Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION ON REMAND
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1105594) APPEAL from a judgment of the Superior Court of Riverside, Jeffrey J. Prevost, Judge. Reversed and remanded with directions. Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
This case is before us on remand from the California Supreme Court. (People v. Hopson (2017) 3 Cal.5th 424.) In 2013, defendant Ruthetta Lois Hopson was convicted by a jury of the 2011 first degree murder of her housemate, Laverna Brown. (Pen. Code, § 187, subd. (a).) The jury found true the special circumstances that she intentionally murdered Brown while lying in wait (id., § 190.2, subd. (a)(15)) and while engaged in the commission of a robbery or attempted robbery (id., subd. (a)(17)(A)). She was sentenced to life imprisonment without the possibility of parole, and appealed her conviction on the grounds that her rights of confrontation were violated at trial by the admission of evidence about a stationhouse confession made by her boyfriend, Julius Thomas, before he killed himself in jail. (U.S. Const., 6th Amend.) As reported at trial by a detective, Thomas admitted during an interview that Hopson convinced him to participate in the killing at her residence. Hopson also challenged the admission of a detective's testimony about Thomas talking to him and leading detectives to the location of a discarded murder weapon, a machete.
In an unpublished opinion filed June 24, 2015, we affirmed the judgment of conviction. We found no constitutional violation had occurred at trial regarding (1) Hopson's inability to examine Thomas as a witness against her on the confession issues, and (2) the trial court's admission of testimony about how Thomas led them to the machete.
The Supreme Court granted review solely on the issue of whether the admission of testimony about the contents of Thomas's confession had violated Hopson's Sixth Amendment confrontation rights. (Crawford v. Washington (2004) 541 U.S. 36 (Crawford).) On July 3, 2017, the court issued its opinion and reversed, holding (a) the hearsay exception for statements inconsistent with a hearsay statement did not authorize impeachment of statements admitted only for a nonhearsay purpose, and (b) Hopson had not "opened the door" to the prosecution's evidence of Thomas's confession. In conclusion, the Supreme Court observed that since our previous, superseded opinion had not found any constitutional error, we had not addressed the harmfulness of such error. The court deemed it appropriate " 'to remand this matter to the Court of Appeal to permit that court to determine' the question in the first instance." (People v. Mendoza (1998) 18 Cal.4th 1114, 1135.)
Having received the remittitur reversing the judgment, we allowed supplemental briefing limited to the parties' views on whether the identified confrontation clause error was prejudicial in light of other evidence in the case, and whether Hopson is entitled to a new trial. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman); People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 395 (Bryant) [harmless beyond a reasonable doubt standard of Chapman applies to confrontation clause violations].)
After hearing argument, reviewing the record and considering the relevant authorities, we determine the confrontation error was of such prejudicial nature that we are compelled to reverse. (Sullivan v. Louisiana (1993) 508 U.S. 275, 279 (Sullivan) [reviewing court must consider whether the guilty verdict rendered was "surely" unattributable to the identified error].) If, after a thorough examination of the record, the reviewing court "cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error--for example, where the defendant contested the [subject of the constitutional error] and raised evidence sufficient to support a contrary finding--it should not find the error harmless." (Neder v. United States (1999) 527 U.S. 1, 19 (Neder).) Hopson testified at trial that she was surprised upon arriving at the scene to find Thomas in the midst of killing Brown, although she admitted not only to cleaning up afterward but also to purchasing items beforehand that were the same as those used during the incident. Hopson explained her conduct was motivated and controlled by her mixed emotions of love and fear of Thomas. Accordingly, the "primary determination for the jury in this case" was the credibility of Hopson's account of her role in the preparation, execution, and cover up stage of the killing. (Bryant, supra, 60 Cal.4th 335, 396.) The now precluded evidence about Thomas's confession, placing the primary blame on her as the instigator and planner, directly addressed that primary determination required of the jury. Based on the procedural context, including the status of other evidentiary issues raised on appeal, we apply Chapman standards to the record and reverse.
INTRODUCTION: CURRENT PROCEDURAL CONTEXT
In her supplemental brief, Hopson freely admits that the record contains extensive circumstantial or indirect evidence, from the prosecution's case-in-chief and the defense testimony on her own behalf, to demonstrate that she was guilty of "something relating to the death of Laverna Brown." However, she argues that the erroneous admission of the only direct evidence about her level of involvement, Detective Wheeler's rebuttal testimony, caused harmful prejudice to her defense. Absent any proper hearsay exception, that rebuttal set forth "the specificity and powerful emotional impact of the statements which Julius Thomas made to the police before killing himself. Thomas designated Ms. Hopson an active participant in Brown's murder and described her as the instigator and planner of the entire robbery-murder plot."
In response, the People simply point to overwhelming physical and circumstantial evidence against Hopson, and conclude that her testimony "was so inherently incredible that, even under the Chapman standard, there was no prejudice from the confrontation clause violation." We are accordingly urged to affirm this murder conviction.
In our prior opinion, and as echoed by the Supreme Court, we commented that during her own testimony, Hopson brought in multiple layers of hearsay. In general, "evidentiary rules were very loosely applied at this trial and few restrictions were observed by either side, or by the trial court." (Hopson, supra, 3 Cal.5th at p. 426.) That observation still stands and gives contour to the prejudice analysis we must conduct. Because of the limited nature of our task upon remand, we do not set forth an extensive factual statement about the circumstances surrounding the killing and its aftermath, except as necessary to discuss prejudice. The high court majority and dissenting opinions provide other relevant background. (Hopson, supra, 3 Cal.5th at pp. 426-431; pp. 444-456 [dis. opn. of Cantil-Sakauye, C.J.].)
We are required, however, to clarify the scope of the evidence that may properly be considered in deciding the prejudice question before us. The Supreme Court's granting of a petition for review "automatically vacates the opinion of the Court of Appeal." (People v. Rogers (1978) 21 Cal.3d 542, 547.) The grant of review in this case solely addressed the confrontation issues, and the ensuing Supreme Court opinion did not address our discussion of Hopson's additional claim of error, regarding Detective Cobb's testimony that described how Thomas led detectives to the location of the machete. (See Leone v. Medical Board (2000) 22 Cal.4th 660, 670 [sending back to Court of Appeal those claims outside the issues on which review was granted, for resolution on remand]; People v. Stanley (1995) 10 Cal.4th 764, 786-787 [law of the case doctrine requires that when appellate decision states a principle or rule of law necessary to the decision, "that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal"].) The parties' supplemental briefing has not discussed that aspect of the case, as part of the prejudice analysis. We conclude that Hopson's alternative claims on the machete testimony, as they were raised before the Supreme Court took its action, remain relevant to the prejudice analysis. We accordingly reiterate and adapt, as follows, our previous discussion of this issue.
Our previous, superseded opinion was not published and we need not address recent rule changes concerning the citable status of published opinions. (Cal. Rules of Court, rules 8.1105, 8.1115; all rule references are to these rules.) A comment to current rule 8.1115(e)(2) states, "The fact that a Supreme Court decision does not discuss an issue addressed in the prior Court of Appeal decision does not constitute an expression of the Supreme Court's opinion concerning the correctness of the result of the decision on that issue or of any law stated in the Court of Appeal decision with respect to any such issue."
TESTIMONY ON LOCATION OF THE MACHETE; ANALYSIS
Detective Cobb was allowed to testify about how Thomas led detectives to the location of one of the weapons used in the killing, a machete that he later threw over a canal fence. Hopson has argued that the trial court erred in overruling her objections that such out-of-court actions by Thomas, demonstrating where the machete was to be found, were actually "indirect" statements that should not have been admitted for their truth. This testimony was presented against a backdrop of other evidence showing that both Thomas and Hopson had knowledge that Brown had travel plans and would likely be obtaining travel money before leaving town for a few days.
Before trial, the court limited the scope of Detective Cobb's testimony to allow him to describe the search for the machete, but not to reference Hopson or implicate her as a participant. When she objected to the admission of Thomas's statements for any purpose other than to show how the machete was found, the trial court said that if the prosecutor wanted to introduce Thomas's statements for impeachment purposes, the matter would be addressed at a sidebar. Detective Cobb accordingly testified in the prosecution's case-in-chief about how he was able to find the machete. Detective Wheeler also briefly testified that he was with Cobb when Thomas described its location. The prosecutor did not play any recording of Thomas's statements for the jury.
Hopson has argued that her rights under the confrontation clause were violated in this respect, and that the machete was erroneously admitted into evidence, on the grounds that officers would not have found the weapon if not for Thomas's out-of-court statements to them. She characterized her claim as follows: "Whether evidence of a suspect's implied statements to the police can constitute evidence of a testimonial statement which cannot be used at trial against a criminal defendant in the absence of an opportunity by that defendant to cross-examine the person who made those implied statements."
We reject Hopson's characterization of Thomas's conduct, in leading officers to the weapon, as his "implied statements" about where it could be found. In this instance, his statements and conduct were not offered for their truth. " 'An implied statement may be inferred from an express statement whenever it is reasonable to conclude: (1) that declarant in fact intended to make such implied statement, or (2) that a recipient of declarant's express statement would reasonably believe that declarant intended by his express statement to make the implied statement.' " (People v. Garcia (2008) 168 Cal.App.4th 261, 289; italics omitted.) Thomas's ability to lead detectives to the location of the machete was offered not to show the truth that he knew where it was, but to show how the investigation proceeded. Thus, in People v. Livingston (2012) 53 Cal.4th 1145, 1162 (Livingston), the court identified and applied this " ' "important category of nonhearsay evidence—evidence of a declarant's statement that is offered to prove that the statement imparted certain information to the hearer and that the hearer, believing such information to be true, acted in conformity with that belief. The statement is not hearsay, since it is the hearer's reaction to the statement that is the relevant fact sought to be proved, not the truth of the matter asserted in the statement.
Hopson relied on cases such as United States v. Meises (1st Cir. 2011) 645 F.3d 5, for the concept that a prosecutor cannot evade the limitations of the confrontation clause "by weaving an unavailable declarant's statements into another witness's testimony by implication." (Id. at p. 22.) In that case, the prosecutor asked an officer whether a nontestifying codefendant had "said anything during his interview that changed the targets of the investigation and prompted the defendants' arrests." (Id. at p. 21.) When the officer said yes, the court found that such testimony "plainly told the jurors" that the codefendant said the defendant was guilty. (Ibid.) This was an indirect or backdoor way of bringing in the truth of those statements of an accusation of guilt. (Id. at pp. 22-23.)
In this case, Detective Cobb testified about going for a ride with Thomas while Thomas showed detectives where to find things involved in the offense, in which he was now admitting a role. At that point, the assignment of guilt between Thomas or Hopson was not being discussed. The evidence was not offered to show that Thomas was speaking the truth about how the weapon got there. (United States v. Meises, supra, 645 F.3d at p. 21.)
In Ocampo v. Vail (9th Cir. 2011) 649 F.3d 1098, the Court of Appeals rejected a prosecutor's attempt to bring in a description of the "critical substance" of testimonial statements inculpating the defendant, even though those statements were not introduced verbatim. (Id. at p. 1113.) The court said it was impermissible for a detective to "digest" or "outline" or "summarize" out-of-court statements and then present them for their truth, such as when telling the jury that a nontestifying witness had identified the defendant as present at the shooting. (Id. at p. 1109.) The defendant had said he was not present. The prosecutor then argued the nontestifying witness had corroborated the statements of a testifying witness, who had identified the defendant as the perpetrator. (Id. at pp. 1111-1112.) This violated confrontation principles. (Id. at p. 1113; see Minnesota v. Swaney (Minn. 2010) 787 N.W.2d 541, 552-555 [agent's questioning of defendant's wife about items photographed at a crime scene, where items had been discussed out of court by defendant and wife in a recorded conversation, could not properly be used to imply that wife's statements were testimonial and established that defendant was at the scene].)
In Hopson's case, Cobb's account of the interview with Thomas was admitted into evidence not for the truth that Thomas put the weapon there, but to show the course of the investigation. In People v. Mitchell (2005) 131 Cal.App.4th 1210, 1224-1225 (Mitchell), portions of a police dispatch tape were deemed to be nontestimonial evidence that was not subject to Crawford restrictions, because they were introduced for purposes other than establishing the truth of the matter asserted. In Mitchell, much of the dispatch tape was not offered by the prosecution to establish the truth of the matter asserted in the recorded statements, but "to show how the pursuit unfolded and to describe the police officers' actions." (Mitchell, supra, at p. 1224.) Moreover, the voices heard on the dispatch tape were mainly those of those officers who testified at trial and were subject to cross-examination. "Accordingly, admission of their statements on the tape did not violate the confrontation clause or the principles announced in Crawford." (Mitchell, supra, at p. 1224.) The truth of the matters discussed on the tape "was immaterial to any contested matter in the trial." (Ibid.) Also in Mitchell, any confrontation clause error in admission of the dispatch tape was harmless. (Id. at pp. 1224-1225.)
In Livingston, supra, 53 Cal.4th 1145, the nonhearsay purpose of the out-of-court statement was to explain certain conduct (why rival gang members ran across the street away from the defendant's car, which had someone in it shooting at them). It was relevant to an issue in the case, the location of the defendant and his easily recognizable car at the time of the shooting offense, as that affected the actions of the rival gang member who spoke. (Id. at p. 1161.) Introduction of that out-of-court statement was not done in violation of confrontation clause restrictions, because it was brought in for nonhearsay purposes, to show a response. (Id. at pp. 1162-1164; see People v. Scalzi (1981) 126 Cal.App.3d 901, 907; People v. Samuels (2005) 36 Cal.4th 96, 122 [out-of-court statement properly admitted to explain witness's subsequent actions]; People v. Cage (2007) 40 Cal.4th 965, 975, fn. 6.)
The interview with Thomas, as he led detectives to the place where the weapon was found, was not brought before the jury as a hearsay statement that was being offered for the truth of the matter asserted. (Evid. Code, § 1200, subd. (a).) It was not a contested matter at trial whether Thomas knew the location of the weapon or if he was telling the truth about it. (See Mitchell, supra, 131 Cal.App.4th 1210, 1224-1225.) Similarly, in United States v. Wright (8th Cir. 2014) 739 F.3d 1160, 1170-1171, the testimony of one investigating officer about being told by another, "Come here[, w]e've got something," was properly offered to show its effect on the listening officer, that it caused him to enter a room, and it was not improperly offered or admitted to show whether he found anything there. (See United States v. Mitchell (9th Cir. 2007) 502 F.3d 931, 966 [testimony by police officer, about information from a witness regarding a parked car, was offered as a basis for police action, not for its truth].)
Cobb's testimony about the driving portion of the investigation was offered to show that statements from Thomas had an effect upon him as an investigator. (United States v. Dupree (2d Cir. 2013) 706 F.3d 131, 136.) The officers acted based on information they received from Thomas, that enabled them to locate the machete. These events were brought in for nonhearsay purposes that did not violate Hopson's confrontation clause rights, and there was no evidentiary error in this respect.
ADDITIONAL EVIDENCE IN RECORD
A. Evidence from Case-in-Chief and Defense
Because of the confrontation error that occurred during the rebuttal stage of this trial, our focus must be upon outlining the nature and extent of the evidence that had already been provided, before that crucial part of the proceedings. As described above, evidence was presented about how Thomas led detectives to the machete. Both the prosecutor's case-in-chief, and Hopson's testimony and cross-examination, included evidence about the occurrences that night, all geared toward showing whether she played a dominant or coerced role in planning, executing and covering up the killing. A great deal of evidence relevant to motive and opportunity was presented that (a) Hopson needed money, (b) Thomas's cell phone was tracked that night and showed activity near her house and where the body was left in Brown's van, (c) there was circumstantial evidence suggesting that Hopson helped Thomas get into her house when Brown was available and supplied the machete for him to use, (d) before Hopson learned Thomas had confessed, she told police he was her loving teddy bear (rather than her enemy), (e) she supplied other gear for the killing and the garage cleanup, and (f) she admitted to waiting 14 or 15 months after Thomas killed himself to disclose to police that he had allegedly threatened her and her son. (See Hopson, supra, 3 Cal.5th at pp. 466-469 [dis. opn. of Cantil-Sakauye, C. J.].)
During the prosecutor's case-in-chief, Detective Wheeler testified about one letter from Hopson that was found in Thomas's cell after he killed himself on December 15, 2011. Five days before, she wrote him that she still loved him, but since she had not heard back from him, she could "only assume" that he did not forgive her. She said she was sorry for hurting him, but she did not blame him for being angry, and she hated herself for her "weakness," fear, and doubt.
Hopson took the stand in her defense, testifying that Thomas had forced her to participate in the robbery and cover-up, by repeatedly threatening her and her adult son. She described the letters she exchanged with Thomas while they were both in jail, explaining that she wanted to stay on good terms so he would not have her son harmed. Although she sent him a letter breaking up with him, she later changed her mind. Over their three-year intimate relationship, Hopson had never met Thomas's relatives or gone to his house, and she believed he was divorced. At some point during that time, he told her he had killed someone and beaten someone else, but she loved him and continued the relationship, partly out of fear that he would harm her or her son if they broke up.
The majority opinion in Hopson, supra, 3 Cal.5th at page 430, footnote 2, states that the letters found in the jail cells were not relevant to the confrontation issues before that court. However, Hopson's testimony described the sequence and content of the letters, and on remand, they are relevant to the prejudice issue, even disregarding the rebuttal evidence about the contents of Thomas's confession. (See pt. IV.B, post.)
Hopson testified Thomas had met Brown a few times at the house. Thomas's occupation as a bus driver led him to express concerns to Hopson about getting germs from the public, so she brought him some gloves and protective booties. At Thomas's request, Hopson purchased the large size sweatpants outfit (that he later wore during the killing) as a gift for his sister, who planned to visit soon.
On the night that Brown was slain, Hopson was expecting Thomas to visit her as usual. She told the jury that when she responded to Thomas's telephone call by meeting him in the garage at her house, she opened the door and saw what looked like a scene from a horror movie, as Brown lay bloody and dying. Thomas was standing over the body, wearing the sweatpants, gloves and booties she had given him, and telling Hopson that when he tried to rob Brown of her travel money, she recognized him, so he killed her with the machete and the butcher knife. Hopson testified that Thomas threatened to kill her and her son if she did not help him, so she helped clean up the blood and hide Brown's body in the van. At Thomas's direction, Hopson drove the van to a parking lot to leave it, so it would look like Brown was away from home, as planned. A few hours later, Hopson told her landlady she did not know what happened to the machete that had been in the garage, or where a missing kitchen knife was, but she did explain that the sidewalk was wet where she had just cleaned up some spilled Coca Cola.
During cross-examination, Hopson agreed that when she was interviewed, she told detectives that Thomas was her "snuggly teddy bear," and never said he had threatened her. She remembered telling them about a "weird guy" she saw walking around the neighborhood that week, but was confused if she said his hair was blond or black. She knew that Brown made good money as a registered nurse, and assumed she would be taking money with her on her planned trip. Hopson described her preparations for moving into her new apartment the day after Brown was killed, by applying for payday loans and shopping. The prosecutor asked her why she had waited 15 months after Thomas died to accuse him of threatening her, and when she said she did not know how to tell the truth about it, he said he believed her when he heard her say she did not know how to tell the truth, because of her lies that night to her landlady and to a coworker.
During Hopson's cross-examination, her trial attorney raised objections under Crawford, supra, 541 U.S. 36, to the admission of Thomas's confession for impeachment purposes of the hearsay that Hopson attributed to him. (Hopson, supra, 3 Cal.5th 424, 429.) The objections were unsuccessful (then).
In her redirect testimony, Hopson said she heard in jail that Thomas had made a statement that accused her of planning Brown's robbery and killing. She said he was wrong in telling detectives that she told him Brown would have some travel money and they should rob her. She denied telling Thomas to hide in the garage so she could bring Brown out there. Rather, she only cleaned up at his direction and helped get rid of the body because she was afraid of him. She said he was mistaken in telling detectives that she had no problem in eating the food they ordered at McDonald's, after Brown was dead.
B. Summary of Rebuttal Testimony and Exhibits
During the rebuttal case, the trial court allowed Detective Wheeler to testify about Thomas's confession, in which he tearfully described both his role and that of Hopson in planning and carrying out the killing. We are bound by the Supreme Court's majority opinion that Hopson did not effectively waive her confrontation rights in this respect, nor otherwise "give the prosecution carte blanche to introduce her accomplice's full, unconfronted extrajudicial confession—for its truth—by creating an incomplete and misleading impression that the statements she attributed to him were the only statements Thomas had made about the crime." (Hopson, supra, 3 Cal.5th at p. 443.)
Detective Wheeler explained to the jury the circumstances of the verbal statements Thomas made a few days after his arrest, while being interviewed. At that point, Thomas was weeping and remorseful, telling detectives that it was Hopson who planned the robbery-murder and persuaded him to participate in it, on the grounds that Brown would be an "easy target." As arranged, Hopson brought Brown out to the garage, where Thomas hit her with the machete. Hopson held a bloody knife in her hand as she leaned over Brown's body. Afterward, Hopson discouraged Thomas from calling the police, said they should get rid of the body, and acted as the leader in cleaning up the scene and hiding the evidence. Hopson told him Coca Cola could be used to clean up and hide blood residue, as she had learned on television, so they did that. Detective Wheeler said he thought Thomas was speaking honestly to them, when telling the detectives he now wanted to make it right for Brown's family, for them to know what happened.
As another rebuttal witness, the prosecutor called Thomas's fiancée, Veronica Franklin. She never heard him complain about the dirty condition of the buses he drove, and said she did not know he had a girlfriend that he visited while she was at work. She and Thomas had a four-year-old daughter together, and she did not know him to be a violent person and did not want his memory tarnished.
In other rebuttal evidence, the prosecutor's investigator explained he looked for Thomas's criminal history, but found no past convictions or arrests. A transcript was admitted of Hopson's jail telephone conversation that occurred a few days after her arrest, with her son and her best friend. Hopson told her friend at the time that she had just run into Thomas, who told her to be strong and said that they would "get through it" if they prayed. Hopson wanted to write him a letter and asked for his jail address. She told her son that Thomas said "Hi."
During rebuttal, several letters between Hopson and Thomas were admitted into evidence, after an investigator described finding them in Hopson's cell and in Thomas's cell after he died, and then read them to the jury. In one letter, Hopson asked Thomas about information that her attorney had just read to her, that he had made a statement on November 1, 2011 about the case and their roles in it. Among other things, Hopson wrote, "The things that were said in the statement shocked me, and I could not believe you would say those things about me. It caused me to be confused and have doubts, because you said you would never hurt me, and what she said you said cut me to the core of my being. . . . [¶] . . . Please don't leave me or forsake me. I promise you with all that I am that I have never betrayed you. . . . My love has never changed and never will, even if yours has."
Thomas wrote to Hopson sometime after Thanksgiving, denying that he made the statement she was talking about. His letter told her, "But now you say I have forsaken you. Okay, that's fine. You want to talk about lives destroyed. You're a hypocrite. It's funny how all the same things you said I have said, they were said to me as well. But that does not matter now. You act as though you're the only one here. Um, hello, I am too. [¶] Well, you have said enough. Don't write to me, because at this point I don't really care. It's like whatever, you always believed what you heard. It's your naiveness [sic] that's playing with you again. [¶] Goodbye. Like you said, you won't write no more. That's fine. You did this, not me. . . . Don't waste my time no more. That's how you want to be. Well, have a nice life."
In Hopson's cell, investigators found a post-it note with Thomas's address on it, crossed out. Underneath, she wrote, "My love is gone and I pray he is in heaven with Jesus. 7/6/81-12/16/11."
In response to the investigator's account of the letter Thomas wrote to Hopson (saying "you did this, not me"), Hopson testified on further redirect examination that Thomas must have been referring to an earlier letter in which she broke up with him. She did not interpret his letter as accusing her of killing Brown.
Following instruction and closing argument, the matter was sent to the jury. Hopson was convicted as charged.
EVALUATION OF PREJUDICIAL EFFECT: TESTIMONY AND ARGUMENT
At the outset, we reject the suggestion in Hopson's supplemental brief that the Supreme Court's opinion forecasted the proper conclusion we should reach in applying the Chapman standards. (Hopson, supra, 3 Cal.5th at p. 443.) The Supreme Court's reversal left it to us to decide if there was prejudice, " 'in the first instance.' " (Id. at pp. 443-444.) Taking it as established that Hopson did not waive her right of confrontation concerning Thomas's police confession, we next evaluate the whole record in that light. (People v. Aranda (2012) 55 Cal.4th 342, 367-368 [Chapman analysis examines the "whole record" to evaluate an error's effect on the jury's verdict].)
A. Applicable Standards
Erroneous evidentiary rulings that allow violation of a defendant's right to confront witnesses are subject to harmless error analysis under Chapman and following cases. (Neder, supra, 527 U.S. 1, 18-19; Delaware v. Van Arsdall (1986) 475 U.S. 673, 681 ["[A]n otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt."].) "Such errors . . . infringe upon the jury's factfinding role and affect the jury's deliberative process in ways that are, strictly speaking, not readily calculable." (Neder, supra, at p. 18.)
"We have recognized that 'most constitutional errors can be harmless.' " (Neder, supra, 527 U.S. 1, 8, interpreting Arizona v. Fulminante (1991) 499 U.S. 279, 306 [erroneous admission of evidence in violation of the Fifth Amendment's guarantee against self-incrimination].) "Indeed, we have found an error to be 'structural,' and thus subject to automatic reversal, only in a 'very limited class of cases.' " (Neder, supra, at p. 8.) "[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis." (Rose v. Clark (1986) 478 U.S. 570, 579.)
As explained in People v. Pearson (2013) 56 Cal.4th 393, 463, " 'The beyond-a-reasonable-doubt standard of Chapman "requir[es] the beneficiary of a [federal] constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman, supra, 386 U.S. at p. 24.) "To say that an error did not contribute to the ensuing verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record." [Citation.] Thus, the focus is on what the jury actually decided and whether the error might have tainted its decision.' " (Pearson, supra, 56 Cal.4th 393, 463, quoting from People v. Neal (2003) 31 Cal.4th 63, 86; Sullivan, supra, 508 U.S. 275, 279.)
In Sullivan, the Supreme Court held that giving a constitutionally deficient reasonable doubt instruction cannot be characterized as harmless error. However, its discussion of Chapman aided in the development of the Chapman standard. (Neder, supra, 527 U.S. 1, 10-11; Sullivan, supra, 508 U.S. 275 [defendant's Fifth and Sixth Amendment rights to have the charged offense proved beyond a reasonable doubt required reversal].)
According to Sullivan, supra, 508 U.S. 275, in applying Chapman standards, the reviewing court must consider "not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand. . . . Harmless-error review looks, we have said, to the basis on which 'the jury actually rested its verdict.' [Citation.] The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered -- no matter how inescapable the findings to support that verdict might be -- would violate the jury-trial guarantee." (Sullivan, supra, at p. 279; italics omitted and added.)
The court in Neder, supra, 527 U.S. 1, 15-16, clarified a " 'whole record' " approach of federal harmless error analysis under Chapman. The Supreme Court ruled that on the record before it, the trial court's failure to instruct on an element of the charged offense was harmless, because the evidence about the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the instructional error. (Neder, supra, at pp. 18-20.) The court applied the analysis of asking, "Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error? To set a barrier so high that it could never be surmounted would justify the very criticism that spawned the harmless-error doctrine in the first place: 'Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it.' R. Traynor, The Riddle of Harmless Error 50 (1970)." (Neder, supra, at p. 18.)
In Neder, supra, 527 U.S. 1, the high court concluded that since the crucial omitted element was supported by uncontroverted evidence, it did not make any difference that the instruction was incorrect. It reasoned that there should be "an appropriate balance between 'society's interest in punishing the guilty [and] the method by which decisions of guilt are made.' [Citation.] The harmless-error doctrine, we have said, 'recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence, . . . and promotes public respect for the criminal process by focusing on the underlying fairness of the trial.' [Citation.] At the same time, we have recognized that trial by jury in serious criminal cases ' "was designed to guard against a spirit of oppression and tyranny on the part of rulers," and "was from very early times insisted on by our ancestors in the parent country, as the great bulwark of their civil and political liberties." ' [Citation.] In a case such as this one, where a defendant did not, and apparently could not, bring forth facts contesting the omitted element, answering the question whether the jury verdict would have been the same absent the error does not fundamentally undermine the purposes of the jury trial guarantee." (Id. at pp. 18-19; italics added.)
As further explained by a text, "The evidence in Neder 'incontrovertibly establishe[d]' the omitted element of materiality. Indeed, the Court observed that the evidence on this point was 'so overwhelming' that Neder had never argued his statements could be found immaterial." (LaFave, 7 Criminal Procedure (4th ed. 2015) § 27.6(e), pp. 169-170; also citing to Coy v. Iowa (1988) 487 U.S. 1012, 1021-1022, as "noting that an 'assessment of harmlessness [of the denial of face-to-face confrontation] cannot include consideration of whether the witness' testimony would have been unchanged, or the jury's assessment unaltered, had there been confrontation; such an inquiry would obviously involve pure speculation, and harmlessness must therefore be determined on the basis of the remaining evidence.' ")
The court in Neder cautioned, "A reviewing court making this harmless-error inquiry does not, as Justice Traynor put it, 'become in effect a second jury to determine whether the defendant is guilty.' [Citation.] Rather a court, in typical appellate-court fashion, asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. If the answer to that question is 'no,' holding the error harmless does not 'reflect a denigration of the constitutional rights involved.' [Citation.] On the contrary, it 'serves a very useful purpose insofar as [it] blocks setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial.' " (Neder, supra, 527 U.S. at p. 19; Chapman, supra, 386 U.S. at p. 22.) It was important in Neder to consider the error's effect upon the verdict, in light of whether there were remaining contested issues. (Neder, supra, at pp. 19-20; see People v. Johnson (1993) 6 Cal.4th 1, 46 [lack of instruction on intent to kill not harmful where evidence on intent was overwhelming and jury could not have reasonable doubt on that matter].)
The respective roles of trial and appellate courts play an important part in the analysis of the effect of confrontation clause error. "Two primary reasons exist for the great respect given to trial courts' findings of fact. First, the trial court is in the best position to assess the probative value of evidence. . . . Second is a rationale specific to criminal trials: if criminal juries are truly to sit as the 'final arbiter[s] of truth and justice,' their factual determinations must be given finality." (Mitchell, Against "Overwhelming" Appellate Activism: Constraining Harmless Error Review (1994) 82 Cal. L.Rev. 1335, 1353; fns. omitted (hereafter Mitchell).) This article was written five years before Neder, supra, 527 U.S. 1 was rendered, and can be viewed as somewhat outdated as not having the guidance supplied in that case, concerning the proper analytical focus on whether the subject of the crucial error was actually contested by the defendant. (Id. at pp. 18-20.) The author mainly compares the Chapman analysis to a more relaxed "overwhelming evidence" standard used in other cases, and emphasizes that "the trial record often fails to provide a complete picture of the evidence. The credibility of a witness may depend greatly on her demeanor, and the meaning of a piece of evidence may be quite unclear out of the total context of a trial. The opportunity to observe firsthand testimony and demonstrations, and the subtleties that accompany such evidence, places jurors and trial judges in a much better position than appellate judges to assess the facts.]" (Mitchell, supra, 82 Cal. L.Rev. 1335, 1353; fns. omitted.)
The author of this article goes on to make the interesting observation, "rightly or wrongly, 'jury trials comprise the heart of our criminal justice system.' A defendant expects to receive judgment from a panel of peers and not from a panel of experienced jurists who may approach questions of guilt in a significantly different manner. Indeed, the defendant may seek to exploit the sympathies of jurors who have not become immune to the pleas of defendants or jaded by repeated encounters with hardened criminals. This right to invoke public sympathy and opinion is guaranteed by the Sixth Amendment." (Mitchell, supra, 82 Cal. L.Rev. 1335, 1353-1355; fns. omitted.) --------
B. Analysis of Prejudice
" 'We ask whether it is clear beyond a reasonable doubt that a rational jury would have reached the same verdict absent the error.' " (People v. Capistrano (2014) 59 Cal.4th 830, 873; Livingston, supra, 53 Cal.4th 1145, 1159; Neder, supra, 527 U.S. 1, 18.) We may permissibly consider the probative influence of the evidence offered in the prosecution's case-in-chief and in the defense case. As to the rebuttal portion that includes Detective Wheeler talking about Thomas's confession, we do not disregard that improperly admitted testimony but rather, evaluate whether the guilty verdict "was surely unattributable to the identified error." (Sullivan, supra, 508 U.S. 275, 279.) As to this admitted evidence from Wheeler and from Thomas's fiancée Franklin, who gave postconfession rebuttal testimony that she knew him to have a nonviolent character, we are bound to assess the impact of each portion upon this jury. In this limited role of assessing prejudice following the identified confrontation error, we do not express any opinion about the admissibility of Franklin's character and other evidence, should any retrial take place. Also as a reviewing court, we refrain from making an independent evaluation of the credibility of the respective witnesses, looking only to which elements in the record were presumably "surely" relied upon during this jury's decisionmaking process. (Ibid.)
Special concerns arise when recorded statements from a now-deceased witness are offered into evidence. In Bryant, supra, 60 Cal.4th 335, our Supreme Court applied Chapman standards to evaluate the admission of a murder victim's previously taped statement at trial, over the defense's Sixth Amendment confrontation objections. In finding the error harmless, the Supreme Court focused on the type of assertions contained in the taped statement, and whether they were all otherwise proved through independent evidence. The court identified "[t]he primary determination for the jury in this case" as the proper measure of the error occurring through the admission of certain unconfronted statements. (Bryant, supra, at pp. 395-396; italics added.) It then ruled that those statements (i.e., what the victim had said on the tape regarding a potential motivation for the defendants' crimes) were not harmfully admitted, given the context of the issues actually subject to proof at trial (the identity of the perpetrators). (Ibid.) Also in Bryant, hearsay statements from a different witness who had since died were deemed to be erroneously but harmlessly admitted, despite the lack of confrontation opportunities. Those statements were made on a collateral issue and also were "merely duplicative." (Id. at pp. 414-415.)
In People v. Rangel (2016) 62 Cal.4th 1192, similar conclusions were reached about reported statements that a witness had made to an investigator, two years before her death, because they were not testimonial and could be properly admitted. (Ibid.) But, "[e]ven assuming [the investigator's] testimony was erroneously admitted, that error was harmless beyond a reasonable doubt," because the witness's statements were cumulative to other evidence. (Id. at pp. 1232-1233.)
On review, our task is to ascertain "whether the record contains evidence that could rationally lead to a contrary finding" with respect to the subject of the error. (Neder, supra, 527 U. S. 1 at p. 19.) It cannot be said that Thomas's unconfronted confession evidence was "merely duplicative" or cumulative evidence, with respect to what happened before, during, and after the killing. (Bryant, supra, 60 Cal.4th at pp. 414-415.) This trial gradually evolved into a "he said-she said" test of the respective credibility of the two admitted participants. Hopson's defense maintained that to the extent she participated in the cleanup and cover up, after arriving at the scene and becoming shocked at seeing Brown's bloody body, she did so only because of fear of Thomas. Throughout trial, Hopson put in evidence that preserved her right to controvert the principal issue in question, the extent of her participation in the crime. For example, was she a direct perpetrator or an aider and abettor? Was she the driving force in the killing or an unwilling accomplice in the cover-up?
The effect of the closing arguments was to emphasize witness credibility as the key consideration in the case. Each side made references to Thomas's stationhouse confession and to Hopson's apparent role as the secret other woman in Thomas's life. The prosecutor's closing argument began with the contention that Hopson was the chief actor in making plans for Thomas to lie in wait for Brown in the garage, so Hopson could bring her out there to help kill her: " 'In this case, there is evidence that the defendant is the direct perpetrator, that she had the bloody knife, the butcher knife in her hand while she was leaning over the body of Laverna Brown. You heard that through the statements of Julius Thomas that Detective Wheeler told us about.' " (Hopson, supra, 3 Cal.5th at p. 454 [dis. opn. of Cantil-Sakauye, C.J.].) The prosecutor found support for the lying-in-wait theory from evidence that Brown had evidently been interrupted during her preparations for her trip and the items on her "to do" lists had not all been crossed off.
The gist of the defense attorney's closing argument was that the applicable laws were not "the biggest question in this case," but rather, "[t]he biggest question is who is telling the truth." Hopson's defense was that she was telling the truth on the stand, and even though Thomas had "talked to police," Thomas was a liar and a bully, especially to the women in his life. While Hopson had admitted to cooperating with him after the killing, she claimed she did so only out of fear, thus putting at issue her credibility about her role in the entire incident.
In rebuttal, the prosecutor argued that Hopson was lying about threats to herself and her son, and suggested that the defense's closing argument had focused only upon Thomas, not on her role. Thomas had come forward to describe his role in the killing and to lead investigators to the murder weapon, even though that would incriminate not only himself but also Hopson. Understandably, the prosecutor pounded away on comparing Thomas's credibility to Hopson's, saying "So what does she do? She had to take the stand and had to try and give an explanation for every one of the pieces of that evidence, and each time she did that, it was a lie."
Further, the prosecutor compared the calm and then withdrawn way that Hopson behaved during her police interview, with the remorse Thomas showed during his confession to Detective Wheeler: "You compare that person to the defendant's statements when she's talking to [the police], and you see right there the difference between the two. You see a cold-blooded killer who can lie to the police, who can look Detective Cobb in the face and say nothing. And then you have Julius Thomas who breaks down, tells the police the truth, understands the weight of the enormity of what he had done, explains it was the defendant's plan and takes the police to the evidence that would bury him." He suggested Thomas killed himself out of a guilty conscience, knowing he had been manipulated. The prosecutor concluded with arguments that Hopson's actions were controlling, dishonest and evil, "all the way through this case." (See People v. Bridgeford (2015) 241 Cal.App.4th 887, 904-905 [record suggested the jury considered the defendant's own erroneously admitted confession to be critical evidence, based on emphasis in prosecutor's closing arguments].)
2. Evaluation: Error Was Not Harmless
Identifying the "primary determination" placed before the jury, in terms of contested factual issues to be resolved, is the means for determining the prejudicial effect of this constitutional error. (Bryant, supra, 60 Cal.4th 335, 396; Livingston, supra, 53 Cal.4th 1145, 1159.) In Neder, supra, 527 U.S. 1, the court found it dispositive that the defendant had not and apparently could not bring forth facts contesting the subject of the error (in that case, failing to instruct on an omitted element). In comparison, the subject of the error in this case is the admission of Thomas's unconfronted testimony that directly addressed the contested element of the credibility of the defendant, regarding the role she played in planning and carrying out the killing and cover-up. The purposes of the jury trial guarantee include the testing of the credibility of a defendant who chooses to testify, in light of all the other evidence presented at trial. (Id. at pp. 18-19.)
Hopson's closing argument began: "The biggest question is who is telling the truth," then attacked Thomas's bad character as leading her astray. In the rebuttal closing arguments, the prosecutor emphasized that Hopson had an explanation for every piece of circumstantial evidence, and the jury should decide whether she was lying. Much of the evidence presented could cut both ways concerning Hopson's credibility. With respect to the motive for the robbery, Hopson had been living with Brown for a few months, whereas Thomas had met her only a time or two, and one cannot say definitively which one of them was the more likely robber and assailant under those circumstances, where the attack occurred in Hopson's residence and garage. The evidence showed that Hopson was in need of money and that Brown was likely to have travel money, but it is unclear whether Thomas was also in need of money, considering the evidence about his lifestyle. Hopson did not deny that she happened upon the murder in progress. She testified about potentially innocent explanations for the preparation steps she took, such as her purchase of the clothing and supplying of the gloves and booties to Thomas. There is record evidence about the pain- and blame-filled letters between Hopson and Thomas after their arrests, and about her change in attitude toward him after his death. Throughout, the crucial issue was, and remains, whether Hopson's account of coercion, upon her arrival at the scene, is believable to a jury.
This is a close case. Using an objective, analytical viewpoint as outlined above, we conclude reversal of the murder conviction is required and that a new trial opportunity must be made available, without the precluded evidence that described the contents and manner of Thomas's confession. Even though the evidence about his actions in leading detectives to the weapon was not incorrectly admitted, the contents and circumstances of his confession were used to attack Hopson's credibility on the motivation and method for the killing and cover-up, and whether the plan was all her idea. Neder teaches us that if the defendant actually contested the issue that is the subject of the error and raised evidence sufficient to support a contrary finding, the appellate court "should not find the error harmless." (Neder, supra, 527 U.S. at p. 19.)
This rebuttal evidence was dramatic in nature, about Thomas remorsefully opening up to the detectives and blaming everything on Hopson. (Arizona v. Fulminante, supra, 499 U.S. 279, 296 ["A confession is like no other evidence."].) It is impossible to say that not even one juror might have reached a different conclusion as to Hopson's criminal responsibility for the charges, absent the identified confrontation error. Moreover, the standard jury instructions did not sufficiently address the process of evaluating Hopson's given explanations of what happened and why. The rebuttal evidence of the confession and of Thomas's nonviolent character was not a collection of "small errors or defects that have little, if any, likelihood of having changed the result of the trial." (Chapman, supra, 386 U.S. at p. 22; Neder, supra, 527 U.S. at pp. 19-20.) It all amounted to important and harmfully admitted evidence, "in relation to everything else the jury considered on the issue in question, as revealed in the record." (Yates v. Evatt (1991) 500 U.S. 391, 403-404.) The appropriate inquiry is "whether the guilty verdict actually rendered in this trial was surely unattributable to the error." (Sullivan, supra, 508 U.S. at p. 279; italics omitted.) We cannot say, beyond a reasonable doubt, that this guilty verdict was unrelated to the identified confrontation error.
The judgment of conviction is reversed and the matter is remanded for further proceedings in accordance with the principles expressed in this opinion.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. AARON, J.