Opinion
A129053
12-15-2011
THE PEOPLE, Plaintiff and Appellant, v. IJEOMA C. OGBUAGU, Defendant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco County Super. Ct. No. 206956)
A jury found defendant Ijeoma C. Ogbuagu guilty of robbery and murder. The trial court concluded that multiple errors and circumstances had denied defendant a fair trial, and the court granted him a new trial. The court stated concerns about the reliability of the eyewitness identification supporting the verdict, newly discovered evidence showing contacts between the witnesses that may have influenced testimony, and inconsistent positions taken by the prosecution during the course of the case concerning the strength of the eyewitness identification. The People appeal but acknowledge that "[a] trial court's ruling on a motion for new trial is so completely within that court's discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of that discretion." (People v. Hayes (1999) 21 Cal.4th 1211, 1260-1261.) We find no abuse of discretion and therefore affirm the order.
I. FACTS
A. The robbery and identification of suspects
On September 14, 2008, Royshawn Holden and Steven Wilson were robbed at gunpoint outside a San Francisco marijuana dispensary. There were two robbers—a gunman and an accomplice. The gunman shot and killed Royshawn Holden during the robbery, and the two assailants escaped.
The surviving robbery victim, Steven Wilson, gave a physical description of the robbers to the police. Wilson described the gunman as darker and taller than himself, with facial hair, and dressed in a red army shirt and baseball cap. Wilson said he had more opportunity to observe the accomplice than the gunman. Wilson described the accomplice as lighter and taller than himself, skinny, with twisties in his hair, big lips, and dressed in a white T-shirt. Wilson told the police that he had seen the accomplice around the neighborhood, perhaps two or three times, but could not say exactly where. Wilson did not see any tattoos on either assailant.
The victims and assailants were African-American.
Two days after the robbery, Wilson described the gunman to a couple friends. Wilson thought the gunman was associated with a green van and burgundy Camry seen in the area just before the robbery. One of the friends telephoned people he knew and asked who drives a green van or burgundy Camry. The friend then showed Wilson a man's photograph on a social networking website, and Wilson identified him as the gunman. The man was Julius Hughes.
A few days later, on September 19, 2008, Wilson visited the shooting victim's sisters, Tiesha and Jimena Holden. Wilson told them that Julius Hughes was the gunman, and they looked at Hughes's photograph together on the Internet. Jimena's boyfriend was "throwing around names" of people that Hughes "runs with" and Jimena was "flipping through pages" of the Marina Middle School yearbook to find Hughes's accomplice. Wilson identified defendant as Hughes's accomplice in the robbery from a yearbook photograph. Wilson gave conflicting accounts of the method of that identification. In early testimony, Wilson said that Jimena Holden pointed to defendant's yearbook photograph and asked, " 'Is this the person right here?' " At trial, Wilson said that Jimena Holden was turning the yearbook pages when he saw defendant's photograph and stopped her to point it out.
Wilson believed he had determined the assailants' names and went to the police with this information. He was accompanied by the Holden sisters. To confirm the identification of Julius Hughes as the gunman, the police showed Wilson a photographic line-up consisting of Hughes and five other men. Hughes was the first photograph in the line-up, and Wilson identified him as the gunman. To confirm the identification of defendant as the accomplice, the police showed Wilson a single photograph. A police officer testified that he did not think a photographic line-up for defendant was necessary because Wilson previously said he had seen the accomplice in the neighborhood, and Wilson's identification of defendant from the yearbook was "solid."
B. The arrests and grand jury proceedings
Defendant was arrested a few days later, on September 24, 2008. A felony complaint was filed the next day charging defendant with robbery and murder. Defendant was held to answer these charges at a preliminary examination conducted on October 22, 2008. An information was filed against defendant on October 30, 2008. The alleged gunman, Hughes, was not apprehended until December 2008. With the apprehension of Hughes, the prosecutor brought murder charges against both Hughes and defendant to the grand jury.
The surviving robbery victim, Wilson, testified before the grand jury in December 2008. When testifying about the gunman, Wilson said: "I couldn't really see his face. I could see it but not really." Wilson explained that he "did not want to really look too much" at the gunman because he did not want to give the gunman a reason to shoot. Wilson said: "I didn't want to look directly into his face. But I did catch a glimpse at his face" when the gunman ran up to the car. Nevertheless, Wilson testified that he was certain of his identification of Hughes as the gunman from an Internet photograph. When asked how he could be sure, Wilson said "I wouldn't say gut or instinct, but by me catching a flash of his face, and me looking at the photo I knew without a doubt." As for the gunman's accomplice, Wilson testified that he was face-to-face with the man during the robbery "because he was the actual person robbing" him. Wilson testified that he identified defendant as the accomplice when Jimena Holden pointed out a yearbook photograph of a reported friend of Hughes and asked, " 'Is this the person right here?' " The prosecutor adjourned the grand jury proceedings for over two months, until February 24, 2009. When reconvened, the prosecutor told the grand jury: "I was attempting to develop additional evidence in this case. Primarily I was trying to get cooperation of the co-defendant, Ijeoma Ogbuagu, who has already been charged, in testifying against Julius Hughes. [¶] Unfortunately, that was not successful, and I have no further evidence to present to you." Given the state of the evidence, the prosecutor recommended that the grand jury not return an indictment against Hughes because "there is insufficient evidence to charge Mr. Hughes" as the gunman. The prosecutor noted that there was no corroborating physical evidence in the case and that "the whole case depends" upon Wilson's identification. The prosecutor deemed the identification of Hughes insufficient given Wilson's admission that he could not really see the gunman's face. The prosecutor recommended no action on the proposed indictment of codefendant Ogbuagu because he had already been charged by information following a preliminary hearing. Consistent with the prosecutor's recommendation, the grand jury found "there is not enough evidence to charge Mr. Hughes." Hughes was released and never indicted.
Hughes died months later, in September 2010.
C. The trial
A different prosecutor took the case against defendant Ogbuagu to trial. Trial commenced in July 2009. No physical evidence linked defendant to the crime. Fingerprints and DNA were recovered from the crime scene, but they did not match Hughes or defendant. The trial was founded on Wilson's testimony. Wilson described the robbery and explained that he ascertained the robbers' identities from conversations with friends and viewing photographs on the Internet and in a school yearbook. As noted earlier, Wilson's trial account of his identification of defendant from a yearbook photograph differed from his grand jury testimony. In testimony before the grand jury in December 2008, Wilson said that Jimena Holden pointed to defendant's yearbook photograph and asked, " 'Is this the person right here?' " At trial in July 2009, Wilson said that Jimena Holden was turning the yearbook pages when he saw defendant's photograph and stopped her to point it out. Wilson's trial testimony agreed with Jimena Holden's trial testimony concerning the identification of defendant. Wilson said his earlier testimony before the grand jury, which conflicted with Jimena Holden's account, was a mistake caused by nervousness.
Wilson's trial testimony about his observation of the gunman also differed from his grand jury testimony. In his grand jury testimony, Wilson described his observation of the gunman's face as "a glimpse" and "a flash." Wilson said he caught a "glimpse" of the gunman when the gunman approached the car and that when the gunman reached into the car where the victims were seated the gunman "stuck his head in the door" for no more than "a split second" and "[m]ostly had his arm in the car." Wilson said it was dark where they were parked, and told the grand jury: "I couldn't really see his face. I could see it but not really."
At trial, Wilson conceded that he did not focus on the gunman's face but did say, contrary to his earlier testimony, that he had a couple seconds to view the gunman's face inside the lighted car and definitely saw the gunman's face. The trial prosecutor first asked Wilson about the gunman's initial approach to the car, in the following exchange: "Q. And at that point in time, did you have an opportunity to see the gun? [¶] A. Yes. [¶] Q. And did you see the face of the gunman? [¶] A. Yes, but not that clearly at that time. [¶] Q. Okay. And we will talk some more about that. But did you have an opportunity to see his face? [¶] A. Yes." The prosecutor later asked about Wilson's observations when the gunman opened the car door and reached inside where the victims were seated: "Q . . . . When the car was opened, did the dome light go on? [¶] A. Yes. [¶] Q. And did you then see the gunman come into the car? [¶] A. Yes. [¶] Q. And at that point, were you able to see his face? [¶] A. Yes. [¶] Were you focused on his face—were you looking at this face a lot. [¶] A. No. [¶] Q. Why not? [¶] A. Because I was pretty much scared. I didn't want to give the person no reason to—no reason to shoot at the time. [¶] Q. You [] saw his face? [¶] A. Yes." Wilson testified that he looked at the gunman "maybe for like two seconds" while the gunman's head was in the car.
The prosecutor stressed defendant's certainty of his identification of both assailants in the following exchange: "Q. Mr. Wilson, is there any doubt in your mind that Julius Hughes and Ijeoma Ogbuagu are the men that robbed you and shot and killed your best friend Royshawn Holden? [¶] A. Not a doubt at all."
D. Closing argument to the jury
In closing argument to the jury, the prosecutor maintained that Wilson "is an accurate recorder of what happened." The prosecutor acknowledged the inconsistency between Wilson's grand jury testimony and trial testimony concerning whether it was Wilson or Jimena Holden who first pointed to defendant in the school yearbook but noted that Wilson had explained the inconsistency as the result of nervousness. The prosecutor said: "That is the only inconsistency in Steve Wilson's testimony."
The prosecutor also argued that Wilson's positive identification of Hughes corroborated his identification of defendant. The prosecutor said defendant was "able to identify other participants," namely Julius Hughes, and argued that "[t]he fact that he was able to do that corroborates the identification of the defendant." The prosecutor said that Wilson "picked out the right guy," Hughes, "two times," from the Internet and from the police photographic line-up. The prosecutor referred to Hughes as defendant's "buddy" and stressed evidence linking the two men as proof that Hughes and defendant acted together in the robbery. In addressing the jurors, the prosecutor said: "So, ladies and gentlemen, I ask you, is this mere coincidence that Steve Wilson would just so happen to pick out the defendant and Julius [Hughes], who had the same tattoos, who are in the same neighborhood together, who have been seen together, who's verified by a jailhouse phone call? What are the chances of that? Really, he must be the unluckiest guy in the world. Come on."
A police officer testified that defendant and Hughes both had tattoos that said "banga." The meaning of the tattoos was not explained. The officer also testified that defendant made a telephone call to a friend, during which defendant "mention[ed]" Hughes. The telephone conversation was played for the jury but is not set out in the trial transcript. The clerk's transcript quotes a small portion of the conversation where defendant asked, " 'who is Hughes with?' "
The prosecutor addressed defense counsel's observation that Wilson and Jimena Holden are close, and counsel's suggestion that they may have talked with and influenced each other in their accounts of the way defendant was identified from a school yearbook photograph. The prosecutor said there was testimony "from Jimena Holden and from the Holden family that they hadn't talked to Steven Wilson in over a year. So there's no way they could have gotten their stories together or made something up or tried to change it." In fact, Jimena Holden had testified that she had not seen Wilson for almost a year, from September 2008 to July 2009. That distinction—and the possibility of witness collusion—was highlighted in posttrial proceedings when the defense obtained telephone records showing calls between Wilson and Tiesha Holden in January, March, and April 2009, and calls during trial from Wilson to Jimena Holden that were placed minutes after Wilson testified and just before Tiesha and Jimena testified.
E. The verdict and motion for new trial
On the third day of deliberations, the jury reached a verdict finding defendant guilty of robbery and murder. The defense filed a motion for new trial. Defense counsel argued that "two basic errors tainted the trial's outcome and rendered it fundamentally unfair. First, the District Attorney's Office took inconsistent positions on the sufficiency of Wilson's testimony regarding the shooter's identity before the grand jury convened to indict Hughes and [defendant] Ogbuagu's trial [by] jury. Second, the guilty verdict returned against Ogbuagu was based on nothing more than eyewitness identification testimony that was so impermissibly suggestive and unreliable that it raised a substantial likelihood of misidentification. Newly discovered evidence [telephone records showing contact between Wilson and Tiesha and Jimena Holden] only exaggerates the shocking nature of the identification procedure underlying Ogbuagu's conviction."
F. The order granting new trial
The trial court granted the new trial motion upon finding that "the cumulative effect of certain errors has denied defendant his right to a fair trial." The court reasoned as follows: "The most important evidence before the jury in this case is the eyewitness identification as there was no physical evidence connecting defendant to the crime scene and Wilson's identification of defendant is the only evidence capable of directly connecting defendant to the underlying incident in order to convict him. [¶] The court finds certain factors which undermined the reliability of the identification worked to deny defendant a fair trial. They are: [¶] (1) Reliability of defendant's identification in general; [¶] (2) newly discovered evidence; [¶] (3) The prosecution's inconsistent positions on the strength and [sufficiency] of the evidence."
The court listed several reasons why it was troubled about the reliability of Wilson's identification: "(1) Wilson changed his account at trial of how he identified defendant in the yearbook in his previous explanations under oath; [¶] (2) Wilson initially identified adult defendant in his 20's based on a middle school yearbook photo of him when he was a teenager 14 years old. This makes the issue of whether Wilson was influenced by Jimena [Holden] through their conversations critical; [¶] (3) The police showed Wilson only one photo, defendant's adult photo for identification, rather than providing the usual standard photo line-up of six individuals; [¶] (4) Wilson was unable to recall the prominent tattoos of the defendant's neck and hands; [¶] (5) There is no physical evidence connecting defendant to the crime scenes; [¶] [(6)] Wilson's identification of defendant is the only evidence tying him to the incident."
On the issue of newly discovered evidence, the court concluded that the telephone records showing contact between Wilson and the Holdens was newly discovered and material. The court found that "the evidence of communications between these witnesses became critical at trial and overtly so for the first time during closing arguments" when the prosecution argued that the witnesses had not talked in over a year and thus had no opportunity to coordinate their testimony. The court noted that "[t]he phone records show there was communication[] between Wilson and the Holden sisters or the Holden household during the year or so leading up to trial." "This impeachment evidence impeaches the credibility of both Wilson's and the Holden sisters' account[s] of the defendant's identification in the yearbook. Since the prosecution's case against [defendant] Ogbuagu relied entirely on Wilson's identification of Ogbuagu as the unarmed accomplice to the shooter, anything that casts reasonable doubt to the reliability of the identification would have a critical impact on the outcome at retrial of the issue."
The court also addressed the prosecution's inconsistent positions in the grand jury proceedings and trial concerning the strength and sufficiency of the evidence. The court stated: "[T]he inconsistency in prosecution's position lies in the representation of the strength of its evidence that Hughes was the shooter on the night of the incident. At Hughes' grand jury hearing, prosecution determined that Wilson's identification was insufficient evidence to support an indictment of Hughes as the shooter . . . . However, during Ogbuagu's trial, prosecution elicited testimony from which Wilson firmly identifying Hughes as the shooter." "Prosecution's representation of this evidence led the jury to believe Wilson's identification of Hughes was strong, reliable and sufficient to support guilt for murder. Contrary to its prior position. [¶] It is untenable for Wilson's identification of Hughes to be insufficient to support probable cause to indict Hughes for murder and, at the same time, sufficient to assume his guilt for murder in a codefendant's trial. Through this irreconcilable representation of its case against Hughes, the prosecution misrepresented to Ogbuagu's jury the weight of its evidence against Hughes as the shooter. This misrepresentation strengthened its case and created prejudice against the defendant in violation of defendant's due process right to a fair trial." In assessing prejudice, the court found that "the inconsistency permitted the prosecution to strengthen its theory the defendant was properly identified as the accomplice to the shooter by drawing associations between defendant and Hughes as the unequivocal shooter." Also, "it allowed the prosecution to affirm its argument to the jury on Wilson's overall credibility in identifying defendant. The jury was more inclined to trust Wilson's identification of the defendant by believing that Wilson had made two trustworthy identifications rather than just one."
G. The appeal
The San Francisco District Attorney filed a notice of appeal in June 2010. (Pen. Code, § 1238, subd. (a)(3).) Briefing on appeal was completed in October 2011.
II. DISCUSSION
" 'We review a trial court's ruling on a motion for a new trial under a deferential abuse-of-discretion standard.' [Citations.] ' "A trial court's ruling on a motion for new trial is so completely within that court's discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of that discretion." ' " (People v. Thompson (2010) 49 Cal.4th 79, 140.) Here, we cannot say the court abused its broad discretion by granting a new trial.
The trial court stated concerns with the reliability of Wilson's eyewitness identification of defendant, the impact of newly discovered evidence showing contacts between Wilson and other key witnesses, and the prosecution's inconsistent positions on the strength of Wilson's eyewitness identification of one of the assailants. These concerns find support in the record.
As the trial court noted, "Wilson's identification of defendant is the only evidence tying him to the incident" and is therefore critical. The trial court stated reasonable concerns with the reliability of that identification. Wilson's identification was made under suggestive circumstances in which Wilson's friends proposed possible suspects. A cousin of a friend of Wilson telephoned people he knew and asked who drives a green van or burgundy Camry, which were cars Wilson connected with the assailants. The friend's cousin then showed Wilson a photograph of Julius Hughes on a social networking website and Wilson identified him as the gunman. A few days after seeing Hughes's photograph, Wilson visited the shooting victim's sisters, Tiesha and Jimena Holden. Wilson told them that Julius Hughes was the gunman, and Jimena's boyfriend started "throwing around names" of people that Hughes "runs with" as Jimena was "flipping through pages" of the Marina Middle School yearbook to find Hughes's accomplice. Wilson identified defendant from the yearbook.
The People argue that due process protections do not apply to all identifications made under suggestive circumstances but only when the suggestive circumstances were orchestrated by the police or other state actors. That is a contention currently under review by the United States Supreme Court. (Perry v. New Hampshire, cert. granted May 31, 2011, __ U.S. __ 131 S.Ct. 2932 No. 10-8974.) The issue need not detain us because the order granting a new trial does not rise or fall upon that issue, or any single issue. The trial court found that it was "the cumulative effect" of "multiple errors" and circumstances that warranted a new trial. The suggestive circumstances of Wilson's identification of defendant through conversations with friends was just one element. The court also noted other elements—including the police's suggestive procedure of showing Wilson only one photograph to confirm the identification after Wilson came to them with defendant's name from the yearbook. Other facts raising concerns with the reliability of the identification were that Wilson identified defendant as Hughes's accomplice in the robbery from a yearbook photograph taken years earlier, when defendant was only 14 years old, and defendant has prominent tattoos on his neck and hands yet Wilson told the police immediately after the robbery that he did not see any tattoos on the robbers. Wilson also gave conflicting accounts of the method he used when identifying defendant from the yearbook. In early testimony, Wilson said that Jimena Holden pointed to defendant's yearbook photograph and asked, " 'Is this the person right here?' " At trial, Wilson said that Jimena Holden was turning the yearbook pages when he saw defendant's photograph and stopped her to point it out.
Defendant's neck is tattooed with six stars, each about one square inch, spelling his daughter's name, and the back of both hands have tattoos approximately one inch by two inches. Wilson said the robber wore a white T-shirt, so clothing would not have concealed tattoos on the neck and hands.
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The change between Wilson's grand jury and trial testimonies concerning his identification of defendant from a school yearbook photograph takes on added significance when coupled with the fact that the change brought Wilson's testimony into concurrence with Jimena Holden's trial testimony. Defense counsel argued to the jury that Wilson and Jimena Holden may have talked and influenced each other in their account of the way defendant was identified. The prosecutor countered by arguing that Jimena Holden and the Holden family "hadn't talked to Steven Wilson in over a year. So there's no way they could have gotten their stories together or made something up or tried to change it." The prosecutor overstated the case. Jimena Holden testified that she had not seen Wilson for almost a year, from September 2008 to July 2009. Jimena did not say that she had not talked to Wilson in a year. The possibility of witness collusion was highlighted in posttrial proceedings when newly discovered evidence revealed telephone calls between Wilson and Tiesha Holden in the year leading up to the trial and calls at trial from Wilson to Jimena Holden that were placed during the short court recess taken between the testimony of Wilson and the testimony of the Holdens. The trial court reasonably found that the telephone records showing contact between Wilson and the Holdens was newly discovered evidence that is material to the case.
Finally, the trial court also reasonably found that the prosecutor took inconsistent positions. The People deny any inconsistency between the positions taken at the grand jury hearing and at trial. They contend that the theories in the two proceedings were "consistent and reconcilable, Julius Hughes was the shooter and Defendant was his accomplice." It is true that the People never altered their theory of the roles played by the suspects. But it is not entirely accurate to say, as the People do, that "Julius Hughes was always regarded as the shooter." Hughes may always have been suspected as the shooter but the People told the grand jury that there was insufficient evidence to charge Hughes as the shooter after Wilson admitted that he never really saw the shooter's face. That position changed at defendant's trial, where the prosecution elicited Wilson's inconsistent testimony that Wilson did, in fact, see the shooter's face. In closing argument to the jury, the prosecution argued that Wilson picked out the "right guy" when he identified Hughes from an Internet photograph and subsequent photographic spread. The record supports the trial court's finding that the prosecution changed its position concerning the strength and reliability of Wilson's identification of Hughes. As the trial court noted, "[i]t is untenable for Wilson's identification of Hughes to be insufficient to support probable cause to indict Hughes for murder and, at the same time, sufficient to assume his guilt for murder in a codefendant's trial." We cannot say that the trial court abused its discretion in finding that the cumulative effect of multiple errors and circumstances warranted a new trial.
III. DISPOSITION
The order granting a new trial is affirmed.
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Sepulveda, J.
We concur:
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Ruvolo, P. J.
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Rivera, J.