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People v. Wooden

California Court of Appeals, Second District, Fifth Division
Jul 24, 2008
No. B199172 (Cal. Ct. App. Jul. 24, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from the judgments of the Superior Court of Los Angeles County No. BA311671 Anne H. Egerton, Judge.

Carol S. Boyk, under appointment by the Court of Appeal, for Defendant and Appellant Eric Tremayne Wooden.

Kathleen M. Redmond, under appointment by the Court of Appeal, for Defendant and Appellant Adrian Keith Wooden.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.


KRIEGLER, J.

INTRODUCTION

On the fourth day of the burglary trial of defendants Eric Tremayne Wooden and Adrian Keith Wooden, the prosecutor learned for the first time that the burglary scene had been examined for fingerprints. The police reports in the case made no mention of fingerprinting. A single fingerprint had been recovered, but was not suitable for identification through the automated fingerprint identification system. After the presentation of evidence and during argument to the jury, the prosecutor learned that the fingerprint did not belong to either defendant. The trial court precluded presentation of evidence pertaining to the fingerprint at trial and later prohibited defense argument to the jury on the lack of fingerprint evidence.

Because defendants share the same last name, for clarity we refer to them individually by their first names. No disrespect is intended.

We conclude the manner in which issues pertaining to the fingerprint evidence were resolved at trial was error. However, we hold that any error was harmless beyond a reasonable doubt in view of the overwhelming evidence of guilt and therefore affirm the judgment.

PROCEDURAL HISTORY

The jury convicted defendants of second degree commercial burglary of an automobile repair shop in violation of Penal Code section 459. Defendants admitted various recidivism allegations—that defendants had served prior prison terms within the meaning of section 667.5, subdivision (b), and that defendant Adrian had been convicted of a serious or violent felony under sections 1170.12, subdivisions (a)-(d), and 667, subdivisions (b)-(i) (the three strikes law). Defendant Eric received a four-year prison term, consisting of the middle term of two years plus two one-year enhancements under section 667.5, subdivision (b). Defendant Adrian received a six-year prison term, consisting of the two-year middle term, doubled under the three strikes law, plus two one-year enhancements for the prior prison terms.

All subsequent statutory references are to the Penal Code unless noted otherwise.

In their timely appeals, defendants raise a number of related claims concerning the prosecution’s delayed discovery of police fingerprint analysis showing that the single fingerprint found on a window frame at the burglary location matched neither defendant. Because of the nature of the issues raised, as well as our conclusion that any error was nonprejudicial, we set forth the facts and relevant circumstances in detail.

STATEMENT OF FACTS

On October 29, 2006, the owner of Harry’s Auto Body shop hired private investigator Eric Agaki to provide security and surveillance services because the shop on South La Brea Avenue had been burglarized the two previous days. At 4:30 a.m. on October 30, Agaki was working with an off-duty deputy sheriff, Shane Conrad; they were inside the business premises watching a closed-circuit television that monitored the pictures from cameras placed around the premises. Mezian Motors was located directly across the street from Harry’s Auto Body. While Agaki was outside on the second floor balcony smoking a cigarette, he heard loud noises coming from Mezian Motors. Looking in that direction, Agaki saw “two Black guys going through the window” into Mezian Motors. Agaki radioed Conrad, telling him, “You won’t believe it, but the place across the street is being burglarized.” Within a minute, Conrad joined him on the balcony, and Agaki went inside to call the 911 operator.

Agaki returned to the balcony to watch as the two burglars carried property in white buckets and a cardboard box out of Mezian Motors through a door they had opened from the inside. Agaki was able to see the burglars and identify their clothing. One wore green jeans, a white shirt, and a baseball cap; the other was dressed in dark clothes. At trial, he identified them as defendants. Defendant Adrian took the box and a bucket, squeezed them through the business’s gate, and placed the bucket on the sidewalk. He took the box across the street (toward Harry’s Auto Body shop) and placed it behind a discarded sofa before returning to Mezian Motors to remove more property. The area was well illuminated, and Agaki could clearly see defendant Adrian. Apart from defendants, “[t]here was nobody anywhere.”

During his testimony, Agaki admitted some confusion over which defendant was which, but was confident that he saw both participate in the burglary.

A police officer called Agaki’s cell phone requesting directions to the burglary scene. As the patrol car approached, Agaki saw one of the defendants turn and flee, jump a fence, and disappear down an alley. The other defendant followed him shortly afterwards. In less than a minute, a police patrol car pulled up and Agaki gave them the burglars’ descriptions and the direction in which they fled.

Approximately five minutes later, the police drove Agaki and Conrad to a nearby field show up, where they identified the burglar in green jeans and a light-colored shirt—defendant Adrian. The police took them to a second location, where they were shown defendant Eric, dressed in black.

Conrad testified that when Agaki called him upstairs to the balcony at approximately 4:30 a.m., he saw two men standing outside the business across the street. The one wearing a white shirt and a baseball cap—defendant Adrian—was in the process of breaking a window. The other, dressed in black—defendant Eric—was prying open a “cutout door” in the front of the building. The area was well illuminated and the burglars were easy to see. After Agaki went inside to call 911, Conrad observed defendant Adrian enter the building through the window he had broken. Within a minute, defendant Adrian opened the cutout door from the inside, and defendant Eric entered the building. Approximately five minutes later, Conrad saw defendant Eric carry a cardboard box out of the building, slide it through the front driveway gate, and climb over the fence onto the sidewalk. Defendant Eric took the box across the street, toward the balcony where Conrad was standing, and put the box down near an abandoned couch. Defendant Eric stood directly underneath Conrad.

When a police officer called Agaki’s cell phone, Conrad gave him directions to the crime scene and a description of defendants. Defendant Eric went across the street, back to Mezian Motors, and joined defendant Adrian, who was carrying white buckets out of the building. As defendant Eric was in front of the building, scanning the street, he suddenly turned back toward the cutout door and fled over a fence and down a residential alley. Defendant Adrian followed him 10 to 15 seconds later. A patrol car pulled up less than 30 seconds after defendants fled. Conrad and Agaki provided a description of the burglars and pointed the officers in the direction the burglars had fled. Within five minutes, a patrol car returned and took Conrad and Agaki to a field show up one block away, where Conrad recognized defendant Adrian as one of the burglars. Shortly thereafter, the officers drove them to another location close by, where Conrad recognized defendant Eric as the burglar who wore dark clothing.

Officer Fernando Chavez and his partner responded to the burglary call. Upon arriving at the scene, he spoke to Conrad, who had provided the suspects’ descriptions. Conrad told the officers the direction in which defendants had fled—behind Mezian Motors, down an alley toward Sycamore Avenue. Officer Chavez drove in that direction and saw defendant Adrian, who matched Conrad’s description (African-American male wearing green pants, white shirt, and black baseball cap) on Sycamore. Defendant Adrian’s face was covered in sweat and was “breathing hard.” No other pedestrians were on the street.

Officer John Barkley testified that he and his partner received a call to respond to Mezian Motors at approximately 4:30 a.m. One suspect was already in custody. Officer Barkley began searching the surrounding area for the other suspect, based on a description from Officer Chavez. On Sycamore Avenue, approximately one-quarter of a mile from the burglary scene, Officer Barkley saw a person in dark clothing running across San Vicente Boulevard, southbound toward Orange Avenue, the “next street over.” The officer lost sight of the suspect as he made a U-turn to intercept him. The officer drove down Orange, and stopped defendant Eric just south of San Vicente on Orange. He was dressed in dark clothing, sweating, and “breathing hard.” It took the officer no more than five minutes to find and stop defendant Eric. There was no one else on the streets while the officer was searching the area for the suspect.

Officer Chavez returned to Mezian Motors and found the window next to the front door smashed. A window to the office was also smashed. The toolbox drawers in the shop were open, and the wires to the alarm were cut. Two white buckets by the front gate were filled with tools, as was a cardboard box across the street. The business’s owner arrived within an hour.

Genevieve Mezian and her husband owned Mezian Motors. When she arrived, she found the office had been ransacked and windows broken since closing the shop the previous afternoon. Tools and change had been strewn on the floor. Buckets from inside the shop had been taken outside and were filled with tools and coins. The broken alarm system cost approximately $2,400 to repair. Neither defendant had permission to enter the business or remove property from it.

Officer Apiruck Doliane responded to the burglary call. He transported Agaki and Conrad to the field show ups. Both witnesses positively identified defendants. Department of Motor Vehicles’ records showed that neither defendant had listed home addresses in Los Angeles. No affirmative defense was presented by defendants.

DISCUSSION

Defendants contend the delayed discovery of the non-matching fingerprint amounted to a prejudicial discovery violation and violated defendants’ constitutional right to a fair trial under Brady v. Maryland (1963) 373 U.S. 83 (Brady). They also contend the trial court erred and denied them a fair trial in refusing to permit the defense to refer to the fingerprint in closing argument. Finally, defendants contend the trial court erroneously denied their motions for new trial, and defendant Eric contends the trial court erroneously denied the motion for a mistrial. We first set out the relevant history pertaining to the fingerprint evidence.

Background

On the fourth day of trial, Tuesday February 27, 2007, prior to the start of the afternoon session (during the prosecution’s redirect-examination of Agaki), counsel for defendant Adrian informed the court that the prosecutor had just found out that the police had lifted “prints” from the burglary scene. Neither the prosecutor nor the defense knew how many fingerprints had been taken or if they matched either defendant. Counsel did not move for any relief at that time, but told the court that defendants would likely seek a mistrial if the police found the prints matched defendants. As nothing in the police reports or prosecution discovery mentioned fingerprints, counsel for both defendants had intended to question Agaki about what he saw the suspects touch, so they could argue the police investigation was faulty because of a failure to look for the fingerprint evidence that would establish the burglars’ identities. The court inquired whether the defense wanted to proceed or seek a mistrial. Counsel for defendant Adrian replied he lacked sufficient information about the nature of the prints to decide. Counsel for defendant Eric queried what would happen if the print analysis resulted in exonerating information—that is, whether there would be time left in the trial to present such information.

The prosecutor agreed that the police reports had not referenced fingerprints or a request for fingerprint testing. On Monday afternoon, the prosecutor asked the investigating officer, Officer Chavez, why the police did not test for fingerprints at the crime scene. The officer replied that although fingerprint requests are typically referenced in the police reports, he thought prints had been taken. That night or the following morning, Officer Chavez telephoned the owner of Mezian Motors, who confirmed that police department personnel had dusted the shop for fingerprints. The prosecutor received that information at lunchtime on Tuesday. He called the police department and was informed that a print was lifted, but it was “not AFIS [Automated Fingerprint Identification System] quality.” That is, it could not be compared through a computer database. The prosecutor requested that the police immediately compare the print to defendants’ prints manually, but was informed that results would not be available that day and might not be available the next day either. The prosecutor relayed this information to defense counsel.

The trial court set forth what it thought were the “unattractive alternative[s],” one of which was to proceed with the trial. The prosecution would have to provide any negative fingerprint results to the defense as soon as they were available, and if the case was already submitted to the jury by that time, the defense could move for a mistrial in the event of conviction. Alternatively, the court hypothesized, the jury could be sent home for the day while they awaited results—but that approach risked upsetting the jurors with no guarantee the results would be available. The trial court asked defense counsel to clearly state how they wanted to proceed. Counsel for defendant Adrian responded that he was “strapped, limited and paralyzed” regarding his cross-examination of Officer Chavez, since he had planned to inquire about the failure to take fingerprints, but now did not know the extent or the results of such tests. The court asked whether defendant Adrian wanted “to stipulate to a mistrial.” The prosecutor explained that he intended to present testimony that the police tested for fingerprints and found one, but at that time did not know whether it matched anyone. The parties discussed the extent to which it would be permissible to examine Officer Chavez concerning police fingerprinting efforts and the failure to obtain results. The court declined to make a ruling at that time, but ordered the trial proceed as to the witnesses Agaki and Conrad.

Later, during the afternoon recess and in the process of discussing scheduling matters, the trial court mentioned the “issue with the prints” was still unresolved. “[T]hinking out loud,” the trial court suggested that if the prosecutor were to elicit Officer Chavez’s testimony that the officer had ordered the taking of fingerprints, the defense would be permitted to question the officer on the lack of any such notation in the police report and that no such disclosure had been made until the fourth day of trial. Counsel for defendant Adrian responded that he still felt unable to proceed with cross-examination because of the lack of more detailed information concerning the police’s fingerprinting efforts. Counsel suggested waiting until the following morning to see if the police would provide any additional information on the print. The day concluded with the examination of Conrad.

Before trial resumed on the morning of February 28 (the fifth day of trial), counsel for defendant Adrian told the trial court that the prosecution had produced a written report from the Scientific Investigation Division (SID), showing that on October 30, 2006, one latent print was lifted from a “possible point of entry”—an office window screen. The report confirmed the SID’s latent print division tried to evaluate the print through “AFIS,” but found it “not AFIS quality.” According to the prosecutor, SID was trying to perform a manual analysis.

Copies of the SID report were attached to defendants’ new trial motions. According to the report, the print was evaluated on December 5, 2006, showing it was not “AFIS Quality.” The report indicates it was mailed the following day, but it does state to whom it was mailed. Also, presented at the new trial motion was an SID slip showing that “Villacorte” lifted the print from the window screen on October 30, 2006.

Counsel for defendant Adrian told the trial court that the report did not provide sufficient information for him to make a tactical choice as to how to proceed—since there were no results yet, there was a danger that the fingerprint might be his client’s, and he would not want to examine the officer on fingerprinting efforts if that turned out to be the case. The prosecutor stated that he intended to call Officer Chavez to testify that he ordered fingerprinting, and Villacorte, the SID employee who took the latent print, to explain what he did at the crime scene. The court asked the defense, “What, if any, order is the defense requesting from the court at this juncture? You are not moving for a mistrial, correct?” Counsel for Adrian reiterated his position that without further information from SID, he could not effectively cross-examine either Officer Chavez or Villacorte concerning fingerprinting—in essence, cross-examination would be tantamount to discovery.

The trial court suggested alternative approaches. Either all fingerprint evidence could be excluded due to the “late disclosure” in providing defense with only a “partial report” in the middle of trial, or the prosecution could adduce testimony concerning the police fingerprinting efforts—but the court would instruct the jury that the prosecution had violated its discovery obligations. The prosecutor responded that he should be permitted to show the crime scene was fingerprinted to counter any implication or argument that the police “did a sloppy job.” The court, however, proscribed the prosecutor from questioning Officer Chavez about the ordering of fingerprinting because the lack of any results rendered the probative value nonexistent. Nevertheless, if the defense “opens the door” by asking whether prints were ordered, the officer would be permitted to testify as to his efforts (and the fact that no information was provided to the defense until that day). Further, in response to the prosecutor’s inquiry about the possibility of obtaining negative fingerprint results, the court explained: “If and when you have grounds to make a motion to reopen, you can do that. If you get prints that are somebody else’s prints and it’s Brady material, obviously, you’re ordered to produce that.”

See Judicial Council of California Criminal Jury Instructions (2007-2008) CALCRIM No. 306 (instructing that both parties must disclose their evidence to the other side before trial, and in evaluating the weight and significance of that evidence, the jury can consider the effect of the late disclosure of a party).

Counsel for defendant Adrian moved for a mistrial on the ground that he could not effectively cross-examine the anticipated prosecution witnesses concerning fingerprinting efforts without having complete reports as to the extent of those efforts and the results thereof. Counsel for defendant Eric joined the motion. As the prosecution’s next witness—Officer Barkley—did not bear on the issue, the court delayed ruling on the motion.

At the start of the afternoon session, the prosecutor reported that he spoke to SID personnel who confirmed that one latent print had been lifted by Villacorte. A different SID employee, David Velarde, had been assigned to the matter, but he was not in the office that day. Counsel for defendant Adrian, however, reported that he had been told that SID personnel were at work on the fingerprint analysis, but had not completed it. After giving the parties the opportunity to argue, the court denied the mistrial motion, ordering that the parties would not be permitted to inquire into the subject of fingerprinting. Under Evidence Code section 352, the court found no significant prejudice to the prosecution or defense. As the matter stood, the fingerprint evidence was inconsequential—the police did test for prints, but found nothing usable. Questioning regarding those efforts would consume an undue amount of time in adducing evidence of “virtually no probative value.” The court recognized that the defense would be precluded from adducing that the police report failed to show any fingerprinting efforts, but that line of argument had little probative value in light of the fact that fingerprinting was in fact done. The court also found the prosecutor was not at fault for the late production of discovery. Finally, if additional information “comes to light,” the court would revisit the matter then—even after the trial, the court would consider a motion for new trial, but that was “completely hypothetical at this point.”

Closing arguments began on Thursday March 1, 2007. After attacking the prosecution case on a variety of grounds, counsel for defendant Adrian rhetorically asked the jury: “How many things were touched in this incident? How many pieces of property in that office were touched? How many buckets and tools were touched? How many doors were touched? How many cars that were inside Mezian Motors were touched? [¶] Where are the prints on the alarm?” The court interrupted, telling defense counsel, “as you know, we’re not getting into this.” At a conference outside the jury’s presence, counsel justified his argument on the lack of fingerprint evidence, telling the court, “We now know that the individual print that was taken didn’t come back to [either defendant].” When the court expressed its surprise that the results had been provided, the prosecutor said the results were received “[r]ight before we started.” Counsel for defendant Adrian asserted that it was “fair game” to argue the prosecution did not have any fingerprints that matched his client or that if any prints existed, they did not match his client.

The trial court disagreed, finding that such an argument would mislead the jury into thinking no fingerprinting efforts were taken. The court pointed out that defendants could have moved to reopen when they discovered the new evidence, but neither did. Counsel for defendant Adrian countered that he could not move to “reopen a case” during closing arguments and instead moved for a mistrial based on the court’s refusal to permit him to argue the lack of fingerprinting evidence. The court denied that motion.

When argument was completed and the jury began deliberating, the trial court discussed the fingerprinting issue with counsel, pointing out that the court was “a bit blindsided” by the timing and manner in which the results were communicated. The prosecutor confirmed that the SID’s manual comparison did not match defendants and the print could not be run through the computer database for making other comparisons. The court was “troubled by the fact that the defense should have had that [information] before we got to this point.” Counsel for defendant Adrian noted his intention of moving for a new trial in the event of a conviction. The jury’s verdict was rendered the following day.

At the hearing on defendant Eric’s new trial motion, the trial court chided the prosecution for the failure to provide the fingerprinting results in a timely manner, but denied the motion. On the one hand, the prosecution’s evidence of guilt was “overwhelming.” There were two eyewitnesses who saw the burglary and identified both defendants—who were found, far from their homes, near the crime scene in the early morning hours, sweaty and out of breath. On the other hand, neither party timely informed the court as to the fingerprint results—and upon discovering the information, the defense failed to move to reopen, despite having apparent grounds for doing so. Indeed, the court would have looked favorably on such a motion. Counsel for defendant Adrian strongly protested that it was too late in the trial to make such a motion, but the trial court disagreed and pointed to authority in support of its finding.

Claims of Discovery Violation and Brady Error

We first assess defendants’ claims that the prosecution failed to comply with its statutory discovery obligations through its delayed production of the fingerprint report and result. Section 1054.1 imposes on the prosecuting attorney the obligation to disclose specified materials and information, “if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies.” Subdivision (c) obliges the prosecutor to disclose “All relevant real evidence seized or obtained as a part of the investigation of the offenses charged.” Subdivision (e) requires disclosure of “[a]ny exculpatory evidence.” And subdivision (f) obliges the prosecuting attorney to disclose “[r]elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial.” (Emphasis added.)

The relevant materials were (1) the SID report produced on February 28, 2007, the fifth day of trial, which contained the slip showing that a print was lifted from the window screen on October 30, 2006, and that it was evaluated as being non-AFIS quality on December 5, 2006, and (2) the SID report, disclosed during closing argument, showing the results of the manual print comparison initiated on February 27, 2007, and completed on March 1, 2007—that it matched neither defendant. While those reports were discoverable under section 1054.1, there was no discovery violation because nothing in the record indicates the prosecutor knew about the documents’ existence for any significant time before he produced them to the defense. (People v. Zambrano (2007) 41 Cal.4th 1082, 1133 [prosecutor did not commit a statutory or constitutional discovery violation as to a letter the prosecution was unaware of and did not possess].)

While the report containing the December 5 analysis should have been provided to the prosecutor and produced to the defense before trial, there was no suggestion that any failure to disclose was willful or done to obtain a tactical advantage. (See People v. Jackson (1993)15 Cal.App.4th 1197, 1203.) People v. Gatlin (1989) 209 Cal.App.3d 31, 38 is instructive: “Although discovery was untimely in the sense the existence of the tapes was not discovered until just before trial, nothing establishes, as in People v. Ruthford, 14 Cal.3d 399, 401, 409, [overruled on another point in In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 6] any fault attributable to the prosecutor. There was no prosecutorial misconduct and, certainly, he breached no duty to disclose favorable evidence of substantial materiality in his possession. Nothing suggests that he knew of the existence of the tapes or could have produced them earlier, and defense counsel made no such claim below conceding she did not believe the prosecutor knew of their existence.”

The typical remedy for a discovery violation is a continuance. (People v. Robbins (1998) 45 Cal.3d 867, 884.) However, neither defendant requested a continuance, despite having ample opportunity. When the matter was initially raised, the trial court mentioned a continuance as a disfavored alternative, but the defense made no attempt to argue otherwise. The following day, after the defense received the first SID report, the defense declined to request a continuance when the court asked what remedy was being sought. As a result, defendants waived the issue of whether the trial court should have granted one. (See People v. Young (1964) 224 Cal.App.2d 420, 422-424; see also People v. Alcala (1992) 4 Cal.4th 742, 782.)

Only defendant Eric argued this point on appeal, criticizing the trial court for failing to order the police to expedite its fingerprinting evaluation. As no such request was made at trial, the argument is forfeited on appeal. Further, as no authority is offered for the proposition that the trial court had a sua sponte obligation to make such an order, we summarily reject it. (People v. Barnett (1998) 17 Cal.4th 1044, 1107, fn. 37; People v. Stanley (1995) 10 Cal.4th 764, 793; Valov v. Department of Motor Vehicles (2005) 132 Cal.App.4th 1113, 1132.)

We turn to the question of Brady error. Due process requires the prosecution to disclose exculpatory material evidence to the accused. (Brady, supra, 373 U.S. at p. 87; People v. Jenkins (2000) 22 Cal.4th 900, 954.) Evidence is material if a reasonable probability exists that a different result would have occurred in the proceeding had the evidence been disclosed to the defense. (Pennsylvania v. Ritchie (1987) 480 U.S. 39, 57; People v. Jenkins, supra, 22 Cal.4th at pp. 952, 954.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings.” (People v. Jenkins, supra, 22 Cal.4th at p. 954.) “A prosecutor’s duty under Brady to disclose material exculpatory evidence extends to evidence the prosecutor—or the prosecution team—knowingly possesses or has the right to possess. The prosecution team includes both investigative and prosecutorial agencies and personnel. (See In re Brown (1998) 17 Cal.4th 873, 879.) In Kyles v. Whitley (1995) 514 U.S. 419, 437-438, the Supreme Court held that a prosecutor has a duty to learn of favorable evidence known to other prosecutorial and investigative agencies acting on the prosecution’s behalf, including police agencies. The scope of the prosecutorial duty to disclose encompasses exculpatory evidence possessed by investigative agencies to which the prosecutor has reasonable access. (People v. Robinson (1995) 31 Cal.App.4th 494, 499.)” (People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1314-1315.) On the other hand, “‘[a]lthough the prosecution may not withhold favorable and material evidence from the defense, neither does it have the duty to conduct the defendant’s investigation for him. [Citation.] If the material evidence is in a defendant’s possession or is available to a defendant through the exercise of due diligence, then . . . the defendant has all that is necessary to ensure a fair trial. . . .’ [Citations.]” (People v. Zambrano, supra, 41 Cal.4th at p. 1134.)

We find no Brady violation. First, the SID report produced on the fifth day of trial did not amount to Brady material because it merely noted the existence of a latent fingerprint, which lacked the quality to permit a computerized comparison. As the trial court found, such evidence had no significant probative value to either party. Without any testing results, it would be pure speculation whether the evidence was inculpatory or exculpatory. As trial counsel acknowledged at the time, a manual comparison might result in a match to one of the defendants. Relief under Brady cannot be premised on mere speculation as to materiality. (Wood v. Bartholomew (1995) 516 U.S. 1, 6.) The fact that neither defendant sought a continuance to obtain results or to conduct an independent fingerprint analysis underlines this conclusion.

Nor did the fingerprint evidence become material under Brady when the prosecution subsequently produced the negative results. As the trial court found in connection with defendants’ new trial motion, the fingerprint results did not significantly undercut the prosecution’s overwhelming case. The eyewitness testimony by Agaki and Conrad was compelling: Both witnesses had a good opportunity to observe defendants while they were burglarizing Mezian Motors. The area was well lit, and their contemporaneous descriptions of defendants were accurate and consistent in most essentials. The police found defendants within minutes, in close proximity of the crime scene and in the direction the witnesses saw them flee. Both were sweating and nervous. They were the only persons on the street at a time (4:30 a.m.) when businesses were closed, and defendants did not reside in that neighborhood. As neither defendant presented a defense, the fact that someone else’s print was on a window screen of a car repair business would have had no tendency in reason to disprove defendants’ presence at the crime scene or otherwise cast doubt on the prosecution’s case. (See In re Sassounian, supra, 9 Cal.4th at pp. 548-550.) The fingerprint evidence, even when fully developed, did not reasonably undermine the fairness of the proceedings.

Limitations on Closing Argument

Defendants contend the trial court denied them a fair trial by ruling that counsel for defendant Adrian could not argue the prosecution failed to present evidence of fingerprints at the scene that matched defendants. While the ruling did not deprive defendants of a fair trial, we do conclude the trial court exceeded its discretion in precluding all argument on the absence of fingerprint evidence.

The constitutional right to make a closing summation on behalf of a criminal defendant, which derives from a defendant’s right to be heard through counsel, “‘necessarily includes his right to have his counsel make a proper argument on the evidence and the applicable law in his favor . . . .’ [Citation.]” (Herring v. New York (1975) 422 U.S. 853, 860, emphasis added.) “It is axiomatic that counsel may not state or assume facts in argument that are not in evidence.” (People v. Stankewitz (1990) 51 Cal.3d 72, 102.) To protect and effectuate this aspect of the right to counsel, “[t]he presiding judge must be and is given great latitude in controlling the duration and limiting the scope of closing summations. He may limit counsel to a reasonable time and may terminate argument when continuation would be repetitive or redundant. He may ensure that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial. In all these respects he must have broad discretion.” (Herring v. New York, supra, 422 U.S. at p. 862.)

Here, the challenged limitation on argument had its origin in the trial court’s earlier ruling on defendants’ mistrial motion on the afternoon of February 28, after production of the initial SID report. At that time, the prosecution sought to counter the defenses’ anticipated efforts to show the investigation was inadequate by adducing testimony from Officer Chavez as to the police’s fingerprinting efforts. The defense objected on the ground that the prosecution’s failure to produce timely results of the fingerprint analysis made it impossible to conduct an effectual cross-examination of the officer. In denying the motion, the trial court relied upon Evidence Code section 352 in proscribing the parties from inquiring into fingerprinting efforts. The court reasoned that even if the prosecutor was not at fault for the delayed production of evidence, the police should have forwarded the report in a timely manner and had yet to complete its manual comparison. The trial court felt it was therefore entirely proper to proscribe the prosecution from showing that the crime scene had been dusted for fingerprints. While the defense would be precluded by the trial court’s ruling from adducing that the police report failed to show any fingerprinting efforts, the court believed that line of argument would have little probative value in light of the fact that fingerprinting was in fact done. The probative value of such evidence, in the court’s view, was negligible in comparison to the time it would take to develop it, while the prejudice to the parties was minimal at best.

The Evidence Code section 352 ruling arguably went too far in cutting off questioning by the defense, considering that the defense was not in any way culpable for the lack of discovery of the fingerprint evidence. The fact is that no follow-up analysis was performed on the lone print until the end of trial and none of defendants’ fingerprints were recovered at the scene. While the lack of fingerprints may well be subject to explanation, the defense should have been allowed to raise the issue through cross-examination of Officer Chavez.

For reasons that are not clear in the record, neither the prosecution nor the defense informed the court of the SID’s negative results prior to defense argument to the jury. As a result, the trial court felt “blindsided” by counsel for defendant Adrian when he attempted to argue the jury should consider the lack of fingerprint evidence connecting defendants to the burglary. In a sidebar conference after the court interrupted the argument, counsel for defendant Adrian protested that the prosecutor’s disclosure of the fingerprint evidence made it “fair game” to argue the prosecution did not have any fingerprints that matched his client.

We agree with defendants that the argument was proper and did not go beyond the record. The record, as it existed, did not include evidence of defendants’ fingerprints from the scene, and the defense should have been allowed to argue the absence of fingerprints at the scene raised a reasonable doubt as to guilt. The argument was factual and did not misrepresent the true circumstances to the jury. The only reason there was no evidence of fingerprints at trial was the late discovery of the matter and the trial court’s earlier Evidence Code section 352 ruling. Certainly the trial court would not have precluded a defense argument that no DNA evidence was presented and therefore there was reasonable doubt, since defendants apparently touched many items in the auto parts store. The argument regarding no evidence of fingerprints at the scene is no different and should have been permitted.

Nonetheless, and without sanctioning the way events unfolded at trial, we simply cannot conclude on this record that any error was prejudicial, even under the standard of Chapman v. California (1967) 386 U.S. 18, 23. As set forth above, the overwhelming evidence of guilt was uncontroverted. The fingerprint evidence, while admissible, did nothing to undercut the strong and consistent eyewitness identifications and circumstantial evidence of guilt. We are satisfied the errors did not contribute to the verdict and were harmless beyond a reasonable doubt.

Denial of Mistrial Motion

As we set forth ante, the trial court denied mistrial motions made after production of the initial SID report and during closing argument. From our discussion of the prior issues, it follows that we must reject defendant Eric’s contention that the trial court prejudicially erred in denying the motions. We have no doubt the result would be the same upon retrial if the fingerprint evidence were admitted and argument to the jury regarding that evidence were permitted.

New Trial Motion

We review the trial court’s ruling on a new trial motion under a deferential abuse-of-discretion standard. (People v. Coffman (2004) 34 Cal.4th 1, 127; People v. Navarette (2003) 30 Cal.4th 458, 526.) As our Supreme Court has explained: “‘“The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.”’ [Citations.] ‘“[I]n determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background.”’ [Citation.]” (People v. Delgado (1993) 5 Cal.4th 312, 328.) At the same time, however, as to our ultimate prejudice inquiry, “article VI, section 13 of the California Constitution obliges the appellate court to conduct an independent examination of the proceedings to determine whether a miscarriage of justice occurred. As in any appeal from a final judgment, the reviewing court must determine for itself whether errors denied a fair trial to the party against whom the judgment was entered.” (People v. Ault (2004) 33 Cal.4th 1250, 1261-1262, fns. omitted.)

In People v. Albarran (2007) 149 Cal.App.4th 214, 224-225 and footnote 7, our colleagues in Division Seven of this court read People v. Ault (2004) 33 Cal.4th 1250, 1261 and People v. Nesler (1997) 16 Cal.4th 561, 582 as dictating de novo review for orders denying motions for new trial when the ruling implicates the defendant’s federal constitutional rights to due process and concerns the fundamental fairness of his trial. We do not understand Ault or Nesler as having changed the Supreme Court’s longstanding precedent concerning the standard of review applicable to new trial rulings. Rather, those decisions merely recognized that in conducting an assessment of prejudice or in determining whether a lower court ruling effected a miscarriage of justice, a reviewing court will typically make the kind of independent evaluation appropriate for such mixed questions of law and fact. In any event, as in People v. Albarran, supra, at page 225, footnote 7, our conclusion would be the same under either standard.

As we have stated, our independent review of the record supports the trial court’s finding that in light of the overwhelming evidence of guilt, defendants suffered no prejudice due to the late discovery of the fingerprint results. We reach the same conclusion regarding the limitation on argument and the denial of the mistrial motions. The evidence afforded only a marginal basis for impeaching the eyewitness testimony of Agaki and Conrad, and the existence of a non-matching fingerprint on one potential point of entry into the burglarized business would have no significant tendency in reason to undercut the prosecution’s case, as it neither disproved defendants’ presence in the location nor bolstered any affirmative defense. As any error was harmless beyond a reasonable doubt (Chapman v. California, supra, 386 U.S. at p. 24), there was no miscarriage of justice. The late production of the fingerprint reports and analysis did not deny defendants a fair trial.

DISPOSITION

The judgments are affirmed.

We concur: ARMSTRONG Acting P. J., MOSK J.


Summaries of

People v. Wooden

California Court of Appeals, Second District, Fifth Division
Jul 24, 2008
No. B199172 (Cal. Ct. App. Jul. 24, 2008)
Case details for

People v. Wooden

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ERIC TREMAYNE WOODEN et al.…

Court:California Court of Appeals, Second District, Fifth Division

Date published: Jul 24, 2008

Citations

No. B199172 (Cal. Ct. App. Jul. 24, 2008)