Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Margie G. Woods, Judge. Affirmed., Super. Ct. No. SCD210993
AARON, J.
I.
INTRODUCTION
A jury convicted defendant Sekou Harris of one count of possessing cocaine base for sale and one count of selling cocaine base. On the second day of trial, after the prosecution presented its case-in-chief, Harris's attorney informed the court that Harris's former girlfriend, Stacey Adams, who had pled guilty to possessing a controlled substance in relation to the same incident, was available and ready to testify. Harris's attorney had not previously notified the prosecutor of his intention to call Adams as a witness.
The prosecutor objected, arguing that Harris had violated the discovery rules by waiting until after the trial had started to indicate his intention to call Adams to testify. Counsel for Harris's codefendant, Marcus Costner, also objected to allowing Adams to testify because Adams's expected testimony was inconsistent with the defense that Costner had prepared in reliance on the state of the evidence as it stood at the start of trial. Costner's attorney argued that permitting Adams to testify would violate Costner's right to a fair trial.
The trial court determined that Harris's late notice in seeking to call Adams to testify constituted a violation of the discovery rules. In light of the discovery rule violation, as well as Costner's due process argument and the limited value of the proffered testimony, the trial court ultimately ruled that Harris would not be permitted to call Adams as a witness.
On appeal, Harris contends that the trial court abused its discretion in precluding Adams's testimony as a sanction for a discovery rule violation. Harris further asserts that the trial court's decision to preclude the testimony violated several of his constitutional rights, including the right to compulsory process, the right to confront witnesses, and the right to present a defense.
We need not determine whether the trial court erred in precluding Adams from testifying because we conclude that even if the court did err in its ruling, Harris did not suffer prejudice as a result.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
At approximately 11:00 p.m. on January 3, 2008, San Diego Police Detective Michael Day took part in a narcotics sting operation on C Street in San Diego. Detective Day, working undercover, walked along C Street between Seventh and Eighth Avenues. Day encountered Costner and told Costner that he wanted to buy drugs. Costner asked, "Do you have a pipe?" When Day responded that he did not have a pipe, Costner said, "Give me your money, I'll get it for you if you share it with me."
Detective Day handed Costner a prerecorded $20 bill. Costner took the money and walked across the trolley tracks to the other side of the street, while Day followed behind. Costner approached a tan Chevrolet Impala. Stacey Adams was seated in the driver's seat, and Harris was in the passenger seat. An individual identified as Issa was sitting in the backseat. Costner knelt down near the passenger side of the car and spoke with Harris through the open car window.
Day witnessed Harris place a small object in Costner's hand. Costner walked to a lit area and inspected the object. He then returned to the Impala and handed Harris a $20 bill. Costner returned to Day and handed him the object, which Day recognized as cocaine base. After Costner handed him the cocaine base, Day gave the prearranged arrest signal.
The car in which Harris was riding drove away. However, a uniformed officer stopped the car a few blocks away from the scene. The officer searched Harris and found his cellular telephone and three $20 bills, one of which was the prerecorded $20 bill that Day had given to Costner. While officers were in the process of arresting Harris, his cellular telephone rang seven times.
A uniformed officer arrested Costner and found a cocaine pipe and $2.00 in his possession.
Officers later searched the Impala and Harris's nearby motel room. They found a small piece of rock cocaine in the vehicle, and $794 in cash in the motel room.
B. Procedural background
By amended information, the San Diego District Attorney charged Harris with selling cocaine base (Health & Saf. Code, § 11352, subd. (a) (count1)) and possessing cocaine base for sale (Health & Saf. Code, § 11351.5 (count 2)). The information alleged that Harris had twice been convicted of violating Health and Safety Code section 11352, within the meaning of Health and Safety Code section 11370.2, subdivision (a), and further alleged that Harris had suffered one prison prior (Pen. Code, § 667.5, subd. (b)), and one strike prior (Pen. Code, §§ 667, subds. (b)-(i), 1170.12).
The information also charged Costner and Adams with the same two counts, i.e., selling cocaine base and possessing cocaine base for sale. Adams pled guilty. Costner and Harris were tried as codefendants before the same jury.
On June 20, 2008, the jury found Harris guilty of both counts. The trial court found true the allegation that Harris had suffered two prior Health and Safety Code section 11352 convictions. Harris admitted that he had suffered both a prison prior and a strike prior.
III.
DISCUSSION
A. Additional factual background
At the end of the first day of trial, the trial court asked both defendants' attorneys whether they expected to present any affirmative evidence. Costner's attorney said she did not expect to present any evidence. Harris's attorney indicated that there had been a "late development" that his investigator was "working on." The prosecutor stated that she had not received any discovery regarding a "late development," and requested an offer of proof. Harris's attorney said, "It's so – it's substantial – now, I can't say anything more than I have, Your Honor. I regret that. But that's where we are."
The next morning, the court inquired, "So while we wait for the one juror, just an update. Do we have an update as to the witness lineup? I believe the Court heard there will be some witnesses called after the People rest." The following colloquy then occurred:
"[Defense Counsel]: Your Honor, just as of late yesterday, I have finally learned that the other original arrestee, Stacey Adams, is available and willing to testify. And I have her under subpoena. [¶]... [¶] I gave copies of [the investigator's] one-page report on his interview of Ms. Adams to the attorneys. And the report, somewhat, I think is self-explanatory that this is something that we had been working on for a while but didn't come to fruition to the point where we learned that she was available and willing to testify until just late yesterday, and that – therefore, I offer that as an explanation of the late stage of the trial in which this comes up. [¶] But I do intend to call her this afternoon. I have her agreement to be here at 1:15. I expect it will take an hour.
"THE COURT: Thank you. So as the Court understands it, the witness became available just within the last day or so?
"[Defense Counsel]: That's exactly right.
"THE COURT: Was interviewed within the last day as well?
"[Defense Counsel]: I'm sorry?
"THE COURT: A statement was given to your investigator within the last day?
"[Defense Counsel]: Yes.
"THE COURT: It's been provided to counsel this morning?
"[Defense Counsel]: Yes.... And I gave my investigator's card to both counsel and told them and him that they're free to contact him for anything further that they might be interested in."
The court then asked the prosecutor if she had any comments or concerns. The prosecutor responded:
"Yes, Your Honor. Obviously I'm very concerned about the late discovery. I would like to hear from counsel what efforts he made to get in touch with Stacey Adams prior to this, what diligence he pursued in contacted her. [¶] The information I have is that, one, her name was listed in the police report. Two, when she was interviewed by the police, she indicated to the police she was Mr. Harris's girlfriend. [¶] So to me it seems that Mr. Harris certainly would have been able to locate her. I would like further information of why this discovery is coming at such a late stage in the game. [¶] Additionally, I asked yesterday on the record what sort of information might be coming when counsel said that he was working on something. He was very very vague, didn't give an answer. Clearly he knew that he was looking for this witness. He could have provided the People with the fact that he was at least trying to get in touch with her, but instead he just said that really there wasn't any information to share, and he was very vague about it. [¶] I think, based on the fact that it's late discovery, the People are objecting."
The prosecutor indicated that she wanted an opportunity to speak with Adams and also wanted the court to instruct the jury that Harris had not met his discovery obligations in that he failed to provide the People with information about Adams, as required under the discovery rules. The prosecutor stated, "If counsel can represent why [Adams] just all of a sudden became available, the People would feel better. But at this stage in the game, it appears that she was known as a witness all this time and that really diligence wasn't done to try to locate her until the day that she's going to testify."
The trial court decided to revisit the issue to find out more specific information about Adams and the facts surrounding defense counsel's diligence or lack thereof in identifying her as a witness. The court indicated that it would address these issues later that day. The attorneys then continued examining the prosecution's witnesses.
During a morning break, the court broached the topic of Adams's potential testimony again. The court asked Harris's attorney to explain "why this information came late or what efforts were made to try to get this witness's statement prior to now[.]" Harris's attorney stated that he had been informed that Adams and Harris had not been in a relationship for some time, and that he had "trouble even locating her." According to Harris's counsel, Adams had been uncooperative, and had indicated to his investigator that "she did not care to testify." Under those circumstances, Harris's attorney "didn't see any purpose in calling her as possibly a hostile witness, or at least [an] uncooperative one." However, during that week, he "got word that she had turned around about 180 degrees and was willing to testify." Harris's attorney indicated, however, that he did not want to call Adams, but that Harris was demanding that he do so: "I'm not particularly desirous of calling her in any event because I feel that there's more to lose than gain in doing so. But I'm doing it at my client's insistence."
The trial court indicated that it was not inclined to exclude Adams's testimony at that point in time. However, the court would allow the prosecutor to speak with Adams before she took the witness stand. Costner's attorney then joined the prosecutor's request to exclude Adams's testimony. Costner's attorney raised the possibility that allowing Adams to testify would violate Costner's due process right to a fair trial, since Adams's new statements conflicted with the state of the evidence as Costner's attorney had understood it, and as she had represented in her opening statement to the jury.
Adams arrived at court that afternoon, and the prosecutor and Costner's attorney interviewed her off the record. After interviewing Adams, the prosecutor renewed her objection to Adams's testimony, and indicated to the trial court that, according to Adams, Adams has lived at the same address since the incident, and that "she was not contacted until just yesterday and that she was cooperative all throughout, that she would have been willing to testify at any point in time." Costner's attorney also renewed her objection, and informed the court that Adams's recent statement to Harris's investigator was "completely contradictory to what she told the police on a previous occasion." Although Adams had originally told the police that she did not know what had happened because she was starting the car and was not paying attention to what was taking place between Harris and Costner, Adams apparently told Harris's investigator that she heard Harris and Costner talking and then saw Harris reach into his pocket and give Costner some one dollar bills. The inference from Adams's more recent statement to the investigator was that Costner had the drugs in his possession the entire time, and that he had not obtained the drugs from Harris. Costner's attorney stated, "So we are now left with a statement that is contradictory to the evidence we relied on in opening statements and in the presentation of cross[-]examination. If I had known that this was going to be a witness who was going to be called on behalf of Mr. Harris, I would have made a motion to sever. I would have made a motion to sever based on inconsistent defenses."
The court did not rule on the issue until later in the day. At the close of the prosecution's case-in-chief, the attorneys for both defendants moved for judgments of acquittal pursuant to Penal Code section 1118.1. The court denied the defendants' motions and then ruled with regard to Adams's testimony. The court found that the statements Adams made to Harris's investigator were "contrary to what was stated to Detective Day and provided as discovery to the parties when [Adams] indicated she did not know what happened, she was starting the car and she was not paying attention." The court determined that Adams's newly proffered testimony would affect Costner's defense and would constitute grounds for a motion to sever his trial from Harris's. The court rejected Harris's attorney's claim that Adams had been uncooperative until the time of trial. The court determined that Harris's defense team "would have been privy to information from Ms. Adams sooner than the second day of the trial," in view of Adams and Harris's close relationship and the fact that Adams had lived at the same address since the time of the arrests, at a location that was in "close proximity... to Mr. Harris's domicile." The trial court found that Harris had violated his discovery obligations under Penal Code section 1054, and concluded that Adams's testimony should be excluded:
"The Court, therefore, finds that, based on a violation of 1054, based on the due process argument as submitted by the defense for Mr. Costner, as well as an assessment made as to the value of this testimony and the request made by Mr. Harris without his counsel's support, but through his counsel, the Court finds that the evidence of and the proffered testimony must be excluded. Therefore, the Court does sustain the objection and grants the motion to exclude as to both the People and as to the defendant Mr. Costner."
B. Harris was not prejudiced by the trial court's decision to exclude Adams's testimony
Harris contends on appeal that the trial court abused its discretion in precluding Adams's testimony because the record does not suggest that Harris or his trial counsel willfully failed to comply with the discovery rules, or that the People would have been significantly prejudiced by any purported discovery violation. Harris also argues that by precluding him from calling a witness, the trial court violated his constitutional rights to compulsory process, to confront witnesses, and to present a defense. Although we question the merits of both arguments, we need not determine whether the trial court abused its discretion or violated Harris's constitutional rights because we conclude that the preclusion of Adams's testimony did not prejudice Harris, even under the heightened standard of prejudice we must apply to claims of constitutional error.
Errors of constitutional dimension are reviewed for prejudice under the "harmless beyond a reasonable doubt" standard of Chapman v. California (1967) 386 U.S. 18. (See People v. Edwards (1993)17 Cal.App.4th 1248, 1266.) Under this test, we consider whether it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman, supra, 386 U.S. at p. 24.)
In this case, there was overwhelming evidence that Harris took part in a drug sale with Costner. Detective Day witnessed the entire episode from 30 to 35 feet away. Day saw Harris hand Costner an "object," which Day said appeared to be rock cocaine. Costner moved into the light to examine the object, and then returned to Harris and handed him a $20 bill. Harris was searched immediately after the incident and was in possession of the marked $20 bill that Day had given to Costner to buy drugs. In addition to the evidence of that evening's drug transaction, there was indirect evidence of Harris's involvement in selling drugs, including the large amount of cash found in his motel room, the frequency with which his cellular telephone was ringing during his arrest, and the presence of another piece of rock cocaine in the car in which he was riding.
On the night of the incident, Adams told police that she did not know what had happened because she had not been paying attention. However, according to Harris's investigator's report of his interview with Adams, Adams intended to testify at trial that Harris had given Costner money, not drugs. Although it is not totally clear from the record, Adams's new version of events seemed to be either that Harris had given Costner change for a $20 bill, or that Harris gave Costner two $1 bills. Either story was inherently suspect, particularly in view of Day's testimony that Costner stepped into the light to view whatever Harris had given him before he returned to give Harris the marked $20 bill, and that the object Harris handed to Costner was much smaller than paper bills. Further, neither version was plausible in light of what police found in the defendants' possession immediately after the incident: Costner did not have change for a $20 bill in his possession, and although Costner did have two $1 bills, Harris had in his possession the marked $20 bill that Day had given Costner.
Adams had other credibility problems, as well. She was subject to impeachment with her original assertion made on the night of the incident that she did not know what had happened between Harris and Costner, as well as her admission, made in connection with her own guilty plea, that she unlawfully possessed drugs on the evening in question. Adams's new statements were so lacking in credibility that Harris's own attorney was clearly uncomfortable at the prospect of calling Adams as a witness:
According to the probation report, Adams pled guilty to unlawfully possessing a controlled substance, in violation of Health & Safety Code section 11350, subdivision (a).
"I don't know that I would go so far as to call them inconsistent, Your Honor. But certainly what she told our investigators was – was much – added a lot of information to what she had told Detective Day. [¶] Her explanation for not being more forthcoming with Detective Day was that she was frightened by the entire situation she was in with police cars surrounding them, et cetera. But I don't know. I – I recognize that in proffering Ms. Adams as a witness, I am in a position of vouching for her testimony, and I'm uncomfortable, frankly, doing that. I feel I'm kind of in a position of the theoretical lawyer who is asked to put his client on the stand to give an account that the lawyer does not believe is true and has to do it as a narrative."
In fact, Harris's attorney believed that Adams's testimony was more likely to hurt Harris's case than to help it. He indicated that he was opposed to calling Adams as a witness, and told the court, "I don't know what she's going to say. What I understood what [sic] would happen when I called her is that she would say that Mr. Costner came up asking for change for a twenty and that Mr. Harris gave him change for a twenty. Of course, it's obvious that he [Costner] didn't have change for a twenty on him when he was arrested. [¶] So that's problematic, to put it mildly. Which I explained to Mr. Harris and said that I would – really would prefer not to call her, but Mr. Harris has instructed me to call her, so I don't have any – any option, as I see it."
It is clear from the record that Harris's attorney had reason to be concerned about calling Adams to testify, since her anticipated testimony lacked credibility.
In view of the nature of Adams's proffered testimony and the otherwise overwhelming evidence of Harris's guilt, we conclude, beyond a reasonable doubt, that Harris would not have received a more favorable result even if Adams had been permitted to testify.
Because we conclude that Harris was not prejudiced by the trial court's ruling, we need not resolve what appears to be a novel issue regarding whether the trial court may consider the potential prejudice to a codefendant in determining whether to preclude a witness's testimony as a discovery violation sanction under Penal Code section 1054.5, subdivision (c). Subdivision (c) of Penal Code section 1054.5 permits a court to "prohibit the testimony of a witness... only if all other sanctions have been exhausted." We do not intend our silence on this issue to suggest that we have determined that a court may not take into account the potential prejudice to a codefendant in determining the appropriate sanction for a defendant's discovery violation.
IV.
DISPOSITION
The judgment of the trial court is affirmed.
WE CONCUR: McCONNELL, P. J., McDONALD, J.