Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County., Ronald S. Coen, Judge., Los Angeles County Super. Ct. No. PA040748.
Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant Matthew Fletcher.
David H. Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant Jennifer Fletcher.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, John R. Gorey, David E. Madeo and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Appellants Jennifer and Matthew Fletcher were found guilty, following a jury trial, of one count of first degree murder in violation of Penal Code section 187, subdivision (a). The jury found true the special circumstances allegations that the murder was committed while lying-in-wait and for financial gain within the meaning of section 190.2, subdivisions (a)(1) and (a)(15). The jury also convicted the two of conspiracy to commit murder and various insurance fraud offenses. These convictions all arose from the murder of Jennifer's then-husband, Joel Shanbrom. The jury also convicted Matthew of one count of bigamy in violation of section 281, subdivision (b)(3). Both appellants were sentenced to life in prison without the possibility of parole.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellants now appeal from the judgments of conviction. We affirm those judgments.
Facts
In 1996, Jennifer Shanbrom and her husband Joel worked for Primerica, a financial services firm whose products included life insurance. Joel also had a full-time job as a police officer for the Los Angeles Unified School District ("LAUSD"). In December of that year, Jennifer attended a Primerica convention in St. Louis without Joel. There, she met Matthew Fletcher, another Primerica employee from the Los Angeles area. Bret Siers, a regional vice-president, noticed that Mathew and Jennifer were together a lot at the convention. He stated that they danced together in a way that "was different than the way married people who aren't married to each other would traditionally dance." One night, Jennifer did not return to her hotel room until 5:00 a.m. She said that she was up all night talking with Matthew.
Matthew, Jennifer and Joel all later left Primerica and went to work for a competitor, World Marketing Alliance ("WMA").
Steve Gleit, who was also at the convention, was for a time a housemate of Matthew's. He testified that after the convention, Jennifer frequently spent the night at the house and engaged in sexual relations with Matthew.
While Jennifer was having an affair with Matthew, she made disparaging comments about Joel. Among other things, she said that he was lazy, stupid and no fun. She complained to Frank Congelosi, a friend of Joel's, that Joel was lazy, "only a school cop," and no good in bed. She told Congelosi: "If Joel got killed, I would get a million dollars." She mentioned the million dollar figure about ten times. She indicated that would be the amount of the proceeds if Joel was "killed in the line of duty."
In January 1998, Rossana Shanbrom, who was married to Joel's brother James, went to a bookstore with Jennifer. There, Jennifer picked up a wedding magazine and asked Rossana, who was in the bridal business, if she could make a dress shown in the magazine for less than the listed price. Rosanna asked Jennifer if she wanted the dress because she was planning to renew her vows with Joel. Jennifer replied that she was looking at wedding dresses "For when I get married again."
On February 28, 1998, Joel saw Elaine Alvarez, a licensed clinical psychologist and marriage counselor. Alvarez told Joel that he should talk with Jennifer and ask her to limit her contact with Matthew and should also speak to Matthew about Joel's concerns about a possible affair.
Jennifer later told Alvarez that Joel had talked with Matthew before he died and that she was saddened by the fact that Joel died thinking she was having an affair.
On March 18, 1998, Jennifer's mother, Diana Bates, was living with Jennifer, Joel and their preschool age son Jacob in the Shanbrom's house. She returned home from dinner and a movie to find Joel on the couch with gunshot wounds. She called 911 to report the "murder" of her son-in-law, Joel Shanbrom, a police officer with the Los Angeles Unified School District.
When police arrived at the Shanbrom house, they were greeted by Bates, who told them that she thought the victim might have shot himself. Police found Joel's body on a couch in the family room. He was dead. He appeared to the officers to have been sitting watching television in a relaxed state when shot. No weapon was found on the couch.
Police found no signs of forced entry into the house, and no open doors. A sliding door at the back of the house was unlocked, however. The downstairs was a little messy, but did not appear to have been ransacked. Joel's service weapon was found in a fanny pack on top of the refrigerator. His badge was not in the fanny pack.
More officers arrived on the scene. Officer Daniel Garcia and his partner searched the house to make sure it was secure. Officer Garcia noticed that the rooms in the upstairs of the house appeared to have been ransacked, with drawers removed and the contents dumped on the floor. Officer Garcia thought that it was "funny" that the downstairs appeared normal while the upstairs appeared ransacked.
Officer Teresa Montoya discovered that the door to the master bathroom was locked. She heard a woman's voice and identified herself as a police officer. After another officer placed his badge under the door, Jennifer opened the door and came out holding Jacob wrapped in a towel.
Jennifer told Officer Montoya that about 7:00 or 7:30 p.m., she was giving Jacob a bath in the north bathroom. Jacob was playing with his toys. She heard one or two gunshots downstairs, picked up Jacob and ran to the master bathroom and locked herself in. She heard a male voice, possibly a Black male voice, state: "What you do dat for?" Jennifer stated that she had been in the bathroom for hours before the police came. After being taken out of the house, Jennifer told Officer Montoya that Joel's badge and gun were on top of the refrigerator and that there might be another gun in the house.
Officer Thomas Bracia arrived about 2:00 a.m. and assisted in the search for evidence. He discovered that a gate leading from the backyard to the railroad tracks in the back of the house was unlocked. He did not see a lock in the area.
Detective Brian McCartin arrived about 3:30 or 4:00 a.m. He was in charge of the crime scene. According to Detective McCartin, Joel's LAUSD badge was not found at the crime scene.
Detective McCartin observed that the downstairs of the house did not appear to be disturbed, but the upstairs appeared to have been ransacked. The drawers in the dresser, vanity and bureau in the master bedroom had been pulled and the contents dumped on the floor. The contents of a jewelry box were strewn on the floor. Drawers were pulled open in Jacob's bedroom, but the contents had not been removed. There was a portable telephone on the master bed, a loaded .380 Walther PPK automatic in the closet, clearly visible to anyone passing through from the bedroom to the bathroom, and a bowie knife was on the floor of the master bedroom.
An examination of the north bedroom showed that there was an inch of clear water in the bathtub and that Jacob's toys were outside the bathtub. The water level in the bathtub remained constant during the 14 hours Detective McCartin spent at the house.
A metal detector search of the backyard and a search by 15 police recruits of the backyard, the neighbor's yard and the area surrounding the railroad tracks did not uncover a lock or any other evidence.
Barbara Romney, the Shanbrom's next-door neighbor, told police that the area was very quiet and that if someone was walking on the railroad tracks or around the neighborhood, a pair of dogs would bark loudly. She did not hear any barking on the evening of March 18. She did hear a loud noise about 8:30 p.m.
Dr. Vladimir Levicky, a deputy medical examiner with the Los Angeles County Coroner's Office, performed the autopsy on Joel and initially estimated he died at approximately 10:00 p.m. on March 18, 1998, from multiple shotgun wounds to the head. Dr. Levicky, however, modified his opinion as to the time of death and stated that, if Joel was alive at 8:05 p.m. and dead at 9:15 p.m., Joel died closer to 9:00 p.m. than 8:00 p.m. The head wounds were in the right eye, in the right cheek, and in the back of the head. Three lead fragments were recovered from the shotgun wound to the right eye. Multiple pellets were recovered from the other shotgun wounds.
The shotgun wound to the right eye caused severe injury to the head and destroyed the brain stem. It was an instantaneous fatal wound which caused an immediate cessation of all bodily functioning. The wound was marked by the presence of tattooing, indicating the muzzle of the shotgun was held at a distance of only one or two feet from Joel's head at the time it was fired. The right eyelid was lacerated, indicating the eye was closed when struck with the bullet. Dr. Levicky could not determine whether Joel was standing at the time this wound was inflicted.
The shotgun wound in the right cheek entered on the side of the cheek and perforated the soft tissues of the cheek and partially perforated the mucosa of the mouth. This wound was "very serious" but not necessarily fatal unless not treated. The wound would have rendered Joel unconscious. The direction of the wound was from back to front and up to down. The muzzle of the shotgun was held at a distance of approximately four to five feet from Joel when fired. Dr. Levicky recovered shotgun pellets (birdshot) from this wound in the tissues of the cheek and inside the mouth. Wadding was recovered in the muscle of the right cheek. He also recovered several pellets from Joel's stomach which had been swallowed during the infliction of the wound. The trajectory of the shot was slightly from back to front and downward so that the shooter was in an elevated position to Joel.
The shotgun wound in the back of the head was a "tangential" shot fired at a distance of four to six feet. Although the wound was superficial and just scratched the surface of the head, it was a "through and through" wound which clipped off part of the scalp and caused a lot of bleeding. The wound probably rendered Joel unconscious or at least stunned him.
Dr. Levicky determined that Joel was either seated or lying back when he was shot. The wounds were probably inflicted close in time and in the following order: the back of the head, the right cheek, and the right eye. Dr. Levicky opined that "several minutes" elapsed between the infliction of the first wound to the back of the head and the last wound to the right eye. He also opined based on his findings that the last two wounds (i.e., the wound to the right cheek and the wound to the right eye) were inflicted closer in time than the time between the first wound (i.e., the wound to the back of the head) and the second wound (i.e., the wound to the right cheek).
Ronald Raquel, a criminalist assigned to the Scientific Investigation Division of the Los Angeles Police Department, reviewed photographs of the crime scene and analyzed items recovered from the crime scene, including a throw pillow, a pillow case, an Afghan blanket, and Joel's clothing (i.e., a bloodstained T-shirt, bloodstained sweat pants, a pair of socks, and a pair of underwear). The pattern of blood on the throw pillow, as well as the presence of pellets inside the pillow, indicated the pillow was underneath Joel's head at the time he was shot in the back of the head. The high-velocity blood spatter pattern on Joel's T-shirt indicated that Joel's chin was resting directly on his chest when the spatter was created by the wound to the right eye. The pattern of the spatter appeared to be "back spatter" where the blood is directed backwards toward the cause of the wound. Based on the lack of blood on Joel's socks, as well as his other findings, Mr. Raquel opined that Joel was not standing at the time he was shot; rather, Joel was slumped on the couch in the position he was found when he was shot.
Richard Maruoka, a criminalist assigned to the Firearms Analysis Unit of the Los Angeles Police Department as a firearm's examiner and supervisor, examined the firearms-related evidence recovered at the crime scene and during the autopsy. Mr. Maruoka concluded that a .410 gauge shotgun was used to fire the shots into Joel's head. The .410 shotgun was used primarily for trap and skeet shooting or hunting. In over 13 years of investigating firearms, the instant case was the first time Maruoka could remember a .410 shotgun being used in a case.
Early in the police investigation, suspicion focused on Jennifer. One of the reasons for this suspicion was that Joel was heavily over-insured and Jennifer was his beneficiary. Although Joel earned only about $50,000 per year, his life was insured for over one million dollars. As police discovered evidence that Jennifer was romantically involved with Matthew Fletcher, suspicion focused on him as well. Half of Joel's life insurance was acquired after Jennifer's affair with Matthew began, and that insurance was written by Matthew.
Jennifer was taken to the police station and interviewed by Detective Jesse Castillo, who taped part of the interview. Jennifer told Castillo that about 7:00 p.m., she made some telephone calls while Jacob was in the bathroom. When she finished her calls, she went into the bathroom, closed the door and bathed Jacob. She heard a gunshot, then heard Joel say "I'm a cop," followed by a second gunshot. She then heard a Black male voice say "why did you do that?" followed by another gunshot. She grabbed Jacob out of the bathtub and by pre-arranged security plan devised by Joel, took Jacob to the master bathroom, locked the door and hid in the shower. She heard loud crashing noises all over the house. She did not hear Bates calling for her. She did hear the police calling.
Jennifer was also interviewed by Detective Ronald Ito. This time, she stated that while she was bathing Jacob, she heard a voice, probably Joel's, say "I'm a cop." She then heard a gunshot, then heard a Black male voice scream "Why's you do dat for?" then another gunshot. She and Jacob went to the master bathroom as part of a pre-arranged security plan. Jennifer told Detective Ito that Joel was jealous of her male friends, including Matthew. She acknowledged that Joel had heard a voicemail message that Matthew had left for her in which he said, "I love you, I love you, I love you."
Jennifer was also interviewed by Detective Russell Poole. She told him that she asked Jacob to get undressed while the water was running for his bath. She went downstairs to get some sheets out of the dryer, observed that Joel was working at the computer downstairs, returned upstairs, and went into the bathroom with Jacob. She then gave Detective Poole the same description of the shooting that she had given to Detective Ito. She added that while hiding in the bathroom, she heard footsteps from two different individuals and banging noises outside the bedroom. She stayed in the bathroom until police officers knocked on the door.
On March 20, Jennifer acknowledged to Detective McCartin that she was familiar with guns, including shotguns. Jennifer was aware that there were weapons in her residence.
Matthew was also familiar with shotguns, and at one point owned two of them. He used to shoot trap, skeet and sporting clays with .410 shotguns, among other weapons.
On March 19, Detective Ito interviewed Matthew. He denied any romantic relationship with Jennifer. He acknowledged that he had left the "I love you" message for Jennifer and that Joel was aware it. Matthew claimed, however, that he explained to Joel that he was just joking around with Jennifer because she had complained that nobody ever told her that they loved her. Matthew denied that Joel was upset about the message.
Matthew told police that on the night of the murder, he met Lani Keiser Pacherie at her home in the San Fernando Valley about 7:00 p.m. Between 8:30 and 9:00 p.m., he tried unsuccessfully to locate his sister at a hospital in the valley. About 10:00 p.m., he met a prospective client at a restaurant called Bo's and Ros. About 10:30 p.m., he drove Ros to a house in Carson where they discussed insurance. Matthew's alibi was partially verified, but did not cover his whereabouts at the likely time of the murder.
On March 28, Matthew showed retired police officer William Wigodsky a flat police badge that he said he had found on the floor by Joel's computer. Wigodsky worked with Matthew. A few days later, Wigodsky told Matthew that the police department wanted the badge back. Matthew gave it back a few days after that.
Police also interviewed Bates several times. During an interview on March 20, Bates told police that she went upstairs when she got home because "I didn't want her [Jennifer] to let him come down with the baby [Jacob] and see his daddy." When this matter eventually went to trial, Bates testified the word "him" referred to Jacob, making her statement "I didn't want her to let him [Jacob] come down with the baby [Jacob] and see his daddy."
Later, in a deposition in a related insurance matter, Bates testified that after finding Joel, she "ran upstairs so Jennifer wouldn't come down." The questioning attorney then asked: "So Jennifer wouldn't come down?" Bates replied: "Yeah, Jennifer and the baby, to hear the shot." At trial, Bates claimed that when she said "to hear the shot," she meant "to see the body."
At trial, Bates gave the following account of the murder: On March 18, Jennifer told Bates that she, Joel and Jacob were going to have a "family night" that night. This was the first planned family night since Bates had moved in. About 3:30 p.m., Bates left the house to see a movie. She locked the sliding glass doors before leaving. Bates went to a 4:05 p.m. movie, then went shopping. She next went to a Koo Koo Roo restaurant and ordered food at 8:52 p.m. She did not like the food and left the restaurant between 9:00 and 9:15 p.m. She arrived home about 9:15 p.m.
Jennifer's car was in the driveway and the front door was locked. Bates let herself in and went to the family room to say hello. There, she saw Joel. She saw blood and believed that Joel had shot himself. She attempted to take his pulse. His body felt warm. Bates went upstairs to look for Jennifer and Jacob. She believed that she called out for Jennifer but was not sure. Bates went into the master bedroom, but not the master bathroom.
Having failed to find Jennifer and Jacob, Bates went back downstairs. There she called 911. She was not sure why she twice told the 911 operator that Joel had been killed. When she heard a helicopter overhead, she walked over and unlocked the sliding glass doors.
As soon as funeral arrangements began to be made, a rift developed between the Shanbrom family and Jennifer. The Shanbroms perceived Matthew as taking control of the funeral arrangements. There were soon disagreements over the funeral and burial. The funeral itself was acrimonious. Jennifer did not sit with the Shanbroms at the funeral and did not attend their family gathering after the funeral.
Detective Kraus followed Matthew, Jennifer, Bates and Jacob after the funeral. They went to a Marriott Hotel. Jennifer and Matthew went to room 1204. About 8:00 p.m., a hotel employee delivered a bottle of champagne and some food. About 15 minutes later a man in his fifties knocked on the door and entered. Detective Kraus heard laughter coming from the room.
Police had begun conducting surveillance on Matthew and Jennifer on March 20.
On March 24, and again on March 26, Bates contacted police to tell them that the padlock on the back gate was missing. Bates stated that only she and Jennifer had keys to the lock.
On March 26, Matthew called Detective McCartin and told him that he had found the padlock to the back gate underneath some wooden boards just below the gate. Jennifer confirmed that the lock was in fact the lock which had been on the gate on March 15, the last time she locked the gate. A key in her possession worked for the lock. A locksmith examined the lock and determined that it had not been tampered with.
Matthew soon began trying to collect Joel's insurance proceeds on Jennifer's behalf. On October 1, 1998, Jennifer received $314,997.31 as the beneficiary of Joel's police insurance through the LAUSD. At the time of the trial of this matter, the other two insurance companies had not paid Jennifer's claims. Lawsuits were pending.
Within a few days of receiving the LAUSD proceeds, Jennifer transferred $140,000 into a joint account which she had opened with Matthew.
In the months following Joel's murder, Jennifer gave varying accounts of her activities and observations on the night of the murder. In most versions, Jennifer stated that she stayed in the bathroom until Bates came home and found her in the bathroom.
In February 1999, Jennifer and Matthew were married. At the time, Matthew's 1984 marriage to Deborah Fletcher was still valid. A default judgment of dissolution of Matthew's marriage to Deborah was entered on October 10, 2001.
In an effort to solve the crime, police contacted the Federal Bureau of Investigation. Mark Safarik, a special agent with the Federal Bureau of Investigation assigned to the Behavioral Analysis Unit, performed an assessment and analysis of the crime scene in the instant case. He explained that violent crime scenes could be "very complex" and he examined them in a two-part process: the analytical component and the interpretive component. The analytical component looked at a violent crime scene from a behavioral perspective, including facts about the offender (i.e., motive and risk level), the victim (i.e., why was this person a victim), and the method of killing (i.e., the type of weapon). The interpretive component was a "critical" phase where the examiner applied what he had learned from other crime scenes, as well as research data collected by others. Safarik did not believe that his analysis constituted criminal profiling.
After visiting the crime scene and conducting an examination of the material applicable to the instant case, Safarik concluded that the crime scene at the Shanbrom residence was "staged." "Staging" refers to a behavior at a crime scene in which the offender intentionally tries to redirect law enforcement away from the offender. The offender perceives that the undisturbed crime scene will draw attention to them. The offender therefore tries to alter the crime scene so that a different motive appears.
Safarik offered the following reasons in support of his conclusion that the crime scene was "staged" in the instant case:
(1) "[T]here was an excessive amount of searching" and excessive ransacking which was disorganized and "inconsistent with a true search for valuables" since valuables were "clearly" visible but yet nothing was taken from the residence. The excessive ransacking and the lack of any items being removed from the residence was "totally disproportionate to the level of violence at [the crime] scene" (i.e., a murder caused by shotgun blasts to the head). This indicates that the crime scene was staged to mislead the investigators to believe the motive for the crime was a robbery or a burglary/robbery for financial gain, when, "in fact, it was a personal cause homicide."
(2) The fact the residence appeared to be occupied suggests that there would have been a search of the residence for other individuals who might have called the police after Joel was murdered with a loud weapon. There was not such a search in this case.
(3) A child's bedroom would not normally be ransacked in a search for valuables.
(4) Joel was a "security conscious" school police officer in that he "always would lock the doors and windows even when he was inside the residence." There was no evidence of a forced entry and yet according to Jennifer, two individuals, at least one who was armed, gained entrance into the residence.
(5) Jennifer's statement that Joel identified himself as a police officer was inconsistent with what friends and co-workers indicated Joel would have done in that circumstance. Also, such a statement by Joel was inconsistent with his position of remaining on the couch.
Danny Diaz, Joel's best friend, testified that Joel had told him that if he was confronted while not in uniform he would not identify himself as a police officer.
(6) Jennifer changed her statement as to when she heard Joel tell the intruder that he was a police officer. Initially, she stated she heard Joel identify himself as a police officer after the first shot. However, after the medical examiner concluded that the first shot would have incapacitated Joel, Jennifer changed her story and placed the first shot after the statement by Joel.
(7) The statement that Jacob was taking a bath with his toys in the bathtub at the time of the shooting was inconsistent with the fact the toys were found outside the bathtub, and the small amount of clear water in the bathtub. It was also inconsistent with Bates's description of Jennifer's usual method of bathing Jacob.
(8) While moving Jacob from one bedroom to the master bedroom, Jennifer failed to pick up the portable phone and call 911. She also failed to pick up and/or use the Walther .380 weapon. Such failures were inconsistent with her expressed level of fear.
(9) Jennifer heard the intruders come up the stairs and ransack the house, yet she did not hear her mother (Bates) come upstairs calling out for her and Jacob.
(10) A person stating, "Why did you do that" to another person implies that the shooting was not foreseen. But, there was no search of the residence for other occupants even though the risk level to the offenders had been significantly elevated. Instead, they remained in the house and ransacked rooms. And, even though the master bedroom was ransacked, no one checked the master bathroom door even though it was the only closed door in the house.
(11) The circumstances surrounding the lock to the gate in the backyard were problematic. The gate was unlocked, but the residents of the house said they did not unlock the gate. The lock was found undamaged. Also, if someone had entered the residence from the railroad tracks in the rear, it would have been easier to hop over the five-foot retaining wall. And, "There [was] no logical explanation for why the lock was removed from the fence and why on the initial search it was not located."
(12) The gun used in the murder was unusual. Of the over 13,000 homicides in Los Angeles between 1984 and 2000, only three were committed with a .410 shotgun, and none of those homicides involved a home invasion robbery. Because three shots were fired from the shotgun, the shooter at some point opened the weapon, removed the shells, and reloaded to fire again. The removal of the shells from the scene in a home-invasion robbery was unusual and suggested the killers thought they might be linked to the scene.
(13) The fact the sliding glass door was closed was inconsistent with someone fleeing the crime scene.
Agent Safarik reached the following conclusion: "The offender brought the weapon with the intention to shoot [Joel] Shanbrom. He shot Shanbrom immediately upon encountering him. As previously discussed, available information indicates that Shanbrom was asleep on the couch. [¶] The suddenness and ferocity of the attack, as observed by the fact that [Joel] was most likely asleep, as well as the number and location of the shots, indicates that the offender came to this residence for the express purpose of killing him. The nature and style of this murder was a personal one and [Joel] was specifically targeted."
In early 2002, a Grand Jury was convened. Bates testified pursuant to a grant of immunity. She took notes after each session. Those notes were later found in Matthew's house. In March 2002, following her Grand Jury testimony, Bates left Los Angeles for Oregon because "the heat is on and they are afraid she talks too much."
In February 2002, Jennifer and Matthew were arrested. Joel's police business card was found in Matthew's wallet behind his driver's license. More of these cards were found in the glove compartment of Matthew's car. Handcuffs engraved with Joel's name were also found in the glove compartment.
Matthew was placed in a cell with electronic monitoring, and his conversations were tape recorded. In one conversation, a fellow inmate asked Matthew: "Why you in?" Matthew replied: "I'm trying to find out." The inmate persisted, asking: "What the fuck you do?" Matthew replied: "A bad thing." The inmate began guessing possible crimes. After a few other crimes, the inmate asked: "Murder?" Matthew replied "Yeah." The inmate asked: "You try and kill your wife?" Matthew replied: "Cop." The inmate said: "Man, you killed a cop?" Matthew then said: "I didn't do it." The inmate said: "What." Matthew added: "I'm innocent." Laughter is heard on the audiotape of the conversation. The inmate says: "That's what we all say." More laughter is heard.
Matthew and Jennifer each testified on their own behalf and denied any involvement in Joel's murder. Matthew presented an alibi defense and Jennifer maintained she was upstairs with Jacob at the time of the murder.
Matthew denied having a romantic relationship with Jennifer before Joel died. He claimed the romantic relationship started in June 1998. Matthew testified he and Jennifer did not discuss marriage until September 1998.
Matthew explained that in the jailhouse conversation which was tape-recorded "I didn't feel that I was admitting that I had killed Joel. They asked me what I was in for, why was I arrested. That doesn't mean that I confessed to - I killed Joel. So that's my comment on that." On cross- examination, Matthew maintained the tape recording was "an incomplete conversation" and "it doesn't matter what's on the tape" and "you can't hear everything on the tape that was being said." Matthew claimed he was not asked, "What the fuck you do?" during the conversation. Rather, Matthew maintained he was asked, "What did they think you do" and that was when he responded, "A bad thing." Matthew felt that he could not adequately explain the tape recording "because you can't hear everything that's being said there." According to Matthew, "I'm not saying anything was deleted [from the tape recording]. I'm saying that the tape is so inaudible, you can pick things out of it, but you don't have everything in there."
Matthew testified that on the evening of Joel's murder he left Gleit's condominium at 6:30 p.m. and arrived at the Pacherie residence at approximately 7:15 p.m. Mr. Pacherie was not at home so Matthew explained the insurance documents to his wife Lani and left the Pacherie residence at approximately 8:00 p.m. He then went to St. Joseph's Hospital to give his sister Deborah insurance documents. Deborah was not at the hospital so he called her from the pay telephone in the waiting area and left her a message. Matthew then went to Rosby Teopaco's restaurant at 8:45 p.m. He left the restaurant with Teopaco at approximately 9:30 p.m. and together they proceeded to Percy David's house in Carson where they arrived shortly after 10:00 p.m. They left the David residence about 11:15 p.m. Matthew dropped Teopaco off at home shortly before midnight and arrived home himself shortly after midnight.
Alain Pacherie testified at trial that he was supposed to meet with Matthew at 7:00 p.m., but when Matthew had not shown up by 7:20 p.m., he left. When he returned home about two hours later, his wife Lani told him that Matthew had dropped off some papers. Lani (Pacherie) Keiser testified that Matthew was not at her house on March 18.
Matthew's sister confirmed that she spent part of March 18 at a hospital visiting a friend. About 8:00 p.m., while she was at dinner, she received a call from Matthew which seemed to come from the hospital.
Rosby Teopaco confirmed that Matthew came to his restaurant, but not until about 10:00 or 10:30 p.m. on March 18, and that they drove to Teopaco's sister's house in Carson, where they spent an hour discussing insurance. Matthew then drove Teopaco home. Teopaco's brother-in-law placed Matthew's and Teopaco's arrival time about 1:30 a.m. His sister placed it between 1:15 and 1:30 a.m.
Jennifer also denied she and Matthew were romantically involved either before or at the time of Joel's death. Following Joel's death, however, Jennifer and Matthew commenced a romantic relationship and ultimately married. They had two children together and Matthew adopted Jacob and changed his name to "Jacob Fletcher." Jennifer acknowledged transferring approximately $140,000 of the insurance proceeds she had received following Joel's death into a joint account she held with Matthew.
On the night of the murder, Joel and Jennifer planned to have "family night," which involved them and Jacob spending time together. Jennifer's mother, Bates, planned to go to the movies. Jennifer picked Joel up from work about 4:00 p.m. They then picked Jacob up from preschool. They picked up ice cream from 31 Flavors and returned home about 5:30 p.m. Bates was not there. They ordered a pizza for dinner. They put on a video for Jacob to watch. Joel opened the sliding glass door because he was hot. They then ate pizza and ice cream. Jacob eventually became bored with his video, so Joel went to the office to make some telephone calls and work on the computer.
At approximately 8:00 p.m., Jennifer took Jacob upstairs and prepared to give him a bath. She turned on the heater in Jacob's room so that it would be warm after the bath. She also turned on his night light and laid out his pajamas, and then closed the bedroom door. While Jacob was getting undressed in his room, Jennifer made a telephone call and then went downstairs to take care of some laundry. Jennifer "peeked" around the corner and Joel was still working in the office. She then went back upstairs and yelled down to Joel that he could watch whatever he wanted to on television, as she would be giving Jacob his bath.
Jacob did not like much water in the tub, so Jennifer only filled it up a few inches. She let Jacob play in the tub for a while before she washed him. When Jacob finished playing with his toys, Jennifer removed them from the tub so that she could bathe Jacob without him being distracted by the toys. She would take all the toys out and "just toss them on the floor."
Jennifer then heard what she thought was Joel's voice or perhaps a sound from the television loudly state, "I'm a cop" or "I'm a police officer." After that, she "heard a pop, pop sound." Jennifer again thought the sound came from the television. Then she heard a man with a deep voice shout, "Why'd you do dat?" Jennifer then heard another pop and knew something was wrong. Jennifer grabbed Jacob from the tub. Jennifer smelled gunpowder when she opened the door. She knew she was in danger and wanted to protect Jacob. Jennifer quietly walked into the master bathroom and locked the door. She took a towel and tried to conceal Jacob, and then they hid in the shower. She cried and told Jacob to be quiet because there were "bad people" in the house. She could hear crashing in the house. When it stopped, Jennifer heard a door shut and then heard nothing. After a while, Jennifer heard somebody running up the stairs and she got scared. Jennifer later learned that it was her mother who ran up and then down the stairs.
Eventually, a helicopter was flying over the house, shining its light, and it sounded like several people ran into the house. Police ordered her to open the door, which she eventually did after an officer placed his badge under the door to prove it was, in fact, the police. Officers then escorted Jennifer downstairs and out of the house. Because Jacob was naked, an officer went into his room to get him some clothes.
Appellants offered the testimony of Brent Turvey, a forensic consultant, who examined and criticized Safarik's report and his conclusion that the crime scene was staged. They also offered the testimony of Thomas Streed, a forensic behavioral scientist, who examined the evidence in the case and concluded that the crime scene had not been staged.
Lawrence Baggett, a forensics ballistics and explosives expert, opined that Joel was not laying back when shot. He also opined that the wound to the cheek was inflicted first, then the wound to the back of the head, then the wound to the eye.
Discussion
1. Denial of "advisory" counsel - Matthew
Matthew contends that the trial court abused its discretion when it refused to allow retained counsel to act as "advisory" counsel, but instead deemed her to be "stand-by" counsel. He further contends that the court's ruling interfered with his relationship with his retained counsel, Brown, in violation of his constitutional right to assistance of counsel and due process of law.
We see no violation of Matthew's constitutional right to representation. "A defendant in a criminal case possesses two constitutional rights with respect to representation that are mutually exclusive. A defendant has the right to be represented by counsel at all critical stages of a criminal prosecution. [Citations.] At the same time, the United States Supreme Court has held that because the Sixth Amendment grants to the accused personally the right to present a defense, a defendant possesses the right to represent himself or herself. [Citation.]" (People v. Marshall (1997) 15 Cal.4th 1, 20, emphasis added.)
Here, appellant chose to exercise his right to represent himself. He therefore had no constitutional right to counsel, and was not in fact represented by counsel. There was no relationship for the trial court to interfere with.
Appellant contends that he has a constitutional right to employ counsel of his choice. In support of this contention, appellant relies on Chandler v. Fretag (1954) 348 U.S. 3; Wheat v. United States (1988) 486 U.S. 153; People v. Crovedi (1966) 65 Cal.2d 199; and People v. Jones (2004) 33 Cal.4th 234. His reliance is misplaced. All of those cases involve a defendant's right to be represented by the attorney of his choice when he is paying for that attorney. Matthew did not seek to be represented by Brown. Nothing in the above cases suggests that a self-represented defendant who is able to pay for an attorney has a right to have that attorney act in any capacity the defendant chooses. At most, the reasoning of those cases suggest that a self-represented defendant has a right to the attorney of his choice in the capacity the trial court has deemed appropriate. Here, that capacity was stand-by counsel. Matthew had Brown in that capacity.
The trial court made it clear that if Matthew wished to be represented by Brown, the trial court would allow that representation.
We also see no abuse of discretion in the trial court's denial of Matthew's request that Brown be allowed to act as "advisory" counsel. Matthew's request made it clear that he sought to have Brown participate in the trial. He explained that he wanted "advisory" counsel for "the day to day things of court to have someone there that I can talk to and work together to get those things prepared." He also stated: "I guess what I'm asking is to have someone that I can be in contact through the course of the trial. If she is sitting out in the audience, that hampers me being able to defend myself." Thus, regardless of the label Matthew placed on Brown, he was seeking to have her be a participant in the trial, and in effect a co-counsel.
On appeal, Matthew continues to insist that he wanted "advisory" counsel. His contentions on appeal again show that he was seeking to have Brown participate in the trial. For example, he claims that if Brown had been sitting next to him, she could have "advised" him to state objections made by Jennifer's attorney as his own as well as "advising" him regarding objections in other areas of examination. It is difficult to imagine how Brown could have "advised" him in this manner during the examination of a witness. She could certainly have told him when to object and on what grounds, but that is not advice, that is telling him what to say. (See People v. Bradford (1997) 15 Cal.4th 1229, 1369 [counsel acts in a "primary role" not an advisory one when he makes objections or instructs the defendant what to say next].)
"Allowing a represented defendant to share legal functions with the attorney is generally undesirable." (People v. Frierson (1991) 53 Cal.3d 730, 741.) "Undesirable tactical conflicts, trial delays, and confusion often arise when a defendant who has chosen professional representation shares legal functions with his attorney. (See, e.g., United States v. Mosely (6th Cir. 1987) 810 F.2d 93, 98; United States v. Kimmel (9th Cir. 1982) 672 F.2d 720, 721; State v. Gethers (1985) 197 Conn. 369, fn. 25 [497 A.2d 408, 422]; Moore v. State (1978) 83 Wis.2d 285 [265 N.W.2d 540, 546].)" (People v. Hamilton (1989) 48 Cal.3d 1142, 1162.) Thus, "[t]he court's discretion to authorize such an arrangement is therefore 'sharply limited,' and may be exercised only upon a 'substantial' showing that it will promote justice and judicial efficiency in the particular case." (People v. Frierson, supra, 53 Cal.3d at p. 741.)
Matthew has not made such a substantial showing.
2. Sufficiency of the evidence – Matthew
Matthew contends that there is insufficient evidence to support his conviction for murder.
In reviewing the sufficiency of the evidence, "courts apply the substantial evidence test. Under this standard, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, internal quotation marks, italics, and citations omitted.)
"Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. Thus, if 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." (People v. Jones (1990) 51 Cal.3d 294, 314, internal citations omitted.)
"The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." (People v. Stanley (1995) 10 Cal.4th 764, 792-793, internal quotation marks and citations omitted.)
Matthew made statements which could reasonably be understood as admitting that he killed Joel. While Matthew was in jail, a fellow inmate asked him: "Why you in?" Matthew replied: "I'm trying to find out." The inmate persisted, asking: "What the fuck you do?" Matthew replied: "A bad thing." The inmate began guessing possible crimes. After a few other crimes, the inmate asked: "Murder?" Matthew replied: "Yeah." The inmate asked: "You try and kill your wife?" Matthew replied: "Cop." The inmate said: "Man, you killed a cop?" Matthew then said: "I didn't do it." The inmate said: "What." Matthew added: "I'm innocent." Laughter is heard on the audiotape of the conversation. The inmate says: "That's what we all say." More laughter is heard.
Matthew was evasive when asked what he was charged with, then when asked what he did, replied in the affirmative to murder. When asked if he tried to kill his wife, he did not deny that he had tried to kill anyone. He corrected the identity of the victim from wife to cop. The jury could reasonably have understood these statements as admitting guilt. It is true that shortly after making these incriminating statements, Matthew denied the killing, but laughter is heard on the tape of the conversation. Thus, the jury could reasonably have disregarded the denial as not in earnest.
Statements by Diana Bates indicated that a male was in the house when she arrived and found Joel's body. In a police interview, Bates said that she went upstairs to see Jennifer after finding Joel's body: "I didn't want her to let him come down with the baby and see his daddy." (Italics added.) The "him" could not logically have been Joel or Jacob. In a deposition in the related insurance claim case, Bates said that she went upstairs after finding Joel so that Jennifer would not come down. The attorney asked: "So Jennifer wouldn't come down?" Bates replied: "Yeah, Jennifer and the baby, to hear the shot." This latter statement creates an inference that the male was the shooter, or one of the shooters. Matthew correctly points out that Bates attempted to explain away these statements by claiming that the "him" in the first statement referred to baby Jacob and that when she said "hear the shot" she meant "see the body." The jury was not required to accept these explanations.
Other evidence supports an inference that the male in the house was Matthew. Matthew's alibi at trial differed from the one he provided police immediately after the crime, and was contradicted by the people with whom he supposedly spent the night. At trial, Matthew claimed that on March 18, the night of Joel's murder, he was at the Pacherie residence explaining insurance documents to Lani Pacherie from about 7:15 p.m. to 8:00 p.m. and at Teopaco's restaurant from 8:45 p.m. to 9:30 p.m. Lani (Pacherie) Keiser testified that Matthew was not at her house on March 18. Teopaco testified that Matthew did not arrive at his restaurant until 10:00 or 10:30 p.m. that night.
A few days after the murder, Matthew showed Wigodsky Joel's badge, and claimed to have found it near Joel's computer. Jennifer told police that Joel's badge was in the house the evening of the murder. Police had searched the house for evidence after the murder and had specifically looked for Joel's badge. They did not find it.
As detailed in the facts section of this opinion, Matthew had two strong and intertwined motives to kill Joel. Matthew was romantically involved with Jennifer and Joel's death would provide Jennifer with over one million dollars in life insurance proceeds. A few days before the murder, Joel confronted Matthew about the affair. Killing Joel would provide Matthew and Jennifer with money and permit the two to pursue their romantic relationship openly.
Joel was killed with a shotgun, an unusual weapon for a murder. Matthew was familiar with shotguns. There was no sign of forced entry into the house, suggesting that the killer was known to the house's occupants. Matthew's "discovery" of the padlock in the Shanbrom's backyard, eight days after the yard was subject to an extensive search, was suspicious.
3. Special circumstances – Matthew
Matthew contends that there is insufficient evidence to support the lying-in-wait and financial gain special circumstances.
We review the sufficiency of the evidence in accord with the rules set forth in section 2, supra.
a. Lying-in-wait
"The lying-in-wait special circumstance requires proof of 'an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage.' [Citations.]" (People v. Jurado (2006) 38 Cal.4th 72, 119.) No particular period of waiting time is required, as long as it is sufficient to demonstrate that defendant had a state of mind equivalent to premeditation or deliberation. (People v. Poindexter (2006) 144 Cal.App.4th 572, 585.)
Here, Matthew found the lock to the back gate under suspicious circumstances. There was no sign of forced entry into the house, and the only unlocked entrance to the house was the sliding glass door behind the couch. The jury could reasonably have inferred that Matthew unlocked the back gate and surreptiously entered the Shanbroms' backyard through the back gate, entered the house through the sliding door and shot Joel from behind while he was lying on the couch. These actions show concealment, a period of watching sufficient to show premeditation, and a surprise attack. (See People v. Hardy (1992) 2 Cal.4th 86, 163-164 [sufficient evidence to support lying-in-wait finding where defendants drove to victims' house in early morning hours, parked on side street to avoid drawing attention to their activities, entered home under cover of darkness at time that victims could reasonably be expected to be asleep and killed victims in their beds; no need to show that the defendants actually watched victims and waited a moment before shooting them]; see also People v. Moon (2005) 37 Cal.4th 1, 22-23.)
There was also substantial evidence to support the special circumstance if the jury believed that Matthew aided and abetted Jennifer. There is ample evidence to show concealment, watching and waiting and a surprise attack by Jennifer. She arranged a "family night" at home, concealing her purpose of getting Joel alone for the killing. While the family was alone, Jennifer went upstairs, but came downstairs at least once to check on Joel. This was a period of watching and waiting. Once Joel was lying on the couch watching television, the surprise attack from behind occurred.
A special circumstance finding for an accomplice who was not the actual killer requires only that the prosecution prove that the accomplice had an actual intent to kill the victim. (§ 190.2, subd. (c); People v. Cleveland (2004) 32 Cal.4th 704, 729.) As we discuss in section 2, supra, Matthew had two strong reasons to wish Joel dead. Given the strong evidence, planning and preparation by Jennifer, it is reasonable to infer that if Matthew was involved at all, he knew the nature of Jennifer's plan and shared her intent to kill.
b. Financial gain
The financial gain special circumstance requires proof that "the victim's death is the consideration for, or an essential prerequisite to, the financial gain sought by the defendant." (People v. Bigelow (1984) 37 Cal.3d 731, 751.) "'[T]he relevant inquiry is whether the defendant committed the murder in the expectation that he would thereby obtain the desired financial gain [citation] – as, for example, in the killing of a victim in a murder for hire [citation], or in an attempt to secure the proceeds of a life insurance policy covering the victim [citation] or to avoid a debt owing to the victim [citation].'" (People v. Mickey (1991) 54 Cal.3d 612, 678, italics omitted.)
Here, Joel had a very large amount of life insurance, half of it acquired after Jennifer met Matthew. When Joel stopped paying premiums for one of the earlier policies, Jennifer went to considerable efforts to maintain the life insurance. Once Joel was dead, Matthew had total authority from Jennifer to attempt to recover the insurance proceeds. Jennifer eventually shared at least half of the insurance proceeds with Matthew. It was more than reasonable for the jury to infer that the two worked together to kill Joel for the insurance proceeds.
4. Conspiracy – Matthew
Matthew was charged with one count of conspiracy, with a target offense of "murder for the purpose of defrauding insurance companies" and other similar agencies. He contends that the jury instructions given by the trial court on this charge were confusing and could have resulted in the jury believing that it was deciding two separate conspiracies: (1) conspiracy to commit murder and (2) conspiracy to commit insurance fraud. He also contends that the crime of conspiracy to commit murder cannot stand because there are no overt acts which took place before the murder. We do not agree.
As respondent correctly points out, there is no crime of murder for purposes of insurance fraud. The allegations of the complaint show that the object of the conspiracy was two crimes: murder in violation of Penal Code section 187 and insurance fraud in violation of Penal Code section 550. Thus, the trial court's comments and instructions concerning conspiracy which referred to the crimes of "murder and/or insurance fraud" and to "murder or insurance fraud" were consistent with the allegations of the complaint. The comments, instructions and verdict forms made it clear that only one count of conspiracy was charged against each defendant, but that two crimes were involved.
The complaint alleges that the target offense of the conspiracy is "murder for the purpose of defrauding insurance companies, the State of California (CalPERS) and the Los Angeles Unified School District in violation of section 187 and 550 of the Penal Code." A district attorney may allege that there is one conspiracy with multiple objects. (People v. Hess (1951) 104 Cal.App.2d 642, 670-671.) It is within the district attorney's charging discretion whether to charge one or multiple counts of conspiracy. (People v. Vargas (2001) 91 Cal.App.4th 506.)
The special verdict form made it clear that the jury had to find whether each crime occurred. The form read: "We further find that defendant, MATTHEW FLETCHER, conspired to commit the crime or crimes opposite the designation of which there has been placed an "X". [¶] ___ 1. MURDER, in violation of Penal Code Section 187(a) [¶] ___ 2. INSURANCE FRAUD, in violation of Penal Code section 550." Certainly, it would have been possible for the jury to find true only one of the objects of the conspiracy. That is not what occurred, however. The jury placed an X on both lines on the form, showing that it found Matthew guilty of both conspiracy to commit murder and conspiracy to commit insurance fraud.
Matthew further contends that none of the overt acts found true by the jury occurred before the murder, as is required. Matthew is mistaken.
"'[A]n overt act is an outward act done in pursuance of the crime and in manifestation of an intent or design, looking toward the accomplishment of the crime.' [Citations.]" (People v. Zamora (1976) 18 Cal.3d 538, 549, fn. 8.) "The overt act need not be criminal in itself [citation], and may be merely a part of preliminary arrangements for commission of the ultimate crime [citations]." (People v. Buono (1961) 191 Cal.App.2d 203, 223.)
As Matthew acknowledges, the jury found true in overt act VII that Jennifer, Matthew and Bates "counseled together to create an alibi for each person, and to 'stage' a crime scene on March 18, 1998 at 17298 Raymer Street, Northridge."
Matthew contends that the prosecutor consistently argued that these events occurred after Joel was killed. We will assume for the sake of argument that appellant is correct. The jury was not bound by the prosecutor's argument. We see ample evidence from which a jury could have inferred that the counseling occurred before the murder. Bates's absence from the house the evening of murder began before the murder and if planned, could only have been planned before the murder. Given that Bates left the house because Jennifer wanted to have a first-ever "family night," it is reasonable to infer that her absence, which was her alibi, was agreed upon before the murder. Jennifer suggested to Joel that he watch television, an activity which planted him near the only unlocked door in the house. Again, if planned, the positioning could only reasonably have been planned before the murder. This positioning could certainly be considered part of the crime scene staging.
5. Third party guilt - Matthew
Matthew contends that the trial court erred in excluding evidence of third party guilt, and that that error amounted to a denial of a fair trial under the reasoning of Holmes v. South Carolina (2006) 547 U.S. 319 [126 S.Ct.1727]. We see no error.
Appellants sought to introduce evidence that neighbors told police that they had seen an unknown man or men on Raymer Street on the evening of the murder. One witness reported seeing a young Hispanic or African-American man, about five feet, eight or nine inches tall, while police helicopters were overhead. Another witness reported seeing a six-foot tall African-American man on the street about 7:30 p.m. A third witness reported that someone attempted to open his door about 9:00 p.m. A fourth witness encountered an African-American man in a uniform about 5:00 p.m. and again at 6:00 p.m. A fifth witness stated that he encountered a young African-American man on the street while it was still daylight. This witness subsequently identified the man as Donald Moffatt.
It later developed that Moffatt had come to the neighborhood with Ed Lewis, who installed a burglar alarm at a house on Raymer Street in the afternoon of March 18. Both men were members of the East Coast Crips gang.
Appellants also sought to introduce evidence that possible East Coast Crips had committed a string of robberies in the area by pouring liquid into a home's burglar alarm to disable it and then burglarizing the house. These were not home invasion robberies. Appellants further sought to introduce evidence that the phrase "Why did you do dat for?" which Jennifer claimed to have overheard following the shooting, showed that the speaker was someone from the South Central Los Angeles Area or was African-American. Appellants' expert also would have testified that the use of mixed ammunition is common in gang shootings. He would also have testified that members of the East Coast Crips and other African-American gangs had conducted home invasion robberies in the area.
The trial court relied on well-settled California law to exclude evidence related to the two men's presence in the neighborhood. Under California law, a defendant may offer evidence of third party culpability if that evidence is capable of raising a reasonable doubt of the defendant's guilt. (People v. Hall (1986) 41 Cal.3d 826, 833.) Evidence which shows only that a third party had a motive or opportunity to commit the crime, without more, does not raise a reasonable doubt about the defendant's guilt. (Ibid.) There must be direct or circumstantial evidence linking the third person to the actual commission of the crime. (Ibid.; accord, People v. Gutierrez (2002) 28 Cal.4th 1083, 1136-1137; People v. Lewis (2001) 26 Cal.4th 334, 372.)
There was simply nothing to link Moffett or Lewis to the commission of the crime. Even accepting the dubious assertion of appellants' expert that the phrase heard by Jennifer showed that the speaker was from South Central or was African-American, that is not enough to create a reasonable inference that Moffatt or Lewis was the speaker. The mere fact that an African-American man is seen in a neighborhood where a crime is committed by an unseen African-American male does not make the observed man a suspect. This is true even if the man belongs to a gang and there have been home invasion robberies by his and other gangs in the neighborhood, at least in the absence of evidence that the man had participated in those robberies.
The trial court also found that even if the evidence were admissible as evidence of third party guilt, it would be inadmissible under Evidence Code section 352 because it would confuse the jury. We agree.
The introduction of this evidence would have consumed an undue amount of time. Appellants identified five percipient witnesses and three expert witnesses. The prosecution would undoubtedly have called additional witnesses. The topic had a high degree of potential for confusion. There was evidence that Moffat's and Lewis's gang committed home invasion robberies, but that other gangs did as well. There was no evidence that Moffat and Lewis were robbers. There was evidence of burglars with a distinctive modus operandi involving burglar alarms, but one which did not match the facts of this case. Further, although Moffat installed burglar alarms for a living, there was nothing to link Moffatt or Lewis to those burglaries. In the absence of evidence linking the two men to the other crimes, evidence of those crimes would just confuse the jury.
Matthew's reliance on Holmes to show error is misplaced. In that case, the United States Supreme Court considered a rule that excluded evidence of third party guilt on the basis of the strength of the prosecution's evidence, and held the rule arbitrary and a violation of a defendant's right to a fair trial because it did not consider the probative value or potential adverse effects of admitting the defense evidence of third party guilt. That was not the rule applied here. Further, Holmes made it clear that the Constitution permits the exclusion of evidence of third party guilt if the evidence does not sufficiently connect the third party to the crime or if the probative value is outweighed by an undue risk of harassment, prejudice or confusion of the issues. (Holmes, supra, 547 U.S. at pp. 325-327 [126 S.Ct. at pp. 1732-1733].) That was the basis of the exclusion of third party evidence in this case.
6. Instruction on third party guilt - Jennifer
Jennifer contends, correctly, that her statements to police and subsequent trial testimony about hearing an intruder constituted evidence of third party guilt. She further contends that the trial court had a sua sponte duty to instruct the jury "as to the proper way that this evidence should have been viewed, particularly in relation to the issue of whether the jurors may have had a reasonable doubt in light of this evidence." Matthew joins in the claim.
We will assume for the sake of argument that the trial court erred in failing to instruct the jury that appellants were not required to prove beyond a reasonable doubt that a third party committed the charged offenses, and that in order for appellants to be entitled to an acquittal, evidence of third party guilt need only raise a reasonable doubt of appellants' guilt. Reversal is not warranted for a failure to give third party culpability instructions when the jury was fully instructed on the requirement of proof beyond a reasonable doubt and was fully informed of the defense theory (here, that intruders shot Joel) through the arguments of counsel; in such circumstances, there was no reasonable probability the verdict would have been different had third party culpability instructions been given. (See People v. Earp (1999) 20 Cal.4th 826, 886; People v. Watson (1956) 46 Cal.2d 818, 836.) That was the situation here. Further, although we do not agree with Jennifer that the failure to give such an instruction implicated her federal constitutional rights, we see no reasonable possibility that the verdict would have differed if such instructions had been given. (See Chapman v. California (1967) 386 U.S. 18 [setting forth standard of review for federal constitutional error].)
7. Profile evidence
Jennifer contends that the testimony of Agent Safarik was profile evidence, was not a proper subject for expert testimony, was not based on rational inferences and was demonstrably false. Matthew joins in this claim.
"A profile ordinarily constitutes a set of circumstances - some innocuous - characteristic of certain crimes or criminals, said to comprise a typical pattern of behavior. In profile testimony, the expert compares the behavior of the defendant to the pattern or profile and concludes the defendant fits the profile." (People v. Prince (2007) 40 Cal.4th 1179, 1226.) Perhaps the most frequently cited example of a profile is a drug courier profile, a compilation of characteristics believed to be typical of persons unlawfully carrying drugs. (People v. Robbie (2001) 92 Cal.App.4th 1075, 1084.)
"'Profile evidence' . . . is not a separate ground for excluding evidence; such evidence is inadmissible only if it is either irrelevant, lacks a foundation or is more prejudicial than probative." (People v. Smith (2005) 35 Cal.4th 334, 357.) Profile evidence is irrelevant when there is nothing to tie the defendant to the crime. "Profile evidence is more prejudicial than probative when the conduct or matter that fits the profile is as consistent with innocence as guilt." (Ibid.)
None of Safarik's testimony constituted profile testimony as described in Prince and Smith. At no point did Safarik provide a typical pattern of behavior of a murderer and compare appellant's behavior to that pattern.
Safarik did provide a profile of a typical burglar and did opine that the person who shot Joel and ransacked the house did not fit that profile. Such evidence does not suffer from the weaknesses of the profile evidence described above, that is, it does not suggest that "criminals act in a certain way; the defendant acted that way; therefore, the defendant is a criminal." (People v. Robbie, supra, 92 Cal.App.4th at p. 1085)
We find such testimony to be the proper subject of expert testimony. A layperson lacks the knowledge and experience to determine how common it is for a burglar to dump out drawers, search children's rooms and close the doors of houses they have burgled. (See Evid. Code, § 801, subd. (a).) Knowledge of typical burglar behavior assists the jury in evaluating whether the ransackers were burglars or fakers.
Safarik also provided another form of "profile" evidence: he described some characteristics of the unidentified person he believed committed the murder. The person had attempted to make the house look burglarized to divert suspicion from his true purpose and so had a personal motive to kill Joel. This description, too, is often referred to as a profile, but it is a psychological profile of an individual criminal, not a description of the common behaviors of those engaged in a particular crime. (See Cervantes v. Jones (7th Cir. 1999) 188 F.3d 805, 811-812 [FBI "profile" showed that victim's killer had low socio-economic status, was at least 30 years old, was an alcohol or drug abuser and had personalized anger toward the victim].)
The purpose of these profiles is to identify suspects in a particular crime. We can find no case in which such a profile was introduced as evidence of guilt. The prosecutor did not lay any foundation for the admission of this evidence. We doubt that the proponents of such profiles can lay a sufficient foundation for their admission as evidence of guilt in any case. According to the American Psychological Association's Monitor in Psychology, Volume 35, No. 7 July/August 2004, the results of a controlled study conducted in 1990 showed that FBI profilers did not do better than police detectives trained by the FBI, other police detectives, clinical psychologists or students in writing profiles of murder suspects. To give one well-known example of an inaccurate FBI profile, the FBI profile of the Unabomber described him as uneducated. The actual Unabomber had a Ph.D. in mathematics.
In this study, published in Law and Human Behavior (Vol. 14, No. 3), Anthony Pinizzotto, Ph.D. -- formerly of Georgetown University, now with the FBI's Behavioral Science Unit -- and Norman Finkel, Ph.D., of Georgetown University, tested a group of FBI profilers, police detectives trained by the FBI, other police detectives, clinical psychologists and students. The researchers gave each group detailed case materials from two solved crimes (a murder and a rape), asked the participants to write profiles of the type of people likely to commit such crimes, and then compared the profiles with the actual, convicted offenders. The results were mixed. The trained profilers wrote longer and more detailed profiles, and their profiles of the rapist were more correct than any other group's. In the murder case, however, they fared no better on average than the nonprofilers did. (http://www.apa.org/monitor/julaug04/profiling.html)
We see no harm to Jennifer in the admission of the psychological profiling in this case, however. It is simply common sense that a person would fake a crime to divert suspicion from his true purpose. Similarly, if the killer was not a burglar, the most reasonable inference is that the killer's motivation was personal, that is, it arose out of some relationship or prior contact with the victim.
Jennifer also contends that Safarik's testimony was not based on rational inferences and was demonstrably false.
Her primary complaint is Safarik created a profile of what she describes as the "reasonable" burglar, but not all burglars will act reasonably. According to Safarik, a burglar would not carry a shotgun, stay in the house after firing three shotgun blasts, fail to search the house for other occupants, open drawers in a child's room, undertake excessive ransacking, leave behind valuables in plain sight, and close the door when he left. We agree that not all burglars will display every characteristic described by Safarik. Some burglars may, for example, have an irrational belief that valuables are hidden in children's rooms, and so search those rooms. Others may close the door when they leave out of unconscious habit. If Safarik had testified that the ransacker in this case deviated from a typical burglar in only one or two ways, it might not be reasonable to conclude that the ransacker was not a burglar. Many such deviations, as was the case here, has a higher degree of probative value.
Jennifer devotes a considerable portion of her argument to attacking Safarik's profile of a typical burglar. For example, she attacks Safarik's claim that a burglar would not be likely to stay in a house after firing a shotgun because he would be concerned about neighbors hearing the noise. She contends that a shotgun is not that much more noisy than another gun and so Safarik's argument is absurd. Safarik's testimony did not imply that a burglar would stay in a residence after firing a slightly quieter handgun but would leave after firing a louder shotgun. The essence of his testimony is that gunshots attract attention, causing burglars to flee. This is not absurd.
Jennifer also complains that Safarik created a "reasonable" victim profile. She overstates her case here. Safarik testified that he thought a victim who was genuinely afraid would not pass a phone and gun on their way to a hiding place without picking those items up. This is not a profile. We do agree that Safarik failed to provide an adequate basis for his opinion. Given that Safarik acknowledged that not all victims will behave in the same manner, however, we see no harm to Jennifer from his testimony.
Jennifer attacks Safarik's reliance on various other factors as a basis for believing that the crime scene was staged, including inconsistencies in her account of the crime, the fact that the Shanbrom house was located in a nice neighborhood, and the fact that the door was unlocked. None of these factors in isolation would support an inference of staging. However, the aggregate of many small anomalies would. That was the case here.
8. Failure to investigate Detective McCartin's waving - Jennifer
Jennifer contends the trial court erred in failing to inquire whether Detective McCartin improperly communicated with the jury during trial when he allegedly waved to the jurors as they exited the courtroom. Matthew joins in the claim.
During the testimony of Dr. Vladimir Levicky, a deputy medical examiner, the following occurred during a conference at the bench regarding the doctor's testimony:
[MR. BERNSTEIN]: . . . Additionally, while we are up here, my client [Jennifer] informs me, Jennifer informs me that yesterday while [Matthew] Fletcher and I were conferring and the deputies were hustling her out, so she wasn't able to tell me anything at that time, that Officer McCartin was standing in the back of the courtroom waiving [sic] bye-bye to all the jurors as they filed by.
THE COURT: Well, I have not seen that. Since I have not seen that-
MR. BERNSTEIN: I would appreciate the court doing something while we have an opportunity to discuss it with Detective McCartin and make sure he understands the court's admonition.
THE COURT: I will ask Mr. Jonas [the prosecutor] to convey that to Detective McCartin because I have not seen anything and nothing else has been reported to me other than the statement of your client. There is nothing, no reason for me to take any action except to ask [the prosecutor] to take this up with Mr. McCartin.
Is there anything else you wish to say?
The parties resumed their discussion of Dr. Levicky's testimony.
Appellants did not ask that the trial court make an inquiry into whether Detective McCartin was communicating to the jurors by waving good-bye on one occasion. The trial court did not make such an inquiry sua sponte. We see no need for an inquiry. Even assuming that jurors saw the wave, it is impossible to conceive that such an isolated incident in a trial of this length could have improperly influenced any juror to appellants' detriment.
We doubt that any juror noticed any waving. At the beginning of the trial, the jurors were specifically admonished to immediately report any improper contact to the trial court so a hearing could be held, and to "follow [the] admonition strictly." Not a single juror or alternate juror complained of any improper contact or "waving" by Detective McCartin.
Jennifer's attorney requested the trial court do "something" to make sure Detective McCartin understood the court's admonition not to have any contact with the jurors. The trial court effectively complied with the request by instructing the prosecutor to convey the court's admonition to Detective McCartin. It seems that the prosecutor's action was successful, as there were no further reports of the detective communicating with the jurors in any way. Appellants are not entitled to any relief on this appeal.
9. Prosecutorial misconduct
Jennifer contends she was denied due process of law under the federal Constitution when the prosecutor engaged in misconduct during argument by "fictionalizing the manner in which the crime occurred" and thus arguing "facts that were not in evidence." Jennifer claims that four portions of the prosecutor's argument were not supported by the evidence. She also argues that the prosecutor committed misconduct by asking a rebuttal witness an improper question. Matthew joins in the claim.
Appellants are precluded from raising issues concerning the prosecutor's argument on appeal since they failed to object or request an admonition in the trial court. In the case of the question, appellants did object and the objection was sustained, but appellants failed to request an admonition. A defendant generally cannot complain on appeal of alleged misconduct by a prosecutor during argument at trial unless in a timely fashion - and on the same ground - the defendant made an assignment of misconduct and requested that the jury be instructed to disregard the impropriety. (People v. Berryman (1993) 6 Cal.4th 1048, 1072; see People v. McDermott (2002) 28 Cal.4th 946, 1001; People v. Hill (1998) 17 Cal.4th 800, 820.) Thus, respondent submits, appellants have waived their claims of alleged prosecutorial misconduct.
There are three exceptions to the general waiver rule. A defendant need not object or request an admonition if either would be futile. A defendant need not request an admonition if it would not cure the harm caused by the misconduct. A defendant also need not request an admonition if the court overrules the defendant's objection and the defendant consequently has no opportunity to request an admonition. (People v. Hill, supra, 17 Cal.4th at pp. 820-821.) Appellants make no attempts to show that any of these exceptions apply to the claimed instances of prosecutorial misconduct. Thus, appellants are foreclosed from raising these claims.
Jennifer has raised her attorney's failure to object to the alleged misconduct as part of her claim that she received ineffective assistance of counsel. For that reason, we discuss her claims further.
A prosecutor's behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Hill, supra, 17 Cal.4th at p. 819, citing People v. Gionis (1995) 9 Cal.4th 1196, 1214; People v. Espinoza (1992) 3 Cal.4th 806, 820.) Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (People v. Hill, supra, at p. 810, citing People v. Espinoza, supra, at p. 820.) Argument is "traditionally vigorous and therefore accorded wide latitude." (People v. Fierro (1991) 1 Cal.4th 173, 212.) A prosecutor may comment upon the state of the evidence, including the failure of the defendant to introduce material evidence or call witnesses. (People v. Brown (2003) 31 Cal.4th 518, 554; People v. Boyette (2002) 29 Cal.4th 381, 434; People v. Mincey (1992) 2 Cal.4th 408, 446.) And a prosecutor has broad discretion to state his or her views regarding what reasonable inferences may or may not be drawn from the evidence. (People v. Cunningham (2001) 25 Cal.4th 926, 1026; People v. Mitcham (1992) l Cal.4th l027, 1052; People v. Lewis (1990) 50 Cal.3d 262, 283.)
A. Bates was at the house when the third shot was fired
Jennifer argues the prosecutor improperly argued that "Bates was [inside the residence] when the third shot was fired." The actual argument at the page cited by Jennifer reads as follows: "Okay. Let's get to some of the specific evidence that is really critical in this case. What did Diane Bates know? I submit to you ladies and gentlemen, based upon all other testimony, that when she got home, there were only two shots fired and Joel was still breathing, or still alive."
We find the prosecutor's argument to be a reasonable inference from and fair comment on the evidence in the case. Bates testified that when she arrived at the Shanbrom residence on the evening of March 18, 1998, she believed that Joel was still alive. She also testified that when she first took Joel's pulse, prior to going upstairs, Joel's body was "very warm" and she thought Joel was still alive. Bates also acknowledged that she testified in a deposition as follows: "So then I ran upstairs so Jennifer wouldn't come down and ran back down and checked [Joel's] pulse again." When asked in the deposition, "So Jennifer wouldn't come down?" Bates responded, "Yeah, Jennifer and the baby, to hear the shot." There was forensic evidence that Joel was alive when the third shot was fired, that is, that the first two shots did not kill him.
As we discuss in more detail elsewhere in this opinion, it is reasonable to infer from Bates's testimony about going upstairs that a third shot was fired while she was in the building. Since there was evidence that Joel was alive until that third shot, we find the prosecutor's argument to be a reasonable inference from and fair comment on the evidence in the case. A prosecutor has broad discretion to state his or her views regarding which inferences may be drawn from the evidence. (See, e.g., People v. Cunningham, supra, 25 Cal.4th at p. 1026; People v. Lewis, supra, 50 Cal.3d at p. 283.)
B. Jennifer Fired The First Two Shots And Matthew Fired the Third Shot
Jennifer argues the prosecutor improperly argued "[Jennifer] fired the first two shots, and [Matthew] fired the third shot." The actual argument at the page cited by Jennifer reads as follows: "By [Bates's] non-answer, ladies and gentlemen, that's an adoptive admission. What does that tell you? Do you think she could have stopped two armed Black men? Could she have stopped two meth freaks going through the house? Who could she have stopped? She could have stopped Jennifer. Which, again, suggests what? That she knows Jennifer pulled the trigger. Two times. [Bates] knows Jacob and the [appellants] are home, and this is the, quote, lesson in pronouns."
As we discuss above, it is reasonable to infer that Bates arrived at the house after the first two shots had been fired but prior to the infliction of the third shot. Bates testified that she went upstairs and found her daughter with Jacob, and stopped them from going downstairs "to hear the shot." Thus, it is reasonable to infer that Jennifer was with Bates when the third shot was fired and did not fire that shot herself. Thus, at most she could have fired two shots, and those shots would have been fired before Bates returned home.
Bates repeatedly refused to answer the prosecutor's question as to whether she believed she could have prevented the shooting of Joel had she been at the house at the time the shots were fired. A reasonable inference from Bates's refusal to answer the question is that she could have, in fact, prevented the shooting had she been there when the first two shots had been fired. A further reasonable inference is that Bates could have prevented her daughter, Jennifer, from firing the shots rather than "two meth freaks" or "two armed Black men." The prosecutor's argument was a reasonable inference from and fair comment on the evidence. A prosecutor has broad discretion to state his views regarding which reasonable inferences may or may not be drawn from the evidence. (People v. Cunningham, supra, 25 Cal.4th at p. 1026; People v. Lewis, supra, 50 Cal.3d at p. 283.)
C. Jennifer Went To Get The Shotgun And Confer With Matthew
Jennifer argues the prosecutor improperly argued "that [Jennifer] went to the garage to get the shotgun and confer with Matthew" when she went downstairs. The actual argument at the page cited by Jennifer reads as follows: "In her testimony - and again, I'm just peculiar about this, the choice of language. Why is she peeking around the corner to see where Joel is? She is peeking around the corner? Peeking? Why is she concealing - doesn't that suggest to you an intent to conceal yourself, or some stealth involved in this? [¶] It's just a choice of words, and maybe I'm totally off-base in this, but in relation to everything else that occurred, when she says she calls up - calls down and says, hey, you can watch the T.V. She is peeking around the corner. She went downstairs - she never said this before. She went downstairs to take the sheets out of the laundry. She is downstairs and she is positioning herself for what? To get the gun out of the garage? Confer with Matt Fletcher? You know."
We agree with Jennifer that the prosecutor's argument goes too far. Jennifer testified that as Jacob was getting undressed for his bath, she went downstairs "for a moment to get the clothes from the washer and dryer." While downstairs, Jennifer "peeked around the corner and saw Joel in the office working on the computer." After going back upstairs, Jennifer called down to Joel, "Joel, you can watch whatever you want [on television] now. We're going to be doing the bath." It would be reasonable to argue from this evidence that Jennifer "peeked" around the corner at Joel, but did not speak to him until she was back upstairs because she was concealing her activities while downstairs from Joel. It was not a fair comment to invite the jury to speculate on what she was actually doing. There is simply no evidence from which to infer that she undertook any particular conduct, including getting a gun or speaking with Matthew.
Prosecutorial misconduct is cause for a reversal only when it is reasonably probable that a result more favorable to the defendant would have occurred had the prosecutor refrained from the comment attacked by the defendant. (People v. Milner (1988) 45 Cal.3d 227, 245.) We see no such probability (or possibility). Jennifer's conduct was odd and suspicious. Joel's murder took place soon thereafter, and while he was watching television as suggested by appellant. Given the evidence that the crime was planned, and that the sliding doors in the family room near the couch were unlocked, the jury could reasonably have inferred that Jennifer was positioning Joel for a murder that was planned to take place in the television room. A suggestion that she was engaging in some other prepatory activity would not be prejudicial in light of this other proper evidence of preparation.
D. Faulty locks
Jennifer contends that the prosecutor improperly argued that Matthew was aware of faulty locks at the Shanbrom residence. She contends that there was no evidence of such locks, or that Matthew was aware of them.
The prosecutor argued that Matthew knew everything about the Shanbrom house, including the faulty locks. There is evidence of the faulty locks and of Matthew's familiarity with the house, so this is a fair inference.
E. Question
Jennifer contends the prosecutor committed misconduct by intentionally asking Halaby if Matthew owed Halaby's father money, knowing that the answer was not admissible. The trial court had previously ruled that whether Halaby's father was owed money by Matthew was inadmissible hearsay since the father was not present to testify. It appears from the discussion following Jennifer's objection that the prosecutor did not realize the question about the debt was inadmissible. The prosecutor apologized, asked one additional unrelated question, and ended his examination of the witness. Thus, we do not believe that the prosecutor intentionally asked the improper question.
Counsel did not move to strike Halaby's answer. We see no probability or possibility that appellants would have received a more favorable result if the answer had been stricken, however. Other evidence was introduced about Matthew's debts and financial difficulties.
10. Joint counsel - Jennifer
Jennifer contends that the trial court erred in not informing her of the dangers of being represented by her counsel during a joint trial with a self-represented codefendant. She says that these dangers stemmed from two factors: the presence of a joint defense agreement and the fact that the agreement was with Matthew, who was self-represented. We find that the trial court made an adequate inquiry and advisement.
On September 25, 2002, appellants were arraigned. Paul Potter and Larry Baker were appointed as counsel to Jennifer and Matthew, respectively. On October 25, 2002, Matthew exercised his right of self-representation, pursuant to Faretta v. California (1975) 422 U.S. 806. As is discussed, supra, the trial court appointed Brown as Matthew's stand-by counsel.
Jennifer retained the Law Offices of Barry Bernstein to represent her. On June 27, 2003, Jeremy Karpel, appearing on behalf of Bernstein, became Jennifer's attorney of record, and Potter was relieved as counsel. Matthew then presented the trial court with a "joint agreement," and an order from Commissioner Brand that said Matthew "could meet with counsel as well." The trial court signed a modified order permitting such meetings.
On April 28, 2004, the trial court noted that it appeared that Bernstein had given advice to Matthew during the course of the trial. Concerned that there might be an apparent conflict of interest, the court announced that it would hold a hearing outside the presence of the prosecutor. Bernstein stated that he had discussed this matter with Jennifer, and that she had personally approved his actions. During the hearing, Jennifer told the court that she had discussed the potential drawbacks of joint representation with her attorney. She declined the court's offer to appoint a separate counsel at no cost to discuss the potential conflict of interest issue. Jennifer specifically stated she was aware of the dangers and possible consequences of any apparent joint representation in this case. She acknowledged her right to a conflict-free representation and voluntarily waived that right. The trial court also inquired whether she was keeping counsel because of financial reasons or any fees already paid or owed. Jennifer responded that financial issues were not part of her decision to retain Bernstein. She said she understood that her chances of conviction might be great with an attorney who had an apparent conflict. Jennifer also acknowledged that she could not raise this issue on appeal if she were convicted.
We find the above advisement and inquiry to be adequate. Assuming for the sake of argument that the above inquiry and advisement was not adequate, Jennifer has failed to demonstrate prejudice.
The right to effective assistance of counsel secured by the federal and state Constitutions includes the right to representation free from conflicts of interest. (People v. Bonin (1989) 47 Cal.3d 808, 833.) Conflicts of interest arise in all situations in which an attorney's loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or by his own interests. (People v. Jones (1991) 53 Cal.3d 1115, 1134, quoting People v. Bonin, supra, 47 Cal.3d at p. 835.)
In order to establish a federal constitutional violation, a defendant who fails to object at trial must show that an actual conflict of interest "adversely affected his lawyer's performance." (Cuyler v. Sullivan (1980) 446 U.S. 335, 348 [64 L.Ed.2d 333, 100 S.Ct. 1708].) In order to demonstrate a violation of the corresponding right under the California Constitution, a defendant must demonstrate a potential conflict, and the record must support an "informed speculation" that the asserted conflict adversely affected counsel's performance. (People v. Frye (1998) 18 Cal.4th 894, 998.)
When a trial court is aware, or should be aware, of a possible conflict of interest between a criminal defendant and defense counsel, the court is required to inquire into the circumstances of the possible conflict and take whatever action may be appropriate. (People v. Frye, supra, 18 Cal.4th at p. 999.) A conviction will be reversed on the ground the trial court failed to satisfy its duty to inquire into a possible conflict, or to adequately respond to its inquiry, only where the defendant demonstrates that an actual conflict of interest existed, and that the conflict adversely affected counsel's performance. (Ibid.) "Speculative contentions of conflict of interest cannot justify disqualification of counsel." (Castro v. Los Angeles County Bd. of Supervisors (1991) 232 Cal.App.3d 1432, 1442, citing Kain v. Municipal Court (1982) 130 Cal.App.3d 499, 504.)
Jennifer does not argue and has not shown that an actual conflict adversely affected her lawyer's performance, or an "informed speculation" of such a conflict. She simply contends that prejudice must be presumed. This is not the law.
Jennifer seeks to impose an additional duty on the court to advise her of the dangers of a joint trial with a self-represented defendant. Jennifer has not cited any cases imposing such a duty, and we are aware of none. We do not believe that the trial court had such a duty. Jennifer was represented by counsel. Legal advice on trial strategy should be provided by one's trial counsel, not the court.
We do not see what additional advisements the trial court could have provided. The court's advisements were given because Jennifer's codefendant was receiving advice from Jennifer's attorney, a situation which could occur only because that codefendant was representing himself.
Jennifer notes that, when a codefendant chooses to represent himself in circumstances that threaten to violate the represented codefendant's due process rights, the proper remedy of the represented codefendant is to grant a severance. (Thomas v. Superior Court (1976) 54 Cal.App.3d 1054, 1059, fn. 6.) Jennifer did not request a severance in this case, however, so the trial court was under no obligation to sever the defendants' trials on its own motion. Further, Jennifer fails to identify how Matthew's self-representation threatened to violate her due process rights.
Jennifer also cites State v. Carruthers (Tenn. 2000) 35 S.W.3d 516, which indicates that certain precautionary measures should be taken to minimize the possibility of prejudice, including the appointment of standby counsel, warning the self-represented defendant that he will be held to the rules of law, and instructing the jury that remarks made by the defendant in his role as a lawyer are not evidence. (Id. at p. 553.) While not binding on a California court, the precautions listed in Carruthers have merit. They were all taken by the trial court in this case. In Carruthers, the court found actual prejudice to the defendant from the self-represented codefendant's offensive mannerisms in front of the jury and eliciting of incriminating evidence from witnesses. (Id. at pp. 553-554.) Here, Jennifer has not shown any prejudice from Matthew's actions at trial.
11. Admission of prejudicial evidence
Jennifer contends the trial court erred in admitting prejudicial evidence of her "bad character and other evidence that did no more than create an innuendo of guilt with no true logical relevance." Matthew joins in the claim. Of the 69 items of evidence that Jennifer presently objects to, at least 50 were not objected to on these grounds at trial. A failure to object properly at trial to the admission of evidence forfeits the right to complain on appeal about the admission of that evidence. (People v. Lewis (2001) 25 Cal.4th 610, 673; see People v. Scott (1994) 9 Cal.4th 331, 354.) Accordingly, Jennifer has waived any claim of improper admission regarding these items. The vast majority of the remaining evidence was properly admitted. We see no prejudice to appellants from the few pieces of erroneously admitted evidence.
Jennifer identifies eight categories of evidence which she contends were improperly admitted. We use her categorization of this evidence in addressing her claims.
a. Evidence of financial difficulties
Jennifer contends that evidence of appellants' financial difficulties both before and after Joel's death was improperly admitted because poverty may not be used as a motive for murder. Appellants objected to some but not all of this evidence. Additional objections would almost certainly have been futile.
We agree that poverty may not be used as a motive for murder. (People v. Wilson (1992) 3 Cal.4th 926, 938-939.) Thus, we see no relevance to Matthew's financial difficulties before Joel's death.
Evidence of Jennifer's (and Joel's) financial difficulties was relevant to show the excessiveness of the amount of Joel's life insurance. Further, the evidence showed that the Shanbroms had difficulty affording the premiums on this expense, yet continued to make such payments even when they could not meet daily living expenses.
Evidence of Jennifer's and Matthew's financial difficulties after Joel's death was relevant to show that they had run through the almost $400,000 Jennifer received in death benefits and insurance proceeds. (People v. Samuels (2005) 36 Cal.4th 96, 112.) Such activity shows a financial motive for the murder. (Id. [defendant's lavish lifestyle after victim's murder showed financial motive for the murder].) Appellants' lifestyle may not have been as showy as that of the defendant in Samuels, but the evidence shows that they spent what was for them a lot of money very quickly.
In light of the appellant's strong motive of financial gain, we see no prejudice from the improper admission of Matthew's financial difficulties before the murder.
b. Evidence about the funeral arrangements
Jennifer identifies nine pieces of evidence "relating to the arrangement of the funeral" which she claims lacked probative value on the issue of guilt but constituted innuendo evidence that she and Matthew had bad characters.
Appellants did not object to eight of the pieces of evidence, as follows: (1) Jennifer wanted to have Joel cremated, to which the Shanbrom family objected on religious grounds; (2) testimony that Jennifer complained about the cost of the funeral; (3) testimony that Joel's sister Karen sued Jennifer in small claims court because Jennifer promised but failed to contribute to the funeral expenses after she received the insurance proceeds; (4) Carlson, the husband of Jennifer's sister, testifying that Matthew seemed to be in control of Joel's funeral; (5) Carlson's testimony that he suspected Matthew of murder partially because he was "running" the funeral; (6) Carlson's testimony about the collage poster he made for Joel's funeral, for which Matthew appeared to take credit; (7) Jennifer's sister Judy's testimony about the collage poster; and (8) Judy's testimony that she was upset that Jennifer had Matthew watch Jacob during the funeral.
Jennifer did object, on hearsay grounds, to a ninth piece of evidence, testimony by Bates that Joel's father begged appellant not to go through with the funeral arrangements she had planned. She did not object to the substance of the testimony. She has therefore waived her claim that the funeral arrangement testimony was irrelevant and prejudicial.
c. "Indirect" hearsay
Jennifer identified four pieces of evidence which she argues were disguised hearsay and should not have been admitted.
Appellants did not object to the testimony of Joel's sister-in-law Rossana about her conversation with Joel in January 1998, or her telephone conversation with him in March 1998, and so have waived their claim that the testimony was irrelevant and prejudicial.
Jennifer did object to testimony by Elaine Alvarez, a clinical psychologist specializing in marriage counseling who saw Joel as a client in 1998. Based on information received from Joel, Alvarez advised Joel on February 28, to ask Jennifer to limit her contact with Matthew and also suggested that Joel talk to Matthew. Joel was killed on March 18. This evidence was accompanied by evidence that Jennifer told Alvarez that she was sorry that Joel died believing that there was an affair, and that she knew that Joel talked to Matthew after his session with Alvarez.
We see a great deal of relevance to the fact that Joel believed that Jennifer and Matthew were having an affair and that he confronted the two about it no later than three weeks before his murder. Alvarez's advice, together with Jennifer's statements to Alvarez, make such a showing. Such a confrontation could certainly have given rise to a plan to kill Joel. The trial court considered Alvarez's testimony as a whole before ruling on its admissibility and we see no abuse of discretion in the trial court's ruling that her advice was admissible. Further, even if Alvarez's advice should not have been admitted, there could be no possible harm to appellants in light of the properly admitted statements of Jennifer to Alvarez.
Jennifer also objected to the following testimony of Jeff Orlando: as a result of information that he received from Joel in the months before he was killed, including information about the state of Joel's marriage, Jeff had developed hostility toward Jennifer and intentionally excluded her from his eulogy for Joel. In fact, the testimony was slightly more limited than Jennifer describes: Orlando was not allowed to testify that he excluded Jennifer from his eulogy as a result of his conversations with Joel.
When Jennifer objected to this line of testimony as encouraging the jury to speculate about Joel's statements in the conversations, the prosecution explained that it was only being offered to show that Joel and Orlando had a close personal relationship, which corroborated Orlando's earlier testimony that he and Joel had made plans to get together a week or so before Joel was killed. The prosecutor stated that he did not intend to go into the content of the conversation. The court agreed to allow it for that purpose. Thus, neither the prosecution nor the court offered any explanation of the relevance of Orlando's hostility to Jennifer before the funeral, and we see none. Thus, the trial court erred in admitting the evidence of hostility. However, in light of other evidence that Joel believed that Jennifer was having an affair, we see no prejudice to appellants from this testimony.
Jennifer also objected to testimony by Elizabeth Mackie, a coworker of Joel's, that she had a conversation with Joel on the afternoon of the murder and Joel was distraught, slow, deliberate and tired. Mackie also testified that as a result of this conversation, she contacted the Los Angeles Police Department the next day, when she learned that Joel had been killed. Mackie offered this testimony as a rebuttal witness. The trial court allowed this testimony because Matthew had earlier opened up the subject of Mackie's statement to police, and even to some of the content of the statement. The prosecution wanted to show the reason that Mackie made the report. We see no abuse of discretion in the trial court's ruling. Further, even if the trial court erred, there could be no possible harm to appellants in light of the earlier evidence elicited by Matthew.
d. Evidence of others' belief in appellants' guilt
Jennifer identifies three pieces of evidence that she says improperly implied that others knew that she and Matthew were murderers and criminals based on other, inadmissible evidence.
Appellants did not object to the following two pieces of evidence: (1) Carlson's testimony that police officers seemed to be ignoring Jennifer at the funeral and (2) testimony that Judy told people at the reception that Jennifer sold her soul to the devil. She has thus waived any claim of error in connection with this evidence.
Appellants did object on hearsay grounds to testimony by Detective McCartin that he believed that Matthew was a con man, and that this belief was based on statements by others. The objection was overruled. Detective McCartin's belief about Matthew's veracity was relevant to explain why the detective fabricated evidence when questioning Matthew, a topic which Matthew raised on cross-examination. As the detective explained, fabricating evidence is a technique he uses when he believes a witness is not honest. The court did err in permitting Detective McCartin to testify about what others had told him about Matthew, however. The specifics related to Matthew's business practices, sounded very much like business disputes and had very little, if any, prejudicial potential. We see no reasonable probability or possibility that appellants would have obtained a more favorable result if this evidence had been excluded.
e. Evidence that Jennifer did not grieve enough
Jennifer objects to four pieces of evidence that she was "not grieving enough." She contends that it had very little probative value because there is no correct level or form of grief.
Appellants did not object to the following three pieces of evidence: (1) Corrigan's testimony that he was troubled by the "lack of sadness" at the reception; (2) Shanbrom's testimony that Jennifer never expressed condolences to him; (3) Rose's testimony that there was no emotion during his meeting with Jennifer and Matthew; (4) testimony by Judy that appellant was not crying at the station and was not behaving or grieving the way Judy thought she should.
Jennifer did object to this testimony on non-substantive grounds.
Jennifer points out that she did object early on to testimony by Terry Shanbrom that appellant was not grieving in the manner she would have expected. She argued that the way people handle grief differs, and so is not probative of consciousness of guilt. Her objection was overruled. She contends that any future objections would have been futile.
We agree that further objections would have been futile. We see no abuse of discretion in the trial court's decision to admit this evidence. Much of this evidence came from people who knew Jennifer well, and who testified that this behavior was not consistent with her overall character, including her response to her grandmother's death. Lack of grieving does suggest a high degree of callousness to Joel's life.
f. Other "innuendo" evidence about Jennifer
Jennifer objects to 16 pieces of evidence that she describes as other irrelevant evidence that portrays her in a negative light. Appellants did not object to 14 pieces of evidence, as follows: (1) evidence that Jennifer spent much of the insurance proceeds, including the fact that she transferred $100,000 from her account to a joint account with Matthew; (2) Karen testifying about the notes she found in Jennifer's bedroom; (3) Judy testifying that she was upset that Matthew was at Jennifer and Joel's home at Christmas; (4) Judy testifying as to whether Jennifer was grieving; (5) testimony that Jennifer and Joel exaggerated their income on a rental application, and the income was verified by Matthew; (6) Judy testifying that Jennifer said she thought the prosecutor was crazy and a liar; (7) Judy testifying as to whether Jennifer was grieving; (8) Rose testifying that Jennifer told him he should deal with Matthew in the future; (9) Rose testifying that Jennifer referred him to Matthew for questions regarding death benefits; (10) Rose testifying as to the amount of Joel's insurance; (11) testimony that Jennifer told Karen after October 1, 1998, that she had not received any insurance proceeds; (12) McNutt testifying that Jennifer tried to interest him in a screenplay; (13) McNutt testifying that he stopped assisting Jennifer and Matthew in restoring lost computer files when he came across a personal file that mentioned bankruptcy; and (14) Carlson testifying that when he asked Jennifer to say she was innocent of the murder, Jennifer simply replied, "It's just your opinion," and later offered to set up a trust for Carlson's children. They have waived their claims relating to this evidence.
Jennifer did object on relevancy grounds when, during the course of examination on this topic, the prosecutor asked her if she cared about the amount she placed on the rental application. This objection was overruled and Jennifer replied that she did care. We do not understand this as an objection to Jennifer being questioned about the accuracies of her entries on the rental application. Accordingly, appellants have waived a claim that evidence of inaccuracies should not have been admitted.
Jennifer also points to evidence that Judy asked her indirect questions about the murder but never got direct answers. However, the page cites Jennifer gives for this evidence are for the lack of grieving. Since Jennifer has not shown where in the record the "indirect question" questioning occurred, we do not reach her claim on this topic.
Jennifer did object to the substance of testimony by Judy that she knew that something was wrong with the Shanbrom marriage, and this objection was sustained. Jennifer contends that the problem was "unringing the bell." She did not move to strike the testimony in the trial court, or seek an admonition to the jury and so she has waived this claim as well.
Jennifer also objected under Evidence Code section 352 to testimony by McNutt, a fellow WMA employee, that sometime after Joel's funeral, when she and some others were speaking quietly near a meeting room, Jennifer told them to be quiet and when they did not comply, Jennifer made a gesture as if she was firing a gun. The trial court allowed the evidence.
Although this is a close call, the gesture does show a lack of grieving and a lack of being affected by the shooting death of her husband. As such, it has relevance. Since Jennifer did not have an actual firearm and did not make any threatening statements, we see no undue prejudice to the evidence. As the trial court noted, Jennifer's act was not a crime. Accordingly, we see no abuse of discretion in the trial court's decision to admit the evidence.
g. Other "innuendo" evidence about Matthew
Jennifer identifies 14 pieces of evidence that she describes as other irrelevant evidence that portrays Matthew in a negative light.
Appellants did not object to 11 pieces of evidence, as follows: (1) Judy testifying that she thought Matthew was at Jennifer and Joel's house more than was appropriate; (2) testimony that Karen sent Jacob a birthday present in 1999, but Matthew returned it saying there was no one named Shanbrom at that address; (3) testimony that the Carlsons sent Jacob a Christmas gift, but Matthew returned it saying that Jacob was not a Shanbrom; (4) testimony that Matthew lied to Hart about being a retired police officer and having a business that was about to go public on an I.P.O.; (5) testimony by Primerica paralegal Greenstein about Matthew's termination from Primerica; (6) Halaby testifying that Matthew told him he was a reserve police officer; (7) testimony that Matthew requested a copy of the coroner's report, saying that the insurance company needed it to determine if the death was a suicide; (8) testimony as to guns Matthew owned when he married his first wife; (9) testimony that Matthew had Joel's badge; (10) testimony that Matthew had Joel's business card in his wallet when he was arrested, and also had more of the cards and Joel's engraved handcuffs in his car's glove compartment; and (11) testimony that Bates was serving as Matthew's legal runner during trial. They have waived their claims relating to this evidence.
Jennifer objected to one question to Greenstein on hearsay grounds and the objection was sustained. She also objected that a question about the allegations of a cross-complaint filed by Matthew against Primerica was "testimony." The objection was properly overruled. This objection does not in any way indicate that appellants believed any of the termination testimony by Greenstein was irrelevant and portrayed Matthew in a negative light.
Appellants did object to three pieces of evidence. Jennifer objected on relevance grounds to Wigodsky's testimony that Matthew told him that he had been wrongfully terminated by Primerica, had sued Primerica and won, and was due a substantial sum of money. The objection was overruled.
Jennifer objected on relevance grounds to testimony that Matthew told prospective landlord Halaby that Jennifer was nervous about security because she had been the victim in a home invasion robbery where the perpetrators went through her husband's pockets, found his badge and killed him when they realized that he was a police officer. She also objected to testimony by Shin that Matthew said Joel was killed in the line of duty. These objections were overruled.
There is no evidence that Joel's badge was disturbed before the murder.
Matthew's statements to Wigodsky and Halaby were not true and had some tendency to show consciousness of guilt. The lie to Wigodsky provided a cover story for the insurance proceeds in which Matthew shared. The lie to Halaby attempted to shift blame to others and thereby divert guilt from Matthew.
Matthew's statement to Shin, made two years after the murder, is more ambiguous. If it was knowingly false, as it appears to be, it is relevant and admissible for the same reasons as the statement to Halaby. If it was simply an innocent statement based on Jennifer's claim that Joel identified himself as a police officer before being shot, its admission was harmless.
h. Other "innuendo" evidence
Jennifer identifies seven pieces of evidence that she describes as other irrelevant evidence that portrays appellants in a negative light.
Appellants did not object to five pieces of evidence, as follows: (1) Carlson's testimony that he wished he could have said something to Joel; (2) Judy testifying that Bates made ambiguous comments about Jennifer and Matthew's role in the murder; (3) testimony that Bates might have made a statement that she and Jennifer were going to get divorces and new husbands; (4) Adams testifying about Jennifer wanting to go to a strip club with her and Matthew in Las Vegas; and (5) testimony that when Carlson asked Bates why she thought Jennifer was innocent, Bates replied, "What would you do if it was your daughter?"
Jennifer did object to such a statement by Carlson, on the ground that it was volunteered when no question was pending. The prosecution then asked Carlson about the statement and Carlson answered. There was no objection to the actual question and answer.
Appellants did object to two pieces of evidence. Jennifer objected to questions about Bates concerning her testimony at the grand jury proceedings. Bates took notes about her testimony, and these notes were found in Matthew's house. The trial court permitted the introduction of this evidence to show a link between Bates and Matthew. This sharing of notes creates a reasonable inference that Matthew and Bates were on very good terms with each other and may have been cooperating on their accounts of the events related to Joel's murder. Thus, it was quite relevant. We see no undue prejudice to appellants from the evidence. Thus, the trial court did not abuse its discretion in admitting this evidence.
Jennifer also objected to a letter sent by Moura to an insurance company demanding payment on Joel's life insurance. The prosecution's stated purpose in introducing the evidence was to show that Bates, Matthew and Jennifer were all connected through Moura, because Moura had at different times represented all three. Appellant contends, correctly, that this evidence was cumulative. We do not agree with appellant that the evidence has an innuendo of impropriety however. Thus, even assuming that the trial court erred in admitting cumulative evidence, we would see no harm to appellants.
12. Ineffective assistance
Jennifer contends that her counsel was ineffective for failing to object to innuendo evidence discussed in section 11, supra, and for failing to request certain jury instructions.
Appellant has the burden of proving ineffective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, appellant must show that his counsel's performance fell below an objective standard of reasonableness, and that, but for counsel's error, a different result would have been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.) "'"Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.''" [Citations.]" (People v. Thomas (1992) 2 Cal.4th 489, 530-531.)
A. Failure to request instructions
Appellant contends that her counsel was ineffective for failing to request jury instructions on third party culpability. As we discuss in section 6, supra, we see no reasonable probability that appellants would have received a more favorable result if such an instruction had been given. Thus, appellant's claim of ineffective assistance fails.
B. Failure to object
Jennifer identifies about 50 pieces of evidence to which her counsel did not object. She contends that his failure to do so constituted ineffective assistance of counsel.
Counsel is not required to make futile or meritless objections. (People v. Price (1991) 1 Cal.4th 324, 386-387; People v. Ochoa (1998) 19 Cal.4th 353, 427-428, 432 [meritless motion to exclude].) Further, our Supreme Court has repeatedly pointed out that, "'[a]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel.' [Citation.]" (People v. Avena (1996) 13 Cal.4th 394, 443.)
We have considered the 50 pieces of evidence identified by Jennifer and find most of the evidence to be relevant evidence with no undue prejudicial potential. Counsel was not deficient in failing to object to that evidence. We have found that a failure to object to other evidence could be considered sound trial strategy. We have also identified some evidence for which an objection was warranted, but have found no reasonable probability that appellants would have received a more favorable outcome if the evidence had been excluded or stricken. Accordingly, we see no ineffective assistance of counsel in this area.
a. Evidence of financial difficulties
Although counsel did not object to some of this evidence, we found no waiver of claims related to this category of evidence. Thus, any failure to object is not ineffective assistance.
b. Evidence about the funeral arrangements
Jennifer identifies nine pieces of evidence "relating to the arrangement of the funeral" which she claims lacked probative value on the issue of guilt but constituted innuendo evidence that she and Matthew had bad characters. Counsel did not object to any of this evidence.
We agree with appellants that the following six pieces of evidence had very little, if any probative value: (1) Jennifer wanting to have Joel cremated, to which the Shanbrom family objected on religious grounds; (2) Judy testifying that Jennifer complained about the cost of the funeral; (3) testimony that Karen sued Jennifer in small claims court because Jennifer promised but failed to contribute to the funeral expenses after she received the insurance proceeds; (4) Carlson testifying about the collage poster he made for Joel's funeral, for which Matthew appeared to take credit; (5) Judy testifying about the collage poster; and (6) Bates's testimony that Joel's father begged appellant not to go through with the funeral arrangements she had planned.
We find, however, that the above evidence had no prejudicial effect, either. This evidence, and other evidence of which appellants do not complain, show that stress, disagreements and hard feelings abounded after the funeral. For example, Jennifer's sister Judy complained in her testimony that her feelings were hurt because no one in her family was asked to speak at Joel's funeral, and only the Shanbroms spoke. As Judy explained, Joel's death was a loss for her too. Thus, we see no reasonable probability that Jennifer would have received a more favorable outcome if her attorney had successfully objected to this evidence.
We find two of the remaining pieces of "funeral" evidence to have probative value: (1) Carlson testifying that Matthew seemed to be in control of Joel's funeral; and (2) Judy testifying that she was upset that Jennifer had Matthew watch Jacob during the funeral. Both show the closeness of the relationship between Jennifer and Matthew, a relationship alleged to be a motive for Joel's murder. We see nothing unduly prejudicial about the evidence. Thus, this evidence was admissible and counsel's failure to object was reasonable.
The last piece of evidence was elicited by Matthew in his questioning of Carlson: Carlson testified that he suspected Matthew of murder partially because he was "running" the funeral. The examination, read as a whole shows that Carlson in fact did not have a reasonable basis for suspecting Matthew of murder. Given the overall favorableness of this testimony, counsel may well have had a tactical reason for not objecting.
c. "Indirect" hearsay
There is one piece of disguised hearsay to which counsel did not object: Rosanna's testimony about her conversation with Joel in January 1998, and her telephone conversation with him in March 1998.
We do not agree with Jennifer that this is disguised hearsay. Rosanna's testimony simply told the jury that she believed that Joel was upset about something in the months before his death. Her complete testimony on this topic shows that her conclusion was based at least as much on her observations of Joel's behavior as it was on anything he might have said. She saw Joel crying on one occasion, for example. Jennifer may be correct that this testimony, standing alone, would invite the jury to speculate about why Joel was upset. It does not stand alone. There was ample other evidence, including Jennifer's statement to Alvarez, to show that Joel was upset because he believed that Jennifer was having an affair with Matthew.
We find Rosanna's testimony to be admissible and counsel's failure to object reasonable. Further, we see no reasonable probability that Jennifer would have received a more favorable result in the absence of the evidence.
d. Evidence of others' belief in appellants' guilt
Jennifer identifies two pieces of evidence that she says improperly implied that others knew that she and Matthew were murderers and criminals based on other, inadmissible evidence. Counsel did not object to the following evidence: (1) Carlson testifying that police officers seemed to be ignoring Jennifer at the funeral and (2) testimony that Judy told people at the reception that Jennifer sold her soul to the devil.
We agree with appellant that this evidence has very little, if any probative value. We see little prejudicial value to Judy's statement, which was made in her response to questions about Joel's funeral. Judy herself then stated that she did not know why she said it. The most reasonable understanding of the statement is that she did not like Matthew. The statement was made in the middle of a long answer to a question, and would have been awkward to object to. Objecting would certainly have highlighted the statement. It would be a reasonable tactical choice to refrain from objecting to the statement so as to avoid that outcome.
Carlson's testimony about the police officers ignoring Jennifer does have some prejudicial value, as it implied that they had a reason to dislike her. However, in light of all the evidence at trial, the most reasonable inference is that at the time of the funeral the officers believed that Jennifer had been having an affair. There was ample other evidence of the affair, and it was claimed to be the motive for Joel's murder. Thus, we see no reasonable probability that appellants would have received a more favorable result if this evidence had been excluded.
e. Evidence that Jennifer did not grieve enough
Although counsel did not object to some of this evidence, we found no waiver of claims related to this category of evidence. Thus, any failure to object is not ineffective assistance.
f. Other "innuendo" evidence about Jennifer
Jennifer's attorney did not object to 12 pieces of evidence that she describes as other irrelevant evidence that portrays her in a negative light. We find that most of this evidence was relevant and admissible. Objections would have been futile. Counsel is not deficient for failing to make futile objections.
To be precise, there are 13 pieces of evidence in this category to which appellants did not object. Once of those pieces involved a failure to grieve, and is addressed in section 11, subsection e, supra, We do not re-address it here.
As Jennifer contends, two pieces of evidence showed that she spent the insurance money quickly and unwisely: (1) evidence that Jennifer spent much of the insurance proceeds, including the fact that she transferred $100,000 from her account to a joint account with Matthew and (2) Karen testifying about the notes she found in Jennifer's bedroom concerning how she would spend the insurance proceeds. This evidence was relevant to show a financial gain motive. Similarly, testimony that Jennifer and Joel exaggerated their income on a rental application, and the income was verified by Matthew, showed the couple's financial difficulties. This was relevant to show marital discord and the excessiveness of Joel's life insurance.
Testimony by Rose showed the large amount of Joel's life insurance. This is relevant as a motive for the murder, even assuming that it was Joel's idea to purchase the insurance initially. Further, Jennifer demonstrated her interest in the excessive coverage by reinstating a significant portion of that insurance which Joel allowed to lapse.
Three of the pieces of evidence were relevant to show the closeness of the relationship between Jennifer and Matthew, both before and shortly after Joel's death, a relationship that was alleged to be a motive for Joel's murder: (1) Judy testifying that she was upset that Matthew was at Jennifer and Joel's home at Christmas; (2) Rose testifying that Jennifer told him he should deal with Matthew in the future; and (3) Rose testifying that Jennifer referred him to Matthew for questions regarding death benefits.
Judy's testimony that Jennifer said she thought the prosecutor was crazy and a liar had no probative value on its own. It was admitted as part of a longer letter which Jennifer sent to Judy. We see no prejudice from this statement. If anything, it would be helpful to Jennifer. As she acknowledges, this is certainly a sentiment which a defendant wrongly accused of murder might be expected to feel. Thus, counsel's failure to object was reasonable.
Testimony by Carlson that when he asked Jennifer to say whether she was innocent or guilty of the murder, Jennifer simply replied, "It's just your opinion," and that she later offered to set up a trust for Carlson's children is more marginal. It has some tendency to show a consciousness of guilt. Rather than objecting to it directly, Matthew and Jennifer's counsel both choose to highlight Carlson's antipathy to Jennifer on cross-examination and to offer additional evidence, in the form of a letter from Jennifer to Carlson's wife Judy, showing the full context of the trust fund offer. This is certainly a reasonable tactical decision.
The following evidence was related to appellants' financial difficulties after Joel's death and possible greed, and thus had some slight probative value of motive: (1) testimony that Jennifer told Karen after October 1, 1998, that she had not received any insurance proceeds; (2) McNutt's testimony that Jennifer tried to interest him in a screenplay; and (3) McNutt's testimony that he stopped assisting Jennifer and Matthew with lost computer files when he came across a personal file that mentioned bankruptcy. It is in many ways cumulative of other, similar evidence. We see very little, if any undue prejudicial potential from this evidence, however. Thus, assuming that the evidence should not have been admitted, we see no reasonable probability or possibility of a more favorable outcome.
g. Other "innuendo" evidence about Matthew
Jennifer's attorney did not object to 11 pieces of evidence that she describes as other irrelevant evidence that portrays Matthew in a negative light. We question whether he had the responsibility to do so.
The following two pieces of evidence were relevant and admissible: (1) Judy testifying that she thought Matthew was at Jennifer and Joel's house more than was appropriate; and (2) testimony that Bates was serving as Matthew's legal runner during trial. The first shows the close relationship between Matthew and Jennifer, a relationship which was alleged to be a motive for Joel's murder. The second shows a close and sympathetic relationship between Bates and Matthew. Bates was a key witness in this case, and the relationship is relevant to show bias.
Financial gain was alleged to be a motive for the murder and Matthew ultimately shared in the insurance proceeds collected by Jennifer. Thus, testimony that Matthew requested a copy of the coroner's report, saying that the insurance company needed it to determine if the death was a suicide, was relevant.
The murder weapon was a shotgun, a very unusual weapon for such a crime. Testimony as to guns Matthew owned when he married his first wife was thus relevant. The fact that he owned guns other than a shotgun at that time could actually have been helpful, since familiarity with guns might suggest that if Matthew were the killer, he might have selected a more conventional gun. Thus, counsel could have made a reasonable tactical choice not to object.
Testimony that Matthew showed Wigodsky Joel's badge is highly relevant, as is discussed elsewhere in this opinion.
We see little relevance to testimony that Matthew had Joel's business card in his wallet when he was arrested, and also had more of the cards and Joel's engraved handcuffs in his car's glove compartment. The error does not seem prejudicial in light of evidence that Matthew had another, more significant piece of Joel's police equipment, his badge.
Testimony that Matthew lied to Hart about being a retired police officer and having a business that was about to go public in an I.P.O. had some relevance. The statement about being a police officer was made to give a favorable and sympathetic explanation of how he became involved with Jennifer after Joel's death. It was not true and it obscured the true nature of their relationship. The statement about the I.P.O. was also not true and could reasonably be understood as covering up the fact that the true source of the couple's funds was Joel's insurance proceeds. Thus, both statements have some tendency to show a consciousness of guilt.
The following two pieces of evidence have little to no probative value: (1) testimony that Karen sent Jacob a birthday present in 1999, but Matthew returned it saying there was no one named Shanbrom at that address and (2) testimony that the Carlsons sent Jacob a Christmas gift, but Matthew returned it saying that Jacob was not a Shanbrom. However, it has very little prejudicial impact either. It shows that Matthew's relationships with the gift-senders was not good, but this was firmly established by other evidence. It may also show a desire by Matthew for Jacob to be thought of as his son, which is not an unnatural one.
Halaby's testimony that Matthew told him he was a reserve police officer was not relevant. There is some prejudicial effect to this testimony, as it shows Matthew telling lies. In context, however, Matthew's statement to Halaby appears to be an attempt at bonding with him. Thus, it was not a particularly egregious lie. We see no reasonable probability that Jennifer would have received a more favorable outcome in the absence of this evidence.
Testimony by Primerica paralegal Greenstein about Matthew's termination from Primerica also seems lacking in relevance. This testimony as a whole showed that Matthew was as unhappy with Primerica as it was with him. Further, there was evidence that Matthew obtained a similar position with a competitor. Thus, the testimony had very little prejudicial potential. We see no reasonable probability that Jennifer would have received a more favorable outcome in the absence of this evidence.
h. Other "innuendo" evidence
Jennifer's attorney did not object to five pieces of evidence that she describes as other irrelevant evidence that portrays appellants in a negative light.
Adams testifying about Jennifer wanting Adams to go to a strip club with her and Matthew in Las Vegas was relevant to show the relationship between Jennifer and Matthew, a relationship that was alleged to be the motive for the murder. The testimony strongly suggested a sexual component to the relationship. Any objection would have been futile.
Judy's testimony that Bates made ambiguous comments about Jennifer and Matthew's role in the murder, sometimes saying that she thought that they did it, had some impeachment value since Bates did not take that position at trial. Given Bates's strong support of the couple through trial, we see no possible prejudice to appellants from this statement.
We agree with Jennifer the following three pieces of evidence were not relevant: (1) Carlson's testimony that he wished he could have said something to Joel; (2) testimony that Bates might have made a statement five months before Joel's death that she and Jennifer were going to get divorces and new husbands; and (3) testimony that when Carlson asked Bates why she thought Jennifer was innocent, Bates replied, "What would you do if it was your daughter?" We see little prejudicial potential from this evidence, however.
We see no negative implication possible from Carlson's two pieces of testimony. Bates's statement about new husbands might show that Jennifer was unhappy in her marriage, but there was ample other admissible evidence of that fact. Thus, we see no reasonable probability that appellants would have received a more favorable result in the absence of this evidence.
Disposition
The judgment is affirmed.
I concur: KRIEGLER, J.
MOSK, J., Concurring.
I concur.
As to the issues concerning ineffective assistance of counsel, I would follow the Supreme Court’s admonition: “We have repeatedly emphasized that a claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding.” (People v. Michaels (2002) 28 Cal.4th 486, 526.)
The use of expert testimony concerning crime scene staging is controversial. “Staging . . . are actions taken by a person that are meant to disrupt or alter the crime scene so that the scene is made to look different and to throw investigators off the true track. This is all a part of a crime-scene reconstruction.” (Stouffer v. State of Oklahoma (Okla.Crim.App. 2006) 147 P.3d 245, 266.) The Stouffer court went on to say, “Crime-scene reconstruction experts must determine whether the things occurred naturally or whether the events were staged.” (Ibid.) The court also held that staging testimony was admissible under Daubert v. Merrell Dow Pharmaceuticals (1993) 509 U.S. 579, and Kumho Tire Co. v. Carmichael (1999) 526 U.S. 137, 151-153. (Stouffer, supra, 147 P.2d at 266.) Yet, the exclusion of comparable testimony has been upheld. (See State v. Stevens (Tenn. 2002) 78 S.W.3d 817, 836.) I am not prepared to conclude that the testimony was prejudicial error. (See People v. Prince (2007) 40 Cal.4th 1179, 1223.)