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People v. Combs

California Court of Appeals, First District, Third Division
Mar 17, 2008
No. A116180 (Cal. Ct. App. Mar. 17, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. ANDRE COMBS, Defendant and Appellant. A116180 California Court of Appeal, First District, Third Division March 17, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

San Mateo County Super. Ct. No. SC59093

Pollak, Acting P. J.

Defendant Andre Combs appeals from a judgment convicting him of second degree murder and sentencing him to 15 years to life in prison. He contends that the trial court erred in excluding testimony by two mental health professionals regarding the victim’s diagnosed personality disorder and in instructing the jury with regard to self-defense. We affirm the judgment.

Factual and Procedural History

On May 31, 2006, defendant was charged by information with one count of murder. (Pen. Code, § 187, subd. (a).) The information alleged that defendant personally used a knife and inflicted great bodily injury during the commission of the crime. (Pen. Code, §§ 12022, subd. (b), 1203.075.) The information also alleged that defendant was a minor at least 16 years of age within the meaning of Welfare and Institutions Code section 707, subdivisions (b) and (d)(1).

The following evidence was presented at trial:

In the fall of 2004, defendant was sent to live with his aunt Kimberly Johnson. Prior to that time, he had spent a year in the custody of the juvenile court system after getting into fights with his mother, Erica Ulshoeffer, and his cousin.

On January 14, 2005, Stacy Ardoin, a friend of Kimberly’s, was visiting when Kimberly and the defendant got into an argument. Kimberly was yelling at defendant because he had been suspended from school. She yelled to defendant, “Bring your ass out of the room and come take out this garbage right now.” Defendant was not yelling and did not become physically aggressive with Kimberly. He took out the garbage and returned to his room. Kimberly continued to yell loudly at defendant and demanded, “Come back out, bring your ass out here and wash these damn dishes.” Defendant did not respond, but did wash the dishes. Ardoin left the house around noon. Later that day, she tried to contact Kimberly by phone, but was unable to reach her. On January 17, after trying unsuccessfully to reach Kimberly by telephone for several days, Ardoin went by her house. Kimberly did not answer the door and Ardoin noticed that Kimberly’s Ford Taurus was not in the driveway.

We shall refer to Kimberly Johnson and certain others by their first names to be consistent with the names used throughout the record and the appellate briefs.

Towards the end of the January, defendant called his mother and told her he was moving to San Francisco to live with his father. At that time, it had been several weeks since Erica had spoken to Kimberly. On January 27, after trying unsuccessfully to contact Kimberly for a number of days, Erica called the police. The police drove by the house that day, and again the next day, but did not locate Kimberly. On January 28, Erica picked up defendant and his father and went to Kimberly’s house to look for her. Kimberly did not answer the doorbell. Defendant and his father went around the back of the house but reported that the windows were locked so they could not get in. They left without entering the house.

On February 3, Erica entered Kimberly’s house with other family members. When they began moving the furniture in the bedroom, they saw blood and glass on the floor. They called the police immediately.

The police investigated and discovered Kimberly’s body wrapped in a carpet and placed behind the carport beneath two mattresses. There were cuts on both of her hands, two stab wounds and glass in her scalp, and several slashing wounds on her neck. A knife blade remained in the wound in her head. There was also blood on the soles of the socks found on the body. The doctor who performed the autopsy testified that that her head had apparently been pulled back when her throat was cut. The slashing wound caused massive structural damage and blood loss.

Officers found the house in disarray. There was broken glass and blood on the carpet in the bedroom and on the bed. There were blood stains on the walls and a trail of blood led from the master bedroom through the living room to the kitchen and into the backyard. In the bathroom trash, officers found part of a large blood stained broken bottle and a blood stained towel. More parts of the glass bottle, another blood stained towel, a bloody pair of shorts, and a bloody T-shirt were found in a different garbage can.

A San Mateo County criminalist testified that the evidence was consistent with a bloody struggle in the bedroom, and dragging the body into the backyard. The blood on the soles of Kimberly’s socks led the witness to believe that Kimberly had stepped in blood during the struggle. She also believed there was evidence of some effort to clean the mess. Bottles of bleach and a carpet cleaner were found in the house. There were bleach spots in the living room carpet, including one in the shape of a foot.

An expert testified that many of the blood stains matched Kimberly’s DNA. Defendant’s DNA was found on the blood stains on the broken bottle, the walls, the towels and the shorts. Defendant’s fingerprint was found on the broken bottle and the carpet cleaner.

On February 4, Erica brought defendant to the police station, where he was arrested for Kimberly’s murder. Defendant initially denied killing Kimberly. He told the police that Kimberly was angry when he was suspended from school and yelled at him to clean the house. When he awoke the next morning, Kimberly had disappeared. After she was gone for a few days or weeks, he took her car and went to visit his father in San Francisco.

Shortly after giving his first statement to the police, defendant gave a second statement in which he admitted killing Kimberly. Kimberly was drunk and started yelling at him. She was saying “I’m gonna kill you and stuff like that.” He explained, “She says this every day of the week to me. I’m like, the first time she says it well it passes. But then I’m really startin’ to think that hey, this lady is really going to kill you for no reason.” As they were arguing, Kimberly hit him on the head with a Carlos Rossi bottle. He pushed her away and backed up. “[T]hat’s when she really got angry like, mother fucker, just saying all this stuff, like mother fucker, I’m gonna kill you, gonna kill you, woo woo woo. And then she really was, I’m really thinkin’ she was gonna kill me that time. ‘Cause that’s the only time she ever did somethin’ like that, never hit me like that. I never hit her. She always talkin’ like she’s gonna kill me but I’m just lettin’ it slide because I know how she is.” When she charged him with the bottle, he grabbed a kitchen knife from the dresser and stabbed her in the back and head. The knife stayed in but she was not dead. She was trying to get him with the broken bottle so he cut her neck with the bottle. When she fell on the floor he left the room because he “didn’t want to see what happened.” Defendant claimed, “It was like I had no other choice.”

Defendant testified at trial. He explained that he was sent to live with Kimberly without warning. He said that she repeatedly threatened defendant that if he did not do his chores she would “hurt me, kick my ass, kick me out on the streets.” She told him his mother did not care for him and that “this was [his] last stop.” Kimberly had a machete in the house and told him, “I will use this mother fucker.” Defendant thought Kimberly was tough and knew that she got into fights. When defendant got into a fight at school Kimberly was happy that he stood up for himself. Defendant was taking medication for his attention deficit disorder, but Kimberly took his medication away and yelled at him if he asked for it.

Defendant was suspended from school in January because he got into a fight. He testified that he did not remember arguing with Kimberly about his suspension. However, in the middle of the night, she came to his room and woke him. She accused him of stealing her drugs and wanted him to wash the dishes. Defendant told her he was “frustrated” and “tired of everything.” Kimberly was yelling at him and saying “this is it.” Defendant believed she meant that this was the end of his life. She grabbed him and tried to strangle him. She charged him with the glass bottle and hit him on the head. Defendant grabbed a knife that was on the dresser and swung it at her. He could not remember how many times he stabbed her. He grabbed a different knife from Kimberly’s hand and used that knife to cut her throat. Once she was dead, he dragged Kimberly’s body outside and cleaned up around the house. When the sun came up, he took some money from Kimberly’s purse, the keys to the Taurus and went to a friend’s house.

The defense called several witnesses to testify to Kimberly’s violent character. Wanda Fay Milligan had known Kimberly for 10 to 12 years and opined that she had a reputation for “[g]oing for bad, like whatever a person is out there, want to chuck them up all the time, want to fight all the time.” In 2003 and 2004, she and Kimberly shared an apartment. While the living arrangement started out acceptably, Milligan testified that “After a while it got out of hand. She started getting physical with me . . . . If I tried to defend myself she is quite quick, quite quick and wants to hit me.” Kimberly threatened her with a knife on two occasions and a bottle on another, once saying “I will cut your throat.” Milligan explained that Kimberly liked to fight like a man. “[S]he don’t go for all that scratching and stuff, she wants to box, grab some kind of weapon, you know, use it on you.” Milligan admitted that she suffered from a mental illness and hallucinations. She was previously convicted of assault with a deadly weapon.

Redwood Police Officer Dan Smith testified that in 1995 he responded to a domestic violence call involving Kimberly and her ex-boyfriend. At that time, the ex-boyfriend reported that Kimberly had attempted to stab him. Milligan and her mother both testified that Kimberly and her ex-boyfriend often engaged in physical altercations.

Mariama Payne is defendant’s cousin. She lived with Kimberly for three months and found her to be very loud and intimidating. Although Kimberly was never physically abusive with her, she saw Kimberly hit her ex-boyfriend and threaten him with a weapon.

The defense also played a series of tape recorded phone calls between Kimberly and her boyfriend in which Kimberly said that she took defendant’s pills away and planned to take him to the boys’ camp run by the juvenile court system. She threatened to cut his head off and to “beat the hell out of [the boy].”

In rebuttal, the prosecution offered testimony regarding defendant’s violent character. Defendant’s cousin testified about being hit in the head by defendant with a frying pan. Defendant’s step-father testified to observing a fight between defendant and his mother. One of defendant’s teachers testified to the fight that led to defendant’s suspension in January 2005, in which defendant pounded the other student’s head into the floor. Another teacher testified to an earlier fight in which defendant hit the other student twice in the face. Employees at the juvenile dependency facility where defendant was being held awaiting his trial reported that defendant had been involved in numerous fights. Defendant was being held in isolation 23 hours a day. Another employee testified that she overheard defendant discussing with another juvenile an escape plan that involved taking a hostage.

In closing arguments, the prosecutor argued that defendant was guilty of first degree murder. He urged the jury to reject defendant’s claim of self defense based on the number and severity of Kimberly’s wounds which were inconsistent with the claim that the immediate use of deadly force was necessary. He argued that “if he honestly believed that he was acting in self-defense during stab wounds 1 through 20, and then he realized, . . . I’m winning this fight, . . . I feel like a big man, winning this fight . . . he’s then motivated by something other than the honest belief to protect himself, well then imperfect self-defense doesn’t apply.” The prosecutor also suggested that if what started as a verbal altercation got out of hand and the defendant thought, “I stabbed this woman all these times, I got to take care of this, I got to finish this, I can’t have her tell the police what I just did, then it’s not imperfect self-defense, it’s murder.” He argued that defendant premeditated and deliberated Kimberly’s murder during the time between stabbing her twice in the back of the head and taking the broken bottle and inflicting the fatal wound to her neck.

The defense argued that Kimberly was a “violent and unstable person” who died in a violent confrontation and that defendant reasonably, or even unreasonably, believed he was in imminent danger of being killed. He argued that the forensic evidence, including blood on the walls and carpets and on Kimberly’s feet, supported his claim that there was a violent struggle in which Kimberly kept fighting with him until the end.

The jury found defendant guilty of second degree murder and also found true the allegation that he used a knife in the commission of the crime. Defendant was sentenced to a term of 15 years to life in prison. Defendant filed a timely notice of appeal.

Discussion

I. The trial court did not err in excluding defendant’s expert witnesses.

As set forth above, a number of witnesses were allowed to testify to Kimberly’s reputation for and specific instances of violence. Defendant contends, however, that the court erred in excluding expert testimony regarding Kimberly’s diagnosed personality disorder and the effect that her mental illness had on her propensity for violence.

Absent specified exceptions, character evidence is generally inadmissible to prove conduct on a particular occasion. (Evid. Code, § 1101, subd. (a).) Section 1103 creates such an exception, providing that evidence of a crime victim’s character is not inadmissible when offered by the defendant to prove the conduct of the victim in conformity with the character or trait of character. (§ 1103, subd. (a).) “Consequently, in a prosecution for homicide or an assaultive crime where self-defense is raised, evidence of the violent character of the victim is admissible to show that the victim was the aggressor.” (People v. Shoemaker (1982) 135 Cal.App.3d 442, 446, fn. omitted.) Expert opinion regarding a person’s psychological diagnosis or traits is a form of character evidence that may be relevant and admissible to show the person’s likely actions or lack of action in conformity with such diagnosis or traits. (See People v. Stoll (1989) 49 Cal.3d 1136, 1153 [expert opinion that defendant “displays a ‘normal personality function’ and shows no ‘indications of deviancy’ ” may be offered to show that defendant is “ ‘unlikely’ to commit the charged acts or any serious crime”]; In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1123-1124, overruled on other grounds in People v. Brown (1994) 8 Cal.4th 746, 755, 764 [evidence of psychological study, which demonstrates that “certain character traits are linked with certain behavior, that is, that someone with these traits (a passive-dependent personality) has a propensity or disposition to engage in that behavior (sexual abuse of their children)” is relevant “if employed ‘as a basis for an inference that [husband] behaved in conformity with that [propensity or disposition] on a particular occasion’ ”].) “The admission of such character evidence, however, is not without bounds, but is subject to the dictates of . . . section 352.” (People v. Wright (1985) 39 Cal.3d 576, 587.)

All statutory references are to the Evidence Code unless otherwise noted.

Section 1103, subdivision (a) provides in relevant part, “In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.”

Section 352 provides, “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

Defendant proffered the expert testimony of two mental health professionals. The first was Dr. Catherine Ann Reed, a psychiatrist who diagnosed Kimberly with a personality disorder while treating her in 2002 and 2003. At a section 402 hearing, Dr. Reed testified that according to Kimberly’s medical records, she had been previously diagnosed as suffering from schizophrenia. Dr. Reed was skeptical of this diagnosis. She believed that some of Kimberly’s symptoms were the product of drug and alcohol abuse and a personality disorder. She explained that a personality disorder is a maladaptive way of interacting with people negatively. People with personality disorders “have a hard time working because they can’t get along with coworkers, they don’t have very many friends because they upset people.” Dr. Reed testified that Kimberly “had very erratic behavior, very unpredictable behavior, mood swings were very extreme within the office. She would start off wanting housing and being fairly polite and then when she couldn’t get what she wanted she would become very, very angry and agitated. At one point she slammed her fist down on the desk in anger and stood up, and I actually did need to get security during my last appointment with her.” Dr. Reed continued, “She would very quickly become angry, she would start yelling, start demanding that whoever was with her, either me or one of the nurses or one of the case managers do exactly as she was asking, and if we did not do that she would then threaten to sue us either personally or sue the clinic or the county.” Kimberly’s medical records indicate that she heard voices that told her to kill or hurt people and to set fires. Dr. Reed was concerned for her own safety when Kimberly became angry and believed that it would not be prudent to ignore Kimberly’s auditory hallucinations. Dr. Reed prescribed a regime of medications, toxicology screens, alcohol rehabilitation and therapy appointments, but Kimberly did not comply. Dr. Reed acknowledged that Kimberly had financial incentives to feign her symptoms, but she did not believe Kimberly was malingering with regard to the personality disorder diagnosis.

Defendant also proffered the testimony of Dr. Jeffery Gould, an expert witness in the field of psychiatric disorders. Dr. Gould was to testify “more generally about psychiatric disorders, that they do exist, that they are real, that they are medical conditions, that they are not something that someone suffering from the condition can control, that they are very debilitating, they tend to progress over time and without treatment and even with treatment often times the progression is a natural worsening, it’s degenerative in nature.”

Defendant contends that Dr. Reed’s testimony was relevant to “explain to the jury Kimberly’s mental state, her penchant for using implicit or express threats of violence to get her way, and how people with Kimberly’s mental health conditions present themselves to the world around them.” Dr. Gould’s testimony was “important to explain to the average juror . . . what mentally ill people are like to deal with” and “relevant to rebut the prosecutor’s contention that [defendant] killed Kimberly in an entirely unprovoked attack.” The Attorney General argues that the expert’s evidence was irrelevant to prove Kimberly’s conduct prior to being killed. The Attorney General suggests that “the only accurate indicator of Kimberly’s propensity for violence was her previous acts of violence” and that “labeling Kimberly with the diagnosis ‘personality disorder’ would not have helped the jury determine the likelihood that she acted aggressively before [defendant] killed her.” He suggests that “the label of a mental disorder could make a jury believe she was more likely to act violently. But a person’s proclivity for violence is the same whether or not their personality is given a mental health label.”

The trial court excluded the expert testimony on the grounds that it was irrelevant under section 1103 and more prejudicial than probative under section 352. The court found that much of Dr. Reed’s testimony regarding Kimberly’s mental health history and all of Dr. Gould’s testimony regarding personality disorders in general were irrelevant because “the focus [in this case] is not on the victim in terms of the victim’s character for anything else other than violence, it’s not the fact that she may have been harassible, it’s not the fact that she may be the most miserable person on the face of the planet in getting along with or in terms of being harassing, demeaning or anything else. . . . The focus here is on violence.” While the court initially indicated that Dr. Reed might be allowed to “recount any incidents that she had in terms of her interactions with [Kimberly] in terms of violence,” after the section 402 hearing the court excluded all of Dr. Reed’s testimony on the ground that there was “no specific and singular incident to which Dr. Reed testified . . . as it relates to any incident of violence or any direct threats which . . . meet the criteria as being sufficiently reliable for them to be admitted into evidence . . . .”

We review the trial court’s ruling for abuse of discretion (People v. Cox (2003) 30 Cal.4th 916, 955) and cannot say that the court abused its discretion in this case. The court considered that much of Dr. Reed’s testimony was irrelevant under section 1103 because it related to the victim’s character or propensity for unpleasant behavior, but not necessarily for violence. As the court explained, the fact that Kimberly may have been “the most miserable person on the face of the planet in [terms of] getting along with or in terms of being harassing, demeaning or anything else” is not relevant to the critical issue in this case—whether she had a propensity for violence of such severity as to cause one to believe that he or she was in imminent danger of being killed or suffering great bodily injury that could be avoided only by the immediate use of deadly force (see CALJIC No. 505). Likewise, with regard to Dr. Gould, the court explained that “his beliefs or opinions as it relates to debilitating conditions associated with borderline personality disorder or schizophrenia, the fact that they may worsen over time, the fact that he’s reviewed histories, that he has talked to people who have had interplays with her, I don’t see that as being relevant and material here.” Even if the proffered testimony had any relevance to the issue being tried, it was plainly marginal. The testimony concerning Kimberly’s diagnosis at the section 402 hearing was far short of showing that she was likely to behave in a manner that would make it appear that she was about to kill or cause great bodily injury to another.

Defendant relies heavily on Dr. Reed’s proffered testimony that she was afraid for her safety when Kimberly slammed her fist on her desk. He argues, “Most important, the fact that Dr. Reed herself, was intimidated and frightened by Kimberly was very illuminating in regard to the issue of whether appellant actually feared for his safety. . . . If Dr. Reed, a person experienced with dealing with people with mental problems feared for her personal safety, that fact was strong circumstantial evidence that appellant actually feared for his safety when confronted by the same person engaging in very similar behavior.” Defendant suggests that Dr. Reed’s testimony shows “that Kimberly had a character trait, i.e., mental illness [that] led her to resort to threats and intimidation to get her way.” However, while Dr. Reed indicated that Kimberly’s outburst caused her to be concerned for her safety, she did not testify that the behavior was so extreme as to indicate Kimberly was about to kill or severely injure her, nor did she offer to testify that her condition made such behavior likely. As the trial court noted, Kimberly’s angry outburst came “[a]t one point when she wasn’t getting what she wanted.” Kimberly did not threaten Dr. Reed with violence to obtain the desired social services, she threatened to sue her. Dr. Reed’s testimony shed little light on whether Kimberly behaved in such a threatening manner on the night of her killing that defendant feared for his life.

As against the limited relevance of the proffered testimony, there were substantial countervailing factors that the court properly considered in exercising its discretion under section 352. The court found that the admission of this evidence would necessitate undue consumption of time and likely confuse the relevant issues. The court was concerned that if this evidence was admitted a “similar analysis of [defendant’s] diagnosis” would be permissible and then “under a 352 analysis, the focus would not be on what occurred in this case, but on all of these extenuated psychiatric issues.” Moreover, the limited evidence proffered by Dr. Reed regarding a single angry outburst in which Kimberly slammed her fist on a table was at best duplicative of the substantial evidence that was admitted regarding Kimberly’s prior violent behavior, threats of violence and reputation for violence. In view of the undisputed evidence of Kimberly’s explosive personality, the court was certainly justified in concluding that the proffered expert testimony concerning her psychiatric diagnosis would be a time-consuming diversion that would be of little if any value in determining the events that precipitated her killing. The court did not abuse its discretion in excluding this testimony.

II. There was no instructional error.

Defendant contends the trial court erred in instructing the jury on self-defense with a modified version of CALCRIM No. 505. Defendant argues that the trial court erred in modifying the instruction to provide that “[s]omeone who has been threatened or harmed by a person in the past, may be justified in acting more quickly or taking greater self-defense measures against that person” rather than using the standard CALCRIM instruction which provides that “[s]omeone who has been threatened or harmed by a person in the past, is justified in acting more quickly or taking greater self-defense measures against that person.” (Italics added.) The court explained that the modification was made to reflect the permissive rather than mandatory directive to the jury.

Defendant argues, “The trial court committed clear error when it concluded that a defendant’s right to act more quickly or take greater self-defense measures is contingent on a jury’s acceptance of that right. The right is not contingent. It is a mandatory right under California law.” Defendant overstates the import of this sentence of the instruction. In People v. Moore (1954) 43 Cal.2d 517, 528, the court explained that the instruction with respect to the influence of antecedent threats on the right of self-defense does not tell the jury that “ ‘the defendant would be justified in committing an assault with a deadly weapon in self-defense, but only that the jury was “to take such facts and circumstances into . . . consideration in determining whether the defendant acted in a manner in which a reasonable man would act in protecting his own life or bodily safety.” ’ ” Consistent with this interpretation, quoting People v. Garvin (2003) 110 Cal.App.4th 484, 488, the bench notes to CALCRIM No. 505 explain that “[o]n defense request and when supported by sufficient evidence, the court must instruct that the jury may consider the effect of ‘antecedent threats and assaults against the defendant on the reasonableness of defendant’s conduct.’ ” Accordingly, we find no error in the court’s modification.

Disposition

The judgment is affirmed.

We concur: Siggins, J., Horner, J.

Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

People v. Combs

California Court of Appeals, First District, Third Division
Mar 17, 2008
No. A116180 (Cal. Ct. App. Mar. 17, 2008)
Case details for

People v. Combs

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANDRE COMBS, Defendant and…

Court:California Court of Appeals, First District, Third Division

Date published: Mar 17, 2008

Citations

No. A116180 (Cal. Ct. App. Mar. 17, 2008)