Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 157461
NEEDHAM, J.
Jesse A. Davis appeals from a judgment of conviction and sentence imposed after a jury found him guilty of second degree murder and found true the allegations that he used a deadly weapon and inflicted great bodily injury. He contends: (1) at a hearing on his motion to suppress evidence of his incriminating statements to police officers, the court erroneously excluded testimony concerning one of the officer’s alleged coercion of other interviewees in other cases; (2) the court erred by excluding such testimony at trial; (3) the court should have redacted references to Davis’ uncharged bad acts from his audiotaped statements to police; and (4) trial counsel rendered ineffective assistance by failing to request a limiting instruction on the use of the evidence of Davis’ prior bad acts. Davis also urges us to review the sealed record of the court’s in camera review of police personnel files in order to determine if the court erred in deciding what material from those files was discoverable. Lastly, Davis asserts that the court erred by limiting his conduct credits to 15 percent of his actual credits.
We will modify the judgment to correct the credits and affirm the judgment as so modified.
I. FACTS AND PROCEDURAL HISTORY
In 2008, Davis was indicted for the 1990 murder of Janet Harp. (Pen. Code, § 187, subd. (a).) The indictment included a special circumstance allegation that he committed the murder while engaged in the crime of rape. (Pen. Code, § 190.2, subd. (a)(17)(iii).) It was further alleged that Davis intentionally inflicted great bodily injury (§ 1203.075) and that he personally used a deadly and dangerous weapon. (Pen. Code, § 1022(b)(1).)
Davis filed a motion to obtain the personnel records of the police officers who questioned him, pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) and Brady v. Maryland (1963) 373 U.S. 83 (Brady). The motion was granted. He filed a supplemental Pitchess/Brady motion, which was granted as well. By these motions, Davis obtained the names and addresses of individuals who complained about one of the officers involved in Davis’ interrogation, as well as certain additional information.
Before trial, Davis filed a motion to suppress evidence of incriminating statements he made to the officers, on the ground that he was coerced by one of the officer’s promises and threats. As discussed ante, the court precluded some of defense counsel’s evidence of the officer’s alleged misconduct in other cases, denied the suppression motion after a hearing, and precluded the defense from introducing any of the evidence of the officer’s alleged misconduct at the ensuing jury trial.
A. Prosecution Case
Evelyn Ayers was the assistant manager of Apollo Housing, a housing project in Oakland. Around 4:00 p.m. on March 1, 1990, she investigated a resident’s report of an unusual smell coming from apartment 307. The apartment was normally occupied by Richard Patrick, but he was away at the time and Harp was staying there instead. Ayers knocked on the door and, when she received no response, unlocked the door with a master key and entered. Ayers saw a body and left the apartment immediately.
1. The Crime Scene
Oakland Police Officer Mike Reilly was the first officer on the scene at 4:18 p.m. He entered the apartment with a key obtained from Ayers and saw Harp’s naked body in a pool of blood. Her feet and hands were pulled back and bound together at the wrists and ankles; a telephone cord ran from this binding to and around her neck. A couple of feet from her head was a frying pan.
Oakland Police Evidence Technician Griffin arrived at the scene around 4:48 p.m. He saw no signs of forced entry. He confirmed that Harp’s nude bloody body was hog-tied, with cordage wrapped around her neck and integrated into the binding of her hands and feet. Her face was badly injured. Near her head were two teeth, a broken bottleneck, and a frying pan. A lamp had been destroyed, and broken glass was scattered on the floor and around the body.
Also near the body was a dismantled syringe. A razor blade was on a desk top, and a broken “crack pipe” was on top of the refrigerator. The words “fuck you” were written on the refrigerator door.
One of 21 fingerprint lifts yielded a bloody fingerprint on a belt that was used to tie Harp’s wrists and ankles. The print was not in sufficient condition to be entered into the automated system for fingerprint identification, but was sufficient to compare against another individual’s fingerprints. No match was ever found.
2. Davis’ Statements to Police on March 1, 1990
Davis appeared at the crime scene at 6:20 p.m. He identified himself to Oakland Police Officer Encinas as “Jesse Dunnerway, ” the victim’s father, and claimed his wife (Barbara Davis) had told him Harp was dead. In a written statement to police officer Encinas, Davis said he last saw Harp on February 26 at 6:30 a.m., when she left his house. He also told Encinas about several men with whom Harp associated. According to Davis, Harp had been living in the apartment with her boyfriend, Richard Patrick. After Patrick returned to prison, Harp had been staying in the apartment with “Allen, ” a black male, for two or three months. Davis said he had not seen Allen in about two weeks, but Harp and Allen argued a lot. Davis also described another black male called “New York, ” who had been at Davis’ house looking for Harp at 11:00 p.m. the night before. Davis said Harp and New York used heroin and were good friends.
Around 10:15 p.m. on March 1, 1990, Sergeant Lacer took a statement from Davis at the police station. Davis again said he had last seen Harp on February 26, at 6:00 a.m. where he was staying. He repeated that Patrick was in prison, mentioned the young man “New York, ” and claimed Harp and Allen had problems and were involved with drugs.
3. Autopsy
Dr. Thomas Rogers performed an autopsy on March 2, 1990. When Rogers first saw the body, it was still bound around the ankles, hands, and neck. One of the bindings around the hands and ankles was a belt. Rigor mortis had passed, and the body was in the early stages of decomposition; Rogers could not tell when Harp died.
Dr. Rogers identified over 60 injuries to Harp’s body, all of which were inflicted before she died, and which he grouped into stab wounds, blunt injuries including abrasions, and lacerations. It was possible Harp was struck 30 to 40 times. She sustained fractures to her lower jaw, upper jaw, a cheekbone, and her nose, and her upper front teeth were missing. An internal examination revealed that three stab wounds near her left armpit punctured her left lung, and a stab wound to the groin penetrated two and a half inches. The stab wounds were consistent with a single edge weapon such as a knife, but could also have been caused by a broken glass bottle. Glass found on Harp’s body could have come from one of the broken glass bottles found at the scene.
Dr. Rogers determined that the cause of Harp’s death was “multiple stab wounds, multiple incised wounds, and multiple blunt injuries in a female bound tightly about the neck with electrical cords.” Rogers was unable to tell if Harp had been strangled due to the decomposition of the body.
Dr. Rogers obtained smears and swabs from Harp’s oral, vaginal, and rectal cavities and took sample of her pubic hair and blood. A toxicology test indicated that Harp was under the influence of a small to moderate amount of heroin and cocaine when she died.
4. The Initial Investigation Eliminates Patrick, Allen and New York
Sergeant Lacer and another investigator confirmed that Patrick was in prison at the time of Harp’s death. The investigators learned that “Allen” was Allen McGriff, who had been in jail since February 8, 1990. They determined that “New York” was Michael White or Lawrence Hayes, and “New York” did not appear to be involved. Patrick, Allen, and Hayes were among the persons excluded as the source of the bloody fingerprint.
5. DNA Matched to Davis in 2004 Launches New Investigation
In 2004, a criminalist for the Oakland Police Department examined the vaginal swab taken from Harp in 1990 for the presence of sperm cells, as part of the department’s “cold hit” program. The swab was found to contain sperm. The DNA profile from the sperm, when compared to DNA profiles in the statewide “CODIS” database, matched the DNA profile of Davis.
On February 10, 2005, Sergeant Robert Nolan, in charge of the cold case unit, assigned Sergeant Derwin Longmire as the lead homicide investigator in Harp’s case. Longmire acknowledged that, at the time of the trial, he was on paid administrative leave because of his actions in an unrelated case, and the Oakland Police Department was attempting to terminate his employment for misconduct.
6. Davis’ Interviews with Police on March 1, 2005
On March 1, 2005, Sergeants Longmire and Nolan located Davis at St. Mary’s homeless shelter in Oakland. They told him they were investigating the death of his daughter and asked if he would speak with them. He agreed. By this time, Davis was 64 years old, limped and used a cane, and was nearly toothless. Longmire and Nolan drove Davis to the police station without discussing the case.
At 5:08 p.m., Davis was placed in an interview room. The officers put away their weapons before interviewing him. In accord with the policy and protocol of the Oakland Police Department at the time, Longmire determined that some of the interview would be recorded by audiotape, and some would not. The untaped portions of the interview were memorialized instead by the contemporaneous handwritten notes of Sergeant Longmire and Sergeant Nolan. The audiotapes, transcripts of the audiotapes, and the officers’ notes were introduced as evidence at trial.
The jury was informed that, in 2008, the department changed its policy to require that all homicide interviews be videotaped from beginning to end, without interruption.
a. Untaped portion (5:15-5:53 p.m.)
An untaped portion of the interview took place between 5:15 p.m. to 5:53 p.m. Davis waived his Miranda rights and provided the officers with biographical information, including his personal history, what he knew of Harp, and their relationship. (Miranda v. Arizona (1966) 384 U.S. 436.) Davis told the officers that he had an eighth grade education. They also learned he was taking medications and seeing a psychiatrist.
Davis said he saw Harp about a week before the killing, and he and his wife had been at her apartment once before. He did not say that he was at Harp’s apartment near the time of her death. He also denied being sexually involved with Harp in any way. Because Davis’ DNA was found in Harp’s vagina, Longmire knew that Davis’ story was not entirely true and Davis had some explaining to do.
b. First audiotaped statement (5:53-6:10 p.m.)
The detectives audiotaped the next part of the interview, from 5:53 p.m. to 6:10 p.m. Davis claimed he had not seen Harp in the five days before her death and learned she died only when someone came to his house and told him. He asserted that he had not been in her apartment for three or four weeks. He repeatedly denied ever having sex with Harp.
c. Two hours with bathroom breaks (6:10-8:30 p.m.)
At 6:10 p.m., the officers took a break and left Davis in the interview room. Over the next two hours, Davis was alone in the interview room, except to be escorted to the restroom three times. At 6:20 p.m., Davis asked to go to the bathroom, Longmire and Nolan accompanied him to a public restroom outside the investigation office, and returned him to the interview room at 6:24 p.m. At 7:30 p.m., Davis was escorted to the restroom by Sergeant Green and returned to the interview room at 7:33 p.m. (Pursuant to department policy, an interviewee was always escorted by two officers when he went to the restroom, but Longmire did not know who the second officer was on this occasion.) At 8:26 p.m., Davis was escorted to the restroom by Longmire and Nolan and returned to the interview room at 8:30 p.m.
Longmire testified that neither he nor Nolan discussed the facts of the case with Davis during the bathroom breaks. With specific relevance to this case, Longmire denied that he told Davis that he knew Davis had killed Harp, that Longmire could get him an ankle bracelet and let him go, or that Davis was too old for the death penalty. At no time did Longmire promise Davis anything other than that he would tell the prosecutor’s office everything Davis told Longmire.
d. Untaped portion (8:30-9:20 p.m.)
After the third restroom break, the officers resumed the interview with Davis. The detectives told Davis that significant parts of his story were not true and that eventually he would have to tell the truth. Longmire mentioned DNA generally, without giving specifics about where DNA had been found. After a while, Davis told the officers that he and Harp had been sex partners since she was 16 years old. After they had sex on one occasion, Harp started to use heroin, he became angry and tried to stop her, and she hit him. Davis then hit Harp, tied her up, and left her. According to Longmire’s notes, Davis stated: “She started shooting heroin. She hit me first. I hit her and knocked her down. I hit her with a lamp when she was down. I hit her with a lamp across the face. Don’t think I had a knife.” Davis stated that he thought he used two ropes to tie Harp up, with her hands and feet behind her back, and left her alive in the apartment with the cat. Davis cried during this part of the interview.
e. Second audiotaped statement (9:20-9:39 p.m.)
The next portion of the interview, from 9:20 to 9:39 p.m., was recorded by audiotape. Davis stated that he and Harp had been “sex partners” since “she was about 14, 15 years old.” On the day of Harp’s death, Harp and Davis had sex together in her apartment. When they finished, Harp began using heroin. This upset Davis, and he tried to prevent her from using it. Some of the heroin spilled, and Harp slapped him. Davis then hit Harp in the jaw or cheek with his fist and knocked her to the floor. He next took a lamp, about two-feet tall, off of a table and hit her with it. She was dazed and on the floor, saying “Please don’t do this to me, ” as Davis tied her up with two ropes he had gotten from the curtains or the closet. Davis then hit Harp in the side of her head with a pot, and she stopped talking. (He did not think he used a knife, but did not know for sure.) Davis left Harp in the apartment with her cat. Afraid to return to the apartment, Davis hoped Harp would somehow get loose. Davis believed he had used crystal methamphetamine, but not heroin, earlier in the day. When the officers asked him whether he could remember what he did on occasions when he became enraged, such as when he had cut his son in 1994 (for which he received a six-month jail sentence), he replied that he could not always remember all the details. Davis added that in the years since then, the event “ate [him] up” and he was afraid the police were going to stop him for it. He acknowledged that Sergeants Longmire and Nolan had been fair to him and nothing less than professional.
7. Further DNA Testing
At 9:48 p.m., Longmire and Nolan took Davis to the bathroom and back to the interview room. From 11:17 to 11:22 p.m., Davis had another bathroom break. At 12:01 a.m. on March 2, 2005, Longmire and Nolan took Davis to the hospital for the drawing of blood, to which he consented, and then to jail. A new DNA reference sample from Davis matched the DNA on the vaginal swab taken from Harp and showed that Davis was not, in fact, Harp’s father.
B. Defense Case
The defense called no witnesses. In closing argument, defense counsel told the jury that the fact that the source of the bloody fingerprint had not been identified, and the fact there were some inaccuracies between the physical evidence and Davis’ recollection, showed he was not the killer. The defense suggested that the police had coerced Davis into making his incriminating statement to them. In addition, the defense argued, if Davis did kill Harp, it was only “heat of passion” voluntary manslaughter.
The prosecutor countered that the bloody fingerprint came from medical personnel who handled the body. The prosecutor attacked the defense argument that someone entered the apartment after Davis left and then killed her, since the apartment was locked when the body was discovered, notwithstanding Davis’ assertion in his audiotaped statement that he disabled the lock when he left.
C. Verdict and Sentence
The jury convicted Davis of second degree murder, found the special circumstance rape allegation not true, and found true the great bodily injury and weapon use allegations.
Davis was sentenced to a total of 16 years to life in state prison, comprised of 15 years to life for murder and a consecutive one year for personal use of a deadly weapon. Davis received total credits of 1, 902 days, based on the 15 percent limitation under Penal Code section 2933.1.
This appeal followed.
II. DISCUSSION
The bulk of Davis’ appeal focuses on the incriminating statements he made to police. He contends: the court erred in precluding him from presenting certain evidence in support of his motion to suppress those statements; the court erred in precluding him from presenting evidence at trial to discredit those statements; the court should have redacted from his audiotaped statements a number of references to Davis’ other bad conduct; and his attorney provided ineffective assistance by not requesting a limiting instruction in regard to the bad conduct evidence. In addition, Davis urges: we must review the sealed record of the trial court’s in camera review of police personnel files, to determine if the court erred in deciding what documents were discoverable; and the court erred by limiting Davis’ conduct credits to 15 percent of his actual credits. We address each contention in turn.
A. Exclusion of Evidence at the Voluntariness Hearing
As mentioned, before trial Davis moved to suppress his statements to police on the ground that, inter alia, they were involuntarily made. At issue, therefore, was whether Davis’ “will was overborne” by the circumstances under which he gave his statements. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226.) The voluntariness of a statement is evaluated in the totality of the circumstances, including the characteristics of the accused (such as age, level of education and intelligence, prior experience with the criminal justice system, emotional state, and physical ailments) and the conduct of the interrogation (such as promises, threats, intimidation, and duration). (Schneckloth, supra, 412 U.S. at p. 226; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 58; In re Shawn D. (1993) 20 Cal.App.4th 200, 209.)
Defense counsel sought to show that Davis made his statements because Sergeant Longmire promised that he would only have to wear an “ankle bracelet” if he confessed to killing Harp or, in Davis’ words, told “the truth.” The defense sought to buttress Davis’ account of the interrogation with the testimony of individuals who claimed Longmire had used threats or promises to secure admissions from them in other cases. Davis contends the court erred in precluding him from calling some of these witnesses, and as a result denied him a fair hearing on his suppression motion. (Citing Jackson v. Denno (1964) 378 U.S. 368, 380 [a defendant “is entitled to a fair hearing in which both the underlying factual issues and the voluntariness of his confession are actually and reliably determined”].)
We first review the testimony at the suppression hearing, defense counsel’s offers of proof, and the court’s rulings, and then explain why the court did not err.
1. Background of Suppression Motion
Davis contended that Longmire told Davis during a bathroom break that, if he confessed to killing Harp, he would not receive the death penalty and, in fact, would be released with an ankle bracelet. At the suppression hearing, Longmire and Davis testified to the interrogation of Davis. In addition, defense counsel sought to call as witnesses several individuals who, he claimed, would show that Longmire on other occasions obtained confessions or admissions in a four-step process: interview the individual off-tape; obtain on tape the interviewee’s denials; make threats or promises to the interviewee; and then obtain on tape an involuntary confession. Specifically, the defense sought to call Joel Gay, Twynisha Ashley, Amber Burrell, Vincent Clark, Jermaine Givens, Devaughndre Broussard, and Yusef Bey IV. Davis asserted that the evidence was admissible in this case as evidence of Longmire’s habit (Evid. Code, § 1105) or plan (Evid. Code, § 1101, subd. (b)).
Except where otherwise indicated, all statutory references hereafter are to the Evidence Code.
The court permitted defense counsel to call Gay as a witness, but not the others, on the grounds of “relevancy, ” “undue consumption of time, ” and the evidence was “definitely more prejudicial than probative.” The court also expressed doubt that attorneys for Broussard and Bey would even let their clients testify, given the pendency of their own murder cases.
2. Testimony at Suppression Hearing Regarding Davis’ Statement
Sergeant Longmire’s testimony at the suppression hearing was consistent with his testimony at trial. As relevant here, Longmire acknowledged that he accompanied Davis on two of Davis’ restroom breaks, and that at no time during these breaks did he discuss the case or make any promises or threats. He specifically denied promising Davis that he would ask about having Davis released on an ankle bracelet if he told the truth. Other than saying he would review the case in an honest manner with the district attorney, he made no other promises. After Davis gave his audiotaped statement admitting that he struck, tied up, and left Harp, Davis did not ask about being released on an ankle bracelet and did not become upset when he was not released.
Davis testified at the suppression hearing that he understood and voluntarily waived his Miranda rights before the interview. He also acknowledged that neither Longmire nor Nolan threatened or physically hurt him. His account of the interview, however, differed from Longmire’s account.
Davis testified that he initially told the police that he was not involved in Harp’s death, went to the restroom (during which there was no conversation), and made his first taped statement. Then Longmire took him to the restroom and told Davis: “I know you did it.” He also said that Davis could get an ankle bracelet and at least go home for the night if he told “the truth, ” Davis was too old for the death penalty or a lengthy jail sentence, and Longmire would make sure Davis did not get the death penalty. Because of Longmire’s promise to let him wear an ankle bracelet and let him go if he told “the truth, ” Davis gave a second taped statement, this time admitting he tied Harp up and hit her with a pot and a lamp.
Davis’ testimony was confusing, if not inconsistent, in several respects. At one point, he testified that Longmire did not tell him what to say, and Davis knew what to say on the tape because it was “what naturally c[a]me to my mind.” Then Davis testified that Longmire “told me what to say and how to say it” – if Longmire asked Davis if he murdered Harp, Davis was supposed to say yes, and if Longmire asked how, Longmire had told him “what to say about the rope and all that stuff.” Later, Davis testified that the only thing Longmire told him to admit was killing Harp, and Longmire did not tell him any other details of what to say. Specifically, Davis testified that Longmire never told him to say he hit Harp with a pot or that he had sex with Harp; rather, Davis told the police those things on his own.
Davis first testified at the suppression hearing that his second taped statement was not true. Later, however, he testified that his assertion that he hit Harp with a lamp was true. He also knew to tell police that he left Harp tied up, because he “was there” and it was true as well.
Davis noted that he had previously been convicted of robbery, and in that case he had made a deal with the police, who upheld their end of the bargain. Although Longmire had lied to Davis on this occasion, Davis did not complain because he was in jail and no one would believe him.
3. Testimony at the Suppression Hearing Regarding Gay’s Case
Gay testified that, the morning after a police officer was shot in May 2007, Gay’s friend, Jesse Mendez, asked Gay to get a room for him because he had gotten into an argument with his girlfriend. Gay complied. About a week after the shooting, police officers stormed into Gay’s house without a warrant, assaulted and threatened him after he made a comment that offended them, and took him in handcuffs to the police station.
After two or three hours, Sergeants Longmire and Jones entered the interview room. In response to Jones’s questions in an unrecorded interview, Gay stated that he had given Mendez money for the room rather than telling them the truth that he took Mendez there. Longmire looked at him menacingly. The officers left and then returned after about an hour.
When Gay claimed he did not know about a gun, Sergeant Longmire became very angry and slammed his hand on the table. Gay’s chair fell over and Longmire stood over him, holding the front of his sweatshirt and calling him a liar. Longmire said the police knew Gay had seen Mendez with a gun that night and even asked to hold it. Longmire told Gay that he would go to jail for a long time if he did not corroborate what other witnesses were saying: that Mendez showed him a gun and let him hold it, went to Gay’s house the next morning, and offered him money to get a room. Longmire also wanted Gay to say that Mendez claimed he would shoot a police officer if one pulled him over. Longmire told Gay that, if he did not cooperate, he would be charged with harboring a fugitive and would not see his daughter until she graduated from high school.
Gay then made a false recorded statement consistent with what Sergeant Longmire wanted him to say, because the officers forced him to do it and he was tired, scared, and wanted to go home. At one point, Gay asserted, the detectives stopped the tape because he had said something he was not supposed to say. Longmire told Gay that he would go to jail if he did not “get the shit right.” The officers started the tape over and explained the tape had malfunctioned, and Gay gave his recorded statement again.
Sergeant Tony Jones testified that he was the lead investigator in the Mendez case. Gay was arrested as an accessory after the fact, and Jones and Longmire jointly interviewed him. Although Gay was initially apprehensive about being labeled a snitch in East Oakland, he finally agreed to tell his version. No promises or threats were made to Gay, he was not told what to say, he was not physically assaulted, and there was no yelling or swearing. Since Gay was a big man, he was not the kind of person to fight with in an interview room, especially since the officers were trying to get him to be a witness against one of his friends. In fact, if Longmire had assaulted Gay, Jones would have had to report him to Jones’s lieutenant or risk losing his own job.
Sergeant Jones acknowledged that the digital recorder was stopped for three minutes during Gay’s interview, but not because Gay said something the officers did not want him to say; either the tape ran out or the battery was too low, causing a beeping sound on the tape.
Sergeant Longmire testified that he did not recall interviewing Gay. He believed he had helped Jones interview two people, but denied assaulting either of them, threatening them, instructing them how to speak on tape, or rewinding the tape and starting it over.
4. Court Rules that Davis’ Statement Was Voluntary
After considering the evidence (including the audiotape of Davis’ interview with police), the trial court denied Davis’ motion to suppress and granted the prosecutor’s motion to admit at trial the two audiotaped statements. The court observed that, while Davis testified that Longmire had made certain promises, Longmire denied it. In the court’s view, it made no sense for Longmire to promise Davis “if you admit to a murder and allegations of rape that I’m going to let you go with an ankle bracelet.” The court concluded there was nothing coercive about the interrogation, and Davis gave his statement “freely, voluntarily, knowingly, and intelligently.”
5. Defense Counsel’s Offer of Proof as to Additional Witnesses
Before the court ruled on the suppression motion – but after the testimony of Longmire, Gay, and Jones at the hearing – defense counsel returned to his request to present the testimony of the six additional witnesses in order to make a more extensive offer of proof. Defense counsel acknowledged that he had not personally spoken to these individuals, but made the following offers of proof based on his investigator’s summaries.
a. Ashley, Burrell, and Clark
Twynisha Ashley would testify that, in or before 2004, Longmire questioned her about a murder. He told her that her children would be taken away from her if she did not say that the murder was committed by Jimmy Foster. When Ashley refused, she was charged with the murder. The case against her was dismissed when her attorney discovered that the witnesses against her – Amber Burrell and Vincent Clark – had lied about Ashley’s involvement.
The prosecutor confirmed that the charges against Ashley had been dismissed, but asserted that the prosecutor in the case against Ashley would testify that the dismissal had nothing to do with any improprieties by Longmire.
Amber Burrell would testify that she was a witness in the case against Ashley and Foster. Longmire and Nolan interviewed her off-tape for several hours. Although she told them that she did not know who the murderer was, they coerced her to lie by threatening to arrest her on a juvenile warrant, telling her she would go to the California Youth Authority for a long time, telling her that Vincent Clark (a relative) would have his parole violated and would go back to prison for a long time, and promising that, if she cooperated, they would give her a $75,000 reward and provide a three bedroom apartment for her homeless family. With the tape recorder off, Longmire rehearsed with Burrell what she would say. She then gave a recorded statement in which she identified Foster and a woman (presumably Ashley) as the perpetrators. Defense counsel did not know if Burrell received the reward.
Clark would testify that, while he was in jail for petty theft, Longmire visited him and wanted him to say that Foster committed the murder, even though Clark knew nothing about the crime. Longmire claimed that he had information Clark had driven Foster to the scene, but assured Clark that he and Burrell would not be charged as accessories, would be relocated, and would receive about $70,000 in “Crimebusters money” if Clark identified Foster as the murderer. When Clark refused, Longmire then threatened to charge Clark himself as an accessory. Clark still refused, but he and Burrell were never charged.
b. Givens
In 2005, Peter Cole was arrested for the murder of Givens’ friend, and then Cole himself was murdered. Longmire interrogated Givens for four or five hours, Givens claimed he knew nothing about the murders, and he was released. Longmire thereafter went to Givens’ house, entered without a warrant, took him into custody, handcuffed him, denied he was arrested, forced him into a police car, and took him to the police department. During the third interrogation of the evening, Longmire became very aggressive toward Givens, insisted that he confess to murder, and denied Givens’ request for an attorney. Givens was kept in the interrogation room from 11:30 p.m. to 7:00 a.m., suffered from a migraine headache, was taken to the bathroom only once, and was never given food or water. Longmire told him he was not getting out of the interview room until he confessed. Once Givens agreed to confess, Longmire taped an interview in which only yes-or-no questions were asked. Givens confessed, even though he was innocent, because he wanted to get out of the interrogation room and did not think Longmire would release him unless he confessed.
Givens was ultimately convicted of murder; defense counsel “presume[d]” it was for the killing of Cole, and acknowledged that it “sound[ed] like” there was a voluntariness hearing in that case. The prosecutor argued that Givens’ confession was reliable, because after confessing to Longmire, Givens told his mother in a surreptitiously recorded telephone call that he told the police the truth about what happened. The prosecutor added that Givens had been convicted after testifying at his trial.
c. Broussard and Bey
Defense counsel acknowledged that he had no witness statement from Broussard or Bey, and he had not spoken to either of them; Broussard’s attorney had not answered counsel’s voicemail message, and Bey’s counsel refused to give counsel permission to talk to Bey. Nonetheless, “based on media accounts, ” defense counsel thought that Broussard had initially given a taped statement to Longmire denying any involvement in the murder of Chauncey Bailey, Longmire went off audiotape and permitted Bey to talk to Broussard in the interview room alone, and Longmire thereafter went back on tape and Broussard confessed to killing Bailey on his own. After both Broussard and Bey were charged with Bailey’s murder, Broussard pleaded guilty. Defense counsel also told the court that in a surreptitiously-made videotape of Bey, seen on “the Chauncey Bailey website, ” Bey told other suspects that he was not worried about being charged in the case because he had Longmire on his side.
6. The Offer of Proof as to Broussard and Bey Was Patently Insufficient
We begin our analysis with the offer of proof as to Broussard and Bey. To provide a basis for reversal, an offer of proof must demonstrate the substance, relevance and purpose of the purported evidence. (See § 354 [erroneous exclusion of evidence not reversible error unless substance, purpose, and relevance of the excluded evidence was made known to the court by questions asked, offer of proof, or other means].) The offer of proof as to Broussard and Bey was patently insufficient to show the relevance of their purported testimony.
Defense counsel, unable to speak with Broussard or Bey, based his offer of proof on “media accounts” that Sergeant Longmire let Bey talk to Broussard in an interview room and thereafter recorded Broussard’s confession to murder, and on a videotape in which Bey claimed he had Longmire on his side. Counsel was merely speculating how Broussard or Bey would testify and, in fact, had no basis for assuming they would testify given the pendency of the murder charges against them. Furthermore, the accusation that in 2008 Longmire let Bey talk with Broussard or sided with Bey’s interests had nothing to do with whether Longmire told Davis in 2005 that he would only have to wear an ankle bracelet if he told the truth about Harp’s murder. It did not even support defense counsel’s claim that Longmire had a practice of obtaining one statement and then making threats and promises to obtain a confession, since Bey (not Longmire) allegedly talked to Broussard and there is no evidence as to what Bey said. Because of the deficiency in defense counsel’s offer of proof, there is no merit to Davis’s claim that the proposed evidence was improperly excluded.
Davis argues that there was no objection to the offer of proof, everyone knew what it was about, and it was sufficiently specific. However, the question is not whether anyone could figure out what defense counsel was talking about, but whether the offer of proof met the requirements of the Evidence Code. The fact that counsel was specific in his speculation did not make it less speculative or make up for the fact that there was no indication the testimony would ever be given.
7. None of the Proffered Evidence Was Admissible as Habit or Custom
Section 1105 reads: “Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom.” The idea, essentially, is that a person likely acted a certain way in the situation in question, because he or she so regularly acts that way in the same situation. As applied here, the idea would be that Sergeant Longmire makes threats and promises in interrogating people so regularly that there is a likelihood he made threats and promises to Davis. The admissibility of habit evidence is within the discretion of the court. (People v. McPeters (1992) 2 Cal.4th 1148, 1178 (McPeters).)
“ ‘ “Habit” ’ means a person’s regular or consistent response to a repeated situation. “ ‘Custom’ ” means the routine practice or behavior on the part of a group or organization that is equivalent to the habit of an individual.’ (2 Jefferson, Cal. Evidence Benchbook (2d ed. 1982) § 33.8, p. 1267.)” (People v. Memro (1985) 38 Cal.3d 658, 681, fn. 22 (Memro).)
The hallmark of habit evidence is that it shows a regular, consistent, nearly automatic response to a repeated situation akin to the situation at issue in the case. (§ 1105, Law Revision Commission Comments, ¶ 1 [habit or custom is “a regular response to a repeated specific situation”]; Memro, supra, 38 Cal.3d at p. 681, overruled on other grounds in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2 [habit or custom may be established by evidence of “repeated instances of similar conduct”]; Bowen v. Ryan (2008) 163 Cal.App.4th 916, 926 [“Custom or habit involves a consistent, semi-automatic response to a repeated situation”] (Bowen); see McPeters, supra, 2 Cal.4th at pp. 1166, 1178 [victim’s “regular conduct under certain specified conditions” of segregating cash in envelopes for special purchases for personal items such as clothing constituted “ ‘evidence of repeated instances of similar conduct’ ” sufficient to constitute a habit]; People v. Webb (1993) 6 Cal.4th 494, 529 [regular observation, over course of six months, of victim placing money in jars and envelopes showed victim’s habit of storing money in that manner].)
Here, the offers of proof did not indicate repeated instances of similar conduct that were sufficiently regular or consistent to constitute a habit. As we discuss post, the events to which the six witnesses would testify were vastly dissimilar to the interrogation of Davis. Moreover, the incidents of Longmire’s alleged misconduct were far too few to establish any “habit.” Ashley, Burrell, Clark and Givens would have testified to a total of four times in which Longmire made a threat or promise during an interrogation over the course of the five-year period covered by Davis’ Pitchess motion. (See § 1045, subd. (b)(1).) Davis failed to show how many interrogations Longmire conducted during this period (or even how many interrogations in which Longmire believed the interviewee was not being completely truthful), and therefore failed to provide the court with any basis for concluding that the making of promises or threats was a habit. (See Bowen, supra, 163 Cal.App.4th at p. 926 [evidence that dentist mistreated other patients in addition to plaintiff was not admissible under § 1105, because “conduct, occurring in different circumstances, toward nine of some 45, 000 patients, does not qualify as custom or habit”].)
Davis contends his offer of proof was sufficient based upon the ruling in People v. Bennett (1969) 276 Cal.App.2d 172 (Bennett). In Bennett, the defendant was charged with possessing a concealable firearm as a felon, after a gun was found under the seat of the car he was driving. The car belonged to his sister. The firearm was the property of a police officer, who was a friend of the defendant’s sister and at times used her car. The prosecutor claimed the defendant had stolen the gun from the police officer’s own car; the defense claimed the officer left the gun in the defendant’s sister’s car. (Id. at pp. 173-174.) To buttress this theory, the defense attempted to show that the officer was a heavy drinker and consumer of drugs, he was drunk around the time in question, and he could have placed the gun in the sister’s car in an alcoholic or narcotic stupor and forgotten about it. (Id. at p. 174 & fn. 3.) Noting that the offers of proof were directed to the relevant two-week time period, and the defendant thought he could prove a habit of drinking and pill taking “sufficiently regular” so that there should have been several occasions during that two-week period when the officer’s condition would cause him not to remember all of his actions, the appellate court ruled that the offer of proof was sufficient and the defense should have been permitted to present the evidence. (Id. at pp. 175-176, italics added.)
Bennett is inapposite to the matter at hand. In Bennett, the offer of proof pertained to regular drinking and pill taking during the two-week period in question. Here, by contrast, the offers of proof pertained to just four instances in two cases within a five-year period. The offers of proof did not set forth evidence admissible under section 1105.
Furthermore, the trial court in Bennett did not purport to act under section 352, and the Attorney General did not attempt to justify the ruling under that section. (Bennett, supra, 276 Cal.App.2d at p. 176, fn. 8.) As shown ante, even if the proffered evidence fell within the ambit of section 1105, it was inadmissible under section 352.
Davis also refers us to cases in which a defendant was entitled to discovery in order to try to prove the habit or custom of an officer. (People v. Gill (1997) 60 Cal.App.4th 743, 750; People v. Hustead (1999) 74 Cal.App.4th 410, 417-418.) The question before us, however, is not whether Davis was entitled to discovery – which he indeed received by his Pitchess motions – but whether his evidence was admissible under section 1105.
8. None of the Proffered Evidence Was Admissible as Evidence of a Plan
Evidence of a person’s character or a trait of his character (including evidence of specific instances of his conduct) is generally inadmissible to prove his conduct on a specified occasion. (§ 1101, subd. (a).) However, prior acts are admissible to prove some relevant fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident) other than his disposition to commit such an act. (§ 1101, subd. (b).) Here, Davis argued that the six witnesses’ testimony was admissible as evidence that Longmire had a “plan” to interview witnesses, record a statement in which they give one version of the facts, make threats and promises off-tape, and then record them saying what Longmire wanted them to say. Davis is incorrect.
In the first place, the proffered evidence would not have proved the “plan” that Davis alleged. Not one of the proposed witnesses claimed that Longmire audiotaped them saying one thing, then made threats and promises, and then audiotaped them saying something else. Burrell claimed to have given an audiotaped statement in response to Longmire’s threats and promises, and Givens claimed to have given a statement because Longmire told him he would not be let out of the interview room, but neither of them contended that Longmire had previously audiotaped them giving another story. Ashley and Clark claimed that Longmire made threats and promises, but they never changed their story or gave any audiotaped statement. Broussard made an audiotaped statement, but that was after discussing the matter with Bey, not Longmire. There is no evidence of any overarching “plan” on Longmire’s part, but merely a handful of particularized responses to a few individuals.
Indeed, it would be illogical, impractical, and unlikely for any experienced homicide investigator, such as Longmire, to have such a plan: if an officer really intended to coerce testimony, he or she would make threats and promises before any recorded statement, to avoid the very type of accusation Davis makes here.
Furthermore, the incidents to which the witnesses would have testified were not similar enough to Longmire’s purported conduct in this case to be admissible under section 1101, subdivision (b). None of the witnesses claimed that Longmire responded to their initial statement by telling them in a bathroom that their only punishment for confessing to murder (or telling the truth) would be to wear an ankle bracelet. Unlike Davis, Givens claimed that Longmire refused to give him water, allowed him to go to the bathroom only once, and told him he would not be let out of the interview room unless he confessed. Unlike Davis, Burrell and Clark claimed that Longmire promised to relocate them or get a monetary award. The general idea – that Longmire reacted to a witness’ initial statement by making a threat or promise – is far too broad to constitute a common plan or scheme for purposes of section 1101, subdivision (b). (See People v. Ewoldt (1994) 7 Cal.4th 380, 401-402 [“evidence of a defendant’s uncharged misconduct is relevant where the uncharged misconduct and the charged offense are sufficiently similar to support the inference that they are manifestations of a common design or plan”]; Bowen, supra, 163 Cal.App.4th at p. 925 [evidence of other misconduct was inadmissible under “common plan” theory because the other misconduct did not “share[] the requisite common features with the incident plaintiff alleged to have happened”].)
By contrast, Davis testified: “Q. Okay. All right. Mr. Davis, have Sgt. Nolan and I been fair to you? [¶] A. Yes, you have. [¶] Q. Have we offered you food and drink? [¶] A. Yes, you have. [¶] Q. And for every time you wanted to go to the restroom -- [¶] A. You took me. [¶] Q. Did we take you promptly? [¶] A. Yes, sir. [¶] Q. Okay. Have we been anything less than professional? [¶] A. No, you haven’t.”
In Bowen, supra, 163 Cal.App.4th 916, the plaintiff sued a dentist for choking and shoving him during a dental appointment. (Id. at 918.) The defendant denied the accusation. (Id. at p. 920.) The trial court permitted the plaintiff to call 13 witnesses about nine other incidents to show that the alleged conduct was part of a common plan or design. (Id. at pp. 921-924.) The appellate court found this to be reversible error, because there was insufficient similarity between the other misconduct and the misconduct alleged by the plaintiff. (Id. at pp. 924-925.) In addition, the sparse sampling of other incidents precluded any inference of a common design. (Ibid.) The court explained: “Moreover, defendant testified that he treated as many as 45, 000 patients in his lengthy career. Testimony about nine incidents is highly selective and cannot be considered representative. The testimony does not demonstrate activities occurring as part of a common design or plan. Rather, this evidence demonstrated a character trait, precisely the type of use that section 1101 prohibits.” (Bowen, supra, at p. 925.) In the matter before us, Davis sought to admit evidence of a few isolated promises and threats purportedly made over the course of several years, amounting to the very type of evidence precluded by section 1101.
Davis’ reliance on Andrews v. City and County of San Francisco (1988) 205 Cal.App.3d 938 (Andrews) is misplaced. There, a civil suit was brought against a police officer alleging, in part, that the plaintiff was assaulted without cause by a police officer (Officer Ramirez) during booking. Both sides agreed there was a physical confrontation and a struggle at the booking counter, which ended up with the plaintiff hitting his head on the floor. They differed on whether Ramirez intentionally bashed the plaintiff’s head into the floor or the plaintiff hit his head during a struggle in which Ramirez, otherwise patient and polite, had to wrestle him to the ground after the plaintiff swung at him. (Id. at pp. 942, 945.) To help prove his version, plaintiff sought to present evidence of six other incidents of misconduct and assaults by Ramirez, including citizen complaints in the officer’s personnel file pertaining to four instances between December 1982 and July 1983 (the arrest was in March 1983), in which Ramirez beat an inebriated arrestee while placing him in his patrol car, punched an inebriated arrestee in the police station, broke an inebriated arrestee’s arm while handcuffing him, and hit an inebriated arrestee in the booking area. (Id. at pp. 942-943.) Noting that “Ramirez’s intent was a central issue in the case, ” the court of appeal found that the four instances were relevant and admissible under section 1101, subdivision (b), to prove Ramirez’s intent and absence of mistake or accident. (Andrews, at pp. 945, 947-948.)
The court also ruled that the evidence was admissible as impeachment evidence, in light of Ramirez’s sweeping statements during direct examination that he was patient with his arrestees and exercised patience in plaintiff’s case. (Andrews, supra, 205 Cal.App.3d at pp. 946-947.) There is no equivalent evidence or argument in regard to the admission of the proffered evidence in this case.
Andrews is distinguishable from the matter at hand. In the first place, the evidence in Andrews was admitted to prove intent where intent itself was a chief issue, while here the evidence was offered not to prove intent, but to prove that Longmire actually made threats and promises to Davis. (See Bowen, supra, 163 Cal.App.4th at pp. 925-926.) Furthermore, in Andrews there was a close similarity between the misconduct alleged by the plaintiff and the misconduct in the other cases, while in this case there is no close similarity between the statements Longmire supposedly made to Davis and the conduct asserted by the proffered witnesses. The evidence was not admissible under section 1101, subdivision (b).
9. The Proffered Evidence Was Inadmissible Under Section 352
Even if the offers of proof set forth evidence of habit or plan, the evidence was inadmissible because its probative value was greatly outweighed by the time it would take to hear from the witnesses and consider other evidence relevant to the issues they would raise.
As explained ante, the proffered evidence was not at all probative, or at best marginally probative, since it pertained only to a few incidents, under dissimilar circumstances. As explained next, the evidence of what might have happened in other cases became entirely irrelevant to this case, since Davis’ own testimony showed he was not coerced into making his incriminating statements.
The court initially expressed its inclination to exclude the evidence toward the outset of the suppression hearing, before Davis testified. However, after Davis and the other witnesses testified at the hearing, defense counsel made the extended offer of proof on which Davis now relies. The court was still in a position to change its ruling and permit the proposed testimony. Therefore, Davis’ testimony, and the court’s view of it, may be considered in deciding whether the court erred in barring the testimony from the six witnesses. Alternatively, it would establish that any such error was harmless.
According to defense counsel’s theory, Longmire told Davis in the bathroom that he should confess to killing Harp because he would be let go with an ankle bracelet. Aside from the noted improbability of a homicide investigator making such a statement, Davis’ testimony at the suppression hearing demonstrates that Longmire either did not make such a statement at all, or that the statement did not overcome Davis’ will. First, Longmire ended the interview without ever asking Davis if he killed Harp and without Davis ever saying he killed her. This suggests that Longmire never actually instructed Davis to say he killed Harp, or, if he did, Davis was not overborne by any promise or threat Longmire supposedly made, since Davis did not say the very thing Longmire purportedly told him to say. Second, the incriminating statements Davis did make on the tape – having sex with Harp in her apartment, hitting her with a lamp, tying her up, hitting her in the head with a pot, and leaving her there – were not things that Longmire instructed him to say. This too tends to show that Davis’ incriminating statements were not involuntary or a product of Longmire’s coercion. Third, even though Davis mentioned some things that were inaccurate and even self-serving – such as claiming that he disabled the lock on Harp’s apartment and used “ropes” instead of a telephone or electrical cord – neither Longmire nor Nolan made any effort to correct him. Fourth, although at the suppression hearing Davis claimed he was upset with Longmire at the end of the interview because Longmire had deceived him, Davis never lodged any complaint.
The closest Davis came to admitting murdering Harp, as opposed to hitting her and tying her up, was in his ruminations of the impact the event had on him. He explained that the incident in Harp’s apartment had “eaten” him up. He stated: “I’ve been walkin’ around the streets I get scared, police stop me I was scared. Thinking about when they are going to stop me for this.” When asked what went through his mind when Longmire said he wanted to ask him about Harp’s murder, Davis replied: “Oh, man. They know I did it.” (Italics added.) It is not clear what Davis meant by “it, ” although the context suggests he was referring to beating and tying up Harp, since he had previously admitted those actions in the interview and had never mentioned actually killing Harp. Despite the potential ambiguity of “I did it, ” Longmire made no effort to prompt Davis to clarify what he meant or to specify that he killed Harp.
Furthermore, neither Davis, nor any reasonable person in his position, would think that he would only have to wear an ankle bracelet if he confessed. While Davis claimed he had only an eighth-grade education and was taking blood pressure medication, he was a veteran of the criminal justice system and had served a six-month stint in jail for assaulting his son. The record does not support the conclusion that Davis, knowing he received six months in jail for wounding his son, would think he would only have to wear an ankle bracelet for tying up, beating, and ultimately killing his daughter. Because Davis’ own evidence showed that his incriminating statements were voluntary, the proffered evidence of alleged coercion in other cases was wholly lacking in probative value.
In the end, whether the offers of proof were accepted at face value, or Davis’ testimony was also considered, the probative value of the proposed evidence was greatly outweighed by the amount of time it would have taken to tackle the issues the evidence would create. As the court noted, the evidence posed a danger of mini-trials on the interrogations in several other cases, involving numerous witnesses. Although Davis insists the evidence went to the heart of his defense, the evidence was so lacking in probative value that the court did not abuse its discretion in concluding it did not justify the time involved.
Davis’ arguments to the contrary are unpersuasive. He contends the court’s ruling under section 352 was based in part on the court’s view of the credibility of the proposed witnesses, credibility is not a component of the section 352 balancing test, and the offer of proof did not provide a sufficient basis for assessing credibility. We disagree. While the court did note the credibility problems of the proposed witnesses, it is not clear from the record that this was part of the court’s analysis under section 352. In any event, the danger of multiple mini-trials was in itself sufficient to support the conclusion that the evidence was inadmissible under section 352.
Davis next argues that the court erred by concluding the proposed testimony was more prejudicial than probative, since there was no danger of inflaming the passions of a jury in a suppression hearing. While the court did employ the expression, “more prejudicial than probative, ” these words accompanied the court’s conclusion that the proposed evidence had no probative value, was irrelevant, and would result in an undue consumption of time. These other specified grounds provided a sufficient basis for the court’s ruling.
Davis also argues that, because the court relied on credibility and undue prejudice in excluding the evidence under section 352, the court committed legal error and the ruling should be reviewed de novo rather than for an abuse of discretion. We disagree with Davis’ analysis; in any event, we would reach the same result if we were to review the ruling de novo.
In sum, Davis fails to establish error in the preclusion of testimonial evidence from Ashley, Burrell, Clark, Givens, Broussard, and Bey. Davis has not demonstrated any deprivation of his right to a full and fair hearing on his motion to suppress.
B. Exclusion of Evidence at Trial
The court excluded from trial all the “other misconduct” evidence, including not only the six witnesses (Ashley, Burrell, Clark, Givens, Broussard and Bey) but Gay as well. Davis claims this violated his constitutional right to present evidence that would raise a reasonable doubt about his guilt. (Holmes v. South Carolina (2006) 547 U.S. 319, 327-328.) Even after a hearing at which the trial court has found a confession voluntary, a defendant still has a constitutional right to present at trial “evidence bearing on the credibility of a confession when such evidence is central to the defendant’s claim of innocence.” (Crane v. Kentucky (1986) 476 U.S. 683, 690, italics added.)
1. Trial Court’s Exclusion of the Evidence
At the suppression hearing, the court also decided whether the evidence of Longmire’s purported misconduct in other cases would be admissible at the trial. The court found the evidence was more prejudicial than probative, too time-consuming, and would confuse the jurors.
The court explained: “... you’re calling for all kinds of speculation. You’re calling for about five different trials to go on in the middle of this trial. By the time they got though bringing in officers and witnesses to testify that this did or did not occur the way you’re saying these particular witnesses said, the jurors would be so confused they wouldn’t even be able to pay attention to what exactly was going on in Mr. Davis’s case, which is what we want them to focus on to come to the truth of that matter. [¶]Now, I think all this is throwing not only a smoke screen but you’re trying to get the jurors to, just because of the sheer numbers, to believe people who have been charged with murder and have an ax to grind against Sergeant Longmire, and put enough of them up, then maybe the jury would buy it. But I just think it’s far too prejudicial than probative. I think it’s far too time-consuming. I think... it’s going to totally confuse the jurors. And I’m not allowing any of this in.”
As to Davis’ theory that the evidence showed a “plan” under section 1101, subdivision (b), the court stated: “No. 1, it doesn’t even seem to be a total plan because they’re different in each situation, but it is totally going to be confusing to the jury, taking away the focus[, ] undue consumption of time. And the Court does not feel it’s relevant. So those will not be heard, including Mr. Gay....”
The court later repeated its position: “Again, I’m going to follow my previous ruling on that because it’s just very, very confusing. Once we get into each one of those cases, it’s going to require many witnesses and rebuttal witnesses just on each one of these murder allegations and convictions and witnesses’ statements and so forth. I think it would be an undue consumption of time. I think it would be very confusing to the jury. It think it’s much more prejudicial than probative in this situation. And I think it would take away from the focus of this trial. [¶]So for those reasons, the Court has weighed and balanced the need to bring them in versus the problems that would [be] created by bringing them in, and the Court has ruled those are not going to be admitted in the trial.”
The court confirmed that the ruling applied to Gay as well as the other proffered witnesses. The court explained: “Yes, that goes to Joel Gay also. Because as you can see, with Joel Gay he had one version of things. Then Sergeant Longmire said something about it. Sergeant Jones came in and said something about it. There will be all these people who were out there at the time who would probably have other things to say about it. And again, there would be a mini trial in here on all of these different trials that were already taken. And I do think it would be confusing to the jury and [an] undue consumption of time.”
2. The Court Did Not Err in Excluding the Evidence
Davis contends the “other misconduct” evidence was admissible at trial under the same theories of relevance he offered for its admission at the voluntariness hearing: “habit” under section 1105 and “plan” under section 1101, subdivision (b).
For the same reasons that defense counsel’s offers of proof did not demonstrate the proffered testimony of the six witnesses would be admissible as habit evidence or evidence of a plan for purposes of the suppression hearing (see ante), his offers of proof did not demonstrate that the proffered testimony of the six witnesses and Gay would be admissible at trial. Simply put, the incidents of Longmire’s purported conduct in the other cases were too infrequent and dissimilar.
Furthermore, for the reasons stated ante in the context of the suppression motion, Davis’ testimony and the audiotape of his incriminating statements – both of which the court had heard before ruling on the admissibility of the evidence at trial – demonstrated that Davis’ statements were voluntary and the evidence of Longmire’s conduct in interrogating other individuals was therefore irrelevant. Indeed, since defense counsel did not represent that Davis would testify at trial, there was no indication that any evidence would be admitted at trial to the effect that Longmire made any promises or threats to Davis to induce him to give his statements to police.
In addition, for the same reasons the probative value of the proposed evidence was outweighed by the risk of an undue consumption of time at the suppression hearing, it was outweighed by the risk of an undue consumption of time at the trial. As the trial court noted and Gay’s testimony at the suppression hearing confirmed, each allegation of misconduct would have required a time-consuming mini-trial that would not have clearly determined that Longmire in fact had acted improperly on the occasions in question. What is more, the need to exclude the evidence at trial under section 352 was even more glaring due to the effect it would likely have on the jury. While there was no risk of confusing a jury at the suppression hearing before the court, there certainly was such a risk at the jury trial.
The trial court was plainly within its discretion in concluding that the prejudice, undue consumption of time, danger of jury confusion, and distraction of the proffered evidence outweighed its probative value. (See People v. Verdugo (2010) 50 Cal.4th 263, 290-291; People v. Avila (2006) 38 Cal.4th 491, 586-587 [evidence not made inadmissible by § 1101 is inadmissible under § 352 where its probative value is substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury]; People v. Jones (2003) 30 Cal.4th 1084, 1109 [trial court could reasonably have concluded that admitting proffered evidence “would confuse the issues and result in an undue consumption of time, ” where it “would have required evidence of the details of an otherwise unrelated crime, as well as evidence of [the witness’s] criminal record”].)
Davis’ arguments to the contrary are unpersuasive. He argues that the trial court need not have worried about the prospect of “mini-trials, ” because “one could reasonably expect any rebuttal testimony to be limited to the denial by Longmire and the other interrogating officer that any such promises or threats were made.” As shown by Gay’s testimony at the suppression hearing, however, there was little hope of an accurate determination of the accusations of misconduct without an extended inquiry into the context of the interviews, including the circumstances of each witness and his or her relationship to the accused and the police. Furthermore, even the limited testimony envisioned by Davis would pose a substantial risk of undue prejudice and jury confusion.
Davis also argues that, if the court was concerned about an undue consumption of time, it should have limited the number of witnesses that defense counsel could call rather than completely cutting off this avenue of defense. (Citing Andrews, supra, 205 Cal.App.3d at p. 947, fn. 5.) Defense counsel, however, did not make such a request. Nor would it have done Davis any good, since limiting the defense to fewer incidents would have made the assertions of past misconduct even less indicative of a habit or plan. Davis’ reliance on Andrews is misplaced on this basis, as well as on the ground that, unlike here, the trial court in Andrews had relied on section 352 “in an informed manner” by failing to ask the proponent of the evidence how many incidents he intended to offer or what the nature of proof would be as to each incident. (Andrews, supra, 205 Cal.App.3d at p. 947.)
Davis next argues that “testimony about Longmire’s use of threats and promises to coerce statements was not of such a nature to inflame emotions to the point at which the jury would misuse the information, ” and that the danger of misuse could have been avoided by the court giving a cautionary instruction. That, however, would not have reduced the time the proposed testimony would have consumed or the jury confusion it would have caused. Davis’ argument does not establish an abuse of discretion.
Lastly, Davis argues that the trial court relied upon factors irrelevant to the section 352 balancing test, such as the fact that the offers of proof were not under oath and the likelihood that some of the witnesses would invoke their Fifth Amendment rights not to testify. He urges that we should therefore review the trial court’s ruling de novo. If we were to do so, however, we would reach the same conclusion as the trial court.
Davis has failed to establish error in precluding the evidence at trial.
C. Admission of Parts of Davis’ Interview Referring to Past Bad Acts
In the audiotaped portions of Davis’ statement, Davis admitted that he had been having consensual sex with Harp since she was 14 or 15 years old and had used crack cocaine and crystal methamphetamine. There was also a reference by Sergeant Longmire to Davis cutting his son in 1994 and serving six months in jail for the crime. Davis contends the court should have redacted this evidence before the jury heard the audiotaped statements.
1. Background
Before trial, defense counsel sought to exclude, under sections 1101 and 352, “any mention of any uncharged incidents or allegedly unlawful conduct involving the defendant” and “any reference to any specific acts of [Davis’] misconduct other than those charged in the information, or prior felony convictions for the purpose of impeaching, should the defendant testify.” At the ensuing hearing, counsel pointed to Davis’ reference to drug use on other occasions and a reference to a 1994 assault.
Later, defense counsel was more specific in regard to the drug references, noting that, in the first audiotaped statement, Davis said he “smoke[d] crack every now and then, ” he “was using crystal meth then, ” he used “crystal meth, ” injected cocaine, and “they cook” methamphetamine in Sebastopol. Counsel did not mention references Davis made in his second audiotaped statement to drug use. The court ruled that the entirety of Davis’ audiotaped statement could be admitted into evidence.
As to the 1994 assault, defense counsel objected to the following question by Sergeant Longmire in the second audiotaped statement: “Q: Okay. Um... it’s safe to say that your anger has gotten the better of you from time to time in your life. We’ve talked about some [of] those incidents where you... you had a cutting incident with your son and, uh... he was cut and you got six months in jail for that. When you... when you get that rage... that flash... do you... do you lose your memory, or do you remember what-?” In response, the prosecution argued that the jury would be more likely to believe the defense’s contention that the police had coerced Davis into making his admissions if the statement was redacted; defense counsel replied that this problem could be resolved with a jury instruction. The court stood by its prior ruing that the entirety of Davis’ audiotaped statement would be admitted.
Lastly, defense counsel sought to exclude “the reference that [Davis] was sex partners with Miss Harp when she was under age.” The court denied the request.
2. Consensual Sex With Harp
In the audiotape played for the jury, Davis told the police that he was “sex partners” with Harp since she was 14 or 15 years old. Respondent argues that this statement was admissible because it showed his continuing pattern of sexually abusing her, which in turn suggested: Davis raped Harp at the time of the murder, as charged in the special circumstance allegation; Davis’ claim of consensual sex was false; and the defense contention that Harp agreed to have sex with Davis in exchange for money was also false. Davis disagrees.
Respondent also contends Davis waived or forfeited his challenge because he did not object to the admission of his statement about having consensual sex with Harp when she was a minor. As noted, however, defense counsel did object to the statement. It is true that, when successfully arguing against the prosecutor’s motion to exclude parts of Davis’ statement, defense counsel urged: “if this statement is offered... it all has to come in.” Nonetheless, we decline to find a waiver or forfeiture.
We conclude that any error in declining to redact the statement from the audiotape was harmless. The statement did not prejudice Davis in regard to the rape special circumstance allegation, since the jury found the allegation untrue. The fact that the jury was not affected by the evidence in deciding the special circumstance allegation also suggests the jury did not find the reference to sex with Harp to be so inflammatory as to lead it to convict Davis of murder. To the contrary, the evidence that Davis murdered Harp was overwhelming. He admitted being in her apartment, hitting her with a lamp, tying her up, hitting her in the head with a pot, and leaving her in the apartment. While the defense pointed to the fact that the bloody fingerprint did not match Davis, the fingerprint was explained by law enforcement’s handling of the body at the crime scene and transportation of the body to the coroner while the body was still bound. The evidence refuted Davis’ claim that he left the door unlocked, since the apartment door was locked when the body was discovered and there were no signs of forced entry. The fact that Davis thought he tied up Harp with ropes he got from a curtain instead of electrical or telephone cords is inconsequential and accounted by the fact he made his statement 15 years after the crime. There is no reasonable probability that a result more favorable to Davis would have been reached if the statement had been redacted. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Davis contends the court’s failure to redact the references to his sex with Harp, his drug use, and his 1994 assault violated his federal constitutional rights and the standard of prejudice for evaluating the errors is therefore whether the prosecution can prove the error harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) We disagree that the Chapman standard applies. If we were to apply the Chapman standard, it would be met.
3. Davis’ Drug Use
Davis’ statement included admissions that he smoked crack cocaine at times and used crystal methamphetamine. Respondent contends the evidence was admissible (1) to rebut the defense contention that he committed only heat of passion voluntary manslaughter if he killed Harp, because it would indicate that Davis did not reasonably become enraged at Harp for using drugs before killing her and (2) on the issue of identity, because his drug use tended to show that he acted in a drug-fueled rage that would explain the damage to the apartment and the injuries to Harp. Davis refutes these arguments.
Again, we conclude that the failure to redact these references from Davis’ audiotape statement, even if erroneous, was harmless. None of the references to drug use were particularly inflammatory. In fact, Davis also stated on the audiotape that he “quit shooting crystal meth on [his] own, ” never used heroin, did not use drugs anymore, and was “clean.” In closing argument, the prosecutor only made a scant reference to Davis’ prior drug use, saying the “defendant was a drug addict as well.” While the reference is not flattering, it would hardly lead anyone to convict Davis of a murder he did not commit. Furthermore, Davis did not object to his admission in the second audiotaped statement, in which he stated his belief that he had used crystal methamphetamine on the day of Harp’s murder. There is no indication that the references in the first audiotaped statement, to which counsel did object, placed Davis in a significantly worse light than the reference in the second audiotaped statement, to which counsel did not object. In light of the minor incidence and use of the allusions to Davis’ drug use, and the overwhelming proof of his guilt, there is no likelihood he would have obtained a more favorable verdict if the references to drug use had been redacted.
4. Davis’ Prior Assault
Defense counsel sought redaction of a question in which Sergeant Longmire noted Davis “had a cutting incident with [Davis’] son and, uh... he was cut and [Davis] got six months in jail for that.” In context, Longmire was asking Davis how well he could recall events at which he became enraged (since Davis claimed he was angry before striking and binding Harp). Davis answered that he sometimes does not remember all of the details of the event. While respondent argues that evidence of Davis’ 1994 knife assault on his son was admissible on the issue of intent to show he had a similar loss of control in his 1990 attack upon Harp, Davis disagrees.
We conclude that any error in failing to redact the reference to the 1994 assault was harmless. The reference was made by Sergeant Longmire, not Davis, and Davis never expressly admitted that, in fact, he had stabbed his son. Nor was there any direct statement that Davis was convicted for assault with a knife, but a brief off-hand reference to “a cutting incident with [his] son” for which he got “six months in jail, ” in the context of exploring how well Davis could remember an incident when he became angry. Furthermore, although defense counsel objected to this reference, there was no objection to Davis’ statement that he had a “parole officer, ” by which the jury knew he had suffered a prior conviction anyway. Moreover, the prosecution never even mentioned the 1994 incident in closing argument. In light of the these factors, as well as the overwhelming evidence of Davis’ guilt, we conclude that Davis would not have obtained a more favorable verdict if the reference to the 1994 assault had been redacted. Davis fails to establish reversible error.
D. Ineffective Assistance of Counsel
Davis argues that his trial counsel deprived him of effective assistance by failing to request an instruction “limiting the jury’s use” of the evidence pertaining to his sexual history with Harp, his drug use, and his 1994 assault on his son.
To establish ineffective assistance of counsel, a defendant must show that his attorney’s performance fell below an objective standard of reasonableness, and there is a reasonable probability that the defendant was prejudiced as a result. (Yarborough v. Gentry (2003) 540 U.S. 1, 5 (per curiam); Strickland v. Washington (1984) 466 U.S. 668, 687, 694.)
As to meeting the standard of performance, Davis does not explain exactly what limiting instruction his attorney should have requested. Furthermore, defense counsel could reasonably have believed that a limiting instruction as to the evidence (at least as to the drug use and 1994 assault, which was hardly mentioned by the prosecutor in closing) would do more harm than good by calling attention to the evidence. (See People v. Hinton (2006) 37 Cal.4th 839, 878; People v. Freeman (1994) 8 Cal.4th 450, 495; People v. Johnson (1993) 6 Cal.4th 1, 50.)
Moreover, Davis fails to show that he was prejudiced by the absence of a limiting instruction. For the reasons stated ante, none of the references to his sex with Harp, drug use, or “cutting” in 1994 was prejudicial, even though no limiting instruction was given. Davis fails to establish his claim of ineffective assistance of counsel.
E. No Cumulative Prejudice
Davis contends the cumulative effect of his asserted errors undermined the fairness of the trial and compels reversal. (People v. Hill (1998) 17 Cal.4th 800, 844 [a “series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error”].)
We disagree with Davis’ contention. Even if the court erred regarding the failure to redact from Davis’ statement the references to his sexual history with Harp, his drug use, and his 1994 assault, those errors were each harmless for the reasons stated ante. We conclude they were collectively harmless as well, for the same reasons. Davis does not establish any other error.
F. Review of Disclosures to Defense
Before trial, Davis filed motions to obtain information from Longmire’s and Nolan’s personnel files under Brady and Pitchess. (Brady, supra, 373 U.S. 83; Pitchess, supra, 11 Cal.3d 531.) The trial court granted the motions and, after in camera review of material provided by the custodian of records, released certain information from the files to the defense. Because Davis has not had access to the sealed record of the in camera proceedings, he asks us to review Longmire’s and Nolan’s personnel files to determine if the trial court erred in deciding what information to disclose. Respondent agrees, citing People v. Mooc (2001) 26 Cal.4th 1216, 1232 (Mooc).
Mooc sets forth a procedure to be followed when the trial court grants a Pitchess motion. The custodian of personnel records is obligated to bring “all potentially relevant” materials to the court and state what other documents in the personnel file were not brought and why. (Mooc, supra, 26 Cal.4th at pp. 1228-1229.) The court reviews the materials in camera in the presence of a court reporter and determines what to produce. (Ibid.) The court must make a record of the materials it reviewed to allow for meaningful appellate review, by photocopying the documents, preparing a list of documents it considered, or stating for the record what documents it examined. (Id. at p. 1229.) If the court fails to prepare an adequate record, the matter is remanded to the trial court with directions to hold a hearing to augment the record with the evidence the trial court considered in chambers when it ruled on the Pitchess motion. (Mooc, at p. 1231.)
We begin by looking more closely at the record pertaining to Davis’ motions.
1. Background
Citing both Brady and Pitchess, Davis filed a motion on January 27, 2009, seeking discovery of relevant information from the personnel files of Sergeants Longmire and Nolan. Specifically, Davis requested discovery of information from the personnel files regarding “the fabrication of charges and/or evidence, false arrest, falsifying police reports, obtaining statements from suspects or witnesses in violation of their constitutional rights, and/or acts involving moral turpitude.” Davis asserted the information would be used to locate and investigate witnesses, refresh their recollection, cross-examine prosecution witnesses, evaluate the credibility of the defendant and defense witnesses, and impeach the officers with their acts of moral turpitude or acts inconsistent with honest character.
On February 27, 2009, the court granted certain discovery in response to Davis’ motion. After an in camera review of personnel files provided by the custodian of records, as well as the custodian of records’ declaration pertaining to files that were not produced, the court ordered disclosure of the names and addresses of a number of complainants to defense counsel.
On May 12, 2009, Davis filed a supplemental Pitchess motion, seeking further information from Longmire’s personnel file, on the ground that the attorney for one of the complainants had not responded to defense counsel’s request to interview the complainant. On May 18, 2009, the trial court granted the motion and released redacted information to defense counsel.
After filing his appeal in this case, Davis sought to augment the appellate record with the sealed reporter’s transcripts of the in camera hearings and the personnel files of Sergeants Longmire and Nolan. We granted the motion except as to one of the reporter’s transcripts, which was already in the record on appeal. The trial court supplied the remaining transcript and indicated that the personnel files of Sergeants Longmire and Nolan were not in the court’s possession.
The appellate record did not include the documents that the trial court had considered in chambers when it made its rulings, or a list of those documents. We issued an order requiring the trial court to hold a hearing to augment the record as to the documents it considered in camera, in accord with Mooc, supra, 26 Cal.4th 1216. The trial court promptly held the hearing and provided to this court a copy of the documents.
2. Analysis
The reporters’ transcripts of the in camera hearings and the copy of the documents provided to the trial court by the custodian of records is sufficient for meaningful review of the rulings in connection with Davis’ motion and supplemental motion. Having reviewed this record, we conclude the trial court did not commit error in determining what information should be disclosed to the defense.
G. Credits
The trial court awarded Davis conduct credits equal to 15 percent of his actual custody days pursuant to Penal Code section 2933.1. Davis contends this was error, because the statute limiting presentence conduct credits for persons convicted of murder does not apply to murders committed in 1990.
The 15 percent limitation under Penal Code section 2933.1 became effective in 1994 and expressly applies only to offenses committed on or after its effective date. (Pen. Code, §2933.1, subd. (d); see People v. Ly (2001) 89 Cal.App.4th 44, 47.) Davis argues that he therefore should have been awarded presentence custody credits pursuant to Penal Code sections 4019 and 2900.5, which would mean that his 1, 654 days of actual custody entitled him to additional credits of 826 days, for a total of 2, 480 days. Respondent agrees that Davis is correct. (Pen. Code, §§ 2900.5, 4019.) Based on the parties’ stipulation, we will order that the judgment be modified accordingly.
III. DISPOSITION
The judgment is modified to reflect 1, 654 days of actual custody plus additional credits of 826 days, for a total of 2, 480 days. As so modified, the judgment is affirmed.
We concur. JONES, P. J., SIMONS, J.