Opinion
A146676
09-21-2017
THE PEOPLE, Plaintiff and Respondent, v. ERIN M. FOREMAN, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. SC188751A)
In this appeal we are asked to decide whether a defendant's Sixth Amendment right to confrontation was denied when the trial court ruled that she could not cross-examine the complaining witness in a felony stalking and criminal threats case about why he had not supplied the defense with a DNA sample. We find no error and affirm the judgment.
BACKGROUND
Defendant Erin M. Foreman was charged in an amended information with stalking while a restraining order was in effect between April 16 and May 20, 2014 (count 1; Pen. Code, § 646.9, subd. (b) ); making criminal threats during that same time period (count 2; § 422), and two misdemeanor violations of a domestic violence restraining order (counts 3 and 4; § 273.6, subd. (a)). The victim was defendant's estranged husband, Mark Foreman (Mark). After a jury trial, defendant was convicted of counts 1, 3 and 4, and the lesser offense of attempted criminal threats as to count 2. Given the narrow issue on appeal, we briefly summarize the testimony at the jury trial.
Further undesignated statutory references are to the Penal Code.
We refer to him by his first name, to avoid confusion. We mean no disrespect.
Defendant and her husband separated in June 2013 and were in the process of divorcing. It is an understatement to say that relations between them were frayed, and as of the time of the events charged in the information, there was a restraining order in place prohibiting defendant from contacting Mark except in connection with their daughter, who was two years old at the time of trial.
During this period, Mark worked for PG&E and was working on a special project in Novato. He lived in Chico on weekends, and worked in Novato during the week, usually staying at an Embassy Suites Hotel.
It is undisputed that on April 16, 2014, defendant sent 150 phone calls and text messages to Mark during the day, and 50 calls and texts in the evening. Defendant also sent Mark a video showing her driving while singing and taunting him. This led Mark to believe that she would be near his Novato hotel the next morning.
On April 17, Mark saw defendant sleeping in her SUV in the hotel parking lot. He told her that he would call the police if she was there after he returned from breakfast. When he came out of the hotel restaurant, she was still there, and he told her again she had to leave or he would call the police. As he began to walk away, defendant turned on the ignition of her vehicle; she then accelerated, braked and then lunged at Mark—repeating this sequence two times. Mark was afraid that she would hit him with the SUV. He got into his car and headed toward his job site, with defendant following him close behind on his bumper. As Mark got off the freeway, he called the Novato Police Department. Defendant drove past him twice before the police finally arrived.
Hundreds of defendant's text messages to Mark were offered in evidence and read out loud to the jury. These are a sampling of the text messages defendant sent Mark on April 16 and on the morning of April 17: "That means if you chose to marry an insane bitch and also force her to have a child, you must face the music and deal with it, as it is a choice you made and can't ever go back on, unfortunately, for the both of us. Really?" "If you don't answer your phone, Mark, fuck face Foreman, I am going to make you see stars," and two minutes later "As if you have not done enough damage, you prick, son of a bitch. Guess what? You are really going to get it in the fucking ass with a baseball bat." Defendant told him on the telephone on the afternoon of April 16 that her situation was "like a [L]ifetime movie. If I can't have you, no one can." And that evening: "And guess what, again? You are getting ice picks jabbed through your eyes prior to your death for responding with that cocky little, 'Yep.' " Another, at 7:05 a.m. on April 17: "I think it's in your best interest to stop calling for help like a little sissy, ninny pussy. Time to be a big boy, Mark, and face the consequences for your actions." And another from that morning: "Mark, you do understand I have nothing left to lose, right?"
These text messages are the tip of the iceberg. On April 12, defendant texted, "You are Lucifer in the fucking flesh and I'm going to kill you." Mark thought defendant was "going to hurt me," and that she was capable of killing him because of her "past of violence towards me."
These messages made Mark feel "threatened, terrified, horrified;" he thought she was "going to act out violently;" he felt "[c]oncern for [his] safety."
Mark also testified about his "grave[] concern" for his daughter, who was in defendant's custody when he received a text message on the evening of April 15 with a photograph of defendant with alcohol and various bottles of prescription pills. He thought she was threatening her own life, given that only days earlier she had written that "I'm a fraction of a centimeter away from letting it all go right this very minute."
The defense did not dispute that defendant had violated protective orders or that she had made hundreds of calls and text messages to her estranged husband. The defense theory was that Mark was not terrified or concerned for his safety. The defense claimed Mark was having sexual relations with defendant during the relevant time period, he lied by denying they were having sex, and these facts called into question his claim that he feared defendant. As defendant states in her brief on appeal, "That was the only real issue in the case—the element common to the two felony counts, requiring proof of reasonable fear experienced by the victim. The defense was that a course of conduct between the two parties that included an ongoing sexual relationship impeached his claims of fear of appellant."
To support the defense, defendant's trial counsel subjected Mark to lengthy cross-examination, running more than 250 pages of reporter's transcript. During the cross-examination Mark was asked dozens of questions about his sexual relationship with defendant. Mark had testified at trial and at the preliminary hearing that after he and defendant separated in June 2013, they continued to have sexual relations for about three months. Defense counsel did not believe him. Mark was questioned repeatedly about defendant's text messages to him about all manner of subjects, including those asking him to have sex with her; about his own text messages to and from one of Mark's best friends (Darren), who asked him colloquially about his sex life; and about Mark's sexual relationship with another woman after he and defendant separated. Mark was cross-examined extensively about a night in early April, 2016 when he allowed defendant and their baby to sleep in his bed when she showed up at the Embassy Suites hotel (but he testified he only allowed her to stay in the hotel out of concern for his daughter, and denied having sexual relations with defendant). Mark was also cross-examined about an audiotape made without Mark's consent on an unknown date of two people (whose voices are not identified) engaged in sexual relations. Mark testified that he could discern defendant's voice on the tape, but that he was not involved in the sexual acts heard on the tape, although it sounded like his voice at the end of the tape when he and defendant were discussing custody issues. The entire audiotape was sent into the jury room for the jurors to listen to when they deliberated, and the jurors were told that it was stipulated that there were sexual acts on the tape.
Whether to admit this tape was strenuously litigated. The prosecution argued that the tape was fabricated and spliced together, and that although it was Mark's voice in part of the tape, the portion with two people having sex was not. The defense called an expert in acoustic and media analysis, who listened to the recording and testified that it was one continuous recording, rather than two grafted together, although the witness stated on cross-examination that no one could be 100 percent certain that a tape was not altered, and there was no information when this tape was made, by whom, or where the original tape came from. Nonetheless, the court agreed that Mark could be impeached with the tape if he denied having sex with defendant.
The issue of fabricated evidence came up throughout the trial. Mark was questioned about vulgar text messages that appeared to be from him but that he denied ever sending, which he believed were fake text messages created by defendant, who he said was "extremely savvy with technology." He claimed she had "hacked" his Facebook and other accounts, installed tracking applications on his telephone, and changed his passwords 30 times a day.
The Testimony at Issue
Before trial, defendant filed a motion to compel Mark to provide the defense with a DNA sample for testing. Defendant contended that the DNA sample was "relevant and necessary to impeach" Mark's repeated claims that he was in fear of defendant and did not have sex with her. Defendant argued that the results of a DNA test evidence would support her position that she and Mark engaged in sexual intercourse on July 27, 2014. The asserted basis for compelling a DNA sample was that on July 27, 2014, defendant filed a police report alleging that Mark had raped her. A sexual assault response team (SART) exam was conducted, which disclosed a "DNA mixture consistent with two contributors" in the "lower abdominal area." The DNA mixture was never tested, Mark was never arrested for the alleged crime, and defendant's current position before trial was that it wasn't rape at all, but rather allegedly consensual sex between defendant and Mark on July 27. The prosecutor opposed the motion. After full briefing and many hearings both before and during the trial (all outside of the jury's presence), the trial court eventually denied the request that Mark be ordered to produce a DNA sample. Defendant is clear that this ruling is not the subject of this appeal.
The trial court allowed the defense to present evidence of sexual encounters between defendant and Mark, so long as there was an evidentiary foundation.
In the course of trial, well after the court denied the request for DNA testing, the following exchange occurred in the defense's further recross-examination of Mark:
The prosecution requested to reopen its case, and called Mark back to testify. This testimony occurred then, immediately before the prosecution rested its case.
"Q [Mr. Cannon, defense counsel]: And Inspector George told you that the defense was trying to get a DNA sample from you, right?
"A [Witness Mark Foreman]: He did.
"Q: And you said that if you had the option of providing a DNA sample, you would choose not to provide one, right?
"[Prosecutor]: Objection, improper questioning.
"THE COURT: Sustained.
"Q [Defense counsel]: Did you tell Inspector George you wouldn't provide a DNA sample?
"[Prosecutor]: Objection, improper questioning.
"THE COURT: Sustained.
"Q [Defense counsel]: Did Inspector George tell you that the defense wanted to get a DNA sample from you?
"[Prosecutor]: Objection, improper questioning.
"THE COURT: Sustained.
"Q [Defense counsel]: Would you provide us with a DNA sample?
"[Prosecutor]: Objection, improper questioning.
"THE COURT: Absolutely, 100 percent sustained. How about another area, Mr. Cannon?
"Q [Defense counsel]: Your Honor, that's all I have to ask."
Defendant never took the stand to testify about the alleged July 27, 2014 encounter.
On appeal, defendant contends that excluding cross-examination on whether Mark was willing to provide a DNA sample to the defense violated her Sixth Amendment right to confrontation.
DISCUSSION
"The Confrontation Clause of the Sixth Amendment gives the accused the right 'to be confronted with the witnesses against him.' This has long been read as securing an adequate opportunity to cross-examine adverse witnesses." (United States v. Owens (1988) 484 U.S. 554, 557.) "This confrontation right seeks 'to ensure that the defendant is able to conduct a "personal examination and cross-examination of the witness, in which [the defendant] has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief." ' " (People v. Cromer (2001) 24 Cal.4th 889, 896-897.)
"Although the right of confrontation includes the right to cross-examine adverse witnesses on matters relating on their credibility, 'trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination.' (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679.) In particular, notwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352. [Citation.] A trial court's limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted. [Citations.]" (People v. Quartermain (1997) 16 Cal.4th 600, 623-624.) We review a trial court's ruling on the admission of evidence for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 724.)
As an initial matter, the Attorney General contends that defendant has forfeited her constitutional claim because she failed to object at trial that the exclusion of evidence would violate her rights under the confrontation clause. (See People v. Burgener (2003) 29 Cal.4th 833, 869 [failure to object that admission of evidence violated federal rights to due process and confrontation waived by failing to articulate them below].) Defendant contends that no contemporaneous objection was required because trial counsel "litigated the issue in pre-trial motions," although trial counsel framed the issue in terms of due process. We need not tarry over this argument, because there is no merit at all to the underlying claim. The defendant in this case was given a full and complete opportunity to confront the witnesses against her.
Although Mark's credibility was central to the defense, his DNA specimen had no relevance to the case. Defendant did not testify. Mark denied repeatedly that he had sexual relations with defendant after September 2013, and no one testified to the contrary. There was no evidence presented at trial about the alleged incident on July 27, 2014, and the jury knew nothing about the collection of DNA on that date. So whether Mark refused to take a DNA test at the request of the defense and why was simply irrelevant. To the jury the one question that was asked and answered (Mark's statement that he was told the defense wanted a sample of his DNA) would have seemed entirely out of context because there was no evidence in the case to suggest how or why a DNA sample would be relevant. The jury had no reason to believe there was a specimen that warranted comparison.
By contrast, the defense was given virtually free rein to cross-examine Mark on whether and when he and defendant had engaged in sexual relations, with almost no other objection of any substance from the prosecutor (and certainly nothing mentioned by either party on appeal). As we have discussed, this wide latitude included cross-examining Mark about an audio tape of two people having sex, which the defense argued to the jury was Mark and defendant. Never once did Mark refuse to answer a question. In fact, defense counsel complained to the court outside the presence of the jury that Mark testified too much.
The trial judge placed no time limits on defendant's cross-examination of Mark, even when the judge commented outside the jury's presence that defense counsel was "repeating the same cross-examination that we have already heard." At another point, the trial court characterized the nature of defense counsel's trial presentation: "[e]ssentially, you're reading, with your own emphasis, text messages, standing in front of the jury, with expresses [sic] and the like."
During the trial, outside the presence of the jury, defendant's attorney made a motion to limit Mark's testimony, complaining that he gave "long discursive" answers. The court denied the request, stating that its "perspective" was a "little bit different" from defense counsel's. "I don't think the witness has rambled on. I don't think he has done anything, other than explain his answers, and he will be allowed to continue to do that." --------
Defendant's legal authority is completely beside the point. True, a defendant's opportunity to cross-examine may be denied if a witness refuses to answer questions (citing People v. Foalima (2015) 239 Cal.App.4th 1376, 1390), but Mark never refused to answer a question. Likewise, People v. Giron-Chamul (2016) 245 Cal.App.4th 932, has no application here. In that case, a five-year-old witness testifying in a sexual abuse case against her father would not answer hundreds of questions, including approximately 150 questions on "important topics" including anything related to her report of abuse to the daycare provider, her drawing, her forensic interview, and other possible explanations for the child's apparent sexual knowledge, as well as other questions that bore more generally on her credibility. (Id. at pp. 966, 968.) Under the circumstances of the Giron-Chamul case, our colleagues in Division One concluded that the child witness's refusal to answer questions was so severe that the defendant did not have a full and fair opportunity to cross-examine her and his right to confrontation was thus denied.
Here, by contrast, Mark was an adult witness. He answered every question about having sexual relations with defendant. It was the trial court who sustained the objection to four questions about DNA testing that were irrelevant in light of a prior court ruling (unchallenged on appeal) not to require him to provide a DNA sample. It simply cannot be said that an inquiry into why Mark did not provide a DNA sample to the defense was likely to give a reasonable jury a "significantly different impression of the witness's credibility." (People v. Quartermain, supra, 16 Cal.4th at p. 624.) On this record, defendant was not denied her Sixth Amendment right of confrontation.
Finally, if there was error it was harmless under any standard. Defendant's assertion of prejudice is not much more than an ipse dixit that Mark's credibility was critical to the case and the limitation on cross-examination gave Mark a "false aura of veracity to hide behind." This assertion does not withstand scrutiny. As we have described, Mark was cross-examined exhaustively. He denied having had sexual relations with defendant after September 2013, and no one else testified to the contrary. When he denied that he had sex with defendant after September 2013, he was asked to listen to the tape of two people having sex, and confronted with whether it was him. He continued to deny having had sex with the defendant, although he admitted that it was his voice on one part of the tape in conversation with defendant. To counter Mark's continued denial, and his assertion that the tape must have been fabricated, the defense called a witness to authenticate the tape, and then the court allowed the entire tape to be given to the jury.
In closing argument, defense counsel began by arguing that "[t]he real issue in this case is the real fear of physical violence . . . . Certainly they are annoying text messages. Certainly, there's a lot of histrionic activity going on. Certainly, there are things that, out of context, could be read as threats. But there is nothing that a reasonable person would think was a threat. . . . [¶] . . . The only evidence that Mark Foreman had any fear at all comes from Mark Foreman's lying lips." The defense then lambasted Mark as a liar whose statements were "proven to be lies," and he made these claims again and again and again. Defendant's trial counsel vigorously advocated for her in a no-holds barred closing argument, just as he vigorously cross-examined Mark.
As we have described the evidence above, the many harassing and some threatening text messages were strong evidence of defendant's guilt as to count 1, and the lesser included attempted criminal threats as to count 2. Defendant has failed to demonstrate prejudice under any standard.
DISPOSITION
The judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Richman, J.