Opinion
C078765
05-24-2017
THE PEOPLE, Plaintiff and Respondent, v. TERENCE BOWMAN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F00105)
Defendant Terence Bowman's trial attorney employed an unusual strategy during defendant's jury trial on the charge of rape. After the prosecution introduced defendant's statement to the police that he had not had sex with the victim at all, defense counsel moved to introduce a prior inconsistent statement by defendant that sex had been consensual. Defense counsel did not introduce the prior inconsistent statement to prove the truth of the statement, i.e., sex had been consensual, but to undermine the believability of defendant's other statement that sex had not occurred at all. In other words, defense counsel sought to make defendant's prior statements so unreliable the jury could not rely on his prior statement to the police even to establish consciousness of guilt. The trial court excluded the prior inconsistent statement offered by the defense, and the jury convicted defendant of forcible rape. (Pen. Code, § 261, subd. (a)(2).) The trial court found defendant had sustained a prior strike and a prior prison term. (§ 667, subds. (b)-(i); 667.5, subd. (b).) Defendant was sentenced to serve 22 years in state prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends (1) his prior inconsistent statement should have been admitted under Evidence Code section 1202 to impeach the statement he made to the police that he had not engaged in sex with the victim, and (2) the trial court erred in failing to give, on its own motion, a jury instruction on consciousness of guilt.
We conclude the trial court properly excluded the prior inconsistent statement because defendant was not trying to impeach his statement to the police. Stated another way, the prior inconsistent statement was not introduced for the purpose allowed by Evidence Code section 1202, namely to cast doubt on the veracity of the statement that he had not had sex with the victim. Neither the defense nor the prosecution expected the jury to believe defendant's statement to the police. We also reject defendant's claim of instructional error. In essence, defendant argues the lack of an instruction on consciousness of guilt allowed the jury to be overpersuaded by his statement to the police officer. But if the jury would have been unduly swayed by his statement to the officer in which he denied any sexual contact with the victim, the jury would have acquitted him of rape. In any event, the testimony and DNA evidence provided overwhelming evidence of guilt that rendered any of the claimed errors harmless. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
The victim, M.S., and her roommate, J.F., lived in a three-bedroom, one-bathroom house in Sacramento County. M.D. is a longtime friend of M.S. and lived next door.
M.D. met defendant online through social media in early December 2013. On December 30, 2013, M.D. and defendant met in person at M.S.'s house. That night, M.D. and defendant had consensual sex in one of the bedrooms. When defendant left the next morning, M.S. walked him out and opened the locked gate.
On January 3, 2014, M.D. went to M.S.'s house around 8:00 p.m., where she watched television and talked with M.S. and J.F. To M.D.'s surprise, defendant showed up around 9:45 p.m., bringing pizza and a bottle of peach vodka. He drank from the bottle and talked fast. M.D. assumed he had been drinking already.
M.D. and J.F. sat in the kitchen, eating pizza and drinking wine. M.S. did not drink wine, but smoked marijuana with defendant and M.D.. Defendant got louder and more aggressive. M.S. retreated to her bedroom, but left the door open and interacted with the others. M.S. was not interested in defendant. M.S. eventually closed her bedroom door.
Around 1:00 a.m., M.D. and defendant went into the guest room. Around 1:45 a.m., defendant, wearing only a towel, knocked on M.S.'s door and asked her for oil for a back massage. M.S. gave him the oil and closed the door behind him, but did not lock it. M.S. heard M.D. ask defendant angrily why he had gone into M.S.'s room so scantily dressed.
Defendant and M.D. had sexual intercourse that M.D. described as "rough." Defendant was more aggressive than he had been before. Defendant "was trying" to have oral and anal sex with M.D. that she did not want. Defendant became upset by M.D.'s refusal. When M.D. asked him to stop, defendant had not yet ejaculated. He yelled at her and called her a "bitch." Defendant announced he would roll a "blunt" and drink. While he sat on a chair in the bedroom, M.D. fell asleep.
Sometime later, defendant entered M.S.'s room and flicked on the light. As she woke up, M.S. first felt the covers being pulled and then defendant licking her upper thigh. She told him he was in the wrong room and ordered him out. Defendant left. A few minutes later, defendant returned, got on top of her, pinned her arms down, and had sex with her. She cried, yelled, "no." M.S. kept telling him it was wrong, he was hurting her, and she was afraid. Defendant ordered her to stop moving. He held her legs up in the air. He ejaculated inside M.S. Defendant got up and took a shower.
While defendant showered, M.S. got up, dressed, and left the house. She locked the door and the gate behind her to keep defendant from following her. She ran down the street to a market, where she told someone she had just been raped and asked for a ride to the hospital. Unable to get a ride, M.S. walked nine blocks to UC Davis Medical Center. As she walked, she called and sent text messages to M.D. and J.F. She asked J.F. to call the police.
M.D. woke up to find defendant staring at her. When he did not respond to her request to lie down beside her, she went back to sleep. She woke up again around 5:00 a.m. when defendant poured liquor on her face. She ordered him to get dressed and leave. He said he was not going anywhere because M.S. had not told him to leave. He walked around the house naked, calling M.D. a "bitch." Then he went to shower and ordered M.D. to find his boxer shorts. He continued "talking shit" to M.D. after he got in the shower.
M.D. got a text from M.S. Because the phone was locked, M.D. could read only part of the message that said defendant had to go. Disregarding M.D.'s demand he get out of the shower and leave, defendant stayed in the shower for 30 minutes. M.D. succeeded in reading the whole text, in which M.S. said defendant had raped her and she was headed to the emergency room. When M.S. got to the hospital, she called M.D. to reiterate defendant had raped her and M.D. should get him out of the house. M.D. returned to the bathroom and told defendant he had to leave because she had to join M.S. at the hospital. Defendant asked if M.S. had called the police.
J.F., having heard defendant yelling in the bathroom, asked M.D. to come into her room. After M.D. did so, J.F. locked the door and called 911. M.D. stayed in J.F.'s room for 10 minutes, then left in the hope of calming defendant and getting him to leave. Defendant was still trying to find his boxer shorts.
Defendant started to get dressed, then sat down, rolled a joint, and called M.D. to come back into the room. By this time the police had arrived. Without speaking to defendant, M.D. walked out the front door.
Around 7:30 a.m. on January 4, 2014, Sacramento County Sheriff's Deputies Adrian Zuniga and Evelyn Madriago arrived separately at the house in response to dispatches. En route, Deputy Zuniga learned a woman at that location claimed to have been raped and was now at UC Davis Medical Center.
Approaching the house, the officers observed M.D. and J.F. "in panic mode," huddled at the corner of a tall wrought-iron fence with a locked gate, screaming to be let out. Defendant came out and stood on the porch, shirtless and holding a bottle of vodka. He claimed he lived there with his "girlfriend" or "fiancée," but did not say who that was. M.D. told the officers she was not defendant's wife. After the two women got out, they indicated to the officers that defendant was the suspect.
Deputy Madriago and other officers at the scene detained defendant, while Deputy Zuniga entered the house. In M.S.'s locked bedroom, the officers found a pair of men's boxer shorts behind the door. A patdown search of defendant disclosed he was not wearing underwear under his pants.
Victim's Statements
Deputy Madriago took M.S.'s statement at the hospital. M.S. recounted defendant grabbed her arms to hold her down, then told her to shut up and not move. She did not scream for help. The rape lasted for 20 to 30 minutes.
Around 9:00 a.m., Dr. Angela Rosas conducted a sexual assault examination of M.S. M.S. said she had not had sex with anyone other than defendant in the previous five days and had not showered, brushed her teeth, eaten or drunk anything, or changed her clothes since the assault. She was crying and anxious, and vomited at some point during the examination. There was a bruise of undetermined age on her left thigh.
M.S. stated the assault occurred between 5:00 and 6:00 a.m. Defendant penetrated her with his penis, ejaculated in her vagina, licked her ears and face, and applied his mouth to her vagina and anus. Forensic swabs were taken of M.S.'s vagina and anus, and also of the skin around the ears. M.S. could not tolerate a complete pelvic examination and colonoscopy.
Defendant's Statements to the Police
At 9:32 a.m., defendant was interviewed in custody by Detective Anthony Brantley. Defendant was advised of and waived his Miranda rights. A recording of the interview was played at trial, and the jury received a transcript.
Miranda v. Arizona (1966) 384 U.S. 436 .
During the interview, defendant denied having sex with M.S. He claimed he had gone to M.S.'s house to see M.D., his "fianc[ée]." Once he was there, all three women in the house seemed to be flirting with him. Had it been up to him, he "would have had them all at once," but they were "feuding." He eventually had sex with M.D. and then fell asleep. When he woke up, he showered but could not find his boxers. He speculated M.S. had sneaked into the room and taken the boxers back to her room to cause confusion. Asked if he had had sex with M.S., he asked whether there was DNA and challenged the police to do a DNA swab. If any of his DNA was found, it could only be because M.S. had stolen his boxers. He opined M.S. "wanted" him and just did not tell him.
Sexual Assault Examination Forensic Evidence
The slides taken from the vaginal swabs were examined around 11:15 a.m. The slides showed nonmotile sperm. Sperm generally stop moving about four hours after ejaculation. The results of the examination were consistent with M.S.'s account of rape, but could also have been consistent with consensual sex.
Sacramento County Sheriff's Sergeant Carl Bowen and Deputy Madriago assembled a sexual assault evidence collection kit by taking head and pubic hair samples, a blood draw, and a penile swab from defendant. At the Sacramento County District Attorney's Laboratory of Forensic Services, criminalist Megan Wood performed a DNA analysis of both the items in the suspect kit and the items collected during the sexual assault examination of M.S. According to Wood, the sperm fraction on the vaginal swab would occur at random among unrelated individuals in "approximately 1 in 110 quintillion of the African-American population, 1 in 2 sextillion of the Caucasian population, and 1 in 360 quintillion of the Hispanic population." The sperm fraction on the anal swab would occur at random among unrelated individuals in "approximately 1 in 790 trillion of the African-American population, 1 in 19 quadrillion of the Asian population, and 1 in 4 quadrillion of the Hispanic population." The samples' DNA profile was consistent with that of defendant.
Defense
Defendant did not testify or call any witnesses. However, the defense did seek to call M.D. to testify defendant told her he and M.S. had consensual sex on the night of the incident. The trial court denied the motion under Evidence Code section 352.
DISCUSSION
I
Claimed Evidentiary Error under Evidence Code Section 1202
Defendant contends the trial court erred by preventing him from impeaching his own statement to the police by introducing his prior inconsistent statement to M.D. that he and M.S. had engaged in consensual sex. Defendant argues Evidence Code section 1202 compelled the admission of his prior inconsistent statement. We reject the argument.
A.
Evidence Code Section 1202Evidence Code section 1202 provides in pertinent part: "Evidence of a statement or other conduct by a declarant that is inconsistent with a statement by such declarant received in evidence as hearsay evidence is not inadmissible for the purpose of attacking the credibility of the declarant though he [or she] is not given and has not had an opportunity to explain or to deny such inconsistent statement or other conduct." Under the Evidence Code, "[h]earsay evidence" is defined as "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a), italics added.)
Evidence Code section 1202 provides for impeachment of hearsay statements by a declarant who does not testify at trial. Here, defendant did not testify at trial. However, even though he did not testify, a prior inconsistent statement could have been used to impeach evidence of another out-of-court hearsay statement. (People v. Baldwin (2010) 189 Cal.App.4th 991, 1003-1004 (Baldwin).) Although unusual, it is permissible for a party to impeach its own unavailable hearsay declarant with another prior inconsistent statement. (See, e.g., People v. Blacksher (2011) 52 Cal.4th 769, 804-806 [prosecution sought to impeach prior statement of witness in which she denied securing a restraining order against defendant].) Even so, Evidence Code section 1202 does not apply where an out-of-court statement is offered for the nonhearsay purpose of showing consciousness of guilt because the person making the out-of-court statement is not a "hearsay declarant" within the meaning of Evidence Code section 1202. (People v. Curl (2009) 46 Cal.4th 339, 362 (Curl).)
B.
Exclusion of Defendant's Prior Inconsistent Statement to M.D.
The defense theory of the case was that defendant and M.S. had engaged in consensual sex. Thus, defense counsel argued M.S. had consensual sex with defendant, then panicked because she thought M.D. would get mad at her. To succeed with this defense, defendant's trial counsel needed to persuade the jury to ignore defendant's statement to the police that he had never had sex with M.S. To this end, defense counsel moved to introduce defendant's prior inconsistent statement to M.D. that he had consensual sex with M.S. The prosecutor opposed the motion on grounds the statement was inadmissible for its truth under Evidence Code section 1202, and also inadmissible under Evidence Code section 352. The prosecutor argued defendant's motion was "an effort to essentially bootstrap . . . the whole defense that the sex was consensual by trying to offer it not for its truth, but for impeachment."
The statement the defense wanted to introduce was made after the statement in evidence the defense sought to impeach. However, the timing of the prior out-of-court statements relative to each other does not matter. Evidence Code section 1202 applies to inconsistent statements, not only prior inconsistent statements.
During a hearing on the motion, both parties agreed the statement could not come in for the truth of the matter asserted. This prompted the trial court to ask why the prior inconsistent statement would be relevant. Defense counsel replied: "To dispel the consciousness of guilt" stemming from defendant's statement to the police. Defense counsel sought to show defendant's statement to the police was a lie.
The trial court suggested that under Evidence Code section 352, the more limited the purpose for which the evidence was coming in, the greater the danger of prejudice from its admission. The prosecutor asserted the statement would show only that defendant was a liar, which the People did not dispute. The court remarked, "The argument is that the only probative value is what it's not to be considered for." Defense counsel said, "[i]t is. It appears counterintuitive." The court replied, "This whole thing is counterintuitive."
The trial court excluded the statement under Evidence Code section 352, explaining: "[B]asically, the Court's position is that just on the tenor of the statement itself, if the Court were to admit any portion of it, I would most likely only admit basically the acknowledgment of having sex. That is what is directly inconsistent with Brantley's statement [i.e., defendant's statement to Detective Brantley]. Any other references [are] equivocal on the part of the defendant in terms of whether or not a rape took place, he just flat-out denies having sex with her. [¶] Separate and apart from that, I think under a[n Evidence Code section] 352 analysis, in order to make the arguments, [defense counsel], that you desire to make, the jury would only have to construe that part of the statement as true. And based on that, I think weighing the [Evidence Code section] 352 considerations, the Court is not inclined to admit the statement of the defendant through [M.D.]"
C.
Defendant Was Not a Hearsay Declarant
Defendant's statement to M.D. was inadmissible under Evidence Code section 1202 because his statement to the police was not admitted for the truth of the matter asserted. The prosecutor argued to the jury the evidence of defendant's statement to the police was admitted solely to show consciousness of guilt. Defendant's statement to the police in which he denied any sexual contact with the victim was not "offered to prove the truth of the matter stated" due to the fact the People were not trying to prove defendant's innocence. Because defendant's statement to the police was not offered as hearsay, it was not subject to impeachment under Evidence Code section 1202. (Curl, supra, 46 Cal.4th at p. 362.) The trial court properly excluded the evidence of defendant's prior inconsistent statement.
Impeaching defendant's statements to the police with defendant's other out-of-court statements would not have served the purpose Evidence Code section 1202 was meant to serve, namely, to attack the credibility of statements the jury might otherwise have been led to think true. (E.g., Baldwin, supra, 189 Cal.App.4th at pp. 1003-1005.) Had the trial court admitted defendant's statement to M.D., it would have enabled defendant to include self-serving assertions that supported his defense in evidence without having to face cross-examination. Comporting with the language and spirit of Evidence Code section 1202, the trial court's evidentiary ruling was correct.
We reject defendant's reliance on Baldwin, supra, 189 Cal.App.4th 991. In Baldwin, the out-of-court statement defendant sought to impeach was a direct admission of guilt. Thus, the prosecution in that case did offer the admission to prove the truth of the matter asserted, rendering the defendant a hearsay declarant within the scope of Evidence Code section 1202. (Id. at p. 1002.) Baldwin is therefore inapposite.
The trial court did not err in excluding defendant's prior inconsistent statement to M.D.
Our conclusion the trial court properly excluded the prior inconsistent statement as inconsistent with Evidence Code section 1202 obviates the need to consider whether the evidence should redundantly have been excluded under Evidence Code section 352. --------
II
Claimed Instructional Error for Failure to Give CALCRIM No. 362
Defendant contends the trial court, on its own motion, should have instructed the jury on consciousness of guilt by giving CALCRIM No. 362. We are not persuaded.
A.
Evidence of Defendant's Statement to the Police
In moving to admit defendant's prior inconsistent statement, defense counsel argued the statement should be introduced to disprove consciousness of guilt in defendant's denial of having had sex with M.S. In response, the trial court asked whether consciousness of guilt was "a nonissue in this case?" Defense counsel stated the issue remained relevant on the expectation the People would argue defendant's statement to the police demonstrated consciousness of guilt. The trial court then inquired: "Are we giving the consciousness-of-guilt instruction?" The prosecutor replied: "I think it's highlighted." However, the jury instructions conference does not show either party requested CALCRIM No. 362 regarding consciousness of guilt.
During closing arguments, the prosecutor stated defendant's statement to the police was offered to show consciousness of guilt as follows: "[H]e knows that what he did was wrong, because if he were doing something that was [legitimate], there would be no reason to hide it." Defense counsel argued defendant's decision to stay in the house instead of immediately leaving before being detained indicated "consciousness of innocence," even though his statement to the police was false.
The trial court did not instruct the jury with CALCRIM No. 362.
B.
Instruction on Consciousness of Guilt
CALCRIM No. 362 explains consciousness of guilt as follows: "If [the] defendant . . . made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show (he/she) was aware of (his/her) guilt of the crime and you may consider it in determining (his/her) guilt. [You may not consider the statement in deciding any other defendant's guilt.] [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself."
It is well established the trial court generally has no duty to instruct sua sponte on consciousness of guilt. (People v. Najera (2008) 43 Cal.4th 1132, 1139 & fn. 3.) Nonetheless, " '[a] trial court has a duty to instruct the jury "sua sponte on general principles which are closely and openly connected with the facts before the court." ' " (People v. Gutierrez (2009) 45 Cal.4th 789, 824, quoting People v. Holt (1997) 15 Cal.4th 619, 688.)
Defendant argues that "[d]ue to the absence of both a particularized limiting instruction and an instruction on consciousness of guilt, the jury was allowed to consider appellant's statements to [Detective] Brantley for their truth." (Italics added.) We reject this argument. Had the jury been persuaded by the truth of defendant's statement to the police, jurors would have acquitted him of the rape.
Even assuming for the sake of argument the trial court should have instructed the jury with CALCRIM No. 362, the error was cured by other instructions. "The absence of an essential element from one instruction may be cured by another instruction or the instructions taken as a whole. [Citation.] Further, in examining the entire charge we assume that jurors are ' " ' "intelligent persons and capable of understanding and correlating all jury instructions which are given." ' [Citation.]" [Citations.]' " (People v. Smith (2008) 168 Cal.App.4th 7, 13, quoting People v. Guerra (2006) 37 Cal.4th 1067, 1148.) Here, defendant's jury was instructed to consider any of defendant's out-of-court statements along with all other evidence. And the jury was cautioned that defendant's out-of-court statements were not sufficient by themselves to convict. Indeed, the jury was instructed it could not rely on defendant's out-of-court statements only if it first concluded other evidence showed the crime was committed. In other words, the jury had to find a lack of consent before it could consider defendant's statement to the police - a statement that did not assert consent but denied sex with the victim altogether.
On this point, the evidence of forcible rape was extremely strong. M.D. testified that shortly before the rape, defendant had been unexpectedly rough with her during sex. M.D. explained defendant was upset and yelled at her. Before defendant raped M.S., defendant had not ejaculated during sex with M.D.
The victim testified defendant forcibly raped her. She had not been flirting with defendant, but instead had retreated to her own room. M.S. immediately reported the rape, went to the hospital, and informed her friends. At the hospital, M.S. was in shock and crying. She vomited during the examination. Where M.S.'s reporting was immediate and consistent, defendant spun a web of lies. He falsely claimed to the police M.D. was his fiancée. He attempted to explain his underwear ended up in the victim's bedroom through her subterfuge. And his denial of having sex with M.S. to the police was completely undermined by the DNA evidence that established he did have sex with M.S.
There is no reasonable probability the absence of a consciousness of guilt instruction had any effect on the outcome of trial. "The Watson harmless error standard is the standard applied by the California state appellate courts in reviewing non-constitutional magnitude, trial type errors. See, e.g., People v. Watson, 46 Cal.2d 818 (1956). In applying the Watson standard, California state appellate courts determine whether 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' " (Bains v. Cambra (9th Cir. 2000) 204 F.3d 964, 971, fn. 2.) In view of the overwhelming evidence against defendant, the claimed error did not affect the outcome.
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
NICHOLSON, Acting P. J. /s/_________
ROBIE, J.