Opinion
A147715
09-13-2017
THE PEOPLE, Plaintiff and Respondent, v. PRINCE F. TSETSE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 175144)
Appellant Prince F. Tsetse was tried before a jury and convicted of the first degree murder of Kimberly R. with a special circumstances finding that the murder was committed during the commission of a rape. (Pen. Code, §§ 187, sub. (a), 190.2, subd. (a)(17)(C).) He appeals from the judgment sentencing him to prison for life without the possibility of parole, arguing his trial attorney provided ineffective assistance of counsel by (1) failing to object to inadmissible and prejudicial portions of a recorded telephone conversation he had with his wife while in jail awaiting trial, and (2) failing to object to aspects of the prosecutor's questioning of an expert witness regarding third party DNA found on the victim's hand. Appellant contends the effect of these omissions was cumulatively prejudicial, even if neither would require reversal in and of itself. He additionally argues the trial court misspoke when it orally awarded $500,000 in restitution to the Victim's Compensation Board, rather than the $5,000 requested by that entity. We agree with the final contention but otherwise affirm.
BACKGROUND
On the night of April 4-5, 2014, Kimberly accompanied her roommate Dannie Royer to the Lakeside Lounge near Lake Merritt in Oakland, where they drank, danced and socialized with friends for several hours. Kimberly was happy and upbeat.
Royer and Kimberly returned to his parked car on East 18th Street at approximately 2:00 a.m. They argued because Kimberly wanted to drive and Royer believed they were too intoxicated. Kimberly pushed Royer into the passenger seat and he pushed her back because he knew she wanted to drive the car. They called a cab but when it arrived, Kimberly refused to get in with Royer. Kimberly started banging on the door of Royer's car, and when Royer got out of the cab to stop her, the cab driver drove away. Royer and Kimberly continued to argue loudly, but after that there was no more physical contact between them.
Angry, Kimberly walked to a nearby bus stop and sat down, while Royer (after vomiting from drinking too much) moved his car to a parking place across the street so she would see him after she calmed down. A red Toyota 4Runner pulled up to the bus stop and after an interaction with a man who had a deep voice, Kimberly got inside. Royer went to sleep in his car and did not awaken until about 8:00 a.m. Surveillance cameras from a Walgreens drugstore captured the argument between Kimberly and Royer and her departure with the person inside the red 4Runner, and additionally showed that the 4Runner had driven by more than once before stopping at the bus stop.
At 6:35 a.m., a cyclist on his way to work found Kimberly's body lying face up on the curb in front of a park on Third Avenue near Park Boulevard in Oakland. Her face was swollen and there was blood around her ears. The cyclist thought she might still be breathing, but when Oakland Police Department Officer Julie Yu arrived at the scene at approximately 7:07 a.m., Kimberly was nonresponsive. Officer James Ashford arrived shortly thereafter and the two officer attempted CPR, but Kimberly's jaw was locked and her teeth were clamped down. The officers saw this as a sign that rigor mortis had set in.
Paramedics arrived at 7:12 a.m. and found Kimberly to be a bit cold with rigor mortis in her jaw; they hooked her up to a heart monitor and determined she was dead as of 7:15 a.m. She had "pretty substantial traumatic injuries" to her head and face and one of her long fingernails was broken. One of the paramedics who responded testified that beginning signs of rigor mortis can set in between two to six hours after death, but the onset times vary and cannot be used to determine the time of death.
Dr. Thomas Rogers, a forensic pathologist, performed an autopsy on Kimberly and determined the cause of death to be internal head injuries due to blunt force trauma. She had abrasions on her face, blunt injuries on her arms and left leg, bruises on the top of both hands, scrapes on the back of her left forearm, a bruise on her right elbow, a scrape on her left kneecap, and a possibly chipped tooth. Four small contusions on the surface of her brain were consistent with contrecoup injuries, in which a moving head hits a stationary object causing the brain to be bruised on the side opposite the impact. Kimberly had suffered two fractures at the base of her skull and her brain had some mild swelling. The facial injuries were consistent with punching, kicking or stomping, and Kimberly had bruises and scrapes on her hands, knuckles, leg and kneecap. Dr. Rogers believed Kimberly had been alive when these injuries were inflicted, but he could not determine the time of death. When Kimberly's body was brought in for the autopsy, her shirt was hiked above her breasts and her bra was not properly fastened in the back. A napkin fell out when Dr. Rogers removed her underpants.
Several items had been discovered at the scene where Kimberly's body was found: a purse with a cut strap, a child's sweatshirt, an Apple charger and headphones, and a receipt from a Lowe's appliance store in Elk Grove near Sacramento. Kimberly's iPhone, which she had with her earlier that night, was never found. The Lowe's receipt found at the scene was traced to appellant, who owned a red Toyota 4Runner, and sperm found in Kimberly's vagina and on her underwear matched a sample of appellant's DNA that was part of an existing database. A surveillance video showed a 4Runner being driven near the area where Kimberly's body was found at approximately 3:00 a.m. on the morning of her death.
Investigators went to appellant's Oakland home on April 17, 2014 (12 days after Kimberly's body was found) on the pretext of canvassing the neighborhood to obtain information about the killing. Appellant was given a flyer with Kimberly's photograph and said he did not recognize her; the flyer was later found in a box on his bookcase. Officers arrested appellant the next day and he spoke to them after being read his rights under Miranda v. Arizona (1966) 384 U.S. 436. This time, appellant admitted he had given Kimberly a ride, claiming she had flagged him down and asked for a ride. Appellant said he had not realized at first that Kimberly was bleeding, but she told him she was not feeling well in her head because she had fallen from a moving car. When he dropped her off between 12:30 and 1:00 a.m., "she was not feeling good, like, not able to walk." He offered to call the police or an ambulance, but Kimberly said her car was parked on East 18th Street, so she was "cool." Appellant told police that after he got home he noticed blood on his white shoes and on the rear passenger door of his car, so he cleaned it up. He said he had not touched Kimberly but he did touch her purse when she was getting out of his vehicle.
No blood was detected in appellant's 4Runner.
Helena Wong, a criminalist with the Oakland Police Department and an expert in DNA analysis, examined samples taken from Kimberly's clothes and body and compared them to appellant's DNA. DNA consistent with appellant had been found on Kimberly's underwear, inside her vagina, and in fingernail clippings taken from all the fingers of her left hand. Three samples from fingernail clippings taken from Kimberly's right hand had DNA from both Kimberly and minor donors, but the minor donors did not have full profiles and the DNA was only partially consistent with appellant. Of two additional swabs taken from Kimberly's right hand, both had DNA from Kimberly as the major donor; one had a partial DNA profile of a minor donor consistent with appellant; and the other had a partial profile that had either come from a single minor donor other than appellant or from two minor donors, one of which could have been appellant. The child's sweatshirt that had been found at the scene tested positive for blood and for Kimberly's DNA.
Appellant testified that on the night of Kimberly's death, he went to dinner with his wife Inshirah, who told him she intended to leave him. They picked up their three children and attended a musical performance before returning home after midnight, at which point Inshirah went to sleep and appellant began calling other women looking for company. He drove away from his house around 1:00 or 1:30 a.m., and Kimberly waved at him from a bus stop as he drove by. Appellant made a U-turn and stopped, and Kimberly told him she was working, trying to make money. They agreed he would give her $200 and they drove to a residential neighborhood where they parked and had sex for about 10 to 15 minutes before appellant ejaculated. Kimberly mentioned she had a website and he could find her any time he wanted to meet her. Appellant drove Kimberly to a park on Third Avenue at her request, where she said she was meeting someone. He estimated it was about 3:00 a.m. when he dropped her off. He acknowledged the child's sweatshirt found at the scene belonged to his son and thought Kimberly might have used it to clean herself after sex. Appellant denied harming Kimberly, and testified she did not have any serious injuries when she left his car. She told him she had a problem with a friend that night and the friend had pushed her causing her to fall and scratch her finger.
Appellant testified he was being truthful when he told police he did not recognize the woman on the flyer when they brought it to his house. He had lied when he was interrogated after his arrest, but he did so because he did not want his wife to know he had sex with a prostitute.
During the cross-examination of appellant, the prosecutor played excerpts of recorded telephone conversations he had with his wife Inshirah while in jail awaiting trial. In one of these conversations, Inshirah discussed possible defense strategies that included the possibility of creating reasonable doubt by suggesting that Kimberly was a prostitute. Inshirah told appellant she had checked Kimberly's Facebook page "and she talks about going to different cities to make money and stuff all the time, so that's kind of her lifestyle." She said they were trying to locate Kimberly's pimp because "he's a person of interest as well." Appellant told Inshirah "I don't know, I don't know about that, because uh, um," and she advised him not to say anything he had not already told the police. Appellant responded, "She was just saying she need[ed] to go and uh, she has to go and get her car and somebody's waiting [in] the car. I don't know where was the car, you know."
During another call, in response to Inshirah's observation that it "could be years from now" before they had a deep conversation, appellant said, "It could be. It, it's, that's, that's how everybody's gonna say, 'it could be,' but I don't know. You know, so, if I, if I did something, even if, I didn't kill nobody, so that's what I'm telling you. Stuff happen to people and uh, I feel like I was stressing with you. . . ." The conversation devolved into an argument in which Inshirah told appellant to stop talking and appellant accused her of not loving him. In a different conversation, the couple discussed an apparent sexual liaison between appellant and one of Inshirah's close friends and Inshirah told him he did not have a "special love" for her (Inshirah) anymore. The prosecutor also played the tape recording of a call in which Inshirah suggested appellant cut his hair before meeting his public defender, and one in which appellant told Inshirah, "I don't know if, uh, I talked to this public defender. And the case, they don't have enough evidence and uh, I think I need to look for a lawyer so that they can maybe deport me or something, so that I go to jail in Ghana [where appellant was born] . . . ."
In addition to appellant's own testimony, the defense called two witnesses in an attempt to establish that Kimberly's fatal injuries had been inflicted by someone else after appellant left Kimberly at the park at 3:00 a.m.
Michael Lyles, who lived across the street from the park, testified that he left his home at 5:55 a.m. and noticed a man, whom he assumed was homeless, standing by the park entrance. He also saw a woman come from the side of his house near some garbage cans and walk across the street. Lyles did not notice a body or anything unusual on the sidewalk near the park entrance. It was still dark when Lyles left his house and there were no streetlights.
Dr. Katherine Raven, a forensic pathologist hired by the defense, reviewed the coroner's report and autopsy report in the case and testified that Kimberly's injuries appeared to have been inflicted close to the time of death because there was little swelling on her face and in her brain. Dr. Raven believed the blunt force injuries to Kimberly's head were of a type that most commonly occurred when the head hit a fixed surface and was not typical of injuries caused by an assault; accordingly, they were consistent with a car accident. Dr. Raven would have expected to see rigor mortis in smaller muscles like the finger and jaw about two hours after the death.
The parties stipulated that a lieutenant from the Oakland Police Department had done a Google search of Kimberly's phone number and discovered it was associated with an advertisement for erotic massage on a website called myRedBook. Royer testified that he knew Kimberly worked as a stripper in San Francisco, but he had no knowledge of her working as a prostitute.
DISCUSSION
I. Ineffective Assistance of Counsel
Appellant argues the judgment must be reversed because his trial attorney was ineffective in failing to lodge objections to two categories of evidence offered by the prosecution: (1) the recorded conversations of telephone calls between appellant and his wife Inshirah while appellant was in jail; and (2) testimony by the prosecution's DNA expert regarding the presence of a third party's DNA in samples taken from Kimberly's right hand. We disagree.
A. General Principles
The standard for determining ineffective assistance of counsel is well established. A defendant must demonstrate that (1) the attorney's performance fell below an objective standard of reasonableness based on prevailing professional norms, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694 (Strickland).) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Id. at p. 694.)
We must presume that trial counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions. (People v. Holt (1997) 15 Cal.4th 619, 703.) "On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation." (People v. Mai (2013) 57 Cal.4th 986, 1009.) "Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile." (People v. Price (1991) 1 Cal.4th 324, 387 (Price).)
To evaluate a defendant's claim of ineffective assistance of counsel, we "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . , that course should be followed." (Strickland, supra, 466 U.S. at p. 697.) The burden of proving a claim of ineffective assistance of counsel, including the burden of proving prejudice, is "squarely upon the defendant." (People v. McCoy (2013) 215 Cal.App.4th 1510, 1527; see People v. Montoya (2007) 149 Cal.App.4th 1139, 1146-1147.)
B. Failure to Object to Jail Calls
Appellant acknowledges some parts of the telephone calls between himself and his wife Inshirah were admissible, but argues his trial attorney should have objected to portions of the conversations in which Inshirah accused him of infidelity and of not loving her, chastised him for possibly giving her a sexually transmitted disease, and suggested he had not told her the whole story. Appellant contends the statements were irrelevant and unduly prejudicial under Evidence Code section 352, were inadmissible as hearsay and improper character evidence, and violated his federal right to a fair trial. We reject these claims.
Appellant does not argue the telephone calls were confidential under the marital communications privilege of Evidence Code section 980. (See People v. Von Villas (1992) 11 Cal.App.4th 175, 220-221 [jailhouse conversation between husband and wife not privileged because no reasonable expectation of privacy].)
Even if we assume these portions of the telephone conversations were inadmissible—and we make this assumption only for the sake of argument—appellant has not carried his burden of establishing prejudice, that is, a reasonable probability he would have obtained a better outcome at trial if counsel had successfully objected. The prosecution's theory of the case was that appellant had given a ride to a young woman and beat her to death when she resisted his unwanted sexual advances. Appellant testified to a different scenario: that he picked Kimberly up and paid her to have sex before dropping her off so she could meet someone else, who was presumably the person who killed her. Appellant's own testimony would have led the jury to understand he had been unfaithful to his wife and was not averse to having sex with a prostitute. It was not reasonably probable Inshirah's accusations of conduct closely related to what appellant had already admitted infected the verdict in any way. (See People v. Riccardi (2012) 54 Cal.4th 758, 829, overruled on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216; People v. Arias (1996) 13 Cal.4th 92, 153.)
Appellant also challenges the admission of statements by Inshirah urging him to cut his hair before meeting his attorney and going to court, and her observation it might be "years from now" before they could really talk. Appellant argues these statements amounted to an inadmissible lay opinion he was guilty. (See People v. Torres (1995) 33 Cal.App.4th 37, 46-47.) We do not agree. Inshirah would not be the first family member to suggest that a criminal defendant (or a job applicant) get a haircut in order to make a better impression; such a comment does not reflect a belief in the defendant's guilt, but simply a pragmatic view that people are often unconsciously judged at least in part by their appearance. Her statement that it might be years before the two of them could talk "deeply" (implying appellant might not be released from custody for some time) suggested Inshirah believed the court process could take a long time, which was not an unreasonable assumption regardless of appellant's actual guilt or innocence. Inshirah never suggested that appellant had previously made incriminating statements to her or that she was otherwise privy to information regarding his encounter with Kimberly, and appellant specifically denied killing Kimberly in one of the conversations.
C. Failure to Object to Testimony Regarding DNA Samples from Victim's Hand
We also reject appellant's claim his counsel was ineffective in failing to object to certain testimony by Helena Wong, the prosecution's DNA expert, and to a chart used to illustrate the DNA findings. Some background is in order.
Wong explained that DNA analysis is conducted by examining the 13 regions of the DNA that have variations between individuals, with there being two specific markers of character traits known as alleles in each region. She concluded that three fingernail clippings from Kimberly's right hand contained Kimberly's own DNA as well as DNA from minor donors; however, the minor donors did not have "even close to" full profiles. One of the clippings (right No. 6) contained a partial DNA profile that was consistent with appellant's DNA, but contained only two alleles. Another clipping (right No. 5) contained a partial DNA profile of nine alleles, eight of which were consistent with appellant's DNA and one that was not. On clipping No. 5, three alleles were found at one locus, indicating that there had to have been at least two minor donors who contributed to that DNA sample. A final clipping (right no. 7) contained a partial DNA profile of nine alleles, two of which were not consistent with appellant's DNA profile.
Two swabs were also taken from the palm and outside Kimberly's right hand near the index finger, both of which contained Kimberly's own DNA as the major donor. Swab B had a partial DNA profile consistent with that of appellant. Swab A had a DNA profile of 13 alleles, three of which were not consistent with appellant's profile. Based on the number of alleles and their peak heights, Wong believed there was no "affirmative evidence" there was more than one minor contributor to Swab A, and when Wong prepared her report, she made the assumption there was only one person, labeled "Donor No. 2," who did not match appellant's DNA profile.
Donor No. 2 also did not match Dannie Royer's profile.
Closer to trial, the prosecutor asked Wong to look again at the data and instead of assuming all the minor DNA in Swab A had come from the same person, assume that there had been two minor contributors. Wong testified that if she assumed there were two minor contributors to the DNA in Swab A, it was possible appellant could have been one of those contributors because his DNA matched the minor donor DNA on Swab A as to all but three of the 13 alleles.
During Wong's testimony, the prosecution referred her to People's Exhibit No. 28, which contained charts summarizing Wong's DNA analysis of the various samples. The charts showed the minor alleles consistent with appellant's DNA profile in red, and the minor alleles not consistent with appellant in black. They contained a dash where no alleles were detected at a location, and a question mark where at least one allele was detected but the second allele at that location could not be determined.
Appellant argues his trial attorney should have objected to Wong's testimony relating to the results of Swab A when she assumed there were two minor contributors. He argues this assumption was a hypothetical not supported by the evidence because it was made at the prosecutor's urging and there was no "affirmative evidence" of more than one minor donor. (See People v. Vang (2011) 52 Cal.4th 1038, 1045 [hypothetical questions proper so long as rooted in facts shown by the evidence].) We disagree.
Wong explained on cross-examination "there are multiple ways to determine [the] number of donors. Basic ways are peak heights and the number of alleles. However, sometimes when there's not a lot of DNA, there—basically, all of the conclusions that we make for our interpretation are based upon assumptions we make. . . . [¶] And for single-source clear major donors, the assumptions are clear and easy to make. However, sometimes when there's not a lot of DNA or ambiguity, it is impossible in our lab to make conclusions based upon two assumptions because we don't know necessarily which is the accurate one, so we offer two possibilities." Wong's testimony that appellant could be a minor donor was based on facts " 'within the possible or probable range of [that] evidence' " (People v. Moore (2011) 51 Cal.4th 386, 419), and an objection to the testimony now challenged by appellant would have been futile. (Price, supra, 1 Cal.4th at p. 387.) Similarly, because Exhibit 28 simply memorialized Wong's findings, there was no basis for objecting to that document. (People v. Mills (2010) 48 Cal.4th 158, 207 ["courts have broad discretion to admit demonstrative evidence such as maps, charts, and diagrams to illustrate a witness's testimony"]; People v. Loper (1910) 159 Cal. 6, 21 [noting admissibility of "illustrative charts"].)
Nor is it reasonably probable appellant would have obtained a better result at trial if the challenged portions of Wong's testimony had been excluded. (Strickland, supra, 466 U.S. at p. 694.) It was not disputed that appellant's DNA was found on Kimberly's left hand, nor was such evidence surprising in light of his testimony that they had sex on the night she was killed. Nor was it disputed that a third party's DNA was found in some of the samples. Wong made it clear on cross-examination that although the assumption of two minor donors on Swab A left open the possibility that appellant was one of them, that sample still contained DNA foreign to both appellant and Kimberly, and DNA not matching Kimberly or appellant was also found on fingernail clippings taken from Kimberly's right hand. The evidence now challenged by appellant did not preclude in any way his argument that Kimberly had been killed by someone else whose partial DNA was found on her hands.
D. Cumulative Error
"Having found no errors and certainly no prejudicial ones," we reject appellant's claim of cumulative trial error. (People v. Hovarter (2008) 44 Cal.4th 983, 1030.)
II.
Restitution Award
Appellant notes that at sentencing, the trial court orally ordered him to pay $500,000 to the Victims Compensation Fund, even though the probation report conveyed a request for only $5,000 and both the minute order and abstract of judgment reflect a $5,000 award. The Attorney General acknowledges the reference to $500,000 was a mistake. We agree with the parties that under the circumstances, the minute order and abstract should prevail over the oral pronouncement of judgment notwithstanding the general rule to the contrary. (See People v. Smith (1983) 33 Cal.3d 596, 599.) Accordingly, the erroneous statement by the court in the reporter's transcript is of no effect. (See People v. Cleveland (2004) 32 Cal.4th 704, 768.)
DISPOSITION
The judgment (construed to include a $5,000 restitution award to the Victims Compensation Fund rather than a $500,000 award) is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
SIMONS, ACTING P.J. /s/_________
BRUINIERS, J.