Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Riverside County, Super. Ct. Nos. INF059631, INF059970 Dale R. Wells, Judge.
O'ROURKE, J.
A jury convicted Curtis Jeffery Mosley, Jr. of 10 counts of bank robbery. (Pen. Code, § 211.) The trial court found true allegations that Mosley was a principal in the robberies in which another principal was armed with a firearm. (§ 12022, subd. (a)(1).) The court also found true allegations regarding a prior robbery conviction. (§§ 211; 667, subds. (a), (c) and (e)(1); 1170.12, subd. (c)(1).) The court granted codefendant Jobarea Devar Williams's motion for judgment of acquittal under section 1118.1.
All statutory references are to the Penal Code unless otherwise stated.
Mosley's brother, Maverick Mosley (Maverick), originally was charged as a codefendant, but not in the amended operative pleading. The court explained, "What happened here is a defendant did not waive time and as a result was dismissed and [a new information] had to be refiled."
Mosley successfully moved for a new trial based on newly discovered evidence relating to chain of custody of DNA evidence, arguing a police investigator might have tampered with the evidence.
The People contend the trial court abused its discretion in granting the new trial because the chain of custody evidence was not relevant or exculpatory, and with reasonable diligence the defense could have learned about it from the prosecutor during trial. They further contend Mosley was not prejudiced because his counsel had argued to the jury that the police officer possibly had tampered with the evidence. We agree and reverse the order granting the motion for new trial and remand the matter to the superior court to reinstate the judgment of conviction and conduct further proceedings and sentencing.
FACTUAL AND PROCEDURAL BACKGROUND
Mosley's Arrest and People's Theory of the Case
In August 2007, Palms Spring Police Officer Cary Carrillo received a police radio alert regarding a bank robbery and suspects in a Ford Windstar minivan. He chased the minivan and finally stopped it. Mosley exited from the driver's seat. Maverick exited a sliding door on the driver's side, and a black ski mask fell out the door with him. Williams was the third person in the minivan.
The parties stipulated that in 2008, a criminalist at a Riverside County laboratory tested DNA from the mask and compared it with DNA taken from a control swab. No DNA was detected on the control swab. The DNA from the mask was a mixture from at least three people, but no major DNA contributor was found from a nationwide DNA database.
The People argued to the jury that during the robberies Maverick went into the banks, jumped the counter, pointed the gun at the tellers and demanded money; Williams was the lookout, and Mosley was the getaway driver.
Pretrial Proceedings
In July 2008, approximately 11 months before trial, the defense moved for discovery of the results of all DNA tests and examinations done on evidence related to this case. The People represented that the first DNA test of the mask did not match the DNA results from Maverick or the other defendants.
In pretrial conferences in May and June 2009, the defense moved in limine to admit results of a second set of DNA tests done on the mask, but only to the extent the results excluded Williams and Mosley as contributors. The defense argued that the portion of the results identifying Maverick as a major contributor was excludable as irrelevant because he was not a defendant in the case at bar. In extensive discussions, the trial court at first tentatively granted the motion, stating it would be prejudicial to permit evidence showing Maverick was the DNA contributor. However, the court ultimately ruled the entire results admissible for both purposes.
Trial Evidence
Cathedral City Police Department Officer Glenn Warnica testified that in June 2007, he collected a mask from one of the crime scenes, took DNA swabs from it, sealed it in a bag and labeled it. In January 2008, he sent the sealed mask to Investigator Roggeveen of the Riverside County Sheriff's Department.
Riverside County Sheriff's Department Investigator James Merrill testified that in January 2009, he collected cheek swabs from Williams and Maverick, sealed them in separate bags, labeled them, and shortly afterwards forwarded the swabs to Investigator Adriann Roggeveen.
Investigator Roggeveen obtained a cheek swab from Mosley. He received the mask and the cheek swabs of Maverick and Williams in their respective sealed bags, and labeled and stored them. Approximately one month after he received the mask, he personally took it and the swabs in their respective sealed bags to the San Bernardino County forensic crime lab. Investigator Roggeveen testified that the lab required him to label the exhibits in a different, unspecified way.
The prosecutor requested to reopen his examination of Investigator Roggeveen, "to clarify chain of custody" issues regarding the condition in which the investigator received the items of evidence and deposited them at the crime lab. The court granted the request and defense counsel cross-examined the investigator on those points.
Monica Siewertsen, a criminalist in the San Bernardino County crime lab, retrieved the cheek swabs and the mask from their sealed bags. She described the packaging of the mask this way: "The outermost package was a nine by twelve inch tape sealed manila envelope with writing on it containing one large clear plastic Ziploc bag with Cathedral City Police Department sticker on the outside. This... [Ziploc] bag was folded and empty. And then there's writing on the bags." She compared DNA from the mask with DNA from the cheek swabs and Maverick was found to be the major donor of the DNA on the mask; a minor contributor was unidentified. Mosley and Williams were excluded as contributors.
Evidentiary Challenge to DNA Test Results
After the defense had rested its case and one day before the People rested, the court heard arguments regarding defense chain of custody objections to admission of charts in Siewertsen's report. Specifically, the defense argued it did not know who removed the mask from its original seal, and suggested possible evidence tampering. The court admitted the exhibits into evidence, ruling, "In as much as the swabs were sealed, I'm convinced that there is not a likelihood that the DNA was added to the mask. And, therefore, I believe the chain of custody is sufficient. And certainly I expect [defense counsel] to argue, but I will allow the admission of [the exhibits] over objection.
Immediately following that ruling, this exchange took place outside of the presence of the jury:
"[Prosecutor]: Your honor, may I be heard on one point. I didn't want this to factor on [sic] the court's consideration. But if the court is curious as to the reason for the mask being out of the bag?
"[The Court]: I don't think I need to know that.
"[Defense Counsel]: If it wasn't — your honor, if this was not established in the evidence, then I'm requesting an order that he not throw that out because that is not evidence.
"[The Court]: Oh, I agree.
"[Defense counsel]: And I don't need to know that at this point.
"[The Court]: And that's the reason I don't need to know it, and the jury doesn't need to know it."
Afterwards, Mosley moved for judgment of acquittal on all counts under section 1118.1. The court denied the motion, ruling the evidence sufficient for jury adjudication.
Defense Closing Arguments
Defense counsel argued to the jury that criminalists at two different labs tested the DNA and excluded Mosely as a DNA contributor. Regarding the link between Maverick and the mask, defense counsel argued: "And I have to tell you before trial I didn't know this, but it's interesting how things develop during trial. I just took a stab at it, and I said let's talk about how [the mask] was packaged. I never knew this. And [Siewertsen] opened her notes... and she said that she retrieved a sealed manila envelope which contained a mask, and a clear empty plastic bag. [¶] Okay. It was empty. Someone tampered with that mask. It was out of its Ziploc. It was out of its heat-sealed bag. Someone tampered with it. I don't know. Could it have been [Investigator Roggeveen] who came in here and claimed some urgency and telling you that that mask had to be collected and tested in that [sic] waited 28 days?" Defense counsel proceeded to impeach Investigator Roggeveen's testimony on several points, including his keeping the mask in storage for almost a month despite claiming he needed the test results speedily; misstating facts under oath in his affidavits filed in court; and, mistaking a Ford Freestar for a Ford Windstar, despite claiming he was familiar with minivans.
New Trial Motion
Mosley moved for dismissal of the convictions on grounds the prosecutor committed error under Brady v. Maryland (1963) 373 U.S. 83 (Brady) by failing to provide the defense exculpatory evidence in the form of information surrounding Maverick's DNA tests from June 2007 and Siewertsen's laboratory notes. The People denied committing Brady error, arguing that in the first lab test the DNA found on the swab from the mask was insufficient to constitute a useful sample. The court denied the motion.
Mosely alternatively moved for a new trial on grounds that he was denied a fair and impartial trial because of the alleged Brady error based on newly discovered evidence under section 1181, subdivision (8). Specifically, Mosely characterized Siewertsen's lab notes, which he received after the trial, as referring to "markings on the bag which showed the mask had been removed from the Ziplocked/heat-sealed bag on the date of February 28, 2008, the same day Investigator Roggeveen was in possession of the swabs and mask." Mosely argued that if the People had timely disclosed information regarding the chain of custody issue, the defense would have bolstered its theory that Investigator Roggeveen planted Maverick's DNA on the mask. Further, Mosely argued he was denied the opportunity to cross-examine Siewertsen regarding the removal markings on the bag, and Investigator Roggeveen regarding whether he removed the mask and planted the DNA. Arguing Mosley was denied a fair and impartial trial, defense counsel stated in a declaration, "I never knew Maverick['s] DNA was swabbed previous to this case, or that his DNA profile was probably in [a computer database] at all relevant times."
The People rebutted those arguments and recounted that during a Friday hearing the court tentatively had ruled the DNA evidence inadmissible. That weekend, the prosecutor spoke to Siewertsen and Investigator Roggeveen regarding the chain of custody issue, and learned that "Investigator Roggeveen transported the mask and the cheek swabs to San Bernardino[, which] as Investigator Roggeveen testified to, has very strict procedure, almost like an assembly line to how they receive items of evidence.... [T]hey instructed Investigator Roggeveen to remove [the mask] out of the bag, because for DNA purposes over a long period of time, items inside a Ziploc bag inside a freezer has a potential to deteriorate any DNA that might be on the item. So it's... San Bernardino crime lab's policy to have items removed [from] Ziploc bags and placed into freezer Ziploc bags for freezer storage." The prosecutor attempted to provide the court and defense counsel the above information the following Monday, but defense counsel declined to hear it.
The court agreed that the prosecutor had tried to explain Investigator Roggeveen's actions of changing the labels to comply with the San Bernardino crime lab packaging requirements. The court concluded that the prosecutor did not commit misconduct in withholding that information, and did not violate Brady, supra, 373 U.S. 83, stating, "I also agree, based on what [the prosecutor] has just told me, that... the fact that Mr. Mosley would have been in [the national database] at the time that the prior run was made on May 6th of 2008, was really not Brady material because there were not sufficient alleles [DNA sequences] to allow for a... hit in May of [20]08." The court also opined that Investigator Roggeveen did not commit any intentional misconduct, stating, "And while I do not believe that there was any intentional misconduct, nor maybe even any misconduct at all, I'm not forming a conclusion whether there was or wasn't misconduct. I certainly think if there was, it was a matter of judgment, and people make judgments all the time as to what they need to do and what they don't need to do. So I don't think that there was anything done intentionally that would have affected the court's ruling adversely."
Nevertheless, the court granted Mosley a new trial on grounds the prosecutor never revealed to the defense that Investigator Roggeveen was the one who apparently opened the bag. The court ruled, "I do believe that the jury — well, either the court should have known about the chain of custody, or the jury should have known about [it] so that they could have formed whatever conclusion that they would form about the integrity of the DNA hit. Maybe the court would have allowed it. Maybe not. If the court had allowed it, the jury should have known that the individual who actually opened the bag containing the mask was the same individual who delivered both the bag and the swabs to the lab. [¶] And so there was always the possibility of some kind of — at least some kind of tampering... whether it happened or not. Doesn't sound like it did."
DISCUSSION
" 'To grant a new trial on the basis of newly discovered evidence, the evidence must make a different result probable on retrial.' [Citation.] '[T]he trial court has broad discretion in ruling on a new trial motion..., " and its "ruling will be disturbed only for clear abuse of that discretion.' [Citation.] In addition, '[w]e accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence.' " (People v. Verdugo (2010) 50 Cal.4th 263, 308.)
"In [People v. Delgado (1993) 5 Cal.4th 312, 328], the California Supreme Court identified five factors to consider when ruling on a motion for new trial based on newly discovered evidence [under section 1181, subdivision (8)]: ' " '1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the case; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.' " ' [¶] Moreover, ' "a motion for a new trial should be granted when the newly discovered evidence contradicts the strongest evidence introduced against the defendant." ' [Citation.]... [¶] Critically, '[a] new trial on the ground of newly discovered evidence is not granted where the only value of the newly discovered testimony is as impeaching evidence' or to contradict a witness of the opposing party." (People v. Hall (2010) 187 Cal.App.4th 282, 298.)
We conclude the trial court erred by granting the new trial motion. We initially note that the DNA results at issue here related directly to Maverick, and not the defendant. The jury, as fact finder, had the exclusive right to decide what weight to give that evidence. The DNA test results were not newly discovered; rather, Mosley sought their discovery approximately 11 months before trial, and the People represented his DNA did not match that found on the mask. Further, from pretrial proceedings to closing argument, Mosley insisted he was excluded as a contributor to the DNA on the mask.
The precise questions surrounding the chain of custody of the DNA samples, and in particular Siewertsen's lab notes, relate to the materiality of the DNA tests and, with reasonable diligence, Mosley could have discovered and presented this evidence at trial. Specifically, considering Mosely timely requested discovery of the DNA test results, he had ample opportunity to investigate the chain of custody matters in a timely manner. During trial, outside the jury's presence, the prosecutor offered to explain the reason the mask was out of the sealed bag at the laboratory. The defense refused to take the simple expedient of hearing the prosecutor's explanation, although it still had time to seek to reopen its cross-examination of Investigator Roggeveen.
Moreover, as the defense noted in its new trial moving papers, the information regarding the chain of custody issue was intended for impeachment purposes. The contention is repeated on appeal: "The evidence at issue here was plainly exculpatory, as it would have bolstered the defense's theory that the evidence may have been tampered with and, at a minimum, impeached the credibility of two prosecution witnesses: [t]he analyst, who blatantly misrepresented her notes, apparently in the hopes of aiding the prosecution, and the [i]nvestigator, who testified that all five items were in a sealed condition when he 'transported' them to the lab, but who failed to mention that he unsealed the mask upon reaching his destination." But because the purpose of the chain of custody evidence was to contradict the testimony of the two witnesses, the trial court was without discretion to grant the new trial motion. (People v. Hall, supra, 187 Cal.App.4th at p. 299.)
The defense stated in its new trial motion that it "was prevented from further [cross-examining] Siewertsen on the removal markings on the bag, why she neglected to mention them, and from further [cross-examining] Roggeveen in front of this jury, on whether he removed the mask, and why, and whether he planted the DNA. Defense was prevented from presenting this high-octane piece of evidence (the date of removal coinciding with [Roggeveen's] possession) to the jury to bolster the argument of the planting of evidence by him."
A different outcome in this case is not probable on retrial. As noted, two lab tests excluded Mosley as a contributor to the DNA found on the mask. The trial court specifically found that the chain of custody of the DNA samples was adequate, and on that basis denied the motion to dismiss. The court also recognized that the evidence at best pointed to a slim possibility of tampering because reference samples remained sealed at all applicable times. Siewertsen testified she got the mask with an empty baggie inside the packaging. Defense counsel explicitly argued to the jury the investigator tampered with the evidence. Based on the trial evidence, the jury logically could infer that if anyone tampered with the evidence, it would have been Investigator Roggeveen, who testified, without going into specifics, that he made changes to the packaging of the samples to conform to the requirements of the San Bernardino County lab. Despite the evidence and argument, the jury, by its verdict, must have resolved the issue on credibility grounds, rejecting the notion of DNA tampering, or else it determined that such evidence and argument was not determinative on the issue of Mosley's guilt.
Mosley also contends he was entitled to a new trial on the nonstatutory grounds that he had been denied a fair and impartial trial by the unavailability of the chain of custody evidence, in violation of Brady. "Under [Brady], the prosecution must disclose to the defense any evidence that is 'favorable to the accused' and is 'material' on the issue of either guilt or punishment. Failure to do so violates the accused's constitutional right to due process. [Citation.] Evidence is material under the Brady standard 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.' " (City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 7-8.) "Evidence is 'material' [under Brady] 'only if there is a reasonable probability that, had [the evidence] been disclosed to the defense, the result... would have been different.' " (In re. Sassounian (1995) 9 Cal.4th 535, 544.) A " 'reasonable probability' is a probability sufficient to 'undermine[] confidence in the outcome.' " (Ibid.) The probability of a different result is "assessed by considering the evidence in question under the totality of the relevant circumstances and not in isolation or in the abstract." (Ibid.) We agree with the trial court's conclusion that the prosecutor had committed no Brady violation or any other misconduct. For the reasons stated above, we conclude Mosley's Brady contention fails because the chain of custody information was not material in that a different result was not probable even if the prosecutor had timely provided that information to the defense.
DISPOSITION
The trial court's order granting the motion for new trial is reversed. The matter is remanded to the superior court to reinstate the judgment of conviction and for further proceedings and sentencing.
WE CONCUR: BENKE, Acting P. J., AARON, J.