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People v. Puckett

Court of Appeals of California, Third District, Sacramento.
Nov 5, 2003
C040743 (Cal. Ct. App. Nov. 5, 2003)

Opinion

C040743.

11-5-2003

THE PEOPLE, Plaintiff and Respondent, v. JEREMY PHILLIP PUCKETT, Defendant and Appellant.


Defendant was convicted by jury of robbing and murdering Anthony Galati. The jury also found true a firearm enhancement as to both crimes and a special circumstance of murder during commission of a robbery as to the first degree murder. The jury acquitted defendant of being a convicted felon in possession of a firearm. The trial court found defendant had two prior serious felony convictions. Sentenced to a total term of 11 years plus life without possibility of parole, defendant appeals. He asserts the judgment must be reversed due to prosecutorial misconduct, exclusion or limitation of evidence favorable to him, and insufficiency of the evidence. We affirm.

FACTS

Testimony of Israel Sept

Sept, also known as Easy, met the victim, Anthony Galati, at an Easy Stop store on March 13, 1998. Galati was with Larry Middlebrooks, also known as Richard Pryor, whom Sept knew previously. Sept went with Galati and Middlebrooks to an apartment Middlebrooks shared with William Van Hill. Later, Angela Dvorsky and a man named Jaymo came to the apartment, but Jaymo soon left. Still later, defendant arrived. Sept wanted to sell Middlebrooks and Galati drugs but could not because Galati only had a $100 bill and Sept had no change. Middlebrooks and Galati left the apartment and returned twice looking for change, after which Sept sold Middlebrooks some drugs. Middlebrooks and Patty Bostic went into the bathroom. Van Hill was in his bedroom.

Sept went to the bathroom to talk to Middlebrooks and sell him additional drugs. At the time, Dvorsky was sitting on Galatis lap in the dining room. When Sept returned from the bathroom, Galati was lying prone on the living room floor. Defendant was standing over Galati with a gun in his hand, demanding money from Galati. Defendant threatened to shoot everyone in the apartment. Sept told him he could not do that and get away with it, then Sept went back to the bathroom to warn its occupants to stay there. As Sept was leaving the bathroom, Van Hill came out of his bedroom. He returned to his bedroom at the urging of Sept and Middlebrooks.

When Sept returned to the living room, Dvorsky was on Galatis back, tying his hands up with two electrical cords, one black and one white. When Dvorsky finished, defendant told Sept, "Come on. Lets go." Sept and defendant lifted Galati to his feet and they left the apartment, with Dvorsky following. They entered the car, putting Galati in the backseat, lying down. Dvorsky laid down on top of him.

Defendant drove the car away from the apartments and eventually to a rural area. Defendant stopped the car and, with Dvorskys help, took Galati out of the car. Dvorsky got back into the car, and defendant took Galati behind the car. Sept heard two gunshots, after which defendant entered the car and drove to an industrial area where they left the car. They walked to a motel, where Sept checked them in. Sept left the room and went home, leaving defendant and Dvorsky there.

Other Evidence

Larry Middlebrooks met Tony Galati at the Easy Market on March 13, 1998. Later that evening, Galati approached Middlebrooks and asked where he could purchase drugs. They went to the apartment shared by Middlebrooks and Van Hill, trying to purchase rock cocaine but unsuccessful because Galati only had a $100 bill and no change. They finally purchased rock cocaine elsewhere and both later returned to the apartment.

William Van Hill, Larry Middlebrookss roommate, had met defendant before March 13, 1998. Sometime after 10:00 p.m. on March 13, 1998, Van Hill went to bed. Defendant, Sept, Dvorsky, Galati, and others were in the apartment at the time. After hearing the noise of someone whimpering, Van Hill came out of the bedroom and told Sept they would have to leave. After Van Hill had gone back to bed, he heard Sept and defendant talking. Again coming out of the bedroom, Van Hill saw Galati and Dvorsky sitting on the floor. Defendant and Sept were aggressively demanding Galatis money and keys. They grabbed Galati by the arms and took him out the front door.

Patty Bostic was at the apartment shared by Middlebrooks and Van Hill on the evening of March 13, 1998, where she saw defendant and others. She went into the bathroom to smoke rock cocaine with Middlebrooks. Twice, Sept came to the door of the bathroom to ask Middlebrooks if Galati had money. She heard scuffling and a man asking someone to stop hitting him. Sept came to the bathroom door and told Bostic and Middlebrooks to stay in there because "defendant wants to kill everybody in the house." Bostic heard the front door open. When she later came out of the bathroom, everyone was gone.

Galatis body was found on March 14, 1998, along White Rock Road in Sacramento County. He had died from two gunshots to the back of his head. His hands were tied behind his back with white and black electrical cords, and his wallet and other valuables were gone. His car was found two days later at a nearby apartment complex, fully engulfed in flames.

DISCUSSION

I

Prosecutors Opening Statement

The trial court denied a defense motion for mistrial after the prosecutor presented her opening statement. On appeal, however, defendant couches the issue in terms of prosecutorial misconduct. Instead of asserting the trial court erred by denying the motion for mistrial, he asserts we must reverse based on prejudicial prosecutorial misconduct. We disagree.

In her opening statement, the prosecutor discussed the statement of one of the witnesses:

"[The detectives] go in to speak to Israel Sept. The conversation is taped. In fact, there will be — you will hear about three separate conversations, and they are all taped.

"And during the course of that first initially [sic] conversation the first time they meet him in prison, it is absolutely clear, absolutely clear that there are no promises made, no concessions made of any kind to induce Israel Sept to give his statement. There is [sic] no deals. There is no nothing.

"There is a conversation where Israel Sept says there is [sic] two things I want, I want to see out of this. One is I want immunity, and the other is I want my family protected. I would like to move them to Nevada, but I want my family protected, and I want immunity.

"The detectives say we cant give you immunity. The only person that can give immunity is the District Attorney, thats it. We cant do it.

"They read him his Miranda rights. You have all heard them on t.v. You will hear them here. You have a right to remain silent. Anything you say can and will be used against you in a court of law, et cetera. At the end of that they say do you still want to talk to us? There is [sic] no promises. He says yes.

"And he essentially lays it out for them, what happened with Anthony Galati."

Later, the prosecutor told the jury about a witness, Angela Dvorsky, who was unavailable because she had been murdered:

"The detectives went out, and they interviewed all of these people or a great number of people including William Van Hill who will be here to testify. Larry Middlebrooks will be here to testify. Middlebrooks is serving time for a drug conviction. He is in custody. You will figure that out as soon as he comes in. Patty Scott-Bostic, they talk to all of the people in the apartment, corroborate what Israel Sept says except Angela Dvorsky, Angela Dvorsky six weeks after Anthony Galatis murder on May the 1st, 1998, was pulled out of the river. She had been stabbed and left in the river. So there is no statement from Angela Dvorsky."

Defendant made no immediate objection to these statements about Septs request for protection and the dead witness. Instead, defendant waited until after the prosecutor had finished her opening statement. Defense counsel, moving for a mistrial, then complained to the court that the prosecutor should not have told the jury about Dvorskys death or that Sept had requested protection for his family. Counsel asserted the jury would conclude defendant killed Dvorsky and threatened Septs family. The trial court indicated it wanted to instruct the jury concerning these specific facts and for what purposes they could be used but denied the motion for mistrial.

Speaking to the jury, the trial court reiterated that counsels statements are not evidence. It continued: "During the opening statement, the People made reference that a Mr. Sept or someone asked as part of negotiations for immunity and the other thing, protection for his family. Did you hear her say that? [¶] There is no evidence at all that this defendant was going to do anything to that mans family or to him. If this comes in, the only way you may consider it is to go to his state of mind, what he thought, not that this defendant in fact threatened him in any way? Do you understand that? [¶] There was also a reference to a — I forgot the name of the lady that was found in a river, and the implication is that she was murdered. There is not going to be any evidence at all that will be presented here that this defendant was involved in any way in that. [¶] Do you all understand that? [¶] And you cannot speculate about that. You are to decide this case solely based upon what you hear under oath." The court then polled the jury to assure each juror understood.

Defendant asserts the judgment must be reversed for prejudicial prosecutorial misconduct. In doing so, however, he grossly overstates the record: "[Defendant] contends that however encompassing the courts admonition was, it could not cure the enormous prejudice caused by the prosecutors `testimony that [defendant] murdered someone else and threatened the primary witness and his family." To the contrary, the prosecutor did not accuse defendant of murdering someone else or threatening the witness or his family, defendants hyperbole notwithstanding.

Defendants use of the word "testimony" in this contention refers to the Supreme Courts opinion in People v. Hill (1998) 17 Cal.4th 800, at pages 827 and 828, where it calls a prosecutors inclusion of facts outside the record in closing statement "unsworn testimony not subject to cross-examination." Here, however, the statements of fact came in the opening argument, before the parameters of admissible evidence had been fully explored. Furthermore, the trial court gave the jury specific instructions concerning these statements. Accordingly, the prosecutors opening statement did not constitute testimony and made no such accusations.

Defendant claims the prosecutor "poisoned the jury with her inferences that [defendant] murdered Angela Dvorsky and threatened Septs family." (Unnecessary capitalization omitted.) Speakers do not make inferences; however, hearers may do so. To the extent it may be suggested the prosecutor weakly implied that defendant committed wrongs against Dvorsky and Septs family, the trial courts admonition intercepted any improper inference the jury might have drawn.

The prosecutor did not commit misconduct by stating that Sept asked for protection for his family. As noted by the trial court, such evidence could go to Septs state of mind and assist the jury in determining his bias and credibility. Defendant asserts the statements concerning Sept amounted to improper vouching because it referred to matters outside the record to bolster the witnesss credibility. As the trial court instructed the jury, the evidence was admissible as to the witnesss state of mind. Indeed, Septs request for immunity and concern for his family came out in testimony.

Furthermore, even if we assume, without deciding, that the prosecutor committed misconduct in mentioning the murder of Dvorsky, the misconduct does not require reversal. While a detective testified that Dvorsky was dead as of May 1, 1998, there was no further evidence presented concerning her death. "[P]rosecutorial misconduct in an opening statement is not grounds for reversal of the judgment on appeal unless the misconduct was prejudicial or the conduct of the prosecutor so egregious as to deny the defendant a fair trial." (People v. Harris (1989) 47 Cal.3d 1047, 1080.) The trial court admonished the jury that the statements of counsel were not evidence and, in any event, not to draw the inference that defendant killed Dvorsky. The court further impressed the admonition on the minds of the jurors by polling them. Nothing in the record suggests the jury was incapable of following or failed to follow the courts strict instructions. (See People v. Holt (1997) 15 Cal.4th 619, 662 [jurors presumed to understand and follow instructions].) Defendant was not denied a fair trial. There was no prejudice.

II

Limitation of Defense Cross-Examination

Defendant contends the trial court erred by limiting defense cross-examination of a witness concerning bias. The contention is without merit.

During cross-examination of Israel Sept, defense counsel asked him if he had a good friend named Benny Campbell. After the witness replied affirmatively, the prosecutor objected on relevance grounds. The trial court called counsel to an unreported sidebar and then sustained the prosecutors objection. Moments later, defense counsel asked Sept his reasons for coming forward and reporting defendants involvement in Galatis murder. The testimony continued:

"A I stated that I had another problem, and another issue with [defendant].

"Q Like a grudge issue, a personal thing?

"A Yes.

"Q And that was prior to you coming forward, right?

"A Yes.

"Q What was that personal thing or grudge you had against [defendant]?

"A Because I felt he was the cause for a friend of mines death.

"Q A friend of yours who died in a fire?

"A Yes."

At this point, the trial court stopped the questioning and excused the jury from the courtroom. The court then reminded defense counsel that it had asked counsel not to go into this issue. Defense counsel stated that the testimony was elicited to show Septs motive for informing authorities concerning defendants involvement in Galatis death. Responding to defense counsels assertion that he would only spend five minutes on the issue, the court stated: "It may not take you that long. I dont see how you got five minutes worth coming [i]f the only thing you are asking him is his motive for getting up there and testifying, and you have asked him that."

Defense counsel remonstrated: "[T]he jury has a right to know — I just want to make a record. The jury has a right to know what happened was his friend — there was a fire at [defendants] girlfriend. [Defendant] got everybody out except for [Septs] friend who died of smoke inhalation." And later: "[Defendant] got everybody out except for Benny. Benny died and [Sept] holds that against [defendant] because he wasnt able to get everybody out of there. He got his girlfriend, his child and everybody except Benny."

The court prohibited further inquiry into the facts of the fire and death and told defense counsel: "Your limitations is [sic] you can ask him his motive and what he indicated his motive was, he felt this defendant was responsible for the [death of Septs friend]." Defense counsel asked for a recess and then a continuance to seek a writ, but the trial court ordered him to proceed with his questioning of Sept.

On appeal, defendant asserts: "The court erred reversibly [sic, read prejudicially]. First, the court led defense counsel down a primrose path by telling him it would permit the inquiry into Septs `other motives for testifying against [defendant]. Then, after defense counsel began his pursuit of this line of cross-examination, the court abruptly halted the questioning, leaving the jury to believe that [defendant] killed Septs friend by some malicious means. After the damage was already done, the court told defense counsel it would permit inquiry into `bias but would not permit the defense to prove Septs `bias has no basis in fact. [Citations.] . . . [¶] The court had no discretion to preclude these highly relevant questions designed to expose Israel Septs true motivation for falsely accusing [defendant]."

Defendants argument mischaracterizes the record. The trial court did not lead defendant down a path to introduction of the evidence that Sept held defendant responsible for his friends death. Instead, the record reveals the court directed counsel not to get into that issue. Defendant willfully ignored that directive. The trial court never deviated from its directive and, likewise, never excluded testimony concerning bias. Septs possible bias resulted from the fact that he believed defendant was responsible for the death of his friend, regardless of whether that belief was justified. Defendants apparently heroic acts to save others was irrelevant to Septs bias.

In a hearing to settle the record, the trial court stated it did not limit testimony concerning Septs motivation to testify against defendant. Trial counsel for defendant agreed and added: "[W]here I got limited is that the jury doesnt know it was an accidental fire, and there really is no blame on [defendant] even though Mr. Sept may see it differently . . . ."

"Confrontation clause and fairness principles generally guarantee a criminal defendant the right to explore a witnesss bias on cross-examination. (See Davis v. Alaska (1974) 415 U.S. 308, 316 .) They do not, however, prevent the trial court from imposing reasonable limits on defense counsels inquiry based on concerns about harassment, confusion of the issues, or relevance. (See Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 .)" (People v. Box (2000) 23 Cal.4th 1153, 1203.) Here, the limits imposed by the trial court were constitutionally reasonable and fair because the additional evidence defendant sought to introduce would not have shown additional bias. Accordingly, defendants argument on appeal that the trial court prevented him from showing the witnesss bias is factually unsupported and legally inadequate.

III

Exclusion of Defense Evidence

During trial, the court, at defendants request, held a hearing without the jury during which two witnesses, Randi Dvorsky and Amber Vadner, testified that Angela Dvorsky had told them that she had been involved in a scheme of posing as a prostitute and luring a victim into a trap where her accomplices would rob the victim. They each testified that Angela told them one of these robberies went bad and her accomplices killed the man. As noted above, Angela Dvorsky died before trial. The trial court rejected defendants request to introduce this hearsay evidence to the jury because the court determined the evidence was untrustworthy.

On appeal, defendant asserts the trial court abused its discretion by excluding the hearsay evidence. He claims it should have been admitted pursuant to Evidence Code section 1230, which allows for admission of declarations against interest. He further contends the exclusion of the hearsay evidence violated his constitutional due process rights. We conclude the trial court did not abuse it discretion.

Evidence Code section 1230 provides: "Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarants pecuniary or proprietary interest, or so far subjected [the declarant] to the risk of civil or criminal liability, or so far tended to render invalid a claim by [the declarant] against another, or created such a risk of making [the declarant] an object of hatred, ridicule, or social disgrace in the community, that a reasonable [person] in [the declarants] position would not have made the statement unless [the person] believed it to be true."

"Under one of the statutory exceptions to the hearsay rule, a party may introduce in evidence, for the truth of the matter stated, an out-of-court statement by a declarant who is unavailable as a witness at trial if the statement, when made, was against the declarants penal, pecuniary, proprietary, or social interest. A party who maintains that an out-of-court statement is admissible under this exception as a declaration against penal interest must show that the declarant is unavailable, that the declaration was against the declarants penal interest, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character. [Citation.] To determine whether the declaration passes the required threshold of trustworthiness, a trial court `may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarants relationship to the defendant. [Citation.] On appeal, the trial courts determination on this issue is reviewed for abuse of discretion. [Citation.]" (People v. Cudjo (1993) 6 Cal.4th 585, 606-607, italics in original, fn. omitted.) "The trustworthiness of a statement against penal interest lies in the assumption that the declaration is so contrary to the declarants penal interest that the statement would not be made by a reasonable person unless true. [Citation.]" (People v. Hayes (1999) 21 Cal.4th 1211, 1257, fn. 8.)

Here, the statements of Angela Dvorsky, purportedly made to Randi Dvorsky and Amber Vadner, were somewhat against Angelas penal interest in that they supported the conclusion that Angela was involved in a robbery scheme and that it was while they were engaged in one of these schemes that a potential robbery victim was killed. However, Angela also stated she was not involved in the killing. This self-serving account made the overall statement less trustworthy. Furthermore, one of the witnesses said Angela was prone to exaggeration and commented, "[W]e didnt really believe her that she witnessed that." This testimony supports the trial courts conclusion the hearsay evidence was not sufficiently trustworthy, in light of the fact it would be presented without opportunity for cross-examination.

Since there was a basis for finding the hearsay evidence untrustworthy, the trial court did not abuse its discretion in excluding it under the hearsay rule. Proper exclusion of evidence under the well-established hearsay rule does not violate a defendants constitutional rights. (See People v. Smithey (1999) 20 Cal.4th 936, 995.) Discretion is abused only when "the court exceeds the bounds of reason, all of the circumstances being considered." (People v. Giminez (1975) 14 Cal.3d 68, 72.) For the reasons set forth above, we conclude the courts determination that the hearsay evidence was not sufficiently trustworthy under Evidence Code section 1230 was not an abuse of discretion.

IV

Sufficiency of Evidence

Defendant asserts the evidence was insufficient to support his convictions. Specifically, he claims the testimony of Van Hill was inherently incredible and therefore did not corroborate the testimony of Sept, who was an accomplice. Viewed in its light most favorable to the judgment, the testimony of Van Hill was not inherently incredible. Therefore, defendants assertion fails.

"The law requiring corroboration of accomplice testimony is well established. `A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. . . ." ([Pen. Code,] § 1111.) `"The requisite corroboration may be established entirely by circumstantial evidence. [Citations.] Such evidence `may be slight and entitled to little consideration when standing alone. [Citations.]" [Citations.] `"Corroborating evidence `must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged. [Citation.]" [Citations.] In this regard, `the prosecution must produce independent evidence which, without aid or assistance from the testimony of the accomplice, tends to connect the defendant with the crime charged. [Citation.] [Citation.] `"Corroborating evidence is sufficient if it substantiates enough of the accomplices testimony to establish his credibility [citation omitted]." [Citation]." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1128.)

Even assuming defendant is correct that the only evidence that potentially corroborates Septs account of the murder came from the testimony of Van Hill, we disagree that Van Hills testimony was so inherently incredible that it entirely lacks probative value and thus fails to corroborate Septs testimony. Van Hill saw defendant in his apartment on March 13, 1998. He heard defendant aggressively demanding Galatis money and keys. He saw Galati on the floor and observed as defendant and Sept escorted Galati out of the apartment. The next day, Galati was found dead.

This evidence amply corroborates Septs testimony. It places defendant and Galati together, with defendant exercising control over Galati. It connects defendant with the crimes against Galati and lends credibility to Septs testimony that defendant killed Galati.

Nonetheless, defendant asserts: "[B]efore trial, Van Hill could never identify [defendant] other than by the difference in height between Sept and his accomplice. The detectives asked him about how he could identify [defendant] and he said it was only from seeing him from the back and the difference in height. Van Hill testified that he never saw any portion of [defendants] face. Suddenly for the first time at the trial, Van Hills memory was `better than it was four years earlier and he said he now knows it was [defendant] because he was able to recognize [defendants] voice when Van Hill was in the hallway. This testimony is inherently incredible. No rational juror would believe it[,] yet that it what this jury had to do to find corroborating evidence of Septs story."

The record is not as favorable to defendant as he would have us believe. While Van Hill did not see defendants face the second time Van Hill came out of his bedroom, when he saw defendant and Sept standing over Galati and then escorting him from the apartment, that was not the first time Van Hill had seen defendant at the apartment that evening. Earlier, before Van Hill went to bed, defendant was already at the apartment. When Van Hill saw defendant the last time that evening, there was nothing in his appearance that led him to doubt it was the same person he had seen earlier. Van Hills recognition of defendants voice further assisted in the identification. Far from inherently incredible, Van Hills testimony, when viewed most favorably to the judgment, constituted substantial evidence corroborating Septs testimony.

Furthermore, other testimony placed defendant with Sept and Galati on the night of Galatis murder. Middlebrooks and Bostic both testified defendant was in Van Hills apartment with Sept and Galati. Sept told them to stay in the bathroom because "defendant wants to kill everybody in the house." When they emerged from the bathroom, defendant, Sept, and Galati were gone. Together with the evidence that Galati died soon thereafter, this testimony, even without Van Hills testimony, provided slight corroboration for Septs testimony.

DISPOSITION

The judgment is affirmed.

We concur: MORRISON, J. and HULL, J.


Summaries of

People v. Puckett

Court of Appeals of California, Third District, Sacramento.
Nov 5, 2003
C040743 (Cal. Ct. App. Nov. 5, 2003)
Case details for

People v. Puckett

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JEREMY PHILLIP PUCKETT, Defendant…

Court:Court of Appeals of California, Third District, Sacramento.

Date published: Nov 5, 2003

Citations

C040743 (Cal. Ct. App. Nov. 5, 2003)