Opinion
G043538 Super. Ct. No. 06WF3060
09-28-2011
THE PEOPLE, Plaintiff and Respondent, v. DANNY LEWIS MALONE, Defendant and Appellant.
Martha L. McGill, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr. and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, David A. Thompson, Judge. Affirmed.
Martha L. McGill, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr. and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Danny Lewis Malone of gross vehicular manslaughter while intoxicated. (Pen. Code, § 191.5, subd. (a).) After the verdict, in a bifurcated trial, the trial court found to be true allegations that defendant suffered two prior serious felony convictions (§ 667) and had served seven prior prison terms (§ 667.5, subd. (b)). The court sentenced defendant to 35 years to life in prison.
All further statutory references are to the Penal Code unless otherwise stated.
Defendant contends the court violated his Sixth Amendment right to confront and cross-examine witnesses against him when it permitted: (1) a pathologist (who did not perform the autopsy on the victim) to testify about the victim's cause of death; (2) a supervising laboratory analyst (who performed some but not all of the forensic tests on defendant's blood sample) to testify about the test results; and (3) the introduction into evidence of a copy of the victim's death certificate. (See Bullcoming v. New Mexico (2011) 564 U.S. __ (Bullcoming); Melendez-Diaz v. Massachusetts (2009) 557 U.S. __ (Melendez-Diaz).) We reject defendant's assertion of error and further conclude any potential error was harmless.
Defendant further contends the prosecutor, during her closing and rebuttal arguments, improperly commented on defendant's failure to testify, thereby violating defendant's Fifth Amendment privilege against self-incrimination. (See Griffin v. State of California (1965) 380 U.S. 609 (Griffin).) But any Griffin error was harmless. Accordingly, we affirm the judgment.
FACTS
Around 6:15 p.m. on March 11, 2006, the victim — 18-year-old Nicholas Russell — stopped in his Mercury Sable in the left turn lane at a red light. Defendant, traveling at least 61 miles per hour in his Ford Explorer, rear-ended Russell's car. Prior to the impact, defendant did not slow down, swerve, or make any effort to avoid hitting Russell's car. The impact caused Russell's car to spin around and go onto the center median. Defendant continued forward in his Explorer, went onto the center median, and hit the traffic signal. The speed limit on the street was 40 miles per hour.
An officer responding to the scene found Russell sitting inside his car. Russell said his head and neck hurt. Russell was transported to a hospital, where he died a week later.
The officer spoke to defendant, who was standing by his Explorer. Defendant said he "blacked out" and the "next thing he remembered was a loud boom." He told another officer "that the other vehicle hit him," a conclusion inconsistent with the damage to the vehicles. Defendant did not think his vehicle had any mechanical problems. Defendant's eyes were glassy and his pupils were pinpoint. At the hospital after the collision, the officer did not detect any change in defendant's pupils. Defendant said he had taken the drugs, Soma and Darvocet, and was under a doctor's care. The officer asked defendant several questions, then "stopped for a moment or two," and when the officer returned defendant was asleep.
An investigator did not find any mechanical defects in the Explorer or the Sable that would have contributed to the collision. The Explorer's front brakes were working properly. In addition, an absence of skid marks on the road suggested defendant had not tried to brake.
Defendant did not testify and offered no evidence. We set forth additional facts below pertaining to the legal issues raised by defendant.
DISCUSSION
Defendant's Sixth Amendment Right of Confrontation Was Not Violated
As noted above, defendant claims the court violated his Sixth Amendment right of confrontation when it: (1) permitted a pathologist to testify about the results of an autopsy the pathologist did not perform; (2) allowed a forensic scientist to testify about the results of drug tests she did not perform; and (3) admitted into evidence the victim's death certificate. The prosecution did not actually seek to introduce copies of the autopsy report or written drug test results. And although the death certificate was admitted into evidence, it is not included in the appellate record.
Richard Fukumoto was the physician in charge of a group of pathologists contracted to conduct forensic autopsies for the coroner's office. At the time of trial, the pathologist who performed the autopsy on Russell's body was retired. Fukumoto, who has personally performed autopsies, was familiar with Russell's autopsy, having "reviewed the case." Fukumoto testified, having reviewed the autopsy report and autopsy photographs, that Russell "died as a result of bilateral confluent pneumonia due to subdural and intracerebral hematoma repair due to blunt force trauma to the head." Fukumoto explained "blunt force trauma to the head" can be caused by the brain (which is "quite fluid") striking "the hard surface of the skull." Because no aneurysm was found in Russell's brain, Fukumoto was "sure" "the brain struck the skull" and that Russell's brain suffered trauma by coming in contact with a blunt force. It is unclear from the transcript whether Fukumoto was providing his own opinion of the cause of Russell's death (based on his review of the autopsy report and photos), or whether Fukumoto was simply relaying the conclusion reached by the pathologist who performed the autopsy and prepared the autopsy report. Fukumoto's entire direct and cross-examination testimony covered less than seven reporter's transcript pages.
Jennifer Harmon, a forensic scientist who supervises the forensic alcohol section of the sheriff's department's crime laboratory, testified about defendant's blood test results. Nine drugs and metabolites were found in defendant's blood sample. Harmon personally performed the analysis revealing the presence of methamphetamine, carisoprodol (Soma), nordiazepam (the metabolite of Valium), and norpropoxyphene (a metabolite of Darvocet). She testified that both methamphetamine and carisoprodol are known to cause impairment in driving. In tests performed by other analysts, the following drugs and metabolites were detected: methamphetamine, pseudoephedrine, ephedrine, THC (the active component in marijuana), and THCA.
"The Sixth Amendment's Confrontation Clause provides that, '[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.'" (Crawford v. Washington (2004) 541 U.S. 36, 42 (Crawford).) In Crawford, the Supreme Court held that the confrontation clause bars the prosecution's introduction of "testimonial" out-of-court statements against a criminal defendant unless the witness is unavailable at trial and the defendant had a prior opportunity for cross-examination. (Id. at p. 68.) "Testimonial" statements include, but are not limited to: "prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations" (ibid.); "'exparte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially'" (id., at p. 51); "'extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions'" (id., at pp. 51-52); and "'statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial'" (id. at p. 52).
Key cases since Crawford have focused on the question of whether written reports documenting scientific testing are "testimonial." In People v. Geier (2007) 41 Cal.4th 555 (Geier), our Supreme Court rejected the defendant's Crawford-based challenge to the testimony of the prosecution's DNA expert, Robin Cotton, who opined that the defendant's DNA matched the victim's DNA, based on testing performed by another analyst. (Geier, at pp. 594-596, 607.) Cotton was the laboratory director of Cellmark, "a private, for-profit company that performs DNA testing" and "accepts criminal cases from both the prosecution and defense." (Id. at p. 594.) As the laboratory director, Cotton oversaw testing and supervised the six analysts who conducted testing for Cellmark. (Ibid.) Our Supreme Court concluded that a DNA report is not testimonial. (Id. at p. 605.) Rather, "a statement is testimonial if (1) it is made to a law enforcement officer or by or to a law enforcement agent and (2) describes a past fact related to criminal activity for (3) possible use at a later trial." (Ibid.) Applying this test, our Supreme Court determined the DNA report was not testimonial because it did not describe a past fact but rather represented "a contemporaneous recordation of observable events." (Id. at p. 605.)
Two years later, the United States Supreme Court considered whether documents "reporting the results of forensic analysis" were testimonial and therefore subject to the defendant's right to confrontation. (Melendez-Diaz, supra, 129 S.Ct. at p. 2530.) The trial court, pursuant to Massachusetts law, admitted into evidence (without accompanying testimony) certain "'certificates of analysis' showing the results of the forensic analysis performed on the seized substances." (Id. at p. 2531.) The documents at issue "were sworn to before a notary public by analysts" at a state laboratory and reported that the seized evidence contained cocaine. (Ibid.) A 5-4 majority of the court found the certificates were testimonial because they were "quite plainly affidavits: "'declaration[s] of facts written down and sworn to by the declarant before an officer authorized to administer oaths,'" and that "the analysts' affidavits were testimonial statements, and the analysts were 'witnesses' for purposes of the Sixth Amendment." (Id. at p. 2532.) The court therefore reversed the judgment. (Id. at p. 2542.)
In Justice Thomas's concurring opinion, he stated: "I join the Court's opinion in this case because the documents at issue in this case 'are quite plainly affidavits'. . . . As such, they 'fall within the core class of testimonial statements' governed by the Confrontation Clause." (Id. at p. 2543 (conc. opn. of Thomas, J.).) He explained: "I continue to adhere to my position that 'the Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.'" (Ibid.)
In a recent opinion, the United States Supreme Court held that the testimony at trial of a "surrogate" laboratory employee does not vindicate the accused's right to confront the individual who prepared a testimonial report stating the accused had a blood alcohol content of .21 grams per hundred milliliters. (Bullcoming, supra, 131 S.Ct. at p. 2710.) The report included preliminary information concerning the arrest of the suspect (filled out by a police officer), representations about the chain of custody of the blood sample (made by various individuals), and the blood alcohol content of the blood sample (certified by the lab analyst). (Ibid.) The lab employee who conducted the blood tests (Caylor) had been put on unpaid leave at the time of trial, but was not shown by the prosecutor to be "unavailable." (Id. at pp. 2711-2712, 2714.) The trial court admitted the written report as a business record during the testimony of another lab employee, who: (1) did not participate in the testing of the suspect's blood; (2) did not know why Caylor had been put on unpaid leave; and (3) did not have an independent opinion concerning the suspect's blood alcohol content. (Id. at pp. 2712, 2715-2716.) The lab report was testimonial because it was "'made for the purpose of establishing or proving some fact' in a criminal proceeding." (Id. at p. 2716.) Although the document was not sworn under oath or notarized, "the formalities attending the 'report of blood alcohol analysis' are more than adequate to qualify [it] as testimonial." (Id. at p. 2717.)
Having considered all of the foregoing authorities, we reject defendant's assertion of confrontation clause error. At trial, defendant did not object to the introduction of the evidence at issue. (Melendez-Diaz, supra, 129 S.Ct. at p. 2541 ["The defendant always has the burden of raising his Confrontation Clause objection"].) Because defendant did not object on Sixth Amendment grounds at trial, he has forfeited any challenge on appeal. (People v. Williams (1997) 16 Cal.4th 153, 250 [constitutional objections not properly raised at trial are forfeited on appeal].) Neither the autopsy report nor the lab testing report were introduced into evidence or are in the appellate record. Further, defendant failed to submit a copy of the death certificate (exhibit 18) with the appellate record. Given the available record, it is difficult to assess whether the autopsy report, the blood analysis report, or the death certificate would be deemed "testimonial" by a majority of the United States Supreme Court. (See Melendez-Diaz, supra, 129 S.Ct. at p. 2543 (conc. opn. of Thomas, J.).)
Even were we to ignore defendant's forfeiture and assume the underlying reports were testimonial, we would find no error. An expert witness generally may opine based on his or her review of admissible or inadmissible material (so long as the material "is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates"). (Evid. Code, § 801, subd. (b).) Here, such material would logically include the autopsy report, autopsy photos, and blood tests. (See Bullcoming, supra, 131 S.Ct. at p. 2722 (conc. opn. of Sotomayor, J.) ["[T]his is not a case in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence"].) It is not clear whether the witnesses (Harmon and Fukomoto) were providing their own opinions at all times during their examinations (rather than simply parroting the reports). But this shortcoming in the record is due to the lack of objections by defendant. Moreover, as to Harmon's (the supervising forensic scientist) testimony, it may be acceptable for a supervisor who has taken part in the testing process at issue to testify regarding written results recorded by subordinates. (See Bullcoming, at p. 2722 (conc. opn. of Sotomayor, J.) ["It would be a different case if, for example, a supervisor who observed an analyst conducting a test testified about the results or a report about such results"].)
In this respect, although its "testimonial" analysis conflicts with subsequent United States Supreme Court cases, the result reached in Geier, supra, 41 Cal.4th 555, may have been correct. The California Supreme Court has granted review in numerous cases to consider Melendez-Diaz's effect on Geier. (See, e.g., People v. Rutterschmidt, review granted Dec. 2, 2009, S176213.)
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With regard to the death certificate, Melendez-Diaz stated: "Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because — having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial — they are not testimonial." (Melendez-Diaz, supra, 129 S.Ct. at pp. 2539-2540.) For this reason, death certificates are not necessarily testimonial. (Birkhead v. State (Miss. 2011) 57 So.3d 1223, 1235-1236; State v. Beaner (La.Ct.App. 2007) 974 So.2d 667, 684; cf. People v. Moreno (2011) 192 Cal.App.4th 692, 710-711 [certified criminal records used to prove prior offenses are not testimonial]; but see United States v. Williams (D.D.C. 2010) 740 F.Supp.2d 4, 7-10 [autopsy report and death certificate were testimonial, but expert could testify to own opinion based in part on inadmissible testimonial material].) We decline to hold, in the absence of a copy of the death certificate actually admitted in this case, that a death certificate is per se testimonial.
Finally, any error was clearly harmless beyond a reasonable doubt. (People v. Low (2011) 52 Cal.4th 46, 69-70 [federal harmless error analysis applies to Confrontation Clause claims].) Harmon, the supervising forensic scientist, performed some of the tests confirming defendant's drug use. It is therefore uncontested that much of her testimony was proper. In addition, the circumstances of the crash itself, as well as officer testimony concerning defendant's appearance and conduct after the crash, confirmed defendant's intoxication. As to the death certificate and Fukomoto's testimony regarding the cause of death, overwhelming circumstantial evidence supported the jury's finding that the cause of the victim's death was the automobile crash at issue. Indeed, defendant did not contest the cause of the victim's death at trial.
Any Griffin Error was Harmless
Defendant, relying on Griffin, supra, 380 U.S. 609, contends the prosecutor's comments in her closing and rebuttal arguments violated his Fifth Amendment right not to testify. Griffin held the Fifth Amendment "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." (Id. at p. 615.) A "prosecutor is prohibited from commenting directly or indirectly on an accused's invocation of the constitutional right to silence." (People v. Lewis (2001) 25 Cal.4th 610, 670 (Lewis).) "The prosecutor is permitted, however, to comment on the state of the evidence, 'including the failure of the defense to introduce material evidence or to call witnesses.'" (Ibid.) 1. Prosecutor's Closing Argument
Toward the beginning of her closing argument, the prosecutor discussed the jurors' responsibilities and tasks: "[W]hat your responsibilities are is, one, to determine the facts of the case. None of us were there on March 11th, 2006, at 6:05, at the intersection of Beach Boulevard and Village Center Drive. The only person in this room who was there is the defendant . . . ."
Immediately, defense counsel objected on the ground of improper argument. The court sustained the objection. At sidebar, defense counsel asked for a mistrial. The prosecutor argued she did not refer to defendant's failure to testify: "The whole point of the presentation to them was that they are hurt for witnesses, and they have to piece together what happened because none of them were there. That's what I was trying to articulate to them." The prosecutor noted the "court did not even allow me to conclude my sentence, and I was trying to articulate. It would be inaccurate for me to tell them none of us was there . . . but that is not in the context I was saying." The court took the mistrial motion under submission.
The court then instructed the jury: "[N]othing that the attorneys say in their arguments, or at any other time during the trial is evidence. [¶] The evidence is what you heard from the witness stand and the exhibits that were admitted into evidence. [¶] Let me also reread to you instruction number 355. [¶] 'A defendant has an absolute constitutional right not to testify. He may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way.' [¶] With that, the objection is sustained. . . ." "You are to disregard the remarks of the prosecutor."
The court later reviewed the reporter's transcript of the prosecutor's words at issue. Outside the jury's presence, the court stated: "What I got from these words was the idea that the jury has to decide what the facts were and none of us were there except the defendant. The implication that I got from that, when I heard it here in the courtroom [was] 'The only person in this room who was there was the defendant . . . .'" "The implication or the inference to be drawn from that, or the insinuation is that the defendant's the only person who knows what really happened and he's not talking about it. So, in my view it is a comment on the defendant's exercise of his constitutional privilege to remain silent. I think it is Griffin error. Not the wors[t] Griffin error there ever was." The court denied defendant's motion for a mistrial, ruling the error was cured by the court's sustaining the defense objection, promptly instructing the jury to disregard the prosecutor's comment, and then rereading CALCRIM No. 355.
In People v. Brasure (2008) 42 Cal.4th 1037, our Supreme Court found "the trial court's immediate admonition to disregard the prosecutor's comment, coupled with its full instruction, shortly thereafter, not to discuss or consider defendant's failure to testify, cured any possible harm from the prosecutor's comment." (Id. at p. 1060.) "The prosecutor's comment was brief and somewhat ambiguous. . . . The court's direction not to consider the comment was immediate, unequivocal and repeated. Under these circumstances, and in light of the extremely aggravating circumstances of the crime and defendant's attempts to suppress evidence against him, any asserted Griffin error was harmless beyond a reasonable doubt." (Ibid.) "[A]n indirect, brief and mild reference to defendant's failure to testify as a witness without any suggestion of an inference of guilt" has "uniformly been held to be harmless error." (People v. Mincey (1992) 2 Cal.4th 408, 446-447.)
Defendant argues the court's admonition to the jury and its rereading of CALCRIM No. 355 were insufficient to cure the harm because (1) it "is unreasonable to assume jurors can, and do, set aside assumptions which seem reasonable and natural to them — in this case, the assumption an innocent person would testify and explain his actions — merely because the court instructs them to do so"; and (2) "it cannot be presumed that the jurors followed the court's instructions."
But under well-established law, we must presume the jurors understood and followed the court's instructions to them. (People v. Yeoman (2003) 31 Cal.4th 93, 139.) "'Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case.'" (People v. Lewis (2001) 26 Cal.4th 334, 390.)
Any Griffin error in the prosecutor's closing argument was cured and was therefore harmless. 2. Prosecutor's Rebuttal Argument
Defendant contends the prosecutor invited the jury to consider his failure to testify as evidence of his guilt, when she argued there was no explanation for why he drove as he did and why he failed to stop. Defendant asserts that, because he is the only person who could provide these explanations, the prosecutor's comments directed the jury's attention to his failure to testify.
Toward the end of her rebuttal, the prosecutor stated: "[J]ust because there are two different versions of a story doesn't mean that's reasonable doubt. You as jurors must be able to reject the unreasonable when you're talking about all the different symptoms of impairment that we saw, [Defense] counsel says [defendant] was disoriented maybe because he suffered a head injury, okay. Maybe. Well, he had glassy eyes, maybe because the airbags deployed. Maybe . . . . He was tired maybe because he was just coming off of the adrenalin rush, okay. Maybe. [¶] What about the driving? Why was he driving that way? What's the explanation for that? [¶] Why didn't he stop? What's the explanation for that? Why were his pupils constricted and why didn't they react to light? What's the explanation for that? [¶] We can't ignore symptoms of impairment just because there's an explanation for some symptoms, because there are certain symptoms that there's no explanation for."
Defense counsel did not object to these remarks by the prosecutor. Therefore, "defendant's claim has not been preserved on appeal." (Lewis, supra, 25 Cal.4th at p. 670.)
Moreover, the claim lacks merit. The Griffin "prohibition '"does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or call logical witnesses."'" (People v. Hughes (2002) 27 Cal.4th 287, 393.) "The prosecutor did not impermissibly argue to the jury that the People's evidence was uncontradicted or unrefuted because defendant failed to take the witness stand. [Citation.] The prosecutor's remarks were not directed, expressly or impliedly, at defendant's invocation of the right to silence . . . ." (Lewis , supra, 25 Cal.4th at p. 670.) "'[A]s a general principle, prosecutors may allude to the defense's failure to present exculpatory evidence' [citation], and such commentary does not ordinarily violate Griffin or erroneously imply that the defendant bears a burden of proof [citations]. [Griffin's] protection of the right to remain silent is a 'shield,' not a 'sword' that can be used to 'cut off the prosecution's "fair response" to the evidence or argument of the defendant.'" (People v. Lewis (2004) 117 Cal.App.4th 246, 257.)
In sum, the prosecutor's comments on the absence of explanations for defendant's manner of driving and failure to stop did not constitute Griffin error. Rather, it "constituted proper comment on the evidence, and a proper comment in response to defense counsel's argument." (People v. Hughes, supra, 27 Cal.4th at p. 394.)
DISPOSITION
The judgment is affirmed.
IKOLA, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
MOORE, J.