From Casetext: Smarter Legal Research

People v. Jennings

Dec 19, 2011
B222959 (Cal. Ct. App. Dec. 19, 2011)




THE PEOPLE, Plaintiff and Respondent, v. RAYMOND LEE JENNINGS, Defendant and Appellant.

Stephen Temko, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. MA033712)

APPEAL from a judgment of the Superior Court of Los Angeles County. Lisa M. Chung, Judge. Affirmed.

Stephen Temko, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.

Raymond Lee Jennings appeals from the judgment following his conviction for the second degree murder of Michelle O'Keefe. We affirm.


In the afternoon of February 22, 2000, 18-year-old Michelle O'Keefe and her friend, Jennifer Peterson, drove together from Palmdale to Los Angeles. Their destination was a film shoot for a music video in which they were appearing as extras. O'Keefe left her Mustang parked underneath a light post at a Park-and-Ride commuter parking lot in Palmdale, and drove to Los Angeles with Peterson in Peterson's car. The film shoot lasted about six hours, after which O'Keefe and Peterson returned to Palmdale. O'Keefe's cell phone records established that they got back to the largely empty Park-and-Ride lot at 9:22 or 9:23 p.m. Peterson stopped next to O'Keefe's Mustang. O'Keefe got out and moved her belongings from Peterson's car to her Mustang. Among her belongings, O'Keefe carried a change of clothing because the "club" clothing she had worn for the video - a tube top and knee-length skirt - was not suitable for her evening college class which she had planned to attend after the video shoot. O'Keefe got into her car and started the engine and Peterson drove away. O'Keefe then apparently moved her car from under the light post near the center of the lot to a more remote parking space on the lot's northern edge.

At 9:32 p.m., appellant Raymond Lee Jennings, who was the parking lot's security guard on duty that night, radioed his supervisor, Iris Malone, to report that gunshots were being fired in the lot. Supervisor Malone drove to the lot, arriving at 9:42 p.m. She stopped near appellant's car next to the parking lot's entrance, but did not see appellant. After two or three minutes, appellant emerged and approached Malone's car; although she did not explicitly say so, the implication of her testimony is he emerged from behind his car. (A. "I stopped and waited for him to proceed to come out wherever he was at. Q. When he came out, what did he do? A. He approached the patrol unit.") Appellant pointed to O'Keefe's Mustang, which was resting with its rear wheels in a planter about 400 feet away. Appellant told Malone the Mustang's lights were on and its engine running; Malone could see the lights but could not hear the engine. A sheriff's investigator later established with acoustic tests at the parking lot that where Malone and appellant had been standing he could not hear a car engine running at the Mustang's location. Malone directed appellant to get into her patrol car and accompany her to the Mustang. Appellant refused. Malone therefore drove to the Mustang alone, while appellant remained at the parking lot entrance. Drawing near the Mustang, Malone saw O'Keefe's leg and foot outside the open driver's door. Using her flashlight, Malone peered at O'Keefe but saw no signs of life. Malone radioed appellant, told him to call the police, and instructed him to join her at the Mustang.

In the meantime, Victoria Richardson was sitting with three other people in a parked car near the parking lot's northwest corner. They were smoking marijuana and listening to music. As Richardson partied with her companions, she noticed a security guard walk past her car. She then heard a car alarm sounding and "tapping" sounds. About four minutes later, a security car with flashing lights drove past. At that time, she decided to leave the parking lot. As she and her companions began driving out of the lot, she saw O'Keefe's Mustang up on a planter and O'Keefe slumped over the steering wheel. Noticing appellant, Richardson stopped and asked him what had happened. He answered he did not know. Richardson and her companions then left the lot.

Appellant walked to the Mustang as directed by Malone. When he got there, he kicked a shell casing, which he picked up. Because he did not have his work flashlight with him, he borrowed Malone's. Inspecting the shell, he told Malone it was a nine millimeter shell casing. Waiting for law enforcement, appellant and Malone remained near the Mustang. At 9:49 p.m., Deputy Billy Cox arrived. He got out of his patrol car and spoke to Malone, who was standing about 15 or 20 feet from the Mustang. Malone reported someone had been shot. Cox approached the car, at which point he could hear the engine running. The Mustang's manual transmission was in neutral and the emergency brake was disengaged. One of O'Keefe's breasts was partially exposed.

Deputy Cox checked O'Keefe for a pulse, but found none. He also checked her pupils, which were unresponsive to light. A later autopsy established O'Keefe had suffered multiple wounds. The first was blunt force trauma to her forehead, likely caused by an object other than a fist. The blow to O'Keefe's forehead probably stunned or dazed her, but did not knock her unconscious. O'Keefe then suffered four gunshot wounds. The first shot was to her chest through her upper left breast. When O'Keefe's killer fired this first fatal shot, the gun was touching O'Keefe's jacket which she was wearing over her tube top. In less than one minute she would have lost consciousness, and died within five minutes. While she remained conscious, she could have moved her hands and fingers. However, O'Keefe's hand movement would have stopped and her pulse become undetectable upon suffering her second and third gunshot wounds to her left cheek and neck - the sequence is unclear - fired from two or three feet away. The fourth and final shot was to the inner corner of O'Keefe's left eye.

Sheriff's Detectives Diane Harris and Richard Longshore arrived about three hours after the shooting. The detectives discovered in the Mustang O'Keefe's wallet containing credit cards and $111 in cash. They also discovered two expended projectiles and three shell casings on the ground between the parking spot where O'Keefe had moved her car after her friend Peterson left and the car's resting place in the planter. A firearms expert later concluded the five objects came from the same nine millimeter handgun.

In interviews with sheriff's investigators the night of O'Keefe's murder, appellant stated he had been on foot patrol in the parking lot at 9:34 p.m. when he heard a car alarm followed by a gunshot. Crouching behind his car to take cover, he looked up and saw O'Keefe's Mustang rolling backward toward the planter. He heard five more shots and could hear the engine as the car moved, but he did not see the shooter. When the shooting stopped, he did not see anyone leave the area by foot or by car. He radioed supervisor Malone, who arrived about eight minutes later. Instead of going to the Mustang with Malone, he remained by his car because he did not know whether the shooter was still in the parking lot. When he saw O'Keefe for the first time after joining Malone at the Mustang, he noticed O'Keefe had a pulse and saw her hands twitch. Appellant's statements to investigators the night of the murder were the first of several interviews he had with sheriff's detectives between February 2000 and his arrest for O'Keefe's murder in 2005. We discuss those additional interviews in greater detail in the Discussion section of this opinion, post.

Three days after O'Keefe's murder, appellant quit his security guard job. He told the security company he was quitting because he had another job promoting a musical band. He did not tell the company he was worried about his safety.

In 2005, detectives arrested appellant and the People thereafter filed a one-count information charging appellant with O'Keefe's murder. Appellant pleaded not guilty. He was tried by jury three times. The first two trials, each of which took place "for administrative reasons" in downtown Los Angeles at the direction of superior court officials after appellant unsuccessfully moved for a change of venue from the Antelope Valley because of publicity surrounding O'Keefe's murder, resulted in mistrials. The first trial took place in the spring of 2008, with the jury hanging 9-to-3 in favor of guilt. The second trial took place in February 2009, with the jury hanging 11 -to-1 for conviction. Following the two mistrials, the matter was returned to Antelope Valley for a third trial. After 12 days of deliberations, the Antelope Valley jury convicted appellant of second degree murder. The court sentenced appellant to state prison for 40 years. This appeal followed.


1. Sufficiency of the Evidence

Citing the absence of direct evidence tying him to O'Keefe's death, appellant contends the evidence was insufficient to permit a rational jury to find beyond a reasonable doubt that he murdered Michelle O'Keefe. He notes, for example, that no eye witness identified him as O'Keefe's killer. Investigators never recovered the murder weapon. A sexual assault kit did not find appellant's DNA on O'Keefe, and unidentified DNA found under her fingernails was not appellant's. Investigators did not find on appellant's security guard work uniform any gunshot residue, blood, or fibers from O'Keefe's clothing. Hair found on O'Keefe's body was not appellant's, and hair discovered on appellant's uniform was not O'Keefe's.

"When a defendant challenges the sufficiency of the evidence, ' "[t]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.]' [Citations.] 'Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. [Citation.]' [Citations.] We ' " ' "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " [Citation.]' [Citation.]" (People v. Clark (2011) 52 Cal.4th 856, 942-943.)

Appellant sees a "striking resemblance" between his case and the facts in People v. Blakeslee (1969) 2 Cal.App.3d 831 (Blakeslee).In Blakeslee, a teenage girl was convicted of murdering her mother. Investigators never recovered the murder weapon. Additionally, investigators could not link the girl to a murder weapon, nor could they establish the caliber and type of gun the girl allegedly used. (Id. at p. 840.) The Blakeslee court summarized the absent evidence as follows: "[T]he missing evidence is not peripheral but is central to the charge of murder. It consists of (1) evidence of a murder weapon, which we do not have; (2) evidence linking the bullets which caused the victim's death to a particular weapon, which we do not have; (3) in the absence of the first two items, evidence of the type or caliber of weapon used for the murder, which we do not have; (4) evidence to establish a connection between a murder weapon and the defendant, either tangible evidence such as fingerprints, palm prints, or powder burns, or testimonial evidence linking the defendant in some manner to a weapon, which evidence we do not have." (Id. at pp. 839-840.)

To counter the lack of direct forensic evidence, Blakeslee's prosecutor argued the daughter was guilty based on her having had the opportunity to kill her mother: The daughter had been in the mother's house five or ten minutes before the killing and, after leaving briefly, returned to the home about ten minutes after her death. The prosecutor also relied on the daughter's conflicting and inaccurate statements to police. (Blakeslee, supra, 2 Cal.App.3d at pp. 838-839.)

Blakeslee found the evidence against the daughter was insufficient because it pointed with equal force to the daughter's teenage brother since he, too, had an opportunity to kill the mother. Moreover, the daughter's conflicting and inaccurate statements to police were, in the appellate court's view, credibly explained as the daughter's misguided attempt to draw police attention away from her brother based on her plausible suspicion that he had killed their mother. (Blakeslee, supra, 2 Cal.App.3d at p. 840.) As in Blakeslee, where the daughter had an opportunity to kill her mother and made conflicting and inaccurate statements to police, appellant concedes he had the opportunity to murder O'Keefe because he was in the area when she was killed. Also as in Blakeslee, appellant acknowledges conflicting and inaccurate statements to sheriff's investigators. Based on what he perceives as the similarities between Blakeslee and the strictly circumstantial case against him, appellant contends that, as in Blakeslee, we should reverse his conviction.

We find Blakeslee not particularly helpful because "[w]hen we decide issues of sufficiency of evidence, comparison with other cases is of limited utility, since each case necessarily depends on its own facts." (People v. Thomas (1992) 2 Cal.4th 489, 516.) "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) We find the evidence against appellant was sufficient to permit the jury to convict him of murdering O'Keefe. (People v. Bean (1988) 46 Cal.3d 919, 933 [conviction may rest on circumstantial evidence alone].) As we shall explain, relying on circumstantial evidence and appellant's evolving and, at times, inconsistent statements to sheriff's investigators, the prosecution presented a case in which appellant's likely sexual approach toward O'Keefe went badly wrong, resulting in her death. The prosecution's theory was appellant's motive was not robbery because appellant left behind O'Keefe's wallet containing credit cards and $111 in cash. His motive was not, the prosecution argued, car jacking or auto theft because he did not take the Mustang. Appellant's motive was instead sexual because O'Keefe was found with her breasts exposed. And, indeed, appellant himself reinforced a sexual context to O'Keefe's murder by telling his wife that O'Keefe was a prostitute based on her attire.

The prosecution relied on appellant's evolving and inconsistent statements to sheriff's investigators to support the prosecution's theory of the case. About two hours after the shooting, appellant told deputies that he had been patrolling the parking lot when he heard a car alarm go off at 9:34 p.m. Turning in the alarm's direction, he heard a gunshot and saw the Mustang rolling backwards. As the car rolled toward the planter, appellant heard five more gunshots. Appellant told deputies that he saw no one leave the parking lot after the shooting.

About two hours after speaking with deputies, appellant spoke with Sheriff's Detective Longshore. Appellant told Detective Longshore that he (appellant) had been on foot patrol in the parking lot when he heard at about 9:30 p.m. the car alarm and then a single gunshot. Taking cover behind his car, he looked up to see the Mustang rolling backwards. He then heard five more gunshots. He could also hear the Mustang's engine. He stayed by his car after the shooting ended because he did not know if the shooter remained in the parking lot. He told Detective Longshore he did not see anyone leave the parking lot by foot or car.

About one month later on March 23, 2000, Sheriff's Detectives Longshore and Harris interviewed appellant at his home. Appellant told them he did not remember any details about the murder that he had not already disclosed to them. He reiterated that he did not see anyone leave the parking lot after the shooting. Detective Harris told appellant that investigators had received in the weeks since the shooting a statement from Victoria Richardson who had reported speaking to him in the parking lot that night. In response, appellant for the first time told the detectives that immediately after the shooting a female driver had stopped to ask him whether gunshots had been fired. His description of the driver matched Richardson, and his recounting of what he and Richardson said to each other coincided with her statement to detectives.

About two weeks later on April 7, 2000, appellant voluntarily participated in a day-long cognitive interview with sheriff's detectives to go over everything he remembered or could deduce about events involving O'Keefe's murder. He told the detectives that he had checked his watch at 9:20 or 9:25 p.m. when the Mustang's car alarm sounded. He started to walk toward the Mustang, but within 30 or 40 seconds he heard a single gunshot. He hid behind his car and the alarm stopped. Appellant suggested to the detectives that O'Keefe had silenced the alarm, started the engine, and put the car into reverse after sustaining her first gunshot wound. Standing up from behind his car, appellant saw the Mustang rolling backward when he heard additional gunshots about 10 or 15 seconds after the first shot had sounded. Appellant dropped back behind his car and radioed his supervisor.

Supervisor Malone arrived about five minutes later. She drove to O'Keefe's car and then summoned appellant to join her by the Mustang. As he walked toward Malone, a gray sedan stopped and its driver (Victoria Richardson) asked him if someone had been shot. He told the driver he did not know. The reason he had belatedly remembered only two weeks earlier that the driver had stopped to speak with him was that detectives had triggered his memory of the encounter when they told him the driver had contacted the police about the shooting and had reported speaking to a security guard. He told the detectives it did not cross his mind to ask the driver to stay until deputies arrived. Upon arriving at the Mustang, appellant borrowed Malone's flashlight to search the ground, where he found a bullet casing and slug that appeared to be .38 caliber. Looking at O'Keefe, he saw a faintly detectable pulse, her hands were twitching, and her breasts "were hanging out." His initial impulse was to remove O'Keefe from the car in order to administer first aid, but decided not to because he did not want to disturb a crime scene. He surmised that the bullet wound to O'Keefe's chest was her first gunshot wound because it appeared to have been fired at close range. Based on her other wounds, he believed the shooter had fired through the partly-open driver's side window and was a good shot because there were no bullet holes in the car itself. He also stated all the wounds appeared to have been from the same gun. Additionally, he told detectives, O'Keefe's attire indicated she was a prostitute, but she had not been raped. Finally, he told detectives that he "had seen death" during his National Guard training and service in which he had observed a soldier accidentally killed by machine gun fire when the soldier had panicked during a training exercise, and had witnessed a drill sergeant die in a mishap involving a grenade. Appellant confessed, however, two years later during his civil deposition in the O'Keefe family's wrongful death lawsuit against him and others that he had fabricated the two military deaths in order to impress the detectives.

Drawing from appellant's multiple and varying statements to investigators, the prosecution argued the following incriminating circumstances proved appellant's guilt. First, the prosecution argued the implausibility of appellant's not seeing the shooter. Appellant reported watching the car roll back toward the planter, yet he never saw the shooter who was walking alongside the car firing repeatedly at close enough range to hit O'Keefe with each shot without hitting the car itself.

Second, appellant repeatedly stated he saw no one leave the parking lot after the shooting, only to be contradicted by Victoria Richardson's statement to investigators about her encounter with appellant.

Third, he claimed he stayed next to his car, and refused to accompany supervisor Malone to the Mustang, because he feared the shooter might still be in the parking lot after the shooting. However, when Malone ordered him to join her at the Mustang he walked to her without taking cover or other evasive action from the shooter that he supposedly feared might still be nearby.

Fourth, he recounted an unsubstantiated encounter with occupants of a pick-up truck a few nights after the shooting. According to appellant, two men drove up to him during his shift at the parking lot and questioned him about the shooting. Because their curiosity alarmed him, he claims he called the sheriff's station to report them. Appellant claimed a sheriff's deputy visited him at the parking lot in response to his call. Appellant further claimed he gave the deputy a partial license plate for the truck, which allowed the deputy to locate the truck and speak to its occupants. After talking to the occupants, the deputy supposedly returned to the parking lot to tell appellant the occupants were harmless kids. However, the sheriff's department had no record of appellant calling the station or of a deputy responding to a call, even though the department would ordinarily have records if such had taken place. The prosecution theorized that appellant fabricated the story about the truck to misdirect detectives into believing its occupants might have been involved in O'Keefe's murder.

Fifth, appellant claimed to have seen O'Keefe's faint pulse and twitching hands when he joined supervisor Malone near the Mustang. Medical experts testified all of O'Keefe's outward signs of life would have ceased no later than a minute or two after the shooting. It was medically impossible, according to medical expert testimony, for appellant to have seen O'Keefe's hands twitching and her pulse by the time he joined Malone at the Mustang more than 10 or 15 minutes after the shooting. The prosecutor theorized that appellant saw O'Keefe's ebbing signs of life as he fled from her after shooting her. Those images are what he reported seeing, and his awareness that she did not die instantly, and his concomitant fear she might still be alive and thus able to identify him minutes later, explained, the prosecution argued, his resistance to approaching the Mustang with supervisor Malone.

Sixth, O'Keefe had been struck in the forehead with a blunt object. Appellant ordinarily carried a flashlight while walking his rounds of the parking lot at night in the dark. He did not, however, have his flashlight when he joined Malone at O'Keefe's Mustang. The absence of appellant's flashlight was consistent with his having hidden it so that investigators could not find it after he used it to strike O'Keefe.

Seventh, detectives held back from public disclosure certain details about O'Keefe's murder, but appellant knew those details. He knew, for example, the time O'Keefe arrived at the parking lot upon her return from the video shoot in Los Angeles. He knew that one gun fired all the shots. He knew the murder weapon's caliber. He correctly identified a gouge in the asphalt near the Mustang as caused by an errant, perhaps unplanned, misfire by the shooter before the shooter took aim at O'Keefe. He accurately described the sequence of bullets as later established by the autopsy. He knew O'Keefe had not been raped. Based on appellant's ability to "read" the crime scene with an uncanny accuracy despite having no law enforcement training, the prosecution argued appellant implicated himself by revealing that he knew things only O'Keefe's murderer would know.

Finally, the shooter displayed skilled marksmanship. O'Keefe's three head wounds particularly required skill because O'Keefe was a moving target as the Mustang rolled backward. A firearms expert testified training and practice was required to inflict those wounds, the type of training and practice appellant received in his National Guard service. Additionally, the type and sequence of bullets used showed sophistication involving firearms. The shooter used two types of bullets: The first two, the first of which was apparently misfired into the ground and the second into O'Keefe's chest, were hollow point bullets, which flare out upon impact to cause greater incapacitating trauma than a full metal jacket bullet, which does not flare out; the last three, which were aimed at O'Keefe's head, were full metal jacket bullets. Members of the military are taught to shoot first at a target's upper body because it offers a large surface area to hit. If shots to the upper body do not incapacitate the target, members of the military are taught to shoot at the target's head. For someone experienced with guns through military training, the sequence of two hollow point shots, one of which was aimed at O'Keefe's chest, followed by three full metal jacket shots to her head, was not by chance.

In sum, although the evidence against appellant was circumstantial supported by his statements to investigators, we find the prosecution presented a case of sufficient strength that a rational jury could conclude beyond a reasonable doubt that appellant murdered Michelle O'Keefe. (Contrast Blakeslee, supra, 2 Cal.App.3d at p. 840 ["[W]e have a conviction for murder based on defendant's presence at the scene of the crime five to ten minutes before and five to ten minutes after the crime, and on the fact that [the defendant] told a false story to the police about her movements that night. This evidence does not reasonably inspire confidence in defendant's guilt, and we think it insufficient to constitute proof beyond a reasonable doubt."].)

2. Testimony of Forensic Behavioralist Mark Safarik

Mark Safarik is an expert consultant in behavioral and forensic analysis of violent crimes. Appellant contends Safarik's testimony was not proper expert testimony because Safarik did not testify about anything beyond the understanding of lay jurors. We find that regardless of whatever merits may apply to appellant's contention, no reversible error occurred.

In late 2006 following appellant's arrest and more than six years after O'Keefe's murder, the prosecution asked Safarik to analyze the killing. In his testimony, Safarik told the jury that the prosecution directed him to consider two questions: First, "what happened" as the crime unfolded; second, the murderer's "motive" in the hope of understanding why the crime took place. He explained his analysis involved a "two-part process. . . . Every crime tells a story and sometimes the stories are very complex. They're very hard to understand because you have so much going on and . . . sometimes it's behavior that is not often seen. So what we're trying to do is figure out what is that story? What is being told by what happens at this crime scene?"

He told the jury that the "first part of that process is an analytical part and what I'm doing there is I'm looking at the crime - not only the crime scene, but the crime, so what's going on before, during, and after the crime and then I'm looking at the crime scene." The data on which he relied for the first step in his analysis included initial crime reports, including crime scene photographs and other representations of the scene, such as diagrams and sketches; the autopsy report and photographs; and initial witness statements. He testified "I really am looking for everything that's associated with the initial crime scene." He told the jury he did not look at "anything that is related to suspects." He also did not consider anything found or generated "years later" because his interest is in the crime scene as it existed when the crime took place.

Relying on the crime scene data that he had described, Safarik identified several topics he analyzed in determining "what happened." He considered "victimology," hoping to understand why O'Keefe, and not someone else, was murdered that night at that parking lot. For example, was there something about her or what she was doing that contributed to her death? He also considered the cause of her death, including her injuries, their number, and their severity. He considered any weapon used, where it came from, and where it went. He studied any evidence of planning or organization by the perpetrator with the aim of determining whether the perpetrator murdered O'Keefe impulsively. He also considered the perpetrator's motive, and whether the perpetrator maintained or lost control of O'Keefe, thereby suggesting escalation in the confrontation between the perpetrator and O'Keefe. After identifying the foregoing factors, he told the jury he considered them in their entirety. He explained, "So all of these things, all of these components, among other aspects both behaviorally and forensically, I'm looking at all of this. Not as a single piece of the puzzle . . . . Everything has to be looked at in the totality of the circumstances. [¶] Everything that is happening, this dynamic between the offender and the victim and the scene, are all working in concert. And when you look at all of this together in totality, you generally can start to understand what happened. What is going on here? What is the story the crime scene tells us? That's the first part, the analytical part." Safarik then testified about the second step of his two-part analysis. He told the jury the "second part is the interpretative part . . . to interpret what all of this means, this totality of the circumstance. . . ."

The prosecutor's examination then moved toward inviting Safarik's description of how O'Keefe's murder occurred. Defense counsel objected to the proposed line of questioning to the extent Safarik was proposing to "reconstruct" the states of mind or "personalities" of O'Keefe and her killer. Defense counsel did not object, however, to Safarik testifying "about the physical aspects of the case, things that you can glean from the physical aspects of this case." In response, the prosecutor told the court outside the presence of the jury that Safarik was not going to engage in profiling appellant or the perpetrator. The prosecutor assured the court that Safarik is "not going to be offering any opinion about a suspect. . . . He's not going to be offering any profile of the suspect. He's not going to profile [appellant] Raymond Lee Jennings." The court permitted Safarik's testimony to continue.

Safarik resumed testifying. He told the jury that O'Keefe was at low risk for being a crime victim given her personality, background, and behavior. She had no drugs or alcohol in her system at the time of death, and had no history of interpersonal conflict or romantic entanglement that might have motivated someone to kill her. In contrast to O'Keefe's low risk of being a victim, Safarik noted that O'Keefe's murderer assumed a high risk in choosing the parking lot to commit a crime. Because the parking lot was a commuter park-and-ride, most commuters who used the lot came and went in groups of two or more, thereby assuring some measure of safety in numbers. Also, a uniformed security guard patrolled the lot.

After assessing the relative risks faced by O'Keefe and her killer, Safarik testified to his reconstruction of events in the minutes before O'Keefe's murder. Relying on O'Keefe's cell phone records to establish the time O'Keefe returned to the parking lot and on appellant's radio call to supervisor Malone to mark the outer time limit of her murder, Safarik described a narrow window of time for the perpetrator to have acted. Within that window he described a scenario consistent with the prosecution's theory of how the murder unfolded. He testified that his analysis led him to conclude that the perpetrator contacted O'Keefe at her car, at which time she got out and stood next to her open door. The perpetrator then initiated a sexual assault by pulling down her tube top. The perpetrator then delivered a blunt force blow to O'Keefe's forehead, she retreated to her car to try to escape, the assault escalated to gunfire, and her Mustang rolled back until it rolled up onto the planter. Safarik excluded financial gain, such as robbery or car jacking, or gang activity as the reason for O'Keefe's murder. Instead, based on O'Keefe's tube tope having been pulled down, there was "a sexual assault piece to this homicide." Under the prosecutor's questioning, Safarik testified, "Q. Based on your entire analysis in this case, did you arrive at a conclusion about what was going on between the offender and Michelle O'Keefe when this crime occurred? . . . A. I believe that the motive for this crime was sexual assault; that the offender intended a sexual assault. It wasn't well thought out and it escalated. It went bad quickly and it escalated into a homicide."

A trial court may allow expert opinion testimony when it will help the jury understand evidence or matters beyond the jurors' common experiences. (People v. Torres (1995) 33 Cal.App.4th 37, 45.) "Expert opinion is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness." (Ibid.)Appellant contends the court erred in allowing Safarik's testimony because his testimony amounted to little more than his "expert opinion" that no one but appellant could have been O'Keefe's murderer. Appellant did not, however, object to Safarik's testimony as improper expert opinion. Appellant's objection at trial was to any testimony about O'Keefe's and her killer's states of mind. A ground for objection not raised at trial is not preserved for appeal. (People v. Ward (2005) 36 Cal.4th 186, 211.) Accordingly, appellant cannot now complain that Safarik should not have testified as an expert.

Appellant did move during his first trial in 2008 to bar experts "from offering speculative testimony regarding the type of crime committed or intended" but the record contains no indication that appellant made any similar motion during his third trial which is at issue here.

In any event, we are not persuaded that the court abused its discretion in allowing Safarik's testimony. Safarik was the only witness who testified that the killer's apparent motive was to commit a sexual assault that was poorly planned and quickly escalated to a homicide. This testimony may have been crucial to the prosecution's case because, without it, there was no evidence from which the jury might infer the motive or the perpetrator's intent in killing O'Keefe. (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550-1551 ["The law does not disfavor the admission of expert testimony that makes comprehensible and logical that which is otherwise inexplicable and incredible."].) Alternatively, even if the court erred in allowing Safarik to testify, the error was not prejudicial because testifying to reasonable inferences drawn from the evidence is not prejudicial. (People v. Prince (2007) 40 Cal.4th 1179, 1222 [review erroneous admission of evidence for abuse of discretion].)

Appellant also contends Safarik's testimony was improper profiling evidence. His contention fails because Safarik's testimony was not profiling. "A profile is a collection of conduct and characteristics commonly displayed by those who commit a certain crime." (People v. Robbie (2001) 92 Cal.App.4th 1075, 1084.) Profiling is an unsound method of reasoning which moves from the general characteristics of a type of criminal, say a drug courier, to the specifics of the defendant's conduct to argue the defendant, by having those general characteristics, is that type of offender. (See Robbie at pp. 1084-1085.) Safarik's method of analysis did not constitute profiling because he did not opine about the general characteristics of murderers (with or without sexual overtones) to argue appellant was a murderer. Instead, Safarik described his deductions about how O'Keefe's murder unfolded. Safarik offered no opinion about whether appellant or anyone else was the murderer, which would have constituted improper profiling.


The judgment is affirmed.




Summaries of

People v. Jennings

Dec 19, 2011
B222959 (Cal. Ct. App. Dec. 19, 2011)
Case details for

People v. Jennings

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RAYMOND LEE JENNINGS, Defendant…


Date published: Dec 19, 2011


B222959 (Cal. Ct. App. Dec. 19, 2011)