Opinion
A146643
06-28-2018
THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN JASPER CARTER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR1402688)
Defendant Benjamin Jasper Carter appeals a judgment entered upon a jury verdict finding him guilty of possession of a firearm by a felon. He contends his trial counsel rendered ineffective assistance by eliciting and failing to object to evidence that he committed uncharged crimes. We shall affirm the judgment.
I. BACKGROUND
A. Procedural History
Defendant was charged with murder (Pen. Code, § 187, subd. (a), count one) and possession of a firearm by a felon (§ 29800, subd. (a), count two). As to each count, the information alleged defendant had suffered a prior serious or violent felony conviction. (§ 667, subds. (b)-(i).) Before trial, defendant moved to set aside the information. The trial court granted the motion as to the murder count, and denied it as to the firearm possession count.
All statutory references are to the Penal Code.
At trial, defendant relied on the theory that he possessed the firearm only temporarily in self-defense or defense of another. Accordingly, the jury was instructed pursuant to CALCRIM No. 2514 that defendant was not guilty of unlawful possession of a firearm if he reasonably believed he or someone else was in imminent danger of great bodily injury; he reasonably believed the immediate use of force was necessary to defend against the danger; the firearm became available to the defendant without planning or preparation on his part; he possessed the firearm no longer than necessary for self-defense or defense of another; and no other means of avoiding the danger was available. The jury found defendant guilty of possession of a firearm by a felon, and defendant admitted the prior conviction. The trial court sentenced defendant to six years in prison.
B. Evidence at Trial
1. Prosecution Case Regarding the Shooting
On April 16, 2014, defendant's sister-in-law, Margaret Bigger, was staying with her friend, Thomas Smith, in his trailer on property owned by Donovan Henry. When she was in Garberville, she saw defendant pull up in his truck, while Henry chased him. Henry blocked defendant's car with his own vehicle. Defendant and Henry exchanged words, and Henry got out of his vehicle, approached defendant's truck, tried to drag him from the truck, and tried to punch him. Defendant backed up and drove away. Police officers arrived and determined Henry had been the aggressor. Defendant later told Bigger he had gotten a gun from a neighbor, Zackery Chapman, to protect himself from Henry.
That evening, defendant and his wife, Melinda Carter, went to Smith's trailer for a barbeque. Bigger suggested he go there because there was a locked gate, so Henry could not "get to him." Before Chapman arrived, Bigger saw defendant in possession of a pistol grip shotgun, and she saw him put it in his truck.
Because defendant and his wife share a last name, we shall refer to Melinda Carter as "Melinda." We intend no disrespect.
On cross-examination, however, Bigger testified that she was not sure the object defendant put into the truck was a shotgun.
Chapman called Bigger and told her to tell defendant he wanted his shotgun back. Chapman went to Smith's trailer and said he wanted his shotgun back. He sounded angry, and had a pistol in his hand. Defendant entered the trailer, holding a shotgun. Chapman spun around and pointed his gun at defendant. Defendant muttered something, Chapman chuckled, and defendant shot Chapman. Defendant left the trailer, still holding the shotgun. Bigger did not see the shotgun in the trailer again.
Smith saw defendant put the gun in the cab of his truck; he did not see anyone remove the gun. He asked defendant if Chapman was dead, and defendant answered, " 'He will be in a minute.' " After Chapman's body was placed in the back of defendant's truck, defendant drove away in the truck.
2. Testimony about Chapman's Death Elicited by Defense Counsel
On cross-examination, defense counsel elicited testimony from Bigger that after defendant shot Chapman, defendant moved Chapman's body, using both his hands. Defendant and Bigger put Chapman's body in defendant's truck. Defendant was not holding the shotgun. Defendant and his wife, Melinda Carter, drove the truck and Chapman's car off the property.
From Smith, defense counsel elicited testimony that after defendant put the shotgun in his truck, he went back to the trailer to retrieve Chapman's body and asked Smith to help him. Smith refused, and Bigger helped defendant move the body. Defendant and Bigger left in the truck, and later returned. Smith did not see the gun again.
3. Article about the Homicide
In late April or early May 2014, defendant contacted Kym Kemp, who worked as reporter for the Lost Coast Outpost. At trial, the prosecutor asked Kemp, "[W]ere you contacted about a homicide?" She replied, "Yes, sir." He asked, "[W]hat homicide were you contacted about?" She replied, "Um, Zackery Chapman." He asked, "What was the--did this person have to say about the homicide of Zackery Chapman?" She answered, "As I wrote in the article, he said that he had a story to tell about what happened that night." After defendant and Kemp exchanged emails and spoke on the telephone, she wrote an article entitled, "Homicide Suspect on the Run Gives the Outpost His Side of the Story." She testified that the article reported that defendant told Kemp he got the gun from Chapman earlier in the day because he was afraid. He also told her he had driven Chapman's car away from the trailer and parked it. He then went to dispose of Chapman's body.
Kemp originally agreed with the prosecutor's paraphrase of the article's title as " 'Murder suspect gives his side while on the run[.]' " The prosecutor later noted, and Kemp agreed, that the original paraphrase "wasn't the actual title," and that it was "[s]imilar but not quite exactly the same[.]" At our request, the clerk of the Humboldt County Superior Court has transmitted to us a copy of the article, People's Exhibit 4. On our own motion, the record on appeal is augmented to include this exhibit.
On cross-examination, Kemp testified that at the time she was communicating with Kemp, she knew Melinda was in jail. Defendant said he intended to turn himself in if Melinda was released.
A redacted copy of the article was admitted into evidence. The article reported that defendant said that when Chapman reached the door of the trailer on the night of the shooting and yelled that he wanted his shotgun, defendant picked up the gun Chapman had given him earlier in the day and followed him into the trailer. Chapman had a pistol pointed at the two women, and he turned the gun on defendant, who shot him. Defendant explained that he did not call the police and claim self-defense because he was a convicted felon in possession of a firearm, and he panicked out of fear of losing his freedom. He described moving Chapman's car and disposing of his body in a river, and also said that at some point he had put Chapman's shotgun and pistol in a safe place.
4. Defense Case
a. Melinda Carter
Melinda Carter testified on defendant's behalf. On the evening of the shooting, she and defendant drove to Chapman's motel, and she got a shotgun from Chapman's room before going to Smith's trailer. Chapman knew she wanted it because Henry had been chasing defendant. She put the gun into a lock box in the bed of the truck.
While Melinda was at Smith's home, she heard a telephone conversation in which Chapman told Bigger he was "on his way." Chapman arrived at the trailer, carrying a gun. He pointed it at Melinda and Bigger and yelled at defendant to get his other gun. Chapman appeared to be under the influence of methamphetamine. Defendant came through the door, carrying a shotgun, Chapman turned and pointed a gun at him and laughed, and defendant shot him. Defendant put the shotgun down and moved Chapman's body, using both hands. Bigger helped defendant put the body in the truck. Chapman was dead. Defendant drove Chapman's car away and parked it on the side of the road. Melinda drove the truck containing Chapman's body. She took the guns with her and put them "in a random hill." She met defendant down the road, and he got into the truck. They put Chapman's body in a river.
On direct examination, Melinda testified she was prosecuted for, and pled guilty to, being an accessory after the fact. On cross-examination by the prosecutor, she testified that the crime to which she had been found an accessory was murder.
b. Cheryl Magnuson-Franco
Cheryl Magnuson-Franco, an investigator with the Humboldt County Sheriff's Department, also testified for defendant. She interviewed Smith and Bigger two days after the shooting. Smith said he did not notice whether defendant put the shotgun back into his truck after shooting Chapman. Defense counsel asked Magnuson-Franco why Smith and Bigger had not called the police the evening of the shooting. She replied, "They were terrified of what just happened and then they ended up in a motel room with Mr. Carter and his wife Melinda. I believe also during that time Mr. Carter ended up showing Mr. Smith a broken down assault rifle and had talked to him about that which caused him great fear as well." Defendant told Smith that, because the rifle was broken, he was not in possession of a firearm. While the four of them were staying at the motel, defendant would come and go, and he used Bigger's truck, a Blazer. When investigators went to the hotel, Bigger's vehicle arrived, and an assault rifle was later found in the vehicle. On cross-examination by the prosecutor, Magnuson-Franco was asked who was driving the Blazer. She replied that she had been told defendant and Bigger were in the vehicle; defense counsel objected to the hearsay, and the trial court sustained the objection.
Defense counsel, who was questioning Magnuson-Franco, moved to strike the reference to the assault rifle as nonresponsive. The trial court denied the request.
On redirect examination, Magnuson-Franco testified that she read the article Kemp had written for the Lost Coast Outpost after it was published. Defense counsel asked whether the article suggested anything of evidentiary or investigative value. She testified that "somehow it came up that . . . Mr. Carter possessed the shotgun and the victim or Zack Chapman's pistol, and had possessed them and would turn them over when necessary."
II. DISCUSSION
Defendant contends his trial counsel rendered ineffective assistance in eliciting or failing to object to evidence showing that Chapman died as a result of the shooting, referring to the killing as homicide or murder, and indicating defendant possessed firearms other than the shotgun that killed Chapman.
Our task in reviewing a claim of ineffective assistance on direct appeal is well settled. "Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation prejudiced the defendant, i.e., there is a 'reasonable probability' that, but for counsel's failings, defendant would have obtained a more favorable result. [Citations.]" (People v. Dennis (1998) 17 Cal.4th 468, 540-541.) "A court must indulge a strong presumption that counsel's acts were within the wide range of reasonable professional assistance. [Citation.]" (Id. at p. 541.) "Reviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel's omissions. [Citation.]" (People v. Lucas (1995) 12 Cal.4th 415, 442.) Moreover, "[i]f a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel's performance was deficient. [Citation.]" (People v. Mayfield (1997) 14 Cal.4th 668, 784 (Mayfield), overruled on another point in People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2.) Prejudice is established when counsel's performance " 'so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' " (Ibid., quoting Strickland v. Washington [1984] 466 U.S. 668, 686.) Prejudice must be proved as a " 'demonstrable reality,' not simply speculation as to the effect of the errors or omissions of counsel." (People v. Williams (1988) 44 Cal.3d 883, 937 (Williams).) With these principles in mind, we examine the acts and omissions defendant challenges.
Before trial, defendant made a motion in limine seeking a ruling on the relevance and admissibility of evidence of "the death or killing of Zach[e]ry Chapman . . ." When the parties argued the motion, the prosecutor contended that, because defendant's position was that he used the gun in self-defense, the facts of the homicide were relevant to the question of whether his possession of the firearm was unlawful. He also argued that the fact of Chapman's death was relevant because once Chapman was dead, defendant no longer had the right to possess a firearm for the purpose of self-defense. The court indicated that "[i]f the death is part and parcel of the offense, or the aftermath of the offense, I will permit it." The court went on, "[I]f the death is part and parcel of the offense, which I think that it is, I don't know that I can necessarily extract that from the entirety of the—of the presentation. What I can do is exclude it to the extent that it becomes gratuitous, we're focusing on the hom[i]cide, as opposed to the possession of a firearm. That would be my intent, so you can raise whatever objections are necessary in that respect. Okay?" Defense counsel replied, "Okay. That is what we're getting at, Your Honor. Thank you very much."
Defendant argues that, despite this ruling, his counsel either elicited or did not object to evidence regarding Chapman's death. For instance, defense counsel asked Bigger who moved Chapman's body, and drew from her a description of helping defendant load Chapman's body into the truck before defendant and Melinda drove off the property. He did not object when Smith testified about Chapman's body being placed in the truck, and on cross-examination, he elicited testimony that defendant retrieved Chapman's body and put it into the truck with Bigger's assistance and drove away. When the prosecutor asked Smith what defendant said to him when he came out of the trailer and put the shotgun in the truck, Smith replied, "I asked him if that guy was dead. He said, " 'He will be in a minute.' " Defense counsel did not object. When Kemp was testifying, defense counsel elicited testimony that defendant told her he took Chapman's vehicle and abandoned it, and he did not object when the prosecutor asked Kemp whether defendant had told her he moved Chapman's vehicle and disposed of his body. In his direct examination of Melinda, defense counsel asked whether Chapman was still alive when he was taken from the trailer to the truck, and he elicited testimony that defendant drove Chapman's car away and abandoned it and that he joined Melinda in the truck to dispose of Chapman's body.
We cannot conclude defendant's counsel could have had no rational tactical purpose in presenting testimony about Chapman's death or failing to object to it. In his questioning of Bigger and Melinda, defense counsel sought to establish that defendant had to use both hands to move Chapman's body into the truck and that he was no longer holding the shotgun. The fact of Chapman's death was an integral part of this narrative. And, while it is difficult to see what the details of disposing of Chapman's body added to this line of defense, defendant has not established that these facts would have led the jury to conclude he continued to possess the shotgun after he moved Chapman's body. In any case, the jury had before it the article written by Kemp, which includes defendant's statements that he loaded Chapman's body into the truck, drove Chapman's car and parked it elsewhere, and used his truck to take Chapman's body to the river to dispose of it. Defendant has not established any prejudice from the challenged testimony.
Defendant also contends his counsel was ineffective in failing to object to references to the killing of Chapman as "homicide" or "murder." While questioning Kemp, the prosecutor referred to defendant contacting her about a homicide, and paraphrased the title of her resulting article as " 'Murder suspect gives his side while on the run[.]' " Moreover, Melinda testified she had pled guilty to being an accessory after the fact to murder.
Defendant contends his counsel did not object when the prosecutor asked Melinda whether the crime to which she had pled guilty of being an accessory was murder. In fact, he objected unsuccessfully on the ground the question had been asked and answered when the prosecutor asked the question a second time.
We see no likelihood of prejudice from these references. There was no dispute that defendant killed Chapman, and the prosecutor himself pointed out that he had been mistaken in indicating the title of Kemp's article referred to murder. Defendant was not tried for killing Chapman, and the prosecutor stated in his closing argument: "The charged count isn't murder. This is not a murder case because Zackery Chapman pointed a gun at the defendant, and the defendant shot him. The homicide of Zackery Chapman under the law appears to be justified . . . Because when Zack Chapman pointed a firearm at the defendant, the defendant was justified in shooting him." There is no basis to conclude the jury was misled by the references to homicide or murder.
A closer question is presented by defendant's contention that his counsel rendered ineffective assistance by eliciting testimony about defendant's possession of other guns. When Magnuson-Smith testified about her interview with Smith and Bigger, defense counsel asked why they had not called the police the evening of the shooting. Magnuson-Franco testified in response that they were terrified about what had just happened; she added, "I believe also during that time Mr. Carter ended up showing Mr. Smith a broken down assault rifle and had talked to him about that which caused him great fear as well " Defense counsel also elicited testimony from Magnuson-Franco that an assault rifle had been found in Bigger's Blazer—a vehicle defendant used after the shooting—and that Magnuson-Franco learned as a result of the article in the Lost Coast Outpost that defendant had said he possessed the shotgun and Chapman's pistol.
Defendant contends his counsel must have known Magnuson-Franco would testify about the assault rifle because he had a transcript and a videotape of her interview with Bigger and Smith. The record does not show clearly, however, that the references to the other gun was in the transcript, and the fact that defense counsel immediately moved to strike the testimony suggests that he did not anticipate the answer.
Whether or not defense counsel had a tactical purpose in presenting some or all of this evidence, defendant has not met his burden to show nonspeculative prejudice. (Mayfield, supra, 14 Cal.4th at p. 784; Williams, supra, 44 Cal.3d at p. 937.) The Lost Post Outpost article was in evidence, and it indicated defendant said that he had obtained the shotgun from Chapman earlier in the day and that after the shooting, he had put Chapman's shotgun and pistol in a safe place. Thus, the jury already had before it evidence that defendant had possession of more than one gun. In his closing arguments, the prosecutor told the jury that defendant was justified in shooting Chapman, but that the question before the jury was whether defendant was justified in possessing "that firearm" before Chapman arrived at the property and after Chapman was dead and the need for self-defense was over. He did not dwell on the evidence of the other guns or suggest the jury should convict Chapman based on his possession of any gun other than the shotgun used to kill Chapman. Rather, he argued the evidence showed defendant's possession of the shotgun was unlawful because it was not limited to the time of imminent danger and he obtained the weapon through planning and preparation. (See CALCRIM No. 2514.) On this record, defendant has not shown his counsel's actions " 'so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' " (Mayfield, supra, 14 Cal.4th at p. 784.)
In his opening brief, defendant also contended the trial court deprived him of conduct credits. He later informed us the issue has been resolved in the trial court.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Schulman, J. We concur: /s/_________
Streeter, Acting P.J. /s/_________
Reardon, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------