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People v. Zimmer-Davis

California Court of Appeals, First District, Second Division
Apr 29, 2009
No. A121030 (Cal. Ct. App. Apr. 29, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. TONI ZIMMER-DAVIS, Defendant and Appellant. A121030 California Court of Appeal, First District, Second Division April 29, 2009

NOT TO BE PUBLISHED

San Francisco City & County, Super. Ct. No. 050719252

Lambden, J.

A jury convicted defendant of possession of heroin (Health & Saf. Code, § 11350, subd. (a)). Defendant appeals, arguing that the prosecutor committed prejudicial misconduct during closing argument by conducting a demonstration where he placed an exhibit of the black-tar heroin onto a black poster board. She also asserts that the special instruction regarding this demonstration was inadequate. We find her arguments unpersuasive and affirm the lower court’s judgment.

BACKGROUND

On December 20, 2007, an information charged defendant with possession of heroin (Health & Saf. Code, § 11350, subd. (a)). Defendant’s trial started on February 4, 2008.

Evidence Presented at Trial

The evidence at trial showed that, on June 20, 2007, while on patrol, Deputy Dean Rackley saw a gold Saturn automobile and conducted a check of the license plate number. The license plate check justified a traffic stop and Rackley stopped and detained the driver. Defendant was a passenger in the car. Deputy William Odom and other officers responded to the scene.

While investigating the driver, the officers handcuffed defendant and placed her in the backset of Odom’s patrol car. Rackley pat searched defendant for weapons, but did not search her pockets. Defendant was wearing a waist-length jacket and jeans. Rackley also searched defendant’s purse for identification.

After 15 or 20 minutes, Rackley determined that defendant was not involved in the investigation of the driver. He took defendant from Odom’s patrol car, removed the handcuffs, and allowed her to get her personal property from the Saturn. Rackley intended to release her. Prior to releasing her, he conducted a search of the backseat area of Odom’s patrol car where defendant had been seated. He lifted the backseat bench cushion and looked at the area directly underneath the seat where defendant had been sitting. On the floor, he noticed a plastic baggie with a black-tar-like substance, which he suspected was heroin. The baggie was a one-inch by one-inch square. After determining that Odom had conducted a pre-shift inspection of his patrol car earlier in the morning and that no one other than defendant had been placed in the patrol car since that inspection, Rackley arrested defendant.

The contents of the baggie were later tested and confirmed to be heroin with a net weight of.98 grams. No fingerprint analysis was done on the baggie. Rackley stated that a simple investigation such as this did not typically involve fingerprint identification.

Odom testified that he searched the back of his patrol car prior to the start of his morning shift. He stated that such an inspection was departmental policy and was completed daily for the purpose of locating and removing contraband prior to placing individuals in the rear seating area of the car. He asserted that his search begins with the rear interior of the car and he checks with a flashlight the “overall cleanliness of the vehicle....” Odom reported that on June 20, 2007, he used his flashlight to examine the car’s floor, which was black vinyl; he testified that he saw nothing. After checking the floor, he removed the back seat cushion by flipping it over and checking underneath the seat. The material under the seat cushion is a black “spongy material.” He, again, found nothing.

Odom explained that the bench seat in the patrol car was completely separate from the back support. He clarified that there was a gap between the bench seat and the back support and that the gap lead to the floor behind and underneath the seat. The seats were designed this way, according to Odom, so that the officers could easily find any contraband as suspects sitting in the back seat of the car often dropped or left articles there prior to the officers taking them to jail. He confirmed that he conducted a complete check of his vehicle prior to his shift on June 20, 2007, and that he did not find anything in the car. He estimated that the inspection of his car took about five minutes.

Rackley testified that he customarily conducted a pre-shift inspection of his patrol vehicle, including inspecting the rear seating area for contraband or weapons. When Rackley inspected the area underneath the rear seat of his car, he typically removed the bench seat entirely. He had observed other officers inspect the area by just lifting the seat up. He opined that tilting the seat forward or up would permit an officer to see underneath the seat. Subsequently, he admitted that the back portion of the seat would be against the door and the only way to see if something was actually stuck to the bottom of the seat would be to remove the seat entirely. Rackley explained on rebuttal that, because of the baggie’s location, it would have been visible even if the search involved only lifting the seat rather than removing it.

Rackley took photos of the rear seating of Odom’s patrol vehicle. One photo of the floor area underneath the bench seat showed a small white piece of paper, which was the approximate location of where Rackley found the baggie of heroin.

Rackley and Odom explained that handcuffed persons could retain some ability to move their hands. According to the officers, they could reach their rear pants pockets.

The Prosecutor’s Closing Argument

The prosecutor discussed the color of the rear seating and flooring of Odom’s patrol car in his closing argument. During his rebuttal closing argument, the prosecutor noted that defense counsel stressed that the photo presented as evidence had a white piece of paper rather than the baggie with black tar heroin. The prosecutor acknowledged that white “sticks out” and was therefore not very accurate and he did not want the jury to think that black tar looked like the white piece of paper.

The prosecutor then took the evidence of the black-tar heroin and placed it on a black poster board. Defense counsel objected on the basis that “this would be creating evidence, not in the trial.” The prosecutor responded that he was not admitting this demonstration into evidence. The court overruled the objection. The prosecutor showed the board to the jurors and commented: “It’s an island unto itself. That’s what he saw and that’s why they keep things clear.”

Out of the jurors’ presence, defense counsel argued that the prosecutor engaged in misconduct by conducting an improper experiment. Defense counsel argued that the black poster board was not the surface on which the heroin was found and “to conduct an experiment in front of the jury create[d] evidence that wasn’t presented to them and should not have been done....” Defense counsel moved for a mistrial on this basis.

The prosecutor responded that the jury knew that the black poster board was not the mat in the officer’s vehicle; indeed, he had told the jurors that. He said that it was not an experiment and that he was responding to defense counsel’s argument that the heroin could not be seen on a black background.

The court denied the motion for a mistrial and told defense counsel to craft a special instruction to address this issue.

Instruction Given

Defense counsel proposed an instruction and the prosecutor objected to the instruction. The prosecutor asserted that the heroin on the black poster board was a permissible “visual representation” regarding an arguable inference that the baggie of black tar heroin could be seen on a black surface, such as the matting of Odom’s patrol car. The prosecutor proposed an alternate instruction.

The following is the instruction proposed by defense counsel: “Ladies and gentlemen of the jury, in his closing argument the prosecutor conducted an experiment with an item of the evidence presented in this case. As I had instructed you earlier[,] experiments are not permitted with the evidence in this case and only testimony and evidence presented during the trial is to be considered by you. The surface that the prosecutor threw the item of evidence onto was not the surface where that item was alleged to have been seen by the witnesses, nor were the conditions related to the alleged observation by the officer the same [sic]. The prosecutor’s improper actions amount to an attempt to prejudice you against the defendant. I should not have allowed that experiment to have taken place. Were you to believe or to consider in your deliberations these improper observations, and convict the defendant on the basis of them, you would not be following the law or upholding your obligations as jurors as I had originally instructed you and I would have to declare a mistrial. Therefore, you must disregard these improper actions of the prosecutor and you [sic] observations of the experiment.”

The trial court devised its own instruction. It gave the jury the following instruction: “Ladies and gentlemen of the jury. In his closing argument the prosecutor tossed Exhibit 10 onto a black poster board. As I instructed you earlier, only testimony and evidence presented during the trial is to be considered by you. Please keep in mind that the surface that the prosecutor threw the item of evidence onto was not the surface where that item was alleged to have been seen by the witnesses, nor were the conditions related to the alleged observation by the officer the same.”

Verdict, Motion for New Trial, Sentence, and Appeal

On February 6, 2008, after deliberating for a little less than two hours, the jury returned with a verdict and convicted defendant of the charge of possessing heroin (Health & Saf. Code, § 11350, subd. (a)). On March 4, 2008, defendant moved for a new trial, partially on the basis of prosecutorial misconduct. On March 14, 2008, the trial court denied defendant’s motion for a new trial. The trial court sentenced defendant to three years of formal probation in accordance with Proposition 36 drug treatment.

Defendant filed a timely notice of appeal.

DISCUSSION

I. Prosecutorial Misconduct

Defendant contends that the presentation of the exhibit of the baggie of heroin on the black poster board during the rebuttal portion of the prosecutor’s closing argument constituted prejudicial misconduct because it was a misleading experiment not based on the evidence. She asserts that this misconduct deprived her of her right to due process of law and her right of confrontation under the Sixth and Fourteenth Amendments to the United States Constitution and therefore the “harmless beyond a reasonable doubt” standard applies. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)

Behavior by a prosecutor violates the federal Constitution when it is egregious enough to render the trial fundamentally unfair and the conviction a violation of due process. A prosecutor’s conduct may violate state law where he or she uses deceptive or reprehensible methods to persuade either the court or the jury. (People v. Hill (1998) 17 Cal.4th 800, 819.) It is misconduct to misstate or mischaracterize the evidence or to refer during argument to facts that are not in evidence. (Id. at pp. 823, 827-828.) At the same time, prosecutors have wide latitude in their arguments to comment on the evidence and draw reasonable inferences from it. “Counsel may argue facts not in evidence that are common knowledge or drawn from common experiences.” (People v. Young (2005) 34 Cal.4th 1149, 1197.) We review the “trial court’s ruling on prosecutorial misconduct for abuse of discretion.” (People v. Alvarez (1996) 14 Cal.4th 155, 213.)

Even if we presume the placing of the heroin on the black poster board constituted prosecutorial misconduct, we would only reverse if this action “infect[ed] the trial with such unfairness as to make the conviction a denial of due process.” (People v. Morales (2001) 25 Cal.4th 34, 44.) “[W]e may not reverse the judgment if it is not reasonably probable that a result more favorable to the defendant would have been reached in its absence.” (People v. Barnett (1998) 17 Cal.4th 1044, 1133.)

Here, we conclude that any alleged prosecutorial misconduct was harmless under Chapman, supra, 386 U.S. at page 24. The prosecution presented evidence that Odom conducted a check of his vehicle prior to starting his shift and that he found nothing in his car. His check included flipping the back bench seat up and looking at the floor area underneath. The record also established that no person other than defendant was in the vehicle after Odom had conducted his check. After defendant was removed from the car, Rackley found the baggie of heroin on that portion of the floor closest to where defendant’s feet would have been positioned. The jurors saw a photo depicting where Rackley found the baggie and they also saw the actual baggie and could assess whether it could be easily spotted or would have been detected in a pat search for weapons. Additionally, the prosecution presented evidence that there was a small gap between the seat and backrest and that something falling from defendant’s pocket would have landed where Rackley found the baggie.

Further, the prosecutor never suggested that the poster board was the same as the car floor. Rather, the prosecutor made it clear that the black poster board was simply illustrative of the argument that the baggie could be seen on a black background.

The trial court instructed the jury that the statements of the attorneys were not evidence. The court also gave the special instruction, which told the jurors that the prosecutor “tossed Exhibit 10 onto a black poster board” and that “the surface that the prosecutor threw the item of evidence onto was not the surface where that item was alleged to have been seen by the witnesses, nor were the conditions related to the alleged observation by the officer the same.”

The jurors were admonished that the black poster board was not evidence as it did not resemble the condition where the officer allegedly saw the heroin. Jurors are presumed to have followed the court’s instructions. (People v. Morales, supra, 25 Cal.4th at p. 47.) Consequently, we can presume that the jurors, following this instruction, did not consider the heroin on the black poster board as evidence. Further, the jurors knew that the heroin was found on the floor of the patrol car and their own common sense would support a conclusion that they knew that the poster board was not the floor of the police car vehicle.

Defendant contends that the demonstration was prejudicial because her entire defense was that someone other than she had left the heroin in the back seat of the patrol car and that Odom must have failed to notice the baggie during his inspection. Defendant asserts that she was denied the opportunity to cross-examine any witness regarding the accuracy of the black poster board. Moreover, the testimony that Odom flipped the seat up to check beneath it revealed that his check was not as thorough as Rackley’s inspections, which involved the complete removal of the seat. In closing argument, defense counsel argued that it would have been easy for Odom to miss “a black piece of plastic... on a black carpet” early in the morning.

Defendant argues that the special instruction did not cure the problem because the court merely stated that what an attorney says is not evidence. The instruction did not specifically admonish that the demonstration could not be considered as evidence. She maintains that the instruction allowed the jury to consider the demonstration as evidence. She adds that other instructions given, such as telling the jury to consider as evidence anything else and telling the jury to consider how well the witnesses could “see, hear, or otherwise perceive the things about which the witness testified[,]” encouraged the jury to consider the demonstration as evidence.

Defendant’s argument, however, ignores that the court specifically told the jurors not to consider closing argument as evidence. Further, as the trial court pointed out, when denying defendant’s motion for a new trial: “[T]he district attorney did no more than visually frame the issue that the jury necessarily would have been obligated to consider in any event, which was to assess the amount of contrast between the black bindle of heroin and other surfaces.” The court elaborated: “Moreover, that latter assessment would have occurred the moment the jury had an opportunity to observe the black bindle of heroin for itself resting on any surface with the other exhibits in the deliberation room. In this latter regard, the court informed the jury that the bailiff would allow the jurors to observe the black bindle of heroin in the deliberation room at the outset of deliberations, that the bailiff would then remove the bindle for safe-keeping, but that the bailiff would again show the bindle upon request.”

Since the bindle was evidence before the jury, the jury while deliberating would have seen it contrasted with various backgrounds that were not the actual floor of the vehicle. In any event, as already noted, the trial court specifically instructed that the black poster board was not the same as the floor of the police vehicle and that closing argument is not evidence.

Furthermore, the evidence against defendant was strong. Odom testified that he searched his vehicle prior to starting his shift. Defendant stresses that Odom, unlike Rackley, only tipped the seat up rather than removing the entire seat when searching the vehicle. However, the jurors could assess the adequacy of Odom’s inspection of his vehicle as they saw the contraband found and a photograph depicting where it was found. They could also evaluate the veracity of Rackley’s testimony that tipping the seat up was sufficient because of the location of the heroin. Additionally, the record established that the officer found the heroin directly underneath the seat where defendant had been sitting.

Accordingly, we conclude that, even if the prosecutor had not conducted his demonstration, the jury would have beyond a reasonable doubt (Chapman v. California, supra, 386 U.S. at p. 24) still have convicted defendant of possession of heroin.

II. Instructional Error

Defendant contends that the lower court’s instruction regarding the prosecutor’s demonstration involving the baggie and black poster board was inadequate. Defendant maintains that the instruction “implicitly condoned the jury’s consideration of that misguided experiment in deciding guilt.” She maintains that the instruction failed to tell the jury to disregard the experiment.

In a criminal case, a trial court must instruct on the general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) Errors in jury instructions are questions of law, which we review de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569.) However, even if the court errs with respect to a special cautionary or limiting instruction, reversal is not justified unless the error is prejudicial.

We generally review instructional error to determine whether it is reasonably probable that defendant would have received a more lenient result had the trial court provided the instruction defendant proposed. (People v. Watson (1956) 46 Cal.2d 818, 836.) Defendant argues, however, that the appropriate standard is that of Chapman v. California, supra, 386 U.S. at page 24, because the court’s instruction violated her federal constitutional right to due process of law. We find no due process violation in use of the instruction, but in any event, there was no prejudice, under either test.

Defendant concedes that she never objected to the special instruction given, but she claims that it was unnecessary to object because this instruction implicated her substantial rights. Even if we presume that defendant did not forfeit her claim to instructional error and that the special instruction was inadequate, defendant cannot prevail because she cannot establish prejudice. For the same reasons already discussed in our section regarding alleged prosecutorial misconduct, any alleged instructional error was harmless. Thus, even if the court had specifically instructed the jury not to consider the demonstration as evidence, the jury would have beyond a reasonable doubt (Chapman, supra, 386 U.S. at p. 24) still have convicted defendant of possession of heroin.

III. Motion for New Trial

Defendant contends that the lower court abused its discretion in denying her motion for a new trial. (People v. Black (1963) 216 Cal.App.2d 103, 117 [abuse of discretion standard of review for denial of motion for new trial].) On appeal, she maintains that her motion should have been granted based on prosecutorial misconduct. She asserts that the lower court’s ruling that the prosecutor’s experiment was analogous to a jury experiment improperly relied on cases (Higgins v. L.A. Gas and Electric Co. (1911) 159 Cal. 651, 657; People v. Cooper (1979) 95 Cal.App.3d 844, 853; and People v. Bogle (1995) 41 Cal.App.4th 770, 779) that are distinguishable from the present case.

As already discussed extensively, even if we were to conclude there was prosecutorial misconduct, not ameliorated by the special instruction, there was no prejudice. Thus, the trial court did not abuse its discretion in denying defendant’s motion for a new trial.

DISPOSITION

The judgment is affirmed.

We concur: Haerle, Acting P.J., Richman, J.


Summaries of

People v. Zimmer-Davis

California Court of Appeals, First District, Second Division
Apr 29, 2009
No. A121030 (Cal. Ct. App. Apr. 29, 2009)
Case details for

People v. Zimmer-Davis

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. TONI ZIMMER-DAVIS, Defendant and…

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

Date published: Apr 29, 2009

Citations

No. A121030 (Cal. Ct. App. Apr. 29, 2009)