Opinion
A146962
12-13-2018
THE PEOPLE, Plaintiff and Respondent, v. MONTREAL D. SIMPSON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR222387)
Montreal D. Simpson was convicted by jury of a residential burglary. Simpson argues the prosecutor improperly commented on his purported silence when detained. He contends the trial court failed to provide an adequate admonition to the jury to remedy the misconduct. Simpson also argues the standard instruction on eyewitness identification (CALCRIM No. 315) is misleading and erroneously informs jurors that a witness's certainty is relevant to the reliability of an identification. We find no reversible error.
I. BACKGROUND
Montreal D. Simpson was charged with first degree residential burglary of an inhabited dwelling (Pen. Code, § 459; count 1) and receipt of stolen property (id., § 496, subd. (a); count 2). The following evidence was presented at trial.
Rick Sylvain owned a four-unit rental property in Vallejo. On November 4, 2014, at about 2:40 p.m., he was repairing a lower-level window when he heard noises from an upper-level unit. As Sylvain walked toward the stairs to the unit, he saw two men emerge from the stairway. From about 12 feet away, he observed a man of indeterminate race, wearing a baseball cap and two-tone jacket (dark body and gray sleeves) and carrying a two-tone gym bag that seemed full. Behind him was an African-American male with neck-length dreadlocks and wearing dark clothes but no hat. During trial, Sylvain identified the second man as Simpson. Sylvain asked the men what they were doing; they looked surprised and ran. Sylvain chased the men until they disappeared between houses across the street. Sylvain and his tenant later determined the upper unit had been burglarized.
Sylvain called 911 about a minute after the chase and about two minutes after he first saw the men on the stairs. He described the suspects as a short (5'2") man wearing a two-tone jacket and carrying a bag, and a 20-year-old African-American man wearing a black nylon down jacket. Sylvain said he could identify one man but maybe not the other. About four minutes after the 911 call, an officer arrived, briefly conversed with Sylvain, then left to search for the burglars. About two minutes later, Vallejo Police Officer Stephanie McDonough arrived.
Vallejo Police Officer Jim Melville received a dispatch about Sylvain's call and realized he had seen men who matched the suspects' descriptions (in the company of a third man) in the area about 30 minutes earlier. He drove around the area in his patrol car to search for the suspects. A pedestrian reported seeing two African-American men walking east in an alley about three blocks north of Sylvain's property. Melville drove slowly down the alley and saw Simpson—a African-American man with dreadlocks wearing a dark colored jean jacket and lighter gray hoodie sweatshirt and a hat—sitting on steps looking through a duffel bag, with another African-American man kneeling in front of him and holding jewelry in his hand. When the men saw the officer, they walked away from the bag and its contents, with the second man dropping the jewelry. Melville exited his patrol car, detained the men at gunpoint, handcuffed them, and reported the detention to McDonough.
We infer Simpson had dreadlocks from the defense's cross-examinations based on a booking photograph of Simpson that is not in the record. The cross-examinations focused on discrepancies between Simpson's appearance and Sylvain's description of the clothing worn by the perpetrator with dreadlocks.
McDonough received Melville's report about 10 minutes after Sylvain first observed the men. McDonough drove Sylvain to Melville's location and gave Sylvain a cautionary admonition regarding in-field identifications. After each suspect was brought separately into Sylvain's view, he identified them as the men from the stairway behind his rental property. Sylvain said he was "one hundred percent sure" about his identifications. The duffel bag and its contents were still on the steps when the identifications took place. Sylvain subsequently identified the duffel bag as the bag he had seen one of the men carry down the stairway. The tenant of the burglarized unit later identified some items in the duffel bag as property that had been in her apartment earlier that day.
According to the computer aided dispatch report, the 911 dispatcher broadcast a description of the suspects at 2:47 p.m.; Melville reported he was on the scene at 2:48 p.m.; McDonough reported she was on the scene at 2:50 p.m.; Melville reported he had detained two suspects at 2:53 p.m.; and police reported a "positive match" in the in-field showup at 3:01 p.m.
The defense presented expert testimony on eyewitness identification, citing scientific research concluding that eyewitness identifications of strangers are highly inaccurate even under good observation conditions, and a witness's confidence in her identification does not correlate with the identification's accuracy. Cross-racial identifications tend to be less accurate even if the witness has regular contact and exposure to persons of the other race, and identifications made under highly stressful conditions (which might include a chase) tend to be unreliable. Factors that enhance identification reliability include descriptions of specific, unusual details; good observation conditions (e.g., daylight, close distance, length of observation, focus on face), and closeness in time to the observation. In-field showups are inherently suggestive, especially when suspects are shown in handcuffs, crime-related evidence is shown during the showup, or the witness is still under the stress of the initial event.
In closing argument, the prosecutor called attention to Simpson's failure to explain his conduct when he was first observed on the stairway by Sylvain and again when he was first observed in the alley by Melville. He implied Simpson's silence demonstrated a consciousness of guilt. Defense counsel argued Sylvain's identification was unreliable and the evidence was consistent with Simpson having merely found the duffel bag without knowing its contents were stolen.
The jury convicted Simpson of burglary, and the court dismissed the charge of receiving stolen property. Simpson was sentenced to four years in prison.
II. DISCUSSION
" '[T]he term prosecutorial "misconduct" is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.' " (People v. Centeno (2014) 60 Cal.4th 659, 666-667.)
Simpson argues the prosecutor erred by stating in closing argument that Simpson never provided an explanation for why he was found with the bag in the alley. We conclude any possible prejudice was cured by the trial court's admonition to the jury to disregard the statements.
1. Background
The prosecutor argued in closing: "When Officer Melville came down the alleyway, . . . [Simpson] was rummaging through the bag. . . . [¶] . . . [¶] . . . And what did [Simpson] do? He got up right away. He distanced himself from this bag. . . . [¶] [H]e doesn't take the bag with him. He doesn't explain anything about it. He just starts to take off." (Italics added.) Defense counsel did not object. Later, the prosecutor discussed the perpetrators' conduct at the burglarized property and said: "[Sylvain] sees the two come down [the stairs], and they're shocked. They don't say, 'Oh wait, I have an explanation,' or anything like that." The court overruled a defense objection to the latter statement.
After the prosecution's closing, and outside the jury's presence, the court heard argument on the defense objection, and defense counsel for the first time raised an objection to the prosecutor's earlier statement. The court rejected the late objection to the comment concerning the encounter with Sylvain. The court asked defense counsel to clarify his objection to the comment regarding the alleyway confrontation between Melville and Simpson. Defense counsel advised the court that Melville testified at the preliminary hearing that Simpson had in fact provided an explanation for his presence with the duffel bag: after receiving Miranda warnings, Simpson told Melville he found the duffel bag in the alley and did not know anything about a burglary.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
The court found no misconduct—"I don't think there was anything [done] intentionally"—but believed an admonishment was in order because the jury had been given the mistaken impression that Simpson never explained his presence with the duffel bag. Defense counsel asked that the jury be informed of Simpson's explanation to Melville or that evidence be reopened to present the preliminary hearing testimony. The court denied both requests but admonished the jury as follows: "There was argument on whether or not [Simpson] offered any explanation for the crimes. You are to disregard those statements and not consider them for any purpose."
Simpson argues the prosecutor erred in commenting that Simpson failed to provide an explanation to Melville, and the court's admonition was insufficient to cure the error.
Griffin v. California (1965) 380 U.S. 609 (Griffin).
Simpson first argues the prosecutor's comment was a form of error under Griffin, supra, 380 U.S. 609, which holds that a prosecutor may not urge the jury to draw negative inferences from a defendant's failure to testify at trial. (Id. at pp. 610-611, 614-615.) Here, the prosecutor did not directly comment on Simpson's failure to testify at trial, but Simpson argues the prosecutor did so indirectly. In People v. Vargas (1973) 9 Cal.3d 470, 476, the California Supreme Court held a prosecutor's comment that "there is no denial at all that [defendants] were there" could have been construed by jurors as comment on the defendants' failure to testify, and in People v. Crawford (1967) 253 Cal.App.2d 524, 535-536, the indirect comment that "the only thing we have heard from defendant is this roundabout story from these relatives" was deemed Griffin error. Here, however, the comment, "He doesn't explain anything about it," considered in context, was expressly directed to Melville's encounter with Simpson in the alleyway. While the jury could possibly have understood the argument to mean Simpson did not provide an explanation during his entire encounter with Melville, even after receiving Miranda warnings (an issue we discuss post), there is no reasonable probability they understood it to refer to Simpson's failure to testify at trial. The prosecutor was clearly discussing what occurred on the day of the robbery when he made the comment, just as he did when he cited Simpson's failure to provide an explanation to Sylvain when spotted on the stairway of the burgled residence. There was no Griffin error.
Doyle v. Ohio (1976) 426 U.S. 610 (Doyle).
Simpson also argues the prosecutor's comment was error under Doyle, supra, 426 U.S. 610. Doyle holds that, when a testifying defendant provides an exculpatory explanation of his conduct at trial, a prosecutor may not impeach him with post-Miranda warning silence. (Doyle, at pp. 612-614, 618.) Doyle has been cabined to post-Miranda silence: "the Constitution does not prohibit the use for impeachment purposes of a defendant's silence prior to arrest, [citation], or after arrest if no Miranda warnings are given [citation]." (Brecht v. Abrahamson (1993) 507 U.S. 619, 628, superseded by statute on another ground as stated in Hale v. Gibson (10th Cir. 2000) 227 F.3d 1298, 1324.) Where a defendant does not testify at trial, the prosecution may introduce a defendant's pre-Miranda silence as substantive evidence of guilt unless the defendant affirmatively invoked his or her right to remain silent. (Salinas v. Texas (2013) 570 U.S. 178, 181 (plur. opn. of Alito, J.); id. at pp. 191-192 (conc. opn. of Thomas, J.); People v. Tom (2014) 59 Cal.4th 1210, 1215.) A prosecutor may also comment in closing argument on a nontestifying defendant's pre-Miranda silence (People v. Clair (1992) 2 Cal.4th 629, 662-663), but not his or her post-Miranda silence (People v. Lindsey (1988) 205 Cal.App.3d 112, 116-117; see People v. Evans (1994) 25 Cal.App.4th 358, 370 [Doyle error may occur in admission of evidence, questioning of witnesses, or argument to the jury]).
Here, the challenged comment focused on Simpson's conduct immediately after he was spotted by Melville in the alley and before he was detained at gunpoint: the prosecutor noted Simpson got up, stepped away from the bag, failed to provide an explanation, and started to walk down the alley. In context, the comment, "He doesn't explain anything about it," is a reference to Simpson's silence before Simpson was detained at gunpoint by Melville. Such a comment on prearrest silence is not constitutional error under Doyle.
The trial court, however, found the jury could have been given the misleading impression that Simpson had never provided an explanation for his presence with the duffel bag, when in fact, he had. The problem, however, with applying a Doyle analysis is that Simpson was not in fact silent after receiving Miranda warnings, but had made an exculpatory statement. It is therefore more appropriate to analyze the issue as a claim of prosecutorial error in making a knowing factual misrepresentation to the jury.
4. Factual Misrepresentation
Courts have found prosecutorial error where prosecutors made knowing factual misrepresentations to the jury, even if the representations would otherwise have been fair inferences from the trial evidence. In People v. Varona (1983) 143 Cal.App.3d 566, for example, the court found error where the prosecutor successfully opposed admission of truthful evidence that the victim was a prostitute and then argued to the jury that she was not a prostitute. (Id. at p. 570, distinguished by People v. Rodrigues (1994) 8 Cal.4th 1060, 1125; see Varona, at pp. 569-570 [error to exclude the evidence].) In People v. Castain (1981) 122 Cal.App.3d 138, the court found error where the prosecutor successfully opposed admission of prior acts of excessive force by a police officer under Evidence Code section 352 and then argued to the jury that the single act in evidence was the officer's only such incident. (Castain, at pp. 142-143, 146; see id. at pp. 143-144 [error to exclude the evidence].) In United States v. Kojayan (9th Cir. 1993) 8 F.3d 1315, the court found error where the prosecutor told the jury the government could not have forced a potential witness to testify, even though the prosecutor knew the government had a cooperation deal with the witness and could have exerted great pressure on the witness to testify. (Id. at pp. 1317-1318, 1321, fn. 10.)
If interpreted as a reference to all of Simpson's interactions with Melville, the prosecutor's comment that Simpson never explained his presence with the duffel bag was at minimum misleading and could convey a false impression to the jury. The court admonished the jury to disregard the comment. Simpson argues the admonition was insufficient and the trial court should have reopened the evidence to allow Simpson to present Melville's preliminary hearing testimony to rebut the false implication.
A trial court has discretion to reopen evidence in a criminal case even after jury deliberations have begun. (People v. Newton (1970) 8 Cal.App.3d 359, 383 (Newton).) "Factors to be considered in reviewing the exercise of such discretion include the stage the proceedings had reached when the motion was made [citation], the diligence shown by the moving party in discovering the new evidence [citation], the prospect that the jury would accord it undue emphasis [citation], and the significance of the evidence." (Ibid.) Failure to permit reopening to correct material misrepresentations is error. (Id. at pp. 381-384 [prosecutor's closing emphasized witness statement he "did" have a clear view of perpetrator's face when actual statement was he "didn't" have a clear view]; People v. Frohner (1976) 65 Cal.App.3d 94, 100-102, 108-111 (Frohner) [prosecutor's closing indicated defense could have subpoenaed informer to testify when prosecutor knew of several unsuccessful defense attempts to locate and subpoena the witness].)
Here, the trial court did not abuse its discretion in denying the motion to reopen. First, the court could have reasonably concluded the proffered evidence was not significantly probative. Simpson's exculpatory statement to Melville was inadmissible hearsay. (Evid. Code, § 1200.) Simpson argued in the trial court and argues on appeal the statement was admissible simply to show the statement was made, i.e., to show that, contrary to the prosecutor's implication, Simpson did provide some explanation for his presence by the duffel bag. But, unlike the prosecution arguments in Newton and Frohner, the prosecutor here made no overtly false factual assertion, and as noted ante, the challenged statement, in context, was factually correct. Moreover, the trial court did not ignore the possibility of prejudice if the prosecutor's comment was misinterpreted and elected to admonish the jury to disregard the comment altogether. (See People v. Riggs (2008) 44 Cal.4th 248, 299 ["we assume the jury followed the admonishment"]; People v. Caldwell (2013) 212 Cal.App.4th 1262, 1273-1274 [any Griffin error harmless in light of curative admonition and weight of evidence supporting conviction].) Arguably, this remedy provided more relief than Simpson was entitled to receive, as it negated both prosecutor's comments that Simpson was silent when confronted by Sylvain and Melville. The court further instructed the jury that counsel's arguments were not evidence.
We conclude there was no prejudicial prosecutorial error. B. Instructional Error
Simpson argues that the CALCRIM No. 315 jury instruction on eyewitness identification erroneously informs jurors that a witness's certainty about an identification is relevant to determining whether the identification was reliable. He relies on scientific research cited by his expert witness that concludes certainty does not correlate with accuracy in eyewitness identification. Such studies have persuaded courts in other states to modify their standard jury instruction to remove certainty as a relevant consideration. (See, e.g., Commonwealth v. Santoli (1997) 424 Mass. 837, 846 ["there is significant doubt about whether there is any correlation between a witness's confidence in her identification and the accuracy of her recollection"]; State v. Mitchell (2012) 294 Kan. 469, 471.) Our Supreme Court, however, has expressly declined to do so, and we are bound by its prior approval of the relevant language in the instruction.
CALCRIM No. 315 reads in relevant part: "You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. [¶] In evaluating identification testimony, consider the following questions: [¶] . . . [¶] How certain was the witness when he or she made an identification?"
In People v. Sánchez (2016) 63 Cal.4th 411, our Supreme Court explained it has long been aware of scientific "studies concluding there is, at best, a weak correlation between witness certainty and accuracy." (Id. at p. 462.) The court nevertheless has "specifically approved CALJIC No. 2.92, including its certainty factor" and has "since reiterated the propriety of including this factor." (Sánchez, at p. 462, citing People v. Wright (1988) 45 Cal.3d 1126, 1141 and People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232; see Sánchez, at p. 461 [noting similarity between CALJIC No. 2.92 and CALCRIM No. 315].) The Sánchez court acknowledged the holdings of other states' courts, but declined to reconsider the issue in the case before it, which involved both certain and uncertain eyewitness identifications: "Any reexamination of our previous holdings in light of developments in other jurisdictions should await a case involving only certain identifications." (Sánchez, at p. 462; cf. id. at pp. 494-498 (conc. opn. of Liu, J.) [arguing instruction should be reexamined].) While the only eyewitness here expressed certainty, we do not reconsider decisions of the California Supreme Court. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) There was no instructional error.
III. DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
SIMONS, Acting P. J. /s/_________
NEEDHAM, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.