Opinion
D058905 Super. Ct. No. INF067359
02-29-2012
THE PEOPLE, Plaintiff and Respondent, v. DALE CHRISTOPHER FARQUHAR, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Riverside County, David B. Downing, Judge. Affirmed.
A jury found Dale Christopher Farquhar not guilty of the first degree murder of Larry Fisk, but found him guilty of the lesser included offense of second degree murder (Pen. Code, § 187, subd. (a) (undesignated statutory references will be to the Penal Code)). The jury found not true the sentencing enhancement allegation that Farquhar personally and intentionally discharged a firearm in the commission of the offense (§§ 12022.53, subd. (d) & 1192.7, subd. (c)(8)). The court sentenced Farquhar to an indeterminate prison term of 15 years to life.
Farquhar appeals, contending (1) the court violated his Fourth Amendment right to be free from unreasonable searches and seizures by denying his motion to suppress the notebook and journal the police seized from his apartment; (2) the court abused its discretion by admitting the notebook and journal because they were not relevant, and, even if they were relevant, they were so prejudicial the court should have excluded them under Evidence Code section 352; and (3) the court abused its discretion under Evidence Code section 352 by admitting eight "inflammatory" photographs found in his apartment depicting him wearing women's clothing.
We conclude that, even if we were to assume the court committed the foregoing claimed errors, any such errors were harmless beyond a reasonable doubt. Accordingly, we affirm the judgment.
FACTUAL BACKGROUND
A. The People's Case
Fisk, who was 57 years of age at the time of his death, and his wife, Michelle Fisk, lived in Apple Valley and had been married for 28 years. They were still living together in 2009, but were having marital problems.
On November 8, 2009 (all further dates are to calendar year 2009), Fisk left by himself on a motorcycle trip. He had planned to go to Palm Springs for a week and then to Arizona to visit friends. Before he left, Fisk packed his belongings in a black duffle bag, which he tied to the back of his motorcycle seat.
On November 13, Fisk called one of his Arizona friends and told her he would not make it to Arizona as planned because he had met a woman in Palm Springs and intended to spend the weekend with her.
The murder
At around 2:00 p.m. on November 14, Palm Springs Police Department officers responded to a report of a man down in an apartment complex in North Palm Springs. Upon arrival, officers found Fisk lying dead in a puddle of blood on the second-story landing outside apartment I-205. Fisk had been shot once in the back of the neck. The bullet severed his brain stem and lodged in his brain. Gun powder soot on Fisk's body near the wound was consistent with the shooter being less than one foot away from Fisk at the time of the shooting.
Palm Springs Police Officer Arnold Galvan knocked on the doors of the apartments near the location where Fisk's body was found and talked with some of the residents. Officer Galvan spoke with Farquhar and his girlfriend Cara C., who lived in apartment I-209, a second-story apartment near where Fisk's body was discovered.
Shortly thereafter, Officer Galvan learned from Paul Antonelli, a Palm Springs resident, that Antonelli had found a duffle bag and some other items earlier that day in a vacant lot on the side of the road less than a quarter mile from the location where Fisk's body was found. The duffle bag belonged to Fisk and contained a number of his personal belongings, such as a checkbook and some T-shirts with Harley Davidson emblems on them. Antonelli opened the checkbook, found a phone number for Michelle Fisk, and called her to tell her he had found the duffle bag. Later, he gave the bag and other items to the police, who inventoried them. One of the items found at the location where Antonelli discovered Fisk's duffle bag was a note with the name "Cara" and the words "PS Village Pub" written on it along with a telephone number. This information led Officer Galvan to go back to Farquhar and Cara's apartment and talk with them again, separately, in the early morning hours of November 15.
Officer Galvan interviewed Farquhar and tape recorded his statements. When Officer Galvan asked Farquhar to tell his side of the story, Farquhar indicated that he suffered from mental problems and he did not know what happened because he blacked out. When pressed further, Farquhar admitted he was sleeping in his bedroom when he heard someone in the other room saying, "Don't do that." He indicated he came out of his bedroom and found a man on top of Cara, who was saying, "Don't do that. Stop." Farquhar stated, "I snapped out of it. The guy was laying down." Officer Galvan asked Farquhar, "How about the gun? Where'd you put the gun?" Farquhar answered, "I don't know." Officer Galvan then asked, "You don't know what you did with the gun?" Farquhar responded, "I don't know. No." Officer Galvan later arrested Farquhar.
A transcript of the interview was introduced into evidence at trial.
2. Additional incriminating evidence
a. Farquhar's bloody fingerprint
A bloody fingerprint was found on the railing near Fisk's body. The fingerprint was Farquhar's, and the blood matched that of Fisk.
b. Fisk's blood found inside and outside Farquhar and Cara's apartment
A search of Farquhar and Cara's apartment (I-209) was conducted on November 18 for the purpose of processing the apartment with Blue Star, a chemical that turns light blue when it reacts with blood. Various locations sprayed with Blue Star both inside and outside the apartment revealed the presence of blood. Specifically, blood was detected on the outside entryway leading to the front door of apartment I-209 and on the walkway between apartment I-209 and apartment I-205 where Fisk's body was found. Blood was also detected inside Farquhar and Cara's apartment near the kitchen and in the dining room. Swabs of blood found inside the apartment were subjected to analysis, which revealed the samples contained Fisk's blood.
c. Cara's admissions regarding the handgun and the spent shell casing
Cara was also interviewed by the police and admitted that Fisk had been shot with a .38-caliber handgun. She led police to a bush about 100 yards from her and Farquhar's apartment where the gun was hidden. The officers retrieved the gun from the bush.
After the gun was retrieved, Cara also informed the police there was a spent shell casing on the top railing of the sliding door of the closet inside the master bedroom of the apartment. Police officers retrieved the spent shell casing from the location Cara described. Later analysis confirmed the shell casing had been fired by the .30-caliber handgun retrieved from the bush.
d. Fisk's driver's license found inside the apartment
During their execution of a search warrant on November 15, police officers searched Farquhar and Cara's apartment and found various items that belonged to Fisk, including his driver's license.
e. Tan purse and .38-caliber handgun ammunition found inside the apartment
During the November 15 search of the apartment, Police also found several rounds of .38-caliber handgun ammunition in a tan purse.
f. Notebook found inside the apartment
A spiral notebook (hereafter the notebook) the police seized from a table in Farquhar and Cara's apartment during the search on November 15 contained what appeared to be a script outlining a murder plot. Handwritten on one of the pages were the words, "Get up and kill, get up and kill, get up and kill, kill, kill," "Epidemic in Palm Springs, epidemic in Palm Springs," and "epidemic of mass murders." The notebook also contained the notation, "RIP Village Pub," which was significant to the police because they had information that both Cara and Fisk had been at the Village Pub in Palm Springs before the murder and had met each other while they were there. The notebook also contained a hand-drawn picture of a motorcycle, which was significant to the police as they were informed Fisk had been riding a motorcycle. The notebook also contained writing indicating one of the characters in the script would go to the Village Pub to find a "target."
g. Journal found inside the apartment
During their search of Farquhar and Cara's apartment on November 15, the police seized a small yellow notepad (hereafter the journal), which the court at trial referred to as "the journal," that was on an end table in the living room. The address of the apartment and the apartment number (I-209) were written at the top of the notepad. The journal was significant to the police because they had information Fisk had visited the Village Pub, and one of the pages in the journal contained the sentence, "She arrived at the Village Pub."
3. Photographs of Farquhar wearing women's clothing During the November 15 search of Farquhar and Cara's apartment, the police found in the bedroom photographs of Farquhar wearing women's clothing.
B. The Defense Case
Among the items found in the vacant lot near Fisk's duffle bag was a pair of Levi jeans that had holes in the knees and the backs of the leg, a blood stain, a waist size of 36 inches, and a length of 34 inches. At the time of his arrest, Farquhar was wearing a pair of men's Old Navy jeans, size 38 inches by 30 inches.
In November 2009 Shawna Mason lived in apartment I-215, a few doors down the hallway from Farquhar and Cara's apartment. A few days after the discovery of Fisk's body, Mason became aware that Cara was acquainted with Mason's ex-boyfriend, Mark Gregg. While Cara and Farquhar lived in apartment I-209, Mason often saw Cara walking back and forth in front of Mason's apartment. Mason recognized the pair of Levi jeans with holes in the legs and a blood stain that had been found with Fisk's duffle bag. Mason also believed the tan purse found in Farquhar and Cara's apartment, which contained .38-caliber bullets, was one she had seen Cara carrying.
After she went to bed on the night of November 13, Mason heard footsteps for about an hour outside her apartment coming and going from Farquhar and Cara's apartment. The next morning, Mason noticed the walkway outside her apartment was wet and very clean. On November 15, she saw Cara go to the crime scene outside apartment I-205 and look around.
On November 16, Mason was standing outside her apartment when she saw Cara walking from the parking lot towards the stairwell to her apartment. When Cara saw Mason, she told Mason, "Mind your own business." Mason replied, "It is my business, because my neighbor is dead because of you." Cara then said to Mason, "you're next," which Mason took as a death threat. Mason was scared and called the police. Cara was arrested but later was released on bail.
Mary Seaver, who lived in apartment I-113, downstairs from the apartments occupied by Mason and by Farquhar and car, testified she never noticed Farquhar dressed in women's clothing.
DISCUSSION
In support of his claim the court prejudicially violated his rights under the Fourth Amendment by admitting the notebook and journal into evidence after denying his suppression motion, Farquhar contends neither the search warrants nor the plain view doctrine authorized the seizure of these two items of evidence. He also asserts the court prejudicially abused its discretion when it admitted those items because they were not relevant, and, even if they were relevant, they were so prejudicial the court should have excluded them under Evidence Code section 352. Farquhar maintains the court's error requires reversal under the Chapman harmless error standard, but, even under the lesser Watson harmless error standard, the error requires reversal of his conviction. Farquhar also contends the court prejudicially abused its discretion under Evidence Code section 352 by admitting eight "inflammatory" photographs found in his apartment depicting him wearing women's clothing.
In order to invoke the plain view doctrine to lawfully seize an object not particularly described in a search warrant, the police must lawfully be in a position from which they view the object, its incriminating character must be immediately apparent, and the officers must have a lawful right of access to the object. (Minnesota v. Dickerson (1993) 508 U.S. 366, 374.)
Under Evidence Code section 352, a trial court has discretion to exclude evidence if its probative value is substantially outweighed by the probability its admission would necessitate undue consumption of time or create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. In assessing whether evidence is unduly prejudicial within the meaning of that section, the question is whether the evidence "tends to evoke an emotional bias against the defendant with very little effect on issues . . . ." (People v. Crew (2003) 31 Cal.4th 822, 842.) Error in the admission or exclusion of evidence following an exercise of discretion under Evidence Code section 352 is tested for prejudice under the Watson harmless error test (see fn. 5, post ). (See People v. Alcala (1992) 4 Cal.4th 742, 790-791.)
Under the Chapman harmless error standard, "an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt." (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681; see Chapman v. California (1967) 386 U.S. 18, 24.)
Under the Watson harmless error standard, the trial court's judgment may be overturned only if "it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.)
These contentions are unavailing because Farquhar has not shown, and cannot demonstrate, the claimed errors were prejudicial under either the Watson harmless error standard or the Chapman harmless error standard. For purposes of this appeal, we assume, without deciding, that the court erroneously admitted into evidence the notebook, the journal, and the photographs depicting Farquhar wearing women's clothing. We determine that the prosecution presented such overwhelming evidence of Farquhar's guilt, apart from the challenged evidence, that we may confidently conclude, on the whole record, that the assumed errors were harmless beyond a reasonable doubt.
In light of our conclusion that Farquhar has failed to meet his burden of demonstrating prejudice, we need not, and do not, discuss either the substantial procedural background of his claims of error, or the specific nature and legal basis for those claims.
--------
Karen Fromm, one of Fisk's friends in Arizona, testified for the prosecution that Fisk called her on November 13 and told her he would not make it to Arizona as planned because he had met a woman in Palm Springs and intended to spend the weekend with her. It is undisputed Fisk's body was found the next day, November 14, in Palm Springs on the second-story landing, and Fisk had been shot fatally once in the back of the neck. That day, Antonelli found Fisk's duffle bag and various items of Fisk's personal belongings in a vacant lot less than a quarter mile from the apartment complex where Farquhar lived, and gave these items to the police. One of the items found near the duffle bag was a note with the name "Cara" written on it.
Officer Galvan tape recorded his interview of Farquhar in the early morning hours of November 15, and Farquhar admitted he had found a man on top of Cara in Farquhar and Cara's apartment. When Officer Galvan asked him what he did with the gun, Farquhar responded, "I don't know," demonstrating consciousness of guilt.
The prosecution presented evidence that a patent bloody fingerprint found on the railing near Fisk's body was Farquhar's fingerprint, and the blood matched that of Fisk. Swabs of blood found inside Farquhar's apartment were subjected to analysis, revealing the samples contained Fisk's blood. Forensic investigation also revealed the presence of blood on the outside entryway leading to the front door of Farquhar's apartment, and on the walkway between his apartment and the apartment in front of which Fisk's body was found. The People also presented evidence showing that, when the police executed the search warrant on November 15, they found in Farquhar's apartment various items that belonged to Fisk, including his driver's license.
The prosecution's evidence also showed that when the police interviewed Cara, she admitted Fisk had been shot with a .38-caliber handgun. Later, she led police to a bush—located about 100 yards from the apartment—where the police retrieved the hidden gun. Cara also informed the police there was a spent shell casing on the top railing of a sliding closet door inside the apartment, and the police retrieved the shell casing from the location Cara described. Forensic analysis confirmed the shell casing had been fired by the handgun retrieved from the bush.
Given the foregoing overwhelming evidence of his guilt, Farquhar has not shown, and cannot establish, under either the Watson harmless error standard or the Chapman harmless error standard, that he suffered any prejudice as a result of the assumed errors. Accordingly, we affirm his second degree murder conviction.
DISPOSITION
The judgment is affirmed.
_______
NARES, J.
WE CONCUR:
____________
McCONNELL, P. J.
____________
O'ROURKE, J.