Opinion
A145458
02-08-2017
THE PEOPLE, Plaintiff and Respondent, v. FRANK BIGOSKI IV, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR211441)
Appellant Frank Bigoski was sentenced to prison for life with the possibility of parole after a jury acquitted him of murder with special circumstances but convicted him of torture. (Pen. Code, §§ 187, 190.2, subd. (a)(17), 206.) He contends the trial court erred in denying his motion for new trial based on the prosecution's failure to disclose evidence that could have been used to impeach the testimony of the pathologist who performed the autopsy on the victim, in violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady). We find no prejudicial error and affirm.
Further statutory references are to the Penal Code unless otherwise indicated.
I. FACTUAL AND PROCEDURAL HISTORY
a. The Setting
Appellant lived in a house on San Andreas Street in Fairfield with his sister, Ryan Odom, Ryan's adult daughter, Tina, and Ryan's minor children, Crystal, Tenaya, Jayvon and Darion. Also staying at the home were Tina's boyfriend, DaMarcus Armstrong, Tina's best friend, Jennifer Whittington, appellant's friend, Janiel Miller; and, occasionally, Ryan's boyfriend, Khalil Askari-Roberts. Ryan was the head of the household, which was chaotic and the site of a number of illegal activities such as drug sales, drug use and prostitution.
For the sake of clarity, we use first names to refer to some of the inhabitants of the house.
b. Discovery of Keith Osby's Body
At 11:30 a.m. on May 13, 2011, the dead body of Keith Osby, Jr. was discovered in the bushes of the Masonic Lodge in Vallejo. Osby's hands were tied and bound with blue tape behind his back, a bloodied blindfold covered his eyes, and he had a gunshot wound to his head. There were remnants of duct tape on his legs and around the circumference of his face. His face was swollen and bloody, his right shoulder was bruised and discolored and he had bruises and abrasions on his left shin. A neighbor had heard a gunshot the night before, sometime between 11:30 p.m. and 12:30 a.m.
c. The Charges and Pleas
The investigation of Osby's death led to the house on San Andreas Street, and appellant, Ryan, Tina, Armstrong, Miller, Whittington and Askari-Roberts were charged by information with special circumstance murder and torture. Miller and Whittington pleaded guilty to the lesser crime of accessory (§ 32) and received prison sentences of three years in exchange for their testimony against the others. Crystal, who was 17 years old at the time of Osby's death, was granted immunity in exchange for her testimony.
d. Prosecution Evidence
Appellant was separately tried from the remaining codefendants, and the following evidence was adduced:
Osby had dated Tina and had lived in the house on San Andreas Street for a few months. After he moved out, appellant's laptop (on which he was writing a novel) and a Play Station belonging to Ryan's children were stolen from the house. Appellant and Ryan were angry about the thefts and believed Osby was responsible. At Ryan's direction, Whittington called Osby on May 12, 2011, and lured him over to the house on the pretext that they needed his help in doing a "lick" (a robbery).
Osby arrived at the house with his brother, and after conversing with some of the residents on the porch, his brother left and Osby went inside. Osby went into a converted garage that was used as a bedroom and gathering place to discuss the robbery. Appellant, Ryan, Tina, Whittington, Armstrong, Askari-Roberts and Miller were all inside the room. Crystal warned Osby not to go inside because Ryan believed he had stolen the laptop and Play Station and was mad at him. Osby denied having stolen the items and went into the room, closing the door behind him.
As soon as Osby entered the room, Ryan punched him and he fell against the wall. She accused him of stealing from her children and pimping out Tina. Ryan, Tina and Askari-Roberts hit and kicked Osby repeatedly, trying to hold him down, while appellant and Armstrong also tried to subdue him. Whittington, who had taken ecstasy, did not participate in the beating. Crystal, who had remained outside and was fearful of what was happening, moved the younger children into a room where they would not hear anything. She peeked inside and saw Osby standing shirtless with blood leaking from his nose while the others (excluding Jennifer) surrounded him. Osby looked scared and was saying he would never steal from them.
At some point during the beating, appellant left the room and returned with a pink softball bat that belonged to Crystal. He lifted it over his head and brought it down hard on Osby's shoulder, but when he swung the bat a second time he hit Ryan instead. Ryan told him to put the bat away, and appellant, Askari-Roberts, and Armstrong held Osby down while Ryan kicked him repeatedly on the right side of his torso. Ryan demanded to know what Osby had done with the stolen items, and Osby continued to deny stealing them. Appellant held down Osby's arms while Ryan kicked him.
At Armstrong's direction, Tina retrieved a roll of blue duct tape from another room and Armstrong used it to bind Osby's hands and legs while he was being held on the bed by appellant and Askari-Roberts. Armstrong told Ryan to leave the room and let them deal with it because she was getting too emotional. After Ryan left, Armstrong took out a gun and held it to Osby's head, asking about the stolen items. Osby maintained he had not stolen the computer or Play Station. At some point Armstrong put duct tape over Osby's mouth, but Osby was able to get the tape off.
Armstrong told appellant to watch Osby and left the room. Appellant, Tina, Whittington and Miller remained inside the room with Osby, who appeared to be in shock and in pain: his nose was bloody and swollen; one of his eyes was almost swollen shut; his shirt was off; and he had dried blood on his lip and chin. Osby was crying and promised he would not retaliate against them. He asked repeatedly to be released so he could go to his grandmother's house to see his son. Appellant said they had to wait for Armstrong to return, and watched over Osby for about three hours. Crystal looked into the room at 9:00 p.m. or 10:00 p.m. and saw Osby tied up with a rag wrapped around his head and duct tape over his mouth. She asked what was going on and told appellant to let Osby go, but appellant told her they were waiting for Armstrong.
Meanwhile, Ryan had gone to a neighbor's house to ask to borrow a car, telling her they had beaten someone up and she was afraid the person would retaliate. Ryan returned home when she learned that Armstrong had obtained a van from the taxi company where Askari-Roberts worked. Crystal asked the group to release Osby but Armstrong told her they couldn't because he might retaliate. Everyone except Miller and Whittington seemed to agree with Armstrong.
Armstrong and appellant carried Osby to the taxi van, put him in the back trunk space, and covered him with a blanket. Armstrong told Crystal they were going to take Osby to Richmond, give him some money, and let him go, and appellant told Whittington they would drop Osby at the Richmond BART station with money to get home. Both appellant and Tina asked to go with Armstrong in the cab, but he told them no and drove away with Osby sometime between 11:00 p.m. and midnight. Armstrong was carrying his revolver when he left.
At 3:00 a.m., Armstrong returned to the house and spoke with appellant, who in turn told Miller that Armstrong had killed Osby. Ryan told Whittington, Miller and appellant that things had gotten out of control and they had taken "proper precaution." Ryan told Crystal that Armstrong had shot Osby somewhere in Vallejo and then told Crystal, Tina and Whittington to clean up the room where Osby had been beaten. Ryan also warned everyone not to say anything to the police.
Appellant's boss at a mattress delivery service remembered that appellant had been very upset when his laptop was stolen because his life work was on it and he believed it would have opened the door to a new career for him. Appellant told his boss he had learned Osby was the thief, but there was nothing he could do because Osby was dead. Appellant was upset and said he had wanted to beat Osby up.
e. Appellant's Statements to Police
Appellant was interviewed by police at his house on May 24, 2011, and denied knowing anything about Osby's death. He was interviewed again at the police station on June 11, 2011, after his arrest. At that time, appellant told the officers he had been asleep when Osby came to the house on May 12, but had gone into the converted garage with the others. Ryan hit Osby and Osby hit her back, at which point appellant and the others hit Osby. The struggle continued until Osby's hands and feet were bound with duct tape. Appellant admitted pushing Osby's legs away and telling him to stop fighting, but he denied holding his legs while he was being taped. He acknowledged punching Osby during the struggle and thought he had given him a bloody nose. He also admitted trying to hit Osby with a metal bat, but said he had hit Ryan instead. According to appellant, Osby said his family members were killers and he would seek revenge. Appellant suggested dropping Osby off in Richmond, where he had family, and helped put him in the back of the taxi van. When Armstrong returned he told appellant he had shot Osby near a building in Vallejo.
f. Appellant's Trial Testimony
At trial, appellant testified that he had been writing a book on the missing laptop and although he was upset when it disappeared, he "[let] it go" after about five days. On May 12, 2011, he was sleeping when Tina woke him up and told him that Osby was there and Ryan wanted him to come and hang out. Shortly after they all entered the converted garage, Ryan shoved Osby and accused him of stealing from her children. Appellant was shocked and tried to separate the two of them, but Osby punched him in the jaw so he punched Osby in the face. A struggle ensued in which Osby hit Ryan and she started screaming and throwing punches. Osby tried to run, but was pushed back into the room by Askari-Roberts, after which he and Ryan went at each other again. Osby tried to bolt a second time after appellant pushed Ryan back, but he ran into Miller and fell back on Ryan. Ryan started kicking Osby on his right side while he was down on the floor.
Others in the room joined in the brawl and appellant was kicked. Appellant grabbed a bat and swung it as hard as he could at Osby, hitting him in the left shoulder. He swung it a second time but hit Ryan and Roberts by mistake. Armstrong grabbed Ryan by the shoulders and told her to stop. When Osby tried to run away, Armstrong threw him on the bed and pulled out a gun, holding Osby at gunpoint until Tina retrieved some duct tape and they tied Osby up. Appellant leaned against one of Osby's legs while he was being taped because Osby was kicking at Miller. Appellant denied having struck Osby out of anger; he was only trying to keep his sister from being harmed.
Appellant testified that earlier in the evening he had advised Ryan to call the police and tell them there had been a fight, but Ryan had refused and Osby agreed with her because Osby did not want to get arrested for outstanding warrants. After Osby was bound, appellant went outside and suggested to Ryan they take him to the hospital, but she refused. Appellant then suggested they take him to the Richmond BART station with some money, and Ryan agreed. Ryan left with Armstrong while appellant watched over Osby. Osby made some threats and said his family were killers, but eventually said he would not retaliate. While he was watching over Osby, appellant gave him water and two or three cigarettes. Though Osby said he was uncomfortable at times and asked to be released, he never complained of pain.
Armstrong returned in a taxi van and told Osby he was taking him out to Richmond to drop him at a BART station. Osby agreed and was carried to the taxi by appellant and Armstrong, who told Osby he was going to cover him with a blanket because he needed to pick up a fare. Armstrong drove away at 10:15 p.m. and returned early the next morning, at which time he told the group he had taken Osby to a place in Vallejo, removed the duct tape from his ankles, and shot him in the head as he was walking away. Appellant was shocked. He denied ever telling his boss he had wanted to inflict pain on Osby for stealing the laptop or saying it was a shame Osby had died because he (appellant) had wanted to kick his ass.
g. Forensic Evidence
Dr. Susan Hogan performed an autopsy on Osby's body on May 16, 2011, and testified for the prosecution as an expert in forensic pathology and to the cause of death. She noted that Osby's wrists had been tightly bound with duct tape behind his back and his hands were deep maroon due to the constriction, which would have caused him pain. Osby had a number of external injuries, including a gunshot wound to the crown of his head, a contusion below his left eye, blunt force trauma to his torso, various abrasions and contusions, and an abraded "train track" injury on the left side of his back, composed of two parallel linear contusions consistent with being struck by a long, round instrument like a bat, pipe or baton. According to Dr. Hogan, the train track injury would have hurt and the fact it was abraded meant a few layers of skin had been taken off by the force.
An internal examination revealed a small amount of blood in Osby's peritoneal and abdominal cavities and a massive hemorrhage in the retroperitoneal space, indicative of a severe blunt force trauma injury to the torso. Dr. Hogan opined that the hemorrhage could have been caused by being kicked or hit with a fist or a bat, and was likely the result of multiple blows though a single, forceful kick that could have caused the injury. Because it was a "crush" injury involving millions of tiny blood vessels rather than damage to a major artery, Dr. Hogan believed this injury was fatal and would have caused Osby's death even if he had not been shot. Dr. Hogan could not tell whether Osby was still alive when he was shot.
The defense called Dr. Terri Haddix as an expert in forensic pathology. Dr. Haddix had not examined Osby's body, but she had reviewed the autopsy report and various documents regarding the case. She had also examined a metal baseball bat that was seized from the San Andreas house and booked into evidence. In Dr. Haddix's opinion, Osby was alive when he was shot and she was more than 90 percent certain that the cause of death was the gunshot wound. Like Dr. Hogan, she believed the hemorrhage in Osby's retroperitoneal cavity was caused by damage to smaller blood vessels, but unlike Dr. Hogan, she believed the injury would have been treatable. According to Dr. Haddix, the mortality rate for a retroperitoneal hemorrhage is 10-30 percent, and while Osby's injury was significant, she could not say to a reasonable medical certainty that Osby would have died from it. Dr. Haddix did not believe the metal baseball bat would have produced the train track injury on Osby's back and she did not believe that injury had been inflicted with a lot of force because no bones had been broken and there was no bleeding into the muscle.
h. Jury Instructions and Verdict
The trial court instructed the jury on three theories of first degree murder (felony murder committed during the course of a kidnapping, murder committed with premeditation and deliberation, and murder committed by means of torture), felony-murder special circumstance allegations, and second degree murder and voluntary manslaughter as lesser included offenses. The jury was also given CALCRIM No. 810, setting forth the elements of torture, and CALCRIM Nos. 400 and 401, regarding liability as an aider and abettor. The jury acquitted appellant of first degree murder and its lesser included offenses but convicted him of torture.
II. DISCUSSION
After the verdict, the defense learned that Dr. Hogan had been investigated by the Solano County Sheriff's department regarding her professional competence and was ultimately allowed to resign from her position with the county in lieu of being fired. In a motion for new trial, appellant argued that the report relating to this investigation should have been disclosed under Brady because it would have allowed his defense counsel to impeach Dr. Hogan's testimony at trial. The trial court ruled that although the information should have been disclosed to the defense, it was not material given that the jury had acquitted appellant of murder. On appeal, we independently review whether a Brady violation occurred, giving great weight to the trial court's findings of fact if they are supported by substantial evidence. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 176 (Letner).) We conclude there was no Brady error requiring reversal.
"[T]he suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (Brady, supra, 373 U.S. at p. 87.) The duty of the prosecution to disclose such evidence exists without a request from the accused (United States v. Agurs (1976) 427 U.S. 97, 107), and includes impeachment as well as exculpatory evidence (United States v. Bagley (1985) 473 U.S. 667, 676).
A Brady violation has three components: (1) the evidence at issue must be favorable to the accused because it is exculpatory or impeaching; (2) the evidence must have been suppressed by the state, either willfully or inadvertently; and (3) the accused must have been prejudiced by the nondisclosure. (Strickler v. Greene (1999) 527 U.S. 263, 281-282; People v. Lucas (2014) 60 Cal.4th 153, 274, disapproved on other grounds in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19; People v. Salazar (2005) 35 Cal.4th 1031, 1043 (Salazar).) The People do not dispute that the evidence concerning the investigation of Dr. Hogan was impeaching and was suppressed by the state, but they argue the nondisclosure was not prejudicial. Our focus is therefore on the prejudice prong of the analysis.
In order for a defendant to have suffered prejudice, the undisclosed evidence must be material to the defendant's guilt or innocence. (Letner, supra, 50 Cal.4th at p. 176.) "Evidence is 'material' 'only if there is a reasonable probability that, had [it] been disclosed to the defense, the result. . .would have been different. [Citations.] The requisite 'reasonable probability' is a probability sufficient to 'undermine[] confidence in the outcome' on the part of the reviewing court." (In re Sassounian (1995) 9 Cal.4th 535, 544 (Sassounian).) "A showing by the prisoner of the favorableness and materiality of any evidence not disclosed by the prosecution necessarily establishes at one stroke what in other contexts are separately considered under the rubrics of 'error' and 'prejudice.' For, here, there is no 'error' unless there is also 'prejudice.' " (Id. at p. 545, fn. 7.)
" 'In general, impeachment evidence has been found to be material where the witness at issue "supplied the only evidence linking the defendant(s) to the crime" [citations] or where the likely impact on the witness's credibility would have undermined a critical element of the prosecution's case [citation]. "In contrast, a new trial is generally not required when the testimony of the witness 'is corroborated by other testimony." ' [citations]." (Salazar, supra, 35 Cal.4th at p. 1050.) Materiality "requires more than a showing that the undisclosed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction 'more likely' [citation], or that using suppressed evidence to discredit a witness's testimony 'might have changed the outcome of the trial' [citation]." (Id. at p. 1043.)
This was not a case in which Dr. Hogan's testimony supplied the only evidence linking appellant to the crime, as several witnesses, including appellant, established his participation in the attack and Dr. Hogan herself offered no opinion regarding his involvement. (See Salazar, supra, 35 Cal.4th at p. 1050.) Nor was it a case in which the impeachment of Dr. Hogan would have undermined a critical element of the prosecution's evidence on the torture count. Torture is defined by section 206 as follows: "Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture." Under any reasonable view of the evidence, appellant was an active participant in a prolonged attack in which Osby was brutally beaten and bound with duct tape in retaliation for his suspected theft of two electronic devices. The evidence was strong that appellant was guilty of torture, if not as a direct participant, then as an aider and abettor. (See People v. Odom (2016) 244 Cal.App.4th 237, 246-248 [upholding Ryan Odom's torture conviction].)
The defense expert, Dr. Haddix, testified similarly to Dr. Hogan that Osby suffered a number of injuries in addition to the gunshot wound, including blunt force traumas (scrapes, cuts and bruises), abrasions on his torso and shoulder region, a train track injury on the left side of his back, abrasions and contusions on his legs, as well as a significant internal hemorrhage in the peritoneal cavity. The jury also saw photographs depicting Osby's injuries. It is not reasonably probable appellant would have avoided a conviction on the torture count if he had been armed with the report concerning the investigation into Dr. Hogan's competence.
Dr. Hogan's testimony did differ from Dr. Haddix's in two critical respects: (1) she concluded the internal hemorrhage was a cause of death in addition to the gunshot wound to Osby's head; and (2) she opined that it could not be determined whether Osby was already dead when he was shot. However, the cause of death was an issue that was only pertinent to the murder charge of which appellant was acquitted. Even assuming the investigator's report would have discredited Dr. Hogan's opinion regarding the cause of death and made the jury more likely to credit Dr. Haddix's testimony on that issue, it was not material to appellant's guilt on the torture count.
Appellant argues the impeachment evidence was critical because the internal hemorrhage on Osby's right side was "the most graphic evidence of torture" and Dr. Hogan gave testimony suggesting appellant directly caused that injury. Appellant reasons as follows: (1) the evidence (including his own testimony) showed that he used a baseball bat during the attack; (2) Dr. Hogan testified that a cylindrical object such as a bat could have caused the train track mark on Osby's back; and (3) Dr. Hogan testified the internal hemorrhage could have been caused by a baseball bat or a pipe, which suggested the person who used a bat during the beating—appellant—was the person who inflicted that injury.
There are several flaws in this reasoning. First, while the internal hemorrhage was the most serious injury aside from the gunshot wound, it was not the only injury supporting the torture verdict. In addition to whatever blows caused the hemorrhage, the evidence showed Osby had a bloody and possibly broken nose, that one of his eyes was swollen shut, and that his hands were bound so tightly behind his back that they turned purple from the constriction of the blood flow. Any of these injuries were sufficient to constitute the great bodily injury necessary for a torture conviction. (See People v. Escobar (1992) 3 Cal.4th 740, 752 [great bodily injury findings upheld in case involving multiple contusions on hands, arms and buttocks, multiple abrasions and lacerations to back, a swollen jaw, bruises to head and neck, and sore ribs]; People v. Pre (2004) 117 Cal.App.4th 413, 419-420 [abrasions, lacerations or bruising can constitute great bodily injury].)
Second, Dr. Hogan did not testify that the hemorrhage was caused by a bat. Rather, she indicated it could have been caused by kicking, blows from a fist, or blows from a pipe or a bat—in short, she did not settle on any particular instrument of attack and did not contradict Dr. Haddix's testimony that the blows could have been caused by fists or by kicking. Dr. Hogan also testified that the injury was likely the result of multiple blows, though it might have been caused by a single forceful kick. Witnesses to the attack testified that Ryan Odom hit and kicked Osby repeatedly, whereas the evidence showed appellant hit his back and shoulder area only once with the bat. It is extremely unlikely the jury would have concluded the hemorrhage was directly and exclusively caused by the bat, and therefore by appellant.
Dr. Haddix suggested that a further examination of the area under the skin near the site of the hemorrhage during the autopsy might have assisted in determining the nature of the blows that resulted in the hemorrhage. --------
Third, even if the jury construed Dr. Hogan's testimony to support a determination that the bat had caused the hemorrhage, impeaching her on that point was not reasonably likely to lead to a more favorable verdict for the defense. Appellant participated actively in the attack that caused Osby's injuries and the evidence supporting his conviction as an aider and abettor was compelling, regardless of which participant struck the blow(s) that directly caused the hemorrhage.
Finally, the nature of Dr. Hogan's alleged acts of incompetence make it unlikely the evidence withheld by the prosecution would have been viewed as significant impeachment in appellant's case. (See Salazar, supra, 35 Cal.4th at p. 1051.) The investigative report on Dr. Hogan focused primarily on her forensic pathology work in four cases. In the first case, she failed to order a sepsis test, which resulted in the prosecution's inability to prove a five-month-old baby had died as a result of abusive trauma. In the second, she did not include information in her autopsy report regarding stippling or petechial hemorrhaging on the decedent, which may have hampered the initial police investigation into a suspected homicide that had been staged to look like a suicide. In the third case, Dr. Hogan found no trauma to the decedent's genitalia, which conflicted with another pathologist's findings, and she overlooked two hemorrhages the other pathologist found on the decedent's scalp. And in the fourth case, Dr. Hogan refused to state a cause for the decedent's asphyxiation and disagreed with the detective's determination that the manner of death was homicide. The report also stated that Dr. Hogan did not always follow office policy and procedures, that she may not have had the ability to perform some of her job duties due to her physical ailments, and that concerns had arisen due to her work in other cases and an unprofessional e-mail she sent to a Solano County chief deputy district attorney. Aspects of the report could have been used to impeach her competence in general, but none of the incidents it described involved issues similar to the ones in this case. Nor does the report demonstrate any type of a pro-prosecution bias by Dr. Hogan, as the findings called into question by the report did not favor the prosecution.
III. DISPOSITION
The judgment is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.