Opinion
B158303.
10-15-2003
THE PEOPLE, Plaintiff and Respondent, v. SHAUN A. SUMMERS, Defendant and Appellant.
Gregor D. Guy Smith and Colleen M. Rohan for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster and Deborah J. Chuang, Deputy Attorneys General, for Plaintiff and Respondent.
Shaun A. Summers appeals from the judgment entered after a jury convicted him of first degree murder and first degree residential burglary. He contends the trial court erroneously admitted a variety of evidence that prejudiced his case and, therefore, he is entitled to a new trial. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Charges
Summers was charged by information with one count of first degree murder (Pen. Code, § 187, subd. (a)) and one count of first degree residential burglary (§ 459). With respect to the murder charge, the information alleged Summers had personally used a deadly and dangerous weapon — a hammer (§ 12022, subd. (b)(1)) and had committed the murder while engaged in a residential burglary (§ 190.2, subd. (a)(17)(G)).
All statutory references are to the Penal Code unless otherwise specified.
2. The Peoples Evidence
During the summer of 2000 Summers and his cousins, Joe Summers and Steve Summers, frequented the North Hollywood apartment of Leslie McAlpine to purchase and smoke heroin. In early July Summerss girlfriend, Lynn Julian, was in a car accident while driving under the influence of drugs; her son, a passenger in the car, was killed in the accident. Julian was arrested and jailed on manslaughter charges.
Because Summers and his cousins share the same last name, we refer to Joe Summers and Steve Summers by their first names for purposes of clarity.
Summers suspected Julian was under the influence of heroin at the time of the accident and believed she had obtained the heroin from McAlpine. Steve believed Summers was "extremely strung out on drugs" after Julians accident; Joe reported Summers was "emotionally like a wreck" after the accident. Summers told both Joe and Steve he was going to kill McAlpine and said to Steve that he planned to do so before traveling to Ohio, a trip Summerss uncle had arranged to help Summers cope with both Julians accident and his drug problem. Summers also said he might take something of value, like a computer, from McAlpine to give to his friend, Linda Iezza, to repay his debt to her.
Steve reported Summerss threats to McAlpine, and Joe warned McAlpine to be careful. McAlpines friend, Brandon Sutliff, testified he heard Joe tell McAlpine that Summers "was going to come [to McAlpines apartment] to kill him and take his computer," although Joe did not remember telling McAlpine that Summers wanted to take the computer.
On the evening of July 26, 2000 Summers and his friend, Charles Simpson, went to McAlpines apartment. After McAlpines neighbor, Juliet Watson, opened the door, Summers and Simpson rushed inside. When McAlpine saw Summers, he ran out of the apartment via the balcony, saying "dont hurt me, dont hurt me." Before leaving, Summers rummaged through McAlpines belongings and took a credit card, some drugs, a watch and a check. Watson asked Summers and Simpson why they were doing this. Summers responded that McAlpine had sold heroin to his girlfriend after Summers had told him not to do so. Summers said to Watson, "Tell [McAlpine ] Ill be back." Watson believed Summers was the same person she had seen knocking on McAlpines door on repeated occasions over the past month, and McAlpine had told her he would not let Summers into his apartment.
According to Steve, on the afternoon of July 31, 2000, he and Joe went to McAlpines apartment to obtain money McAlpine owed to Steve and to party. They did not do any drugs, however, because McAlpine did not have any. Steve and Joe went home afterwards and did not return to McAlpines that evening. Summers was not at their home that night.
On the morning of August 1, 2000 Joe took Summers to a court hearing at which Julian was arraigned on manslaughter charges. The trial court denied Julians request for a reduction in bail, and she remained in jail. Joe testified that Summers was withdrawn and depressed after the hearing. That day, Summers told Joe he wanted to "get" McAlpine. After the hearing Joe dropped Summers off at Iezzas house and did not pick him up until about 9:00 p.m.
On August 2 Summers was scheduled to fly to Ohio but could not find his drivers license, which was necessary identification for him to travel by plane. As a result, he traveled by bus to Ohio on August 3. Summerss bus ticket was obtained in a different name.
On August 4, after not being able to reach McAlpine for a few days, Joe and Sutliff broke down the door to McAlpines apartment. Once inside, they found McAlpine dead on the couch with a blanket over his head and blood on the wall and on the couch. Neither Joe nor Sutliff called the police; they were afraid to do so because there were drugs in McAlpines apartment and they feared retaliation for going to the police. Joe told Sutliff that he believed Summers had stabbed or beaten McAlpine. The following day, the manager at McAlpines apartment complex asked her husband to open McAlpines door; when he did, he found McAlpines body. The manager called the police.
An autopsy revealed McAlpine had been dead for several days when found and had died from multiple blunt injuries to the head. A hammer with blood and hairs on it was found in McAlpines apartment. McAlpines computer was missing from his apartment.
McAlpines computer was found at the home of Iezza. She said Summers had given her the computer to satisfy a $65 debt for drugs. Iezza testified Summers had mentioned an altercation with McAlpine. Summers also left a VCR and radio at Iezzas house, both of which were determined to be McAlpines. After Summers went to Ohio, Iezza left him a voicemail message saying the police had come to her home and taken the computer, he should not call or make contact with anyone and should stay away.
Summers was arrested in Ohio. The police found a pair of bloodstained sweatpants in his possession. DNA testing matched the blood on the sweatpants with McAlpines (only one in three trillion unrelated Caucasion individuals would have the same DNA profile). The police also found a collectors coin in Summerss possession, which was determined to be McAlpines, and a bank check with McAlpines name on it.
3. The Defenses Evidence
Summers testified on his own behalf. He admitted going to McAlpines apartment on July 26, taking a credit card, drugs, a watch and a check and telling Watson to warn McAlpine that "hed be back." He also admitted telling his cousins that, if he found out McAlpine had sold his girlfriend heroin, he was going to kill McAlpine. However, he denied killing McAlpine. He also denied taking McAlpines computer, radio and videocassette recorder and said McAlpine had given the collectors coin to his son as a birthday present. Summers also testified that his car had broken down so he was relying on others for transportation around the time McAlpine was believed to have been killed, suggesting he did not have the opportunity to commit the murder.
The defenses theory was that Joe had killed McAlpine. The defense elicited testimony that Joe used drugs regularly and stole from people, including from his mother, to buy drugs. According to Summers, Joe had been to McAlpines house on July 31 — the last day McAlpine was seen alive — to purchase heroin. Contrary to Steves testimony, Summers said that, because McAlpine did not have any drugs, Joe had planned to return to McAlpines apartment later that night to try to buy some. Summers testified that McAlpines computer had been in Joes car, and Summers had given Joe methampetamine in exchange for the computer. Summers said he did not know the computer was McAlpines until he turned it on while in Iezzas house. Summers admitted that, when Iezzas asked him whose computer it was, he said, "`Do you remember the guy I said I was going to kick his ass because I thought he sold heroin to my girlfriend, and she said yes. And I said that is who he is."
4. The Jurys Verdict and Sentencing
The jury found Summers guilty of first degree murder and first degree residential burglary. As to the murder count, the jury found "true" the special allegations that the murder was committed while Summers was engaged in the crime of residential burglary and that, in the commission of the murder, Summers personally used a dangerous and deadly weapon. The trial court sentenced Summers on the murder count to life in prison without the possibility of parole, plus an additional year for the dangerous and deadly weapon finding. Pursuant to section 654, the trial court stayed Summerss sentence on the residential burglary count. Summers filed a timely notice of appeal.
CONTENTIONS
Summers contends the trial court committed reversible error by admitting certain evidence: (1) the DNA report and conclusion that the blood found on Summerss sweatpants matched that of McAlpine; (2) Joes testimony that Summers had mentioned members of a gang hung out at Iezzas home; (3) the entire recorded statement given by Iezza to the police; and (4) Sutliffs testimony that, when he and Joe found McAlpines body, Joe said he thought Summers had killed McAlpine.
DISCUSSION
1. Admission of the DNA Evidence Was Not Error
Jacki Higgins, the analyst who conducted the DNA testing of the blood found on Summerss sweatpants, did not testify. The People instead called Lewis Maddox, a forensic scientist and supervisor of Higgins who had reviewed and approved Higginss work and results, to testify regarding the DNA report. Over Summerss objection, the trial court admitted the report under the business records exception to the hearsay rule. (Evid. Code, § 1271.) Summers contends the DNA report did not constitute a business record and, therefore, admission of the report and its results was error. He argues Higgins should have been required to testify and her failure to do so violated his Sixth Amendment right to confrontation.
Evidence Code section 1271 provides: "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [& para;] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness."
A trial court "has `. . . wide discretion in determining whether sufficient foundation is laid to qualify as a business record. On appeal, exercise of that discretion can be overturned only upon a clear showing of abuse. [Citation.]" (People v. Beeler (1995) 9 Cal.4th 953, 978-979 (Beeler); see also People v. Martinez (2000) 22 Cal.4th 106, 120 [trial court has broad discretion to determine whether record is admissible under exception to hearsay rule].)
The trial court did not abuse its discretion. Evidence Code section 1271, subdivision (c), allows "[t]he custodian or other qualified witness" to identify the document at issue and explain its preparation. Maddox, who worked in the same office as Higgins in a supervisory capacity and was in charge of certifying her results, was certainly an appropriate witness to accomplish that task. He did so by testifying to both the standard operating procedures for DNA testing and his detailed review of Higginss work in this case.
Summers is simply incorrect to suggest that Higgins was the only person who could qualify the DNA report as a business record without violating his Sixth Amendment right to confrontation. As Beeler recognized, "Evidence Code section 1271 itself states no requirement that the person who prepared the business record testify regarding its contents." (Beeler, supra, 9 Cal.4th at p. 979 [physician who performed autopsy did not testify; another physician testified and qualified autopsy report as a business record under Evidence Code section 1271]; see also People v. Champion (1995) 9 Cal.4th 879, 915-916 [fingerprint laboratory employee who discovered and photographed fingerprints did not testify; fingerprint expert testified regarding content of report prepared, which was admitted as a business record under Evidence Code section 1271]; People v. Clark (1992) 3 Cal.4th 41, 158-159 [physician who prepared autopsy report did not testify; another physician testified and qualified report as an official record under Evidence Code section 1280].) Summers had the opportunity to cross-examine Maddox on all parts of the testing process and to question the results. Yet he presented no challenge to the validity of the testing. Rather, he used his cross-examination of Maddox and closing argument to claim he was prevented from challenging the results because Higgins had not testified and the jury, therefore, should not credit them. It was the jurys responsibility to assess the credibility of Maddox and the test results.
Summers also contends the DNA report was inadmissible because the finding that the blood on the sweatpants matched that of McAlpine was improper expert opinion, not a "record of an act, condition or event." Summers did not raise this objection at trial; it therefore has been waived. (Beeler, supra, 9 Cal.4th at p. 980 [objection that report contained improper medical opinion waived when not made at trial along with objection based on Evid. Code, § 1271].)
In Beeler, supra, 9 Cal.4th 953, the Supreme Court found a physicians conclusion in an autopsy report regarding the cause of death qualified as a statement of fact or condition: The doctors "conclusion regarding the cause of death — a bullet wound to the heart — was based on his direct observation and is no different in kind from a diagnosis of a broken femur," an example of an observed fact. (Id. at p. 981.) The cases relied on by Summers to argue DNA test results are not a "record of an act, condition or event," within the meaning of Evidence Code section 1271, in contrast, involve subjective expert opinion reasoned from a consideration of many factors. (See, e.g., People v. Reyes (1974) 12 Cal.3d 486, 502-503 [psychiatric opinion not admissible]; People v. Terrell (1955) 138 Cal.App.2d 35, 57 [physicians opinion that patient had a criminal abortion not admissible].) Because Summers has not preserved this issue for appeal, we need not decide whether the conclusion that the blood on Summerss sweatpants matched that of McAlpine is an "observed fact" similar to the conclusion in the autopsy report in Beeler because, as Maddox testified, they are based on the analysts direct observation and comparison of DNA samples.
2. Admission of Gang-Related Evidence Was Not Prejudicial Error
During direct examination the People asked Joe if Summers hung out with a group of people at Iezzas house. Joe responded that Summers "had mentioned the West Side Locos Gang." Defense counsel objected that any evidence relating to a gang was not relevant. The People replied that the testimony was not intended to suggest Summers was a gang member or McAlpines murder was gang related. Rather, the People argued testimony that Iezza hung out with certain gang members was state-of-mind evidence relevant to both Iezzas and Joes credibility. According to the People, the testimony explained why Iezza was reluctant to testify and why Joe did not call the police immediately upon discovering McAlpines body, especially given the defenses theory that Joe had killed McAlpine. Nonetheless, the People agreed not to pursue that line of questioning.
On appeal Summers argues Joes reference to a gang should have been stricken and the trial courts failure to do so constituted prejudicial error because it allowed the jury to infer Summers was affiliated with a gang. As an initial matter, Summers waived this argument by failing to move to strike the allegedly objectionable testimony. (People v. Lang (1989) 49 Cal.3d 991, 1020 [failure to move to strike evidence may be deemed a waiver of objection to the evidence].) Summers also waived the argument by failing to ask the trial court to give a limiting instruction. (Ibid. [trial court not required to give limiting instruction absent request by defendant]; see also People v. Sully (1991) 53 Cal.3d 1195, 1218 [defendants failure to request limiting instruction renders issue waived on appeal].)
Summerss argument lacks merit in any event. "`[T]he trial court is vested with wide discretion in determining relevance." (People v. Sanders (1995) 11 Cal.4th 475, 512.) "[M]embership in a gang is admissible evidence on a number of issues in a criminal trial[,]" including credibility of prosecution witnesses based on their fear of retaliation. (People v. Harris (1985) 175 Cal.App.3d 944, 957; see People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1587-1588 ["Evidence a witness is afraid to testify is relevant to the credibility of that witness and is therefore admissible. [Citation.] Testimony a witness is fearful of retaliation similarly relates to that witnesss credibility and is also admissible. [Citations.]"].) Joes testimony that members of a gang hung out at Iezzas house was relevant to Iezzas credibility to explain why she was reluctant to testify and gave answers at trial inconsistent with her statement to police. The testimony also was relevant to Joes credibility to explain why he did not call the police after discovering McAlpines body and why he did not initially tell the police where Iezza lived, especially in light of Summerss theory that Joe had committed the murder. Indeed, Joe testified he did not tell the police where Iezza lived because he was afraid of her and her friends and believed they might think he was "ratting them out." Further, the allegedly objectionable testimony was not more prejudicial than probative (Evid. Code, § 352), as it was elicited in response to merely two questions in a lengthy trial and did not even suggest Summers was a gang member.
In addition, there is no possibility Joes mention of the West Side Locos Gang prejudiced Summerss case, as it is not reasonably probable he would have obtained a more favorable result had the testimony been excluded. (People v. Earp (1999) 20 Cal.4th 826, 878 [People v. Watson (1956) 46 Cal.2d 818, 836 standard of prejudice applies to erroneous admission of evidence].) Excluding Joes answers to the two gang-related questions would not have made a difference in the verdict, given the evidence that Summers had repeatedly expressed his desire to kill McAlpine, had come to McAlpines apartment to scare and rob McAlpine, had stated his intention to come back to McAlpines apartment, had in his possession a pair of sweatpants with bloodstains on them that matched McAlpines blood and other items that belonged to McAlpine and had delivered McAlpines computer to Iezza. (See People v. Davis (1996) 42 Cal.App.4th 806, 813 [gang-affiliation testimony not prejudicial when evidence of defendants guilt overwhelming].) Moreover, Summers himself recounted the nature of things at Iezzas house by testifying he told Joe not to come to Iezzas home because "there were people there crystallizing methamphetamine, and it wasnt a good scene and [he] wasnt allowed to have anybody come at that point in time."
3. Admission of the Entirety of Iezzas Recorded Statement Was Not Prejudicial Error
During the direct examination of Iezza, the People played her recorded statement to the police to refresh her recollection about what she had told the police and to show Iezza had made prior inconsistent statements. Defense counsel interrupted the playing of the tape and said he wanted "some kind of stipulation or some admonishment to jurors that police officers say things in interrogating that are not always factual or not being offered for the truth of the matter." The trial court responded, "So youll work out a stipulation to that effect. Okay." Apparently, no such stipulation was pursued. Now, on appeal, Summers contends playing the entire recorded statement constituted prejudicial error because parts of the tape — Iezzas statements that she feared the Mexican mafia would punish her for cooperating with police; references by the police detective that Summers had committed other crimes; and statements by the detective indicating the police believed Summers had killed McAlpine — were objectionable on grounds of hearsay, impermissible bad character references and improper opinion.
At trial Summers did not object to playing of the entirety of the tape or to the individual statements on the tape about which he now complains, nor did he object on the grounds the tape contained improper bad character references and opinion evidence. Accordingly, he has waived those arguments on appeal. (People v. Clark , supra, 3 Cal.4th at pp. 125-126 ["In the absence of a timely and specific objection on the ground sought to be urged on appeal, the trial courts rulings on admissibility of evidence will not be reviewed. [Citations.]"].) To the extent Summers wanted a limiting instruction or stipulation regarding the detectives statements on the tape, he was required to request such an instruction or enter into a stipulation with the People, which the People had agreed to do. (See People v. Macias (1997) 16 Cal.4th 739, 746 [absent request by defendant, trial court has no duty to give limiting instruction]; People v. Lang, supra, 49 Cal.3d at p. 1020.)
In any event, even if portions of the tape were properly subject to objection, playing the entirety of Iezzas recorded statement did not prejudice Summers, as it is not reasonably probable he would have obtained a more favorable result had the challenged portions of the tape been redacted. (See People v. Duarte (2000) 24 Cal.4th 603, 619 [People v. Watson, supra, 46 Cal.2d at p. 836 standard of prejudice applies to error in the admission of hearsay evidence].) Iezzas statements regarding the Mexican mafia expressed her fear that she would be retaliated against when she was in jail for cooperating with the police. She in no way suggested Summers was involved with or had any connection to the Mexican mafia. The "other crimes" to which the detective referred in his questions to Iezza related to the incident — admitted to by Summers — when Summers and his friend went to McAlpines apartment about a week before McAlpine was killed and stole various items. The reference to Summerss previously being in jail was not prejudicial given that Summers admitted he was on probation for possession of methamphetamine and a warrant was out for his arrest for violation of probation. The detectives belief that Summers had killed McAlpine and stolen his computer was evident apart from the tape based on the detectives testimony at trial detailing his investigation of McAlpines murder and simply a statement of the Peoples theory of the case as presented to the jury. And the jury was instructed: "Do not assume to be true any insinuation suggested by a question asked of a witness. A question is not evidence and it must be considered only as it helps you to understand the answer." It is presumed the jury followed this instruction. (People v. Holt (1997) 15 Cal.4th 619, 662; People v. Delgado (1993) 5 Cal.4th 312, 331.)
Because we find that playing Iezzas complete recorded statement could not have prejudiced Summers, Summerss argument that his counsel was ineffective for failing to object to the playing of the entire tape necessarily fails. (People v. Ledesma (1987) 43 Cal.3d 171, 217 ["In addition to showing that counsels performance was deficient, a criminal defendant must also establish prejudice before he can obtain relief on an ineffective-assistance claim"].) Moreover, "rarely will the failure to object establish incompetence of counsel, because the decision whether to raise an objection in inherently tactical. [Citation.]" (People v. Lewis (2001) 25 Cal.4th 610, 678.) Here, defense counsel likely viewed the statements on the tape to which Summers now objects as inconsequential. Indeed, defense counsel even used portions of the tape in making his closing argument to the jury.
4. The Trial Court Did Not Abuse Its Discretion in Admitting Sutliffs Testimony That Joe Thought Summers Had Killed McAlpine
During cross-examination defense counsel questioned Sutliff about his conversation with Joe after the two found McAlpines body. Defense counsel asked if Joe had told him how McAlpine had been killed; Sutliff responded "no." Sutliff later testified in response to defense counsels questioning that Joe had said he thought McAlpine had either been stabbed or beaten. On redirect examination, and over defense counsels hearsay objection, the People elicited further testimony from Sutliff about his conversation with Joe: Sutliff testified Joe had told Sutliff he thought Summers was the one who had stabbed or beaten McAlpine. On appeal Summers argues the trial court committed prejudicial error by overruling defense counsels objection and admitting Sutliffs testimony on redirect examination.
Evidence Code section 356 provides: "Where part of a[] . . . conversation . . . is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; . . . when a detached . . . conversation . . . is . . . given in evidence, any other . . . conversation . . . which is necessary to make it understood may also be given in evidence." "The purpose of this section is to prevent the use of selected aspects of a conversation . . ., so as to create a misleading impression on the subjects addressed." (People v. Arias (1996) 13 Cal.4th 92, 156.) "`In applying Evidence Code section 356 the courts do not draw narrow lines around the exact subject of inquiry. "In the event a statement admitted in evidence constitutes part of a conversation . . ., the opponent is entitled to have placed in evidence all that was said . . . by or to the declarant in the course of such conversation . . ., provided the other statements have some bearing upon, or connection with, the admission or declaration in evidence. . . ." [Citations.] [Citations.]" (People v. Zapien (1993) 4 Cal.4th 929, 959.) We review a trial courts ruling on a hearsay objection for an abuse of discretion and determine whether the ruling falls outside the bounds of reason. (People v. Waidla (2000) 22 Cal.4th 690, 714, 725.)
Under Evidence Code section 356 Sutliffs testimony about the identity of the person Joe thought had stabbed or beaten McAlpine was a proper subject of inquiry to understand the full nature of Joes comments to Sutliff after they discovered McAlpines body. This is especially true given Summerss theory that Joe had killed McAlpine. If only Joes comments about how McAlpine had been killed had been admitted, the jury may have been misled into thinking Joe knew how McAlpines death occurred because he was responsible for the murder — as Summers repeatedly argued. The issue of identity plainly had some bearing on or connection with the issue of how the murder occurred. (People v. Zapien, supra, 4 Cal.4th at p. 959.) Because Summers on cross-examination asked Sutliff repeated questions about his conversation with Joe after they found McAlpines body, Summers cannot complain on appeal that other parts of the conversation were elicited from Sutliff during redirect examination. (People v. Picl (1981) 114 Cal.App.3d 824, 864, fn. 13 [under Evid. Code, § 356, when defendants on cross-examination inquired into subjects of conversations, "prosecution could properly inquire in further detail as to the content of th[ose] conversations relating to the same subjects"], disapproved on another ground in People v. Kimble (1988) 44 Cal.3d 480, 496 & fn. 12; People v. Howard (1958) 166 Cal.App.2d 638, 649-650 [when "defendants counsel . . . first asked for this conversation . . .[,] [defendant] . . . cannot complain that the full conversation was brought out"].) Admission of this testimony did not constitute an abuse of discretion.
Because we find no evidentiary error, we necessarily reject Summerss argument that the cumulative effect of the evidentiary errors deprived him of his right to a fair trial.
DISPOSITION
The judgment is affirmed.
We concur: JOHNSON, J., MU&Ntild;OZ, (AURELIO) J.