Opinion
D069865
07-11-2017
THE PEOPLE, Plaintiff and Respondent, v. DARRYL MURRAY, Defendant and Appellant.
Johanna S. Schiavoni, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa Torreblanca, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD255938) APPEAL from a judgment of the Superior Court of San Diego County, Louis R. Hanoian, Judge. Affirmed. Johanna S. Schiavoni, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury convicted defendant Darryl Murray of willful cruelty to an elderly person causing great bodily injury and assault by means likely to produce great bodily injury based on an incident during which Murray struck an elderly victim on the head, with no warning, causing her to fall and hit her head on a nearby wall. On appeal, Murray contends that the trial court's admission of a suggestive single-person photographic identification of him by a witness was error and violated his due process rights. He argues that because subsequent identifications of him were tainted by this initial suggestive identification, the trial court should have excluded all of the witness's identifications of him. Murray further argues that his trial counsel rendered ineffective assistance in failing to object to the suggestive identification and to all subsequent tainted identifications, and/or in failing to call an expert witness to testify regarding the fallibility of eyewitness identifications and eyewitness memory.
We reject Murray's contentions. On the merits of the question as to the admissibility of the witness's initial identification of Murray, we conclude that the trial court did not err in admitting that identification because the identification was sufficiently reliable under the totality of the circumstances. We further conclude that Murray has not established that his trial counsel rendered ineffective assistance by not calling an expert in eyewitness identification to testify on Murray's behalf. We therefore affirm the judgment of the trial court.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
On February 15, 2014, Walter Burns was working as a security guard at the Salvation Army Silvercrest Apartment complex located in downtown San Diego. At approximately 8:20 that evening, Burns noticed Murray standing in the doorway to the lobby of the complex. Burns asked Murray a couple of times what he wanted, but Murray offered no response. Burns told Murray that he would call the police if Murray did not leave the premises. Murray then said to Burns, " 'Are you going to make me leave?' " Burns responded, " 'No, I'll just call the police.' " Murray replied, " 'Call them.' "
Burns placed a telephone call to 911. While Burns was on the telephone with the 911 operator, he continued watching Murray, who remained standing in the doorway. At some point, a resident of the complex, 77-year-old Y.Z. tried to pass by Murray in order to enter the lobby. As she did so, Murray hit her in the back of her head, which caused Y.Z. to fall and hit her head on a nearby wall. As a result of the incident, Y.Z. suffered injuries to her wrist, head, and lower back.
As of January 1, 2017, California Rules of Court, rule 8.90 (all further rules citations are to the California Rules of Court) became effective. Rule 8.90(b) requires appellate courts to "consider referring to" certain individuals "by first name and last initial or, if the first name is unusual or other circumstances would defeat the objective of anonymity, by initials only," in order to protect those individuals' privacy. The list of people to whom this rule applies includes victims of crimes. (Rule 8.90(b)(4).) After consideration, we have decided to refer to the victim in this case by her initials in order to provide her with some measure of anonymity.
Security cameras near the front entrance of the lobby and inside the lobby recorded video of the incident.
The jury viewed the video from at least two of the cameras.
Murray left the scene before police arrived. The officers instructed Burns to call the police if he saw Murray again. Burns saw Murray on four different days in the week and a half to two-week period following this incident. He called the police each time and provided them with a description of Murray. When asked how he was "able to identify [Murray] on those four subsequent occasions," Burns said, "Just his height and his haircut were just -- I just knew what he looked like, so --." Burns also stated that he saw "a lot of people coming and going," but that he "could identify [Murray] on those four occasions," and that unlike most people with whom he interacted with while performing his job, he had gotten "a good look at the defendant when he was talking" to him.
On February 27, 2014, 12 days after Murray struck Y.Z. and one day prior to Burns's fourth sighting of Murray, San Diego Police Department Detective Janine Johnson prepared a flyer to distribute to other police officers regarding the suspect in the incident. The detective used a still photograph of the suspect, created from the security videos taken at the apartment complex. Later that day, Detectives Nick Kelbaugh and Richard McCoy were driving in the downtown area and spotted Murray. Kelbaugh and McCoy stopped Murray and took photographs of him on a cell phone, and then sent the photographs to Johnson. In the photographs, Murray was wearing a navy blue shirt with horizontal white stripes. After Johnson compared the photographs sent by Kelbaugh and McCoy with the photograph from the flyer, she began to prepare a photographic lineup to present to Burns and Y.Z.
The following day, Burns called the police for the fourth time to say that he had seen the man who had hit Y.Z. almost two weeks earlier. Burns described the suspect as a black man who was wearing a navy blue shirt with horizontal white stripes. Detectives Kelbaugh and McCoy responded to Burns's call, and showed him at least one photograph that they had taken of Murray the day before. Detective McCoy said to Burns, while showing him the photograph of Murray, " 'That's the guy, right?' " Burns replied, " 'Oh, yeah, that's him.' " McCoy then told Burns, " 'Oh, you know, he stays up the street' . . . and that, 'we got his name and his information and you don't have to call anymore.' "
A week later, on March 5, 2014, Detective Johnson presented Burns with the photographic lineup that she had prepared. Murray's photograph was located in position five of six photographs in the lineup. As Burns looked through the six photographs, he had "no recognition as to him identifying those individuals" who were pictured in photographs one, two, three, four and six. However, "he told [Detective Johnson] that Mr. Murray's photo [in position five] most closely resembled that of the suspect's." Burns wrote on the photographic lineup admonishment form, with respect to photograph five, " 'Possibly suspect. Same eyes and ears. Haircut different. Throws me off.' "
Detective Johnson also presented the photographic lineup to Y.Z. She was unable to identify any of the photographs in the lineup as depicting her attacker.
At trial, Burns identified the person in the police cell phone photo as Murray. He also testified that the person seen striking Y.Z. in the apartment complex security videos was Murray. Y.Z. was not asked to identify Murray in court. B. Procedural background
A jury convicted Murray of willful cruelty to an elderly person causing great bodily injury (Pen. Code, § 368, subd. (b)(1); count 1) and assault by means likely to produce great bodily injury (§ 245, subd. (a)(4); count 2).
Further references are to the Penal Code unless otherwise indicated.
The trial court found true that Murray had suffered two prior strike convictions. The trial court sentenced Murray to four years in custody. Murray filed a timely notice of appeal.
Although the record is unclear, it appears that the trial court struck one of the two strikes, because the court ultimately sentenced Murray as a second strike offender.
III.
DISCUSSION
A. The trial court did not violate Murray's federal and state rights to due process in admitting evidence regarding Burns's initial identification of Murray as the suspect
Murray contends that his conviction must be reversed because it is premised on an unduly suggestive single-person photographic identification, which he maintains led to subsequent tainted identifications. He asserts that the trial court violated his constitutional due process rights by admitting evidence of Burns's initial identification of Murray, in response to Detective McCoy showing him a single photograph and asking, " 'That's the guy, right?' " He further argues that Burns's "subsequent six-pack photo array identification and in-court identifications were tainted as a result of the initial unduly suggestive identification," and that the admission of these additional identifications further violated his due process rights.
The People initially point out that defense counsel did not move to suppress the complained-of pretrial identification or the subsequent identifications. However, given that Murray contends in the alternative that his attorney's failure to object to the identifications in the trial court constituted ineffective assistance of counsel, we will address the merits of the claim despite its forfeiture. (See People v. Williams (1998) 61 Cal.App.4th 649, 657 [addressing the merits of a claim, despite its forfeiture, because defendant asserted ineffective assistance of counsel].)
The admission of pretrial identification evidence violates a defendant's right to due process of law only if the identification procedure was unduly suggestive and unnecessary and if it is also unreliable under the totality of the circumstances. (People v. Kennedy (2005) 36 Cal.4th 595, 610 (Kennedy), disapproved of on another ground by People v. Williams (2010) 49 Cal.4th 405 (Williams).) For purposes of considering the totality of the circumstances, courts consider the following factors in evaluating the reliability of a witness's identification: (1) the opportunity of the witness to view the perpetrator at the time of the crime, (2) the witness's degree of attention, (3) the accuracy of the witness's prior description of the suspect, (4) the level of certainty demonstrated by the witness at the challenged identification, and (5) the length of time between the crime and the challenged identification. (Kennedy, supra, at p. 610, citing Neil v. Biggers (1972) 409 U.S. 188, 199-200; People v. Cunningham (2001) 25 Cal.4th 926, 989 (Cunningham).) "The defendant bears the burden of demonstrating the existence of an unreliable identification procedure." (Cunningham, supra, at p. 989.)
Assuming arguendo that the pretrial identification procedure that police undertook on February 28, 2014 was unduly suggestive, we conclude that the admission of Burns's initial identification of Murray did not violate Murray's right to due process because it was nevertheless reliable under the totality of the circumstances. (See Kennedy, supra, 36 Cal.4th at p. 610 [omitting suggestiveness analysis because "the identification evidence was admissible as reliable under the totality of circumstances"], disapproved of on another ground by Williams, supra, 49 Cal.4th at p. 459.)
The record demonstrates that Burns was able to view Murray for approximately two to three minutes during the initial encounter. During this time, Burns was relatively close to Murray, spoke with him, and retained eye contact for much of their interaction. Burns even kept an eye on Murray while Burns was on the telephone with a 911 operator. Further, as to Burns's degree of attention at the time of the incident, it is readily apparent that Burns "was not a casual or passing observer, as is so often the case with eyewitness identification." (Manson v. Brathwaite (1977) 432 U.S. 98, 115.) Nor was he a traumatized victim. (See United States v. Wade (1967) 388 U.S. 218, 230 ["The impediments to an objective observation are increased when the victim is the witness"].) Rather, Burns, a security guard at the apartment complex, interacted with Murray and directed his full attention toward Murray during this interaction.
We reject Murray's suggestion that Burns observed Murray for only "a few moments" (formatting omitted) at close range; the period of time was two to three minutes, which is more than sufficient for a witness to thoroughly observe a suspect. We also disagree that the fact that this time period was not as lengthy as the two-hour observation period present in People v. Bauer (1969) 1 Cal.3d 368, as relied on by Murray means that Burns did not have a sufficient opportunity to view Murray at the time of the offense. Indeed, in Kennedy, supra, 36 Cal.4th 595, the Supreme Court concluded that an eyewitness identification was sufficiently reliable in light of the totality of the circumstances where the witness made eye-to-eye contact with the suspect "for 30 to 60 seconds."
Murray contends, however, that Burns was "distracted throughout the encounter and the record does not support that he [had a] high degree of attention at the time of the offense, given that he was actually on the phone with police at the time." This characterization fails to acknowledge that Burns witnessed Murray engaging in troubling conduct (i.e., blocking and hitting the door to the apartment building), and that Burns interacted with Murray, asking him what he wanted and warning Murray that he was about to call the police, all before Burns actually did call 911. There is no indication from Burns's testimony that his attention was distracted away from Murray during any portion of the encounter. Burns's subsequent conduct, in calling police on four occasions after seeing the suspect in the area, and his explanation as to how he recognized Murray on those occasions, demonstrated that Burns did, in fact, focus on the suspect for identification purposes. Burns stated that he "had a good look at the defendant" while they were talking, and he further explained that he had recognized Murray on those subsequent occasions because he "knew what [the suspect] looked like," in part based upon "his height and his haircut." And, as noted, given that Burns was not the victim of Murray's attack, he was better situated to provide an objectively reliable identification. (See United States v. Wade, supra, 388 U.S. at p. 230.)
With respect to the accuracy of Burns's prior description of the suspect, both parties acknowledge that because there was no challenge to Burns's pretrial identification of Murray in response to Detective McCoy's question, " 'That's the guy, right?' " the record is limited with respect to the information available regarding Burns's description of the suspect at the time of the incident. However, the record does demonstrate that Burns was sure that he observed the suspect on four subsequent occasions, and that he called the police each time to report each sighting. Further, with respect to the fourth and final sighting, Burns described the suspect as wearing a blue shirt with white horizontal stripes. Murray had been photographed by Detective McCoy one day prior wearing a shirt that was blue with white horizontal stripes. This description, therefore, was a prior accurate description of the person that Detective McCoy had photographed, and the person that Burns identified as the perpetrator of the attack on Y.Z.
As to the level of certainty that Burns demonstrated at the time he initially identified Murray, it is clear that Burns was highly certain that the man in the photograph shown to him was the man who had struck Y.Z. When Detective McCoy first showed Burns the photograph of Murray, Burns unequivocally stated, " 'Oh, yeah, that's him.' " Burns was certain that he had gotten a "good look" at the suspect, and "just knew what he looked like." Further, the fact that Burns was less certain in his subsequent identification of Murray in the six-pack array photographic lineup does not render his earlier certainty less significant. First, it must be acknowledged that even though Burns was less sure of his identification of Murray in the photographic lineup that Detective Johnson prepared than he was with respect to his initial identification, Burns nevertheless did identify Murray, in photograph five, as the only person who looked like the perpetrator. Burns noted that the individual in photograph five had the " '[s]ame eyes and ears,' " but that his " '[h]aircut [was] different,' " which contributed to his lack of complete certainty. Detective Johnson testified at trial that the photograph of Murray used as photograph five in the six-pack photographic lineup was "not any photo that was taken by Detective McCoy or anyone in San Diego," and that she did not "even actually know when that photo [of Murray] was taken." Given that Burns had stated that one of the elements of the perpetrator that he remembered most distinctively was the perpetrator's hair, it is not surprising that he felt less certain about his identification of the perpetrator based on a photograph that portrayed the same individual with a different hairstyle or cut.
Finally, the length of time between the offense and when Burns viewed the cell phone photograph of Murray was just under two weeks. The Supreme Court has noted that a time period of three weeks between a crime and a witness's identification may weigh in favor of the reliability of a witness's identification. (Kennedy, supra, 36 Cal.4th at p. 611 ["we note that the length of time between the crime and the identification was only three weeks"].) Again, during this intervening time, Burns saw Murray on four additional occasions, prior to identifying Murray in the photograph on Detective McCoy's cell phone as the perpetrator.
We conclude that given all of these factors, Burns's identification of Murray in response to Detective McCoy asking Burns, " 'That's the guy, right?' " was sufficiently reliable to render it admissible. Given our conclusion that Burns's initial identification of Murray was sufficiently reliable under the totality of the circumstances, we further conclude that this identification did not "taint" Burns's subsequent pretrial and intrial identifications of Murray as the perpetrator, so as to render these identifications inadmissible. The trial court therefore did not err in admitting evidence regarding Burns's subsequent identifications of Murray. B. Murray has not demonstrated that his trial counsel failed to provide adequate assistance with respect to decision not to call an expert on eyewitness identification
Given our conclusion that there was no error in admitting Burns's initial identification of Murray, which also rendered the subsequent identifications admissible as well, defense counsel's failure to object to the admission of these identifications cannot be considered to have amounted to ineffective assistance. (See People v. Montoya (2007) 149 Cal.App.4th 1139, 1147-1148 [" 'Competent counsel is not required to make all conceivable motions or to leave an exhaustive paper trail for the sake of the record. Rather, competent counsel should realistically examine the case, the evidence, and the issues, and pursue those avenues of defense that, to their best and reasonable professional judgment, seem appropriate under the circumstances' "].) --------
To the extent that Murray contends that his trial attorney rendered ineffective assistance not only by failing to object to the introduction of the out of court identifications, but also by failing to call an expert witness to testify regarding the "fallibility and malleability of eyewitness memory, or other potentially faulty aspects of" eyewitness identifications, we reject this contention.
To establish constitutionally ineffective assistance of counsel, a defendant must show both deficient performance and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); People v. Williams (2013) 56 Cal.4th 630, 690.) The United States Supreme Court explained in Strickland: "[T]he defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." (Strickland, supra, at p. 687.) Further, "[i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal." (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.) " 'A reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. ([Strickland], supra, at p. 687; In re Andrews (2002) 28 Cal.4th 1234, 1253.)' " (People v. Gamache (2010) 48 Cal.4th 347, 391.)
Murray has not shown that his attorney's performance was deficient with respect to the decision not to call an expert witness regarding eyewitness memory and identifications. For example, Murray has not demonstrated that counsel failed to consult with a witness concerning eyewitness identification issues, and he has not demonstrated that such a witness would have presented favorable opinion testimony in this case, given the circumstances of the particular identification at issue. (See People v. Bolin (1998) 18 Cal.4th 297, 334 (Bolin) [decision to whether or not to call certain witnesses is a matter of trial tactics unless the decision results from unreasonable failure to investigate]; People v. Datt (2010) 185 Cal.App.4th 942, 951-953.) Moreover, defense counsel cross-examined Burns regarding his identification of Murray, and the jury was instructed as to the specific factors and circumstances that go to the reliability of an eyewitness's identification. Ultimately, defense counsel could reasonably have concluded, as a matter of trial tactics and strategy, that expert testimony on this matter was unhelpful and/or unnecessary. Murray has not shown that there could be no reasonable tactical purpose in declining to call a witness on eyewitness identification, and we do not second guess an attorney's tactical decisions. (See Bolin, supra, at p. 334.)
IV.
DISPOSITION
The judgment is affirmed.
AARON, J. WE CONCUR: BENKE, Acting P. J. HUFFMAN, J.