Opinion
B182764
12-7-2006
THE PEOPLE, Plaintiff and Respondent, v. ALBERT VICTOR WHITE, Defendant and Appellant.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
Albert Victor White, also known as Algirdas Brazinskas and Algirdas Narutis, appeals from his conviction by jury of second degree murder (Pen. Code, § 187, subd. (a)). The jury also found to be true the allegation that he personally used a deadly and dangerous weapon within the meaning of section 12022, subdivision (b)(1). The trial court sentenced appellant to a state prison term of one year plus 15 years to life. Appellant contends that (1) the trial court violated his right to due process by denying his motion for new trial brought on the ground that the reporters transcript could not be completed and the record could not be settled, (2) the absence of a complete record prevents adequate appellate review, denying him due process, (3) he received ineffective assistance of counsel by virtue of his attorneys failure to call a blood spatter expert, (4) the prosecutors failure to disclose an investigators report and handwritten notes from which it was derived violated the discovery statutes and deprived appellant of due process, (5) the trial court erred and deprived appellant of his rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution by requiring him to testify as a condition precedent to the admission of testimony of two defense witnesses, (6) there is insufficient evidence to support his conviction, and (7) the conviction must be reversed because of cumulative errors.
All further statutory references are to the Penal Code unless otherwise indicated.
On November 2, 2005, appellant filed a petition for writ of habeas corpus, No. B186903, which we consider concurrently with this appeal. A separate order will be filed in that matter.
We affirm.
FACTUAL BACKGROUND
The prosecutions evidence
The crime scene
We review the evidence in accordance with the usual rules on appeal. (See People v. Snow (2003) 30 Cal.4th 43, 66.) On February 5, 2002, shortly after 8:00 p.m., Santa Monica police officers, responded to a 9-1-1 call at 954 21st Street, unit A, in Santa Monica. Officer Ken Semko was the first to locate appellants apartment. He remained outside because of information that guns were present.
When the door to unit A opened, Officer Semko instructed appellant to step outside with his hands up. Appellant complied. He had no blood on him or any apparent injuries and was not crying. In a clear, calm voice, he told Officer Semko, "`Its bad. Its real bad. I killed my dad." Another officer transported appellant to the police station.
When officers entered the apartment, they found an elderly man, determined to be Pranas Brazinskas (Brazinskas), in a small bedroom, slumped over the bed, face down in the center of the bed, knees on the ground. He was not breathing, appeared blue, and his feet were bruising. Brazinskas evidenced trauma to the left side and back of his head and had a "defensive wound" to his left index finger. On the floor, within his reach was a handgun. A red tote bag containing firearms was three or four feet from the body. The apartment was orderly and did not appear as if a struggle had taken place.
There was a large quantity of blood on the bed by Brazinskass head. The blood spatter tended to be in higher locations in the room, including on the wall, just above Brazinskass head. There was also blood on numerous objects in the room, but not on the guns in the tote bag, gun boxes or ammunition, on the gun found next to Brazinskas or on any dumbbell. In the adjoining bathroom, there were blood-stained pillows and bedding in the tub, which had blood smearing, but no blood spatter on it. Blood was not found in any other room. Detectives found several dumbbells in the living room, none in Brazinskass bedroom.
After notice that the crime scene investigation was complete, Donatas Jasiulionis (Donatas), Brazinskass grandson, disposed of the contents of the apartment. When Detective John Henry contacted him to attempt to retrieve one of the dumbbells that was in the apartment, he was told they had been given away.
The red tote bag contained four fully loaded guns, each with a chambered round ready to be fired. The handgun on the floor next to Brazinskas, a Tenfaglio .32-caliber pistol, had one round in the magazine, but no chambered round. Investigators could not find registration information with respect to that gun. None of the other guns were registered to Brazinskas, but a .38-caliber gun was registered to appellant. Detectives found no evidence that any of the guns had been discharged in the apartment, and the gun near Brazinskas had not been recently fired.
Appellant testified in defense that the weapon registered in his name was bought for Brazinskas who believed the KGB was trying to get him.
After the police secured the apartment, a City of Santa Monica paramedic entered. He observed that Brazinskas had a drying, bloody mass on the back of his head, his blood had begun to pool, and his body showed signs of rigor mortis. At 8:25 p.m., he declared Brazinskas dead, and opined that the actual time of death was a couple of hours earlier.
Between 10:00 and 11:00 a.m., on February 5, 2002, John Margravee, appellants neighbor, saw appellant place black garbage bags in the garbage dumpster in the alley. Margravee told Keith Floria, Brazinskass upstairs neighbor, what he had seen. The two men looked into the dumpster, removed and opened a few black garbage bags. Inside one were linens and mens underwear. Margravee saw what appeared to be blood on one of the sheets, and, later that evening, told the police what he had seen.
Detective Gary Steiner and Detective Henry searched for a murder weapon. It was never recovered. Detective Steiner also searched for the bloody clothing in the dumpster and elsewhere. While he found trash bags in the dumpster that contained linens and clothing, it did not appear that the items inside had any blood on them.
While this appears to be Detective Steiners testimony, omissions in the transcript make it impossible to conclude this with certainty.
From the evidence at the scene, Detective Steiner concluded that the crime scene had been staged or altered. The blood spatter was not close enough to the body. The pillows and bedding in the tub were soaked with blood, but there was no spatter there to indicate that the wounds were inflicted there. The handgun near the victim had no blood on it, and appellant had no blood on him. The victims defensive wound suggested he was not holding a gun because the gun did not have blood on it. Further, the crime scene was inconsistent with a struggle having occurred as there were no broken or overturned objects in the room. The spatter placement suggested that the body had been moved from where the wounds were inflicted. Detective Steiner also learned that the kitchen blinds were usually left open, and appellant and Brazinskas were often observed by a neighbor through the window. On the day of the murder, the curtains were drawn.
The forensic investigation
Autopsy
Stephen Scholtz, a deputy medical examiner with the coroners office, performed an autopsy on 77-year-old Brazinskas. He found that Brazinskas was a small man, in fragile health. He was chronically ill and a non-active person, with serious heart disease. Given his physical condition, Scholtz found it unlikely that at the time of his death Brazinskas would have been able to engage in physical activities.
The coroners findings regarding Brazinskass health were corroborated by Brazinskass personal physician, Dr. Stanley Hubbard. Dr. Hubbard confirmed that Brazinskas had serious heart problems and that, in March of 2002, Brazinskas broke his kneecap riding his bicycle, and had a compression fracture in his lower back from November of 2001. He also indicated that Brazinskas had urinary incontinence and was on prescriptive oxygen.
Scholtz found seven laceration wounds to Brazinskass head, with compression fractures to the skull associated with five of the wounds, which he opined were caused by a blunt object. He concluded that Brazinskas was murdered by the use of blunt force trauma to the head. The severity of the wounds indicated that one of them would definitely have rendered Brazinskas unconscious, four others were sufficient to do so, and two were unlikely to have done so.
Gunshot residue tests (GSR)
GSR tests were performed on appellant and on Brazinskas. Gunshot residue was found on both hands of each man. The residue could only have gotten on them by firing a weapon, being in close proximity to the firing of a weapon, handling a weapon that had been fired, or by being transferred from a person who had residue on him. A thorough hand washing would eliminate all or most of the residue.
Fingerprints
No latent prints were obtained from the Tenfaglio handgun found near Brazinskas. No effort was made to obtain fingerprints from the guns magazine.
Blood spatter evidence
On February 25, 2002, Robert Keil, a senior criminalist with the Los Angeles County Sheriffs Department, conducted a blood spatter analysis, allowing him to determine the victims position when the impact causing the spatter occurred. Keil opined that it was impossible for Brazinskas to have been in the position in which he was found when his wounds were incurred.
Blood tests
No blood was visually found on appellants outer clothing by the arresting officer. However, his socks and T-shirt tested positive for human blood. A section of the carpet in Brazinskass room was tested and found positive for human blood. The blood was not typed to determine whose it was. The Tenfaglio handgun was found not to have blood on it.
The defenses evidence
Brazinskass violent history
Appellant, a certified public accountant born in Lithuania, testified on his own behalf, describing numerous incidents reflecting Brazinskass violent nature. These included Brazinskas twice being jailed for theft, embezzlement and resisting arrest in Lithuania, threatening to blow up the Lithuanian courthouse to destroy his court files, assaulting appellants pregnant mother causing the death of the child, beating appellant and his mother, taking a knife to his brother-in law, attacking another brother-in-law with an iron, taking an axe to Brazinskass mother to coerce her to sign papers, holding a knife to appellants neck to hold off Lithuanian police, taking appellant with him in 1970, when he hijacked a plane to escape the Soviet Union, shot and killed a stewardess, and shot both pilots, killing one of them, threatening appellants mother-in-law with a knife and threatening to stab appellant when he tried to stop him, threatening to kill and assaulting appellant on numerous occasions, throwing stones at neighbors children playing and threatening to kill a neighbor and her handyman, resulting in the neighbor having him placed on a 72-hour hold.
Stanislava Jankauskiene, appellants sister, testified that she was present in 1992 when her father pointed a pistol at appellant and told him he was no good and that he could shoot him, lowering the gun only when appellant left the house.
The charged incident
Appellant testified that Brazinskas was physically fit and rode his bicycle until the day he died. Nonetheless, in December 2001, appellant filled out and signed a hospital form for Brazinskas, who could not speak English, stating that, "I can only walk using a stick or crutches." Appellant claimed that oxygen tanks in the apartment were for "rejuvenation."
In the weeks before his death, Brazinskas became increasingly depressed and suicidal, preparing a will and writing suicide notes. Appellant suggested he see a psychiatrist. Brazinskas pulled a knife on appellant, told him he was not crazy, and that he would kill appellant if he talked about it. A few days before the murder, appellant told Brazinskas that he had remarried Virginia, his second wife. Brazinskas became upset and said, "`You betrayed me. . . . I should have killed you a long time ago."
Between 10:00 a.m. and 4:00 p.m., on February 5, 2002, appellant was packing to leave Brazinskas due to concern for his safety. He brought trash bags to the garbage, containing linens and things he no longer needed. There were no bloody clothes.
At approximately 6:00 p.m., when appellant was about to step into the shower Brazinskas called him from his bedroom and angrily said, "`Come here right away. This is an emergency." Appellant went to his fathers room where his father pointed a pistol at him, and said, "`Im going to shoot you, you son of a bitch."
Appellant jumped toward Brazinskas and fell to his hands and knees. Brazinskas leaned over him with the gun. Appellant tried to grab the gun. He felt something heavy on the floor and struck his father with it. Brazinskas would not drop the gun, so appellant repeatedly struck him until he did so. Appellant then dropped the object. Brazinskas turned and fell face down on the pillows on the bed.
Appellant claimed his immediate concern was to help his father, entreating him to "Get up, Get up." He looked down and saw that he had hit Brazinskas with a small dumbbell that was in Brazinskass room. Fearing that his father could not breathe with the pillows under him, appellant put them in the bathtub. He did not immediately call the police or paramedics because he was in shock and suicidal. He ran into the bathroom and wanted to "smash [his] own head with [a dumbbell]." He had all of the water running preparing to do so, but could not. He sat naked in the bathtub with the dumbbell. He thought about using a gun to kill himself, but he never liked guns and did not want to die by a gunshot. Appellants wife called and told him not to kill himself. Appellant called Donatas and asked him to come over. He told him he accidentally killed Brazinskas in self-defense.
Appellant later told a 911 operator that he did not know what he hit Brazinskas with.
At 8:00 p.m., appellant first called 9-1-1 and hung up. His wife called him back and told him to call 9-1-1, and he called again. He told the dispatcher that his father wanted to kill him, and he defended himself, accidentally killing his father. She told him to walk to the door, raise his hands and walk outside, which he did. When he got outside, he told the police officer he had killed his father.
Donatas testified that he went to dinner with Brazinskas four days before his death. Brazinskas walked normally. Donatas never saw his grandfather with an oxygen tank, and he seemed in good physical condition for his age. At 7:30 p.m., Donatas received a call from appellant who told him that Brazinskas tried to kill him, and he defended himself. Donatas went to his apartment.
Donatas arranged for the cremation and burial of Brazinskas and cleaned out his apartment, giving his clothes to charity. Among Brazinskass possessions were many knives. There was also a suicide note written by his grandfather in Lithuanian. When first called on direct examination, Donatas testified that he did not recall seeing dumbbells or what he may have done with them. When later recalled to the stand, Donatas said that when he cleaned out the apartment, there were dumbbells in his grandfathers room, near the bed. Donatas gave most of them away to the Salvation Army and threw out others.
Prosecutions rebuttal evidence
Steven LaRoche, an investigator in the district attorneys office, was present at Donatass interview on August 28, 2005. In the interview, Donatas stated that he had seen dumbbells in his grandfathers apartment, but had never seen appellant or Brazinskas using them. Donatas was shown a document in Lithuanian and said he did not recognize the handwriting.
When Keil was in Brazinskass bedroom, he was looking for any object that could have been used as a weapon. He moved the bed and did not see any dumbbells or other such objects. He opined that Brazinskas could not have been struck where appellant claimed to have struck him because that was inconsistent with the blood spatter evidence. He also indicated that his blood spatter analysis could be duplicated and the results corroborated.
The prosecutor played a tape recording of an interview of appellant by Detective Henry. In it, appellant claimed that "what happened was self-defense," but said he did not remember if he hit Brazinskas. He said that when Brazinskas called him into the bedroom, he was in the kitchen washing dishes.
The defenses surrebuttal
Appellant claimed to have been in shock when he told Detective Henry that he was washing dishes in the kitchen when called into his fathers room.
DISCUSSION
I. Denial of motion for new trial
After the verdict was rendered, appellant requested to substitute new retained counsel for posttrial proceedings. The trial court granted the motion, as well as new counsels request for a 60-day continuance to obtain the trial transcripts and to prepare a motion for new trial.
As the result of illness of the court reporter who took most of the trial testimony, a number of additional continuances over a period of nearly two years were necessary before a final version of the transcript was completed. We briefly review the Herculean efforts involved in doing so.
After protracted efforts to obtain the ill court reporters disks and, when they proved unsatisfactory to complete the transcript, his stenographic notes, the transcript still contained gaping omissions. There were over 200 places in the transcript where either the word "unintelligible" appeared, or a space was left blank. The most critical omissions pertained to Keils blood spatter testimony, and more specifically his cross-examination testimony.
The trial court then gave the attorneys time to confer to see if they, along with prior defense counsel, Mr. Jack Alex, could supply the missing testimony. Keil was also provided a copy of the unfinished transcript to fill in blanks in his testimony. He did so, but modified some of his answers that were transcribed. The trial court would not accept the modifications. Neither Mr. Alex nor his law partner/wife, Ms. Nida Alex, who assisted at this trial, were able to provide any of the missing information, and both believed the blanks filled in by Keil were inaccurate and improved upon his testimony. Ms. Alex also pointed out that Keil was able to provide missing information for his direct-examination, but significantly was unable do so for any of his missing cross-examination.
During the course of the hearings, the trial court indicated its inclination to grant the defense motion. At one hearing it stated: "The fact is, there was a fairly substantial chunk of Dr. Keils testimony that nobody could reconstruct," and Keil was "a central witness refuting a key theory of the defense." At another, it stated: "I cant really get my arms around how much is missing." "I think most people would find this a substantial portion. Its basically the central testimony of Mr. Keil that lays it out."
At one of the later hearings on the issue, the prosecutor argued that the appropriate test was whether the lost portion of the transcript was significant and prevented appellant from making a meaningful motion for a new trial or taking a meaningful appeal. She observed that only two out of 1,082 pages were incomplete. Also, Keil testified not only in the Peoples case-in-chief, but also in rebuttal, which was "a reiteration of what he testified to in [the] case in chief . . . ," and was fully transcribed. Defense counsel argued that the fact that Keil testified twice does not resolve gaps in the initial testimony. The trial court took the matter under submission.
At the final hearing on the subject, the trial court concluded that when Keils rebuttal testimony, which was fully transcribed, was considered with his incompletely transcribed testimony in the Peoples case-in-chief, the substance of all of his testimony was transcribed, and any missing testimony was insubstantial. It denied the motion.
Appellant contends that the trial court erred in denying his motion for a new trial that was made on the grounds that the "trial testimony of the most crucial witness of all, the prosecutions blood spatter expert, could not be completely transcribed and assured of accuracy," thereby depriving him of due process. This contention is meritless.
Section 1181 provides in part: "When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: [¶] . . . [¶] 9. When the right to a phonographic report has not been waived, and when it is not possible to have a phonographic report of the trial transcribed by a stenographic reporter as provided by law or by rule because of the death or disability of a reporter who participated as a stenographic reporter at the trial or because of the loss or destruction, in whole or in substantial part, of the notes of such reporter, the trial court or a judge, thereof, or the reviewing court shall have power to set aside and vacate the judgment, order or decree from which an appeal has been taken or is to be taken and to order a new trial of the action or proceeding." We review the trial courts denial of a motion for a new trial for an abuse of discretion. (People v. Robarge (1953) 41 Cal.2d 628, 633.) In this case, such review is particularly appropriate, as the trial judge was in the best position to evaluate the extent of the lost testimony.
The unavailability of a full reporters transcript does not automatically entitle a defendant to a new trial. Where other methods of reconstructing the trial record are available, the defendant must proceed with those alternatives in order to obtain review. (People v. Jones (1981) 125 Cal.App.3d 298, 300.) It must be shown that it is impossible to secure an adequate substitute for the missing transcript testimony and that there are substantial issues requiring the transcript. "The defects in the record must be of a prejudicial character, not merely inconsequential inaccuracies or omissions." (People v. Moore (1988) 201 Cal.App.3d 51, 56.)
Appellant complains principally of the loss of a portion of Keils cross-examination testimony. Keils blood spatter testimony was important, establishing that Brazinskass body could not have been where it was found when the mortal wounds were inflicted and that appellants version of events was untrue. But appellant does not suggest how a full transcription of Keils testimony would benefit him. He fails to allude to any errors of admission or exclusion of evidence or to anything else in that testimony that would likely have affected the verdict or provided a basis for a motion for new trial.
It does not even appear that appellants trial counsel viewed Keils cross-examination testimony as significantly beneficial, as he failed to even refer to it in closing argument. Had significant evidence been elicited in cross-examination, it would likely have been highlighted in closing. Additionally, Keils conclusion that the crime scene was staged was supported by other substantial evidence, including that there was no disruption in Brazinskass room, the murder weapon was never located, the gun Brazinskas was purportedly holding had no blood on it, bloody pillows were in the bathtub, although the murder did not take place there, and appellant delayed reporting the murder for several hours.
Efforts to complete the transcript were unparalleled. The original court reporters notes were poured over by a group of reporters from the superior court reporters office for months. The attorneys, including former defense counsel, met and reviewed the transcript in an effort to fill in the missing information from their notes and recollections. Keil reviewed the transcript and was able to provide some of his missing answers. The trial judge reviewed the transcript and concluded that it was substantially complete. These efforts, along with appellants failure to even hint at any specific issues he could not assert because of the missing testimony, convince us that that the trial court did not abuse its discretion by denying appellants motion for a new trial.
II. Adequacy of the record on appeal
Appellant contends that the reporters transcript is insufficient to permit adequate appellate review, thereby depriving him of due process. We disagree.
A defendant in a criminal matter is entitled to an appellate record adequate to permit "`meaningful appellate review." (People v. Seaton (2001) 26 Cal.4th 598, 699.) The test of the inadequacy of a transcript is whether in light of all of the circumstances it appears that the lost portion is "`substantial" in that it affects the ability of the reviewing court to conduct meaningful review. (People v. Pinholster (1992) 1 Cal.4th 865, 921.) "If a record can be `prepared in such a manner as to enable the court to pass upon the questions sought to be raised, then there is no rational likelihood or legally cognizable possibility of injustice to the appealing defendant even though a verbatim record certified by the official court reporter cannot be supplied. [Citation.] `Inconsequential inaccuracies or omissions in a record cannot prejudice a party; if in truth there does exist some consequential inaccuracy or omission, the appellant must show what it is and why it is consequential." (People v. Fuentes (1955) 132 Cal.App.2d 484, 487-488; People v. Chessman (1950) 35 Cal.2d 455, 460; People v. Freeman (1994) 8 Cal.4th 450, 509-510 ["`defendant bears the burden of demonstrating that the appellate record is not adequate to permit meaningful appellate review"].)
Appellant has failed to meet his burden. He has not pointed to any issues that cannot be adequately reviewed because of deficiencies in the transcript. The issues he does raise do not appear to be significantly affected by those deficiencies. Some of the issues have nothing to do with the missing blood spatter testimony, such as the claimed discovery violation and the trial courts requirement that appellant testify before it would allow the conditional witnesses testimony. The claim of insufficiency of the evidence is also unlikely to be impacted by the missing cross-examination of Keil, as any impeachment of his opinions would most likely affect his credibility, which we do not generally consider in evaluating whether there is sufficient evidence (People v. Fulcher (2006) 136 Cal.App.4th 41, 52) unless it is inherently improbable (see People v. Huston (1943) 21 Cal.2d 690, 693, disapproved on other grounds in People v. Burton (1961) 55 Cal.2d 328, 350 [conviction affirmed because testimony not "`inherently improbable"]). Moreover, as discussed in part III, post, even if we ignore Keils testimony, there is still sufficient evidence to support the verdict. With respect to the claim that appellant suffered ineffective assistance of counsel by virtue of his attorneys failure to call a blood spatter expert, for the reasons set forth in part III, post, rarely is an ineffective assistance of counsel claim based upon the failure to call a witness or introduce evidence successful. We therefore decline to order a new trial.
Even if we were to grant appellant a new trial, the likelihood that it would yield a different result was diminished by appellants comments at his sentencing hearing. In pro. per. at that time, he orally moved to vacate the judgment, claiming that there was "important evidence that proves that I am actually, factually and legally innocent in this case." Appellant stated that he "did not commit the crime. [¶] . . . [¶] I was threatened by the third party who actually committed the crime. I did not commit a crime, my family was threatened, and my — my relatives, and thats why I was — I was forced and threatened to make admissions." He claimed to have told this to his trial counsel and that his counsel said that there was no easy way to win acquittal and that they should blame Brazinskas. Appellant gave the names of two individuals he claimed committed the murder, stated that they were part of the Russian Mafia, and that they were in federal custody.
If appellant took the stand and asserted self-defense during a retrial, he could be impeached with his statements at the sentencing hearing. If, on retrial, appellant denied that he killed his father, he could be impeached with his trial testimony. Either way, his story would be incredulous. If he did not take the stand on retrial, both his trial testimony (Evid. Code, § 1290 [former testimony hearsay exception]) and his statements at sentencing (Evid. Code, § 1220 [admission of party hearsay exception]; People v. Castille (2005) 129 Cal.App.4th 863, 875-876) would likely be admissible.
III. Ineffective assistance of counsel
`Appellant contends that his counsels failure to seek and retain a blood spatter expert to testify for the defense constituted ineffective assistance of counsel. He argues that the blood spatter expert was the centerpiece of the prosecutions case and that a competent attorney would have made a reasonable investigation and taken measures to counter that evidence, including, obtaining and presenting its own blood spatter expert. This contention is without merit.
To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that counsels representation fell below an objective standard of reasonableness, and, but for counsels errors, there is a reasonable probability that the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn 1.) A reasonable probability "`is a probability sufficient to undermine confidence in the outcome." (People v. Adkins (2002) 103 Cal.App.4th 942, 950.) "`"Reviewing courts defer to counsels reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a `strong presumption that counsels conduct falls within the wide range of reasonable professional assistance." [Citation.] . . . . "Tactical errors are generally not deemed reversible, and counsels decision-making must be evaluated in the context of the available facts." [Citation.] [¶] In the usual case, where counsels trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsels acts or omissions. ([Citation]; see also People v. Fosselman (1983) 33 Cal.3d 572, 581 [on appeal, a conviction will be reversed on the ground of ineffective assistance of counsel "only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission"].) [Citation.]" (People v. Jones (2003) 29 Cal.4th 1229, 1254.) "In some cases, however, the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged. In such circumstances, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal." (People v. Pope (1979) 23 Cal.3d 412, 426, disapproved on other grounds in People v. Berryman, supra, 6 Cal.4th at p. 1081, fn. 10.) Decisions not to call certain witnesses are peculiarly matters of trial tactics, unless the decision results from the unreasonable failure to investigate. (People v. Bolin (1998) 18 Cal.4th 297, 334.)
The record here does not indicate whether a request was made to trial counsel to explain why he did not present a blood spatter expert. It is further silent on whether counsel attempted to obtain such an expert, and, if so, why the expert was not presented. We cannot say that there was no tactical reason for failing to present such testimony. Perhaps defense counsel was unable to locate a blood spatter expert who would render a favorable opinion. Or, perhaps counsel felt that because Keils testimony was so damaging, it was preferable not to focus attention on it by calling a witness to attempt to rebut it. This might explain why defense counsel made no reference to the blood spatter evidence in his closing argument. Defense counsel is not remiss in failing to present scientific or medical testimony that is additional to that given by a prosecution expert where there is no reason to suspect the additional testimony would lead to a different conclusion. (People v. Adkins, supra, 103 Cal.App.4th at p. 952.)
Furthermore, there was no reasonable probability that if a favorable blood spatter expert had been presented the result of trial would have been different. There was compelling evidence other than Keils testimony that the murder scene had been staged, as discussed in part I, ante. There was also impressive evidence that appellants version of events was false. He claimed there was a struggle with Brazinskas, yet the room in which the victim was found had nothing out of place. He claimed that Brazinskas was physically hardy and still rode his bicycle, yet medical and other testimony was that Brazinskas was fragile, in poor health and unable to engage in physical activity. Appellants testimony that he hit his father until he dropped the gun was belied by the coroners testimony that this frail, elderly man received seven blows to the head, five of which were capable of rendering him unconscious. Appellants testimony that he was so distraught after killing Brazinskas that he was going to commit suicide, not by the quick and certain means of a bullet, but by hitting himself with a dumbbell, defies credulity. Appellant testified that just before he killed his father he was about to shower, yet he told police he was in the kitchen washing dishes. It is unlikely that a blood spatter expert would overcome this evidence.
IV. Failure to disclose
Before trial, Donatas was interviewed at the district attorneys office. A Lithuanian interpreter, defense counsel, a deputy district attorney and LaRoche, the district attorney investigator, were present.
At trial, Donatas testified that when he cleaned out his grandfathers apartment after his death, there were dumbbells in his bedroom near his bed. He also testified that a suicide note written in Lithuanian by his grandfather was found. LaRoche was called as a prosecution witness on rebuttal to testify to statements Donatas made when interviewed. The prosecutor was in possession of LaRoches written report of the interview, but had not provided it to defense counsel because it pertained to a defense witness. Defense counsel objected to LaRoche testifying because his name had not been included on the prosecutions witness list, and defense counsel received no discovery regarding the subject of his testimony. A copy of the report was immediately turned over to defense counsel, and the trial court gave him time to read it before LaRoche took the stand.
LaRoche then testified that Donatas stated in his interview that he had seen dumbbells in appellants apartment but had never seen appellant or Brazinskas use them. He also testified that Donatas said he did not recognize the writing on the purported suicide note. LaRoche made notes during the interview that he used in preparing a report.
On recross-examination, defense counsel asked to see copies of LaRoches notes. LaRoche stated that he did not have them with him, but they were available for defense counsel to review. At the conclusion of his rebuttal testimony, LaRoche remained on call for the defense. There is no indication in the record that defense counsel attempted to recall LaRoche or to obtain his notes.
Appellant contends that the failure of the prosecutor to disclose the investigators report and handwritten notes from which the report was prepared violated the discovery statutes and deprived him of due process and his right to present a defense.
Although appellant denominated this contention as only a constitutional challenge to the prosecutors failure to disclose information, his argument makes clear it is both a constitutional and statutory challenge.
A. Constitutional violation
In the trial court, appellants counsel objected to the claimed discovery violations only on the ground that the prosecution did not comply with the discovery statutes. He did not therefore preserve his constitutional claim for appeal. (People v. Kipp (2001) 26 Cal.4th 1100, 1130 ["Defendant claims that the prosecutors misconduct deprived him of his rights under the federal and state Constitutions to due process, equal protection, an impartial jury, and reliable guilt and penalty verdicts. Because he did not object on these grounds in the trial court, the constitutional claims are not preserved for appellate review"].)
Even if this claim had been preserved, we would reject it. In Brady v. Maryland (1963) 373 U.S. 83, the United States Supreme Court set forth the due process standard for the prosecutions obligation to disclose information to the defense. The prosecution must disclose evidence that is favorable to the defendant and material on the issues of guilt or punishment. (See People v. Gutierrez (2003) 112 Cal.App.4th 1463, 1471.) Favorable evidence is evidence that is directly exculpatory or can be used for purposes of impeachment. (United States v. Bagley (1985) 473 U.S. 667, 676.) Brady evidence is "`material" if there is a reasonable probability that if the evidence had been disclosed to the defendant, the result of the proceeding would have been different. (City of Los Angeles v. Superior Court (Brandon) (2002) 29 Cal.4th 1, 7-8 (Brandon).) There is a reasonable probability of a different result if the governments suppression of evidence "`undermines confidence in the outcome of the trial." (Kyles v. Whitley (1995) 514 U.S. 419, 434; In re Williams (1994) 7 Cal.4th 572, 611.) The Brady disclosure duty applies even without a request. (Brandon, supra, at p. 8.)
LaRoches report was neither "favorable" to appellant nor material. It was not favorable because it was not "directly" exculpatory of appellant. It simply supported collateral points; whether there were dumbbells in Brazinskass room and whether he wrote a suicide note. It was also of questionable benefit in impeaching Donatas. The report indicated that he stated in the interview that he had seen dumbbells in appellants apartment, but had never seen appellant or Brazinskas using them. Appellant argues that this suggests that the dumbbells would not have been in Brazinskass room for appellant to grab, impeaching Donatass testimony that he saw dumbbells there. But Brazinskas use or nonuse of the dumbbells is not determinative of where they may have been stored, and the fact that Donatas failed to see Brazinskas using them does not indicate that Brazinskas did not do so. Donatas did not often visit his grandfather and thus may simply not have been there when Brazinskas used the dumbbells. LaRoches report also stated that Donatas said in his interview that he did not recognize the writing in a letter written in a language other than English, which at trial he identified as his grandfathers suicide note. But Donatas was not asked at trial how he knew it was Brazinskass suicide note, the answer to which might have reconciled that testimony with his statement in his interview.
Because LaRoches handwritten notes were never produced or introduced at trial, there is no evidence they contradicted his report or testimony or that they were any more favorable or material than the report.
The report was also not material, as its disclosure was not likely to change the result of the proceeding. It did not irrefutably conflict with Donatass testimony. Moreover, defense counsel was present at Donatass interview. If he believed that the report did not accurately reflect Donatass statements, he could have sought LaRoches available notes and recalled him to the stand. Having failed to do so, it can be inferred that defense counsel knew that the report and LaRoches testimony were accurate.
B. Statutory violation
Section 1054.1 provides: "The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies: [¶] (a) The names and addresses of persons the prosecutor intends to call as witnesses at trial. [¶] . . . [¶] (c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged. [¶] . . . [¶] (e) Any exculpatory evidence. [¶] (f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, . . ." The persons the prosecution "`intends to call [as witnesses] at trial" include those that it "`reasonably anticipates it is likely to call." (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 376, fn. 11.) This includes rebuttal witnesses, who it is anticipated may be called to rebut testimony of the defenses witnesses. (See id. at pp. 375-376; People v. Hammond (1994) 22 Cal.App.4th 1611, 1621.)
Appellant requested discovery of "all investigative reports of the district attorneys office," and "all original notes made by any police officer, or other member of a prosecutorial agency relating to the interview of any witnesses to be called to testify against the defendant." This request encompassed identifying information regarding LaRoche, his written report and his notes. Disclosure of required discovery must be made at least 30 days before trial, unless it only becomes known after that time, in which case it must be disclosed immediately. (§ 1054.7.) The prosecution did not provide LaRoches identifying information, or his report in a timely fashion, or his notes at all. This constituted a discovery violation.
Section 1054.1, subdivisions (a) and (f) required production of LaRoches identifying information and his report. While none of the categories of discovery contained in section 1054.1 expressly refers to notes used in preparing reports, subdivision (f) requires production of "[r]elevant written or recorded statements of witnesses . . . whom the prosecutor intends to call at the trial . . . ." and is broad enough to include such notes. (See Thompson v. Superior Court (1997) 53 Cal.App.4th 480, 484-485, & fn. 3.)
"[A] court may make any order necessary to enforce the [discovery] provisions, . . . including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure." (§ 1054.5, subd. (b).) A witness can be prohibited from testifying only if all other sanctions have been exhausted. (§ 1054.5, subd. (c).) The remedy imposed, if any, is subject to the trial courts discretion, which we review for abuse. (People v. Lamb (2006) 136 Cal.App.4th 575 [40 Cal.Rptr.3d 609, 613-614].) Here, before LaRoche testified, the trial court ordered immediate turnover of his report and gave appellant time to review it. It also ordered LaRoche to remain subject to recall by the defense. We cannot say that it was an abuse of discretion not to order greater sanctions. The violation did not appear to be in bad faith, it related to collateral matters and any prejudice was mitigated by the courts order.
Appellant suffered no prejudice from the prosecutors discovery violation. (Watson v. California (1956) 46 Cal.2d 818, 836.) Before LaRoche testified, defense counsel was provided with his report and given time to review it. Counsel did not claim that he had inadequate time to do so. He made no demand for LaRoches notes, simply asking him if he had them with him and, if not, if they would be available. Defense counsel did not request LaRoche to be ordered to bring the notes or recall him as a witness, although LaRoche was ordered to remain available for recall. Because defense counsel was present at Donatass interview, he presumptively knew what Donatas said and whether LaRoches report accurately characterized it. Appellant likely gained more from the negative inference derived from LaRoche failing to bring his notes to court than he would have gotten from the notes themselves.
V. Conditioning defense witnesses on appellant testifying
Before trial, two defense witnesses from Lithuania, Brazinskass former wife, Stase Beorufiani (Stase), and Kestutis Salavejus (Salavejus) were conditionally examined pursuant to sections 1335 through 1345. Stase testified to two incidents of Brazinskass violence, one occurring before appellant was born, and one approximately 25 years earlier. Salavejus testified to hearing Brazinskas threaten to kill appellant. The prosecutor stated that Salavejus told her that appellant was not present when the threats were made and that he never made appellant aware of the threats. Defense counsel sought to introduce Stases testimony to show that appellant had knowledge of his fathers violent propensities, making appellants resort to self-defense reasonable and Salavejuss testimony to show the decedents intention to kill appellant.
During an Evidence Code section 402 hearing before trial, the prosecutor objected to the anticipated introduction of the conditional testimony on several grounds, including that it was not probative or relevant because appellant was not present when any of the described incidents occurred nor was he informed of them at the time.
The trial court was concerned that appellant was not present when the reported incidents occurred and hence may not have known of them. When it commented that appellant was not present when one of Brazinskass violent acts occurred, defense counsel stated that appellant knew about it and, "He will so testify." Defense counsel argued that while the events occurred years earlier, appellants belief about his father was "an accumulation of things." The trial court concluded that the evidence "could have probative value," the prejudice to the prosecution was small, and that it would have to allow the evidence under Evidence Code section 352. It nonetheless deferred its ruling.
Before the defense began presenting its case, appellant again raised the issue of admissibility of the conditional testimony, arguing that it was not introduced for the truth of the matter asserted but for the reasonableness of appellants fear of his father. The trial court ruled that the evidence could come in for that non-hearsay purpose, but that appellant would have to testify first to establish his awareness of the threats.
Appellant contends that the trial court erred and deprived him of his Fifth Amendment right to due process and privilege against self-incrimination by requiring him to testify before allowing the conditional testimony. He argues that "[d]efense counsel had no choice but to acquiesce to the courts order" and put appellant on the stand before introducing the conditional testimony, thereby coercing a waiver of the privilege against self-incrimination and subjecting him to detrimental impeachment. Respondent contends that appellant waived this claim. We agree with respondent and, in any event, appellants contention lacks merit.
We see nothing in the record indicating that appellant objected on the grounds now asserted, or at all, to the trial courts ruling that he had to testify before the conditional testimony would be allowed. In fact, after the trial court told defense counsel that appellant would have to testify before the conditional testimony would be permitted, it inquired, "Do you have any problem with that?" Defense counsel responded that he did not. The failure to object and assert the grounds waives a claim for appeal. (People v. Kipp, supra, 26 Cal.4th at p. 1130 ["Defendant claims that the prosecutors misconduct deprived him of his rights under the federal and state Constitutions to due process, equal protection, an impartial jury, and reliable guilt and penalty verdicts. Because he did not object on these grounds in the trial court, the constitutional claims are not preserved for appellate review."]; People v. Alvarez (1996) 14 Cal.4th 155, 186 [waiver of constitutional argument based on the confrontation clause where no specific or timely objection on that ground made in trial court]; People v. Armitage (1987) 194 Cal.App.3d 405, 422, fn.11 [waiver of order of proof when no such complaint raised].)
Even if not waived we would reject the claim. The trial court has overall responsibility "to control all proceedings during the trial, . . . with a view to the expeditious and effective ascertainment of the truth regarding the matters involved" (§ 1044) and to regulate the order of proof (Evid. Code, § 320). "It has inherent as well as statutory discretion to control the proceedings to ensure the efficacious administration of justice." (People v. Cox (1991) 53 Cal.3d 618, 700.) It did not abuse that discretion here. It simply required that before appellant could introduce the conditional testimony on the issue of the reasonableness of his belief that Brazinskas was going to kill him, he had to testify to the foundation for its relevance.
This ruling by the trial court did not coerce appellant into waiving his privilege against self-incrimination by testifying. His counsel indicated on more than one occasion that appellant would likely testify. When asked if appellant knew of one of the violent incidents of Brazinskas, defense counsel responded: "Yes. And he will so testify." During trial, when the issue was again addressed, the trial court asked: "[Y]our clients going to testify?" Defense counsel stated: "Yes, your honor." Appellants self-defense claim would have been virtually impossible to present without his testimony.
The cases upon which appellant relies are inapposite. In People v. Cuccia (2002) 97 Cal.App.4th 785 (Cuccia), the trial court was going to deem the defendant to have rested because he had no witness ready to testify. Before doing so, it stated in front of the jury: "`If I recollect, I thought you said you were going to call [defendant]. Have you changed your mind?" (Id. at pp. 790-791.) Defendant made no objection but took the stand and testified. The next day, he called the rest of his witnesses before he resumed the stand. The Court of Appeal concluded that the defendant waived his constitutional privilege against self-incrimination by taking the stand, but that the waiver was coerced as a result of the trial courts threat to consider the defense rested if the defendant did not testify. (Ibid.) It nonetheless found the error harmless. (Id. at p. 792.)
The situation in Cuccia is a far cry from that presented here. Appellant was required to testify before his conditional witnesses in order to establish a foundation for their testimony, not for the mere administrative convenience of avoiding trial delay. Further, appellant planned to testify regardless, and his defense virtually mandated that he do so. In Cuccia the defendant indicated that he probably would not have testified if he had been allowed to decide after hearing the rest of his witnesses. Appellant had no additional pressure to testify placed on him by any comment by the trial judge to the jury as did the defendant in Cuccia. Finally, here, unlike in Cuccia, the trial court did not threaten to deem appellant to have rested if he did not testify.
People v. Lawson (2005) 131 Cal.App.4th 1242 (Lawson) is also distinguishable. There, as a result of a claimed discovery violation, the trial court precluded from testifying defendants eyewitness to a drug bust for which appellant was charged, forcing appellant to testify. The defendant was impeached with his prior convictions. When it was determined after the defendant had already testified that the prosecutor did have notice of the witness, the trial court reversed itself and allowed the witness to testify. Defendant was convicted of possession of cocaine base. (Id. at pp. 1244-1245.) The Court of Appeal agreed with the defendant that the trial court abused its discretion by putting his right against self-incrimination on a collision course with his right to present a defense.
In Lawson, the defendant would not have had to testify had his witness been allowed to do so, as she was present at the drug bust. Here, no one but appellant could have testified about how Brazinskas died. Thus, appellant was not coerced into testifying as was the defendant in Lawson. Also, the testimony of appellants conditional witnesses was merely cumulative of other evidence.
VI. Sufficiency of the evidence
Appellant contends that there is insufficient evidence to sustain his conviction. He argues that "if not sufficient to establish self-defense, the evidence, at most, points to manslaughter," as he testified that the killing occurred in a struggle with his father who was pointing a gun at him. This contention is without merit.
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Bolin, supra, 18 Cal.4th at p. 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless `"upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Bolin, supra, at p. 331.)
Appellant misapplies this standard by focusing on the purported strength of his defense, rather than on the strength of the evidence supporting his conviction. We must focus on the latter. Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Malice may be either express or implied. It is express when the defendant manifests "a deliberate intention unlawfully to take away the life of a fellow creature." (§ 188.) It is implied "`when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (People v. Dellinger (1989) 49 Cal.3d 1212, 1217.) Malice should be implied when "`"the killing proximately resulted from an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life."" (Id. at p. 1218.)
While the evidence here is circumstantial, it amply supports a finding of malice, a deliberate intention or a wanton and malignant heart (§ 188). Malice may be inferred from the circumstances of the murder. (People v. Harmon (1973) 33 Cal.App.3d 308, 311.) Appellant delayed approximately two hours after killing Brazinskas before telephoning 9-1-1. During that time, he staged the crime scene, changing his clothes, disposing or moving the murder weapon, moving his fathers body, and planting a gun near his fathers hand. When police arrived, appellant did not appear to have any injuries. He was not crying and was calm and collected. While claiming he struggled to disarm Brazinskas, the room reflected no sign of a struggle, as nothing was broken or out of place. While claiming that he put his weapon down as soon as his father dropped the gun, appellant struck his elderly and sickly father seven times, with at least five blows capable of rendering his father unconscious. There was also medical evidence that Brazinskas was not physically capable of a strenuous struggle. The kitchen blinds, which were never closed, were closed on the day of the murder. Seven blows to the head of his frail, elderly father alone supports an inference that appellant intended to murder him.
There was some suggestion in the evidence that the delay was longer. Appellants neighbor testified that he saw appellant placing garbage bags containing what appeared to be blood-stained bedding in a dumpster between 10:00 and 11:00 a.m. the morning of the murder, suggesting that the murder occurred at least nine or ten hours before appellant reported it. Investigators located garbage bags in the dumpster but did not see any blood-stained items in them.
Appellant suggests that he had no motivation to kill his father who had no money and was being financially cared for by appellant. But appellants own testimony indicated that Brazinskas was abusive towards him since his childhood, had interfered with and contributed to his two divorces and violently opposed appellants remarriage to his second wife. The evidence is subject to the inference that appellant was tired of this abusive and oppressive conduct and of the financial burden of taking care of a man who acted in that fashion towards him.
VII. Cumulative error
Appellant contends that his conviction should be reversed or reduced in degree because the cumulative effect of multiple errors that occurred deprived him of a fair trial resulting in a miscarriage of justice. He argues that this was a very close case as evidenced by the lengthy jury deliberations and that "the jury gave its first indications of difficulty in evaluating the evidence" when it submitted various questions to the judge to ask witnesses. This contention is without merit.
The trial court utilized the procedure of allowing jurors to submit questions to the court it wished answered by witnesses. The questions were then given to the attorneys to determine whether they would be asked.
"Lengthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice. [Citations.]" (People v. Hill, supra, 17 Cal.4th at p. 844.) "Nevertheless, a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (Ibid.) Because we have concluded that the only error here was a minor discovery violation and that that error was harmless, it follows that there were not multiple errors to cumulate.
DISPOSITION
The judgment is affirmed.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.