Opinion
C075902
03-10-2017
THE PEOPLE, Plaintiff and Respondent, v. CHEMA KEOMIE STRAWTHER, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 11F06454)
A jury convicted defendant Chema Keomie Strawther of first degree murder, assault with a firearm, discharge of a firearm at an inhabited dwelling house, and being a felon in possession of a firearm. The trial court sentenced him to a determinate term of 22 years 8 months plus an indeterminate term of 75 years to life in prison.
Defendant now contends the trial court committed reversible error in allowing the prosecutor to cross-examine defendant about defendant's access to pretrial discovery. Finding no merit in the contention, we will affirm the judgment.
BACKGROUND
Ahmed Ishaque called Lee Vue to ask for money. Ishaque explained he owed $150 to a guy and "it wouldn't be good for him" not to repay the money. Vue understood Ishaque had lost the money in a drug deal. Ishaque picked up Vue in a borrowed van and they went to visit another man Vue hoped could help, but they returned to Vue's house empty-handed. As Vue got out of the van, he noticed someone with dark skin and dark clothing behind the van's passenger seat. The man held a handgun near his chest. Frightened, Vue jumped out and ran toward his house as shots rang out from the van.
Later that morning a firefighter paramedic was dispatched to a Sacramento freeway off-ramp where he found Ishaque by the side of the road. A spent .380 bullet casing was on the ground a couple of feet away. An autopsy determined Ishaque died from a gunshot wound to the head. Ishaque's phone was not recovered but records showed he received a 5:16 a.m. call from defendant's phone.
Defendant was arrested and an officer retrieved a loaded .380-caliber Beretta semiautomatic pistol from defendant's pocket. The bullet retrieved from Ishaque's head matched defendant's weapon. Based on cell tower evidence, his cell phone was in the same location as the murder victim's phone during all relevant times; after making contact from different locations, the two phones traveled together from near defendant's home to the vicinity of the sidewalk shooting, to the site where the victim's body was recovered and on toward the park where the van was found.
Defendant testified on his own behalf, saying he was outside his mother's apartment on the night of the crimes when he ran into a homeless man who asked to use his cell phone. He handed the phone to the man who handed it to an unknown Asian woman who said she and her male companion named Fee were trying to get high. When defendant went into the apartment to use the bathroom, the others left with his cell phone.
According to defendant, Fee returned with a man introduced as "D" who offered to sell defendant the gun police retrieved from his pocket when he was arrested. Defendant called D later. The number defendant identified as D's belonged to Ishaque. Defendant went to a party that day and deleted the record of numbers dialed from his phone. He said he had the gun in his pocket when he was arrested because he was on his way to sell it to someone named Dashawn. Defendant denied killing Ishaque; in fact, he denied having ever met Ishaque or Vue or ever having been in the van.
During the prosecutor's cross-examination of defendant, defendant confirmed it had been more than two years since his arrest. The prosecutor asked, "And you have had access to all of the discovery in this case for over two years?" Defense counsel objected. During a recess out of the presence of the jury, defense counsel argued the prosecutor's question abridged defendant's exercise of the right to counsel. The trial court overruled the objection. Defendant later answered the question, acknowledging he had the phone and interview records for a couple of years.
The prosecutor's closing argument included a statement that the defendant "kind of had to testify" to explain "why his phone placed a noose around his neck and why he had the murder weapon." He then suggested defendant had spent two years thinking about the case and "skillfully skiing through a forest of evidence." The prosecutor described the extensive telephone evidence presented at trial, noting significant discrepancies between that evidence and defendant's testimony at trial.
The jury found defendant guilty of first degree murder (Pen. Code, § 187, subd. (a)), assault with a firearm (§ 245, subd. (a)(2)), discharge of a firearm at an inhabited dwelling house (§ 246), and being a felon in possession of a firearm (former § 12021, subd. (a)(1)). The jury found true special circumstance allegations involving the firearm (§§ 12022.53, 12022.5) and the trial court found that defendant had a prior serious felony conviction. The trial court sentenced defendant to an aggregate determinate term of 22 years 8 months plus an indeterminate term of 75 years to life in prison.
Undesignated statutory references are to the Penal Code. --------
DISCUSSION
Defendant contends the trial court committed reversible error in allowing the prosecutor to cross-examine defendant about defendant's access to pretrial discovery. He argues the cross-examination penalized defendant's exercise of his constitutional rights by transforming his review of discovery into an impeachment device.
Defendant begins by noting that the Fifth Amendment forbids comments by the prosecutor on the silence of a defendant who declines to testify. (Griffin v. California (1965) 380 U.S. 609, 615 [14 L.Ed.2d. 106, 110].) Defendant adds that laws penalizing a defendant for exercising constitutional rights have also been stricken. (Brooks v. Tennessee (1972) 406 U.S. 605, 612-613 [32 L.Ed.2d 358, 363-364] [striking law requiring defendant to testify before other defense witnesses]; United States v. Jackson (1968) 390 U.S. 570, 582-583 [20 L.Ed.2d 138, 147] [striking death penalty limited to those who exercised Sixth Amendment right to jury].) Defendant concedes, however, that those cases are not on point. Unlike here, they did not involve the prosecutor's cross-examination of a defendant testifying at his own trial.
Defendant also cites United States v. Kallin (9th Cir. 1995) 50 F.3d 689, 693, for the proposition that "a prosecutor violates the constitution by commenting on a defendant's decision to exercise his right to retain counsel." That case is also inapposite; here the prosecutor did not comment on defendant's decision to retain counsel.
Defendant next points out that the right to receive and examine discovery from the prosecution is rooted in the Fourteenth Amendment right to due process, citing Brady v. Maryland (1963) 373 U.S. 83, 86 [10 L.Ed.2d 215, 218]. However, in that case the court said "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (Id. at p. 87 .) This case does not involve prosecutorial suppression of evidence.
Defendant adds that his ability to help his counsel by examining the discovery is an essential aspect of his right to counsel. But the prosecutor did not inquire about attorney-client communications or defense work product. The prosecutor asked if defendant had received evidence from the prosecutor. Defendant cites no authority holding that such a question is improper.
Defendant contends the prosecutor committed misconduct by implying that defendant's testimony was not credible because he had the opportunity and motive to concoct a story that explained away damaging evidence. But the prosecutor's comments merely urged the jury to question defendant's credibility. In Portuondo v. Agard (2000) 529 U.S. 61 , the Supreme Court said that once a defendant takes the stand " 'his credibility may be impeached and his testimony assailed like that of any other witness.' " (Id. at p. 69 , quoting Brown v. United States (1958) 356 U.S. 148, 154 [2 L.Ed.2d 589, 596].) The Supreme Court concluded there was "no reason to depart from the practice of treating testifying defendants the same as other witnesses." (Portuondo, at p. 73 .) Indeed, a prosecutor's comment about a defendant's opportunity to tailor his testimony to the other evidence properly serves the central truth-seeking purpose of trial. (Ibid.)
The trial court did not abridge defendant's constitutional rights in allowing the prosecutor to ask about defendant's receipt of discovery during cross-examination. In any event, given the strength of the evidence against defendant, any error would be harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710] [even in the face of alleged constitutional error, a conviction is upheld if there is no reasonable possibility the challenged evidence might have contributed to the conviction].)
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
HULL, Acting P. J. /S/_________
ROBIE, J.