bodily injury. Unreasonable self defense may support a verdict for voluntary or involuntary manslaughter, depending on the whether the defendant harbored an intent to kill. Thus, if the defendant kills unintentionally, but based on an unreasonable belief that his life was in danger, the defendant has committed involuntary manslaughter.
People v. Koontz, supra, 27 Cal.4th at page 1086.
See People v. Lasko (2000) 23 Cal.4th 101, 107-111.
People v. Koontz, supra, 27 Cal.4th at page 1086.
People v. Blakeley (2000) 23 Cal.4th 82, 90; People v. Dixon (1995) 32 Cal.App.4th 1547, 1557, footnote 5.
The trial court had a sua sponte duty to instruct on the lesser included offense of involuntary manslaughter if there was evidence in the record to show that defendant acted unintentionally. Based on defendants testimony, after the brief conversation and ensuing struggle, defendant held the gun up to Michael Marshs right temple and fired. Nothing in the record suggests that defendant was waving the gun uncontrollably or that the gun went off accidentally during the struggle. Defendant fired immediately without any warning. The evidence indicates that defendant aimed and shot to kill. Defendant testified that he felt it was time to kill Michael. While the record may support the theory that defendant acted with an unreasonable, but actual belief that his life was in danger, nothing in the record supported a finding that defendant killed Michael unintentionally.
Under these circumstances, the trial court was under no sua sponte obligation to instruct the jury on the lesser included offense of involuntary manslaughter.
See People v. Ibarra (1982) 134 Cal.App.3d 413, 420, 421.
B. Antecedent Threat
Defendant claims the trial court erred in failing to instruct the jury that they could consider not only Michaels prior threats to him, but also his prior threats to others. He argues that, without an instruction, the jury had no guidance in using the evidence of Michaels prior threatening conduct. Defendant points to his own testimony regarding his strained relationship with Michael, James Heimrickss testimony about a prior shooting incident where Michael repeatedly fired at him, and Darrell Stephenss testimony of a threat by Michael directed at him.
The courts duty to instruct extends to all defenses that are consistent with defendants trial theory and are supported by substantial evidence in the record. The court, however, is not required to give pinpoint instructions that instruct on specific points or theories applicable to a particular case unless the party requests such an instruction.
People v. Garvin (2003) 110 Cal.App.4th 484, 488.
People v. Garvin, supra, 110 Cal.App.4th at pages 488-489.
An instruction on antecedent or prior threats is a clarifying or pinpoint instruction. While the court may be required to instruct on antecedent threats when requested, the court has no sua sponte duty to give the instruction.
People v. Garvin, supra, 110 Cal.App.4th at page 489.
See People v. Gonzales (1992) 8 Cal.App.4th 1658, 1663-1664; People v. Pena (1984) 151 Cal.App.3d 462, 475.
People v. Garvin, supra, 110 Cal.App.4th at page 489.
Unlike in the cases relied upon by defendant, in this case, defendant made no request for an instruction on antecedent threats. For this reason, defendant cannot complain on appeal.
People v. Moore (1954) 43 Cal.2d 517; People v. Bush (1978) 84 Cal.App.3d 294; People v. Spencer (1996) 51 Cal.App.4th 1208.
Moreover, any error was harmless. While the court did not instruct the jury specifically to consider Michaels prior threatening conduct, the courts instructions allowed the jury to determine whether defendant believed that his life was in imminent peril. During the trial, defendant provided evidence supporting his theory that he acted in fear of Michael, who was known for his violent conduct. In closing argument, defense counsel repeatedly argued that defendant believed that his life was in danger based on what he knew about Michael and the prior incidents of violence. In particular, defense counsel mentioned that the prior shooting incident with James Heimricks provided evidence of defendants state of mind as he sat in Michaels van. Defendants trial attorney argued that the entire case revolved around defendants fear of Michael. Therefore, there is no indication that the jury disregarded the evidence or was confused about its application.
People v. Spencer, supra, 51 Cal.App.4th at page 1220.
C. CALJIC No. 17.41.1
Defendant claims the trial court violated his federal and state constitutional rights by instructing the jury with CALJIC No. 17.41.1. In People v. Engelman, while the California Supreme Court advised against using CALJIC No. 17.41.1, the court definitively held that the instruction did not infringe upon a criminal defendants constitutional rights. Based on our high courts holding, we reject defendants final claim of instructional error.
People v. Engelman (2002) 28 Cal.4th 436.
Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.
5. Disposition
We affirm defendants conviction.
We concur: McKinster, and Acting P.J., Richli, J.