Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BA286391, Michael M. Johnson, Judge.
Corinne S. Shulman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and James William Bilderback II, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, Acting P. J.
A jury convicted defendant Timothy Mack of three counts of first degree murder (Pen. Code, § 187, subd. (a)) arising from two separate incidents: the killing of Norman Fields on April 17, 2000 (count 3), and the killings of Howard and Jontrae Byrdsong on June 6, 2001 (counts 1 and 2). The jury found true the special circumstance allegations that the Fields murder was committed by lying in wait (§ 190.2, subd. (a)(15)), that the Byrdsong murders were committed for financial gain (§ 190.2, subd. (a)(1)) and to prevent a witness from testifying (§ 190.2, subd. (a)(10)), and that defendant was convicted of multiple murders (§ 190.2, subd. (a)(3)). Defendant was sentenced to three consecutive terms of life without the possibility of parole. He appeals, contending that the trial court erred in admitting an out-of-court statement of victim Fields, and that the evidence is insufficient to support his convictions of the Byrdsong murders. We disagree, and affirm the judgment.
All undesignated section references are to the Penal Code.
EVIDENCE
Viewed in accordance with the standard applicable on appeal (see People v. Ochoa (1993) 6 Cal.4th 1199, 1206 (Ochoa)), the evidence showed that defendant hired his niece’s boyfriend, Wayman Jackson, to kill Norman Fields because he believed Fields was responsible for the death of defendant’s brother, Michael Mack. Defendant also hired Jackson to kill Howard and Jontrae Byrdsong in an attempt to cover up his involvement in the theft of life insurance proceeds owed to the Byrdsongs. Defendant participated in the theft with suspended attorney Angela Wallace, with whom defendant was also involved in automobile insurance fraud conspiracy.
The Fields Murder
Defendant’s brother, Michael Mack, died in 1996. Norman Fields was a long-time family friend. However, in several telephone calls to Fields’ mother, Izella Woodard, defendant accused Fields of murdering his brother.
In November or December 1999, defendant told Arthur Choyce, also a long-time friend then working as defendant’s driver, that he knew Fields had killed his brother, and that he would “get” Fields. Defendant asked Choyce to kill Fields, and discussed how the killing could be done at Fields’ office, at a club, or at a phone booth to which Fields might be lured. Choyce did not take defendant seriously. Later, however, defendant introduced Choyce to a man Choyce knew as “Raymond,” and declared, “I have me a killer now. I got me a killer on my team. This boy’s a killer.” Choyce became acquainted with “Raymond,” and used to drive him to the home of “Raymond’s” girlfriend, Tiffany Speight, who was defendant’s niece. Sometime later, Choyce had a falling out with defendant, because defendant did not pay him for his driving services and for money owed from some “little things [they] were doing with insurance.”
Choyce had pled guilty to automobile insurance fraud as a third strike offense, and agreed to testify in the hope that he would receive leniency in his sentence.
The true name of the man Choyce knew as “Raymond” was Wayman Jackson. Asked to identify “Raymond” in a pretrial photographic lineup, Choyce selected Wayman Jackson’s photograph.
On April 17, 2000, Norman Fields was staying with his fiancé, Randine Newson, at the Renaissance Hotel near the Los Angeles airport. That evening, Fields and Newson were driving to dinner when Fields said that “he had to go do something really quick” and that “he had to go meet his cousin.” Newson had met previously met defendant, and knew that Fields referred to defendant as his cousin Tim.
Although they initially got lost looking for an apartment building, Newson ultimately spotted the building, and Fields parked in a nearby Von’s grocery store parking lot. Fields got out of the car and began walking away. Newson remained in the car because she was angry. Fields returned to the car and begged her to come with him. He said, “I want you to meet my cousin, Tim.” Newson said that she had already met him.
Finally, Newson got out of the car. Fields walked ahead, too fast for Newson to keep up. Then one, or perhaps two, gunshots rang out, and Fields fell to the ground.
Immediately before the shooting, Abraham Lin, who had come out of a building across the street from the Von’s lot around 10:00 or 10:15 p.m., saw two men crouching there, at least one of whom was wearing a hood. Just after the shooting, another witness, Damone Mosley, who had just gotten off security duty at the Von’s, saw two men wearing hooded sweatshirts run past. A third witness, Adam Newman, who was also in the Von’s parking lot, believed the two fleeing men were African Americans, but not wearing hoods.
Shot once in the head, Fields was transported to the hospital, where he died. From the crime scene, Los Angeles Police Detective Brad Roberts and his partner took Randine Newson back to the Renaissance Hotel where she had been staying with Fields. The guest folio at the hotel showed that defendant had stayed in Fields’ room from April 7 to April 17. A telephone number had been written on a pad in the room, next to the name “Tim.” (The number was registered in the name of a woman who, police later learned, had been the victim of identity theft.)
After Fields’ murder, defendant told Arthur Choyce, “I got Norman. He’s a done deal. He’s dead. My boy took care of him.” Later, at a Fourth of July barbecue, defendant told Choyce that he had Fields killed because Fields was planning to kill Choyce’s son Trayveon.
John Henry Lewis had been convicted of insurance fraud for his involvement in car accidents staged by defendant. He told Inglewood Police Detective Jeff Steinhoff (who was the investigating officer of the Byrdsong murders) that he was present when defendant bragged of having had Fields killed. Defendant said that he got Fields to meet him at an apartment. When Fields arrived, “Tiffany’s boyfriend” (a reference to Wayman Jackson, the man Arthur Choyce knew as Raymond) killed him. Defendant said that he believed Fields had killed his brother by putting poison in some drugs he had sold to him. Defendant also said that Trayveon Choyce, Arthur Choyce’s son, was supposed to commit the murder, but he “chickened out.”
At trial, Lewis denied having implicated defendant in Fields’ murder. He was impeached with a tape recording of his statements to Detective Steinhoff, and by testimony by the detective.
The Byrdsong Murders
Howard and Jontrae Byrdsong were the beneficiaries of a $380,000 life insurance policy on the life of their mother, Los Angeles Police Officer Shiree Arrant, who died in June 2000. Following the death, Angela Wallace offered to help the Byrdsong brothers, who were then 18 years old (Howard) and 17 (Jontrae), obtain the policy proceeds. As an attorney practicing under the name of the law firm she founded, the All American Law Firm, Wallace had represented the Byrdsongs’ mother, and had also represented a Byrdsong family friend, Regina Martin. However, Wallace had since been suspended from the practice of law for misappropriation of client funds in a probate matter. Another attorney, Phyllis Brown-Scarlett (herself later disbarred) had assumed the All American Law Firm practice.
Within a year of their mother’s death, the Byrdsong brothers moved in with Regina Martin and her husband Garrett. In April 2001, Howard Byrdsong and Regina Martin learned that the proceeds of the Byrdsongs’ mother’s policy had been paid out.
Unbeknownst to the Byrdsongs and Regina Martin, Angela Wallace had opened a trust account at City National Bank on August 21, 2000, entitled All American Law Firm For the Benefit of Howard Byrdsong. Wallace had opened the account with a check for $380,044.28 issued by Fortice Benefits Insurance to Howard Byrdsong. Wallace had presented a power of attorney for Howard Byrdsong which bore the forged signature of Howard Byrdsong and a notary stamp with the forged signature of a notary.
Wallace looted the account of all but $1,202.65 as of May 9, 2001, making checks payable to herself, the All American Law Firm, and other payees (none of whom was defendant). In the meantime, on May 2, 2001, she withdrew $130,842 from her client trust account, and purchased seven official checks: three for $20,000 payable to defendant, three in the same amount payable to herself, and a single check for the remainder payable to another payee. A bank security camera photograph, taken when the checks were issued, showed Wallace and defendant standing before the teller. Defendant and Wallace later tried to cash their respective checks at Ace Check Cashing; however, after they presented the checks payment was stopped.
Howard Byrdsong, accompanied by Regina Martin, reported the theft to City National Bank and to the Los Angeles County District Attorney’s Office. Also, Regina Martin contacted Phyllis Brown-Scarlett, the attorney who had assumed Angela Wallace’s practice after Wallace was suspended as an attorney. Convinced that Angela Wallace had taken the Byrdsongs’ money improperly, Brown-Scarlett quit the All American Law Firm.
On a weekend a few weeks after Howard Byrdsong made his complaints to the bank and the District Attorney’s office, defendant appeared at Regina Martin’s house. He said that he was from the bank, and had come to try to resolve the investigation Howard had initiated regarding the missing funds. (In truth, defendant had no affiliation with City National Bank.) Upon being let in, he asked to use the bathroom. He then returned and sat in the living room with Martin and the Byrdsong brothers. Defendant presented a document that he wanted Howard to sign, which proposed that Angela Wallace would repay the money, and that Howard would discharge Wallace and the bank of any liability. Howard said that he would not sign the document. Defendant took the document and left.
On June 6, 2001, an African American man dressed as a postal worker appeared at Regina Martin’s door. Jontrae Byrdsong let him in. The man said he had a package for Howard Byrdsong. Howard, who had been in the shower, came into the living room dressed in a towel and shirt. Regina Martin was in the kitchen when she heard gunshots. She looked toward the front door, and saw the postal worker shooting Howard. She screamed, and ran to warn Jontrae. The postal worker struck her in the head with the gun, and she lost consciousness. When she awoke, she was lying on Howard’s body. She ran outside to summon help.
Ultimately, Inglewood police officers arrived. Detective Jeff Steinhoff discovered Howard’s body on the dining room floor, dead from two bullet wounds to the head. Jontrae was dead in the rear bedroom, shot once behind the left ear.
Phyllis Brown-Scarlett learned of the murders within hours, and contacted the District Attorney’s office to report that she believed there was a connection between the misappropriated money and the Byrdsongs’ murders. Brown-Scarlett was acquainted with defendant, who had frequented the office of the All American Law Firm. Defendant was affiliated with some medical offices to which some personal injury clients of the firm were referred. After the Byrdsong murders, defendant appeared at Brown-Scarlett’s new office to discuss some cases that he felt were “his cases.” According to Brown-Scarlett, the discussion was not pleasant. Defendant made the same claim on cases in a subsequent telephone call.
Arthur Choyce had a conversation with defendant in January 2002 about the police executing a search warrant at Angela Wallace’s offices. (Choyce had a lengthy criminal record, and had returned to prison on a parole violation after the conversations he had had with defendant regarding the earlier murder of Norman Fields. After he was released from prison in 2001, Choyce resumed contact with defendant.) As the search of Angela Wallace’s offices was occurring, Wallace informed defendant by telephone that she had told the police that the office was rented in defendant’s name. Choyce suggested that Wallace was attempting to set defendant up for the Byrdsong murders. Defendant replied, “She won’t set me up, because we took care of some business together. These guys who were blackmailing me [for $300,000], you know, I had my boy take care of them in Inglewood.” Defendant also told Choyce that he had first gone to the Byrdsong brothers’ house and offered the brothers $120,000. The offer was a ploy so that defendant could see the layout of the place to send “his boy” there later to kill the brothers.
John Henry Lewis, who had also supplied information regarding the murder of Norman Fields, called Detective Steinhoff to say that he had some information on the Byrdsong murders. In a subsequent telephone call, Lewis told Detective Steinhoff that defendant had Tiffany Speight’s boyfriend kill the Byrdsong brothers. However, in a still-later tape-recorded interview, and in his trial testimony, Lewis denied telling Detective Steinhoff that he knew defendant had committed the murders.
Regina Martin was shown six pretrial photographic lineups. From the fifth, she selected the photograph of a man named Vincent Munn, saying that she was 75 percent sure that he was the man who shot the Byrdsong brothers. However, in the sixth lineup, she selected a photograph of Wayman Jackson, declaring that it was more likely he was the shooter than any other person she had seen, and that she was 90 percent sure he was the killer.
Sometime after the Byrdsong murders, Wayman Jackson died. While defendant was in custody following his arrest, he made a telephone call surreptitiously monitored by Susan Wiggins, a Los Angeles District Attorney’s Investigator. In the call, defendant said, “Say for instance, ah, somebody killed somebody and the people who killed the people are dead.” The other person on the line responded, “The ones who killed them in the first place are dead, who is gonna tell?”
Defense Evidence
The defense called witnesses to dispute the prosecution evidence that defendant blamed Norman Fields for the death of defendant’s brother Michael Mack. Jaymi Collins (Michael Mack’s former girlfriend), George White (a friend of defendant and Fields), and Steven White (George White’s brother) testified that at Michael’s funeral some people commented that Fields was responsible for Michael’s death. Defendant publicly stated that Fields had nothing to do with the death. Pastor Marvin Brown, who officiated at Michael Mack’s funeral, testified that despite unrest at the funeral based on speculation about how Michael died, defendant tried to keep things calm by saying that those responsible would be caught.
The defense also called a witness, Yvonne Price, to prove that the Byrdsong murders were arranged by Regina Martin. According to Price, she was told by Regina Martin’s husband, Garrett, that Regina wanted the Byrdsong brothers’ inheritance and insurance money, as did Garrett. Price testified that Garrett revealed that Regina had hired “some fake attorney” to calculate a bill for the boys’ living expenses and a fee for the lawyer, and that they would take these amounts from the insurance proceeds and leave the boys the remainder. Garrett said that he knew Regina’s plan to have the boys killed was “something going on.” On the day the Byrdsong brothers were killed, Regina tried to keep Garrett at the house, but he left anyway. Garrett said that he believed that had he been present, he, too, would have been killed. He also said that he and Regina arranged to have the murderer killed in an apparent gang fight in Compton.
Price admitted that she believed Garrett Martin, who was in the real estate business, had cheated her in a real estate transaction. According to Garrett, who testified at trial, Yvonne Price had been evicted from a home she had attempted to purchase while represented by Garrett. She filed two lawsuits against Garrett, which were dismissed, and continued to make false allegations against him. Garrett denied making any of the statements attributed to him by Price.
In the fifth pretrial photographic lineup she was shown, Regina Martin had selected a photograph of a man named Vincent Munn, saying that she was 75 percent sure he was the killer of the Byrdsong brothers. The defense called Gilbert Davis, who testified that sometime before May 2001 he heard Vincent Munn (whom Davis knew as “Vito”, a reputed hit man) say that he and a man Davis knew as “Slush” had received or would receive $15,000 to kill two brothers in Inglewood.
The defense challenged Arthur Choyce’s testimony by calling Choyce’s daughter, Helecia Choyce, as a witness. Helecia had had a falling out with her father over his cooperating with the police. At trial, she testified that her father had told her before the preliminary hearing that he was going to lie and say whatever the prosecutor wanted him to say. He told her that if he did not, he would be in jail for life as a third-strike candidate. (In rebuttal testimony, Arthur Choyce denied making these statements.)
The defense also called Laverne Brooks. Arthur Choyce had testified that Brooks, whom he was dating at the time, was present when defendant said that he “got Norman.” Brooks testified, however, that she never heard such a statement.
Diane Baxa, an attorney with City National Bank, testified that she drafted a release for the bank for any liability regarding the Howard Byrdsong account. Because of the dispute regarding the account, the bank froze Angela Wallace’s other accounts. Baxa told Angela Wallace that if the bank was released from liability on the Byrdsong account, it would release her other accounts. Baxa gave the document to Wallace, and told her that it would have to be signed by Howard Byrdsong in a branch of the bank.
DISCUSSION
I. Norman Fields’ Out-of-Court Statement
As we have discussed in our summary of the evidence of the murder of Norman Fields, Randine Newson testified that as she and Fields were driving to dinner on the night of the killing, Fields said that “he had to go do something really quick” and that “he had to go meet his cousin.” Newson had previously met defendant, and knew that Fields referred to defendant as his “cousin, Tim.” Defendant did not object to this testimony.
Newson also testified that after Fields parked in the grocery store parking lot, he got out of the car and began walking away. Newson remained in the car because she was angry. Fields returned to the car, begged her to come with him, and said, “I want you to meet my cousin, Tim.”
Defendant objected to Fields’ statement, “I want you to meet my cousin, Tim,” on the ground that it was inadmissible hearsay. The court overruled the objection, finding the statement admissible under Evidence Code section 1250, subdivision (a)(2), to prove Fields’ conduct, namely, that he was going to meet defendant. On appeal, defendant contends that the trial court erred in admitting the statement. We disagree.
In relevant part, Evidence Code section 1250 provides that “evidence of a statement of the declarant’s then existing state of mind . . . is not made inadmissible by the hearsay rule when . . . [t]he evidence is offered to prove or explain the acts or conduct of the declarant.” (Evid. Code, § 1250, subd. (a)(2).) Here, in context, the statement, “I want you to meet my cousin, Tim,” made by Fields to get Newson to get out of the car and accompany him, implicitly meant that Fields intended to meet his cousin Tim; indeed, he had earlier declared that he had to meet his cousin. The statement was thus admissible as a declaration of Fields’ then-existing state of mind (his intent to meet defendant) offered to prove Fields’ conduct (driving to the Von’s parking lot, getting out of the car, convincing Newson to accompany him, and walking toward an apartment building where the meeting was to occur when he was shot). (See generally People v. Majors (1998) 18 Cal.4th 385, 404; People v. Jones (1996) 13 Cal.4th 535, 548.)
In any event, even if the statement were inadmissible, it is not reasonably probable that a different result would have been reached if the statement had not been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836.) Defendant did not object to Fields’ earlier statement to Newson that he had to meet his cousin, or the evidence that Newson had met defendant before and knew Fields referred to him as his cousin Tim. This evidence alone created the compelling inference that Fields had been lured on the pretext of meeting defendant when he was killed. Moreover, the entirety of the evidence against defendant for the Fields’ murder can only be described as overwhelming. Thus, any error in admitting the statement, “I want you to meet my cousin, Tim,” was not prejudicial.
II. Proof of the Byrdsong Murders
Defendant contends that the evidence is insufficient to support his convictions for the Byrdsong murders. He asserts that “other than the leniency-induced testimony of Lewis and Choyce, only speculation links appellant to the murders,” and that “given appellant’s insurance fraud operation through [Angela] Wallace’s office, it is pure speculation” that the checks written to defendant by Wallace were payment for arranging the murders.
We have already set forth in detail the evidence proving defendant’s guilt of the Byrdsong murders. It is, in a word, compelling. The jury resolved the credibility issues surrounding Arthur Choyce’s testimony, as well as those surrounding the incriminating out-of-court statements by John Henry Lewis, in favor of the prosecution. Moreover, a ring of circumstantial evidence strongly suggested defendant’s involvement in the murders. For instance, defendant received three checks from Angela Wallace totaling $60,000 on May 2, 2001, during the same period Wallace was looting the life insurance proceeds owed to the Byrdsongs. Later, after the investigation of the theft was underway, defendant visited Regina Martin’s house where the Byrdsong brothers were living, and presented a release from liability for Wallace and the bank which Howard Byrdsong refused to sign. As suggested by the testimony of Arthur Choyce, the visit was likely a ploy to survey the scene in preparation for the murders. Not long afterwards, the Byrdsong brothers were killed by a man who appeared at Regina Martin’s house dressed as a postal worker. Although Regina Martin had also made a possible identification of another person, she later was 90 percent sure in her identification of Wayman Jackson as the murderer. Of course, Wayman Jackson was the same person defendant had hired to kill Norman Fields.
Defendant’s appellate challenge is no more than an invitation for us to reweigh the evidence (including the issue of witness credibility) and draw different conclusions from those reasonably drawn by the jury. Of course, that is not our task. (See Ochoa, supra, 6 Cal.4th at p. 1206.)
DISPOSITION
The judgment is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.