Opinion
A155038
09-05-2019
THE PEOPLE, Plaintiff and Respondent, v. DARNELL WADE GRIER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR219393)
On August 17, 2015, appellant Darnell Wade Grier was charged by the Solano County District Attorney with possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)) (count 1), and discharge of a firearm with gross negligence (§ 246.3, subd. (a)) (count 2). As to the first count, the information also alleged appellant had previously been convicted in San Mateo County Superior Court of four prior felonies, including a prior strike. (§§ 1170.12, subds. (a)-(d); 667, subds. (b)(i).) After a three-day jury trial, appellant was convicted of both counts. At the sentencing hearing on July 20, 2018, the court denied appellant's motion to strike the prior convictions and sentenced him to a total term of six years in state prison.
All statutory references are to the Penal Code except as otherwise indicated.
The passage of three years between the filing of charges and sentencing appears to have resulted from the numerous continuances explained post, in footnote 3.
Appellant claims the trial court erroneously excluded evidence he entreated the arresting officer to subject him to DNA and gunpowder residue testing and take his fingerprints. We find it unnecessary to address this claim because, even assuming the existence of error, it was rendered harmless by the overwhelming evidence of guilt.
The Relevant Facts Elicited at Trial
Vallejo Police Officer Joe McCarthy, the arresting officer and only eyewitness to the shooting who testified, was the chief prosecution witness. Around 8:40 on November 14, 2013, while stopped at a traffic light at the intersection of Springs Road and Oakwood Avenue in Vallejo, McCarthy heard gunfire. He was initially unable to discern where it was coming from, but after he opened the passenger window and looked to his right, he saw "muzzle flashes" coming from a parking lot adjacent to the Blue Rock Bar, which was 200 to 300 feet away. He immediately observed a person quickly firing approximately six rounds, which took only two or three seconds. Officer McCarthy was unable to identify the shooter's target, but was able to observe the gunman pointing the gun straight ahead in a westerly direction toward the bar, 50 or 75 feet away.
In court, Officer McCarthy identified appellant as the shooter. He also stated that when the person stopped shooting, he ran toward and entered the passenger door of a silver coupe parked about 10 feet from him, which then sped away.
McCarthy saw other vehicles and people in the parking lot but was unable to see what the people were doing because he was fixated on the shooter. The driver of the silver coupe remained in the car while the shooting took place. As the car left, he was only able to see the driver's silhouette.
When appellant stopped shooting and ran toward the silver coupe, McCarthy called for backup. McCarthy turned left on Springs Road, away from the scene, and then immediately made a U-turn toward the bar and was able to see inside the silver coupe, which was then travelling in his direction. McCarthy testified that the two occupants were both African-American men and the driver had darker skin. McCarthy then made another U-turn and followed the departing vehicle. After quickly stopping the coupe, McCarthy ordered appellant and the driver, later identified as Eric Anthony Burrus, out of the car and detained them. Appellant had been sitting in the passenger seat.
Burrus was charged by the same information as appellant, with possession of a firearm by a felon (§ 29800, subd. (a)(1)) (count 3), and accessory after the fact with knowledge of the offense of discharge of a firearm, with gross negligence (count 4). After numerous continuances on the basis of Burrus's serious medical condition, Burrus died in early 2018, and the court granted the prosecutor's motion to dismiss the case as to him. On the first date of the trial of appellant, the court denied appellant's motion to dismiss the case, and granted his alternative motion to exclude the fact of Burrus's death.
Vallejo Police Officer Ritzie Tolentino arrived at the scene when McCarthy stopped the vehicle and ordered the occupants to exit. He testified that he and Officer McCarthy found an unloaded .45 caliber semiautomatic firearm in plain view on the floorboard of the driver's side of the car. The weapon "was warm and smelled of gunpowder," indicating it had been "recently fired."
After appellant was arrested and taken to the police department, McCarthy conducted a videotaped interview. McCarthy asked appellant whether his DNA would be found on the firearm, and said he planned to swab appellant's mouth to collect his DNA, test the gun for fingerprints, and do gunpowder residue testing on his clothing and the vehicle he occupied. During direct and cross-examination, McCarthy explained that he had often tested arrestees suspected of using a firearm for gunpowder residue and sometimes tested vehicles for such residue. McCarthy said he did not do those things in this case, nor test the gun for fingerprints or DNA, because he personally "saw [appellant] shooting it," trusted his own observations, and felt forensic evidence would be unnecessary. The reasons McCarthy was sure appellant was the shooter were that (1) the shooter was wearing short pants, as was appellant at the time he was arrested a few minutes later, and Burrus was wearing long pants; and (2) McCarthy saw the shooter run to Burrus's car and enter the passenger side, which is where appellant was seated at the time McCarthy stopped the vehicle.
Detective Sean Kenney went to the Blue Rock Bar after hearing Officer McCarthy's call for assistance and arrived there after McCarthy left in pursuit of the silver coupe. He found several people in the parking lot, which was not then well lighted. Only seven or eight people were willing to speak to him or offer information, some of which he passed on to other officers. Kenney acknowledged that he sometimes obtained the identification of persons unwilling to identify themselves but he did not try to do so here. Officer Kenney also retrieved six shell casings from the parking lot.
The parties stipulated that Vallejo Police Officer Richard Botero test fired the gun found in the vehicle appellant used to leave the scene. That weapon was booked into evidence by Stephanie Dailey, a senior police assistant assigned to the evidence and property room charged with crime scene investigation. Daily also booked into evidence casings from the test fire of the gun by Officer Botero. All eight casings were mailed to the forensic laboratory of the San Mateo County Sheriff's Office for testing. Officer Dailey testified that the gunpowder residue test simply entails "dabbing" a substance stored in a vial on both sides of a person's hands or his or her clothing.
Eugene Bangan-an, a criminalist and examiner employed by the San Mateo County forensic laboratory testified for the prosecution as an expert witness regarding firearm identification and analysis. Bangan-an examined the eight casings sent to his laboratory and concluded that all were fired from the same weapon found in Burrus's car and test fired by Officer Botero.
Appellant testified in his own defense and was the only defense witness. After acknowledging he previously had been convicted of four felonies involving moral turpitude, appellant stated that he did not "handle or possess a gun" on November 13, 2013.
Appellant said that on that date, after finishing his work as a plumber, he went to the Bottle Shop liquor store and got into a fist fight that lasted about 10 minutes with a man he knew as "Moe," and some of Moe's friends. When he went home afterward, he received two threatening phone calls, apparently from Moe, which he did not initially take seriously. Two or three hours later, appellant and his wife heard gunshots. When they went outside, they saw that his car had been "shot up."
A short while later, appellant's long-time friend Eric Burrus came to his house and they discussed appellant's fight with Moe and the shooting of appellant's car. Appellant asked Burrus to accompany him to speak with Moe to ensure that the hostility between him and appellant did not escalate. Appellant, who testified that he was unarmed, said he was unaware Burrus was then armed.
As noted, ante, at page 2, footnote 3, Burrus died prior to the commencement of trial.
Burrus first drove appellant to the Bottle Shop, but was told by the owner that Moe had recently left to go to the Blue Rock Bar. Burrus then drove to the parking lot of the bar, where he and appellant saw Moe and several friends standing close to Moe's blue van. Appellant then exited the car and said to Moe, "Let me talk to you, man." Moe then began shooting at appellant, who ducked behind parked cars. At that point, appellant testified, Burrus got out of the car and began shooting back at Moe. According to appellant, when McCarthy's police car came up behind Burrus's car, Burrus put the gun under the seat, close to where it was found by Officers McCarthy and Tolentino.
The jury was made aware at the outset of trial that appellant's defense was that Burrus, not him, was the shooter. In his opening statement, defense counsel told jurors that after appellant concluded that his car had been shot up by Moe "and realized that the situation was getting out of hand, he called his friend [Burrus] to go with him to try to talk some sense into Moe. Unknown to [appellant], Burrus armed himself with a gun." Counsel stated that when Burrus and appellant arrived at the Blue Rock Bar, "Moe stepped from a white van and pulled out a gun. Burrus got out of the car and the two exchanged gunfire from some—at close range—from some hundred yards away."
Implying that Officer McCarthy mistook him for the shooter, appellant also stated that he and Burrus were about the same size but he had darker skin than Burrus. When the prosecutor asked if he thought Officer McCarthy lied on the stand, appellant stated, "I know he's lying."
Finally, appellant testified that neither he nor his clothing was ever tested for gunshot residue and his DNA and fingerprints were never taken, as Officer McCarthy said would happen.
On cross-examination, appellant was asked by the district attorney why "[y]ou never told anyone—absent your attorney—you didn't tell the cops, you didn't tell my office that [Burrus] was the shooter, ever, until in court this week?" Appellant said that was "correct," and the reason he didn't earlier tell anyone Burrus was the shooter was that he "didn't want to be labeled a snitch" and also because he felt guilty for involving Burrus at all in his dispute with Moe. Asked whether he was now "okay with being labelled a snitch?" appellant answered "I'm just here to tell the truth." When the prosecutor asked why "the truth took five years to come out," appellant pointed out that there were "a lot of continuances on this case."
The prosecutor then pointed out that after appellant told Officer McCarthy that he arrived in the parking lot with Burrus but that another partner, who was "up out of Frisco," was already in the parking lot when they arrived, the person who did the shooting then "jumped over the fence" and ran away. When the prosecutor asked whether appellant lied to Officer McCarthy, and just "made up" the "other friend," appellant agreed. He lied, he said, because "he didn't want to tell on my friend [Burrus]." Appellant emphasized that he spoke openly to Officer McCarthy despite the fact he had been told he was not required to do so, because "I was just trying to tell him what really happened. But I didn't tell him that my partner was part of the shooting because I didn't want to get him in trouble."
DISCUSSION
Appellant's claims are that the trial court improperly excluded, as hearsay, evidence that he "repeatedly offered" to submit to DNA, fingerprint, and gunpowder residue testing shortly after his arrest in order to show that he was not the shooter, and that the exclusion of that evidence violated his Fifth, Sixth, and Fourteenth Amendment rights and state law. Much of the excluded evidence was contained in the videotape of Officer McCarthy's interview of appellant.
The admissibility of these out-of-court statements was discussed at length in connection with the prosecution's in limine motion to "exclude defendant's statements unless the prosecution offers them" under Evidence Code section 1220. Defense counsel argued that appellant's offers to be tested for DNA, fingerprints and gunpowder residue were relevant to his state of mind and to "show motive, bias, or interest in the witness," and the quality of the police investigation. Initially, the court took the position that appellant could testify that while he was interviewed by McCarthy he said, "Yes, I was willing and offered to give my DNA," but later changed his mind and ruled that appellant could not testify that he told McCarthy he was willing to provide his DNA "unless there [was a] prior inconsistency."
After the court ruled that defense counsel could in his opening statement describe the facts he expected to be able to present through appellant's testimony, the prosecutor sought clarification. Her position was that defense counsel should not be allowed to tell the jury appellant offered to have testing done because the state of mind exception was inapplicable and the statement would therefore be received for its truth. Ultimately, the court accepted the prosecutor's argument and ruled appellant could testify only that he was willing to submit to DNA testing, not that he told McCarthy of this willingness.
During his opening statement, defense counsel stated that appellant "later spoke openly with Officer McCarthy. He demanded to be tested as to gunpowder residue." The prosecutor immediately objected, and the court sustained the objection. Defense counsel followed up with these statements: "The evidence will show . . . [appellant] was confident that the hard evidence would show that he neither handled the firearm nor shot one that night. You will hear how Officer McCarthy never requested any follow-up evidence. In fact, not only wasn't it done but there was no attempt made to test either [appellant] or Burrus; their clothes, or the car they were in."
The issue of the admissibility of appellant's asserted efforts to be tested arose again after the prosecution rested and defense counsel sought clarification of the questions he could put to appellant. The court advised defense counsel that "you can ask him on the stand, 'were you willing to submit to DNA testing at the time you were arrested?' " The court added that if the district attorney challenged appellant's asserted willingness to submit to testing, "[t]hen you can say, 'Well, in fact, you told the police officer at the time as a prior inconsistent statement.' "
During direct examination counsel asked appellant "Now, you offered, didn't you, to have your—to be tested for gunpowder residue?" Appellant answered "yes," counsel followed up by inquiring "Why did you do that," the district attorney objected on hearsay grounds, and moved to strike, and the court sustained the objection and struck both questions and the answer to the first question. Noting that "I'm kind of at an impasse here," counsel asked appellant whether he spoke with Officer McCarthy. After he said he did, counsel asked," "you offered to provide evidence to him, right?" The prosecutor immediately objected that the question was leading and the court quickly sustained the objection.
Counsel then put a series of questions to appellant, eliciting statements that he had never been tested for DNA or anything else, his fingerprints had never been taken before he was transported to the police station, and the police had not impounded appellant's clothing or Burrus's car.
Appellant argues in this court that "a request, proposal, or directive to perform an act," such as his statement to McCarthy, is " 'neither inherently true nor false' and simply constitutes 'verbal conduct.' " (Quoting People v. Jurado (2006) 38 Cal.4th 72, 117, People v. Curl (2009) 46 Cal.4th 339, 362, and People v. Cowan (1910) 50 Cal.4th 401, 472.) In other words, appellant argues, a command or request is not offered for the truth of the matter stated, but is an entreaty made "with the expectation that the recipient has the ability to comply with it . . ." and is considered by the law as "verbal conduct" rather than hearsay. (Quoting People v. Clark (2016) 63 Cal.4th 522, 592.)
The Attorney General does not address the foregoing argument, contending instead that appellant's statements were properly excluded under Evidence Code section 352 because they "had slight probative value as relevant to appellant's consciousness of innocence" and "any probative value was outweighed by the strong risk of confusing the issues and prolonging the trial by requiring the prosecution to explain the circumstances of appellant's offer to be tested and to present evidence negating an inference of innocence shown by appellant's attempts to cooperate." We cannot accept the Attorney General's argument.
The prosecutor's vigorous effort to persuade the trial court to exclude evidence that appellant affirmatively asked that his DNA be tested, that he be fingerprinted, and that he and his clothing be tested for gunpowder residue was based exclusively on application of the hearsay rule embodied in Evidence Code section 1200; neither the district attorney nor the court ever mentioned or alluded to Evidence Code section 352, nor is it applicable. Appellant's statements were clearly relevant and receipt of them would not necessitate the undue consumption of time or create substantial danger of undue prejudice, of confusing issues, or of misleading the jury.
We are also unwilling to accept the Attorney General's first alternative argument, which is that appellant's claims in this court that the exclusion of his statements to Officer McCarthy prevented him from presenting a complete defense, confronting an adverse witness, and testifying on his own behalf violated the Fifth, Sixth, and Fourteenth Amendments were not preserved for appeal and forfeited, because they were not advanced in the trial court. This alternate argument is questionable. As stated in People v. Partida (2005) 37 Cal.4th 428, 436, " 'no useful purpose is served by declining to consider on appeal a claim that merely restates, under alternative legal principles, a claim otherwise identical to one that was properly preserved by a timely motion that called upon the trial court to consider the same facts and to apply a legal standard similar to that which would also determine the claim raised on appeal.' " (Id. at p. 436, citing People v. Yeoman (2003) 31 Cal.4th 93, 117.)
As earlier noted, however, we are persuaded by the Attorney General's contention that the court's error, if any, must be considered harmless under either of the tests prescribed by People v. Watson (1956) 46 Cal.2d 818, 836 or Chapman v. California (1967) 386 U.S. 18.
First, as the Attorney General points out, Officer McCarthy, a trained observer who had witnessed 25 shootings, personally witnessed the shooting. His identification was not based solely on viewing appellant while he was shooting, but his certitude that the shooter entered Burrus's car through the passenger side, which is where appellant was found by McCarthy when he stopped the vehicle several minutes later. Appellant acknowledged on cross-examination that there was not enough room in Burrus's car for him to have switched sides with Burrus without exiting the vehicle, and appellant never claimed, and there is no evidence, he exited the car during the short time he was inside it after the shooting. Further, as earlier noted, McCarthy's confidence appellant was the shooter was also based on his personal observation that the shooter was wearing short pants, and on cross-examination appellant admitted he was wearing shorts on the day of the shooting and when he was detained. At the time of the arrest, Burrus was wearing long pants.
Second, McCarthy had no history with appellant that might have induced him to lie or any other reason not to tell the truth. Also, much of McCarthy's testimony about what took place at the time he apprehended appellant and Burrus and afterward was corroborated by Officer Tolentino, who was then present at the scene.
Third, Officer McCarthy provided a reasonable explanation for not conducting DNA, fingerprint, or gunshot residue testing; namely, that such tests are expensive, ordinarily conducted only in cases more serious than this one, and there was no need for forensic evidence because he personally witnessed appellant possessing and discharging the firearm, which he believed sufficient to obtain a conviction.
Fourth, appellant was not a credible witness. At the time he was arrested, appellant told the police the shooter was a friend—though one he was unable or unwilling to identify—who was responding to shots from Moe, after which he jumped a fence and ran away. Almost five years later, appellant changed his story, claiming for the first time that Burrus, not the unidentified friend, was the person shooting at Moe. This claim was wholly uncorroborated by Moe, who never testified, or by anyone else.
The record does not indicate the jury was ever made aware Burrus had died prior to appellant's trial.
Finally, the court allowed appellant to tell the jury that though he cooperated with Officer McCarthy at the time he was arrested, no DNA, gunpowder residue, or fingerprint testing was performed by the police.
DISPOSITION
Because the error, if any, was not prejudicial, the judgment is affirmed.
/s/_________
Kline, P. J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.