Opinion
C082573
04-30-2018
THE PEOPLE, Plaintiff and Respondent, v. MARLON PALMER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F03944)
Defendant Marlon Palmer appeals his conviction for second degree murder on two grounds. First, he argues the trial court erred by excluding third-party culpability evidence. Second, defendant argues the prosecutor committed Griffin error by suggesting during his rebuttal argument that defendant's failure to testify indicated guilt. We disagree with both arguments and affirm.
Griffin v. California (1965) 380 U.S. 609 .
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was found guilty of second degree murder for killing Hoa Ricky Tuyen (Hoa). Hoa owned a hydroponics supply store and sold marijuana under the counter. He employed his brother, Luc Tuyen (Luc), and his sister's boyfriend, Thai Troung. Hoa arrived at his store on February 25, 2014, earlier than usual. Later that morning, one of Hoa's friends went to the shop to visit and found Hoa face down on some bags of soil. There were drops of blood on the floor near Hoa. The friend called 911 at 11:47 a.m. and an ambulance arrived within minutes. A police officer who responded to the 911 call and arrived when the paramedics were loading Hoa into the ambulance stated that Hoa appeared to be alive at that time. He followed the ambulance to the hospital where he observed some blood and bruising around Hoa's left ear. Hoa was pronounced dead at the hospital.
Hoa's hydroponics shop was very messy. Upon arrival, police could not determine whether Hoa died of natural causes or a homicide. Luc also thought the store was "messy," but "like [it had] been searched." He alerted police to a suspicious shoeprint on top of a box as well as some previously stacked items that were now toppled over. He also told officers that Hoa kept a cardboard box with a large amount of cash somewhere in the shop, but the officers could not locate such box. The shop's security camera had been disconnected for three weeks and was not in use that morning. The scene was suspicious enough that officers asked the hospital to "bag" Hoa's hands to preserve potential forensic evidence. The next day, the forensic pathologist for the Sacramento County Coroner's Office performed an autopsy and determined Hoa died of asphyxia due to neck compression. He also observed blunt force injuries to Hoa's head and extremities. The pathologist observed "blunt force injuries, abrasions and contusions on the left side of the face, and on the ear, and on the scalp under which there was hemorrhaging into the soft tissues. There were also some areas on the sides of the neck and anterior neck within the folds of the skin that were discolored." Hoa's knuckles were swollen, and he had a scrape on the back of his right hand. He had a bruise on the left side of his chin.
Four months after the murder, DNA samples from under Hoa's fingernails were tested and matched to defendant's DNA profile. Based on this DNA evidence, police were able to obtain a search warrant for defendant's cell phone records. The records showed that defendant's phone pinged a cell phone tower within a quarter of a mile of Hoa's shop at 9:16 a.m. and 9:39 a.m. on the day of the murder. Officers interviewed defendant on June 26, 2014, and asked him about his presence near the crime scene. He said that in February of that year, he worked at McDonald's seven days a week from 4:00 a.m. to noon. The detective told defendant he had cell phone records and other "evidence at the scene where this incident occurred . . . [¶] . . . [¶] that would make us believe that you were there." When asked if he had any reason to be in the area on February 25, 2014, defendant did not provide an explanation
Before trial, defendant filed a motion in limine to admit third-party culpability evidence. Defendant argued Luc, Hoa's employee and brother, and Truong, his employee and sister's boyfriend, both could have killed Hoa, either separately or together. Defendant moved to admit evidence of Truong's debts to Hoa and to a gambling establishment. Defendant also moved to admit statements Luc purportedly made to police following the murder. In defendant's moving papers, he alleges that Luc "revealed that he knew that Hoa had been beaten before the information was released by the police." To support this claim, defendant pointed to the transcript of a different interview between Luc and the police detective that occurred two days after the murder.
The interview begins with the detective asking, "How is it that you found out that he was beaten to death?" Luc responded, "Uhm I think you told me." The detective replied, "No. We didn't know, and I had talked to you last week, we didn't know what happened." After saying another officer may have told him, Luc clarified that he learned of Hoa's injuries from his "sister and . . . in-law," who were at the hospital before Luc. Luc's relatives told him that "it's a head trauma, someone was hit in the head--in the back of the head. They tried to revive him but couldn't." The transcript did not include the statement where Luc claimed to know that Hoa was beaten to death, only his response to a question asking how he learned of Hoa's cause of death.
Defendant argued Luc's statements to police regarding Hoa's injuries showed Luc attacked Hoa because only the attacker could have known the details of Hoa's injuries at the time of Luc's interview. Defendant also argued Luc was the murderer because Luc usually went to the store every day but was not seen there on the day of the murder, and Luc told officers Hoa kept a large amount of cash in the store.
Defendant argued Truong could have murdered Hoa because Truong owed Hoa $6,100 and had a $20,000 gambling debt, giving him a motive for robbery. The day before the murder, Truong withdrew $6,200. He claimed he repaid the $6,100 he owed Hoa, but defendant argued Truong was never able to produce a witness to the payment. Additionally, Truong answered a call from Hoa at 9:41 a.m. and Hoa answered a call from Truong at 9:43 a.m., two hours before Hoa's body was discovered, but denied talking to Hoa that morning when he was interviewed by police eight days after the murder. Finally, Truong also missed work at the hydroponics shop the day of the murder. Defendant argued the prosecutor produced no evidence to support Truong's alibi that he was at a prenatal appointment with his girlfriend on the day of the murder, and defendant had a right to question police about their failure to investigate.
The trial court discussed the standard of proof under Evidence Code section 352 (section 352) with counsel, and asked them to argue the probative value versus the prejudicial effect of the third-party culpability evidence. The judge reviewed the autopsy photos and discussed whether the injuries constituted a "beating" as Luc described in his initial interview with police (which is not in the record.) The judge viewed a video of Luc's interview with police twice and discussed the transcript with counsel. The prosecutor pointed out that police walked through the crime scene with Luc, so Luc saw the disorder in the shop and the drops of blood on the ground. Luc knew Hoa had been robbed before, so he could have inferred Hoa was injured in a struggle. The judge acknowledged defendant had a right to ask police why they did not investigate Truong's alibi but told defendant he could not rely on speculation to introduce evidence. Court and counsel discussed whether Truong's withdrawal of $6,200 was exculpatory because it showed he intended to pay Hoa, or incriminating because the money was missing. They discussed the probative value of Truong's phone calls with Hoa the morning of the murder, and whether the calls created an alibi, i.e., Truong was somewhere else when Hoa was attacked. After carefully considering all of defendant's proposed third-party culpability evidence, the court denied defendant's motion in limine.
Following the close of evidence and defendant's closing argument, the prosecutor delivered his rebuttal argument. The prosecutor reminded the jury that defendant had failed to provide an explanation for his presence near the crime scene when he was interviewed by police. Defense counsel objected, arguing the prosecutor's statement constituted Griffin error. After overruling defendant's objection, the court admonished the jury as follows: "But again, keep in mind that the [d]efendant in a criminal case does not have to prove anything. Everyone understand that? Comments that [the prosecutor] is making are to be considered not that [d]efendant didn't produce evidence, but they're offered to -- you can use them to rebut the argument from the [d]efense about door knobs [sic] and whatnot. You cannot consider that for [defendant] did not produce evidence [sic]. He does not have an obligation to produce evidence. Does everyone understand that? All right. All yeses. All right. Thank you."
DISCUSSION
I
The Trial Court Did Not Abuse Its Discretion By
Excluding Defendant's Proposed Third-Party Culpability Evidence
Defendant argues the trial court erred under state and federal law by denying his motion in limine to admit third-party culpability evidence about Luc and Truong. We disagree.
Third-party culpability evidence is admissible if it is capable of raising a reasonable doubt as to the defendant's guilt. (People v. Hall (1986) 41 Cal.3d 826, 833.) "[E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (Ibid.) All relevant evidence, including third-party culpability evidence, is subject to section 352 balancing, which allows the court to exclude evidence where there is "a substantial danger of undue consumption of time or of prejudicing, confusing, or misleading the jury." (Hall, at p. 829.) We review the trial court's decision to exclude evidence for abuse of discretion. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124 ["[u]nder Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time"].)
Defendant argues Luc's police interview wherein police question him about the source of his knowledge that Hoa was beaten to death was relevant because it linked him to the actual perpetration of the murder. Specifically, defendant argues Luc's statements contained information only the murderer could have known. Defendant's argument has two problems. First, defendant assumes Luc's statements to police reflected his actual knowledge, when in fact the record shows the statements were speculative, and thus had limited probative value. Second, the probative value was further reduced because Luc's speculation about the cause of Hoa's death was inaccurate. Although Luc may have told police Hoa was involved in some sort of assault, a nonperpetrator could have made those statements given the condition of the shop and Hoa's body.
After Luc told police Hoa had been beaten, he clarified that he learned about Hoa's injuries from his sister. Luc explained, "So we was looking for where he's at, what hospital he went, but my sister was there already, they won't let us in. But my sister and my in-law saw what happened and is like yeah it's a head trauma, someone was hit in the head -- in the back of the head. They tried to revive him but couldn't." Defendant argues that this explanation is not credible because "it was not known that Hoa had been the victim of foul play until the day after Hoa's death after_[the autopsy.]" (Italics added.) The record, however, does not support this assertion. The police officer who followed Hoa's body to the hospital observed bruising around Hoa's ear at the hospital, supporting a finding of foul play before the autopsy was performed. Additionally, defendant argues that there is "only a mere possibility that [Luc] heard [about Hoa's cause of death] at the hospital because Dr. Hastings, the treating physician, didn't really know what was going on." Not so. Given Hoa's apparent physical injuries, it is possible Luc learned of Hoa's injuries at the hospital from the physician who examined Hoa, and that possibility reduces the probative weight of Luc's subsequent statement to police.
Further, Luc saw the messy state of Hoa's hydroponics shop when he walked through with the police. He also knew Hoa had been robbed before. As the prosecutor argued, Luc could have inferred a struggle took place from the messy state of the shop and his knowledge of past robberies. Taking these other circumstances into account, Luc's statements do not hold the probative weight defendant would have us assign to them.
Additionally, Luc's statement did not accurately describe Hoa's cause of death. Hoa was hit in the back of the head and then strangled to death, not beaten to death as Luc stated to police. Hoa had an abrasion on his forearm, injuries to his knuckles, and bruising and blood around his ear. The trial court did not find that the autopsy photos showed an extensive beating. The court stated, "So when I understand the term beating, I have in my mind that he was literally beaten by some object, or hands, or something, and we would have bruising throughout the body, or the head and the face, or the upper body or whatever it is. These autopsy photos don't necessarily show [that] --." The detective who was assigned to investigate could not tell from the crime scene whether "it was a homicide or just a natural death." Another police officer to respond to the scene observed blood and bruising around Hoa's left ear at the hospital. Luc's statement that Hoa had been beaten did not implicate him in the perpetration of the crime because the crime was not perpetrated in the way Luc described. The record supports the conclusion that Hoa died by strangulation, not by beating. Thus, because Luc's statement did not show unique knowledge of the crime, to the extent the statements implicated him, the probative weight was minor.
The record also supports the trial court's finding that the probative weight of Luc's statement was substantially outweighed by its potential to confuse the jury. The statements do not connect Luc with the crime in a way that raises reasonable doubt as to defendant's guilt, potentially resulting in juror confusion. Without a clear link between Luc's statements and the commission of the crime, the jury would be left to guess at the relevance of evidence that Luc learned Hoa was beaten to death from his sister and in-law, when Hoa was not actually beaten to death. Thus, the trial court's decision to exclude the video of the interview with Luc was not arbitrary, capricious, or absurd. (People v. Rodrigues, supra, 8 Cal.4th at p. 1124.)
Likewise, the trial court did not abuse its discretion by excluding evidence of Truong's debts. Truong had a $20,000 gambling debt and owed Hoa $6,100. He withdrew $6,200 the day before the murder and claimed he repaid Hoa in front of a witness, but he never produced the witness. Both debts may provide motive, but do not connect Truong to the actual perpetration of the murder. Nothing about Truong's debts places him at the hydroponics shop on February 25. The evidence only speaks to motive. Without other direct or circumstantial evidence connecting Truong to the "actual perpetration of the crime," the evidence of motive is inadmissible. (People v. Hall, supra, 41 Cal.3d at p. 833.)
Defendant argues that other evidence links Truong to Hoa's murder and makes his debts admissible third-party culpability evidence. Not so. Truong was the last person to talk to Hoa, but Truong was Hoa's employee and he was dating Hoa's sister, so his phone calls were not suspicious. Without more, Truong's two phone calls with Hoa on the morning of the murder do not connect Truong to the perpetration of the crime. They merely establish Truong knew and spoke to Hoa.
Defendant also points to Truong's absence from work on the day of the murder. He claims Truong's alibi that he was taking his girlfriend to a prenatal doctor's appointment could have been untrue. This argument only goes to Truong's opportunity to commit the crime. Like the evidence of motive, third-party culpability evidence showing opportunity is not admissible without other evidence tying the defendant to the crime. (People v. Hall, supra, 41 Cal.3d at p. 833.) Speculation that Truong was lying about his alibi, without more, does not connect him to Hoa's murder. Instead, defendant highlighted an area of the prosecution's case that lacked full investigation. Defendant had the opportunity to cross-examine police detectives on this issue during the trial. Given the trial court's careful consideration of the evidence and the parties' arguments, this record does not show it abused its discretion when it found that the proposed evidence did not create reasonable doubt as to defendant's guilt.
Defendant argues the trial court's reliance on Hall violated the California Constitution because the holding in Hall -- that third-party culpability evidence must show more than just motive and opportunity -- results in the exclusion of relevant evidence. (People v. Hall, supra, 41 Cal.3d at p. 833.) Article 1, Section 28, subdivision (f)(2) of the California Constitution (the "Right to Truth-in-Evidence") prohibits, with some exceptions, the exclusion of relevant evidence in criminal proceedings. One of those exceptions is section 352. (Cal. Const., art. I, § 28, subd. (f)(2).) Hall holds that third-party culpability evidence is a class of evidence just like any other, and if relevant, should be admitted subject to section 352 balancing. (Hall, at p. 834 ["courts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible (§ 350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion (§ 352)"].)
In this context, our Supreme Court was simply applying section 352 when it adopted the "mere motive or opportunity" rule. (People v. Hall, supra, 41 Cal.3d at p. 833.) A trial court has discretion under section 352 to exclude evidence of motive or opportunity that is so speculative it might delay, prejudice, or confuse a trial by implicating numerous third parties otherwise unconnected to the crime. (Hall, at p. 834 [rejecting defendant's claim that section 352 violated his right under the California Constitution to present a defense when third-party culpability evidence only showed motive].) Hall does not improperly limit the court's discretion to admit relevant third-party culpability evidence that would otherwise be mandated by the California Constitution because the discretion described by Hall was conferred upon the courts by section 352. (Hall, at p. 834.) Thus, the trial court did not violate defendant's right to truth-in-evidence.
Finally, defendant claims the court violated his Fourteenth Amendment right to due process and his Sixth Amendment rights to a jury trial, to confront witnesses, and to present a defense by excluding his proposed third-party culpability evidence. The federal Constitution gives trial court judges the discretion to exclude evidence if its probative value is outweighed by its prejudicial effect. (Holmes v. South Carolina (2006) 547 U.S. 319, 326 [164 L.Ed.2d 503, 510] ["well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury"].) Exercise of discretion only violates due process if a judge's error makes the trial fundamentally unfair. (People v. Partida (2005) 37 Cal.4th 428, 439.) As discussed above, we conclude the trial court did not err in balancing the evidence, so there is no due process violation.
II
The Prosecutor Did Not Argue Defendant's Failure
To Testify In His Own Defense Was Evidence Of Defendant's Guilt
Defendant argues the prosecutor violated his federal Fifth Amendment constitutional rights during closing argument by suggesting his failure to testify about the reason he was near the hydroponics shop within the time frame of the murder demonstrated his guilt. We do not agree with defendant that the prosecutor referred to his failure to testify, and thus conclude the jury was not reasonably likely to interpret the prosecutor's comments in such a manner. Accordingly, we reject defendant's claim.
The Fifth Amendment bars the prosecutor from commenting on a defendant's failure to testify in his own defense. (Griffin v. California, supra, 380 U.S. at pp. 613-614 [14 L.Ed.2d. at p.109].) If the defendant is the only one who can contradict certain evidence, then commenting on the defendant's failure to do so can constitute error. (People v. Bradford (1997) 15 Cal.4th 1229, 1339; cf. People v. Hughes (2002) 27 Cal.4th 287, 371 [stating Griffin error occurs when the prosecutor describes the evidence as uncontradicted when only the defendant's testimony can contradict]; People v. Vargas (1973) 9 Cal.3d 470, 475-477 [finding Griffin error because the prosecutor said defendants did not deny being at the crime scene].)
Nonetheless, commenting on the defense's general "failure to introduce material evidence or to call witnesses other than the defendant" does not violate Griffin. (People v. Taylor (2010) 48 Cal.4th 574, 633.) If the defendant could have but did not introduce evidence, the prosecutor may describe the admitted evidence as "uncontradicted." (People v. Johnson (1992) 3 Cal.4th 1183, 1229 ["[i]f, however, the evidence could have been contradicted by witnesses other than the defendant, the prosecutor may without violating defendant's privilege against self-incrimination describe the evidence as 'unrefuted' or 'uncontradicted' "].) If the prosecutor's comments are not reasonably likely to cause the jury to infer defendant's guilt from his failure to testify, they are constitutional. (Taylor, at p. 633.)
Defendant argues he was unable to produce a witness to explain his whereabouts because he was identified as a suspect four months after the crime was committed and no witnesses were then available. Therefore, defendant was the only one who could explain his presence near the crime, and the prosecutor's comment on his failure to do so constituted Griffin error by suggesting defendant should have testified in his own defense.
Defendant's recitation of the prosecutor's argument does not accurately describe the prosecutor's comments. In his rebuttal argument, the prosecutor pointed out defendant did not explain his presence near the crime scene when he was interviewed by the police, and instead left his counsel to provide an alternate explanation for the prosecution's evidence. The prosecutor made the following statements: "So again, you have [d]efense counsel standing up and making excuses and speculation for his own client who's already told you through the detective I wasn't there." The prosecutor continued, "[a]nd the detective shows [defendant] a picture of the business, the victim and the cell tower diagram, and points [defendant] in place and time to a particular location, and during that interview [defendant] can't offer up a maintenance McDonald's, a restaurant, a relative, a friend, anything? Nothing. He's left his counsel to get up and say [defendant's DNA was transferred to Hoa from] a gas pump or a door knob [sic]." After defendant's objection and an admonishment from the court, the prosecutor clarified he was only "commenting on [defendant's] statement to the detectives in which he denied being anywhere around."
These comments do not constitute Griffin error because the prosecutor was referring to defendant's failure to provide an alibi during an interview with police, not his failure to testify in his own defense at trial. As the prosecutor noted, defendant was not the only one who could testify about why he was near the crime scene. Defendant told police he was working for McDonald's at the time of the murder. Defendant could have directed investigators to a coworker or other evidence to show he was working in the area at the time of the murder; commenting on defendant's failure to do so is a permissible description of the state of the evidence under Griffin. (See, e.g., People v. Brown (2003) 31 Cal.4th 518, 554 [commenting on defendant's failure to explain his whereabouts at the time of the crime was not Griffin error].)
Moreover, defense counsel objected to the prosecutor's comments, and in response the prosecutor clarified he was not commenting on defendant's decision to not testify, but only on defendant's interview with police. This served to guard against the jury making an improper inference from the prosecutor's comments. (Cf. People v. Taylor, supra, 48 Cal.4th at pp. 632-633 [finding no Griffin error in part because prosecutor clarified her question]; see also People v. Mesa (2006) 144 Cal.App.4th 1000, 1006-1007 [stating a timely objection under Griffin can cure harm caused by prosecutorial misconduct].) The court also told the jury not to infer defendant's guilt from his inability to produce evidence of his alibi, further mitigating the potential for error. The prosecutor's comments in his rebuttal argument were not reasonably likely to cause the jury to infer defendant's guilt and therefore did not violate defendant's constitutional right to avoid self-incrimination.
Defendant concludes his argument by asserting that "the cumulative effect of the errors rendered the trial fundamentally unfair." California Rules of Court, rule 8.204(a)(1)(B) requires that appellate briefs state "each point under a separate heading or subheading." Defendant's brief does not state his cumulative error argument under its own subheading, so we need not consider it. Regardless, the argument fails because we conclude the trial court did not err. --------
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Duarte, J.