Opinion
A156633
06-19-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ANDREW GLOVER, JR., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 614656)
Robert Andrew Glover, Jr. appeals after he was convicted by a jury of sexual penetration by a foreign object (Pen. Code, § 289, subd. (a)(1)(A)) and assault with intent to commit a sex crime (§ 220, subd. (a)(1)). Glover contends the prosecution violated its duty, under Brady v. Maryland (1963) 373 U.S. 83 (Brady), to disclose exculpatory evidence and his trial counsel was ineffective. We affirm.
Undesignated statutory references are to the Penal Code. --------
BACKGROUND
A.
On the morning of August 14, 2014, 21-year-old Jane Doe returned to her mother's home after working a night shift and went to sleep, in the nude, in her unlocked bedroom. Doe knew that her mother's boyfriend, Glover, was at the house.
Doe testified that she was awakened to find Glover "touching [her] leg" underneath the covers, specifically her bare "right upper thigh and butt." Doe demanded Glover leave, but he responded, "let [me] taste it." Doe understood Glover wanted to perform oral sex. Doe told him to "stop" and continued to demand he leave her room. Ignoring her, Glover leaned on Doe and tried to kiss her upper thigh.
Next, Glover pinned Doe's arm to the mattress while he inserted his finger in her vagina and "twist[ed] his hand." Doe tried to resist by pushing away with her legs, but Glover's weight pinned her to the bed. After removing his finger and putting it in his mouth, Glover demanded a hug. Doe refused and Glover bent her big toe until it caused her pain, said he could "suffocate" her, grabbed her hand to force a handshake, and left the room. After Glover left the house, Doe drove to her boyfriend's house and called her mother.
According to Doe's mother, Doe was crying when she reported Glover had forced himself on her. Doe's mother drove Doe to the Oakland Police Department, where each gave written statements. Doe also underwent a sexual assault examination at a nearby hospital.
The prosecution presented the testimony of the forensic examiner who conducted the sexual assault exam, Hillary Larkin. Doe told Larkin that she had been sexually assaulted by "Robert," reporting specifically that he slapped her on the right thigh, held her down on the bed using his weight, penetrated her vagina with his finger, and threatened to break her big toe. When Larkin asked Doe if there was anywhere she was likely to find saliva or sweat, Doe reported Glover licked her face, neck, hands, and right leg. Larkin swabbed these areas for DNA. Doe also told Larkin that she had not had consensual intercourse during the preceding five days. Larkin discovered tenderness in Doe's ankle and in her vaginal opening, as well as abrasions to her left labia minora. Larkin concluded these findings were consistent with Doe's account.
Oakland Police Officer Nancy Cerecedes interviewed Glover about a week later. Glover confirmed he had been at Doe's mother's home on August 14 but said he only saw Doe "in passing." He denied having any sexual encounter with her. When asked if he knew of any reason why his DNA would be on Doe, he said, "[h]ell no."
Criminalist Chloe Bauer testified, as an expert in DNA analysis and comparison, that Glover's DNA profile was consistent with the foreign DNA profile found in a mixed sample from Doe's right thigh. The probability of randomly selecting someone with this profile was one in 39 trillion.
B.
The defense did not present any evidence but sought to discredit Doe through cross-examination. In particular, defense counsel asked Doe to read her statement to police while on the stand, which Doe confirmed did not contain any mention of Glover kissing or attempting to kiss her. Doe was also asked whether she had sex with her boyfriend in the days leading up to August 14 but she said she could not remember.
During cross-examination, Officer Cerecedes was shown a laboratory contact log, and asked if Doe gave contradictory information about when she had sex with her boyfriend. The log itself, which was not admitted into evidence, states Cerecedes sent an e-mail to Bauer: "Victim told Ofc. Cerecedes that she had sex with her boyfriend which contradicts what the med report says." However, the log did not refresh Cerecedes's recollection of sending such an email.
When defense counsel asked Bauer about the email, Bauer confirmed she received an email from Cerecedes regarding Doe having sex with her boyfriend, which contradicted the medical report and was the reason a DNA sample had been obtained from Doe's boyfriend.
Larkin also testified on cross-examination that "[i]t's possible" her opinion regarding consistency between Doe's account and the physical findings might change if she was aware Doe had consensual intercourse within a five-day period.
C.
After the jury reached its verdicts, convicting Glover of sexual penetration by a foreign object and assault with intent to commit sexual assault, Glover substituted new counsel and compelled production of the email.
In a motion and supplemental motion for new trial, Glover argued his trial counsel was ineffective and that the prosecution should have volunteered the email, under Brady, supra, 373 U.S. 83, because it was exculpatory (in that consensual sex purportedly provided an alternative explanation for the abrasions to Doe's labia) and would have allowed further impeachment of Doe. The exhibits to the motion included a copy of the email, in which Cerecedes writes, "[Glover] was going to give me a buccal sample, . . . I'm hoping he will come in today. V1 told me she also had sex with her boyfriend . . . , but he has not returned my calls."
The trial court denied the motion for new trial, concluding there was no reasonable probability that, had the defense obtained the email earlier, the result would have been different. Glover was sentenced to a term of six years in prison.
DISCUSSION
A.
Glover argues the prosecution's failure to produce the email violated his due process rights, under Brady, supra, 373 U.S. at p. 87. After conducting an independent review (People v. Letner and Tobin (2010) 50 Cal.4th 99, 176), we disagree.
1.
The prosecution bears a due process obligation to disclose exculpatory evidence to the defense with or without a request. (Brady, supra, 373 U.S. at p. 87; United States v. Bagley (1985) 473 U.S. 667, 682.) While the prosecution has a broad duty to disclose exculpatory evidence, "not every violation of that duty necessarily establishes that the outcome was unjust." (Strickler v. Greene (1999) 527 U.S. 263, 281.) A Brady violation has three components: "The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." (Id. at pp. 281-282.)
2.
Even if we assume the first two components of a Brady claim are established, Glover's Brady claim fails because he cannot show prejudice.
Prejudice, for purposes of a Brady claim, "focuses on 'the materiality of the evidence to the issue of guilt or innocence.' " (People v. Salazar (2005) 35 Cal.4th 1031, 1043 (Salazar); accord, People v. Letner and Tobin, supra, 50 Cal.4th at p. 176.) In other words, a defendant must show a " 'reasonable probability of a different result' " had the prosecution disclosed the evidence. (Salazar, supra, at p. 1043.) " 'A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. " ' " (People v. Hoyos (2007) 41 Cal.4th 872, 918, disapproved on other grounds by People v. Black (2014) 58 Cal.4th 912, 919-920; accord Strickler v. Greene, supra, 527 U.S. at p. 290 ["the question is whether 'the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict' "].) We assess that probability "by considering the evidence in question under the totality of the relevant circumstances and not in isolation or in the abstract." (In re Sassounian (1995) 9 Cal.4th 535, 544.)
Glover suggests Larkin would have changed her opinion and provided exculpatory testimony if she had been aware Doe had consensual sex within the five days preceding the assault. We decline to speculate about how she may have testified. And contrary to Glover's assertion, the email would not be admissible to prove the truth of the matters stated therein. (See Evid. Code, § 1200, subd. (b) ["Except as provided by law, hearsay evidence is inadmissible"].) "One commonly used method of impeachment is the adducing of evidence of a prior statement by the witness inconsistent with his testimony on the stand, for which purpose the statement is not considered to be hearsay." (People v. Sam (1969) 71 Cal.2d 194, 208; see Evid. Code § 1235.) Here, however, neither the hearsay exception for prior inconsistent statements nor prior recollection recorded would apply because Doe testified that she could not remember if, four years earlier, she had sex within five days of the assault. (See Evid. Code, §§ 1235, 1237, subd. (a)(3); People v. Green (1971) 3 Cal.3d 981, 988 [normally a witness's testimony that she does not remember an event is not " 'inconsistent' " with a prior statement describing the event]; People v. Sam, supra, 71 Cal.2d at p. 209 ["there is no inconsistency and therefore no impeachment value in statements the witness claims to have forgotten"].)
But even if we assume the email would have been admissible to impeach Doe or that the defense could have used the email in an attempt to refresh Cerecedes's recollection, we nonetheless conclude the impact of such impeachment would not likely have placed the People's evidence against Glover in such a different light as to undermine our confidence in the outcome of the trial. (Salazar, supra, 35 Cal.4th at p. 1043 [materiality "requires more than a showing that the suppressed evidence would have been admissible"].) " 'In general, impeachment evidence has been found to be material where the witness at issue "supplied the only evidence linking the defendant(s) to the crime" [citations], or where the likely impact on the witness's credibility would have undermined a critical element of the prosecution's case. . . . [A] new trial is generally not required when the testimony of the witness is "corroborated by other testimony." ' " (Id. at p. 1050.)
Glover concedes his trial counsel had a copy of Bauer's contact log at trial and cross-examined her using that evidence. Thus, the jury was aware of the conflict between what Doe told Larkin and what she later told police investigators. Defense counsel, in his closing argument, argued Doe had lied—both about the assault and to Larkin about consensual sex with her boyfriend. Yet Doe's testimony about the sexual assault itself was largely corroborated by her same day reports to both her mother and Larkin, Larkin's physical findings, and most importantly by the presence of Glover's DNA on Doe's thigh. Glover provided no innocent explanation for why his DNA would be found there.
Doe's credibility was obviously very important. But the specific impeachment evidence at issue here—which does not conflict with Doe's description of the assault itself—is not particularly damaging. Doe's testimony was not the only evidence against Glover. The trial court correctly noted the DNA evidence was "critically important" in refuting Glover's denial of the sexual assault. Because the corroborating evidence was strong and the email itself would have added little, it is not reasonably probable Glover would have avoided a conviction on either count if the defense obtained the email between Bauer and Cerecedes. The trial court did not err in rejecting Glover's Brady claim.
B.
In the alternative, Glover contends his trial attorney was ineffective because he failed to obtain the email before or during trial. As we have observed above, however, Glover cannot show prejudice. There is no reasonable probability that, but for any error, the result of Glover's trial would have been different. (See Strickland v. Washington (1984) 466 U.S. 668, 693-694.) Accordingly, we reject Glover's claim of ineffective assistance of counsel. (Id. at p. 697.)
DISPOSITION
The judgment is affirmed.
/s/_________
BURNS, J. We concur: /s/_________
SIMONS, ACTING P.J. /s/_________
NEEDHAM, J.