Opinion
A145392
04-19-2017
THE PEOPLE, Plaintiff and Respondent, v. BARRON EDWARDS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 1404367)
A Contra Costa jury found defendant guilty as charged of committing a number of sex offenses on three minors, following which he was sentenced to state prison for an aggregate term of 32 years to life. There is no need to summarize the evidence introduced at the trial because defendant does not challenge its sufficiency, and because the parties' briefs demonstrate that they are completely familiar with that evidence. We therefore proceed directly to defendant's three contentions.
Confidential Medical Records
It appears that during jury selection the prosecution made a request for the trial court to conduct an in camera review of two of the victims' medical records. The reporter's transcript shows that the "pediatric records" were procured by subpoena from the defense, and, with the concurrence of the prosecution, submitted to the court for its review. There is a reference to "6 to 8 pages" that had already been "disclosed," and which the court confirmed "what I'm reviewing for is evidence of lack of physical trauma to the genitals" during a specified period. After discussing with counsel the records' possible relevance, the court stated how the matter then stood: "[U]ntil I see the records, I can't really evaluate how that will play out. [¶] But what I will probably do is review the records when I get them." It appears that the defense then provided the records to the court.
The court also stated it had already reviewed the "not terribly voluminous" records of the third victim. These had been "on the disk," and were "printed out" by the court. After reviewing them, the court concluded that "none of these records arguably or even theoretically possibly relate to any sexual assault or misconduct, so I don't see any reason to disclose them." A moment later the court reiterated that "What I've reviewed has absolutely no possible re1evance to this case."
If, before the actual trial commenced, the court made a formal ruling on the pending request to review the two other victims' medical records, it does not appear in the record. On the reasonable assumption that the court decided against disclosure, defendant in effect asks that this court conduct an independent review of the trial court's decision to deny the defense access to medical records of the first and third victims. The Attorney General has no objection to our doing so.
The problem is that none of the records have been provided to us in the record on appeal. We do not have the records defense counsel provided to the trial court. We also lack either "the disk" or the print out of its contents. Defendant did not provide any of these materials, nor did he request that the record be augmented with them under seal. We have contacted the clerk of the trial court, who advises no disk or print out is in the court file. In short, we have nothing to review. In these circumstances, a conclusion of prejudicial error is not feasible, because it would amount to presuming error, thus violating the most elemental principle of appellate review. (See, e.g., People v. Giordano (2007) 42 Cal.4th 644, 666; People v. Douglass (1893) 100 Cal. 1, 4.)
Improper Opinion Evidence
Retired Detective Deputy Sheriff Chris Wilson was one of the investigating officers. During the course of that investigation, Wilson interviewed defendant and the three victims. The jury was shown a videotape recording of defendant's interview. On direct, and on cross-examination, Wilson answered questions about interview techniques in general, and those he had used with defendant in particular. The defense cross-examination concluded with the phenomenon of false confessions. Wilson was asked whether "you . . . know that false confessions are, like, the second biggest cause of wrongful convictions?" Wilson answered: "No, I didn't know that. And in my training and experience, I've never had somebody falsely confess to child molestation." Defense counsel then asked "So you just don't think it happens?" Wilson answered: "I'm not saying it doesn't happen. I'm talking about my own training and experience" On redirect, Wilson reiterated that he had "[n]ever heard of someone falsely confessing to molesting a child."
To quote the caption in his brief, defendant contends that "Officer Wilson's testimony that no-one ever gave a false confession to child molesting—effectively telling the jury that Mr. Edwards had lied at trial—violated Mr. Edwards's state and federal due process rights to a fair jury trial." The contention must be rejected for two reasons.
First, at no point did Wilson's testimony elicit the timely and specific objection needed to preserve the issue for review. (Evid. Code, § 353, subd. (a); People v. Kennedy (2005) 36 Cal.4th 595, 612.) Second, as defendant had not yet testified, it would be impossible for Wilson to label his anticipated testimony—if indeed defendant did take the stand—as mendacious. The contention is thus based on the logical fallacy of post hoc ergo propter hoc reasoning. (See People v. Benson (1990) 52 Cal.3d 754, 781.) Ergo, Wilson did not cross the line of offering an impermissible opinion on defendant's credibility and/or innocence. (See, e.g., People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77, 82.)
Lastly, we reject defendant's claim that his trial counsel was constitutionally incompetent for failing to object to Wilson's testimony. Wholly apart from the precept that " 'deciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance,' " (People v. Harris (2008) 43 Cal.4th 1269, 1290), the preceding paragraph establishes that there was no basis for objecting to Wilson's testimony on the basis of defendant's testimony yet to come. "Counsel is not required to proffer futile objections." (People v. Anderson (2001) 25 Cal.4th 543, 587.)
Prosecutorial Misconduct
Defendant's final contention is based upon two instances of alleged misconduct by the prosecutor in his closing argument.
Appointed counsel for defendant frames the background of the first instance with admirable brevity: "The defense presented was straightforward: Mr. Edwards did not engage in improper conduct with Jane Does 1 or 3 at all. In support of this defense, [defense] counsel contended in closing remarks that the prosecutor simply had not proven his case beyond a reasonable doubt. . . . [¶] . . . [¶] With respect to Jane Doe 1, the prosecutor alleged the charged conduct occurred between January 1, 1996 and March 4, 1998. Jane Doe 1 was born on March 4, 1990. Thus, the state was alleging that the improper conduct occurred when Jane Doe 1 was between 5 years, 7 months old and 7 years old."
"During closing arguments defense counsel sought to explain to the jury the timing problems with the state's case. Counsel pointed out that Jane Doe 1's testimony described [two] incidents that occurred 'outside the scope of the time that the prosecutor has even charged this.' . . . . But even accepting Jane Doe 1's testimony in its entirety, there simply was not proof beyond a reasonable doubt that the two incidents occurred within the timeline charged by the state."
The prosecutor responded by arguing that the defense was "[l]ooking for a technicality." Defense counsel objected that "there's a specific time period charged. It's not a technicality." The court in effect overruled the objection: "I have instructed you on the charges, the timeframes, and the information and the unanimity instruction. So you have the law that applies to this."
The prosecutor resumed: "You heard the defendant talk about the Statute of Limitations, right? Not that, 'I didn't molest the kids. It's the Statute of Limitations, so I am going to go with that.' Technicality, right? [¶] . . . [¶] Sound familiar?" Defense counsel renewed his objection, "It's the law as instructed by the Court[,] not a technicality." This time the court was explicit: "Objection is overruled. This is argument." The prosecutor continued: "Well, the law is the law. I'm not disagreeing with the law. And you need to follow the law."
Clearly, the prosecutor was disparaging the defense's reliance on a point of law to secure an acquittal. But it was a point of law, and was the prosecutor's argument. There is no dispute that the court, as it noted, instructed the jury with CALCRIM No. 3410 on the "Statute of Limitations," and CALCRIM No. 200 that "You must follow the law as I explain it to you . . . . If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." Defendant's first claim is thus defeated by this established principle: " 'When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for "[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade." [Citation.]' " (People v. Centeno (2014) 60 Cal.4th 659, 676; accord, e.g., People v Boyette (2002) 29 Cal.4th 381, 436; People v. Morales (2001) 25 Cal.4th 34, 47.) The first incident does not establish misconduct.
Appointed counsel presents the second instance of claimed misconduct as follows:
"Jane Doe 3 met Mr. Edwards when he dated her grandmother, Barbara [B.]. Jane Doe 3 testified to several improper acts between 1999 and 2001 . . . . One of the incidents she described took place on a trip to Reno with her grandmother, one took place in an unknown hotel after Mr. Edwards took her for a drive, one took place at her grandmother's apartment in San Leandro, one took place at defendant's apartment in Hercules and one at his subsequent home in San Pablo. But in 2001, when Jane Doe 3 told her mother about defendant's conduct, she only described one incident—the one occurring in the Hercules house. And during a 2001 interview with [sic] the Children's Interview Center . . . Jane Doe 3 described the trip to Reno but reported no misconduct at all. Because of conflicting details in Jane Doe 3's 2001 descriptions of events, the state elected not even to file charges.
"In 2013, Jane Doe 3 was interviewed by detective Wilson. She told Wilson that even though she did not immediately tell her mother, Tracy [B.], when the misconduct was occurring, she 'would always tell my mom that I had a secret to tell her when I turn 13 because I was scared to tell her when I was younger.' Tracy [B.] did not testify at trial. And Jane Doe 3's grandmother—who according to Jane Doe 3's own account could have testified to defendant's presence in Reno and San Leandro—also did not testify.
"The defense position as to Jane Doe 3 was that the state had not proved the charges. Counsel emphasized the 'gross inconsistencies' both in her trial testimony and as between her testimony and prior statements." And, as appointed counsel notes, "[t]he absence of corroboration . . . was . . . not lost on the prosecutor," which responded by arguing: "[T]here's actually a jury instruction that talks about that, how misrecollection is common. It's up to you to decide whether it's on a material point or not a material point and whether or not it ends up being a lie or just something that someone misremembered over time. [¶] Defense also argued, 'Where is mom, right? Where is (Jane [Doe] 3's) mom for her to get on the stand and tell you what (Jane [Doe] 3) said?' [¶] Okay. That's hearsay, okay."
This elicited the defense objection that "There's a hearsay exception." And that started a back and forth before the jury on the subject of whether there was a "[p]rior inconsistent statement" exception. The court overruled the objection, noting "hearsay is a complex concept with many exceptions," and "this isn't the time to have an evidentiary discussion." The jury was reminded that "the evidence is what's heard on the witness stand. The statements of counsel are not evidence."
Defendant believes the prosecutor committed misconduct because his argument " 'effectively circumvented the rules of evidence' by suggesting to the jury that—but for the hearsay rule—he would have presented the testimony of Barbara and Tracy [B.]. In this case, it does not matter whether the prosecutor's statements were right or wrong 'as a matter of law'—in controverting the primary defense argument as to Jane [Doe] 3, the statements were 'dynamite to the jury.' " We cannot agree.
Like our response to the first incident, we conclude the trial court was correctly reminding the jury of the rules governing how they were to perform their function as jurors. Introducing the complex topic of hearsay into his argument may have been a poor tactic, but we cannot conclude it was misconduct. The jury was instructed with CALCRIM No. 222 that "Nothing the attorneys say is evidence. In their . . . closing arguments, . . . their remarks are not evidence. . . . Only the witnesses' answers are evidence." Again, we presume the jury followed these directives. (E.g., People v. Adams (2014) 60 Cal.4th 541, 578; People v. Prince (2007) 40 Cal.4th 1179, 1295.)
And the prosecutor's comments certainly did not dynamite the defense. Quite the contrary, for the jury acquitted defendant of three of the seventeen charges against him, and a fourth charge was eventually dismissed because the jury was unable to reach a verdict on it. That is not the result of a jury inflamed against defendant. Lastly, and in a related vein, even if we did conclude, solely for purpose of argument, that this was misconduct, it would be harmless according to any standard for prejudice.
The judgment of conviction is affirmed.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Miller, J.