Opinion
C075837
02-22-2017
THE PEOPLE, Plaintiff and Respondent, v. WENDELL JOSEPH COLEMAN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F-13-0363)
Convicted of several crimes in connection with a robbery and shooting and sentenced to more than 21 years in state prison, defendant Wendell Joseph Coleman appeals. He contends the prosecutor committed misconduct by disparaging defense counsel during closing argument. We affirm because the prosecutor did not commit misconduct.
BACKGROUND
On the evening of June 14, 2011, defendant and Nicholas Gartiez met in the parking lot of an apartment complex to consummate a marijuana deal that they had set up through several cell phone calls. At least one man was with defendant, and two men were with Gartiez. Gartiez knew defendant, nicknamed "Gator," from their attendance at high school together. Defendant and the man with him pulled out guns and took the cell phones of Gartiez and his companions. Defendant and his companion also demanded Gartiez's money. The man with defendant then pistol-whipped Gartiez. As he was striking Gartiez, the gun went off, and Gartiez was hit in the knee with a bullet. Gartiez was able to identify defendant from their high school yearbook. Gartiez testified that defendant had dreadlocks on the evening of the crimes. An investigation into cell phone records showed several phone calls between defendant's cell phone and Gartiez's cell phone on the day of the crimes.
As relevant to his appeal, defendant called AmKeisha McKnight as a defense witness. McKnight and her family are close with defendant's family, and she was with defendant when he was arrested in January 2012. She testified that defendant was with her for a party the afternoon and evening of the crimes. McKnight's brother cut defendant's hair that day, so defendant could not have had dreadlocks. During the party, a man McKnight could not name borrowed defendant's cell phone. Defendant did not leave the party until the next morning. McKnight denied talking to defendant's family about the case, other than a conversation with defendant's mother about someone using defendant's cell phone and another conversation about when to be in court. And McKnight said she talked only briefly to defense counsel, but not recently as of the trial except when defense counsel called to tell her when to be in court.
The district attorney charged defendant by information with three counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) and three counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2)). As to each count, the information alleged that defendant personally used a firearm. (Pen. Code, §§ 12022.5, subd. (a); 12022.53, subd. (b).) A jury found defendant guilty as charged.
The trial court sentenced defendant to 21 years eight months in state prison. The court imposed the middle term of three years for one count of robbery, with a 10-year enhancement for personal firearm use. Additionally, the court imposed a consecutive term of one year each (one-third the middle term) for each of the other two robberies, plus a consecutive term of three years, four months each (one-third the prescribed term) for the personal firearm enhancement associated with each of the other two robberies. The court imposed and stayed terms for the three counts of assault with a firearm and their associated enhancements.
DISCUSSION
Defendant contends that the prosecutor committed misconduct by disparaging defense counsel, specifically by impugning defense counsel's integrity. The contention is without merit. First, defendant forfeited any prosecutorial misconduct argument by failing to object to the prosecutor's argument. And second, in any event, as will be seen from the record of the prosecutor's comments, the prosecutor was fairly commenting on the witness's credibility and did not impugn defense counsel's integrity.
"It is well settled that making a timely and specific objection at trial, and requesting the jury be admonished (if jury is not waived), is a necessary prerequisite to preserve a claim of prosecutorial misconduct for appeal. [Citation.]" (People v. Seumanu (2015) 61 Cal.4th 1293, 1328.) Defendant concedes he did not object to the alleged instances of prosecutorial misconduct; therefore, the claim is forfeited.
In any event, there was no prosecutorial misconduct.
" ' "A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel." [Citations.] . . . " 'To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' [Citation.]" ' " (People v. Seumanu, supra, 61 Cal.4th at pp. 1336-1337.)
Defendant's claim of prosecutorial misconduct focuses on the prosecutor's argument to the jury concerning the credibility of AmKeisha McKnight. The prosecutor argued:
"We also have AmKeisha McKnight, who didn't pop out of the woodworks until the very beginning of this trial. Who never contacted the DA's Office to say, 'Hey, you guys got the wrong guy. I was with him that whole night. There's no possible way.' No contact with the police. In fact, she was there when he was arrested and didn't say a word. She was there in court when the charge was read against him and didn't say, 'Hey, Court, you got the wrong guy. I was with him that day, it wasn't him.' Didn't tell the DA sitting there when the charge was read, didn't call afterwards.
"Why? Likely, because it's not true. She's trying to save her friend now that it's going to trial.
"Then, think about, do their stories [referring to the testimony of McKnight and defendant's mother] make sense, based on your own common sense? And I submit to you that they don't.
"Second, they don't make sense amongst their statements themselves, but also with the other evidence that . . . you've heard, they don't match up with anything else, except for portion [sic] where Ms. McKnight clearly was either fed information from the defense attorney or the defendant's family that she remains in contact with." (Italics added.)
Defense counsel responded to the prosecutor's argument:
"AmKeisha McKnight. She took the witness stand, she testified, she was cross-examined. And the interesting thing—now, I'm accused of feeding her information. No basis for that. I am a bad guy. I mean, that's pretty bad to be accused without any reference, any suggestion that what she said lacks credibility. She [referring to the prosecutor] accused me of feeding her [referring to McKnight] information. She cross-examined her up and down about the timeframes, 'Who was there? What happened next,' everything. His hair, the way it was—the way it was in 2009 versus the way it was in 2011. She covered everything.
"And everything that Ms. McKnight said was consistent and it made sense."
Later in defense counsel's closing argument:
"If I fed [McKnight] . . . everything that could possibly be used on cross-examination, the details, that didn't happen. And there's not even a hint that it did happen. That anything like that happened. She told you, when I spoke with her, she told you I spoke with her back in May. She didn't hear again from me until a day or so—few days before trial, that's what she said. That was it. No coming to my office. Saw me here was the first time she came here, that's it."
In her rebuttal, the prosecutor again discussed McKnight's credibility. She said:
"All of a sudden [McKnight's] brother magically cut [defendant's] hair the night that this occurred. Suddenly this fact comes out after the case started trial, after [defense counsel's] kind of determined, submitted it by his questioning to witnesses that this is some sort of important aspect of the case. Now, all of a sudden there's this new fact that her brother actually did cut his hair that night.
"Where did she get that from? There's only a few people that she's been in contact with: Defendant, defense attorney, and defendant's family, or at least defendant's mother.
"Somebody should know all of these facts that the defense attorney's been trying to highlight through his questioning. Yet, she has not spoken to him until right before trial."
The prosecutor added:
"Now, it's not uncommon to talk to witnesses beforehand; I'm not saying that's improper. Prosecutors talk to witnesses all the time. In fact, it probably would be pretty stupid to put someone on the stand and not know what they're going to say.
"The part is about her lying about it. Why would you lie about not talking to these people? Why would you do that? It's perfectly okay to talk about it. It probably would be expected. So, then why lie about it? Because you're trying to bend the facts to fit the story. You're trying to weed [sic] these facts into what the theory of the case is. That's the only way. The only reason to lie."
Defendant contends on appeal that "[d]uring her closing argument, the prosecutor insinuated that defense counsel . . . tampered with [defendant's] key alibi witness, AmKeisha McKnight, and suborned perjury from her." However, this argument overstates what the prosecutor said, reading into the argument what was not there. The prosecutor did not accuse defense counsel of suborning perjury.
In her closing argument, the prosecutor emphasized that McKnight came forward with evidence favorable to defendant only very late in the investigation and court proceedings. The prosecutor argued that the jury could infer from McKnight's tardy revelations and the way she testified that someone had talked to her about the facts and about the defense strategy. Defense counsel or defendant's family members could have been the source. But the prosecutor specifically disclaimed any argument that it was improper for defense counsel to talk to McKnight. Specifically, the prosecutor did not accuse defense counsel of urging McKnight to perjure herself.
We will not infer lightly that the jury believed from the prosecutor's statements that defense counsel did anything wrong. Instead, the prosecutor disclaimed any such accusation, even while the prosecutor said that McKnight might be lying about whether she had talked to defense counsel (or someone else) about the facts of the case. The point of the prosecutor's argument was that McKnight used whatever information she gained about the case from defense counsel or defendant's family to fabricate her testimony, not that defense counsel did something wrong if he shared information with McKnight. In short, there was no prosecutorial misconduct because the prosecutor did not impugn the integrity of defense counsel.
Referring to the failure of defense counsel to object to the prosecutor's argument, defendant claims that any objection would have been futile and that failure to object constituted ineffective assistance of counsel. Because there was no prosecutorial misconduct, there was nothing to object to, and defense counsel's performance was not deficient. (See Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693] [to show ineffective assistance of counsel, defendant must establish (1) "counsel's performance was deficient," and (2) "the deficient performance prejudiced the defense"].)
Defendant's lone contention on appeal is therefore without merit.
DISPOSITION
The judgment is affirmed.
NICHOLSON, Acting P. J. We concur: BUTZ, J. HOCH, J.