Opinion
B160531.
7-21-2003
THE PEOPLE, Plaintiff and Respondent, v. MORRIS RUSHELL THOMPSON, Defendant and Appellant.
Leslie G. McMurray, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Supervising Deputy Attorney General, and Corey J. Robins, Deputy Attorney General, for Plaintiff and Respondent.
Defendant and appellant, Morris Russell Thompson, appeals from the judgment entered following his conviction, by jury trial, for selling or furnishing cocaine, with prior prison term findings (Health & Saf. Code, § 11352; Pen. Code, § 667.5 ) Sentenced to a state prison term of 10 years, he contends there was trial error.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 864 P.2d 103), the evidence established the following.
During April 2002, Detectives Patrick Burns and Wayne Watson were working with informant James D. investigating possible drug dealing at an apartment on Elm Avenue in Long Beach. On April 23, James visited the suspect apartment, where he spoke to defendant Thompson. James said he wanted to buy $ 40 worth of crack cocaine. Thompson said he didnt have any, but he gave James his phone number and told him to call in an hour.
Later that day, James called the number and recognized Thompsons voice from their prior conversation. When James again asked to buy $ 40 worth of cocaine, Thompson said to meet him at First and Linden Streets. Detective Watson searched James and gave him two marked $ 20 bills.
James walked to the bus bench at First and Linden and sat down. About five minutes later, Thompson left his apartment building. As he approached James, Thompson walked a few feet past the bus bench, came back and looked all around before making contact with James. Thompson handed James a piece of paper with something in it, and James gave Thompson the two $ 20 bills. The exchange was witnessed by Burns and Watson, and Thompson was detained. The two marked $ 20 bills were in his front pants pocket. The piece of paper Thompson had given James contained cocaine.
CONTENTIONS
1. The trial court erred by admitting evidence of Thompsons statements to police.
2. The trial court erred by refusing to give a limiting instruction regarding Thompsons police statements.
3. Defense counsel rendered ineffective assistance by not objecting to Thompson being handcuffed in the jurys presence.
4. There was cumulative error.
DISCUSSION
1. Evidence of Thompsons extrajudicial statements was properly admitted.
Thompson contends the trial court erroneously admitted into evidence his extrajudicial statements acknowledging his involvement with drugs. This claim is meritless.
Detective Richard Miller interrogated Thompson after his arrest. Thompson said "he was a drug user and that he needed a program and that he didnt sell anything to anyone." When Miller mentioned the two $ 20 bills taken from his pocket, Thompson said "he had had that money for some time." When Miller explained Thompson had been under surveillance and was seen exchanging cocaine for money, Thompson replied, "I believe I dont play the game that way. I never handed anything to anyone. I may put it down. It may get picked up, but I never directly handed anything to anyone."
Thompson denied going to First and Linden to deliver cocaine, but conceded he occasionally "goes to First and Linden and meets other subjects that smoke cocaine . . . at that location." Miller asked "if the cocaine is always there and [Thompson said], Sometimes it is, sometimes it isnt. That sometimes he brings the cocaine. I asked if he sells to subjects at First and Linden and he stated that he provides cocaine if he has it and if not, somebody else will bring it." The following colloquy occurred:
"Q. So he admitted to you that he provides it?
"A. Yes, Sir.
"[Defense counsel]: Objection. Relevancy.
"The Court: Ill overrule the objection.
"Q. [By the prosecutor]: Did he say anything else to you or did you say anything else to him?
"A. I asked Mr. Thompson if he sells cocaine to support his habit and he explained to me that on occasions hell have extra cocaine which he will provide to people he knows and friends for cocaine at a later time from — back from them. He explained to me that he will provide the cocaine and they will reciprocate at a later time.
"[Defense counsel]: Same objection as to relevance.
"The Court: Ill make the same ruling."
Thompson contends Miller was improperly allowed to testify Thompson said he didnt "play the game that way," but that he would "set it down and it gets picked up," i.e., that he did not engage in hand-to-hand transactions. He asserts "defense counsel objected more than once to appellants statements coming into evidence on the ground that they were irrelevant. The court overruled defense counsels objections without comment."
But defense counsel did not object to this portion of Millers testimony. Defense counsel only objected to Millers subsequent references to "providing" cocaine, i.e., Thompsons admission he furnished cocaine to other drug users at First and Linden in hopes they would return the favor when he was broke. Hence, Thompson waived any objection to the admission of his statements implicitly conceding he was a drug dealer, but denying he had sold drugs to James. (See People v. Morris (1991) 53 Cal.3d 152, 187-188, 279 Cal. Rptr. 720, 807 P.2d 949, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1, 889 P.2d 588 [objection to evidence must be timely and make clear specific reason for objecting].)
But even if all of this testimony had been properly objected to, there was no error in admitting it. The evidence was relevant because the information charged Thompson with both selling and furnishing cocaine. The prosecutor told the trial court that while the People viewed this as a sales case, furnishing had also been charged and, if the jury doubted there had been a sale, Thompsons admissions about having freely provided cocaine in the past would be relevant other crimes evidence under Evidence Code section 1101 . (See People v. Goodall (1982) 131 Cal. App. 3d 129, 142, 182 Cal. Rptr. 243 [defendants presence at past drug scene admissible to show familiarity with PCP and, therefore, guilty knowledge and intent with respect to charged offense]; People v. Hill (1971) 19 Cal. App. 3d 306, 319-320, 96 Cal. Rptr. 813 [evidence of defendants subsequent narcotics offense admissible to show he intended to sell drugs].)
Health and Safety Code section 11352, subdivision (a), covers "every person who transports, imports into this state, sells, furnishes, administers, or gives away" enumerated controlled substances. (Italics added.)
Thompson argues this reasoning was specious because "there was no reasonable basis for the jurors to believe the rest of the prosecution evidence but reject the testimony that the pre-recorded money was recovered from appellant." Maybe not, but defense counsel certainly tried to get the jury to question the evidence about the marked currency. In light of this defense tactic, Thompsons admissions about furnishing were relevant. Moreover, all of Thompsons statements to Miller were relevant as consciousness of guilt evidence.
Under cross-examination, Detective Burns testified he did not personally see the $ 20 bills taken from Thompsons pocket, he had not seen the bills being photocopied, and he did not recall the serial numbers. Under cross-examination, Watson testified he did not make any physical notation of the serial numbers of the bills he gave James, that there were five $ 20 bills in all, and that there was a xerox of the five bills. During closing argument, defense counsel told the jury: "You have [a] defense [exhibit] A which shows two twenty dollar bills and their date and time stamp of April 24th, the day after the arrest. But they say oh, no, no. Those twenty dollar bills were actually part of a family of bills that were prerecorded. . . . [P] Well, wheres the date and time stamp on this? We dont know. I asked the officer, well, when was this done? He says, I dont know, No one knows. Is that proof beyond a reasonable doubt? It is not."
For the same reason, we reject Thompsons claim the trial court erred by not deleting the references to "furnishing" in the jury instruction setting out the elements of Health and Safety Code section 11353. The instruction was correct as given because Thompson could properly have been convicted of having either sold or furnished cocaine on April 23, 2002.
Thompson initially tried to disdainfully bluff Miller by saying, in effect, he did not conduct business in so sloppy a way as to make actual hand-to-hand exchanges. Then Thompson suggested that if he had been seen handing drugs to someone, he must have been giving the drugs away, not selling them. Finally, when Miller informed him the $ 20 bills had been marked, Thompson simply terminated the interview.
In addition, even if this evidence had been improperly admitted, the error would have been harmless because the rest of the evidence was overwhelming. James testified he gave Thompson money in exchange for the cocaine. James was searched by police prior to the transaction and given marked money, which was found in Thompsons possession when he was arrested. Several police officers testified they saw Thompson making the hand-to-hand exchange with James.
2. The trial court properly refused to give a limiting instruction.
Thompson contends the trial court incorrectly denied his request for a limiting instruction concerning his admission that on other occasions he had given away drugs. This claim is meritless.
After the trial court refused to strike Thompsons admission about furnishing drugs to people on other occasions, defense counsel asked for a limiting instruction out of concern the jury might get confused and think it could use this admission to convict Thompson of having furnished drugs on some occasion other than the incident involving James.
"[Defense counsel]: Just I would ask for a limiting instruction so theyre [i.e., the jurors] . . . not thinking it was not that date, it was on another date he was acting as an agent.
"The Court: Ill — Mr. Rini [the prosecutor] will be limited in his argument so its clear that thats what were talking about.
"[Defense counsel]: Okay.
"The Court: Okay. [P] Any other motion you wish to make?
"[Defense counsel]: No."
Commenting on this colloquy, Thompson asserts the trial court "implicitly declined defense counsels request but stated that the prosecutor would be limited in his argument to the jury such that any references to furnishing must be clearly limited to the specific incident with [James]. [Citation.] The court thus permitted the evidence to come in for a limited use but failed to so instruct the jury. [P] Where the court admits evidence for a limited purpose, it must, upon request, give an appropriate limiting instruction."
In our view, however, it is clear defense counsel implicitly withdrew his request for a limiting instruction after the trial court assured him the prosecutor would be required to focus on the April 23 incident. And in light of this direction, we agree with the trial court there was no need for a limiting instruction.
Moreover, any error in this regard would have been harmless because, as we discussed above, the evidence against Thompson was overwhelming.
3. Ineffective assistance of counsel claim fails.
Thompson contends his attorney rendered ineffective assistance by not objecting to Thompsons being handcuffed while in the jurys presence. This claim is meritless.
Jury selection took a single day. The following day, before the jury was brought in, the following colloquy occurred:
"The Court: . . . Ill come back out at 11:00 and well proceed with opening statements and directly into the Peoples case. [P] When Mr. Thompson is here in front of the jury we dont need to have the handcuffs so he can have his hands free unless theres some reason he needs to be handcuffed that I dont know about. And at some point I will need jury instructions.
"[The prosecutor]: Yes, your honor.
"The Court: That will be a welcome change."
During final jury instructions, the trial court said, "The fact that physical restraints have been placed on the defendant must not be considered by you for any purpose. They are not evidence of guilt and must not be considered by you as any evidence that he is more likely to be guilty than not guilty. You must not speculate as to why restraints have been used. In determining the issues in this case disregard this matter entirely."
Thompson contends defense counsel was ineffective for not objecting to his being handcuffed during voir dire. Thompson asserts the record shows that "during voir dire, which lasted one day, [he] was in handcuffs in the presence of the jury," and that he was prejudiced because "this [was] not a situation where the jury briefly saw [him] in shackles," but rather "the jury viewed [him] in handcuffs during the entire day of voir dire."
Recognizing the record does not affirmatively establish he was handcuffed during voir dire, Thompson seeks to infer that fact from the colloquy quoted above. That is, Thompson suggests the trial court said "That will be a welcome change" in response to the prosecutors acknowledgement of the courts directive that handcuffs would not be needed during the trial. But Thompsons interpretation requires eluding the trial courts intervening remark about jury instructions. Read in full context, we cannot tell if the trial courts "welcome change" comment referred to the handcuffs or the jury instructions. Moreover, even if Thompson had been handcuffed during voir dire, it appears from the record he spent that period of time sitting at the counsel table, except for a single moment when the trial court asked him to rise so the prospective jurors could see if any of them knew him.
Thus, Thompsons claim fails because he has not shown, either that he was handcuffed while in the presence of the jury, or, if he were, that the jury saw the handcuffs. While the trial court did later instruct the jury to disregard appellants "restraints," it is not clear the court was referring to handcuffs worn by Thompson during voir dire as opposed to some other restraint, such as a leg restraint, worn at the same or a different time. Thus, we cannot be sure Thompson was wearing visible restraints in the presence of the jury, or that any juror had anything but the briefest glance at any restraints. Therefore, we cannot say, based on this record, that counsel was ineffective for not raising this issue below. (See People v. Slaughter (2002) 27 Cal.4th 1187, 1213 [" We have consistently found any unjustified or unadmonished shackling harmless where there was no evidence it was seen by the jury. [Citations.] [Citation.] Even a jurys brief observations of physical restraints generally have been found nonprejudicial."].)
4. There was no cumulative error.
Thompson contends that, even if harmless individually, the cumulative effect of errors in his trial mandates reversal. Because we have found no errors, his claim of cumulative error fails. (See People v. Seaton (2001) 26 Cal.4th 598, 639; People v. Bolin (1998) 18 Cal.4th 297, 335, 956 P.2d 374.)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., ALDRICH, J.