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People v. Kennedy

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Sep 27, 2018
D073847 (Cal. Ct. App. Sep. 27, 2018)

Opinion

D073847

09-27-2018

THE PEOPLE, Plaintiff and Respondent, v. LAWRENCE EDWARD KENNEDY, Defendant and Appellant.

Eric S. Multhaup, 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, Steve Oetting and Matthew Mulford, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB1502137) APPEAL from a judgment of the Superior Court of San Bernardino, Ronald M. Christianson, Judge. Affirmed. Eric S. Multhaup, 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, Steve Oetting and Matthew Mulford, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Lawrence Edward Kennedy challenges his murder conviction on a single ground. He contends that a limitation imposed during his cross-examination of a particular witness violated his rights to confront adverse witnesses and to due process. But the solitary line of questioning upon which Kennedy's appeal rests invited a potentially lengthy, convoluted detour that simply could not be justified by the scant relevance contemplated. On these facts, we cannot conclude the trial court abused its discretion in excluding that narrow type of questioning. Likewise, no meritorious constitutional claim arises from this permissible application of our ordinary state evidentiary rules. And even if we were to find state law evidentiary error here, we would deem it harmless. We accordingly affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Richard R., the victim in this case, was in a relationship with Monique C. The two lived apart, but Richard often visited Monique at her apartment complex. There, she lived just a few doors away from Joseph Jackson, the uncle of defendant Kennedy.

Jackson and Monique were "good friends," and he drove her places on occasion. They had, however, "a little miscommunication" during one of those rides in early April 2015. When Monique and her sister could not pay Jackson five dollars in gas money, he dropped them off on the side of the road—at night in the pouring rain. The two walked some before ultimately hitchhiking a ride back to the apartment complex. Upon returning, Monique told Richard about the disagreement.

Richard and Jackson exchanged words about the event the following morning. Both grew "bothered." Jackson "got angry and started raising his voice and making threats." But ultimately the conversation dissipated without any physical altercation.

Later that evening, Jackson came to speak with Richard again at Monique's apartment. That conversation too ended without any significant escalation; aside from an awkward handshake, the pair made no physical contact.

Kennedy arrived at the apartment complex sometime thereafter, raising the hood of his gray sweatshirt as he entered. He spoke with another resident, G.S., in passing and connected with Jackson.

Surveillance video footage captured Kennedy and Jackson each coming into and out of the apartment complex's secure entrance several times in the hour preceding the murder.

Just before 10:00 p.m., Kennedy knocked on the front door to Monique's apartment. Monique, her cousin, and Richard were home. Following the knock, Monique yelled out twice, asking who was there. Kennedy did not respond. So Monique rose from the couch and walked to the apartment's entrance. Through the closed door, Kennedy asked for Richard, who acquiesced by coming to open it. As Richard opened the door and invited Kennedy inside, Monique turned to walk back to the couch.

A shot rang out, and Monique spun to see Richard on the floor. He yelled that he had been shot. Kennedy was already gone. He fled through the front gate of the apartment complex. In the meantime, a neighbor called 911, and Monique and her cousin waited for emergency responders to come to Richard's aid.

Richard died at the hospital later that night. His cause of death was attributed to the gunshot, which had entered his left shoulder, passed through his left lung, spine, and right lung, and exited out his right shoulder.

Three days later, a gun was found on Kennedy's person when he was apprehended at a different apartment complex. That firearm was subsequently matched to the sole bullet casing found at the scene of Richard's murder. However, testing comparing the gun to the fired bullet from the crime scene was inconclusive; the markings on the bullet were "insufficient for identification."

Both Kennedy and Jackson were charged with Richard's murder. The first jury to hear the case found Jackson guilty of first degree murder. (Pen. Code, § 187, subd. (a).) Our colleagues in Division Two of the Fourth Appellate District affirmed his conviction in People v. Jackson (Dec. 15, 2016, E065218) 2016 Cal.App. Lexis 9012, and he is not a party to this appeal. That same jury convicted Kennedy of possession of a firearm (Pen. Code, § 29800, subd. (a), count 2), but hung on his murder charge (id., § 187, subd. (a), count 1).

Kennedy was subsequently retried on the murder charge. Among other witnesses at trial, a detective and a federal agent testified about cell phone records associated with Jackson's and Kennedy's respective telephone numbers. The detective recounted that the pair communicated about two hours before the murder and several times in the two hours following it. Of particular note was a call from Kennedy to Jackson approximately two minutes after the crime.

A particular phone number was tied to Kennedy through circumstantial evidence. Law enforcement initially located the number in Jackson's phone under the name "Big Daddy," which Kennedy admitted to a detective was one of his monikers. The subscriber was one Lawrence Kennedy, who shared defendant Kennedy's home address. As a counterweight to this evidence, defense counsel introduced testimony from Kennedy's brother to establish that Kennedy ostensibly had no phone at the relevant time, Kennedy's quadriplegic father shared the same name and address, and Kennedy's mother sometimes called his father "Big Daddy." The brother also denied that Kennedy was referred to as "Big Daddy." However, he admitted on cross-examination that he had contacted Kennedy using the aforementioned phone number. --------

The federal agent synthesized the cell tower data associated with call activity on Kennedy's phone, thus approximating his movements that night. Around 6:00 p.m., it appeared that Kennedy was at home. In contrast, Kennedy's call activity between 9:43 and 9:57 p.m.—right around the time the murder occurred—indicated that he was at the crime scene. Jackson's cell tower data provided a nearly identical geographic story, consistent with his presence first at Kennedy's residence and then at the crime scene.

The defense case consisted solely of testimony by one of Kennedy's brothers. He explained that on the night of the crime, he could account for Kennedy's presence at home at around 8:00 p.m. and then again sometime in the 10 o'clock hour. Since he had left to pick up his girlfriend then, he could not account for Kennedy's whereabouts between 9:00 and 10:00 p.m. But he testified that Kennedy was "[l]ike a hermit" insofar as he generally stayed home and that on the day in question, Kennedy had been caring for their quadriplegic father, which was a "24-hour job."

In this second trial, the jury ultimately convicted Kennedy of first degree murder (§ 187, subd. (a), count 1), and found true that in the commission of the crime he had personally and intentionally discharged a firearm (specifically, a handgun) causing death (id., § 12022.53, subd. (d)).

DISCUSSION

Kennedy raises one claim in this appeal, which bears only on his murder conviction; he does not challenge his conviction for possession of a firearm in violation of Penal Code section 29800, subdivision (a). With respect to his murder conviction from the second trial, Kennedy argues that his due process rights were violated by the trial judge's ruling limiting the scope of his cross-examination of a particular witness. As will be explained, we disagree and therefore affirm the judgment.

Additional Background

Neither Monique nor her cousin could identify Richard's murderer. Each only caught a brief glimpse of the assailant. Monique recalled that the individual was tall, Black, and wearing blue pants and a gray hoodie with the hood pulled up. Somewhat similarly, her cousin relayed that the shooter had facial hair and was wearing blue pants and a gray hoodie.

The sole eyewitness that attested to Kennedy's presence at the apartment complex was G.S., another resident there. She saw Kennedy arrive, spoke briefly with him before they parted, and then watched him leave the complex just after she heard a "firecracker noise." G.S. identified Kennedy in court during trial.

Yet it was unclear whether G.S. could have—the night of the murder—positively identified Kennedy. That night, G.S. told law enforcement she saw a suspicious man in a gray hoodie. According to her trial testimony, she also told a detective that she could have specifically identified the suspect that same night. She also remembered telling the detective about conversing with Kennedy at the complex. And because she was pregnant and past her due date at the time, she said officers told her she didn't have to go to the police station.

Answers elicited during cross-examination from the detective who interviewed G.S. that night provided a different account. According to San Bernardino Police Detective William Flesher, G.S. "told [him] specifically that she could not or would not be able to identify [the man in the hoodie] because she didn't want to get involved." He said that G.S. was "somewhat uncooperative" and refused to go to the police station. Detective Flesher further testified that G.S. never mentioned having a conversation with Kennedy.

On redirect examination, the prosecution asked whether it was "common for people to not want to get involved in homicide investigations in the City of San Bernardino," to which Detective Flesher responded, "Absolutely." In fact, that happened in "[a]lmost every case" he worked on. Similarly, in his experience, often witnesses would initially neglect to mention something that they would later tell someone else; that happened "all the time."

Defense counsel attempted to probe that exchange during recross-examination. After eliciting the fact that Detective Flesher's report made no mention of G.S.'s ostensible conversation with the suspect, defense counsel asked whether the detective recorded witnesses' interviews to "protect[ ]" their statements "from fading memories." Detective Flesher responded that that was "one reason, yes." Defense counsel pushed further, "Okay. And that's because someone would remember something at the time, and you don't want them to later forget it, correct?" The detective answered, "Well, usually they remember more with time. But we go ahead and get their statement as close to the time as possible."

Immediately thereafter, defense counsel asked, "And just for a moment, Detective, do you have any medical training?" Here, the prosecutor objected, and a sidebar discussion was held off the record. When questioning resumed, defense counsel did not ask further about the detective's medical training. Rather, she inquired, "[W]hen you say that in your experience you think witnesses remember more with time, you're clear that [G.S.] never came back to you and said that she had this conversation?" The detective replied that he "kn[ew] for a fact she didn't come back to me."

Later outside the jury's presence, the court explained that at the unreported bench conference, he had "excluded further questioning under [Evidence Code section] 352." Defense counsel was provided an opportunity to clarify her position on the record. The challenged questioning regarding medical training was intended to explore Detective Flesher's statement that "usually [witnesses] remember more with time." In defense counsel's words, "what individuals are able to remember with increased time and capacity . . . is actually an area of specialized training and study by psychologists and . . . medical physicians who actually conduct studies with regards to memory." Accordingly, she thought Detective Flesher's statement would "mislead the jury" absent further questioning.

Thereafter, the court explained its Evidence Code section 352 ruling: "First of all, [Detective Flesher] said in his experience people remembered over time. He didn't say what was remembered was accurate. [¶] In addition, this testimony was specifically in relation to [G.S.] and statements made by her. And [G.S.], of course, in her direct testimony under oath in front of the jury, is not saying she remembered something after the fact. She's saying she told the detective at the time he interviewed her that she could make the identification. So . . . that statement by the detective wasn't even relevant to what [G.S.] has stated here in court." The issue was not revisited.

Analysis

Invoking his rights under the confrontation clause and to due process, Kennedy challenges the trial court's limitation on recross-examination of Detective Flesher. "A criminal defendant possesses a fundamental right to confront the witnesses against him. (U.S. Const., 5th, 6th, 8th, 14th Amends.; Cal. Const., art. I, §§ 7, 15, 24; [Pen. Code,] § 686; Pointer v. Texas (1965) 380 U.S. 400, 403.) Cross-examination is a cornerstone of that fundamental right. (Pointer, at p. 404.)" (People v. Mora and Rangel (2018) 5 Cal.5th 442, 476 (Mora); see also Delaware v. Van Arsdall (1986) 475 U.S. 673, 678.) " '[T]o deprive an accused of the right to cross-examine the witnesses against him is a denial of the Fourteenth Amendment's guarantee of due process of law.' " (People v. Brown (2003) 31 Cal.4th 518, 538 (Brown), quoting Pointer, at p. 405.)

The right to cross-examine guaranteed by the confrontation clause is "meaningful but limited." (Mora, supra, 5 Cal.5th at p. 477.) It assures "the opportunity to engage in effective cross-examination," but "not necessarily cross-examination that satisfies the defendant in any conceivable respect." (Ibid.) Indeed, there is a distinction "between sufficiently effective cross-examination and cross-examination as effective as the defendant wishes"; only the former is safeguarded by the clause. (Ibid., citing United States v. Owens (1988) 484 U.S. 554, 559 (Owens).)

It is well established that " '[t]he right to confront and to cross-examine . . . may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.' " (Brown, supra, 31 Cal.4th at p. 538, quoting Chambers v. Mississippi (1973) 410 U.S. 284, 295.) "The trial court retains wide latitude to restrict repetitive, prejudicial, confusing, or marginally relevant cross-examination. Unless the defendant can show that the prohibited cross-examination would have created a significantly different impression of the witness's credibility, the trial court's exercise of discretion to restrict cross-examination does not violate the constitutional right of confrontation." (People v. Sánchez (2016) 63 Cal.4th 411, 450-451; see Delaware v. Van Arsdall, supra, 475 U.S. at p. 680.)

"Ordinarily, proper application of the statutory rules of evidence does not impermissibly infringe upon a defendant's due process rights." (People v. Ardoin (2011) 196 Cal.App.4th 102, 119.) "In particular, notwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352." (People v. Quartermain (1997) 16 Cal.4th 600, 623 (Quartermain); accord People v. Jennings (1991) 53 Cal.3d 334, 372.) That section provides discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)

Kennedy argues his rights to due process and to confrontation were impaired by the trial court's exclusion of questioning regarding Detective Flesher's "medical training." That line of questioning was intended to undercut the detective's statement that "usually [witnesses] remember more with time," which Kennedy contends bolstered the credibility of G.S.'s in-court identification. He cites a particular need for cross-examination of expert witnesses and the imperative of properly gauging the reliability of an eyewitness's recollection. (See People v. Alfaro (2007) 41 Cal.4th 1277, 1325 [" 'A party "may cross-examine an expert witness more extensively and searchingly than a lay witness" ' "]; see also Perry v. New Hampshire (2012) 565 U.S. 228, 245 ["We do not doubt either the importance or the fallibility of eyewitness identifications"]; United States v. Wade (1967) 388 U.S. 218, 228 ["The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification"].)

In contrast, the People argue that the trial court's ruling comported with Evidence Code section 352, and so did not violate the constitution. (See Quartermain, supra, 45 Cal.4th at p. 623.) They urge that the disputed line of questioning was marginally relevant at best, given that G.S. never said she remembered more as time passed, but rather averred that she could have identified Kennedy on the night of the murder. Moreover, they posit that questioning regarding medical training would "have required a time-consuming digression" to link medicine and memory.

The People have the better argument. Foremost, we agree that the relevance of this line of inquiry was marginal at best. G.S. testified that she could have, the night of the crime, identified the man in the gray hoodie. She never claimed to have remembered more at some later point in time than she did then. Similarly, Detective Flesher's description of G.S. that night painted her as uncooperative—not fuzzy on the details. Indeed, he agreed with defense counsel's phrasing that G.S. "told [him] specifically that she could not or would not be able to identify [the man in the hoodie] because she didn't want to get involved." (Italics added.) Thus, Detective Flesher's statement regarding the refinement of memories over time would likely not, as Kennedy argues, "bolster" G.S.'s testimony.

Moreover with respect to relevance, we agree with the trial court's observation that Detective Flesher's testimony was clearly based on his past experience alone, not specific medical or scientific training. And we would be remiss not to observe that nothing indicates trial counsel sought to or was foreclosed from probing the specific experiences underlying the detective's statement or questioning him regarding his training on the problems associated with eyewitness identification. Similarly, as the trial court noted, Detective Flesher did not attest to the accuracy of witnesses' later-obtained memories; defense counsel attempted no inquisition on this point either. In this regard, " '[t]he Confrontation Clause guarantees only 'an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.' " (Owens, supra, 484 U.S. 554, 559; accord, Mora, supra, 5 Cal.5th at p. 478 ["so long as a defendant is afforded an opportunity for effective cross-examination, no error results from a cross-examination that does not fully live up to the defendant's expectations"].)

Likewise well taken is the People's point that this line of questioning would have been a time-consuming detour. Defense counsel's statements on the record after the ruling was made, as well as Kennedy's briefing before this court, establish that the goal was to explore psychological and medical research regarding deterioration of witnesses' memories. We simply cannot conclude that the scant relevance of this inquiry to G.S.'s in-court identification of Kennedy would have justified this potentially lengthy digression—on recross-examination, no less.

In sum, we find no abuse of discretion in the trial court's ruling under Evidence Code section 352. Rather, its ruling was a permissible restriction on "marginally relevant cross-examination." (People v. Sánchez, supra, 63 Cal.4th at p. 451.) Certainly no constitutional violation appears here. (See Quartermain, supra, 45 Cal.4th at p. 623.)

Even assuming the trial court abused its discretion in excluding this line of questioning under Evidence Code section 352, we would deem any such error harmless under the applicable standard from People v. Watson (1956) 46 Cal.2d 818, 836. (People v. King (2010) 183 Cal.App.4th 1281, 1315.) While we hear Kennedy's point that eyewitness testimony can be powerful (see, e.g., Perry v. New Hampshire, supra, 565 U.S. at p. 245), in this case G.S.'s identification of Kennedy did not stand alone. Nor was it even direct evidence of Kennedy's guilt, as G.S. did not see him pull the trigger. Rather, as the prosecution argued in closing, it was just one piece of circumstantial evidence among many indicating Kennedy was the murderer. That body of evidence included the fact that Kennedy was found three days later with the gun that shot the fatal bullet; Kennedy's cell phone records establishing his presence at the scene of the crime during the relevant timeframe; and call records between Jackson and Kennedy in that same time period, including a call from Kennedy to Jackson merely two minutes after the homicide. Given this evidence, it is not reasonably probable that further cross-examination of Detective Flesher regarding his "medical training," if any, would have changed the result here. (See Watson, at p. 836.)

DISPOSITION

The judgment is affirmed.

DATO, J. WE CONCUR: AARON, Acting P. J. GUERRERO, J.


Summaries of

People v. Kennedy

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Sep 27, 2018
D073847 (Cal. Ct. App. Sep. 27, 2018)
Case details for

People v. Kennedy

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. LAWRENCE EDWARD KENNEDY…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Sep 27, 2018

Citations

D073847 (Cal. Ct. App. Sep. 27, 2018)