Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kings County. Louis F. Bissig, Judge, Super. Ct. No. 05CM0214.
Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Michael Patrick Jones was convicted of various crimes related to defrauding his employer, the California Highway Patrol (CHP), and the State Compensation Insurance Fund out of monetary benefits by filing false and fraudulent claims that he was physically unable to work due to work-related back injuries. On appeal, he contends the prosecutor committed misconduct by commenting on the defense’s failure to call a particular witness. We will affirm the judgment.
FACTS
Defendant was a CHP officer. He claimed to have injured his back on more than one occasion during work activities. At trial, he presented the testimony of various physicians who had examined and treated him. Defense counsel asked a medical expert witness, Dr. Harris, to describe in detail the findings and conclusions of Dr. Haider, an Agreed Medical Evaluator (AME), considered to be a neutral physician. Dr. Harris explained that Dr. Haider had reached findings similar to his own and had also felt that defendant could not return to full duty. Dr. Harris described the contents of Dr. Haider’s report in detail. On cross-examination, Dr. Harris stated he did not know or have any connection with Dr. Haider. Furthermore, Dr. Harris did not base his opinion on Dr. Haider’s report and had formed his opinion before seeing the report. Dr. Harris said he did not know the accuracy of Dr. Haider’s report and was merely referring to it because he was asked about it. Dr. Haider did not testify.
During the prosecutor’s opening argument, as he described the evidence that had been presented, he stated:
“Then we follow up and the defense tried to bring in Dr. [Haider], and some of his experiences as they relate to him…. [¶] … [¶] … Dr. [Haider] was the AME and all the parties got together on the worker’s comp and said, fine, go to him. Dr. [Haider] wasn’t here to testify, so we don’t know what he knew and what was the truth in his report. We just have a couple statements from Dr. Harris tried to testify to. We really don’t know the validity of Dr. [Haider’s] report and why his conclusions are what they are. We know Dr. Harris didn’t rely on that report, and was relying on what the defendant told him.”
The transcript often refers to Dr. Haider as Dr. Hager.
Defense counsel responded in his argument that Dr. Haider’s report was the critical piece of evidence upon which the jury should rely. Defense counsel stated:
“Dr. Spencer and Dr. Harris, two highly educated doctors, they both see something completely different in the M.R.I., completely different. Dr. Spencer didn’t spend any time with [defendant]. He didn’t need to know. That wasn’t his job. His job was just to view the M.R.I. But Dr. Harris did, and Dr. Harris diagnosed [defendant] with a protrusion in his disk, a herniated disk, and radiculopathy.
“Dr. Harris’[s] opinion, the treating physician. Then, fine, whatever. Let’s send him to another doctor. Let’s send him to one that the insurance company and [defendant] can agree on. Somebody neutral. Someone that we all can agree on. And somebody that has no motive, no motive whatsoever in any of these cases, in this case. We select Dr. [Haider]. Okay, let’s agree on an Agreed Medical Evaulation, an AME. Dr. [Haider], Dr. Harris testified to Dr. [Haider’s] report analysis.… Dr. [Haider’s] report was an absolute contradiction to Dr. Rosco’s report.
“Dr. Rosco, again, hired by the insurance company, and Dr. Harris, the treating physician for [defendant], Dr. [Haider,] completely neutral, finds, actually what Dr. [Haider] says, and [it’s] why this is important, why it is important for [defendant] to have an injury, is this is a criminal case. This isn’t a worker’s compensation claims action. It’s important only to show that what he was telling his doctors, that I have pain and it’s painful to do this, it’s painful to do that, that he was telling the truth. It’s important because he says, I’m sitting in a chair at work and [that] hurts, and I’m in pain. Well, he’s just not making it up.
“In those reports you [] can exclude [Dr.] Rosco, exclude [Dr.] Harris, fine. Dr. [Haider] is the only one [] you need to know, and that’s what is testified to. There’s no dispute about that whatsoever. They had the exactly same conclusion of herniated disk and radiculopathy. And more importantly, more importantly, that [defendant] is unable to do his job. That he can’t do those 14 tasks, or some of those 14 tasks that were outlined in the disability application, exactly as what Dr. Harris had diagnosed back in August of 2004.”
In rebuttal, the prosecutor argued, as follows:
“… [Defense counsel] mentioned that Dr. [Haider], you know, he’s the most important thing here, and where is he? Why didn’t he testify so that you folks can see how credible he is? So you folks can see what he based his opinions on. All we had was Dr. Harris coming in and for some reason of his own, but to read the report to testify to its contents. He had no idea. He just was told to do it. He didn’t use it in forming his opinion, and that means a lot, ladies and gentlemen. That means that if Dr. [Haider] is the most important person in this case, then he should have [been] here. Because even his report shows the defendant is guilty[] because the defendant misrepresented the extent of that 1999 injury. [¶] … [¶] [I]f he’s so important then why isn’t he here[?]”
Defense counsel did not object to the prosecutor’s comments. But later, in the motion for new trial, defense counsel raised the issue of prosecutorial misconduct based on these comments. Defense counsel claimed the prosecutor knew Dr. Haider was unavailable to testify because he was out of the country. Defense counsel argued to the court, as follows:
“[The prosecutor’s comments] misled the jury to think that Dr. Haider, because he didn’t testify, his opinion as to the injury of [defendant] to his -- to his ruling that he was disabled, somehow wasn’t in evidence, and I think that that was -- especially [because the prosecutor] knew why Mr. Haider didn’t testify, the fact that he was out of the country, rises to that level of prosecutorial misconduct, and so, your Honor, I ask you grant a new trial on those grounds ….”
The prosecutor responded:
“[C]learly in this case the jury has come down with a verdict and what we had in this case is [defense counsel] trying to bootstrap information from Dr. Harris when this jury was never able to hear from [Dr. Haider], not by any legal unavailability, by the mere fact that he just didn’t come and testify. We don’t know if he was subpoenaed. We don’t know what the defense tactics were in not calling him. [¶] What we do know, because Dr. Harris is the only mode that we had to listen to Dr. Haider’s report. Dr. Haider’s report was not before the Court, it still is not before the Court. Anything Dr. Haider has to say is not necessarily evidence and really isn’t relevant at this point. Dr. Harris testified that even Dr. Harris’[s] evaluation of the defendant’s condition was not based upon all of the facts and all of the -- the information that he would like to have in assessing the client. So, it’s deficient as far [as] anything Dr. Haider may or may not have concluded what he based that on. So it’s not evidence. [¶] … [¶]
“In relation to any prosecutorial misconduct, although [defense counsel] may think it was prosecutorial misconduct, the United States Supreme Court and the California Supreme Court think otherwise based upon the two cases that we’ve cited. It’s completely appropriate for a prosecutor to comment on the -- the non-presence of logical witnesses. [¶] And we have a situation that [defense counsel] attempted to present Dr. Haider’s report in the fashion in which he did through a doctor who could certainly qualify as an expert, but not for the basis of the expert opinion. I think the Evidence Code is on the People’s side[;] that doesn’t mean that what the expert testifies to is fact. There still has to be some underpinning of fact to support the expert’s opinion for the information that he relied upon. And we don’t have that here. In fact, we have Dr. Harris saying he never used Dr. Haider’s report to form his opinion. He was asked to read it before he came into court and that’s what he did.
“So, what we have here was a situation where [defense counsel] in his closing argument began arguing about Dr. Haider’s report, which was not evidence, again arguing about Dr. Haider’s findings, which were not evidence, and merely threw in a tag line that through Dr. Harris we heard all these things, but there’s no evidence of what Dr. Harris related. And it’s completely appropriate, even absent [defense counsel’s] remarks and arguments, for the prosecution to comment on the lack of logical witnesses. [¶] And if [defense counsel] believed that the critical issue in the case was whether [defendant] was injured, then Dr. Haider -- Dr. Haider should have been here. He’s a logical witness that one would expect the defense to call if that is their defense.”
The trial court denied the motion for a new trial, stating the following:
“[T]he defendant used Dr. Harris to vicariously bring in evidence of Dr. Haider’s examinations -- examination and conclusions, but the ability of an expert such as Dr. Harris to rely upon hearsay from another expert while it’s unquestioned, still involves a consideration of hearsay evidence, and as such, the weight and value to be assigned to that evidence, the testimony of a witness the jury has no opportunity to see and the prosecution has no opportunity to cross-examine, the weight and reliability of that evidence is very properly something that can be called into question in presentation of argument. And the fact that the prosecution has commented upon that is, in the Court’s view, anything but misconduct. It’s a comment upon the weight of the evidence and the kind of thing that is the essence of advocacy, and in the Court’s view is an invocation to view with skepticism the statements of a witness who is not available, not to be seen, not to be cross-examined, and that certainly is a legitimate argument, so I’m going to deny -- overrule the objection and motion predicated upon alleged prosecutorial misconduct.”
DISCUSSION
Defendant contends the prosecutor committed misconduct by commenting during argument that defendant had failed to present Dr. Haider as a witness. Defendant maintains that the prosecutor knew Dr. Haider was not present to testify because he was out of the country and therefore the prosecutor improperly implied that Dr. Haider was absent because his testimony would be unfavorable. Recognizing he failed to object to the prosecutor’s comments below (People v. Lancaster (2007) 41 Cal.4th 50, 84 [issue not preserved due to failure to raise objection below]), defendant alternatively contends defense counsel was ineffective for failing to object.
A prosecutor may comment on the defendant’s failure to call a logical witness; however, the prosecutor commits misconduct when he or she comments on the defendant’s failure to call a logical witness who is unavailable to testify. (People v. Wolfe (1954) 42 Cal.2d 663, 668; People v. Frohner (1976) 65 Cal.App.3d 94, 108-109; People v. Wash (1993) 6 Cal.4th 215, 263; Evid. Code, § 240 [unavailable witness].) The witness’s unavailability cannot simply be asserted by the defendant, or assumed because it is likely. (People v. Ford (1988) 45 Cal.3d 431, 447-448.) It is not enough that the witness might be unavailable if subpoenaed -- for example, that he might invoke a privilege or might be impossible to locate. Instead, the witness must be called and his unavailability determined by the court. (Ibid. [witness must be called before court can uphold claim of unavailability to prevent prosecutor’s comment on failure to call witness].) Therefore, “a witness becomes ‘unavailable’ …, and thus immune from comment on his absence for that reason, only when his actual sworn assertion of the privilege has been upheld by the trial court, or the parties stipulate to his unavailability, or the defendant otherwise ‘satisf[ies] the court that the witness cannot be called or that in the circumstances of the case an adverse inference should not be drawn from the failure to call [the] witness.’ [Citation.]” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1216, fn. 9.) Unless the witness is unavailable, the prosecutor is not precluded from commenting on the defendant’s failure to call the witness. (Ibid.; People v. Ford, supra at pp. 447-448.)
Furthermore, it is not the prosecution’s burden to show that the witness is unavailable. “The prosecutor cannot know, much less prove whether a witness would testify if asked to do so by the defendant. It is the defendant whose testimony has created the situation that makes the person a logical exculpatory witness. There is nothing unfair in requiring the defendant to bear the burden of establishing that the reason the witness was not called is that he is ‘unavailable’ ….” (People v. Ford, supra, 45 Cal.3d at p. 443.) “The effort to ascertain the truth is far better served by requiring that the defendant who has offered the testimony bear the burden of establishing that the corroborating witnesses are actually ‘unavailable’ … by calling them.” (Ibid.) Then the witness’s unavailability can be determined objectively, and, as a result, the propriety of prosecutorial comment on the failure to call the witness also can be determined objectively rather than on the basis of speculation as to whether the witness is unavailable. (Ibid.)
Here, the defense did not show that Dr. Haider was unavailable as a witness. There was no showing that Dr. Haider had been subpoenaed but could not be located, and the parties did not stipulate to his unavailability. As record support for defendant’s claim that the prosecutor knew Dr. Haider was out of the country, defendant merely points to his own assertions of that claim in his motion for a new trial. Specifically, he cites his own memorandum in support of the motion, in which he argued that the prosecutor commented on Dr. Haider’s absence, “all along knowing that Dr. Haider was unavailable to testify because he was out of the country.” Defendant also directs us to his own argument at the hearing on the motion, in which he argued that the prosecutor’s comments, “especially [because the prosecutor] knew why [Dr.] Haider didn’t testify, the fact that he was out of the country, [rose] to that level of prosecutorial misconduct ….” Although there may have been problems associated with calling Dr. Haider if he was not in the country, those problems were never formally addressed by the parties. Under these circumstances, we cannot speculate whether Dr. Haider was unavailable. It was up to the defense to prove this, and it simply failed to do so. Accordingly, the prosecutor was not required to refrain from commenting on the defense’s failure to call Dr. Haider to the stand. No misconduct occurred. The claim of ineffective assistance of counsel therefore fails.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Dawson, Acting P.J., Hill, J.