Opinion
G061898
09-17-2024
THE PEOPLE, Plaintiff and Respondent, v. BRANDON DEANDRE NORWOOD, Defendant and Appellant;
Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier, Kathryn A. Kirschbaum and Ksenia Gracheva, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Order Filed Date 9/19/24
Appeal from a judgment of the Superior Court of Orange County, No. 20ZF0006 Patrick H. Donahue, Judge. Affirmed.
Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette
C. Cavalier, Kathryn A. Kirschbaum and Ksenia Gracheva, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION
It is ordered that the opinion filed herein on September 17, 2024, be modified as follows: On the last page, in the signature block, replace:
"GOETHALS, J."
And in its place insert the following:
"GOETHALS, ACTING P. J."
This modification does not effect a change in the judgment.
OPINION
GOETHALS, P. J.
Brandon Deandre Norwood appeals from his convictions for second degree murder and possession of a firearm by a felon. He contends statements he made to undercover officers and during a post-Miranda interview were involuntary in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. He also claims the trial court erred in allowing a lay witness to opine that an object seen in Norwood's hand in a photograph taken from a surveillance video was a gun. We conclude Norwood's contentions lack merit. We therefore affirm the judgment.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
STATEMENT OF FACTS
I.
THE MURDER
Surveillance video taken on the day of the incident showed an individual walking to a market to fill water bottles. A car pulled up to the apron of the parking lot. Norwood exited the passenger side of the car and followed the victim into a residential neighborhood. Norwood then ran toward the victim. The car Norwood exited pulled up and waited in the street. Shortly thereafter, Norwood ran to the car with an object in his hand. He then got into the car, and the car drove away. Police later determined Norwood's cousin, Jane Doe (J.D.), rented the car two days prior to these events.
At trial, there was no dispute Norwood was the person in the surveillance video.
The parties referred to J.D. by her name but because she is not a defendant, we use initials to protect her privacy. (Cal. Rules of Court, rule 8.90.)
The footage did not capture the shooting. Witnesses heard gunshots and saw a man running from the area with a gun. Police later found the victim with a fatal gunshot to his head. The witnesses could not identify Norwood.
II.
THE UNDERCOVER OPERATION
After police arrested Norwood, they placed him in a van with three undercover officers who were posing as fellow arrestees. During the ride to the police station, Norwood told the undercover officers he was worried he would not be able to pay rent if the police locked him up. Norwood also said he was concerned he would lose his apartment and his wife because he would be in jail fighting a murder charge. The ride to the station lasted approximately 30 minutes.
Norwood was placed in a holding cell with the undercover officers. While in the cell, Norwood saw a uniformed detective carrying a folder which had a picture of Norwood, J.D.'s car, and the victim on it. Norwood told the undercover officers it was him in the picture. The undercover officers asked Norwood if it was his car or if he knew the victim. Norwood denied that it was his car and that he knew the victim. He claimed the police were engaging in a "scare tactic." He said he knew the police wanted him to look at the folder so they could see his "body language," and added, "now the games begin."
One of the undercover officers told Norwood he heard the detectives talking about a girl named "[J.D.]" Norwood responded, "They got [J.D.]?" He stated J.D. was his cousin, and said the police were going to try to play them off each other and to act as if the other was talking.
The police later removed Norwood from the cell. This was part of a ruse in which the police wanted Norwood to see a bulletin board they created. On the board was a piece of paper with the victim's name, a "DNA" box checked, and a "witness" box checked. It also had the words, "Forensic Analysis Exact Match 100," and "Facial Recognition 100 percent." This was false evidence. After Norwood saw it, the police returned him to the cell.
Speaking again to the undercover officers, Norwood identified himself and J.D. in the pictures. He claimed no one saw them together. He said he "know[s] how it works," that the police are showing J.D. pictures and hoping he is worrying. He told the undercover officers that the police do not have the murder weapon because if they did it "would've been on the bulletin." Norwood said the police only targeted him because the case was cold, he looked like he did not belong in the neighborhood, and he was on parole at the time.
The undercover operation lasted four and one-half hours. Throughout the operation, Norwood consistently denied knowing the victim and denied committing the murder.
III.
THE POST-MIRANDA INTERVIEW
Following the undercover operation, Detective Smith, who was the lead investigator for this case, removed Norwood from the holding cell to interrogate him. Detective Smith read Norwood his Miranda rights which Norwood indicated he understood. Smith uncuffed one of Norwood's hands from the table prior to beginning the questioning.
Smith told Norwood the police had a picture of Norwood and J.D. together. Norwood admitted J.D. was his cousin, but he denied knowing the victim. He told Smith that on the night in question he was "loaded" and "drunk," so as far "as like remembering . . . I can't tell you too much .... "
Norwood told Smith that "this [was] not [his] first rodeo sitting" "in this chair," and that he has "sat in this room a lot of times ...." He said he "kn[ew] the protocols . . . [¶] . . . of what I should be doing," but he wanted to help the police "as much as possible" and in "any way shape or form."
Norwood denied knowing the victim, and ever owning or possessing a gun. Smith claimed witnesses saw Norwood and the victim together right before Norwood ran back to the car. Norwood denied this was true, and he denied committing the murder.
Smith showed Norwood a picture taken from the surveillance video; Norwood identified himself but said he got out of the car to use the restroom. Smith told Norwood witnesses saw him running to a car with a gun in his hands; Norwood denied this was true.
In the picture, Norwood is holding an object; Smith claimed it was a gun; Norwood instead said it was his cell phone. Smith asked him if it was a phone with a trigger guard and a barrel on it; Norwood continued to deny it was a gun and said it did not look like a gun to him.
Smith's questioning lasted more than two hours. Throughout the interrogation, Norwood denied responsibility for the shooting.
IV.
NORWOOD'S MOTION TO EXCLUDE HIS STATEMENTS
Prior to trial, Norwood moved to exclude "all statements" he made to the undercover officers and Detective Smith on the grounds they were involuntary. His motion did not identify any specific statement, but argued the entirety of his statements made during the undercover operation and post-Miranda interview were involuntary. The trial court denied the motion. As to the undercover portion, it ruled "Mr. Norwood [was] willingly speaking with the undercover officers. They are pretty much letting him talk. There are no threats by any of the officers. No promises were made."
Regarding the post-Miranda interview, the court concluded, "[t]here was nothing in the Miranda interview, using the totality of the circumstances, that [demonstrated] Mr. Norwood's abilities to reason, comprehend, or resist were so disabled that he was incapable of free or rational choice."
V.
DETECTIVE SMITH'S OPINION
Norwood moved to preclude Detective Smith from giving an opinion at trial that it was a gun he was holding in the picture taken from the surveillance video. Smith did not witness the incident; he based his opinion on his review of the video and image. Norwood argued Smith was not a witness to the event and it was an improper lay opinion. Norwood also cited Evidence Code section 352 claiming the officer's opinion was more prejudicial than probative. The court denied the motion.
All further statutory references are to the Evidence Code unless otherwise stated.
At trial, Smith testified he has carried a semiautomatic pistol for 14 years. He testified his service weapon is a semiautomatic, and he explained the contours of a semiautomatic gun and the shape of its trigger guard. The prosecution showed Smith a picture taken from the surveillance video which depicted Norwood running from the scene with an object in his hand. Smith testified the object "appear[ed] to show the trigger guard underneath the object as well as the top or slide of the object." He testified this was "consistent" with how most semiautomatic handguns are shaped.
VI.
NORWOOD'S CONVICTION
The jury returned guilty verdicts for second degree murder and felon in possession of a firearm. As to the murder charge, the jury found it true Norwood personally and intentionally discharged a firearm causing death. As to the felon in possession charge, the jury found it true that Norwood was armed with a firearm. The court sentenced Norwood to a prison term of 40 years to life.
DISCUSSION
I.
NORWOOD'S STATEMENTS TO THE UNDERCOVER OFFICERS AND DETECTIVE SMITH
Norwood contends the trial court erred when it found his statements were voluntary. He asserts the following circumstances dictate a finding that his statements made to the undercover officers and Detective Smith were involuntary: (1) the length of time he was in custody; (2) the nature of the undercover officers' questioning; (3) the cold temperatures in the holding cell coupled with the officers' refusal to bring him a blanket; (4) police fabricating evidence during the operation; and (5) Detective Smith handcuffed him to a table and confronted him with false evidence during his interrogation. Norwood argues he was particularly susceptible to police coercion because he was "off balance" during the ordeal. He premises this on his statements that he was worried about his wife and paying their rent. As we discuss, the trial court did not err in admitting Norwood's statements.
A. Applicable Law
"'In order to introduce a defendant's statements into evidence, the People must prove by a preponderance of the evidence that the statement was voluntary.'" (People v. Maury (2003) 30 Cal.4th 342, 404 (Maury).) "The test for determining whether a confession is voluntary is whether the defendant's 'will was overborne at the time he confessed.'" (Ibid.)
"A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions." (Maury, supra, 30 Cal.4th at p. 404 .) "Although coercive police activity is a necessary predicate to establish an involuntary confession, it 'does not itself compel a finding that a resulting confession is involuntary.'" (Ibid.) "The statement and the [coercive activity] must be causally linked." (Id. at p. 405.)
"In reviewing the voluntary character of incriminating statements, '"[t]his court must examine the uncontradicted facts surrounding the making of the statements to determine independently whether the prosecution met its burden and proved that the statements were voluntarily given without previous inducement, intimidation or threat. [Citations.] With respect to the conflicting testimony, the court must 'accept that version of events which is most favorable to the People, to the extent that it is supported by the record.'"'" (Maury, supra, 30 Cal.4th at p. 404.) We examine '""'all the surrounding circumstances-both the characteristics of the accused and the details of the interrogation.'"'" (Ibid.)
B. Analysis
Norwood does not identify any specific statement or statements he made as involuntary. Rather, he asks us to find that every statement he made during the seven-and-a-half-hour investigation was involuntary. We are not persuaded.
1. Cold Temperature
The record supports the inference that it was chilly in the holding cell. But nothing in the record demonstrates what the temperature was. Norwood retained his ability to exercise his free will throughout the investigation, despite the temperature, as demonstrated by the fact that he consistently denied any involvement in the crime. "His resistance . . . suggests instead a still operative ability to calculate his self-interest in choosing whether to disclose or withhold information." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 58.)
2. Repeated Questioning
Norwood argues the nature of the undercover officers' questioning amounted to coercive conduct. Undercover officers did question Norwood about many aspects of the case, but repeatedly questioning a suspect about his involvement in a crime is not inherently coercive. (People v. Miranda-Guerrero (2022) 14 Cal.5th 1, 21 (Miranda-Guerrero).) This record contains no support for the proposition that the undercover officers were abusive to Norwood or that their questioning involved improper coercion.
3. Fabricated Evidence
Norwood argues the police engaged in coercive misconduct when they displayed to him fabricated evidence. Although the undercover officers presented Norwood with false evidence, "[p]olice deception 'does not necessarily invalidate an incriminating statement.'" (People v. Smith (2007) 40 Cal.4th 483, 505.) The law allows the police to engage in trickery and deceptive conduct during an investigation or interrogation as long as "'the deception was not of a type reasonably likely to procure an untrue statement.'" (People v. Thompson (1990) 50 Cal.3d 134, 167.) We find no such misconduct here.
4. The Length of the Interrogation
Norwood complains the length of the operation-approximately seven-and-a-half-hours-demonstrates his statements were not voluntary. Again, we are not persuaded. Although "'the length of the interrogation'" is a factor we consider, the California Supreme Court has repeatedly found longer interrogations not to be coercive. (Miranda-Guerrero, supra, 14 Cal.5th at p. 21 [seven hours]; People v. Peoples (2016) 62 Cal.4th 718, 740 [12 hours].) To the end of Detective Smith's interrogation, Norwood denied involvement in the shooting.
5. Detective Smith's Interrogation
Norwood claims Detective Smith's "persistent[]" questioning, confidence in his guilt, and presentation of false evidence rendered his statements involuntary. Once again, we must disagree because we find no evidence in this record which indicates Norwood's '"will was overborne."' (Maury, supra, 30 Cal.4th at p. 404.) While Smith's interrogation was vigorous, it never became coercive.
6. Norwood's Personal Circumstances
Norwood asserts his personal circumstances made him especially susceptible to coercive police tactics. Although there is evidence Norwood was concerned about the well-being of his wife and their apartment, there is no evidence in the record the police exploited his mental state. (People v. Cunningham (2015) 61 Cal.4th 609, 644.) Nor does Norwood identify any such evidence.
II.
DETECTIVE SMITH'S OPINION
Norwood argues the trial court erred in admitting Detective Smith's opinion that it was a gun Norwood was holding in the image taken from the surveillance video. He asserts: (1) this was not the proper subject for a lay opinion; (2) Smith did not give the opinion to aid the jury in understanding his testimony; (3) the prosecution offered the opinion as a fact from which the jury was to conclude Norwood was holding a gun; and (4) it was error to allow a witness to give an opinion solely based on viewing a surveillance video. We find the trial court did not abuse its discretion in admitting the testimony.
A. Applicable Law
"'A lay witness may testify to an opinion if it is rationally based on the witness's perception and if it is helpful to a clear understanding of his testimony.'" (People v. Virgil (2011) 51 Cal.4th 1210, 1254.) "The admission of a layperson's opinion testimony lies in the discretion of the trial court and will not be disturbed '"unless a clear abuse of discretion appears.'" (People v. Brown (2001) 96 Cal.App.4th Supp. 1, 33.)
B. Analysis
1. Appropriate Subject of Lay Opinion
Norwood argues the opinion was not the proper subject of lay testimony. He supports this argument by pointing out the prosecution claimed the opinion was permissible because a police officer knows more about guns than the average person.
A lay witness may "properly identify [a] weapon...." (People v. Hines (1997) 15 Cal.4th 997, 1058.) Detective Smith's experience with guns goes to the weight of his opinion, not its admissibility. (People v. Chapple (2006) 138 Cal.App.4th 540, 548, fn.5.)
2. Basing an Opinion on a Video
Norwood argues it is improper for a lay witness to view a surveillance video or still picture and identify an object for the jury from that video or picture. He contends jurors can watch a video or view a picture and decide for themselves what they see. While that may under certain circumstances be true, there is nothing improper about an officer, or any lay witness, relaying their "perceptions of what [they see] on [a] video surveillance camera." (People v. Phillips (2022) 75 Cal.App.5th 643, 685.) We have "long upheld admission of testimony" based on surveillance videos or photographs. (People v. Leon (2015) 61 Cal.4th 569, 602.)
C. Section 352
In his opening brief, Norwood argues Smith's opinion was inadmissible pursuant to section 352. Section 352 gives a trial court discretion to exclude relevant evidence if the evidence's probative value is substantially outweighed by the probability its admission will consume an undue amount of time, unduly prejudice the defendant, confuse the issues, or mislead the jury. (§ 352.)
Norwood does not develop the point with any argument as to why the trial court erred on this ground. Asserting a position but not developing it "with reasoned argument and analysis" forfeits the contention. (People v. Clayburg (2012) 211 Cal.App.4th 86, 93, disagreed with on other grounds by People v. Delarosarauda (2014) 227 Cal.App.4th 205, 211.) In any event, we reject the argument on its merits.
1. Undue Consumption of Time
Courts have the discretion to exclude relevant evidence if its presentation would "extend[] the trial-and the burden on the judicial system and the jurors-beyond reasonable limits ...." (People v. Williams (2009) 170 Cal.App.4th 587, 611.) Here, the prosecution posed eight questions to Detective Smith on the topic; the defense asked seven. For a trial that included seven days of witness testimony, we cannot conclude the topic consumed an undue amount of time.
Further, the subject of the testimony-whether Norwood was holding a gun in the video-was contested. Smith's testimony had greater probative value than that of other witnesses who testified they saw the suspect with a gun. These witnesses could not identify Norwood as the gunman. But there was no dispute it was Norwood in the surveillance video. Thus, Smith's opinion had greater probative value than the other witnesses because he opined that the man in the video, Norwood, was holding an object which had the appearance of a gun. A trial court should not exclude evidence as cumulative, when "it has greater evidentiary weight or probative value" than other evidence. (People v. Mattson (1990) 50 Cal.3d 826, 871, superseded by statute on another ground as stated in People v. Bolin (1998) 18 Cal.4th 297, 315, fn. 2.)
2. Undue Prejudice
Trial courts should exclude evidence which "evoke[s] an emotional bias against [the] defendant as an individual and which has very little effect on the issues." (People v. Williams (2013) 58 Cal.4th 197, 270.) Here, Detective Smith's testimony did not evoke an emotional bias against Norwood. Smith did not testify to Norwood's character, nor did he use inflammatory language. We find no evidence in this record to demonstrate that Detective Smith's testimony was unduly prejudicial.
DISPOSITION
The judgment is affirmed.
WE CONCUR: SANCHEZ, J. DELANEY, J.