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People v. Finley

California Court of Appeals, Fourth District, Second Division
Feb 28, 2011
No. E049132 (Cal. Ct. App. Feb. 28, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. RIF131966, Patrick F. Magers, Judge.

Al F. Amer for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.


McKinster J.

Defendant Robert Thomas Finley appeals his conviction on one count of second degree murder and one count of assault on a child causing death. We affirm the conviction.

PROCEDURAL HISTORY

Defendant was charged with one count of murder (Pen. Code, § 187, subd. (a); count 1) and one count of assault on a child under the age of eight resulting in death (Pen. Code, § 273ab; count 2).

The case was submitted to the jury as second degree murder and the jury returned guilty verdicts on both counts. The court sentenced defendant to a term of 25 years to life on count 2, plus a term of 15 years to life on count 1, which it stayed pursuant to section 654.

Defendant filed a timely notice of appeal.

FACTS

Nine-month-old Ednanda “Nana” Y. died of severe head trauma on August 15, 2006. Defendant had begun dating Nana’s mother, Yolanda R., a few months before Nana was born in November 2005, and moved in with her in January 2006. Yolanda’s three young sons, aged approximately five, four and two, also lived with her.

On the morning of August 15, 2006, Yolanda gave Nana a bottle at 7:00 a.m. She saw the baby put the bottle in her mouth. She then went back to bed. Around 8:30 or 8:45, defendant woke Yolanda and told her that Nana was crying. Yolanda did not hear the baby crying, but began to get up to attend to her. Defendant said he knew that Yolanda did not need to get up to go to work for a while and offered to take care of Nana. He said he needed to buy gas and would take Nana with him. Yolanda gave him $20 for the gas and lay down. Around 9:15 a.m., Yolanda got up to fix breakfast for the other children. Defendant had not yet returned.

Defendant returned around 10:30. He was carrying Nana on his shoulder with a blanket over her head, but Yolanda could see her face. She asked defendant to hand her the baby so she could change her diaper and T-shirt, but defendant said “no, it’s okay. She’s sleeping right now.” Yolanda did not touch Nana.

It was time for Yolanda to go to work, so she got the boys into the car while defendant put Nana into her car seat in the back seat. Nana’s eyes were closed, and Yolanda did not see her move or hear her make any sound. Yolanda’s mother normally took care of the children while Yolanda was at work, but she had been sick the day before, and it was too late to take the children to her mother’s house that morning in any event, so Yolanda asked defendant to let her know later whether he dropped the children off at her mother’s house or kept them with him. She arrived at work at Southland Transit Dial-A-Ride around 10:45 or 11:00 a.m.

Yolanda returned home around 12:45 p.m. Defendant was there with the children. Yolanda looked in on Nana, who was in her crib and appeared to be sleeping. She went to the kitchen to make lunch for defendant and the children.

Defendant told her that he needed to go to a friend’s house nearby and that he would be back shortly. Yolanda had an appointment at 1:30 p.m. to enroll her sons in a nearby school. She called defendant several times to tell him that she needed to leave. He kept saying he would come home. When defendant did not return by the time she needed to leave, she left the children at home and went to the school.

Yolanda returned home at 1:35 or 1:40. Defendant had still not returned. She went to check on Nana, who was in her crib, lying on her stomach. Yolanda touched Nana’s back and it felt cold. She covered the baby with a blanket. She did not notice whether she was breathing. She gave her sons lunch and then went to get Nana to feed her. When she picked Nana up, she realized that the baby was not moving and was limp. Yolanda took the baby to the living room and laid her on the sofa. She began shaking her chest and arms to wake her up. When Nana did not wake up, Yolanda screamed. She called 911 but got a recording. She called defendant and asked him to come home because the baby was not breathing. Defendant asked what was wrong, and Yolanda replied that she did not know what was wrong. She ran across the street and asked a neighbor to call 911. She went back to her house and tried again to wake Nana. Nana was cold, and when Yolanda opened the baby’s eyes, they were dry, blurry and coated and there was “nothing there.”

Defendant returned home before sheriff’s deputies responded to the 911 call. Yolanda asked him what had happened to Nana. He said he did not know. He said that Nana looked fine and was sleeping. Yolanda told him that the baby was not sleeping and that she was not breathing. She told him that an ambulance had been called. Defendant responded that he had to leave because he had outstanding warrants.

Defendant drove off in the only vehicle Yolanda had. He parked it in the garage at the home of his friend Christopher Clark, who lived around the corner. He asked Clark to have Yolanda pick up the truck later. He then left on foot.

A deputy sheriff arrived at Yolanda’s house at 2:02 p.m. He found that Nana had no pulse, was cold to the touch, and was pale. He performed CPR for several minutes, without success. The paramedics arrived at 2:06 p.m., and took over performing CPR. They, too, found that Nana was not breathing and had no pulse. When they arrived at Riverside County Regional Medical Center at 2:27 p.m., Nana showed no sign of life. She was pronounced dead at 2:45 p.m.

The autopsy showed multiple skull fractures, as well as bruising to the forehead, left eye and cheek. The baby’s brain was severely damaged and was so swollen that brain matter protruded from some of the fractures. Dr. Murray, the medical director of the Child Abuse Assessment Center at Riverside County Regional Medical Center, who attended and observed the autopsy, opined that the baby had died seconds or at most a few minutes after the injuries were inflicted. She had been dead about three hours when she arrived at the hospital at 2:30 p.m.

Dr. Murray described it as one of the worst cases of abusive head trauma she had ever seen. She said that the amount of force necessary to inflict such injuries was the equivalent of a child falling multiple stories onto concrete or a very heavy object falling on the child’s head. The injuries could not have been caused by the baby falling out of bed, by being dropped by a five-year-old or being hit on the head with a toy truck by a two-year-old. Dr. Murray opined that the punch or kick of a grown man delivered with a great deal of force and full body weight could possibly have caused the type of injuries Nana suffered.

These scenarios were suggested by statements made to investigators by defendant, Yolanda, and Nana’s two oldest brothers.

The forensic pathologist who performed the autopsy, Dr. McCormick, agreed with Dr. Murray’s assessment as to the magnitude of force that would be required to inflict the head trauma Nana suffered. He said that the trauma she suffered was some of the worst he had seen, short of a high-speed motor vehicle accident. On a scale of 1 to 10, with 10 being an injury such as the head being crushed under a car tire, he put her injuries at 8 or 9. He opined that Nana’s injuries were more consistent with something moving toward her head than with the child’s head being slammed against a wall or other hard object. The head injury was consistent with a single heavy blow, while the bruising to her face indicated multiple lesser impacts. He concurred with Dr. Murray that Nana had been dead three to six hours at 2:30 p.m., and that death ensued very quickly following the infliction of the injury.

Defendant did not return to Yolanda’s house and he did not return her telephone calls or call her. He claimed he had lost the cell phone which had her phone number. He said he was afraid to go back to her house because he would be arrested on his outstanding warrants. He did not attend the funeral for the same reason.

LEGAL ANALYSIS

THE DISPLAY OF NANA’S LIKENESS DURING THE TRIAL DOES NOT REQUIRE REVERSAL

Immediately before the conclusion of the prosecution’s case-in-chief, defendant’s attorney alerted the court that Nana’s father, who was a spectator at the trial, was wearing a pendant which bore a likeness of Nana while she was alive. Defense counsel stated that he thought it was inappropriate, since “live” pictures of the child had been excluded from evidence. He asked the court to ask the father to leave the pendant in the car. The court agreed that wearing the pendant in the presence of the jury was inappropriate, and the district attorney agreed to have the father cover the pendant. During a pause in the proceedings, the district attorney did so.

When the proceedings resumed, defense counsel informed the court that defendant had told him that the child’s mother had been wearing the pendant while she testified. Defense counsel stated that he had not noticed it, but that he wasn’t as close to the witness stand as the jurors were. He stated that he “ha[d] a concern.” The court and the district attorney stated that they also had not seen it. The court said that if it had noticed it, it would have done something about it. Defense counsel did not ask the court to take any action.

Defendant now contends that as a matter of fundamental fairness, he should be afforded a new trial. He states that it is inherently prejudicial to allow a deceased victim’s mother and father to wear a picture of the victim in open court in front of the jurors. However, he cites no authority in support of that proposition. He states somewhat vaguely that “[c]ourts have shown concern” in cases where spectators were allowed to wear buttons visible to the jury with the likeness of the deceased at a murder trial (Musladin v. Lamarque (9th Cir. 2005) 427 F.3d 653 [vacated Carey v. Musladin (2006) 549 U.S. 70, 77]) or with words such as “Women Against Rape” at a sexual assault trial (Norris v. Risley (9th Cir. 1990) 918 F.2d 828).

In Carey v. Musladin, supra, 549 U.S. 70, the United States Supreme Court held that there is no clearly established federal test for prejudice arising from spectator misconduct during a trial. Unlike state-sponsored courtroom practices which, the court has ruled, may be deemed so inherently prejudicial that they must be justified by an “‘essential state’ policy or interest” (id. at p. 75), “the effect on a defendant’s fair-trial rights of [spectator wearing badges bearing the picture of the deceased in a murder trial] is an open question” which the Supreme Court has not addressed (id. at p. 76). Consequently, it held that in Musladin v. Lamarque, supra, 427 F.3d 653, the Ninth Circuit lacked habeas corpus jurisdiction, pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (28 U.S.C. § 2254), because, in the absence of a clear United States Supreme Court holding on the issue, the state court’s failure to require spectators to remove any likenesses of the victim could not be deemed contrary to or an unreasonable application of clearly established federal law. (Carey v. Musladin, supra, at pp. 74, 76-77.) The court did not address the merits of the contention that the display of such likenesses is so inherently prejudicial that it necessarily denies the defendant a fair trial.

In contrast, California courts which have addressed the issue have found that such a display is not prejudicial per se. In People v. Zielesch (2009) 179 Cal.App.4th 731, the court held that while some courtroom practices, such as requiring the defendant to appear in jail attire, are unduly suggestive of guilt and are therefore per se in violation of the defendant’s due process right to the presumption of innocence, “[A]llowing some courtroom spectators to wear commemorative buttons depicting the likeness of a fallen officer is not unduly suggestive of guilt.” (Id. at p. 745.) The court went on to state, “Defendant’s claim to the contrary is an insult to the intelligence, integrity, and resolve of jurors. Here, there is no reason to believe that the jurors, when faced with the image of [the alleged murder victim], would be unable or unwilling to base their verdict solely on the evidence presented during the trial.” (Ibid.) In any event, the court held any possible prejudice was dispelled by the trial court’s prompt admonition to jurors to disregard the displays and to decide the defendant’s guilt or innocence solely on the evidence presented at trial. (Ibid.)

Similarly, in People v. Houston (2005) 130 Cal.App.4th 279, the court held that such a display is prejudicial only if it is unduly suggestive of guilt. The court noted that in Musladin v. Lamarque, supra, 427 F.3d 653, the defendant asserted that he had killed the decedent in self-defense. For that reason, the display of the decedent’s likeness was unduly suggestive of guilt because it implied that he was a “victim” rather than the person who incited the defendant’s justifiable response. In People v. Houston, in contrast, the defendant contended that someone else killed the victim. (People v. Houston, supra, at pp. 315-316.) Moreover, the court admonished the jury not to draw any inference of guilt from the displays of the victim’s likeness. (Id. at p. 316.) For both reasons, the court concluded that reversal of the conviction was not required. (Id. at pp. 317-318.)

People v. Houston, supra, predates the United States Supreme Court’s opinion in Carey v. Musladin, supra, 549 U.S. 70.

These cases are consistent with our Supreme Court’s approach to spectator misconduct in general. Spectator misconduct is a ground for mistrial only if it is “‘of such a character as to prejudice the defendant or influence the verdict.’ [Citation.]” (People v. Chatman (2006) 38 Cal.4th 344, 368-369.) Whether a particular incident of spectator misconduct is incurably prejudicial, or, indeed, whether it is prejudicial at all, “requires a nuanced, fact-based analysis.” (Id. at pp. 369-370.) That determination lies within the trial court’s discretion. (Id. at p. 370.) And, “[P]rejudice is not presumed when spectators misbehave during trial; rather, the defendant must establish prejudice, ” both in the trial court and on appeal. (People v. Cornwell (2005) 37 Cal.4th 50, 88.)

In order to have a cognizable claim on appeal, a defendant must alert the trial court to the alleged spectator misconduct and must either seek a curative admonition or seek a mistrial. (People v. Chatman, supra, 38 Cal.4th at p. 368.) Here, defendant asked only that the court have the child’s father leave the pendant in the car. He was apparently satisfied with the remedy of having the child’s father conceal the pendant from view. He did not ask the court to make any inquiry to determine whether jurors had seen the pendant, either on the father or on the mother while she was testifying, nor did he request a curative admonition. Because defendant did not seek a mistrial or request any remedy beyond that proffered by the court, he has forfeited any claim of error.

In any event, defendant has not shown that denial of a motion for mistrial would have been an abuse of discretion if one had been made, nor has he demonstrated prejudice. First, there was no showing that any juror saw the pendant or recognized the likeness on it as Nana’s. Defendant did not ask the court to inquire, and it did not do so. Second, even if jurors did see and recognize the likeness, there is nothing in the record which would cause us to believe that jurors would have taken it as anything more than a normal expression of parental grief at the killing of their daughter, regardless of whether the killing was intentional or accidental or culpable or nonculpable, and regardless of who was responsible. (See People v. Zielesch, supra, 179 Cal.App.4th at p. 745 [argument that mere display of commemorative badges displaying likeness of fallen police officer would unduly influence the jury is an insult to the “intelligence, integrity, and resolve of jurors”].) Consequently, defendant has not met his burden of establishing either an abuse of discretion or resulting prejudice. (People v. Cornwell, supra, 37 Cal.4th at p. 88.)

Defense counsel could reasonably have concluded that because the display of the child’s likeness was fairly innocuous, it was better not to focus jurors’ attention on the display by making any inquiry.

THERE WAS NO PROSECUTORIAL MISCONDUCT

Defendant contends that the prosecutor engaged in misconduct when he questioned Dr. Murray about Nana’s injuries and elicited her opinion as to the type and magnitude of force which would have been necessary to inflict the injuries. He contends that because Dr. Murray is a pediatrician and not a forensic pathologist, she lacked the necessary expertise to render an opinion on that subject.

Defendant begins by acknowledging that review of a claim of prosecutorial misconduct is forfeited unless the defendant made a timely and specific objection on that ground and requested an admonition to the jury to disregard the misconduct. (People v. Hill (1998) 17 Cal.4th 800, 820.) The requirement of an objection and/or a request for an admonition will be excused if either would be futile, or if an admonition would not cure the harm caused by the misconduct. (Ibid.) Defendant made no objection on the ground of prosecutorial misconduct during Dr. Murray’s testimony, and on appeal, he does not contend that the objection would have been futile or that an admonition would not have cured the harm caused by the allegedly improper testimony. Consequently, the claim is not cognizable on appeal. (People v. Hill, supra, at pp. 820-821.)

In any event, it was not misconduct to ask Dr. Murray for her opinion as to the force required to produce the injuries Nana suffered. A person is qualified to testify as an expert if he or she has special knowledge, skill, experience, training or education that is sufficient to qualify him or her as an expert on the subject to which his or her testimony relates. (Evid. Code, § 720, subd. (a); People v. Catlin (2001) 26 Cal.4th 81, 131.) Dr. Murray is a board-certified pediatrician and a fellow of the American Academy of Pediatrics, with extensive training and education in physical and sexual child abuse. She is the medical director of the Child Abuse Assessment Center at Riverside County Regional Medical Center. The focus of her practice is child abuse, and she has studied and had experience in the area of traumatic head injury. “Most” of the 20 child deaths she had evaluated in that capacity involved head injuries, and most of the children who had died of such injuries were under the age of one. Dr. Murray was thus eminently qualified to give her opinion as to the type and magnitude of force required to inflict the head trauma Nana suffered, and it was not misconduct to elicit those opinions.

The defense did object to some of Dr. Murray’s opinions on grounds of foundation or speculation. Those objections were overruled. Defendant does not assert that the court erred in doing so.

SUBSTANTIAL EVIDENCE SUPPORTS THE VERDICTS

Finally, defendant contends that the evidence was insufficient to support the conclusion that he caused Nana’s death. He states that the prosecutor “only showed that Nana was found dead and [defendant] had the opportunity to have either witnessed or caused the death during the time he had custody of her. The prosecutor did not prove, however, that [defendant] committed any specific act in causing her death or that it was an intentional killing.”

When a defendant contends that the evidence is insufficient to support his conviction, the standard of review is well settled: “[W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] ‘“[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.”’ [Citation.] ‘The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] “Although it is the duty of the [finder of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [finder of fact], not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt.”’ [Citation.]” (People v. Snow (2003) 30 Cal.4th 43, 66.)

“An appellate court must accept logical inferences that the [finder of fact] might have drawn from the circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.) Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear “‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Although the substantial evidence standard of review appears to suggest that it is the appellate court’s duty to review the record to determine whether it contains sufficient evidence to support the verdict “even if the defendant does nothing more than baldly assert that the evidence is insufficient, ” that is not the case. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) On the contrary, because the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, “it is not enough for the defendant to simply contend, ‘without a statement or analysis of the evidence, ... that the evidence is insufficient to support the judgment[ ] of conviction.’ [Citation.] Rather, he must affirmatively demonstrate that the evidence is insufficient.” (Ibid.)

Defendant has provided no analysis of the evidence which is favorable to the verdicts and consequently has not met his burden of demonstrating affirmatively that under no hypothesis is it sufficient to support the verdicts. Tellingly, he has not filed a reply brief and does not contest the Attorney General’s analysis of the evidence which supports the conclusion that defendant hit Nana with sufficient force to produce the injuries which killed her.

The Attorney General’s analysis omits the evidence that one of Nana’s brothers told an investigator that on the day of Nana’s death, defendant had hit Nana in the eye with his closed fist and that the baby fell off the bed after that but did not cry. Another of her brothers told the investigator that defendant came into Nana’s room and splashed water on her face but she did not wake up. This happened while Yolanda was in the kitchen cooking. Taken all together, this evidence, plus the evidence the Attorney General describes in his response brief, which we need not recount here, constitutes substantial evidence from which a reasonable trier of fact could conclude that defendant struck Nana with sufficient force to kill her.

DISPOSITION

The judgment is affirmed.

We concur: Hollenhorst Acting P.J., King J.


Summaries of

People v. Finley

California Court of Appeals, Fourth District, Second Division
Feb 28, 2011
No. E049132 (Cal. Ct. App. Feb. 28, 2011)
Case details for

People v. Finley

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ROBERT THOMAS FINLEY, Defendant…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Feb 28, 2011

Citations

No. E049132 (Cal. Ct. App. Feb. 28, 2011)