Opinion
C058793.
7-13-2009
THE PEOPLE, Plaintiff and Respondent, v. LINDA JOYCE WISE, Defendant and Appellant.
Not to be Published
Found guilty by a jury of dependent adult abuse and inflicting corporal injury on a cohabitant, defendant Linda Joyce Wise appeals, arguing the trial court prejudicially erred in excluding two photographs that depicted bruises on her arms. We agree the trial court abused its discretion by excluding the photographs on the ground defendant had "no conscious recollection . . . about any bruising that might or might not have occurred" the day of the incident, but defendant has failed to persuade us that the error was prejudicial. Accordingly, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and Ronald Burley met in 2000 and became romantically involved, eventually moving in together. In March 2007, Burley had a stroke. Following a brain operation after the stroke, Burley lived in a care facility for three months before moving back in with defendant. Because Burley had speech, balance, and coordination problems as a result of the stroke, he was primarily confined to a wheelchair and defendant became his caretaker, assisting him with daily tasks such as eating, laundry, cleaning, and maneuvering up and down stairs.
According to two defense witnesses who were acquaintances of the couple, Burley was abusive toward defendant and very difficult to live with because he was an angry person and blamed her for everything. Defendant testified to a particular incident in early August 2007 where Burley used his wheelchair to pin her against a bedroom wall, pushing the wheelchair into her rib cage. In addition, later that same August day, Burley angrily grabbed defendants wrist outside a Dairy Queen causing bruises that persisted for a week.
On September 11, 2007, defendant and Burley got into an argument. Defendant and Burley were the only witnesses, and both of their memories of the confrontation and how Burley was injured that day were unclear. It appears from trial court testimony and an audio recording of a police interview of defendant following the incident that Burley entered defendants room in a wheelchair after she had fallen asleep in a recliner while watching a movie. The details of what occurred after this are blurry. Defendant testified at trial she had no recollection of what happened between the time she started the movie and when she was awakened by a police officer sometime later as she sat in the chair. However, one of the police officers who interviewed defendant at the scene testified she stated that she became angry at Burley because he asked for sex.
Although Burleys memory of the incident is scattered and his testimony sometimes incomprehensible, he recalled making a derogatory comment about the movie and having a big fight, at which time "she tried clawing and defensively I started trying to hurt her . . . ." Burley also testified that defendant shoved a jar of peanuts in his face and hit him in the back of the head with a rock, even though he did not see defendant hit him and could not remember if he was standing or sitting at the time.
Two police officers who went to the house after the incident testified that broken glass and peanuts littered the room, and a rock with blood stains was found on the floor. They also testified they noticed a few blood splatters on defendant, the couch, and the floor.
After the incident, Burley crawled out of the house and onto a road where a neighbor found him and called 911. At the hospital where Burleys head injuries were treated, Burley told a police officer that defendant threw a glass jar at him and hit him several times with a rock, even though he testified later at trial that defendant hit him only once with the rock. The police took defendant to jail that same day and released her four days later on September 15.
Burley sustained a cut on his forehead and a cut on the back of his head near the left ear.
Defendant was ultimately charged with dependent adult abuse and inflicting corporal injury on a cohabitant. It was further alleged that in the commission of the two offenses, defendant personally used a rock as a deadly weapon. A jury found defendant guilty of both offenses but could not reach a unanimous verdict on the deadly weapon allegations. The trial court suspended imposition of sentence and placed defendant on probation for three years.
DISCUSSION
I
Photographic Evidence
At trial, defendant attempted to introduce two photographs purportedly taken by her daughter on September 16, the day after defendants release from jail, which showed bruises on defendants arms. Defendant had just finished testifying on direct examination that she had never knowingly and willingly hit Burley. Defense counsel then identified the two photographs. The prosecutor immediately raised a "1054" objection. Before discussing the objection, the trial judge dismissed the jury for a morning break, at which time the following exchange ensued between the prosecutor, defense counsel, and the court:
Penal Code section 1054 et seq. addresses discovery in criminal cases. In particular, Penal Code section 1054.3 provides in pertinent part that the defendant "shall disclose to the prosecuting attorney: [¶] . . . [¶] (b) Any real evidence which the defendant intends to offer in evidence at the trial."
"THE COURT: You made an objection.
"[PROSECUTOR]: Yes, thank you, Your Honor. Your Honor, the Defense just showed me some photographs that I had never seen before and I noticed on the back were markings of dates. September 16th 2007. So this has obviously been in the Defense possession for a long time, this is the third day of trial, its the first time Ive seen them, and I object to them being admitted. I havent had any time to basically determine if theyre real or not. I mean, theyre obviously real photographs, but —. And also the events surrounding those photographs. Basically what it is is bruises, and I — of an arm — and Im assuming its going to be the defendants arm, but theres no face in the photograph. And the story behind it was never disclosed to us either, so we had no opportunity to gather rebuttal witnesses or check out this particular story, determine who took the photographs, and call that person as a witness or anything at all. Its so
"THE COURT: Mr. Short [defense counsel].
"[DEFENSE COUNSEL]: Your Honor, shes absolutely right that she hasnt seen these. These are pictures of Ms. Wises arms some days after shes released from custody and they show bruises. One, a series of bruises on both arms. We didnt disclose these because we werent sure until this morning that Ms. Wise was going to testify. And [if] she doesnt testify, theyre not relevant. If she does testify, by way of an offer of proof, she would say she discovered — actually, I think it was her daughter discovered these bruises on Ms. Wise September 16th, took these photographs.
"Its true Ive had them, but not since September 16th. I dont have to disclose until we determine Ms. Wise was going to testify. That decision was made this morning.
"THE COURT: And the purpose of the photographs?
"[DEFENSE COUNSEL]: Its
"THE COURT: You made an offer of proof?
"[DEFENSE COUNSEL]: Yes. The relevance is this, Mr. Burley has assaulted her and grabbed her before. These marks show up on her arms. Now, she did have some bruises, and we can show the officer that, from a handcuff, but she was not mishandled by the police. She has a conscious recollection of that.
"Its our contention that this is circumstantial evidence of Mr. Burleys treatment of her when he came in to her room and found her asleep and got angry and tried to rouse her.
"THE COURT: Okay. The objection is sustained for the following reasons: The, one, although your offer of proof this morning is accurate that until she testified you may not have had to disclose them; however, she has no conscious recollection and it would be purely speculation on her part about any bruising that might or might not have occurred that day. So Courts not going to allow this to come in."
Accordingly, the photographs were not admitted into evidence. In closing, defense counsel did not assert self-defense but argued there was "not enough evidence" and "too much we dont know" for the jury to find defendant guilty.
II
Abuse Of Discretion
A
Standard Of Review
An appellate court reviews a trial courts ruling on the admissibility of evidence for abuse of discretion. (People v. Harris (2005) 37 Cal.4th 310, 337.) The trial courts "discretion is only abused where there is a clear showing [it] exceeded the bounds of reason, all of the circumstances being considered." (People v. DeJesus (1995) 38 Cal.App.4th 1, 32.) With this standard in mind, we examine the trial courts exclusion of the photographs.
B
Admissibility Of The Photographs
On appeal, defendant contends the trial court erred when it excluded the photographs, thereby depriving her of a fair trial, because she was not able to proffer a self-defense claim. She contends the pictures of the bruises on her arms were relevant because they would have supported the inference that Burley attacked and injured her while she slept, and "any injury to him occurred during her attempt to defend herself or because he hurt himself when he fell while attempting to attack her."
The People, on the other hand, contend the court properly excluded the photographs because "no proper foundation was laid" in that, "as the trial court noted, [defendant] `had no conscious recollection of how or when the injuries illustrated in the photographs had occurred." As we will explain, we agree with defendant and conclude the trial court abused its discretion by excluding the photographs based on defendants lack of "conscious recollection" regarding the bruising.
It is well established that no photograph has any value in the absence of proper foundation. (People v. Bowley (1963) 59 Cal.2d 855, 862.) However, the testimony of a person who was present at the time the photograph was made that it accurately depicts what it purports to show is a legally sufficient foundation for its admission into evidence. (Id. at p. 859.) Photographs depicting a persons wounds are relevant given a proper foundation. (See, e.g., People v. Carter (2005) 36 Cal.4th 1114, 1166-1167.) The test of relevance is whether the evidence tends "`logically, naturally, and by reasonable inference" to establish material facts. (People v. Benavides (2005) 35 Cal.4th 69, 90.)
Here, the People seek to justify exclusion of the photographs based on lack of foundation, but that was not the objection the prosecutor asserted in the trial court. The sole basis for the prosecutors objection to the two photographs was section 1054 of the Penal Code, which addresses discovery in criminal proceedings, but the trial court implicitly overruled the objection on that ground, and no issue is raised on appeal relating to that aspect of the courts ruling. Instead, although the prosecutor did not object based on lack of foundation or relevancy, the trial court excluded the photographs based on defendants lack of conscious recollection regarding the bruises. This ruling was an abuse of discretion.
It is true that in proffering her "1054" objection, the prosecutor asserted she "ha[d]nt had any time to . . . determine if [the photographs] were real" or "to gather rebuttal witnesses or . . . determine who took the photographs." These comments, however, were not an objection to the foundation, or lack thereof, provided by defense counsel for the photographs, since defense counsel had not yet had an opportunity to provide a foundation. Rather, these comments were obviously intended to communicate the prejudice the prosecutor felt she was suffering as a result of the belated disclosure of the photographs.
Contrary to the trial courts determination and the Peoples terse argument on appeal, defendant did not have to consciously recollect how she received the bruises to lay a proper foundation for the photographs. As long as she (or someone) could testify that the photographs accurately depicted bruises defendant had on her arms on September 16, the purported date the photographs were taken, then a proper foundation would have been provided. (See People v. Bowley, supra, 59 Cal.2d at p. 859.) And defense counsel specifically asserted, "by way of an offer of proof," that defendant would testify that her daughter discovered the bruises on her arms on September 16 (the day after she got out of jail and five days after the alleged crimes) and took the photographs after making that discovery. Thus, the photographs could not be excluded based on lack of foundation.
To the extent the trial courts ruling based on defendants lack of "conscious recollection" regarding the bruises can be understood as a ruling on the relevance of the photographs, as opposed to their foundation, the ruling was still an abuse of discretion. Once a proper foundation was provided, as long as there was other evidence that had a tendency in reason to show that Burley might have inflicted the bruises on defendant during their altercation on September 11, then the photographs were relevant to a potential self-defense claim. On this point, it appears defendant had knowledge of and was prepared to testify regarding the following details: the date of the photographs and who took them, whether the bruises were there before September 11, whether the police mishandled her during the arrest and her stay in jail, and whether she got into any altercation with other inmates while incarcerated. In essence, it appears defendant could have testified that she did not have any bruises on her arms before the altercation with Burley and nothing happened during her arrest or incarceration that could have resulted in the bruises. From this evidence, the jury could have inferred that defendant received the bruises during the altercation with Burley, even though defendant had no conscious recollection of that fact. Thus, the photographs were relevant to a potential self-defense claim, and the trial court abused its discretion by excluding them.
III
Prejudice
Having concluded the trial court abused its discretion, we now turn to whether the error was prejudicial. "No judgment shall be set aside . . . in any cause, on the ground of . . . the improper . . . rejection of evidence, . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) "[A] `miscarriage of justice should be declared only when the court, `after an examination of the entire cause, including the evidence is of the `opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.) This test is based upon reasonable probabilities, not mere possibilities. (Id. at p. 837.)
Here, defendant argues that exclusion of the photographs deprived her of the right to assert self-defense because "[w]ithout the photographs [she] could not demonstrate that she was attacked by [Burley]." We are not persuaded.
"`To justify an act of self-defense . . . the defendant must have an honest and reasonable belief" that imminent bodily injury is about to be inflicted on her. (People v. Minifie (1996) 13 Cal.4th 1055, 1064, quoting People v. Goins (1991) 228 Cal.App.3d 511, 516.) The reasonableness of the defendants use of force is evaluated objectively, from the viewpoint of a reasonable person in the defendants position and with similar knowledge. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083.) The jury must consider all the facts and circumstances in determining whether the defendant acted in a manner in which a reasonable person would act in protecting his or her own life or bodily safety. (Id. at p. 1083.) "[T]he defendant is entitled to consider prior threats, assaults, and other circumstances relevant to interpreting the attackers behavior." (People v. Aris (1989) 215 Cal.App.3d 1178, 1189, disapproved on other grounds in Humphrey, at pp. 1088-1089.) Evidence the victim had threatened defendant is admissible to support a claim of self-defense. (Minifie, at p. 1065.)
Here, the photographs and other evidence might have supported a finding that defendant received the bruises from Burley on September 11, but it would not necessarily have followed from such a finding that defendant acted in self-defense. At best, the photographs would have supported a contention that some form of mutual combat occurred between defendant and Burley; they would not have shown, however, that Burley was the aggressor, or that the injuries defendant inflicted on Burley were inflicted in self-defense. In fact, given Burleys own testimony that he "started trying to hurt her," even if the jury had concluded the bruises depicted in the photographs were caused by Burley during the altercation, defendant has not shown a reasonable probability that the jury would have been any more inclined to believe defendant acted in self-defense during the altercation.
Defendant also contends the exclusion of the photographs "denied [her] an argument that in fact [Burley] had injured himself when he attacked [her], and that he might well have incurred the laceration to his head when he fell from a standing position or from his wheelchair, cutting himself on glass." But defense counsel was able to argue, even without the photographs, that Burley might have hit his head when he fell out of his wheelchair. And as we have discussed already, evidence of bruises on defendants arm, even if the jury concluded Burley caused those bruises, would not have shown Burley attacked defendant, let alone that he attacked her and then fell during or after doing so.
In short, while the trial court should have admitted the photographs, defendant has not shown a reasonable probability that she would have obtained a better result if the court had done so. Therefore, the error was not prejudicial and provides no basis for upsetting the judgment.
DISPOSITION
The judgment (order granting probation) is affirmed.
We concur:
NICHOLSON, Acting P. J.
BUTZ, J.