Opinion
D040738.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. JESSE TEREANSE LEE, Defendant and Appellant.
A jury convicted Jesse Tereanse Lee of resisting an executive officer by force and violence, a felony (Pen. Code, § 69); assaulting a peace officer, a misdemeanor (§§ 240, 241, subd. (b)); and resisting a peace officer in discharging his duty, a misdemeanor (§ 148, subd. (a)(1)). Lee successfully moved to reduce the felony conviction of resisting an executive officer to a misdemeanor under section 17, subdivision (b). The court suspended imposition of sentence and placed Lee on unsupervised, informal probation for three years.
All statutory references are to the Penal Code unless otherwise specified.
The jury acquitted Lee of harming or interfering with a police animal (§ 600, subd. (a)).
Lee appeals, contending: (1) he was deprived of his constitutional right to present a defense when the court denied his request to have a witness testify about a prior complaint of excessive force against the police officer who detained Lee; and (2) the court violated his constitutional right to confrontation by refusing to allow him to cross-examine the officer regarding the prior complaint of excessive force. We affirm the judgment.
FACTS
On October 30, 2001, San Diego County Deputy Sheriff Robert Stebbing was on patrol when he noticed someone driving a car with a faulty taillight, a Vehicle Code violation. Stebbing activated his overhead lights in an attempt to stop the driver. The driver, later identified as Lee, did not stop. Instead, he drove his car slowly in the bicycle lane, made a turn, briefly stopped in the middle of the road, and then made a turn into a parking lot. Based on his experience as a police officer, Stebbing became suspicious when Lee did not immediately stop, believing he was a fugitive or was trying to hide drugs or weapons.
As Stebbing walked to Lees car, Lee drove in reverse toward the patrol car before slowly driving forward. Stebbing got back in his patrol car and activated his air horn. Lee responded by parking his car. Stebbing approached Lee and asked for his drivers license. Lee said he left it at home and had no other form of identification with him. Stebbing asked Lee to get out of his car and sit in the back of the patrol car, explaining he was not under arrest but was being temporarily detained to verify his identity. When Lee refused to sit in the patrol car, Stebbing grabbed him by the arm and ordered him to get into the car. Lee still refused and Stebbing tried to push him inside the car. As they struggled, Lee came toward Stebbing with clenched fists; Stebbing responded by using pepper spray. Undeterred, Lee took several swings at Stebbing, who again sprayed Lee with pepper spray. Stebbing swung at Lee with a flashlight, but did not hit him. Lee began to run and Stebbing chased him. When Lee jumped over a fence, Stebbing abandoned the chase and notified other deputies of the situation.
Deputy Sheriff Dan Settle responded to Stebbings call and searched for Lee with the help of Urk, a trained tracking dog. A police helicopter flew overhead and gave at least three warnings that the dog would bite Lee if he did not surrender. Urk found Lee and bit him on the forearm. Lee struggled with Urk, pulling on and twisting his head. Settle struck Lee in the abdomen with a flashlight to prevent him from injuring the dog. When Lee did not respond to commands to release the dog, Deputy Sheriff Lewis Schott fired a pepperball gun at Lee, hitting him in the torso. Schott also hit Lee several times in the shoulder with his flashlight. Another officer arrived and struck Lee two or three times with his baton in an attempt to make him let go of the dog and submit to the deputies. They eventually handcuffed Lee and brought him to the hospital. Stebbing did not assist in Lees arrest.
At trial, Lee testified to the arrest events. He did not initially stop for Stebbing because another car interfered with his ability to do so. He also was concerned for his safety and wanted to park in a shopping center rather than a dark area. Stebbing got out of the patrol car, began screaming at Lee and asked why he did not immediately stop. Lee was looking for his identification when Stebbing told him to get out of the car and go to the patrol car. Stebbing refused to tell Lee why he stopped him. Stebbing approached Lee and grabbed his hands. Lee asked Stebbing to be careful because he had a previous shoulder injury, but Stebbing twisted Lees arm behind his back and shoved him against the car, dislocating his shoulder. Stebbing then sprayed Lee with pepper spray, causing him to become disoriented. Stebbing swung a flashlight at Lee as if he were going to hit him. Lee ran to get away from this situation.
Lee saw the police helicopter, but could not hear what was being communicated. He saw two officers coming toward him with a dog. The officers grabbed his feet while the dog bit him. The officers shot him in the abdomen with pellets from a pepperball gun and beat him on his back and side with batons and flashlights. They handcuffed and dragged him through the gravel before bringing him to the hospital, where he remained for four days. He returned to work a month later, but was unable to perform his duties as a result of his injuries. His employment was eventually terminated.
DISCUSSION
I
Constitutional Right to Present a Defense
Lee contends he was deprived of his Sixth and Fourteenth Amendment rights to present a defense when the court denied his request to call a witness who filed a prior complaint of excessive force against Stebbing. Lee asserts the exclusion of this evidence, which was vital to his defense that the officers used unreasonable force in detaining and arresting him, violated his right to a fair trial and requires reversal.
A. Procedural Background
Lee was charged with resisting an executive officer by force or violence, assaulting a peace officer and resisting arrest. His defense was he used reasonable force to protect himself against the officers use of excessive force.
Before trial, the court granted Lees Pitchess motion (Evid. Code, § 1043) to discover personnel records of Stebbing and the arresting officers, containing citizen complaints of excessive force. One of two names disclosed to Lee was Jesus C., a minor in custody, who claimed Stebbing had used excessive force in arresting him by hitting him with a flashlight.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
During trial, defense counsel sought to introduce Jesuss testimony to show a pattern of behavior, or modus operandi, used by Stebbing. Outside the jurys presence, defense counsel made an offer of proof that Jesus would testify Stebbing struck him repeatedly with a flashlight when he apprehended him in August 2001. The prosecutor objected on the grounds the evidence was irrelevant and any probative value was outweighed by its prejudicial effect under Evidence Code section 352. The court ruled defense counsel would need to file a motion in limine detailing the facts of the incident between Jesus and Stebbing so that the prosecutor could respond and the court could evaluate the admissibility of the proffered testimony.
In his written motion, defense counsel argued:
"Using his flashlight on a suspect is a signature pattern of Deputy Stebbing, having also done so 9 weeks prior on Jesus [C.], also a young man of color, a Hispanic. On August 23, 2001, Deputy Stebbing followed [Jesus] in hot pursuit on suspicion of auto theft by [Jesus]. After causing [Jesus] to pull over, Stebbing assaulted and battered [Jesus] with his flashlight, causing [Jesus] injuries for which he had to be taken to the hospital for treatment."
The prosecutor objected under Evidence Code section 352, arguing the testimony of Jesus would unduly consume time and confuse the issues for the jury. Acknowledging the evidence had some relevance, the prosecutor noted that once the evidence was rebutted, it would no longer be probative and that any probative value it did have would be outweighed by misleading and confusing the jury.
In ruling on the motion, the court noted its concern that defense counsel had not yet spoken with Jesuss counsel and that Jesus would not be available to testify until after the trial was to be concluded. The court stated a continuance would cause a serious problem and defense counsel was responsible for securing the timely presence of his witness. The court ruled:
"With respect to [Jesus], I still have very few facts with which to make my assessment. Yes, there were flashlights used in both instances, and the flashlight was wielded by Deputy Stebbing, and there was a pursuit in both cases.
"In both cases, you indicate the defendants are men of color. I dont know whether that means [Jesus] is African-American or another ethnicity, but in any event, I think on those thin facts I dont have enough to make the assessment that the evidence would be more probative than prejudicial.
"And frankly, combined with the fact that I would have to cause serious delay in the trial and then it would be a delay so that not only your [witness] could testify but also so the People could put on their rebuttal as they indicated they would do, this would drag this trial out way beyond where it should be going.
"So I am going to deny the motion to have [Jesus] testify."
B. Analysis
1. Waiver of Sixth Amendment Claim
Preliminarily, the People assert that Lee, having failed to raise the Sixth Amendment claim below, has waived this issue on appeal. Generally, "questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal." (People v. Rogers (1978) 21 Cal.3d 542, 548.) Here, because Lee did not object at trial that excluding Jesuss testimony would violate his constitutional right to present a defense, he cannot do so now. (People v. Garceau (1993) 6 Cal.4th 140, 173 [by failing to raise Sixth Amendment claim below, defendant waived issue on appeal]; People v. McPeters (1992) 2 Cal.4th 1148, 1174 [same]; People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7 [objection on basis of Evidence Code section 352 does not preserve constitutional objection]; People v. Gordon (1990) 50 Cal.3d 1223, 1240, fn. 2 [objection on basis of Evidence Code section 1101 does not preserve constitutional objection]; see generally People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6 [when issue involves admission or exclusion of evidence, appellate court is prohibited from reaching question that party has not preserved by objection].)
In an attempt to avoid the waiver rule, Lee asserts he preserved the Sixth Amendment issue for appeal by apprising the court that Jesuss testimony was vital to his defense. Even had Lee properly objected, we conclude the exclusion of the proffered testimony did not violate any of Lees constitutional rights.
2. Overview of Sixth Amendment Right to Present a Defense
"Whether rooted directly in the Due Process Clause of the Fourteenth Amendment [citation], or in the Compulsory Process or Confrontation clauses of the Sixth Amendment [citations], the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. " (Crane v. Kentucky (1986) 476 U.S. 683, 690.) However, "[a] defendants right to present relevant evidence is not unlimited . . . . A defendants interest in presenting such evidence may thus "bow to accommodate other legitimate interests in the criminal trial process." " (United States v. Scheffer (1998) 523 U.S. 303, 308, fn. & citations omitted; see also Montana v. Egelhoff (1996) 518 U.S. 37, 53; Michigan v. Lucas (1991) 500 U.S. 145, 149.) One such interest is adherence to standard rules of evidence. (Taylor v. Illinois (1988) 484 U.S. 400, 410; People v. Gonzales (1994) 22 Cal.App.4th 1744, 1756.)
Although the trial court cannot ignore a defendants right to offer the testimony of witnesses in his favor, the mere invocation of that right does not automatically and invariably outweigh countervailing public interests. (Taylor v. Illinois, supra, 484 U.S. at pp. 414-415.) " The integrity of the adversary process, which depends both on the presentation of reliable evidence and the rejection of unreliable evidence, the interest in the fair and efficient administration of justice, and the potential prejudice to the truth-determining function of the trial process must also weigh in the balance. " (People v. Gonzales, supra, 22 Cal.App.4th at p. 1756, quoting Taylor v. Illinois, supra, at pp. 414-415.)
Generally, application of ordinary rules of evidence, such as Evidence Code section 352, does not impermissibly infringe on the accuseds right to present a defense. (People v. Snow (2003) 30 Cal.4th 43, 90; People v. Jones, supra, 17 Cal.4th at p. 305.) " Courts retain, moreover, a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice. " (People v. Jones, supra, at p. 305.) Although completely excluding evidence of an accuseds defense theoretically could infringe on his right to present a defense, "excluding defense evidence on a minor or subsidiary point does not impair an accuseds due process right to present a defense." (People v. Fudge (1994) 7 Cal.4th 1075, 1103; People v. Boyette (2002) 29 Cal.4th 381, 428.)
Under Evidence Code section 352, the trial court may exclude evidence " if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. " (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1309-1310.) "[A] trial court is vested with wide discretion in determining relevance and weighing the prejudicial effect of evidence against its probative value. Evidentiary rulings will not be overturned on appeal in the absence of a clear abuse of that discretion, upon a showing that the trial courts decision was palpably arbitrary, capricious, or patently absurd, and resulted in injury sufficiently grave as to amount to a miscarriage of justice." (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1385; see also People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Here, the court properly analyzed the proffered testimony under Evidence Code section 352. It reasonably found the weak probative value of Jesuss testimony did not outweigh the prejudice that would result from the undue consumption of time required for a continuance of the nearly completed trial in order to secure Jesuss presence, have him testify and then have the prosecution present its rebuttal testimony. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
According to Lees offer of proof, Jesus, who is Hispanic, would testify Stebbing repeatedly beat him with a flashlight, causing injuries that required hospitalization. In contrast, the undisputed evidence against Lee, who is African-American, showed Stebbing did not hit him with a flashlight but merely swung the flashlight at him. Lees hospitalization resulted not from Stebbings use of excessive force with a flashlight, but from attempts by the other officers to apprehend and subdue Lee by using their police dog, flashlights and batons. Lees argument that use of a flashlight on a suspect is a "signature pattern" of Stebbing confuses Stebbings actions with those of the other officers and is disingenuous.
In light of the lack of similarity between the two incidents, Stebbings use of excessive force on Jesus had no tendency to prove Stebbing used excessive force on Lee. (See People v. Boyette, supra, 29 Cal.4th at p. 428.) The trial court did not abuse its discretion by finding the serious trial delay and consumption of time were not justified by the marginal probative value of the proffered evidence. (See People v. Snow, supra, 30 Cal.4th at p. 90.)
4. Evidence Code Section 1101, Subdivision (b)
Contrary to Lees argument in the trial court, the evidence of a prior complaint of excessive force against Stebbing was not admissible to prove modus operandi under Evidence Code section 1101, subdivision (b). Preliminarily, we note evidence that Stebbing used excessive force on Jesus was inadmissible to show Stebbing used excessive force on Lee because Evidence Code section 1101, subdivision (a) prohibits introducing evidence of prior conduct to prove conduct on a particular occasion. However, Evidence Code section 1101, subdivision (b) permits introducing evidence of prior conduct if relevant to prove some other disputed material fact such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. To show "a distinctive modus operandi, the evidence must disclose common marks or identifiers, that, considered singly or in combination, support a strong inference" that the same person committed both acts. (People v. Bradford (1997) 15 Cal.4th 1229, 1316.) "If the inference is weak, the probative value is likewise weak, and the courts discretion should be exercised in favor of exclusion." (People v. Haston (1968) 69 Cal.2d 233, 247.) Further, the prior conduct evidence must be excluded if its probative value is outweighed by its prejudicial effect under Evidence Code section 352. (People v. Miller (1990) 50 Cal.3d 954, 987.)
The proffered instance of prior misconduct by Stebbing does not show he engaged in beating minorities as a modus operandi. As we previously concluded, Stebbings apprehension of Jesus had little similarity to his detention of Lee. Stebbing did not beat Lee with a flashlight nor cause him to be hospitalized. The modus operandi was not sufficiently distinctive to warrant an inference on any relevant issue. (See People v. Matson (1974) 13 Cal.3d 35, 40.) Moreover, the probative value of the evidence was substantially outweighed by the probability its admission would necessitate undue consumption of time, confuse the issues and mislead the jury. (Evid. Code, § 352; People v. Cardenas (1982) 31 Cal.3d 897, 904-905; People v. Shoemaker (1982) 135 Cal.App.3d 442, 446-448.)
5. Excluding Proffered Testimony Did Not Violate Constitutional Right to
Present a Defense
The exclusion of Jesuss testimony did not violate Lees constitutional right to present a defense. That right requires an accused be able " to present all relevant evidence of significant probative value to his defense. " (People v. Babbitt (1988) 45 Cal.3d 660, 684, quoting People v. Reeder (1978) 82 Cal.App.3d 543, 553, underscored text italicized in Reeder, other italics added.) However, the marginal probative value of the proffered testimony here falls within the general principle that application of ordinary rules of evidence do not impermissibly infringe on a defendants constitutional right to present a defense. (People v. Snow, supra, 30 Cal.4th at p. 90; People v. Jones, supra, 17 Cal.4th at p. 305.)
The gravamen of Lees defense was that Stebbing used excessive or unreasonable force in detaining him and Lee responded by using only reasonable force to protect himself. In this regard, any testimony by Jesus was not remotely vital to Lees defense. Lee was not deprived of presenting a defense, but only some evidence that was of minimal probative value. Nor was he foreclosed from effectively challenging the prosecutions case or presenting crucial exculpatory evidence. (See People v. Maury (2003) 30 Cal.4th 342, 414.) Indeed, Lee testified on his own behalf, telling the jury that Stebbing yelled at him, refused to tell him why he was stopped or allow him to find his identification card, pulled his arm, grabbed and dislocated his shoulder, sprayed him repeatedly with pepper spray, and tried to strike him with his flashlight. Lee also described to the jury how he used only reasonable force to protect himself. Further, the jury was properly instructed on the use of excessive force by a peace officer:
"A peace officer is not permitted to use unreasonable or excessive force in making or attempting to make an arrest or in detaining or attempting to detain a person for questioning.
"If an officer does use unreasonable or excessive force in making or attempting to make an arrest or in detaining or attempting to detain a person for questioning, the person being arrested or detained may lawfully use reasonable force to protect himself.
"Thus, if you find that that officer used unreasonable or excessive force in making or attempting to make the arrest or in making or attempting to make the detention in question, and that the defendant used only reasonable force to protect himself, the defendant is not guilty of the crime charged in Count One, Count Two, Count Three, or Count Four." (CALJIC No. 9.28.)
Defense counsel was able to argue that the jury should acquit Lee because Stebbing used excessive force in detaining him and that Lee responded by using only reasonable force to protect himself. Thus, Lee had a meaningful opportunity to present a complete defense. (Crane v. Kentucky, supra, 476 U.S. at p. 690.)
The trial courts ruling excluding Jesuss testimony did not prevent Lee from presenting evidence from which the jury might have found he used reasonable force in response to Stebbings use of excessive force. (See People v. Cash (2002) 28 Cal.4th 703, 727; People v. Fudge, supra, 7 Cal.4th at p. 1103.) Instead, Lee merely was precluded from introducing time-consuming evidence that was not particularly probative of the manner in which his detention occurred. The courts ruling did not rise to the level of an unconstitutional deprivation of the right to present a defense. (People v. Fudge, supra, at p. 1102.)
II
Constitutional Right to Confront and Cross-examine Witnesses
Lee contends the court violated his Sixth Amendment right to confront witnesses against him when it refused to allow him to cross-examine Stebbing about the prior charge of excessive force. He asserts this evidence was relevant and admissible as to whether Stebbing had a tendency to engage in violence.
As we previously discussed with respect to Lees other Sixth Amendment claim, his failure to object in the trial court on Sixth Amendment grounds precludes our review of the issue. (People v. Garceau, supra, 6 Cal.4th at p. 173; People v. McPeters, supra, 2 Cal.4th at p. 1174.) Even if, as Lee suggests in his reply brief, the court understood his objection to be on constitutional grounds, the limitation on Stebbings cross-examination did not substantially implicate any Sixth Amendment protections.
A. Overview of Sixth Amendment Right of Confrontation
A defendant has a Sixth Amendment right to confront the witnesses against him and to cross-examine his accusers. "A criminal defendant states a violation of the confrontation clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show bias on the part of the witness, and thereby to expose facts from which the jury could appropriately draw inferences relating to the reliability of the witness." (In re Ryan N., supra, 92 Cal.App.4th at p. 1385, citing Delaware v. Van Arsdall (1986) 475 U.S. 673, 679-680, and Davis v. Alaska (1974) 415 U.S. 308, 318.)
Nevertheless, the trial court retains wide latitude to impose reasonable limitations on the manner of counsels inquiry on issues of a witnesss credibility. (Davis v. Alaska, supra, 415 U.S. at pp. 315-316; People v. Frye (1998) 18 Cal.4th 894, 946; People v. Jennings (1991) 53 Cal.3d 334, 372.) "As long as the cross-examiner has the opportunity to place the witness in his or her proper light, and to put the weight of the witnesss testimony and credibility to a reasonable test which allows the fact finder fairly to appraise it, the court may permissibly limit cross-examination to prevent undue harassment, expenditure of time, or confusion of the issues." (In re Ryan N., supra, 92 Cal.App.4th at p. 1386; see also Delaware v. Van Arsdall, supra, 475 U.S. at pp. 678-679; Davis v. Alaska, supra, 415 U.S. at p. 318; People v. Ayala (2000) 23 Cal.4th 225, 301.) Thus, "the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." (Delaware v. Fensterer (1985) 474 U.S. 15, 20.)
B. Court Properly Limited Cross-examination
Here, defense counsel unsuccessfully sought to have Jesus testify about the complaint of excessive force he filed against Stebbing. He then asked to introduce evidence of that complaint through cross-examination of Stebbing. The court denied the request, finding it was inappropriate cross-examination. To the extent defense counsel was attempting to use the prior complaint of excessive force to show Stebbing used excessive force on Lee, it was inadmissible character evidence. (Evid. Code, § 1101, subd. (a).) Further, as we previously discussed, evidence of Jesuss prior complaint of excessive force used by Stebbing to arrest him had little or no relevance to the issues in Lees trial and was likely to confuse the jury, cause serious trial delay and undue consumption of time. (Id ., § 352.) The court did not abuse its discretion by denying Lees request to cross-examine Stebbing with the prior complaint. (People v. Harris (1989) 47 Cal.3d 1047, 1080-1081 [court retains authority to limit cross-examination when relevance is insignificant as compared with potential for prejudice and confusion].)
The excluded cross-examination would not reasonably have produced a significantly different impression of Stebbings credibility. (See People v. Cudjo (1993) 6 Cal.4th 585, 611; In re Ryan N., supra, 92 Cal.App.4th at p. 1386.) Evidence that another person had merely filed a complaint of excessive force against Stebbing had no bearing on Stebbings veracity or honesty. More importantly, defense counsel extensively cross-examined Stebbing about his role in Lees detention, attempting to expose inconsistencies in his statements and actions. Even without the evidence of the prior complaint of excessive force, counsel was able to fully probe issues of Stebbings credibility, bias and motive, and argue to the jury that Lees version of the detention was more believable. In so doing, counsel placed Stebbing in his proper light and put the weight of his testimony and his credibility to a reasonable test, thus allowing the jury fairly to appraise it. (In re Ryan N., at p. 1386.) No error occurred and no prejudice to Lee resulted. (See People v. Sully (1991) 53 Cal.3d 1195, 1219.)
DISPOSITION
The judgment is affirmed.
I CONCUR: HUFFMAN, Acting P. J.
I CONCUR IN THE RESULT, MCDONALD, J.