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People v. Morris

California Court of Appeals, Sixth District
Sep 22, 2008
No. H032139 (Cal. Ct. App. Sep. 22, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. ALEX MORRIS, Defendant and Appellant. H032139 California Court of Appeal, Sixth District September 22, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Santa Clara County Super. Ct. No. CC641597

ELIA, J.

On October 26, 2006, the Santa Clara County District Attorney filed an information in which appellant was charged with one count of rape (Pen. Code, § 261, subd. (a)(2), count one) and one count of forcible oral copulation (§ 288, subd. (c), count two). The information alleged that appellant had suffered a prior serious felony conviction (a strike) within the meaning of section 667, subdivisions (b)-(i) and 1170.12.

All undesignated section references are to the Penal Code.

A jury found appellant guilty on the rape charge, but not guilty on the charge of forcible oral copulation. Thereafter, the court found true the prior serious felony conviction allegation.

The jury deliberated for approximately six hours.

When appellant was sentenced on September 7, 2007, the trial court denied appellant's request to strike his prior conviction pursuant to section 1385. In addition to the imposition of a prison sentence of 12 years, the court ordered that appellant pay a restitution fine of $2400, a court security fee of $20 and restitution to the victim Lynette. Appellant was ordered to register pursuant to section 290, to supply DNA samples pursuant to section 296, to submit to an AIDS blood test pursuant to section 1202.1 and to a pay a $200 fine pursuant to section 290.3.

The court sentenced appellant to 12 years in state prison consisting of the mid-term of six years for the rape count doubled because of the strike prior.

Appellant filed a timely notice of appeal on October 5, 2007.

On appeal appellant raises two issues. First, he contends that trial counsel rendered ineffective assistance in failing to object to prosecutorial misconduct in closing argument. Second, the trial court erred by failing to instruct the jury that a statement contained in a letter admitted into evidence under the fresh complaint doctrine could not be used for the truth of the matter stated. For reasons that follow, we affirm the judgment.

Facts and Proceedings Below

Lynette and appellant first met in 1993 when she was 12 and he was 15. They were neighbors. Their relationship was that of boyfriend and girlfriend until appellant moved away about a year later. Three years passed before they met again during the summer when Lynette was 16 and appellant was 18. They resumed their romantic relationship.

Lynette lied to her parents about seeing appellant because she knew they would disapprove. Within a week of reuniting with appellant, Lynette began to have sex with him. Lynette testified that she was in love with appellant and that he wanted her to marry him. Lynette tried to keep the relationship a secret from her parents, but eventually they found out and became very angry. Lynette's parents wanted her to end her relationship with appellant immediately, but she continued to see him.

One day Lynette lied to her parents and told them that she was going to be longer at cheerleading practice than normal. In fact she was going to spend time with appellant. Up until this time nothing unusual had happened between her and appellant. However, on this particular day Lynette went to appellant's home where they had consensual intercourse. Lynette told appellant that she had to leave. As she moved to get up appellant grabbed her firmly by the hair. He told her that he did not want her to go, or she could not go. Then, he pushed her head towards his exposed penis. Lynette was worried that she would be in trouble with her parents if she was late. As a result, she relented and orally copulated appellant because she thought he would let her go. Lynette never told anyone about the incident. Despite this incident, Lynette continued to see appellant. Lynette testified she still loved appellant at this time and wanted to marry him and make a life together.

In December of 1997, Lynette's parents discovered that she was still seeing appellant. Consequently, Lynette moved out and began living with appellant in his family home. Lynette and appellant became engaged on New Year's Eve. Shortly thereafter, Lynette discovered that she was pregnant. For a while Lynette moved between her parent's house and appellant's house. At some point, apparently at the request of her parents, Lynette was taken to the children's shelter by social services. Lynette testified that she missed appellant and so, while on a field trip sponsored by the children's shelter, she left without authorization and returned to appellant.

Lynette gave birth to a son on September 5, 1998. Over the next few months Lynette's relationship with appellant deteriorated resulting in them separating and reuniting to live together several times. In May of 1999, Lynette was living in San Jose while appellant lived with his mother. One day towards the end of the month appellant came to visit. Lynette's and appellant's son was visiting Lynette's parents. Lynette and appellant were lying on the couch together "cuddling and talking." Appellant's arm was underneath Lynette's neck. Lynette said something that upset appellant and he became angry. Appellant tightened his arm around Lynette's neck scaring her. As Lynette began to cry appellant told her to "shut the fuck up" and "be quiet." Appellant also told Lynette that if she made any more noise he would kill her and that he was going to "beat the crap" out of her. Lynette testified that at this point she feared for her life.

Appellant took off Lynette's pants. This made her cry more. Appellant told her what he was going to do. Lynette testified that she stopped struggling because she knew that she could not get away. With his arm still around her throat, appellant had intercourse with Lynette. Afterwards, appellant told Lynette that if she told anyone he would "beat the crap" out of her.

Lynette continued to see appellant after this incident and have consensual intercourse with him. However, in June 1999, after an argument during which appellant threatened to beat and kill Lynette, she called the police. Lynette told the police about many incidents of violence perpetrated against her by appellant, but did not tell them about either of the sexual assaults. Lynette testified that she thought no one would believe her.

In the fall of 1999, Lynette began seeing Danny Arballo. Mr. Arballo noticed that when he tried to show physical affection towards Lynette she would back away. On September 16, 1999, Lynette wrote a letter to Mr. Arballo in which she told him about her relationship with appellant. At this time, Lynette was no longer seeing appellant. In the letter, Lynette related that appellant had "raped" her.

Over trial counsel's objection, Lynette was allowed to testify about several incidents in which appellant had been violent towards her. Specifically, Lynette testified that when she was about five months pregnant, she and appellant started arguing about whether they would eat at a particular restaurant. As the argument escalated, appellant picked up Lynette. She believed that he was going to throw her over the bridge or overpass on which she had been walking. When appellant let go of Lynette she walked down a trail and hid in some bushes. Appellant found her, picked her up by the arm and threw her down on the ground. He kicked her three times in the back and stomach.

The court allowed these incidents in under Evidence Code section 1109.

By the time their son was born, appellant had been physically violent towards Lynette on many occasions. When Lynette was just over seven months pregnant, appellant put her on the floor, took off his tie, put it around Lynette's neck and pulled on it. Appellant's sister came into the room and "yelled" at appellant to get off Lynette.

Just after Lynette's and appellant's baby was born a medical condition required that the baby remain in the hospital for an extra day. Appellant became very angry that he could not take the baby home. During an argument he had with Lynette in her hospital room, appellant hit Lynette on the head with a closed fist at least twice.

On November 24, 1998, during an argument in which Lynette threatened to move out, appellant grabbed her ankle and pushed her causing her to fall into the corner of a chest and scrape her upper back. Appellant hit Lynette in the chest with a closed fist. Following this incident, Lynette called the police for the first time.

Lynette testified about three more incidents of physical violence that occurred while she was living with appellant in Hollister in early 1999.

After she ended their romantic relationship, Lynette's contact with appellant was very infrequent. Unexpectedly, on September 7, 2006, a district attorney's investigator visited Lynette. At that time, Lynette had not had contact with appellant for about a year and a half. During that period of time Lynette had asked appellant to relinquish his parental rights to their son, but appellant refused so to do. Lynette told the investigator about the sexual assaults and gave her the letter she had written to Mr. Arballo, who was then her husband.

In cross examining Lynette, appellant's trial counsel asked Lynette about conversations she had had with appellant during the year and a half before the district attorney's investigator contacted her. Trial counsel asked Lynette if as part of those conversations she "wanted him to sign over his parental rights to [their] child?" Lynette confirmed that she had. Trial counsel asked Lynette, "And he didn't, did he?" She replied, "No, he didn't." Then, trial counsel asked Lynette if the issue of custody was still to be decided. Lynette confirmed that it was. Later, trial counsel attempted to portray Lynette as a liar.

Richard Ferry, an expert in intimate partner battering, explained to the jury that many recipients of domestic violence are afraid to report the abuse because they fear repercussions. He explained to the jury that frequently women in abusive relationships omit details regarding sexual violence even when they report physical violence out of shame and embarrassment and the hope that by reporting the physical violence the abuse will stop.

After the prosecution rested, the defense chose to rely on the state of the evidence and rested.

As noted, Lynette wrote a letter to Mr. Arballo some months after the rape. In the letter she stated, "[h]e then raped me." Before trial, the People moved in limine to admit the letter as fresh complaint evidence. The court ruled that the letter qualified as a fresh complaint. During trial both the full letter and a redacted version of the letter were shown to Lynette and Mr. Arballo. The redacted version of the letter showed only the date, "Dear Danny" the statement "[h]e then raped me" and Lynette's signature. Only the redacted version of the letter went to the jury.

Previously, during in limine motions, appellant's trial counsel had pointed out to the court that the purpose of the letter would only apply to count one because the letter did not mention anything about oral copulation. Further, trial counsel had argued that the letter was not a fresh complaint because it was written "at the very least, months after the alleged conduct took place." Counsel went on to argue that it was "completely unrealistic to think that a jury is going to accept this evidence for the limited purpose that it's proffered. They're going to basically hear the only unsolicited victim statement in this case, and yet, because obviously I would -- if it comes in, I'd be asking for a limiting instruction as to the purpose of the evidence coming in; and I just -- it's beyond me to believe that any jury would take this statement and be able to differentiate between the limited purpose that the District Attorney is trying to proffer it for." Counsel continued, "and a limiting instruction, I don't think, is nearly strong enough to prevent that from happening. . . . [¶] But if it were to come in, obviously we'd want a limiting instruction."

The court ruled that the letter qualified as a fresh complaint and allowed admission of a redacted version of the letter. The court explained, "The witness [Mr. Arballo] can come in and authenticate the letter, and the witness can say 'I' -- you know, that he received the letter or was handed the letter, I don't know, but somehow he got the letter. 'It had this date on it.' He can testify when he got it. . . . [¶] And he can state that the letter said that 'He then raped me.' And that in the context of the letter, 'he' refers to the defendant."

During trial, Lynette, Mr. Arballo and the district attorney's investigator testified about the letter.

During closing argument, the prosecutor pointed out to the jury that Lynette had not told the police about the sexual assaults, but she had told Mr. Arballo back in 1999 that defendant raped her. Then, the prosecutor argued, "And you can use that two ways. One, when you keep hearing she didn't say anything, she didn't say anything. Well, she didn't report, but she did say something. Okay? To a man who's her husband which is how that letter still exists -- well, we have it 'cause she went right to the house and got it from the shoe box that they keep it in. But also, that that statement, if you believe it, that what she was writing to him was true. Consistent with what she told you up there, for the truth of that statement, that he did rape her. [¶] And before you reject that, or when you're back in there, however, you decide to do your deliberations or your foreperson, when you decide how you're going to determine the truth of what happened here, I want each of you to think long and hard or discuss it or whatever you do, why she would say that in 1999 in a letter, it's a statement, it's written, but that's a statement, that's a prior consistent statement, if it were not true. Why would she tell her husband that of all things she could say? [¶] And then she did not use that letter for any purpose. She did not bring it to us, consistent with what Mr. Ferry was saying about the relationship between a victim and a batterer and all the complex psychology that goes on there, the traumatic bonding. She didn't. But she had it when this investigator asked her, 'Did you tell anyone?' [¶] 'I told my husband in a letter.' [¶] 'Do you have it?' She gave it to her. [¶] So if it did not happen, why would she say it then? It's illogical. There's no explanation for it."

Later in her argument the prosecutor argued to the jury, "And then coincidentally, she goes to her closet where there's a shoe box with a letter written in purple ink from when she was an 18 year old girl to the man who's now her husband that says 'Then he raped me.' Even though this is not true, there's that letter that coincidentally corroborates what she said happened years ago, what she testified to. You'd have to believe that that's a coincidence too. And that she's now put herself through this process, come in here. And coincidentally, it's all come together seeming as though she's telling the truth, and is corroborating, but she's not."

Appellant's trial counsel did not object to any of the prosecutor's argument.

In his closing argument, trial counsel argued that Lynette was a liar and had fabricated her testimony. As to the letter that Lynette wrote, trial counsel argued, "One of the most compelling aspects of this case, according to the prosecutor, is the letter, the four-page, purple-lettered letter that she finds so amusing. A letter that just happened to be sitting around all these years later so that when the DA investigator surprised Lynette Doe and came over and talked to her completely unannounced, took her a couple minutes, she finds the letter that she gave to somebody else that proves, supposedly, that a rape happened. [¶] There's something interesting about the letter. The letter doesn't mention count 2, the forced oral copulation, because if it did, the District Attorney would have brought that information to you through the same methods and using the same laws that she was allowed to bring in the rape in the letter. [¶] She didn't because it didn't mention it. So for whatever value the letter may have, and we submit not much, to try to bolster her weak rape case, the converse must be true with count 2, 'cause it's not in the letter."

On May 1, 2007, the public defender's office declared a conflict and substitute counsel was appointed. New counsel filed a motion for a new trial on June 22, 2007. Counsel alleged that were three grounds for an order granting a new trial; first, that the court had erred in its decision to admit Lynette's statement that the defendant had raped her under the fresh complaint doctrine; second, that the prosecutor had committed misconduct in arguing to the jury that Lynette's statement could be considered for purposes for which it was not admitted at trial; third, that trial counsel was ineffective by not objecting to the prosecutor's "clearly improper and prejudicial argument concerning the statement."

Counsel contended that under People v. Brown (1994) 8 Cal.4th 746 an extrajudicial complaint by an alleged victim should be limited to the fact of the making of the complaint but should not extend to the details of the complaint. Counsel argued, "Clearly the court should have limited the 'fresh complaint' evidence to the fact that a complaint was made on October 16, 1999." In fact the date of letter was September 16, 1999.

In her response to the new trial motion, the prosecutor argued that the letter established the fact of the prior disclosure, but not the details of the complaint; that she had not committed misconduct in arguing that the letter could come into evidence as a prior consistent statement because defendant's trial counsel had attacked Lynette's credibility; and in light of the fact that the letter was admissible as a prior consistent statement defendant's trial counsel did not render ineffective assistance in failing to object during her closing argument. The prosecutor attached a declaration under penalty of perjury to her response in which she stated that the court and defendant's trial counsel were aware of the "prior consistent statement theory" for the statement in Lynette's letter. Further, before closing argument she had made sure that the court and counsel knew that she would be arguing that Lynette's statement in the letter was not only evidence of a fresh complaint, but if believed, for the truth of the statement.

In reply, defendant's new counsel submitted to the court a declaration by appellant's trial counsel in which trial counsel stated that he had "no memory of any conversation, discussion, or ruling of the court (either formal or informal) that such an argument could be made."

The trial court stood by its ruling that the statement was admissible under the fresh complaint doctrine. In addition, because trial counsel had attacked Lynette's credibility, suggesting that she had fabricated the charges, the court ruled that the statement was admissible as a prior consistent statement. As a result, the trial court denied the motion.

Discussion

Ineffective Assistance of Trial Counsel and Prosecutorial Misconduct

Initially, it is important to note that appellant is not arguing that the statement in the letter Lynette wrote to Mr. Arballo was not admissible as evidence of a fresh complaint. Rather, appellant argues that trial counsel rendered ineffective assistance by failing to object to the prosecutor's closing argument that the jury could use the letter as proof that the rape had occurred.

"To prevail on an ineffective assistance of counsel claim, the defendant must show counsel's performance fell below a standard of reasonable competence and that prejudice resulted." (People v. Anderson (2001) 25 Cal.4th 543, 569.) "When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citations.]" (Ibid.) To put it another way, we may reverse on direct appeal on this ground only if "the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission." (People v. Fosselman (1983) 33 Cal.3d 572, 581.)

Our review is highly deferential, indulging a strong presumption that counsel's acts were within the wide range of reasonable professional assistance. (Strickland v. Washington (1984) 466 U.S. 668, 689 [104 S.Ct. 2052]; People v. Hart (1999) 20 Cal.4th 546, 624.)

"A defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety." (People v. Thornton (2007) 41 Cal.4th 391, 454.) Nevertheless, a defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel. The appellate record, however, rarely shows that the failure to object was the result of counsel's incompetence; generally, such claims are more appropriately litigated on habeas corpus, which allows for an evidentiary hearing where the reasons for defense counsel's actions or omissions can be explored. (People v. Lopez (2008) 42 Cal.4th 960, 972.)

Appellant contends that to prevail on his claim he must demonstrate that the prosecutor did in fact commit misconduct. In effect, the People agree with appellant. As the People point out, citing People v. Lucas (1995) 12 Cal.4th 415, 494, there is no ineffective assistance of counsel for failing to object to perceived prosecutorial misconduct if no prejudicial misconduct occurred.

" 'The applicable federal and state standards regarding prosecutorial misconduct are well established. " 'A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." ' " [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves " ' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " [Citations.]' " (People v. Hill (1998) 17 Cal.4th 800, 819.)

The fresh complaint doctrine permits admission of evidence of complaints made by the victim of a sexual offense, not to prove the truth of the victim's statement, but to show a prompt complaint was made. In the absence of such evidence, the jury might be left with the impression that the victim had remained silent, and, as a result, tend to doubt the veracity of the present testimony. (People v. Brown (1994) 8 Cal.4th 746, 755 (Brown).)

Specifically, in Brown, the Supreme Court held that "proof of an extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose -- namely, to establish the fact of, and the circumstances surrounding, the victim's disclosure of the assault to others -- whenever the fact that the disclosure was made and the circumstances under which it was made are relevant to the trier of fact's determination as to whether the offense occurred." (Brown, supra, 8 Cal.4th. at pp. 749-750.) Brown placed two significant limitations on this rule. First, the details of the statements themselves are inadmissible hearsay to prove the truth of the matter asserted. (Id. at p. 760.) Second, the evidence is subject to exclusion under Evidence Code section 352 if "the probative value of the evidence is outweighed by the risk that the jury will consider it for impermissible hearsay purposes, or that the evidence will otherwise create a danger of undue prejudice or will mislead or confuse the jury." (Id. at p. 763.)

Nevertheless, Evidence Code section 1236 states: "Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with Section 791." In turn, Evidence Code section 791 states: "Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: . . . [¶] (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen."

Furthermore, CALCRIM 318 informs the jury that a prior consistent statement if believed by the jury, may be used as "evidence that the information in [the] earlier statement is true."

Thus, "A prior consistent statement is admissible as an exception to the hearsay rule if it is offered after admission into evidence of an inconsistent statement used to attack the witness's credibility and the consistent statement, was made before the inconsistent statement; or when there is an express or implied charge that the witness's testimony was recently fabricated or influenced by bias or improper motive, and the statement was made before the fabrication, bias, or improper motive. [Citations.]" (People v. Kennedy (2005) 36 Cal.4th 595, 614.)

As noted, Lynette's letter was admitted in limine as fresh-complaint evidence. However, after trial counsel's cross-examination of Lynette in which he asked Lynette a series of questions designed to suggest that Lynette's testimony was recently fabricated or was influenced by an improper motive, the prosecutor was free to argue the letter was evidence that Lynette's statement in the letter was a prior consistent statement and thus could be used by the jury for the truth of the matter therein asserted.

The mere asking of questions may raise an implied charge of an improper motive and thus invoke Evidence Code section 791. (People v. Noguera (1992) 4 Cal.4th 599, 630-631.) Here, trial counsel's questioning of Lynette implied that she had fabricated the charges against appellant because she wanted to gain sole custody of their son.

Moreover, here the prosecutor could legitimately urge the jury to draw inferences from the letter without running afoul of arguing outside the evidentiary record. As Brown pointed out, evidence of a fresh complaint could be relevant in several ways including "the circumstances under which the complaint was made may aid the jury in determining whether the alleged offense occurred." (Brown, supra, 8 Cal.4th. at p. 761.)

In essence, appellant argues, however, that the trial court did not make any ruling that the letter could be used as a prior consistent statement. Appellant points out that it is the duty of the trial judge to control the proceedings during the trial including the argument of counsel. Appellant asserts that if "the parties choose simply to disregard in limine rulings they dislike or with which they disagree, the court is stripped of its ability to fulfill its obligations under section 1044 and its authority is badly compromised." Thus, the argument that the statement could have come in as a prior consistent statement should be rejected.

Respectfully, we disagree with appellant on this point. "[T]he trial court's in limine ruling is necessarily tentative because the court retains discretion to make a different ruling as the evidence unfolds." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1174.) Thus, "In limine rulings are not binding." (People v. Mattson (1990) 50 Cal.3d 826, 850.) Just as a trial court, ruling on the use of priors to impeach, is not in a position to make a fully informed determination prior to hearing the People's evidence (People v. Delgado (1973) 32 Cal.App.3d 242, 252, disapproved on another point in People v. Rist (1976) 16 Cal.3d 211, 221), here, where the People indicated an intent to offer evidence of a fresh complaint, the trial court could not have made an informed decision as to whether the evidence could come in as a prior consistent statement at a time when appellant's trial counsel had not even cross examined Lynette. Similarly, until appellant's trial counsel cross-examined Lynette, the prosecutor was in no position to offer the letter as a prior consistent statement.

Furthermore, we must reject appellant's implied assertion that failure of the prosecutor to get an on-the-record ruling that Lynette's letter was admissible as a prior consistent statement was prosecutorial misconduct. We do not condone the practice, but sometimes in the heat of trial and zeal of prosecution it is not uncommon for attorneys to overstep the bounds of propriety. However, the prosecutor's lapse was not " ' "so egregious that it infect[ed] the trial with such unfairness as to make the conviction a denial of due process." ' " (People v. Gionis (1995) 9 Cal.4th 1196, 1214.) Nor did the prosecutor's lapse involve " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " (People v. Haskett (1982) 30 Cal.3d 841, 866.)

Moreover, although appellant's trial counsel stated in his declaration attached to the new trial motion that he had no memory of any conversation that the prosecutor could make the argument Lynette's letter was a prior consistent statement, his failure to object at the time the prosecutor so argued to the jury is consistent with counsel's apparent tactical decision to use the letter to his advantage. Thus, the record is susceptible of the conclusion that discussions did take place during which the prosecutor proposed to argue Lynette's letter contained a prior consistent statement.

As noted, trial counsel argued "whatever value the letter may have, and we submit not much, to try to bolster her weak rape case, the converse must be true with count 2, 'cause it's not in the letter." It is apparent from the record that defendant's trial counsel had no confidence that a limiting instruction would prevent the jury from using the evidence for a purpose other than that for which it was admitted.

Even if the trial court never ruled on this argument, we find the record sufficiently developed to rule on it now.

It is improper for a prosecutor to misstate the law. (People v. Bell (1989) 49 Cal.3d 502, 538.) Here, however, where the prosecutor's argument was entirely proper we must reject any suggestion that she committed misconduct.

In conclusion, as we have held that the evidence detailed above could have been properly admitted, there is no basis for a finding of a denial of the effective assistance of counsel for failure to object on the ground of prosecutorial misconduct. Trial counsel is not required to make futile objections. (People v. Jones (1979) 96 Cal.App.3d 820, 827.)

Failure of the Trial Court to Give a Limiting Instruction

In his second argument related to the first, appellant contends that the trial court erred by failing to instruct the jury that the statement contained in Lynette's letter could only be used as evidence of a fresh complaint and not for the truth of the matter stated.

The People argue that appellant has not preserved this issue for purposes of appeal. Inevitably, appellant contends that if trial counsel failed to preserve the issue for appeal, counsel rendered ineffective assistance.

Background

When the trial court granted the People's motion to admit Lynette's letter as fresh-complaint evidence, over the objection of appellant's trial counsel, the court ruled that it would give a limiting instruction. Ultimately, no limiting instruction was given.

On June 22, 2007, when appellant's new counsel moved for a new trial, the court denied the motion. In so doing, the court noted that it had failed to issue a limiting instruction, but found that its failure was not prejudicial error. The court explained, "had this issue of prior consistent statement not been raised in this motion, that might be at least certainly perhaps an error by the Court not to give that, and I think the issue is whether or not that error resulted in a less favorable result to Mr. Morris than had I given that. And I think that goes to the question of had this been offered as a prior consistent statement, would that statement in the letter have been admissible. [¶] On that issue, I don't think that we can ignore the fact that the defense argument in this case was literally that the victim was a liar; that she repeatedly lied; that this was fabricated and statement relating to the rape, the charge was fabricated; it was motivated by a desire to obtain custody of the son of the two of them; and that -- and that issue about the custody, I believe, occurred -- arose some time after 1999 when the letter was written. [¶] I think that in light of the arguments that were made by the defense in this case, and the attacks on the victim's credibility that remain during the trial, that had -- if the issue were

raised -- and again, I don't have a specific recollection -- if the issue were raised, or when it was raised, depending on whether it was or not, it certainly would not have been, in my view, error to allow that statement in as a prior consistent statement. I think clearly it meets the requirements of section 791, in that it was made before these issues of fabrication or motivation occurred. And . . . it was prior to this significant attack on the victim's credibility. [¶] So I think that if the issue was raised, that perhaps [the prosecutor's] declaration is accurate that that was discussed, and for whatever reason, it wasn't placed on the record, it may have been that it was discussed right prior to argument and we proceeded with the jury. It may be that it wasn't discussed at all as [defense counsel] states or implies. I don't have a recollection one way or another, but I do not think it would have been error to have admitted that as a prior consistent statement. [¶] And in light of that, if it wasn't discussed, I don't think it's fatal error that would lead me to find that the defendant was denied a fair trial. [¶] So on that basis, I think I've said enough, the motion is denied."

For reasons similar to those discussed ante, the trial court did not err by failing to give a limiting instruction regarding Lynette's letter. Once trial counsel attacked Lynette's credibility by impliedly suggesting she had fabricated the charges to gain sole custody of her son, the prosecutor was free to introduce Lynette's statement in her letter to Mr. Arballo that appellant raped her as a prior consistent statement. Thus, the prosecutor could then argue to the jury that they could consider the statement for the truth of the matter therein asserted. (Evid. Code, §§ 1236, 791, CALCRIM 318.)

Appellant seems to suggest that the trial court somehow erred because initially it indicated it would give a limiting instruction, but ultimately failed so to do. We reiterate that the rulings of the trial court in limine are necessarily tentative because the court retains discretion to make a different ruling as the evidence unfolds. (People v. Rodrigues, supra, 8 Cal.4th at p. 1174.)

Further, appellant suggests that unless this court finds that the trial court erred in failing to give a limiting instruction we will be inviting chaos in the trial courts. We do not believe that such a scenario will result. This court will not assume that an officer of the court would regularly and deliberately ignore rulings of the court, or that a trial judge would allow such a situation to occur.

Finally, because we have addressed appellant's claim on the merits, we need not address his contention that any issue not preserved below was an instance of ineffective assistance of counsel. There is no indication that appellant's trial counsel was other than a vigorous advocate on appellant's behalf.

Disposition

The judgment is affirmed.

WE CONCUR: PREMO, Acting P. J., BAMATTRE-MANOUKIAN, J.


Summaries of

People v. Morris

California Court of Appeals, Sixth District
Sep 22, 2008
No. H032139 (Cal. Ct. App. Sep. 22, 2008)
Case details for

People v. Morris

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ALEX MORRIS, Defendant and…

Court:California Court of Appeals, Sixth District

Date published: Sep 22, 2008

Citations

No. H032139 (Cal. Ct. App. Sep. 22, 2008)