People v. Smith

Opinion

Introduction

John of Gaunt:

“O! but they say the tongues of dying men

“Enforce attention like deep harmony:

Weary suffered two gunshot wounds, either of which would have been fatal. The coroner found two .22-caliber bullets in his body, which appeared to have entered from the right side. Another bullet fired from the same gun was found in the passenger door of the victim’s car.

Several days after the killing, defendant was interviewed by Deputy Sheriff Isaac Aguilar. He initially stated he knew nothing except that someone had been killed; and he denied recently being in the area of 99th Street and Normandie Avenue or knowing the victim. When Aguilar stated he had information to the contrary, defendant admitted knowing the victim and fighting with him the night before the shooting in the area of 99th Street and Budlong.

Defendant offered an alibi defense. According to Melanie Battle and her mother Viola Rodriguez, defendant had been at the Rodriguez house at 96th Street and Western Avenue from 4 a.m. February 11 until at least 3 or 4 p.m. February 12 for safety reasons following an unrelated shooting of Battle’s friend Kelly Mozier. Mark Cofield, a friend of defendant, owned a black Blazer and had made inculpatory statements regarding the killing to a mutual friend and gang member.

Issues Presented

Defendant raises the following issues on appeal:

(1) Whether the trial court erred by instructing on the victim’s dying declaration;

(2) Whether the court properly admitted Deputy Rifkin’s opinion as to the veracity of the dying declaration;

(3) Whether the court should not have excluded hearsay evidence of Gregory Haney’s identification of Mark Cofield as the assailant; and

As a logical corollary, the trial court’s ability to focus on or unduly emphasize this evidence should be commensurately circumscribed. (See, e.g., People v. Thomson, supra, 145 Cal. at p. 723.) For example, in other evidentiary contexts, “[i]t has been repeatedly held to be improper for the court to single out a particular witness and to charge the jury how his evidence should be considered. [Citations.]” (People v. McDonnel (1949) 94 Cal.App.2d 885 , 889 [ 211 P.2d 910 ]; People v. Lyons (1958) 50 Cal.2d 245 , 271 [ 324 P.2d 556 ].) On the other hand, the California Constitution currently grants the trial judge discretionary authority to “make such comment on the evidence . . . as in its opinion is necessary for the proper determination of the cause.” (Cal. Const., art. VI, § 10; see also People v. Rodriguez (1986) 42 Cal.3d 730 , 766-767 [ 230 Cal.Rptr. 667 , 726 P.2d 113 ].)

Specifically, as to appropriate instructions on dying declarations, “[t]here has been much theorizing in texts and opinions as to the weight to be given to dying declarations, abstractly or in comparison with the testimony of a witness. In consequence the practice has grown up in some states of requiring or permitting the judge to instruct the jury that these declarations are to be received with caution. In other states such instructions have been held to be improper. Again one court has required that the jury be told that a dying declaration is not to be regarded as having the same value and weight as sworn testimony. . . . While there may be merit in a standardized practice of giving cautionary instructions, the direction to give the declaration a predetermined fixed weight seems of questionable wisdom. The weight of particular dying declarations depends upon so many factors varying from case to case that no standardized instruction will fit all situations. Certainly in jurisdictions where the judge retains his common law power to comment on the weight of the evidence, the dying declaration is a most appropriate subject for individualized comment. . . .’’(McCormick, supra, § 286, pp. 833-834, fns. omitted.)

We find the foregoing commentary persuasive, particularly in light of the general rule resolving conflicts in the law in favor of criminal defendants. In the instant case, laudable as the court’s efforts may have been in elucidating a point of law, the instruction tended to draw the jury’s attention to this evidence, isolating it and thereby implying some authoritative assessment of its credibility and effect upon the determination of defendant’s guilt. As such, it was more than an expression of the court’s evaluation of the

In addition, the defense offered expert testimony on the various factors affecting eyewitness perception; and the court fully instructed on the criteria relevant to determining credibility of witnesses. (See Evid. Code, § 780.) “Although the giving of the general instructions may not alone preclude reversal for [improper instruction] [citation], their use is relevant, in combination with counsel’s arguments and cross-examination, to a determination of whether the error was prejudicial. [Citation.]” (People v. Wright (1988) 45 Cal.3d 1126 , 1149 [ 248 Cal.Rptr. 600 , 755 P.2d 1049 ]; People v. Lee (1987) 43 Cal.3d 666 , 677-678 [ 238 Cal.Rptr. 406 , 738 P.2d 752 ].)

Although the evidentiary impact of the victim’s dying declaration obviously was significant, the objectionable instruction did not compel the jury to accept it or to view it as having any force and effect beyond that sanctioned by the law well prior to the formulation of the hearsay rule. Thus, under the circumstances of this case, we do not find that the jury would have reached any different verdict had the court omitted it. (See generally People v. Lee, supra, 43 Cal.3d at p. 679.)

Over

defense objection, Deputy Rifkin testified he believed the victim when he made his dying declaration. Rifkin had known Weary from street contacts for at least two years; and, although this contact did not result in a personal relationship or friendship, he felt trusted and did not think the victim was lying when he said, “ ‘Spodie did it.’ ” He based this conclusion on the following: “Because I knew Miles for a while and talked to him. He was usually pretty honest with me and open, and he would tell me what was going on with him and his gang and other gangs, [fl] And I could tell by the tone of his voice when I was leaning over him that he was sincere about it.” Later, the witness described the victim’s voice as “shallow and soft” and having “a lot of concern in his voice, fair concern, when he was talking . . . .”

“If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but. not limited to an opinion that is:

“(a) Rationally based on the perception of the witness; and

“(b) Helpful to a clear understanding of his testimony.” (Evid. Code, § 800.)

“Lay opinion about the veracity of particular statements by another is inadmissible on that issue. As the Court of Appeal recently explained [citation], the reasons are several. With limited exception, the fact finder, not the witnesses, must draw the ultimate inferences from the evidence. Qualified experts may express opinions on issues beyond common understanding (Evid. Code, §§ 702, 801, 805), but lay views on veracity do not meet the standards for admission of expert testimony. A lay witness is occasionally permitted to express an ultimate opinion based on his perception, but only where ‘helpful to a clear understanding of his testimony’ [citations], i.e., where the concrete observations on which the opinion is based cannot otherwise be conveyed. [Citations.]” (People v. Melton, supra, 44 Cal.3d at p.744.)

Although Deputy Rifkin’s opinion of Weary’s veracity may have been rationally based on his perceptions of the victim’s physical condition and mental state, it was not necessary to elucidate his testimony. On the contrary, it also tended to invade the province of the jury on this issue. “[T]he credibility or degree of weight which shall be given to a dying declaration is solely a question for the jury, that they may apply the same tests and principles in determining its truth that they apply in the consideration of the evidence of the witnesses . . . .” (People v. Thomson, supra, 145 Cal. at p. 723; see also People v. Dallen, supra, 21 Cal.App. at pp. 780-781.) Accordingly, the court should have sustained the defense objection to this evidence.

Nevertheless, the error did not alter the outcome of the trial and, thus, does not warrant reversal. (Cal. Const., art. VI, § 13; Evid. Code, § 353.) Rifkin properly testified to his observations and perceptions as a percipient witness to Weary’s parting words. Given the length and nature of their acquaintance, he may also have been qualified to render an opinion as to the victim’s character for honesty and veracity. (See Evid. Code, §§ 780, subd. (e), 786; People v. Sergill (1982) 138 Cal.App.3d 34 , 39 [ 187 Cal.Rptr. 497 ].) Hence, Rifkin’s opinion as to his credibility on a specific occasion added little to the evidence the jury was already entitled to hear; and other independent facts strongly linked defendant to the killing. He and the victim had had prior hostile contact the evening before when defendant was driving a similar black Blazer. He gave conflicting statements regarding this incident, initially denying he had ever seen the victim even though police had found his fingerprints on the victim’s automobile. Moreover, defendant

D

uring cross-examination of Deputy Aguilar, defense counsel elicited testimony that Gregory Haney, the front seat passenger in the victim’s car at the time of the shooting, had identified Mark Cofield as the perpetrator in a photographic lineup. The prosecutor objected to the evidence as hearsay, and the trial court granted a motion to strike. The record does not reveal the reason Haney was not called to the stand.

We find no error, “(a) ‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated, [if] (b) Except as provided by law, hearsay evidence is inadmissible. . . .” (Evid. Code, § 1200.) Defendant cites no exception authorizing admission of the excluded identification. Instead, he argues that due process required the court to leave the testimony standing as evidence of a third party’s culpability for the crime charged. (Chambers v. Mississippi (1973) 410 U.S. 284 [ 35 L.Ed.2d 297 , 93 S.Ct. 1038 ].) However, our facts differ markedly from those in Chambers and do not mandate a similar resolution. In that case, the trial court excluded evidence of a third party’s repeated extrajudicial confession because the Mississippi hearsay rule did not provide an exception for statements against penal interest. (Id., at pp. 289-290 [35 L.Ed.2d at pp. 305-306].) In light of its significance and the substantial indicia of trustworthiness implicit in such a declaration, the Supreme Court found the exclusion of this evidence denied the defendant a fair trial. (Id., at pp. 300-302 [35 L.Ed.2d at pp. 311-313].)

Here, aside from Haney’s out-of-court identification, defendant proffered virtually no evidence of a specific third party’s culpability but instead simply denied his own responsibility for the crime. (See generally People v. Hall (1986) 41 Cal.3d 826 , 833 [ 226 Cal.Rptr. 112 , 718 P.2d 99 ]; In re Miguel L. (1982) 32 Cal.3d 100 , 107-108 [ 185 Cal.Rptr. 120 , 649 P.2d 703 ].) More importantly, the record contains no indicia of reliability for Haney’s statement, which the prosecution had no opportunity to test on cross-examination. ( In re Miguel L., supra, at pp. 107-109; see also People v. Mayfield (1972) 23 Cal.App.3d 236 , 242-244 [ 100 Cal.Rptr. 104 ].) The ruling also did not preclude defendant from presenting his more substantial defense of alibi, which rested on entirely different testimony. Consequently, we find no denial of due process or fair trial.

The fully armed killer in this cold-blooded street gang murder tracked the victim to the location of the assault and without warning opened fire into his vehicle. The jury was properly instructed on the elements of both first and second degree murder and the requirement of determining every element beyond a reasonable doubt. It is disingenuous to claim that evidence of all the three types enumerated in Anderson was too insubstantial as a matter of law to support their conclusions. (See, e.g., People v. Miranda (1987) 44 Cal.3d 57 , 86-87 [ 241 Cal.Rptr. 594 , 744 P.2d 1127 ], cert. den. 486 U.S. 1038 [ 100 L.Ed.2d 613 , 108 S.Ct. 2026 ], reh. den. 487 U.S. 1246 [ 101 L.Ed.2d 956 , 109 S.Ct. 4 ]; People v. Wells (1988) 199 Cal.App.3d 535 , 539-541 [ 245 Cal.Rptr. 90 ].) Essentially, defendant asks this court to reweigh the facts and resolve them more favorably than the 12 persons charged with that responsibility under our criminal justice system. In so doing, he misconceives our function and jurisdiction: “In reviewing the sufficiency of the evidence, we must draw all inferences in support of the verdict that can reasonably be deduced and must uphold the judgment if, after viewing all the evidence in the light most favorable to the

Disposition

The judgment of conviction is affirmed.

Klein, P. J., and Croskey, J., concurred.

Appellant’s petition for review by the Supreme Court was denied January 25, 1990.