Opinion
A130600
06-27-2012
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY LINDEL LEWIS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Humboldt County Super. Ct. No. CR1000078)
Johnny Lindel Lewis appeals his conviction for the murder of Robert Van Alstine. Lewis contends that the trial court erred in admitting his statement to police as evidence at his trial because he did not knowingly, intelligently, and voluntary waive his Miranda rights and did not voluntarily make the statement. Lewis further contends that other evidence concerning blood and weapons was wrongly admitted at trial, prejudicing his case. Lewis also contends that he was ineffectively represented by counsel at his trial and that admission of the blood and weapons evidence violated his right to due process. We affirm.
BACKGROUND
On November 18, 2009, shortly after 4:00 a.m., Jorge Briseno heard banging at the door of the mill where he worked in Fields Landing. Upon opening the door, Van Alstine stepped into the mill and fell to the floor, holding his stomach. Van Alstine said: "Help me. Help me please. I'm dying" Briseno called 911 and reported that Van Alstine was bleeding from his stomach, said he had been stabbed and was dying, but would not say who had stabbed him.
When police arrived, Van Alstine was unable to intelligently answer questions. He was transported to a hospital where it was determined that he had a critical wound to his lower right chest. Efforts to save Van Alstine were unsuccessful and he died.
An autopsy revealed that the primary wound was a single stab wound to the right chest. The wound was consistent with a person holding a knife slightly less than an inch wide in his right hand, standing with the victim's back toward the person holding the knife, reaching around the victim, and stabbing the victim in the right rib area. The knife penetrated the liver and the cause of death was the stab wound.
Van Alstine's residence was in Eureka above the California Market, which had video surveillance equipment installed. Detectives reviewed the video recordings and, based on the clothing he was wearing when he died, Van Alstine seemed to be in the recording about 3:55 a.m. on November 18, when a man got out of the passenger side of what appeared to be a red car and approached him. Van Alstine and the other man then moved outside of the camera's field.
On November 21, 2009, officers found a burned-out pink Ford Escort in a driveway. The owner of the residence said the car was not there earlier and he did not know to whom it belonged. The registered owner of the car, Andrea Marr, had reported it stolen. On the floor next to the passenger seat on the right side was the metal portion of a knife that was approximately four and a half inches long and three-quarters of an inch wide. The knife tested negative for blood, but the criminologist who tested the knife testified that it was possible to remove traces of blood from a knife and that a knife that had been in a fire would not be expected to test positive for blood.
Examination of Marr's cell phone records indicated that on November 18, 2009, at 3:36 and 3:48 a.m. her cell phone used a tower in Eureka. At 4:07 and 4:13 a.m. her cell phone used a tower in Loleta. At 4:34 and 4:40 a.m. her cell phone used towers heading south.
On November 24, 2009, detectives interviewed Marr, who said that she spent the nights of November 17 and 18, 2009, at home. She said she recognized Van Alstine from seeing his photograph in the newspaper but did not know him. Marr said she never loaned her car or cell phone to anyone. She said she parked her car and must have left the key in the door. When she returned, her car was gone. She denied being outside Eureka on November 18, 2009, and denied knowledge of the homicide or the people involved. She was not able to explain her vehicle being on the video surveillance recording or her cell phone making and receiving calls leaving Eureka and returning during the early morning hours.
Marr was arrested and charged with murder, at which point she made a different statement to the police. Marr testified at trial that in November 2009 she gave her friend, Maggie Sovereign, a ride from the clean and sober house where Sovereign lived in Eureka to Friendship House, a rehabilitation facility in San Francisco. Lewis, whom Marr knew as "Johnny George," Sovereign's boyfriend, rode with them. After dropping off Sovereign, Marr said she drove back to Eureka with Lewis. They arrived in Eureka in the middle of the night and Marr said that Lewis had been drinking Tequila on the way back. Marr related that Lewis had been upset about not seeing Sovereign for the six months she would be in treatment and that, in his emotional state, she did not want to leave him alone, so they drove around Eureka together.
Marr said that when they neared California Market, Lewis saw a man, whom Marr later learned to be Van Alstine, and asked Marr to pull over so he could talk to him. Lewis got out of the car, Marr explained, and asked Van Alstine if he wanted to go drink. Van Alstine agreed and got into the back seat. Marr testified that Lewis directed her to drive to Fields Landing. She remembered that Lewis told her that night that Van Alstine had slept with Sovereign during a period when Lewis was in jail, but she didn't remember at what point Lewis told her this.
Marr said that she parked in Fields Landing at Lewis's direction and Lewis and Van Alstine got out of the car. A couple of minutes later Marr said that she saw them fighting in her rearview mirror and she turned around to watch. She said that Lewis was punching Van Alstine, who was trying to block the punches. The fight ended when Lewis, who was behind Van Alstine, appeared to Marr to punch Van Alstine at a "weird angle" on his right ribs, after which Van Alstine ran away, yelling, "Johnny, I don't remember. I don't even know who your girlfriend is." According to Marr, Lewis returned to the car and told her to drive away with her headlights off, that he had to get rid of the knife, and that Van Alstine was going to die. Marr then drove back to Eureka with Lewis, but they may have first visited the house of Keta Rojas in Fields Landing. Marr did not remember whether the visit to Rojas's house occurred before or after Lewis's altercation with Van Alstine.
Marr later showed detectives Rojas's house and the location where the stabbing had occurred, approximately one-tenth of a mile from the mill where Van Alstine was found. Back in Eureka, Marr said that she and Lewis went to the home of Johnny Mahan, where Lewis washed the knife in the kitchen sink. Marr believed that Lewis traded the knife to Mahan for two wooden poles.
Over the next couple of days, Marr saw Jamie Rogers in Lewis's company. The last time Marr saw her car was when Rogers took it so that she could remove stickers and make it look less identifiable because the newspapers had reported that a car was observed in the California Market video surveillance. Rogers returned and told Marr to report the car stolen.
After making a statement to police, Marr pled guilty to being an accessory to murder after the fact, with a plea agreement specifying that if she testified against Lewis, she would be sentenced to probation and not to prison. Under the plea agreement, the murder charge was dropped.
Around 1:30 a.m. on December 4, 2009, Lewis was arrested for possession of a hypodermic needle and he was interviewed by Sergeant Wayne Hanson later that morning. Initially, Lewis could not recall anyone he knew with a red sedan, but when Hanson asked about Marr, Lewis admitted having ridden in her car with Sovereign, but only to pick up a prescription once during the daytime. Lewis claimed not to have been in Fields Landing for a few months. Hanson finally asked Lewis about riding in Marr's car about two weeks earlier, and Lewis admitted riding in the car when Marr took Sovereign to Friendship House but claimed to have gone straight back to the clean and sober house in Eureka. Hanson showed Lewis a photograph of Van Alstine and Lewis admitted knowing him on a casual basis, but said that he had not seen him for "a handful of months."
On further questioning, Lewis admitted that two to three weeks earlier, at six or seven in the evening, Marr was driving him to the store and that during the trip Marr had also given Van Alstine a ride and dropped him off somewhere. Then Lewis recalled that Van Alstine had jumped into the car with a friend of his, whom Lewis did not know, and Marr dropped them off at some apartments around midnight. Lewis denied getting into a fight with Van Alstine. Lewis also denied going to Fields Landing with Van Alstine. Questioned further, Lewis admitted to being in Fields Landing with Van Alstine "at Kita's." Lewis said that Van Alstine and his friend left the car in Fields Landing and he didn't know where they went. For the remainder of the interview, Lewis continued to deny fighting with Van Alstine or knowing who had stabbed him.
Jared Stapp lived at the clean and sober house where Sovereign and Lewis also lived. Stapp contacted police and told them that Lewis had told him that he had killed someone. He also said that there had been blood in a van that he had bought from Sovereign and that Lewis had left a sword at the clean and sober house. Detectives determined that the blood in the van was from a time before the Van Alstine homicide. Stapp showed the sword to an investigating officer, but police determined that it had nothing to do with the case. Stapp also said that when Sovereign went to San Francisco, a friend drove her there and Lewis accompanied them. Stapp told the officer that Lewis had not returned to the clean and sober house that night, that he did not see Lewis for several days after Sovereign left, and that when Lewis did return, Lewis told him, "I killed somebody."
Rojas testified to having no memory of a visit by Lewis and Marr to her apartment in Fields Landing on November 18, 2009. However, cell phone records showed that the cell phone that Rojas was using sent a text message to Marr's phone at 6:16 a.m. on November 18, 2009: "Hey, it's Keta. Please don't stop by again until late morning when baby's awake. Thanks."
The police searched Mahan's house for a knife that Lewis may have used. Mahan said that he and Lewis often traded items and that he had once lent Lewis a Gerber knife, but that Lewis had returned it "a long time ago." The police took all of Mahan's knives, but none of them tested positive for blood. In a recorded conversation with police, Mahan said that the last time Lewis had been there, they argued about Sovereign and Lewis told him "don't put your hands in your pocket, like (inaudible) people are going to get stuck around here. Saying he was going to stab people or whatever . . . ."
Hannah Mouser lived with Mahan, her boyfriend. She confirmed that Lewis and Mahan often traded items, including knives. Mouser said that Lewis and Mahan had argued because she was mad at Mahan and told Lewis, falsely, that Sovereign had sat on Mahan's lap. When detectives interviewed Mouser, she first confirmed that Lewis had traded a knife for sticks, but then said she was not sure the trade had actually occurred.
Lewis's clothes were collected and presumptive tests for blood were positive on his tennis shoes, T-shirt, and black hooded sweatshirt. Blood was conclusively found only on the T-shirt. A DNA test was performed and showed that the blood was Lewis's own blood.
On February 2, 2010, an information was filed accusing Lewis of murder in violation of Penal Code section 187, subdivision (a), a serious felony within the meaning of Penal Code section 1192.7, subdivision (c), and a violent felony within the meaning of Penal Code section 667.5, subdivision (c). A special allegation further alleged that Lewis personally used a deadly and dangerous weapon within the meaning of Penal Code section 12022, subdivision (b)(1), which caused the offense to be a serious felony within the meaning of Penal Code section 1192.7, subdivision (c)(23). Lewis pled not guilty.
On July 22, 2010, a jury found Lewis guilty of murder in the first degree and found the special allegation to be true. On October 12, 2010, the court sentenced Lewis to state prison for a term of 25 years to life for the murder conviction plus one year for the special allegation enhancement. On December 3, 2010, Lewis filed a timely notice of appeal.
DISCUSSION
I. Use of Lewis's Statements
Before trial Lewis filed a motion to exclude his December 4, 2009 statement to the police based on violation of the protections afforded by Miranda v. Arizona (1966) 384 U.S. 486 (Miranda). The court denied Lewis's motion, finding that a valid Miranda warning had been given, that Lewis affirmed his understanding of his rights, that Lewis had impliedly waived his rights to remain silent and to have counsel present at questioning, and that Lewis's statement was voluntary. On appeal, Lewis maintains that he did not knowingly, intelligently and voluntarily waive his rights and that his statement was not voluntary.
The court allowed the prosecution to introduce a redacted transcript of the interview and play only the audio portion of the videotaped interview. The excised portions included statements that Lewis was in handcuffs during the interview, information related to other crimes, reference to the polygraph, and Hanson's assertions during questioning that "all the witnesses" said that Lewis stabbed Van Alstine.
Because, as discussed below, we conclude that Lewis knowingly, intelligently, and voluntarily waived his rights to silence and counsel, and voluntarily made his statement to the police, we also conclude that the trial court did not err in admitting Lewis's statement into evidence. We thus need not reach Lewis's argument that admission of the statement was prejudicial. A. Standard of Review
Because Lewis's statement to police was recorded, what Lewis said to police is undisputed. Accordingly, we review whether the challenged statement was illegally obtained de novo. (People v. Bacon (2010) 50 Cal.4th 1082, 1105.) B. Miranda Protections
The admissibility of statements made by a defendant to authorities is governed by federal standards. (People v. Peevy (1998) 17 Cal.4th 1184, 1188.)
When a suspect is in custody and interrogated by authorities, the defendant's statements may not be used by the prosecution "unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." (Miranda, supra, 384 U.S. at p. 444.) The suspect must be warned that he has a right to remain silent, that any statement he does make could be used against him, and that he has a right to the presence of an attorney, either retained or appointed. (Ibid.)If, subsequent to these warnings, the suspect " 'voluntarily, knowingly and intelligently' " waives his Miranda rights, the suspect's statements, if also made voluntarily, become admissible. (Moran v. Burbine (1986) 475 U.S. 412, 421; Jackson v. Denno (1964) 378 U.S. 368, 385-386; People v. Ditson (1962) 57 Cal.2d 415, 438-439.) The prosecution bears the burden of proving the voluntariness of Miranda waivers and the subsequent inculpatory statements by the preponderance of the evidence. (People v. Clark (1993) 5 Cal.4th 950, 987, fn. 12, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
A suspect may waive Miranda rights either expressly or implicitly. (North Carolina v. Butler (1979) 441 U.S. 369, 373-376.) "[T]he waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the 'totality of the circumstances surrounding the interrogation' reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." (Moran v. Burbine, supra, 475 U.S. at p. 421.) "Once it is determined that a suspect's decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State's intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law." (Id. at pp. 422-423.) C. Lewis Gave a Knowing and Intelligent Waiver
When Hanson interviewed Lewis he did not initially provide a Miranda warning. Lewis's statements made before the warning are not at issue and after a brief exchange, Hanson said: "Cause you're, you're in jail so you have the right to remain silent. Anything that you say can and will be used against you in a court of law. You have the right to have an attorney and to have an attorney present before and during questioning. If you can not afford an attorney, one will be appointed free of charge to represent you before and during questioning if you desire, uh you can, you can decide at any time to exercise these rights and not answer any, excuse me, you can decide at any time to exercise these and not answer questions or make any statements, do you understand these, of these rights I explained to you?" Lewis said, "I yeah I understand what you're saying." Hanson shortly thereafter again asked Lewis, "Okay, well I mean you understand your rights right?" Lewis answered, "Yeah."
Hanson attempted to obtain an explicit verbal waiver from Lewis, several times asking if Lewis wanted to talk with him. Lewis would not answer directly, instead explaining that he didn't understand what was going on, but nonetheless talking with Hanson. Finally, Hanson said, "Okay well, well it sounds like you're willing to talk to me, you understand your rights and you're willing to talk to me, is that correct.?" Lewis again did not answer directly, but asked what they were going to talk about. From that point, Lewis continued to talk for an extended period of time with Hanson.
The transcript of the interview is 94 pages in length.
Lewis told Hanson several times that he was "lost" and didn't understand what was going on: "I don't know what's going on here"; "um I'm kind of lost right now" I mean all I know is that I got arrested last night and they found a hypodermic on me"; "I don't know, I don't know what's going on man . . . I'm like basically—what I'm saying is I'm kind of lost right now"; "well I know I'm getting arrested for a hypodermic and I'm sitting here in front of you and your reading me my rights"; I'm not understanding what's going on"; "I'm kind of lost a little bit"; "I'm kind of lost right now"; "I'm just like I'm kind of lost, I'm just waking up, um, and I'm like wow I mean."
Lewis argues that his expressions about not understanding what was going on and being "lost" indicate so confused a state of mind that he could not knowingly and intelligently waive his Miranda rights. The interview as a whole, however, does not indicate a confused state of mind. Lewis talked with Hanson for an extended period. Lewis understood Hanson's questions and he provided meaningful responses, gradually providing more information as it became apparent that prior statements would not satisfy Hanson.
When Lewis stated that he was "lost" and did not know what was going on, he knew that he had been arrested for possession of a hypodermic needle and was being questioned by police, but there was no reason for him to assume that he was a suspect in Van Alstine's murder, which occurred more than two weeks earlier. Without other indicia of confusion, Lewis's statements about not knowing what was going on and about being "lost" are most naturally interpreted as lack of awareness of the purpose of the questioning. We do not discern such a state of mental confusion that Lewis was unaware of the meaning of his rights or the use to which his statements might be put. Nor were there indications that Lewis was so confused that he could not knowingly and intelligently waive the rights secured by Miranda.
Late in the interview, Hanson told Lewis, "Okay we'll end the conversation and the next time I bring you down, I'll have a polygraph set up for you." Lewis responded, "You know I mean it's like fucking well can we, what you can do that without a lawyer[?] I mean I'm like (inaudible) I don't even got a lawyer[.] I mean how can you just force all this with out a lawyer[?] I mean I'm not trying you know what I mean I know my rights a little bit (inaudible)." Lewis contends that this statement demonstrates that he did not have a basic comprehension of the right to have counsel present during the questioning. However, this statement, in context, does not concern his right to have an attorney present during the interview then taking place. Instead, Lewis was challenging whether Hanson could, in the future, actually compel a polygraph examination without advice from counsel. The remark does not indicate that Lewis was unaware of his right to the presence of counsel; rather, it indicates that Lewis fully understood his right not to undergo a polygraph examination without the benefit of an attorney, should he request one.
Hanson provided Lewis a valid Miranda warning and Lewis expressly stated that he understood his rights. Lewis then talked at length with Hanson in a way that demonstrated that he understood Hanson's questions and that, as the interview went on, he understood he was a suspect in the murder of Van Alstine. Contrary to Lewis's contentions, we do not find evidence, considering the interview as a whole, that Lewis exhibited extreme mental confusion or a misunderstanding of his rights. We conclude that by his behavior, Lewis implicitly waived his rights and that this waiver was knowing and intelligent. D. Lewis's Waiver and Statement were Voluntary
Lewis next contends that because he was "detoxing" from recent drug use at the time of the interview, improper "physical and psychological pressures" employed by the police rendered his waiver and statement involuntary.
" 'A statement is involuntary if it is not the product of " 'a rational intellect and free will.' " [Citation.] The test for determining whether a confession is voluntary is whether the defendant's "will was overborne at the time he confessed." [Citation.] " 'The question posed by the due process clause in cases of claimed psychological coercion is whether the influences brought to bear upon the accused were "such as to overbear petitioner's will to resist and bring about confessions not freely self-determined." [Citation.]' [Citation.] In determining whether or not an accused's will was overborne, 'an examination must be made of "all the surrounding circumstances— both the characteristics of the accused and the details of the interrogation." ' " ' " (People v. McWhorter (2009) 47 Cal.4th 318, 346-347.) " 'A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions. [Citation.] A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. [Citation.] Although coercive police activity is a necessary predicate to establish an involuntary confession, it "does not itself compel a finding that a resulting confession is involuntary." [Citation.] The statement and the inducement must be causally linked.' " (Id. at p. 347.)
Lewis first argues that the police deceived him into believing that the questioning would be brief and would concern his arrest for possession of a hypodermic needle. One of Hanson's early questions was, "Did you get arrested last night?" Lewis believes that this indicated that this arrest would be the topic of the interview. When Lewis asked to use the bathroom, Hanson responded, "Yeah well this may only take a second" and that they would "get to the bathroom request here in a second." Lewis does not explain how this "deception" operated to coerce his waiver or statement in conjunction with his symptoms of drug withdrawal. Knowing that he would be questioned about matters unrelated to the reason he was arrested and that the interview might be lengthy "could affect only the wisdom of a Miranda waiver, not its essentially voluntary and knowing nature." (Colorado v. Spring (1987) 479 U.S. 564, 577.) Hanson made no threats or promises and did not exert improper influence.
Second, Lewis contends that Hanson "trivialized and downplayed the importance" of his rights because, before informing Lewis of his rights, Hanson said, "Okay because you have those bracelets on, you're, you're in handcuffs, I have to read you your rights okay?" Lewis relies on People v. Musselwhite (1998) 17 Cal.4th 1216, 1237: "[E]vidence of police efforts to trivialize the rights accorded suspects by the Miranda decision—by 'playing down,' for example, or minimizing their legal significance—may under some circumstances suggest a species of prohibited trickery and weighs against a finding that the suspect's waiver was knowing, informed, and intelligent."
Here, the fact that Lewis was in handcuffs, had been arrested, and was not free to leave meant that Hanson was proposing a custodial interrogation. Hanson's observation was merely an acknowledgement that the circumstances required that the Miranda warnings be given. It is not an obvious inference that Hanson sought, by his comment, to trivialize or minimize the importance of Lewis's rights, nor does Lewis point to any additional evidence that would support such an inference. Indeed, Hanson asked Lewis three times whether he understood his rights, which is inconsistent with an attempt to minimize their importance. We discern nothing improper in Hanson's comment.
Third, Lewis contends that the police timed his arrest with knowledge that he would be suffering from the discomfort and withdrawal of recent drug use. He argues that during the interview he experienced obvious drug withdrawal symptoms and was questioned after only a few hours of sleep. During the interview, he stated numerous times that he was tired, hung over, detoxing, and had "cotton mouth." Lewis believes that "the police intentionally created the environment for appellant's physical condition to be exploited by additional physical and psychological pressures," rendering his waiver and statement involuntary.
When a defendant is experiencing the symptoms of drug withdrawal, that fact alone does not render a waiver or statement involuntary. (U.S. v. Coleman (9th Cir. 2000) 208 F.3d 786, 791 ["Nor did Defendant's symptoms of heroin withdrawal render his statements involuntary. Although Defendant's heroin withdrawal caused lethargy and physical discomfort, such symptoms alone are insufficient to establish involuntariness."].) As indicated above, there must, in addition to the symptoms of drug withdrawal be some showing of coercive police activity as a necessary predicate.
At one point during the interview, Hanson told Lewis: "Since November the eighteenth . . . there has been three detectives tracking you and everybody else in this case and people are talking so here we're sitting talking to you . . . ." At another point, Hanson told Lewis that they had not arrested him earlier so that he "could sink [his] own boat by talking to everybody in Eureka." Neither this or anything else that Hanson said during the interview justifies an inference that Lewis's arrest was timed to take advantage of symptoms of drug withdrawal during his interrogation.
Having discerned no improper tactics on the part of the police in the interview with Lewis, we conclude that there was no coercion or inducement that operated to render Lewis's waiver or his statement involuntary. Without coercion, inducement or improper influence on the part of the police, Lewis's argument that his waiver and statement were involuntary fail. We are left with an argument based solely on Lewis's physical symptoms of drug withdrawal, which standing alone do not suffice to establish involuntariness and which were not so severe as to prevent Lewis from meaningfully answering Hanson's questions for an extended period. No circumstances of the interview support a conclusion that Lewis's waiver or statement were involuntary. E. Lewis did not Invoke His Right to Counsel
During the interview, Hanson suggested that Lewis take a polygraph test later that day. Lewis responded, "(inaudible) do this without a lawyer, because it's like, it's like you're like throwing all this at me." Hanson wanted Lewis to directly answer whether he was willing to take a polygraph: "Johnny, Johnny it's either yes or no." A few sentences later, Lewis said, "you want to throw all this stuff on me, where's our lawyer[?]" Hanson again mentioned taking a polygraph later that afternoon, and Lewis responded, "You know, I mean it's like fucking well can we[?] What, you can do that without a lawyer[?] I mean I'm like (inaudible) I don't even got a lawyer[.] I mean how can you just force all this without a lawyer[?] I mean I'm not trying you know what I mean I know my rights a little bit (inaudible)."
"In the context of invoking the Miranda right to counsel, the Court in Davis v. United States [(1994)] 512 U.S. 452, 459 . . . held that a suspect must do so 'unambiguously.' If an accused makes a statement concerning the right to counsel 'that is ambiguous or equivocal' or makes no statement, the police are not required to end the interrogation, ibid., or ask questions to clarify whether the accused wants to invoke his or her Miranda rights . . . ." (Berghuis v. Thompkins (2010) 560 U.S. ___, ___ [130 S.Ct. 2250, 2259-2260].)
Each time that Lewis mentioned a lawyer, it was in connection with Hanson's suggestion that Lewis take a polygraph test. As discussed above, these statements are most easily interpreted as expressing unwillingness to undergo a future polygraph test without benefit of counsel rather than an unwillingness to continue the current interview without benefit of counsel. At best, Lewis's statements concerning counsel were ambiguous, but ambiguous statements about counsel are not sufficient to invoke the right to counsel. F. Lewis did not Invoke His Right to Silence
Included as part of Lewis's argument that he invoked his right to counsel are requests he made to return to his cell. Because such statements have nothing to do with invocation of the right to counsel, we construe the inclusion of these statements as an argument that Lewis invoked his right to silence.
During the interview, Lewis said, "You know what no disrespect or nothing you know what I mean if possible I go up to my cell or whatever cause I'm fucking detoxing right now." Hanson did not refuse to end the interview. He replied, "Mm hmm," and Lewis continued talking.
Shortly after this, Lewis said, "(Inaudible) go back to my cell and lay, lay down or something because it's like I'm, I'm fucking, I'm hung the fuck over . . . ." Again, Lewis continued to talk with Hanson after this statement. Lewis then obliquely asked whether they couldn't talk later in the day: "I'm fucking detox from alcohol right now, really bad you know what I mean . . . and in a while we can talk some more or whatever okay." Yet again, Lewis continued to talk with Hanson.
These statements by Lewis indicate that he was physically uncomfortable and would rather have been lying in his cell than facing Hanson's questions. However, these statements were not invocations of Lewis's right to silence. Lewis continued to talk with Hanson after each of these statements, and the last of these statements makes it clear that Lewis remained willing to talk with Hanson, but would rather do it later. We conclude that Lewis did not invoke his right to silence.
Even if we were to conclude that Hanson's statements that he would rather be in his cell were ambiguous, the Supreme Court has ruled that, like ambiguous invocations of the right to counsel, ambiguous invocations of the right to silence do not suffice. (Berghuis v. Thompkins, supra, 560 U.S. at p. __ ; People v. Bacon (2010) 50 Cal.4th 1082, 1107, fn. 5.)
II. Admission of Other Evidence
Lewis contends that the trial court abused its discretion in admitting certain evidence at his trial because it was unduly prejudicial in comparison to its probative value. A. Standard of Review
Evidence Code section 352 gives a trial court the 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." "A trial court's decision to admit or exclude evidence is a matter committed to its discretion ' "and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." ' [Citation.]" (People v. Geier (2007) 41 Cal.4th 555, 585, overruled on other grounds in Melendez-Diaz v. Massachusetts (2009) 557 U.S. __, __ [129 S.Ct. 2527, 2532].) B. The Gerber Knife
All further statutory references are to the Evidence Code unless otherwise indicated.
The prosecution called Mahan to the stand to establish a motive of jealousy and corroborate Marr's account of an early morning visit with Lewis to Mahan's residence. When Mahan was interviewed by Hanson, Mahan said that the last time Lewis had come to his place it was "early in the morning . . . like three, four" and Lewis "came in and accused me humping his old lady, because my girlfriend was mad at me and said something about she got to close to me was almost sitting on my lap or something." Mahan said that on that occasion, Lewis told him, "don't put your hands in your pocket, like (inaudible) people are going to get stuck around here. Saying he was going to stab people . . . ." Mahan said that Marr was present when this argument occurred, but denied that Lewis wanted to trade anything with him on this occasion.
At trial, the prosecution asked Mahan about this altercation and Mahan said that the incident in which Lewis had accused him of carrying on with Sovereign was prior to the argument in which Lewis had told him to take his hands out of his pockets. Mahan denied ever saying that Lewis had threatened to stab him during the argument.
The prosecution also asked Mahan whether Lewis had come to trade a knife for anything. Mahan said that "a long time ago" he had loaned Lewis a knife, which he later identified as a Gerber knife, because "he was going fishing or something." Mahon had earlier told the police that Lewis had borrowed the knife, later returning it, because "these guys down there at—Bovencamp over there are giving him a hard time." At trial, Mahan denied remembering that he had told police that Lewis wanted the knife for that reason.
The court allowed the prosecution to impeach Mahan's testimony, over defense objection, by playing the first four minutes of Mahan's taped statement to police and by allowing Hanson to read portions of the transcript of his interview with Mahan, including the statement about why Lewis had borrowed the knife. Lewis's counsel objected that the statement was irrelevant and prejudicial. The trial court found that Mahan's credibility was critical and that evidence about the Gerber knife was express evidence showing that Mahan said one thing on the stand but previously had said something else. The court added: "And I think it's very clear it has nothing to do with the [knife used in the murder]. I think that can be cleared up, but it has to do more with what Mr. Mahan is willing to say now about what he may know in the case." During the cross examination of Hanson, defense counsel asked questions of Hanson that made it clear that Lewis had borrowed and returned the Gerber knife before the Van Alstine murder.
The court suggested to defense counsel that a limiting instruction concerning the Gerber knife could be given to the jury. Defense counsel, however, did not request such an instruction, believing that doing so would cause confusion or bring more attention to the matter.
In discussing instructions with counsel, the prosecution stated, "There was one submitted by counsel during the trial, your Honor. I understand he has withdrawn that instruction. It was a special instruction." Defense counsel then clarified that, "[i]t was regarding the impeachment issue and I'll leave the instruction in its present form. I think it's confusing, otherwise." The court asked, "Oh. There was an indication on the record that he would be asking for some type of limiting instruction, but you decided not to do that because that would just confuse or call more attention to something?" Defense counsel replied, "I believe so."
Mahan's credibility was at issue because on important facts that incriminated Lewis, his testimony was contrary to that of other witnesses. As examples, Mahan claimed not to have seen Lewis ever washing a knife in his house and not to have traded a knife with him for sticks. There were legitimate reasons for the prosecution to impeach Mahan's testimony and evidence that Mahan had told police that Lewis had borrowed the Gerber knife because some people were giving him a hard time was inconsistent with Mahan's testimony at trial that Lewis had borrowed the knife to go fishing. We conclude that the evidence in question was relevant for the purpose of impeaching Mahan's testimony.
Lewis relies on People v. Henderson (1976) 58 Cal.App.3d 349, 360: "Evidence of possession of a weapon not used in the crime charged against a defendant leads logically only to an inference that defendant is the kind of person who surrounds himself with deadly weapons—a fact of no relevant consequence to determination of the guilt or innocence of the defendant." In Henderson, however, the court found that the evidence in question should not have been admitted because it was irrelevant, and thus inadmissible under section 350, which specifies that only relevant evidence is admissible. (Henderson, at p. 360.) Here, the evidence was relevant to incriminate Mahan and the question is whether the trial court abused its discretion under section 352.
Lewis also relies on McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378. The evidence at issue in McKinney concerned a Gerber knife that "was indisputably no longer in McKinney's possession" at the time of murder. (Id. at p. 1382.) The prosecution argued that "the knife evidence . . . was admissible to dispute McKinney's claim that he was 'knife-free' at the time of the murder." Because the Gerber knife was not in McKinney's possession, the court found that evidence concerning it was "irrelevant to any element of the prosecution's case, including opportunity, and is irrelevant to any argument that he was 'knife-free.' " (Ibid.)In contrast to McKinney, the evidence at issue here is relevant for the impeachment of Mahan's testimony.
Lewis's argument concerning these cases is artfully misdirected: "These cases recognize the inherent unfairness in the prosecution diverting the jury's attention from issues of guilt or innocence to issues of criminal propensity by introducing evidence of past or present possession of unrelated deadly weapons." Lewis here fails to acknowledge that his possession of the Gerber knife at some time in the past was already established, without objection, by Mahan's testimony. Mahan's statement to police differed from his trial testimony not on the fact of possession, but on the purpose of the possession.
The trial court did not disregard the possibility that evidence about Lewis's reason for borrowing it was more prejudicial than probative. The court weighed its value as probative for impeachment against the prejudice that might accrue to Lewis. Because it was clear that the Gerber knife was not involved in the murder, and the jury could be apprised of that fact, the court denied the objection based on section 352. The trial court's evidentiary ruling about the Gerber knife was not arbitrary, capricious, or reached in a patently absurd manner and we affirm that ruling. C. Blood in Stapp's Van and Possession of a Sword
Stapp was called as a witness by the prosecution to testify concerning Lewis's whereabouts around the time of the murder and Lewis's admission that he had killed someone. Stapp claimed that he could not remember much of what he had previously told the police because of a head injury and being high on methamphetamine.
When Stapp had contacted police, he expressed concern about blood in the van that he had bought from Sovereign (though his call indicates Lewis as the person who sold him the van). At trial, Stapp was asked, "Were you concerned about the fact that you thought there was something in your van?" Stapp replied, "I have no idea."
In his call to the police, Stapp also said that Lewis "left a sword on the premises of the clean and sober house property. So I mean, I don't know what the guy was murdered with or whatever but if it was a big knife or something like that, there's a sword ya know." At trial, Stapp said that he had found a sword in the yard at the clean and sober house and that he had turned it over to the police. When asked if he had told the police who he thought the sword belonged to, Stapp replied, "I told them it might have been his. I don't know for a fact but . . . ." Stapp was then asked, "Do you remember telling law enforcement that you knew it belonged to him because you had seen him with it?" and Stapp replied, "I seen him with one."
The prosecution requested permission from the court to admit the recorded telephone call that Stapp had made to the police "not only as a prior inconsistent statement for what he testified to on the stand but also to refute his suggestion to this jury that he was unable to really recall what took place between he and the defendant." The defense objected to introduction of the recorded call because it was hearsay and unduly prejudicial. After listening to the tape, the court observed: "The tape doesn't seem to sound like he has any memory problems whatsoever. Seems pretty clear. He's not stumbling over what happened or what was in the van. Seemed like a pretty clear memory in this tape." The court determined that Stapp was "either being deliberately evasive or untruthful" and that his testimony was not due to "an honest memory loss." The court decided to "allow it in under the hearsay exception since he is subject to being recalled." The court also overruled the section 352 objection as to Stapp's concern about blood in the van he bought from Sovereign because the later police interview with Stapp included the police acknowledgment that any blood in the van was from before Van Alstine's murder and not related to the crime with which Lewis was charged.
The Stapp recording was played for the jury and Detective Troy Garey testified regarding his later interview of Stapp.
"[A] trial witness's deliberately evasive forgetfulness is an implied denial of prior statements, which creates 'inconsistency in effect' and authorizes admission of the witness's prior statements under Evidence Code section 1235." (People v. Perez (2000) 82 Cal.App.4th 760, 764.) Because the trial court found that Stapp was being deliberately evasive or untruthful by feigning memory loss, a finding that Lewis does not dispute, Stapp's prior inconsistent statements were admissible under section 1235.
Section 1235 states: "Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770." "Prior inconsistent statements are admissible under this provision to prove their substance as well as to impeach the declarant." (People v. Guerra (2006) 37 Cal.4th 1067, 1144, disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.)
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Stapp claimed at trial that he had no idea whether something in the van was of concern to him. The evidence in the recorded phone call that Stapp was concerned about blood in the van was relevant as impeachment evidence to demonstrate to the jury that Stapp's lack of memory was feigned. Because Stapp had purchased the van before the homicide, nothing found in the van was relevant to the charges against Lewis, and this was made clear to the jury through Garey's testimony. Evidence of blood on an object associated with a defendant that is manifestly unrelated to the charges against defendant has little if any prejudicial effect. Jurors understand from their common experience that traces of their own blood may be found on objects associated with them. We see little danger that jurors might draw improper conclusions from the evidence of blood in the van that was discounted by the police. Thus, we see no abuse of discretion in the trial judge's decision to admit this evidence.
As for the sword, we find nothing in the record to indicate that defense counsel made an objection at trial, other than the same hearsay objection that applied to the evidence of blood in the van, and dealt with above. When Stapp testified about the sword at trial, defense counsel offered no objection. When defense counsel raised a section 352 objection to the admission of inconsistent statements, only the evidence of "blood in a van, things specifically relating to that" was at issue. Garey's testimony included no new information about the sword, except that it was "a little bit shorter" than a "normal long, long sword," and again defense counsel raised no objection Because no section 352 objection was made below to evidence about the sword, Lewis has forfeited this issue on appeal. (See § 353; People v. McDonough (2011) 196 Cal.App.4th 1472, 1488 ["[t]he failure to make a timely and specific objection on the ground asserted on appeal forfeits the issue on appeal"].) D. Blood on Lewis's Clothing
When presumptive blood tests were performed by Karen Quenell on the clothing that Lewis was wearing when he was arrested, some items tested positive. It is not uncommon for such tests to be positive even when blood is not present. Lewis submitted a motion in limine to exclude the results of these tests, because without additional information, the results would not be relevant.
By the time the court held a hearing on Lewis's motion, the Department of Justice laboratory had determined that Lewis's T-shirt actually did have human blood present. The prosecution was attempting to put a rush status on DNA testing, but it was not known if DNA results would be ready before trial. The court concluded that if DNA tests were not ready before trial, then because human blood had been found, the evidence about blood on Lewis's clothing would be relevant, and Lewis could argue the weight that the jury give to that evidence. If DNA evidence became available and showed that the blood was not Van Alstine's, then that "pretty much ends that value of that evidence." In that case, the court opined, without any final ruling on Lewis's motion, that the evidence would not be admitted, unless Lewis wished to make some use of it.
DNA results did become available before trial and indicated that the blood on Lewis's T-shirt was his own. The court addressed defense counsel: "Okay. So you have anything to say then in that regard? You had started out with the—this had all started with the motion in limine having to do with Miss Quenell." Defense counsel replied, "Yes. Yes. And as it's my client's own blood, I—I don't have an issue with it." Defense counsel did not later object when Quenell testified about the presumptive blood tests she had performed. Quenell's testimony was immediately followed by testimony, without objection, that blood was actually found only on Lewis's T-shirt and that this blood was his own.
Lewis's counsel effectively withdrew his motion in limine objecting to Quenell's testimony when he told the court that because the blood now proved to be Lewis's, he didn't "have an issue with it." Because no objection was later made during trial, we conclude that Lewis has forfeited an argument on appeal that the evidence about blood on his clothing was admitted in error. (See § 353; People v. McDonough, supra, 196 Cal.App.4th 1472, 1488.)
III. Ineffective Assistance of Counsel
Lewis posits that because his defense counsel failed to request a limiting instruction for the evidence about the Gerber knife and failed to renew an objection to the blood test evidence, he was denied his Sixth Amendment right to effective representation.
"A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).)
"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' [Citation.]" (Strickland, supra, 466 U.S. at p. 689.)
"When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.] Even where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., that ' " 'but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " ' [Citations.]" (People v. Anderson (2001) 25 Cal.4th 543, 569.) "If 'counsel's omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed.' " (People v. Diaz (1992) 3 Cal.4th 495, 557.)
The trial court offered to give a limiting instruction concerning Mahan's statements to police about the Gerber knife. Lewis's counsel decided not to request such an instruction, believing that doing so would cause confusion or bring more attention to the matter. Defense counsel made a tactical choice not to request a limiting instruction on considerations that are commonly of concern in courtroom practice. Nothing in the record leads us to believe that counsel's choice fell below the standards of reasonable decision making.
As for the evidence about blood on Lewis's clothing, the record does not indicate a reason for defense counsel's failure to object to its admission. The evidence conclusively showed that where blood had actually been detected on Lewis's clothing, it was Lewis's own blood. This was potentially useful to the defense and nothing in the record supports an argument that defense counsel did not make a tactical decision to allow the jury to hear that the victim's blood was not on Lewis's clothing or that such a decision would have been unreasonable. Because the failure to object to the admission of this blood evidence may have been a valid, tactical choice by defense counsel, this argument for ineffective assistance also fails.
IV. Violation of Due Process
Lewis contends that because the blood and weapons evidence, even if properly admitted under state law, could lead the jury to draw improper inferences about his character, admission of this evidence without a limiting instruction violated his right to due process.
The Supreme Court has expressly reserved opinion on the question at issue: "[W]e express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of 'prior crimes' evidence to show propensity to commit a charged crime." (Estelle v. McGuire (1991) 502 U.S. 62, 75, fn. 5.) The California Supreme Court has rejected the assertion that relevant evidence, properly admitted, can constitute a violation of federal due process rights: "Because the evidence of defendant's suicide attempt and violent rebuff of the orders of prison guards was relevant to rebut his own evidence of his peaceful adjustment in prison, we find the trial court did not abuse its discretion in admitting such evidence. The evidence being admissible, we find no basis for defendant's further claims that admission of this evidence violated his federal constitutional rights to due process, a fair trial, the effective assistance of counsel, and "to a reliable penalty determination." (People v. Gurule (2002) 28 Cal.4th 557, 656; see also People v. Booker (2011) 51 Cal.4th 141, 188 ["Defendant notes other jurisdictions have prohibited or otherwise limited the introduction of uncharged violent criminal conduct. [Citations.] As defendant concedes, however, we repeatedly have ruled there is no prohibition against such evidence in California. Defendant offers no persuasive reason to reexamine these prior decisions."].)
Lewis's argument relies in large part on Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769, a case that was overruled on procedural grounds in Woodford v. Garceau (2003) 538 U.S. 202. Because Garceau constitutes neither state nor federal precedent, we decline to consider it when California precedent speaks clearly on the matter.
Here, the evidence of which Lewis complains was, as discussed above, relevant and properly admitted by the trial court and, thus, cannot have violated Lewis's right to due process.
DISPOSITION
The judgment of the trial court is affirmed.
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Lambden, J.
We concur: ______________
Haerle, Acting P.J.
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Richman, J.