Opinion
D057836 Super. Ct. No. SCD 222124
02-06-2012
THE PEOPLE, Plaintiff and Respondent, v. JONATHAN SCOTT FRENCH, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Peter L. Spinetta, Judge. (Retired judge of the San Diego Superior Court assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
A jury convicted Jonathan Scott French of the first degree murder of Jennifer Stark and found true the allegation that French had personally used a knife during the murder. The trial court sentenced him to prison for 26 years to life. French contends the trial court erred when it allowed the prosecution to present evidence of two prior assaults and testimonial hearsay regarding certain DNA test results. We find no prejudicial error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Murder
Around 2005 or 2006, French and Stark began dating and had an "off and on" relationship. The couple became engaged in 2008, but they eventually broke up. In July 2009, Stark was dating Spencer Karel. (All further date references are to 2009.) Later that month, Stark called Karel and told him that her former fiancé had resurfaced and that she needed to stop seeing him.
On July 31, Stark told her friends that she had plans to see French that evening. That day, French picked up his daughter, Katie, for a weekend visitation and brought her to his home. French told Katie that he was going out for drinks with a friend or friends and said he would be gone about an hour. At around 8:00 p.m., French and Stark were seen at a restaurant in Carlsbad. They appeared to have a cordial, private conversation and left together after about an hour and a half. Neither one of them appeared intoxicated when they left.
At around 9:00 p.m., French arrived at another restaurant in Carlsbad. He appeared sober, sat at a table, ordered a beer and a glass of wine, and said he was waiting for someone. When Stark arrived at the restaurant, the couple engaged in deep conversation and openly kissed and snuggled together to the point of making the cocktail waitress feel uncomfortable. Stark drank between one and a half to four glasses of wine and French drank a large beer. French ordered some food to go. When the waitress brought the food, French said, "We're just going to get out of here. She's wasted." French's demeanor had changed somewhat and he seemed agitated. French assisted Stark out of the bar because she had a hard time standing and could not walk straight. At that time, they were no longer affectionate, French seemed more agitated and Stark appeared somewhat withdrawn.
At 10:59 p.m., French called his ex-wife, asked if she was home, said he was bringing Katie back and hung up the phone. French sounded angry. French returned home about 11:00 p.m. and told Katie, " 'Pack your things. We're going to your Mom's.' " French turned on the light near the staircase, quickly went upstairs and closed the bedroom door. Katie gathered her belongings and waited for French at the bottom of the stairs as she heard the shower run. Katie noticed "a blotch" or "little streak of red" near the light switch. During the drive to her mother's house, Katie could see that French was "really freaked out." After dropping Katie off, French hollered to her, " 'I love you. I've always loved you and don't believe what people are going to say about me. Goodbye.' " In the meantime, Stark's son, came home a little after 11:00 p.m. He opened the garage door, saw Stark lying on the floor in the hallway, screamed for help and called 9-1-1. The Investigation
Carlsbad Detective Patrick Preston searched Stark's home after 1:00 a.m. on August 1. He found Stark lying on her right side with bent knees in a large pool of blood in the hallway. The hallway walls, heater vent, molding and floor had multiple layers of bloodstains, smudges or smears on them. He found a serrated knife with a nine- or ten-inch-long blade and black plastic handle underneath a blood-soaked carpet runner beneath Stark's body adjacent to her head. No latent fingerprints could be lifted from the knife because it was too bloody.
In the master bedroom, Detective Preston observed bloodstains on the carpet. There were bloodstains in the master bathroom, primarily on the sink and vanity, but also on the door jamb and floor. The blood in the sink appeared to have been diluted with water or some other substance and ran toward the drain. In the kitchen, several drawers and drawer handles had bloodstains on them and latent fingerprints. A police fingerprint specialist determined that the prints lifted from one of the bloody kitchen drawer handles in Stark's house were French's left middle finger and left thumb.
A medical examiner observed Stark's body at the murder scene. He determined that Stark's fatal injuries occurred in the hallway. At an autopsy performed the following day, the medical examiner noted that Stark had a lot of blunt force trauma to her face, such as bruises, scrapes, and splits in the skin, and concluded that there were at least ten blunt force impacts to Stark's face based on 15 separate injuries he observed. He explained that such blunt force injuries were most commonly inflicted by fists, and believed a significant amount of blunt force had been applied. There was also blunt force trauma on the rest of Stark's body, including bruises on her left shoulder and collarbone, her right breast, her forearms, the inside of her right upper arm, almost the entire back of her left hand, the left elbow area, her left hip, the inside of her left calf and the top of her right foot. The medical examiner described some of the bruises as defensive injuries. All of the blunt force trauma occurred prior to death.
Stark had a very large and deep incised wound across the front of her neck with many superficial sharp-force injuries caused by a blade roughly parallel to it. There appeared to be 14 separate knife wounds to her neck. The main wound was five and a half inches long, and sliced through the large muscle, carotid artery, jugular vein, trachea, esophagus and additional muscle on the back of the neck. The medical examiner believed the knife found under Stark's body was capable of causing the neck injuries. Based on fractures to Stark's Adam's apple, a hemorrhage on the back of her neck, blood in the deep neck muscles near the base of the skull, and petechiae in her eyes, the medical examiner believed Stark suffered pre-mortem strangulation. Stark had a .22 percent blood alcohol level and there were no signs of any sexual assault. French's Testimony
French testified on his own behalf. After describing his prior relationship with and engagement to Stark, he said that they broke up and later rekindled their relationship on July 25 and spent time together the next several days. On July 31, they met for drinks and planned to have dinner after Stark picked up her son from work. They subsequently met at a restaurant where they ate, drank and heavily "ma[de] out" until French decided it was time to leave and attend to his daughter. He drove Stark home, she romantically enticed him into her house, and after they kissed in the hallway, Stark asked him to spend the night.
At one point Stark showed French text messages she had sent him from her cell phone. While she did so, he saw a text message from "Chris." Stark's cell phone, recovered from French's residence, contained various flirtatious text messages between her and a man named "Chris" sent between July 27 and July 29. French grabbed the phone, saw the other text messages from Chris, screamed at Stark about the messages and asked if she was still seeing Chris. When Stark said, " 'What if I am?,' " he "absolutely snapped" and felt rage like he had never experienced before. He struck Stark once with his right hand while screaming, " 'Why?,' " and Stark fell to the ground. He then grabbed Stark by the neck until she was unconscious and kept yelling at and shaking her. He went to the kitchen where he grabbed a knife. French did not remember cutting Stark, but recalled looking down at her body. He dropped the knife and felt like he wanted to die.
French described how he drove home, called his ex-wife and drove his daughter to his ex-wife's home. He later cut his wrists in the bathtub and then got in his car where he contemplated suicide until he called the police and asked them to arrest him.
DISCUSSION
I. Rebuttal Evidence
A. Background
French testified that he snapped and felt rage and anger like he had never before experienced prior to initiating his fatal attack on Stark. He explained that he had been angry before and acted upon it a couple of times, but that the rage this time was different and "[t]here was no reflection. There was no rationale as to what took place . . . ." That same day, the prosecutor filed a motion to admit testimony concerning two prior incidents involving Laura Wolfgang and Rodolfo Gonzalez to impeach French's testimony that he never before experienced rage of the general kind he experienced at the time of Stark's killing.
The People intended to use the prior acts under Evidence Code section 780 to impeach French's testimony and show that he had a documented history of acting with "thoughtless rage" and that he did not testify truthfully. (Undesignated statutory references are to the Evidence Code.) The trial court noted that the incidents involved events of rage that were followed up with deliberate, calculated action, and reasoned that they were admissible for impeachment and to show state of mind, i.e., whether French acted in a state of rage to negate malice aforethought or in rage that was consistent with deliberate choice. The trial court rejected the argument of defense counsel that the evidence was being admitted to show French's propensity as "a hothead who acts upon his anger." The trial court indicated that it would give a limiting instruction at the appropriate time, admonishing the jury not to use the prior acts as propensity evidence and to only consider the evidence for impeachment or credibility purposes insofar as French's testimony and mental state.
Thereafter, French elected to testify about the incidents on redirect prior to the prosecutor presenting the evidence in rebuttal. French stated that he dated Wolfgang in 1992 and addressed an incident where he lost his temper after he had been drinking. He and Wolfgang had an argument on the side of the road, he pushed her down, and Wolfgang then left. French denied grabbing Wolfgang's throat and claimed he did not remember grabbing her shoulders. A friend later drove him to Wolfgang's home to pick up some personal items he had left in her car. French claimed that he did not recall yelling at her, and denied touching her at that time or damaging her car.
He also described an incident in 2005 when he was driving behind Gonzalez who kept braking; however, he denied tailgating Gonzalez's car. The men exchanged words from their cars and then pulled their cars to the side of the road. French denied hitting Gonzalez or spitting on him, but admitted that spit could have come out of his mouth while he was yelling. French claimed that Gonzalez fell to the ground and simply pretended to be unconscious. French ultimately pleaded guilty to spitting on Gonzalez, claiming it was the easiest way of resolving the charges against him.
In rebuttal, the prosecutor presented evidence of the two prior incidents through the testimony of Wolfgang and Gonzalez. In 1992, Wolfgang had been dating French for four or five months. One evening, Wolfgang was angry with French because he had gotten drunk with friends when he was supposed to go out with her. While Wolfgang drove French home from the bar, he got extremely angry, yelled at her, grabbed the steering wheel and tried to steer the car into oncoming traffic. When she arrived at French's apartment, they continued to argue and French refused to get out of the car. Wolfgang went up to the apartment and banged on the door to get help from French's roommates because she was scared. French then chased Wolfgang around the car while yelling at her, he jumped over the car, grabbed Wolfgang by the neck and shoulder, slammed her against a dumpster and screamed at her until some other individuals pulled him away and told her to leave. French also kicked and dented her car.
Gonzalez described driving in the Carlsbad area when he pulled in front of French's car and French started to tailgate him. When Gonzalez tried to pull over to let French pass, French pulled up alongside Gonzalez and the men exchanged obscenities. French then drove into Gonzalez's lane forcing him to pull off the road. Gonzalez, who was very angry, exited his car and yelled at French. French got within a couple inches of Gonzalez's face and said he wanted to fight, but Gonzalez declined. French called Gonzalez a coward, puckered his lips and spit a large chunk of saliva in Gonzalez's face. Gonzalez turned and put his hand on French's shoulder, saw a flash of either French's arm or fist, and did not remember much after that. He awoke to French standing over him in the middle of the street. Gonzalez recorded French's license number and a bystander called the police. Gonzalez suffered cuts inside his lip and redness and swelling on the side of his face, which the police photographed. Gonzalez identified four photographs taken the following day that depicted his facial injuries.
Prior to closing arguments, the trial court instructed the jurors that the evidence regarding the assaults on Wolfgang and Gonzalez could not be considered to prove that French was a person of bad character or disposed to commit crimes, that the evidence could only be considered to impeach French's testimony or to establish the existence of any specific intent, or mental state or states which were necessary elements of the crime charged in the case or in any lesser offense. B. Analysis
French claims the trial court erred by admitting evidence of his prior assaults against Wolfgang and Gonzalez because the evidence was not admissible under subdivision (b) of section 1101 or for impeachment purposes, and should have been excluded under section 352. He further contends the admission of this evidence violated his rights to due process and a fair trial, requiring reversal of the judgment. The People assert that French forfeited any claim that the evidence was inadmissible for impeachment purposes or excludable under section 352 by failing to object on those grounds in the trial court.
Here, defense counsel objected to the admission of the prior assaults as improper propensity evidence and asserted the incidents were sufficiently dissimilar from the Stark killing such that they should not be admitted to prove state of mind or intent under section 1101, subdivision (b). Defense counsel did not argue that the evidence was inadmissible for impeachment purposes. Although French claims that his objection under section 1101 necessarily included an objection under section 352, he cited no authority for this assertion. An evidentiary objection must be specific. (§ 353, subd. (a); People v. Holt (1997) 15 Cal.4th 619, 666.) Although French is correct that evidence admissible under subdivision (b) of section 1101 remains subject to the constraints of section 352 (People v. Ewoldt (1994) 7 Cal.4th 380, 404, superseded by statute as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505) that does not mean an objection on one ground necessarily objects on the other ground. (See People v. Doolin (2009) 45 Cal.4th 390, 437 [relevancy and section 352 objections do not preserve claim that trial court admitted evidence in violation of sections 1101 and 1102].) Although French thereby forfeited the issues he now raises on appeal, we address the correctness of the trial court's ruling to preclude any inference of ineffective assistance of counsel.
"By taking the stand, [French] put his own credibility in issue and was subject to impeachment in the same manner as any other witness." (People v. Gutierrez (2002) 28 Cal.4th 1083, 1139; see §1101, subd. (c).) Under section 780, subdivision (i), a trial court may admit otherwise inadmissible evidence for impeachment purposes to prove or disprove the existence or nonexistence of a fact about which a witness has testified or opened the door. (Andrews v. City and County of San Francisco (1988) 205 Cal.App.3d 938, 946 ["[A] witness who makes a sweeping statement on direct or cross-examination may open the door to use of otherwise inadmissible evidence of prior misconduct for the purpose of contradicting such testimony."].) The open-the-door rule prevents witnesses from misleading the jury or misrepresenting facts. (See People v. Robinson (1997) 53 Cal.App.4th 270, 282-283.)
Here, after the trial court ruled on the prosecution's motion, French chose to testify regarding the Wolfgang and Gonzalez assaults. Thus, notwithstanding the trial court's ruling on the motion, the prosecution was entitled to present evidence regarding the Wolfgang and Gonzalez assaults to impeach French's testimony. (People v. Shea (1995) 39 Cal.App.4th 1257, 1267 [If " 'the defendant first seeks to mislead a jury or minimize the facts . . .' he may properly be questioned further."].) Notably, French's account of the incidents significantly differed from Wolfgang and Gonzalez's accounts and impacted French's credibility. French denied grabbing Wolfgang's throat and denied damaging her car when he went to pick up his personal items. In rebuttal, Wolfgang testified that French grabbed her by the neck and shoulder and slammed her against a dumpster and that he kicked and dented her car. As to Gonzalez, French repeatedly claimed that he never hit Gonzalez and that he may have inadvertently spit while yelling. Gonzalez testified that French puckered his lips before spitting directly in his face, that French knocked him unconscious, and identified photographs showing his facial injuries. Since the evidence of the prior assaults presented by the prosecution was proper impeachment evidence, we need not address whether this evidence was also admissible under section 1101, subdivision (b). Additionally, any objection under section 352 would have been meritless as French's testimony regarding the prior assaults rendered the impeachment testimony about the same assaults probative of French's credibility.
French could have forced the prosecution to present evidence of the prior assaults in the first instance and renewed his objection under section 1101(b) during the testimony. Presumably, defense counsel did not do so as a matter of trial tactics, i.e., to take the "sting" out of the evidence by letting jurors hear about the prior assaults from French.
II. Testimonial Hearsay
A. Background
Shelley Webster, a criminalist with the San Diego County Sheriff's crime lab testified at the preliminary hearing. She obtained a blood sample or an oral swab from French and Stark and used those samples to develop a DNA profile for each individual. She determined that blood from a drawer face and drawer handle from Stark's kitchen matched Stark. She also determined that blood on a shirt and jeans recovered from French's master bedroom matched Stark. Defense counsel had the opportunity to cross-examine Webster, but he asked no questions.
Webster did not testify at trial due to illness. Erin Forry, another criminalist that had performed a technical review of Webster's work to ensure that she had complied with all protocols and procedures testified without objection. Forry stated that someone with her qualifications would be able to determine, from the graphs and charts produced within the paperwork, whether the machines were working properly. Forry read all of Webster's notes, data and the report that Webster had prepared. She determined that Webster had performed the tests appropriately and ultimately signed the report agreeing to Webster's conclusions.
Forry testified that French's and Stark's DNA profiles were obtained to compare them with DNA recovered from the crime scene and French's home and car. It was determined that blood near the light switch in French's home, the gas pedal of French's car, one of the cell phones, a drawer and drawer handle in Stark's kitchen, French's shirt and jeans, and the knife blade and handle matched Stark's DNA.
After the prosecutor rested his case-in-chief, the following colloquy occurred
between the court and counsel:
"THE COURT: Anything else we need to discuss?B. Analysis
MR. DUSEK [the prosecutor]: Only for clarification, regarding the testimony of the DNA analyst today, obviously it was not Shelly Webster, who actually performed the test. She is sick -- seriously sick, apparently went to the hospital earlier this weekend and has returned to the hospital today . . . . We were able to get the verifier in here today, and I had advised
Mr. Kaminski [defense counsel] of the fact that the verifier rather than the original analyst would be here, and he was most agreeable in allowing her to testify.
THE COURT: Yes, I noticed that there was no objection raised about that procedure. And, Mr. Kaminski, you concur that you had no objection to that procedure?
MR. KAMINSKI: Judge, I was satisfied with the protocol that was followed by the examiner first of all, which was reviewed by the person who testified here in court. I was provided a CV for that person, and she also testified regarding her qualifications. I had examined the DNA evidence before today in the case, and I'm not raising any issue regarding the fact that the original evaluator was unavailable here today.
THE COURT: All right. Very well. Thank you."
French contends the admission of Forry's testimony about the DNA results violated his right to confrontation as defined by the United States Supreme Court in Crawford v. Washington (2004) 541 U.S. 36 and Melendez-Diaz v. Massachusetts (2009) 557 U.S. ____ (Melendez-Diaz).The People assert that French has not preserved this contention for appeal because he made no confrontation clause objection in the trial court. They also contend this argument lacks merit because: (1) Webster was unavailable for trial and French had a prior opportunity to confront and cross-examine her at the preliminary hearing; (2) any alleged error was harmless in light of the fact that French admitted to everything shown by the DNA evidence during his trial testimony; and (3) Melendez-Diaz does not apply where a witness who independently assessed the DNA evidence and offered her own expert opinion testifies at trial.
To avoid any claim of ineffective assistance of counsel for the failure to object and agreeing to Forry's testimony, we address French's claim on the merits. We need not resolve whether admission of Forry's testimony violated French's Sixth Amendment rights because even assuming without deciding that there was error, we conclude any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
French asserts the DNA evidence prejudiced him by showing premeditation and deliberation and that the prosecutor relied on the DNA evidence for this purpose during closing argument. Our review of the prosecutor's closing argument reveals that he cited the existence of Stark's DNA on her cell phone during rebuttal to show that French took the phone with him after the murder to review the text messages. Other than this one reference, the prosecutor did not mention the DNA evidence during closing argument. Rather, the prosecutor argued that the beating, followed by the strangulation and then retrieval of the knife showed premeditation and deliberation.
Significantly, the DNA evidence was merely cumulative of French's own testimony and the physical evidence. Namely, French testified that he struck Stark, grabbed her neck, and then went to the kitchen to get the knife. Stark's autopsy supported the sequence of events recited by French as it revealed that French severely beat and strangled Stark before slashing her throat. Prior to the fatal slash, French inflicted numerous shallow cuts to her throat. The prosecutor argued these actions were consistent with French developing the nerve to commit first degree murder. The evidence was strong, if not overwhelming, that French acted with premeditation and deliberation when he abandoned his attack on Stark, retrieved a knife from the kitchen and superficially cut her throat numerous times before inflicting the fatal wound.
DISPOSITION
The judgment is affirmed.
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MCINTYRE, J.
WE CONCUR:
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BENKE, Acting P. J.
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IRION, J.