Supreme Court of California.
PEOPLE v. EUBANKS
53 Cal.4th 110 (2011)
THE PEOPLE, Plaintiff and Respondent,
v.
SUSAN DIANNE EUBANKS, Defendant and Appellant.
No. S082915.
134 Cal. Rptr. 3d 795
266 P.3d 301
December 19, 2011.
Patrick Morgan Ford, under appointment by the
Supreme Court, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris,
Attorneys General, Dane R. Gillette, Chief Assistant Attorney General,
Gary W. Schons, Assistant Attorney General, Adrianne S. Denault and
Meagan J. Beale, Deputy Attorneys General, for Plaintiff and
Respondent.
OPINION
CHIN, J.—
On October 26, 1997, defendant Susan Dianne Eubanks
shot and killed her four young children. When they died, the children,
Brandon, Austin, Brigham, and Matthew, were, respectively, ages 14,
seven, six, and four. A jury found defendant guilty of four counts of
first degree murder (Pen. Code, § 187).1 The jury found true as to
each murder the special circumstance allegation that defendant had
committed multiple murders (§ 190.2,
[ 53 Cal.4th 116 ]
subd. (a)(3)). The jury also found that defendant
personally used a firearm (§ 12022.5, former subd. (a)(1), as amended
by Stats. 1995, ch. 377, § 9, pp. 1949-1950; see new § 12022.5, subd.
(a)) in the commission of the murders. After a penalty trial, the jury
returned a verdict of death. The trial court denied defendant's motion
to modify the penalty verdict (§ 190.4, subd. (e)), and imposed a
determinate term of four years for each of the gun use enhancements.
This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
I. FACTS
A. Guilt Phase
At the time defendant killed her children, she had
been living with them, her boyfriend Rene Dodson, and her nephew in a
small home in San Marcos. Defendant and her first husband, John
Armstrong, had one son, Brandon. Following her divorce from Armstrong,
defendant married Eric Eubanks.2 She was pregnant at that time with
Austin, the child of Larry Shoebridge, with whom she had been living.
Eric fathered two of defendant's sons, Brigham and Matthew. After
defendant's brother died, defendant obtained custody of her nephew.
Each son had been shot in the head by the same
five-shot .38-caliber revolver; at the time of their deaths, Austin
and Brigham had 0.02 micrograms of Xanax in their blood, while Brandon
and Matthew had none.
In the living room, defendant had put the revolver
to the temple of 14-year-old Brandon and shot him; she also shot him
in the neck from a few inches away. She shot her younger sons in their
bedroom. With the revolver no more than a foot from Austin's head, she
shot her seven-year-old son near his left eye. With the gun inches
from Brigham's head, she shot her six-year-old son twice, once above
his left ear and once close to his right ear. With the gun close to
the head of four-year-old Matthew, she shot him in the top of the
head, leaving stippling marks on his face. She fired other bullets in
the bedroom that hit a wall and a window. At some point in that
bedroom, defendant opened the revolver's cylinder, removed the five
expended shell casings, put them in a trash can, and reloaded the
five-shot revolver.
Defendant shot herself in the abdomen with that
same revolver. Her six-year-old nephew was home at the time of the
shootings. He was found unharmed, in bed, with blankets pulled up to
his chin.
[ 53 Cal.4th 117 ]
Deputies who entered the home shortly after the
shooting found five notes on defendant's bedroom floor, all in
defendant's handwriting. One was to Eric. Defendant wrote, "You
betrayed me. You kept a diary, and you and Rene Dodson conspired
against me." She added, "I've lost everyone I've ever loved. Now it's
time for you to do the same." She said he could use any money from her
worker's disability case to "bury the kids and find your rainbow. Anna
May, I'm sure." In a note to Dodson, defendant wrote he was "the
biggest liar to date that I know. Stay on crystal meth and let your
37-year-old ass move back with Mom and Dad. Get back with Pam and/or
Sherri. They're your class." It concluded, "See ya . . . Ha, ha." A
third letter was to Brandon's father. It said, "I know you'll hate me
forever, but I can't let [Brandon] live without his brothers, so I did
what I did." She wrote she had been "strong for 25 years, and I'm
tired of all the fight and hurt." She ended the note by complaining
that Dodson "fucked me all up." Defendant also wrote to her niece and
her sister, apologizing for her actions. To the niece, defendant
explained, "I know what I'm doing is going to hurt you tremendously,
but I can't and have no desire to go on." To her sister, defendant
wrote she was "tired of being strong," that "things are way out of
hand." Defendant included Matthew's birth date and hers and asked her
sister to ensure that the two of them would be "in the same casket."
Besides the evidence of the crimes themselves and
the above described notes, the prosecution presented the following
evidence regarding events that preceded the crimes.
The Eubanks marriage had appeared stable until
defendant experienced job-related injuries that required surgery. She
then began to abuse prescription medications and alcohol, she lost her
job, and she and her husband Eric began a recurring pattern of
separation and reconciliation. The police found more than 50 bottles
of prescription medications in defendant's house after the murders.
In the fall of 1997,3 the Eubankses were going
through a divorce, and Eric moved out of their South Twin Oaks home
about one month before the murders. Defendant and Rene Dodson had had
an intimate relationship on and off since they met in 1994. Dodson
moved into defendant's house after Eric moved out. From October 13 to
19, Dodson left defendant's house, and Eric moved back in. A short
time later, Eric moved out, and Dodson returned.
About 10 days before the murders, defendant
purchased replacement dead bolt locks for her house. Appearing angry,
she told a clerk who knew Dodson that he had broken the lock on her
door, and she was buying new ones so he
[ 53 Cal.4th 118 ]
could not enter or get "his F'ing stuff." Defendant
told the clerk to warn Dodson that she just purchased bullets at a
nearby store and one "had his name on it." Defendant then asked one of
the little boys with her, "Mommy did buy the bullets, didn't she,
didn't she?" Dodson testified defendant previously had commented that,
if pushed, she would kill her children and herself.
The afternoon of October 26, the day of the
murders, Brandon stayed home to watch his siblings and defendant's
nephew while defendant and Dodson went to a bar to watch football. The
couple ordered a pitcher of beer and soon were joined by another
couple. Defendant did not want the woman to sit with them due to a
confrontation they had had when she had criticized defendant for
talking about Dodson behind his back. Dodson decided he and defendant
should go to a different bar because defendant was upset.
Defendant argued with Dodson when they left,
complaining he had taken the other woman's side. She slapped Dodson a
few times while he was driving; Dodson then decided to drive home.
When defendant realized they were not going to another bar, she
slammed the minivan into its parking gear while they were travelling
30 miles per hour on a freeway off-ramp. Defendant removed the keys
from the ignition, but Dodson eventually was able to retrieve them and
drive home.
Once home, the couple continued to argue in their
bedroom. When Dodson said he wanted to leave and move to Hawaii,
defendant slapped him, took his keys, blocked his exit from the room,
and ripped out the telephones. Eventually, they calmed down and had
sex. Dodson then said he was going to watch television in the living
room; instead, when defendant was in another part of the house, Dodson
ran to a nearby gas station, called the sheriff's department, and
asked that they send a deputy to stand by so he could retrieve his
belongings and truck from defendant's house.
While defendant and Dodson were fighting, Brandon
had gone to a pay telephone and called Kathy Goobs (Kathy), the mother
of his best friend. He asked her to come get him and the other boys
because his brothers were scared and Brandon did not want them exposed
to the fighting. Kathy told Brandon to go home, reassess the
situation, and to call again if he still needed her to pick them up.
A short time later, defendant called Kathy,
"pleading" for Kathy to come take the boys. Kathy testified that she
spoke to defendant, who, though upset and agitated, did not sound
intoxicated. Defendant said she feared Dodson would call the police
and that, if they came, they would take and separate the children.
Kathy agreed to pick up the boys but never left to get them. Kathy
[ 53 Cal.4th 119 ]
had been allowing Eric to stay at her home until he
found a place to live; she decided not to get the boys because she was
concerned defendant no longer would allow Brandon to visit her son if
defendant saw Eric at Kathy's house when defendant came to retrieve
the boys because she would think Kathy was "taking sides."
Deputy Sheriff Daniel Deese picked up Dodson at the
gas station. As they approached defendant's house, defendant was
carrying Dodson's tools away from his vehicle, which had two flat
tires and broken headlights. When Deese told defendant to drop the
tools, she became confrontational and claimed Dodson owed her money
and had raped her. She went inside after Deese threatened to arrest
her. While Dodson was putting his tools in the patrol car, defendant
came outside, yelling, "I've been screwed by men my whole life. I've
been beaten. I've been raped."
As Dodson left with Deese, they saw Eric parked
nearby. Kathy had paged Eric and advised him of the calls from
defendant and Brandon, and Eric had come to check on the children. He
saw the police car and was waiting for it to drive away because
defendant had a restraining order against him. After learning that
defendant was throwing Dodson out, Eric agreed to take Dodson to a bar
in Escondido. They loaded the tools into Eric's truck and left.
Back inside her house, defendant telephoned
Brandon's grandfather and then called Armstrong in Texas. She told
Armstrong the police had been there investigating the incident with
her boyfriend in which she had slashed his tires, broken his
windshields, and put sugar in his gas tank, and that she feared child
protective services would come to take the children. She said she
needed Armstrong to tell Brandon to "stick by me on this one, even if
it means lying."
When Eric arrived at Kathy's home after 6:00 p.m.,
he had her listen to a voice mail he just had received in which
defendant simply said, "Say goodbye." At 6:30 p.m., Eric called the
sheriff's office and asked to speak with Deputy Deese; about 7:00
p.m., the two connected. When Eric mentioned the message and his
concern that defendant had a handgun at the house, Deese instructed
him to request a welfare check of defendant's residence.
The defense presented evidence through the
testimony of Dr. Clark Smith, who was board certified in addiction and
forensic psychiatry, that the fact defendant received infusions of
saline and other fluids while in the ambulance would have affected the
alcohol content of the blood drawn from her at the hospital. Although
that blood sample revealed a 0.07 percent blood-alcohol content and a
toxicologist had calculated that defendant's blood-alcohol
[ 53 Cal.4th 120 ]
content at the time of the murders was 0.09
percent, Dr. Smith testified defendant's blood-alcohol content at the
time of the murders would have been closer to 0.19 percent. He
testified the infusions given to defendant similarly would have
affected the level of Valium found in her blood. He opined that the
alcohol and drug levels in defendant's blood at the time of the
shooting would have produced a "very significant effect" on her brain
and would have affected her emotions, perceptions, judgment and other
"higher brain functions."
Dr. Vina Spiehler, the toxicologist who had
estimated that defendant's blood-alcohol content was 0.09 percent at
the time of the murders, was called as a rebuttal expert witness to
refute Dr. Clark's conclusions. Dr. Spiehler testified she had based
her calculations on formulae published in recognized literature, and
that she formed her opinion that liquid intravenous infusions into the
body do not affect blood-alcohol or drug concentrations in the manner
claimed by Dr. Smith based on literature on dilutions and her personal
experience while working at a coroner's office.
B. Penalty Phase
1. Prosecution Evidence
Crime scene reconstructionist Rod Englert (Englert)
testified as an expert that defendant first shot Brandon twice in the
living room, next shot Austin once, and then fired twice in the
direction of Matthew but missed. Englert testified defendant reloaded
her revolver at that point and then shot Brigham twice, fired a shot
between Brigham and Matthew, and then shot Matthew once.
Larry Shoebridge testified that an old girlfriend
contacted him in 1989 while he and defendant were romantically
involved and living together. Defendant responded by putting a gun to
Shoebridge's head and saying she "`could do whatever she wanted'" and
she "`could'a killed'" him. Shoebridge decided to leave. Fearing
defendant's reaction to his decision, he moved out after she had gone
to work. After defendant discovered where Shoebridge was living, she
drove up to his house. Defendant screamed at Shoebridge and tried to
attack his female friend. Defendant eventually drove off, screeching
her tires.
Brandon's relatives and a friend testified about
the impact Brandon's death had on their lives. The paternal
grandmother mentioned two incidents in which she believed defendant
had abused Brandon. Teachers and coaches testified about the impact
the boys' deaths had on them.
Linda Smith, defendant's sister, testified
regarding a telephone call she received from defendant in which
defendant said she once had rubbed her
[ 53 Cal.4th 121 ]
nephew's face in a dirty diaper after she learned
he had hidden the diaper behind his bed. When Smith became angry with
her, defendant changed her story and said she only had made her nephew
smell the diaper as punishment.
2. Defense Evidence
The defense presented evidence that defendant's
mother and stepfather were alcoholics who fought constantly and had
affairs. Defendant's mother abused her by slapping her and dragging
her by her hair. Defendant's mother died in a house fire when
defendant was eight years old. Defendant then was rotated among
relatives, including an aunt who abused her and a relative who managed
a hotel and had defendant and her siblings clean its rooms. Defendant
sometimes lived with her stepfather in a trailer, where he would get
drunk and urinate on himself.
The defense presented testimony from relatives and
defendant's coworkers that defendant's "number one concern" was her
children, that she was proud of them and "very caring," that she was
an excellent employee, and that she did well in the courses she took
to become a medical office insurance biller after becoming disabled
from a job-related back injury. Relatives and friends who testified
that defendant was "tortured" during her childhood and that she was a
loving parent asked the jury not to impose the death penalty. The
children's former pediatrician testified defendant regularly brought
her sons to him for checkups and medical problems.
Eric testified about his marriage and family life
with defendant. He said he still had some "love feelings" for her.
A correctional consultant testified defendant would
not be a "future danger" if sentenced to life without the possibility
of parole.
II. PRETRIAL ISSUES
A. Pretrial Jury Screening Issues
1. Introduction
The jury commissioner prescreened prospective
jurors for eligibility to serve on defendant's case based on whether
they met the basic qualifications for jury service set forth in Code
of Civil Procedure section 203,4 whether
[ 53 Cal.4th 122 ]
they were available to sit on a case that could
last approximately 10 weeks, and whether they were entitled to be
excused based on specific hardship grounds agreed upon during meetings
between the trial court and the jury commissioner. Defendant sets
forth four challenges to the preliminary jury screening.
Defendant first contends the jury commissioner
agreed to a process to prequalify jurors who would be available for a
10-week trial but ignored that plan and "exceeded her official
function" by using her "discretion to excuse potential jurors,"
"effectively excus[ing] anyone who did not wish to serve," and
"engag[ing] in the kind of jury selection that is to be conducted by
the trial court in the presence of all parties." Defendant claims the
commissioner's "wholesale" excusal of prospective jurors resulted in a
"skewed jury pool"5 in violation of her rights to a jury drawn from a
representative cross-section of the community, to have counsel, to be
present at critical stages of her trial, to a public trial, and to the
heightened reliability in proceedings governing a capital case under
the Sixth, Eighth and Fourteenth Amendments to the United States
Constitution, and article I, sections 7 and 15 of the California
Constitution.
Second, defendant contends the summons mailed to
prospective jurors improperly asked recipients to identify their
"native language" and "effectively informed jurors whose primary
language was not English, and who may have had some difficulty with
the English language, that [they] could excuse themselves from jury
service" and, as a result, "many people whose command of English was
more than adequate were given the opportunity to avoid jury service."
Defendant argues this impropriety "dissuaded Hispanics from appearing"
and caused their underrepresentation "in the venire," which violated
her right to a jury drawn from a representative cross-section of the
community under the Sixth Amendment to the United States Constitution
and article I, section 16 of the California Constitution.
[ 53 Cal.4th 123 ]
Third, defendant contends that permitting
"self-excusal for those with imperfect English" also violated her due
process and equal protection rights, is unconstitutionally vague, and,
in her case, was impermissibly discriminatory because Hispanic
citizens "reacted to the factor by not responding at all," thereby
creating an "imbalance" between eligible Hispanic voters and those who
answered the summons.
Defendant's fourth contention is that the failure
of a court reporter to record the trial court's discussions with the
jury commissioner or record the hardship screening itself violated her
rights to due process and a jury trial "under the Fifth, Sixth, Eighth
and Fourteenth Amendments, as well as the applicable statutes."
In response, the People contend defendant forfeited
these four issues regarding the preliminary jury screening by failing
to object in the trial court to the challenged procedures. For the
reasons stated below, we conclude the People's position on forfeiture
generally has merit.
2. The Facts Regarding the Challenged
Prescreening
The trial court mailed out 7,000 summonses to
prospective jurors for defendant's pending trial. On June 9, 1999, 700
people answered those summonses and appeared before the jury
commissioner. During the screening that ensued that day, the
commissioner excused 481 individuals from jury duty. The trial court
determined that it needed a larger panel and instructed the
commissioner to qualify more prospective jurors from regular panels
that would be assembled at the courthouse on Mondays and Tuesdays
until July 21, 1999.6 On that date, 29 individuals who had previously
been qualified as prospective jurors on June 9 failed to return to the
jury facility. The remaining jury panel was sworn in, and those jurors
filled out questionnaires. On July 27, 1999, the trial court commenced
voir dire of the jury panel.
The defense was aware San Diego County utilizes
jury commissioners to conduct prescreening of potential jurors for
death penalty cases. In October 1998, defendant made a motion for a
"fair and impartial trial" in which she asked the trial court to
provide "guidance" by advising the jury commissioner to exclude (1)
individuals who either "request service on a death penalty case" or
seek to "avoid service on a death penalty case," and (2) potential
jurors who had been excused from another case during jury selection or
had recently served on another trial. In December 1998, defense
counsel explained to the trial court that, as to the categories of
jurors included in its
[ 53 Cal.4th 124 ]
motion to ensure a fair and impartial trial, it was
requesting that "rather than go through the voir dire process and weed
those jurors out, to just deal with them up front and exclude them
from the panel" during the preliminary screening that would be
implemented by the jury commissioner on June 9, 1999. Defendant did
not object to the fact that the jury commissioner would make initial
decisions regarding exclusion of potential jurors; instead, she sought
to use that procedure for her own benefit. During the hearing on her
motion, defendant neither asked to be present during the jury
commissioner's preliminary screening, nor for those proceedings or any
conversations between the trial court and the jury commissioner to be
recorded.
On December 14, 1998, the prosecutor asked the
trial court to deny the motion because "Code of Civil Procedure
section 203 sets forth those people [who] are ineligible to sit as
jurors . . . and the request by the defense is not covered by that
section." In denying the motion, the trial court agreed that the
exclusions sought by defendant were not covered by the cited "rules of
procedure." The trial court then explained that it would instruct the
jury commissioner not to provide prospective jurors with information
regarding "what case" they would be "sitting on" or whether the case
was "civil or criminal." It was apparent from the court's ruling that
the jury prescreening procedure, including the summons notices and the
jury commissioner's prescreening, would eliminate individuals who fit
within the exceptions to juror eligibility set forth in section 203 of
the Code of Civil Procedure, including the exception for those "who
are not possessed of sufficient knowledge of the English language."
(Code Civ. Proc., § 203, subd. (a)(6).) Nevertheless, at no time
during this hearing or thereafter did defendant object in the trial
court to any language in the summonses sent to prospective jurors,
including the sentence "My native language is ________," which was to
be filled out if the person summoned had checked the box indicating he
or she was not qualified to serve as a juror because "I DO NOT HAVE
SUFFICIENT KNOWLEDGE OF THE ENGLISH LANGUAGE to act as a juror."
Similarly, defendant did not object to the role of the jury
commissioner in eliminating those not eligible for jury service under
Code of Civil Procedure section 203. Furthermore, at the hearing on
the motion, defendant did not request that the jury commissioner's
prescreening with prospective jurors or the commissioner's
conversations with the trial court be recorded.
On February 9, 1999, in the course of discussing
the proposed jury questionnaire, the trial court noted that it would
need to send out juror "notices . . . in the thousands to get enough
folks to appear for the jury duty" and that those notices would need
to include an "estimate of time" that the trial would take.7 On March
1, during a hearing on defendant's motion for a continuance, the trial
court commented that it would be "summoning 7,000
[ 53 Cal.4th 125 ]
jurors" in anticipation of defendant's case. Later
that day, while discussing the mechanics of jury selection, the trial
court said it was "hoping to have at least 500 fill out the
questionnaire." On May 6, the court indicated that the 7,000 summonses
had been sent in April and that it was anticipating eventually working
with 500 questionnaires. Over the months during which jury screening
and selection was discussed, defendant never questioned why only 500
prospective jurors would be filling out questionnaires if 7,000 had
been sent summonses.
On May 26, the trial court mentioned it was
conducting meetings with the jury commissioner regarding the jury
screening in defendant's case. Defendant raised no objection at that
time; she did not request that those meetings be recorded or that she
attend them. Thereafter, the trial court explained that the jury
commissioner would screen prospective jurors regarding whether they
were able to serve on a lengthy trial based on the following criteria:
"financial hardship," "prepaid vacation; medical appointments that
cannot be changed, or full-time school enrollment." Defendant did not
request more detailed information regarding the proposed "time
qualification" or hardship process, although the trial court offered
to show counsel such information "if you're interested at all."
Similarly, at no point did defendant object to the portion of the
summons notices sent to potential prospective jurors that included a
"REQUEST FOR EXCUSE SECTION" that listed claimed hardships.
At that same May 26 hearing, defendant, through
counsel, did insist that she wanted to be present when the information
was read to the prospective jurors and when those prospective jurors
would be told that they would need to fill out a lengthy
questionnaire. At that time, defendant did not ask to be present at
any of the other prescreening procedures, including those that
involved the jury commissioner's preliminary screening of potential
jurors.
Defendant had surgery on May 29, and was not
present at the next hearing on June 2. The trial court suggested
continuing the trial to July to give defendant time to recuperate. The
court then suggested a complicated plan to preserve some of the
prospective jurors from the summonses sent in April and to pick up
additional prospective jurors "on Mondays and Tuesdays when they have
their normal jury pool." The court explained that its plan would allow
the jury commissioner to start qualifying people for the July trial
date and would save the expense of sending out new summons notices.
The trial court then commented that "the beauty" of
its proposal was that "by the end of Wednesday," there would be "a
nice random list of time qualified jurors." Based on his
misunderstanding of the proposal, William Rafael, one of defendant's
attorneys, interjected, "I know the court noted the
[ 53 Cal.4th 126 ]
beauty of it. The ugly of it is that our client
won't be present. That's a problem in a capital case." The following
exchange ensued: "THE COURT: [¶] Present for what? [¶] MR. RAFAEL: For
the time qualifying of the jury. Last week the court spoke when we
talked about coming in on the 9th, and the conversation dealt with
having our client, Mr. Garcia [(defendant's other attorney)], and Ms.
Regan [(the prosecutor)] present in the jury assembly room—[¶] THE
COURT: Right. [¶] MR. RAFAEL:—so that introductions can be made."
(Italics added.)
The trial court then clarified that the previously
requested introductions were scheduled to occur "before we do the
questionnaire, though. So, see, [defendant] would be present. It would
be exactly like we were going to do it." Acknowledging his prior
confusion, Rafael withdrew his objection to defendant's absence: "MR.
RAFAEL: So we're just going to do the time qualifying next week? [¶]
THE COURT: . . . What we were going to do next week is they time
qualify. . . . Then we would have all come down, introduced ourselves,
read the information and give them the juror questionnaires. I
anticipate [defendant] would be present whatever date we're going to
start this at. We do it the exact same way we [were] going to do it. .
. . And we're all down there, then, with your client, and we do the
questionnaires. [¶] MR. RAFAEL: Okay. So I understand the step of
introduction is not going to take place [during the prequalifying of
the jury], the questionnaires will not be distributed at that point?
[¶] THE COURT: Right."
As promised, defendant and her counsel were present
in the jury assembly room when the clerk swore the venire on July 21.
The trial court introduced defendant and all counsel, read the
information, and explained the process of filling out the
questionnaire.
3. Forfeiture
As noted, above, the People contend that defendant
waived her right to raise preliminary jury screening procedural issues
by failing to assert them in the trial court. We agree.
A defendant generally "is barred from raising on
appeal defects in the [preliminary jury screening] procedure in which
[she] acquiesced." (People v. Ervin (2000) 22 Cal.4th 48, 73 [91
Cal.Rptr.2d 623, 990 P.2d 506].) "[I]mportant policies mandate that
criminal convictions not be overturned on the basis of irregularities
in jury selection to which the defendant did not object or in which he
has acquiesced. [Citations.]" (People v. Visciotti (1992) 2 Cal.4th 1,
38 [5 Cal.Rptr.2d 495, 825 P.2d 388].)
Here, defendant bases her claim that the jury pool
screening procedural issues were not forfeited solely on Rafael's
statement "informing the trial
[ 53 Cal.4th 127 ]
court of [defendant's] right to be present for the
juror hardship screening." However, that claim is not supported by the
record because, as discussed above, Rafael abandoned his statement
objecting to the proposal when the court explained that defendant
would be present before prospective jurors filled out their
questionnaires, as they had agreed. Defendant argues that the
"discussion then shifted" to a different "issue of whether the parties
would be present later . . . before questionnaires were distributed."
But the discussion never shifted; it always involved the trial court's
explanation that it was honoring defendant's request to be present
when the information would be read to prospective jurors.
Defendant did not object to the language in the
summons notices8 or to the composition of the venire or jury panel.
She did not object when she learned the jury commissioner would time
qualify prospective jurors. She also did not object when it became
apparent that the prescreening would be used to eliminate persons who
did not qualify to become prospective jurors under the exceptions to
eligibility set forth in Code of Civil Procedure section 203.
Similarly, defendant did not object when she
learned the trial court expected the jury commissioner to excuse
potential jurors based on hardship grounds such as childcare concerns
or nonvital medical issues. Defendant did not even request to look at
the detailed information regarding the hardship excuses the jury
commissioner would consider despite the trial court's offer to share
that information with the defense. Because defendant did not accept
the trial court's offer to review the detailed information regarding
the hardship excuses the jury commissioner would consider, she
forfeited any claim that she was not informed the commissioner would
prescreen prospective jurors for reasons other than those specified on
the record.
Defendant did not object to, or question, the
disparity between the number of summonses sent and the number of
prospective jurors expected to appear and fill out questionnaires. She
also did not object that additional venire members were added after
the initial screening by the jury commissioner. Defendant did not
object that prescreening violated her equal protection rights because
it excluded a disproportionate number of Hispanics and treated those
with language difficulty differently from those with sight or hearing
impairments. Defendant also did not object that the screening was
vague, and thus violated due process, because there was no standard
for determining language proficiency and because the standard applied,
namely Code of Civil Procedure section 203, subdivision (a)(6), was
unconstitutionally vague on its face and as applied.
[ 53 Cal.4th 128 ]
Despite defendant's claim to the contrary,
defendant did not ask to be present during the jury commissioner's
prescreening. She also did not make a motion to strike the jury venire
or panel in the trial court.
Defendant never made a contemporaneous request for
the jury commissioner to maintain records of the screening, and she
never asked for the jury commissioner's conversations with the trial
court or the preliminary screening to be recorded.
At the time of trial, subdivision (a)(1) of section
190.9 provided, in pertinent part, that "[i]n any case in which a
death sentence may be imposed, all proceedings conducted in the
municipal and superior courts, including all conferences and
proceedings, whether in open court, in conference in the courtroom, or
in chambers, shall be conducted on the record with a court reporter
present." (Stats. 1996, ch. 1086, § 4, p. 7657.) Nothing in the record
suggests that the trial court's conversations with the jury
commissioner took place in the courtroom or in chambers, and, absent
an objection to the trial court meeting informally with the jury
commissioner, defendant has forfeited her claim that the lack of a
record of its discussions with the jury commissioner deprived her of
her constitutional rights to "due process and a jury trial as well as
other statutory rights."
(1) While subdivision (a) of section 207 of the
Code of Civil Procedure provides that "[t]he jury commissioner shall
maintain records regarding selection, qualification, and assignment of
prospective jurors," that statutory language does not support
defendant's claim that "the time-qualification process by the
commissioner should have been reported" by a court reporter. In People
v. Basuta (2001) 94 Cal.App.4th 370, 396 [114 Cal.Rptr.2d 285], the
court held that "where there is a request, the trial court must
require the jury commissioner to maintain a record of the hardship
screening procedure." No such request was made here. The jury
commissioner maintained some records, which are contained in five
volumes of the clerk's transcript. Here, as in People v. Mickey (1991)
54 Cal.3d 612, 667 [286 Cal.Rptr. 801, 818 P.2d 84], "defendant finds
the state of the record unsatisfactory. But having made no relevant
objection below, [she] may not be heard to complain in that regard."
Defendant has forfeited her claim that the jury commissioner's failure
to maintain a more complete record regarding selection, qualification,
and assignment of prospective jurors deprived her of her
constitutional rights to due process and a jury trial. In any event,
we will not overturn defendant's conviction on the basis of these
alleged irregularities in the jury selection process "to which [she]
did not object or in which [she] has acquiesced. [Citations.]" (People
v. Visciotti, supra, 2 Cal.4th at p. 38.)
The jury commissioner was entitled to "inquire as
to the qualifications of persons on the master list or source list who
are or may be summoned for
[ 53 Cal.4th 129 ]
jury service." (Code Civ. Proc., § 196, subd. (a).)
The jury commissioner had "authority to establish policies and
procedures necessary to fulfill [the] responsibility" of "managing the
jury system . . . in conformance with the purpose and scope of" the
Trial Jury Selection and Management Act set forth in Code of Civil
Procedure section 190 et seq. (Code Civ. Proc., § 195, subd. (c).) The
Trial Jury Selection and Management Act includes Code of Civil
Procedure section 203, regarding persons qualified to be trial jurors
and exceptions to qualification. "`Excused jurors' are those
prospective jurors who are excused from service by the jury
commissioner for valid reasons based on statute, state or local court
rules, and policies." (Code Civ. Proc., § 194, subd. (d).)
Here, in light of the information defendant
received during the multiple hearings covering the issuance of
summonses and the proposed duties of the jury commissioner, defendant
was made aware that the jury commissioner would be involved in
ensuring that prospective jurors were time qualified to sit through a
10-week jury trial, were eligible for jury trial service within the
meaning of Code of Civil Procedure section 203, and did not have a
valid reason to be excused from jury service based on any hardship
agreed upon by the trial court and jury commissioner. Nothing in the
record supports defendant's claim that the jury commissioner exceeded
her official function as described by the trial court in defendant's
presence or her claim that procedures the jury commissioner followed
during the preliminary jury screening were unanticipated by defendant
or the trial court.
We conclude defendant has forfeited all four of the
preliminary jury screening procedural issues she raises in this court
by having failed to object on those grounds in the trial court.
4. Merit of Defendant's Jury Selection Issues
Defendant cannot prove the merit of her challenges
to the preliminary jury screening procedure. On the present record,
defendant cannot show that she was improperly denied a jury drawn from
a representative cross-section of the community,9 that the jury
commissioner excused jurors for unauthorized
[ 53 Cal.4th 130 ]
reasons,10 that she was denied counsel or the right
to be present during a critical stage of the proceedings, that she was
denied the right to a public trial, or that the challenged language in
the summons notices impermissibly altered the composition of the
venire.
However, on the present record, we are able to
address defendant's claim that the provision in Code of Civil
Procedure section 203 that permits the excusal of prospective jurors
with insufficient knowledge of the English language is
"unconstitutionally vague" and violates both the "due process and
equal protection principles as guaranteed by the Fourteenth
Amendment." We find this third challenge to the pretrial jury
screening lacking in merit.
(2) As discussed above, persons cannot serve as
prospective jurors in California unless they are "possessed of
sufficient knowledge of the English language." (Code Civ. Proc., §
203, subd. (a)(6).) We conclude the challenged phrase is not
unconstitutionally vague. Our state trials are conducted entirely in
English, with translation into English provided only for those
defendants and witnesses who do not speak English. There can be no
doubt that, in context of deciding who is eligible and qualified to be
a prospective juror within the meaning of Code of Civil Procedure
section 203, subdivision (a)(6), the phrase "possessed of sufficient
knowledge of the English language" means sufficient knowledge of the
English language to understand the legal proceedings and the evidence
upon which a juror would base his or her decision in any given case.
Defendant's speculative claim to the contrary, there is nothing in the
record that suggests that individuals who received a jury summons in
defendant's case improperly determined that they possessed
insufficient knowledge of the English language to sit as jurors in a
trial conducted in English.
(3) We find meritless defendant's claim that
section 203, subdivision (a)(6) of the Code of Civil Procedure
violated her right to equal
[ 53 Cal.4th 131 ]
protection by excluding Hispanics from the jury
selection process. Limiting jury service to those who are "possessed
of sufficient knowledge of the English language" (Code Civ. Proc., §
203, subd. (a)(6)) is a "permissible racially neutral selection
criteri[on]" (Alexander v. Louisiana (1972) 405 U.S. 625, 632 [31
L.Ed.2d 536, 92 S.Ct. 1221]) that serves "a significant state
interest" (Duren v. Missouri (1979) 439 U.S. 357, 367 [58 L.Ed.2d 579,
99 S.Ct. 664]) in ensuring the uniform and efficient administration of
the justice system and avoiding possible translation distortions.
(See, e.g., U.S. v. Benmuhar (1st Cir. 1981) 658 F.2d 14, 18-20
[English proficiency requirement for jury qualification advances a
significant state interest in a national language].)
For the same reason, we find meritless defendant's
claim the challenged language requirement violates defendant's right
to equal protection of the law because courts will provide
"accommodations for the hearing [or sight] impaired" but not for
"jurors who need assistance with English." The People correctly argue
that the "requirement of knowing the English language is a neutral
factor." (See, e.g., Alexander v. Louisiana, supra, 405 U.S. at pp.
631-632 [permissible racially neutral selection criterion does not
violate equal protection guarantees].)
Defendant additionally claims that "publication to
potential jurors of this vague standard reasonably explains the low
Hispanic turnout because it provided an excuse for Hispanic people to
ignore the summons." Defendant has presented no evidence to support
this claim, and "[e]rrant speculation" of impropriety does not meet
defendant's burden of proof on this issue. (Ramos, supra, 15 Cal.4th
at p. 1157.)
In summary, we conclude defendant is not entitled
to a reversal of the guilt or penalty verdict in her case based on her
preliminary jury screening claims.
B. Constitutionality of the Searches of
Defendant's Residence
1. Introduction
Defendant contends evidence gathered from her home
pursuant to two search warrants was illegally obtained during
unreasonable searches in violation of the Fourth Amendment to the
United States Constitution. Specifically, she claims the warrants were
overbroad because they unnecessarily authorized a search for
"`dominion and control' evidence." In a concomitant argument, she
claims the affiant for the warrants recklessly omitted material
evidence, namely, that sheriff's deputies already knew defendant lived
at the residence. We conclude defendant's challenges lack merit.
[ 53 Cal.4th 132 ]
2. Background
After deputy sheriffs found three dead bodies and
two wounded individuals inside the home at 266 South Twin Oaks Valley
Road in San Marcos (266 South Twin Oaks) on the night of the murders,
they contacted homicide detectives. In response, Detective Rawlins
arrived at the scene and was briefed on the situation. Then Rawlins,
along with a deputy district attorney, telephoned a magistrate to
request a warrant to search the residence immediately "for the
possibility of collecting evidence and finding the perpetrator of the
crime." The magistrate issued a search warrant that authorized, in
relevant part, a search for "documents and effects which tend to show
possession, dominion and control over such premises, including . . .
anything bearing a person's name, . . . or other form of
identification. . . ." During the search conducted pursuant to this
warrant, Rawlins's team seized, as relevant here, handwritten notes
found on the floor around the bed where defendant had shot herself, a
pen, a Rolodex, a phone list, a telephone and answering machine, and
miscellaneous papers.
Three days later, Detective Rawlins sought a second
search warrant for the same residence to search for, among other
items, weapons, ammunition, cartridge casings, bullets, telephone
bills and records, medical records, medications and prescriptions, a
computer and its hard drives, and additional items "tending to show
dominion and control." In support of this warrant, the detective
stated that he had accounted for nine projectiles but only six empty
casings, that he had received information that defendant was pregnant,
and that, on the night of the murders, defendant had mentioned her
fear that child protective services would come to interview her
children. In response, the magistrate issued a second search warrant
that authorized, in relevant part, a search for "ammunition, cartridge
casings, bullets" and "items which tend to show possession, dominion
and control, including handwritings, . . . photographs,. . . answering
machines, audiotapes, pagers, or any means of identification bearing a
person's name, number or photograph. . . ." During the search
conducted under the second warrant, Rawlins and his team seized, as
relevant here, photos and photo albums, videotapes, books, a calendar,
a notebook, prescription bottles, a word processor, and other papers.
Defendant filed a motion to quash and traverse both
warrants and suppress the seized evidence on grounds that the language
seeking evidence of dominion and control of the residence was overly
broad, that the affidavits in support of the warrants failed to
establish probable cause to seize dominion and control evidence
because they omitted the material fact that members of the San Diego
County Sheriff's Department already knew defendant lived on South Twin
Oaks.
[ 53 Cal.4th 133 ]
In denying defendant's motion, the trial court
ruled information that members of the San Diego County Sheriff's
Department had had prior contact with defendant and knew she lived in
the house on South Twin Oaks was not material because the officers
needed to investigate who else had access to the residence, if only to
exclude them as suspects. It next determined there was no overbreadth
in the language authorizing the searches for evidence of dominion and
control because the officers needed to determine who had access to the
residence at the time of the murders. The trial court also found that,
even if the clauses seeking dominion and control evidence were
overbroad and had to be redacted, the remaining proper portions of the
warrants, such as the search for ammunition, would authorize a search
of the entire residence. The trial court determined the magistrate
properly authorized a full search of the residence, but that, if the
warrants were declared defective, the officers acted in good faith in
executing them.
We defer to the trial court's express and implied
factual findings if supported by substantial evidence, but we
independently determine the legality of the search under the Fourth
Amendment. (People v. Lenart (2004) 32 Cal.4th 1107, 1119 [12
Cal.Rptr.3d 592, 88 P.3d 498].) Because courts accord a preference to
searches and seizures conducted pursuant to a search warrant, "in a
doubtful or marginal case a search under a warrant may be sustainable
where without one it would fall." (United States v. Ventresca (1965)
380 U.S. 102, 106 [13 L.Ed.2d 684, 85 S.Ct. 741].)
3. Overbreadth
Although defendant acknowledges the deputies'
initial warrantless entry into her home "was appropriate under the
`imminent danger-to-person' exigent circumstance exception," she
contends that the portion of the warrants authorizing the subsequent
searches for, and seizure of, items related to "dominion and control"
was "overly broad and non-particular so as to render that aspect of
the warrant invalid." We disagree.
(4) The warrant clause of the Fourth Amendment
provides that no warrant may issue except those "particularly
describing the place to be searched, and the persons or things to be
seized." (U.S. Const., 4th Amend.; see Walter v. United States (1980)
447 U.S. 649, 657, fn. 8 [65 L.Ed.2d 410, 100 S.Ct. 2395]; see also
Cal. Const., art. I, § 13; Pen. Code, § 1525.) Whether a warrant's
description of property to be seized is sufficiently particular is a
question of law subject to independent review by an appellate court.
(Thompson v. Superior Court (1977) 70 Cal.App.3d 101, 108 [138
Cal.Rptr. 603].) In considering whether a warrant is sufficiently
particular, courts consider the purpose of the warrant, the nature of
the items sought, and "the total circumstances surrounding the case."
(People v. Rogers (1986) 187 Cal.App.3d 1001,
[ 53 Cal.4th 134 ]
1008 [232 Cal.Rptr. 294] (Rogers).) A warrant that
permits a search broad in scope may be appropriate under some
circumstances, and the warrant's language must be read in context and
with common sense. (Andresen v. Maryland (1976) 427 U.S. 463, 480-481
[49 L.Ed.2d 627, 96 S.Ct. 2737].) For example, in Andresen, the
warrant described documents related to a fraudulent real estate
transaction and then added the phrase "`together with other fruits,
instrumentalities and evidence of crime at this [time] unknown.'" (Id.
at p. 479.) The Supreme Court found the warrant, including this
phrase, lawful because, in context, it was clear the phrase referred
to the crime police were investigating and permitted officers to seize
evidence of other real estate transactions made with false pretenses
relevant to the defendant's methods and motives in the charged crime.
(Id. at pp. 480-481.)
In Mincey v. Arizona (1978) 437 U.S. 385, 395 [57
L.Ed.2d 290, 98 S.Ct. 2408], the Supreme Court noted that a search "of
substantial scope" of a home in which there had been a recent murder
could be constitutional after officers obtained a search warrant from
a neutral magistrate. The wide-ranging four-day search of the
defendant's home in that case was held unconstitutional because the
search was conducted without a warrant. (Ibid.)
Here, in light of the information available to the
affiant sheriff's detective at the time he sought the first warrant,
he could not have realistically described the personal property sought
to establish dominion and control with any more particularity. (See,
e.g., U.S. v. Spilotro (9th Cir. 1986) 800 F.2d 959, 964; U.S. v.
Cardwell (9th Cir. 1982) 680 F.2d 75, 78.) Officers knew that multiple
murders recently had occurred inside the house, but they had little
information as to how they were carried out or why. While it appeared
that defendant had committed the crimes, her responsibility had to be
ascertained with more certainty, and any others who had access to the
property or dominion and control of it needed to be considered or
eliminated as suspects.
In People v. Nicolaus (1991) 54 Cal.3d 551 [286
Cal.Rptr. 628, 817 P.2d 893] (Nicolaus), police obtained a search
warrant to search the defendant's apartment for "letters, papers and
bills tending to show who occupied the apartment" (id. at p. 575),
after they learned the defendant's address from a dying woman who said
the defendant had shot her. During the search of the apartment, an
officer opened a folder on the defendant's desk and found documents in
the defendant's handwriting that described his plans to harm the
victim and revealed his motives and state of mind before the murder.
In finding the search into the folder for indicia of occupancy
constitutional, we rejected the defendant's contention that the search
authorized by the above quoted phrase was not "sufficiently
particularized." (Ibid.) We additionally noted that, "[i]n any event,
the officers acted entirely properly in seeking
[ 53 Cal.4th 135 ]
independent evidence to establish defendant's
occupancy of the apartment, and defendant's control over any evidence
seized therefrom, for presentation in court." (Ibid.)
Here, as in People v. Kraft (2000) 23 Cal.4th 978,
1043 [99 Cal.Rptr.2d 1, 5 P.3d 68] (Kraft), "the breadth of the
warrant . . . was commensurate with the scope of the investigation."
We therefore conclude the language in the challenged warrants that
authorized a search for items that tended to show who had "dominion
and control" was sufficiently particularized under the circumstances
and was justified by the fact that multiple murders recently had been
committed inside the residence in question. (People v. Alcala (1992) 4
Cal.4th 742, 799 [15 Cal.Rptr.2d 432, 842 P.2d 1192]; Rogers, supra,
187 Cal.App.3d at pp. 1007-1009; Nicolaus, supra, 54 Cal.3d at pp.
574-575.)
4. Seizure of Dominion and Control Evidence.
Defendant next faults the investigating officers
for reading and seizing the letters lying about her bed. She claims
those letters were not relevant to dominion and control, that they
were "merely [her] personal writings," and the officers had "no
authorization to seize them under the guise of `dominion and
control.'" However, as officers searching defendant's residence for
items tending to show dominion and control were entitled to search
through trash cans and to look at any paper items inside the home,
they were also entitled to seize defendant's letters, though not
listed in the warrant, because they were in plain view and their
incriminating character was immediately apparent. (Horton v.
California (1990) 496 U.S. 128, 136-137 [110 L.Ed.2d 112, 110 S.Ct.
2301]; Kraft, supra, 23 Cal.4th at p. 1043; Nicolaus, supra, 54 Cal.3d
at p. 575.) Defendant's reliance on Arizona v. Hicks (1987) 480 U.S.
321 [94 L.Ed.2d 347, 107 S.Ct. 1149], is misplaced. In that case,
investigating officers engaged in conduct unrelated to the objectives
of the authorized intrusion to search for a shooter and for weapons
when they moved stereo equipment and obtained its serial numbers. (Id.
at pp. 324-326.) Here, by contrast, the officers were engaged in an
authorized search when they came upon the immediately apparent
incriminating letters.
5. Factual Omissions in the Search Warrants
Defendant next contends the warrants should have
been traversed because the affidavit for the first warrant omitted
"relevant facts regarding the extensive prior contacts between the
sheriff's department and [defendant], including the call to which
Deputy Deese had responded earlier that day," and the affidavit for
the second warrant additionally "omitted relevant information about
the prior search conducted pursuant to the first warrant and the
extensive history of prior contacts between [defendant] and the
sheriff's department."
[ 53 Cal.4th 136 ]
(5) A defendant can challenge a search warrant by
showing that the affiant deliberately or recklessly omitted material
facts that negate probable cause when added to the affidavit. (Franks
v. Delaware (1978) 438 U.S. 154, 171-172 [57 L.Ed.2d 667, 98 S.Ct.
2674]; People v. Gibson (2001) 90 Cal.App.4th 371, 381-382 [108
Cal.Rptr.2d 809].) "A defendant who challenges a search warrant based
upon an affidavit containing omissions bears the burden of showing
that the omissions were material to the determination of probable
cause. [Citation.] `Pursuant to [California Constitution, article I,]
section 28[, subdivision] (d), materiality is evaluated by the test of
Illinois v. Gates (1983) 462 U.S. 213 [76 L.Ed.2d 527, 103 S.Ct.
2317], which looks to the totality of the circumstances in determining
whether a warrant affidavit establishes good cause for a search.
[Citation.]' [Citation.]" (People v. Bradford (1997) 15 Cal.4th 1229,
1297 [65 Cal.Rptr.2d 145, 939 P.2d 259].)
The trial court concluded the omitted facts "would
not have had any effect on the issuance of either warrant." We agree
with the trial court that the omitted facts were not material because
there is no "substantial possibility they would have altered a
reasonable magistrate's probable cause determination," and their
omission did not "make the affidavit[s] substantially misleading."
(People v. Kurland (1980) 28 Cal.3d 376, 385 [168 Cal.Rptr. 667, 618
P.2d 213].) As the trial court properly determined, even if the
affidavits were tested by adding the omitted information, the
magistrate still would have issued both warrants to search for items
tending to show dominion and control, if only to rule out other
suspects. Here, as in People v. Bradford, supra, 15 Cal.4th 1229, the
magistrate "did not err in finding that, considered as amended to
include the above described information, the affidavit[s] established
probable cause." (Id. at p. 1299; see also People v. Huston (1989) 210
Cal.App.3d 192, 219-220 [258 Cal.Rptr. 393].)11
We conclude the trial court properly denied
defendant's motion to quash the two warrants and suppress the items
located during the searches authorized by them.
[ 53 Cal.4th 137 ]
III. GUILT PHASE ISSUE
Admissibility of Rebuttal Expert Testimony
Defendant contends the trial court erred by
permitting the prosecution's expert to refute with "informal,
undocumented and unpublished experiments" the conclusion of the
defense expert that infusing fluids into the body affects subsequent
blood analysis for the presence of drugs or alcohol. Defendant claims
her defense that she was unable "to form the mental state necessary"
for first degree murder was improperly undermined by the admission of
"incompetent testimony to minimize the evidence of intoxication."
Specifically, she contends that the personal observations of Dr. Vina
Spiehler of the effects of intravenous transfusions on blood-alcohol
content while working at a coroner's office were based on material
that failed to meet the reliability requirements of People v. Kelly
(1976) 17 Cal.3d 24 [130 Cal.Rptr. 144, 549 P.2d 1240] (Kelly),12
Evidence Code section 801, subdivision (b), and the evidentiary
"`heightened reliability' requirement in capital cases imposed by the
Eighth and Fourteenth Amendments" to the United States Constitution.
We conclude the trial court did not abuse its discretion by admitting
the challenged rebuttal expert testimony.
1. Background
The murders occurred between 7:12 and 7:34 p.m. on
October 27, 1997. About 8:35 p.m. that evening, paramedics infused
approximately three liters (3,000 cubic centimeters) of saline
solution into defendant because of her loss of blood. At 8:50 p.m.,
blood was drawn from defendant at the hospital. That blood was
analyzed and found to contain both alcohol and drugs. The results of
the analysis revealed a blood-alcohol content of 0.07 percent. The
level of Prozac in defendant's blood was 118 nanograms of fluoxetine
per milliliter of blood, and 258 nanograms per milliliter of its
metabolite, norfluoxetine. The level of Valium in defendant's blood
was 0.6 micrograms of diazepam, and 0.3 micrograms of its metabolite,
nordiazepam.13
[ 53 Cal.4th 138 ]
As noted in our factual summary, Dr. Clark Smith,
who was board certified in addiction and forensic psychiatry,
presented expert testimony on defendant's behalf. Dr. Smith reviewed
Dr. Spiehler's toxicology report in which she had calculated a
blood-alcohol level of 0.09 percent for defendant at the time of the
murders based on the average rate of alcohol burn-off for a woman per
hour. Dr. Smith disagreed with that calculation. In his opinion, Dr.
Spiehler failed to account for the diluting effect the infusion of
fluids into defendant's body between the murders and the drawing of
blood would have had on the level of drugs and alcohol in defendant's
blood. In Dr. Smith's opinion, defendant's actual blood-alcohol
content at the time of the murders would have been approximately 0.19
percent and the infused fluids also would have affected the level of
Valium found in defendant's blood. Dr. Smith testified that, based on
his calculations, the levels of alcohol and drugs in defendant's blood
would have produced a "very significant effect" on the brain,
including affecting emotions, perceptions, judgment, and other "higher
brain functions."
In response to an objection to the admissibility of
proposed rebuttal expert testimony on the issue of dilution, the trial
court held an Evidence Code section 402 hearing regarding the
proffered testimony. During that hearing, Dr. Spiehler, a
pharmacologist board certified in forensic toxicology, testified that
her calculations of defendant's drug and alcohol levels at the time of
the murders and her opinions regarding the impact of dilution on
blood-alcohol content were based on formulae from a pharmacology
textbook and published literature, including the 1988 edition of
Medicolegal Aspects of Alcohol Determination in Biological Specimens
(Garriott edit., 1988),14 and Goodman and Gilman's The Pharmacological
Basis of Therapeutics (Goodman), and on her experience working in a
coroner's office where she had examined before and after samples of
blood-alcohol levels in 10 to 15 individuals who had received blood
transfusions or intravenous fluids while being treated in the
hospital. Dr. Spiehler said her observations led her to conclude there
were no changes in blood-alcohol levels "that could be correlated to
the transfusions in those cases."
At the end of the hearing, defendant objected to
the proposed testimony on the basis that Dr. Spiehler's conclusions
were mere observations "made in a casual setting and not subject to
scrutiny of peer review or outside observers" rather than "scientific
fact." The trial court determined that Dr. Spiehler was applying her
practical work experience to the academic training she had
[ 53 Cal.4th 139 ]
received in a manner "no different than what almost
any expert would . . . do on the witness stand in terms of taking his
or her educational background, things that were learned in, for
example, medical school and the practical application to his or her
work experience. I see nothing improper about it now that I've heard
her explain it, and it appears that it's just part of her training and
experience working in the field."
Thereafter, Dr. Spiehler testified before the jury
that she formulated her calculations "based on [defendant's] weight
and how much water would be in her body where the alcohol goes—the
alcohol follows the water—and calculated how much of an effect the
dilutions would have from the fluids she was given, and [her] answer
was different from Dr. Smith's." Dr. Spiehler explained that she
disagreed with Dr. Smith's conclusion that the drugs in defendant's
system were diluted by the saline infusion because the drugs defendant
ingested "don't go into the watery parts of the body," but, instead,
are stored in the fat. Dr. Spiehler calculated that the dilution would
have lowered defendant's blood-alcohol content by as much as 10
percent, and concluded defendant therefore would have had a
blood-alcohol level of approximately 0.07 percent at the time of the
shootings.15 She said her calculations were based on principles from
Goodman and her "conclusions and calculations of dilution after
somebody gets intravenous fluids" were based on a chapter in Garriott.
When the prosecutor asked if her "personal experience in the field
confirmed what [she had] read in the literature," Dr. Spiehler
replied, "Yes. I actually have looked at samples from people who had
transfusions in the hospital, and I was able to look at samples taken
before they got the transfusion and afterward. And my experience has
been sometimes the values go up, sometimes they go down, and sometimes
they stay the same, the alcohol values." She added that she had not
relied on the most recent edition of Garriott's textbook.
Dr. Smith testified on surrebuttal that Dr.
Spiehler's testimony did not alter his opinion. He conceded that, if
dilution did not occur based upon the infused saline in this case, Dr.
Spiehler's calculations of defendant's blood-alcohol level at the time
of the murders would be accurate; but he testified that his theory of
dilution affecting blood-alcohol levels is correct and recognized in
the scientific literature. Dr. Smith added that shock, including shock
following a gunshot wound, could affect the absorption of drugs and
alcohol into the blood. He suggested the effects of shock might apply
here because defendant at one time had no measurable blood pressure or
pulse.
[ 53 Cal.4th 140 ]
2. Analysis
"A person is qualified to testify as an expert if
he has special knowledge, skill, experience, training, or education
sufficient to qualify him as an expert on the subject to which his
testimony relates." (Evid. Code, § 720, subd. (a).) Evidence Code
section 801 provides that, "[i]f a witness is testifying as an expert,
his testimony in the form of an opinion is limited to such an opinion
as is: [¶] (a) Related to a subject that is sufficiently beyond common
experience that the opinion of an expert would assist the trier of
fact; and [¶] (b) Based on matter (including his special knowledge,
skill, experience, training, and education) perceived by or personally
known to the witness or made known to him at or before the hearing,
whether or not admissible, that is of a type that reasonably may be
relied upon by an expert in forming an opinion upon the subject to
which his testimony relates, unless an expert is precluded by law from
using such matter as a basis for his opinion."
(6) "The trial court's determination of whether a
witness qualifies as an expert is a matter of discretion and will not
be disturbed absent a showing of manifest abuse. [Citation.] `"Where a
witness has disclosed sufficient knowledge of the subject to entitle
his opinion to go to the jury, the question of the degree of his
knowledge goes more to the weight of the evidence than its
admissibility."' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297,
321-322 [75 Cal.Rptr.2d 412, 956 P.2d 374]; accord, People v. Catlin
(2001) 26 Cal.4th 81, 139 [109 Cal.Rptr.2d 31, 26 P.3d 357].)
(7) Defendant first contends the trial court was
required to apply the Kelly rule governing the admissibility of expert
testimony based on new scientific techniques. Under Kelly, the
admissibility of expert testimony based on "a new scientific
technique" is "a two-step process: (1) the reliability of the method
must be established, usually by expert testimony, and (2) the witness
. . . must be properly qualified . . . . [Citations.] Additionally,
the proponent of the evidence must demonstrate that correct scientific
procedures were used in the particular case. [Citations.]" (Kelly,
supra, 17 Cal.3d at p. 30.) Defendant claims Dr. Spiehler founded her
opinions on "highly questionable `experiments,'" and that her
testimony regarding them did not meet the Kelly requirements.
Kelly does not apply here. "[A]bsent some special
feature which effectively blindsides the jury, expert opinion
testimony is not subject to Kelly[]." (People v. Stoll (1989) 49
Cal.3d 1136, 1157 [265 Cal.Rptr. 111, 783 P.2d 698] (Stoll); see also
McDonald, supra, 37 Cal.3d 351, 372.) No aspect of Dr. Spiehler's
testimony or research involved a new scientific technique. She based
her calculations of defendant's drug and alcohol levels at the time of
the murders on principles from textbooks and literature in her field.
She then
[ 53 Cal.4th 141 ]
testified that her observations while working at the coroner's office
"confirmed" what she had read in the literature regarding the effect,
if any, of intravenous fluids on alcohol levels in blood. We agree
with the People that Dr. Spiehler "simply observed and relied upon
comparative alcohol values in a series of cases where samples were
available both before and after blood transfusions," and that her
medical observations did not involve a new scientific technique.
Kelly was designed to insulate the jury from expert
testimony premised on methods that "carry [a] misleading aura of
scientific infallibility" (Stoll, supra, 49 Cal.3d at p. 1157), but no
reasonable juror would have given unquestioned deference to Dr.
Spiehler's medical opinion testimony regarding the analysis of alcohol
and drug levels in the blood, a practice well known in science and the
law. "We have never applied the Kelly[] rule to expert medical
testimony, even when the witness is a psychiatrist and the subject
matter is as esoteric as the reconstitution of a past state of mind or
the prediction of future dangerousness, or even the diagnosis of an
unusual form of mental illness not listed in the diagnostic manual of
the American Psychiatric Association [citation]." (McDonald, supra, 37
Cal.3d at p. 373.)
Defendant's attempt to distinguish Stoll is
unavailing. In Stoll, we held the trial court erred when it applied
Kelly to exclude a psychologist's opinion testimony based on an
interview and professional interpretation of standardized written
personality tests. (Stoll, supra, 49 Cal.3d at p. 1163.) In part, we
determined that Kelly did not apply because it was not based on a
technique new to science or the law. (Id. at p. 1157.) We did
distinguish the testimony of a "learned professional art" from the
"science" triggering Kelly concerns (id. at p. 1159), explaining that
admission of testimony based on new science presented dangers when
"the unproven technique or procedure appears in both name and
description to provide some definitive truth which the expert need
only accurately recognize and relay to the jury" (id. at p. 1156). The
challenged medical observations made by Dr. Spiehler present no such
danger.
Defendant's attempt to distinguish People v. Bui
(2001) 86 Cal.App.4th 1187 [103 Cal.Rptr.2d 908], fails as well. In
Bui, the Court of Appeal declined to apply Kelly to expert testimony
about methamphetamine blood levels and their correlation to driving
ability because the expert's methodology was generally accepted in the
scientific community. It reasoned that "`[t]he Kelly test is intended
to forestall the jury's uncritical acceptance of scientific evidence
or technology that is so foreign to everyday experience as to be
unusually difficult for laypersons to evaluate.'" (Id. at p. 1195,
quoting People v. Venegas (1998) 18 Cal.4th 47, 80 [74 Cal.Rptr.2d
262, 954 P.2d 525].) Dr. Spiehler's challenged testimony did not
involve new scientific
[ 53 Cal.4th 142 ]
technology nor does it raise concerns under Kelly.
Defendant mischaracterizes Dr. Spiehler's testimony as describing
"experiments." Dr. Spiehler testified that she simply "looked at"
samples taken from individuals before and after they had transfusions
and compared the results of both samples.
(8) Defendant next contends Dr. Spiehler's
testimony was inadmissible under Evidence Code section 801,
subdivision (b). In support of her contention that Dr. Spiehler's
testimony lacked the required foundation, defendant relies on People
v. Willis (2004) 115 Cal.App.4th 379 [9 Cal.Rptr.3d 235], which
detailed the foundational requirements for dog scent identification
evidence, and Pacific Gas & Electric Co. v. Zuckerman (1987) 189
Cal.App.3d 1113 [234 Cal.Rptr. 630], which involved property valuation
testimony that failed to meet statutory requirements for property
valuation. Those two cases did not address medical expert opinion
testimony and do not directly support defendant's claim. In support of
her claim that Dr. Spiehler's opinion was not based on material
reasonably relied on by other experts in the field, defendant relies
on People v. Gardeley (1996) 14 Cal.4th 605 [59 Cal.Rptr.2d 356, 927
P.2d 713] and Kelley v. Trunk (1998) 66 Cal.App.4th 519 [78
Cal.Rptr.2d 122]. In Gardeley, we held the trial court did not err by
allowing gang expert testimony based on hearsay, personal
investigations, and discussions among colleagues. We found the
expert's opinion reliable, and recognized that, "[s]o long as [the]
threshold requirement of reliability is satisfied, even matter that is
ordinarily inadmissible can form the proper basis for an expert's
opinion testimony. [Citations.]" (Gardeley, supra, 14 Cal.4th at p.
618.) Although Gardeley did not involve medical opinion testimony, its
reasoning supports the conclusion that Dr. Spiehler's opinion
testimony was reliable and admissible. Though Kelley involved medical
opinion testimony, the expert there did not disclose what he relied on
in forming his opinion under Evidence Code section 802. (Kelley,
supra, 66 Cal.App.4th at pp. 523-524.) Here, by contrast, Dr. Spiehler
disclosed the basis for her opinion, and her opinion was founded on
information on which an expert may reasonably rely.
The fact that Dr. Spiehler did not rely on the
latest edition of Garriott does not render her testimony inadmissible.
Although a later edition omitted the article on which Dr. Spiehler
relied, she testified it was omitted in the subsequent edition because
the textbook's editor could not locate the article's author for
approval. Defendant now objects that Dr. Spiehler's explanation for
the omitted article is inadmissible hearsay, but she forfeited the
objection by failing to raise it at trial. (People v. Partida (2005)
37 Cal.4th 428, 433-434 [35 Cal.Rptr.3d 644, 122 P.3d 765]; Evid.
Code, § 353.) In any case, the article itself did not provide a
calculation; it merely provided suggestions to experts on how to talk
to a jury. At the pretrial hearing, Dr. Spiehler testified the article
"gives [an expert] a way of talking through [a difficult question in
court] that a layperson might understand, rather than going into the
scientific basis, which would be found in Goodman and Gillman."
[ 53 Cal.4th 143 ]
Defendant next complains that Dr. Spiehler's
explanation regarding the omitted article "defies common sense"
because it is "unlikely that a well-known medical professional would
suddenly disappear," and, "[e]ven if this were true, and the medical
data remained valid, why not simply publish it in the subsequent
edition, rather than omit it?" Defendant was entitled to attack Dr.
Spiehler's credibility regarding the claimed basis of her opinion, but
questions regarding the validity or the credibility of an expert's
knowledge go to the weight of such testimony, not its admissibility.
(People v. Bolin, supra, 18 Cal.4th at p. 322.) Defendant did question
Dr. Spiehler's conclusions and the foundation of her opinions through
cross-examination, and additionally presented her own expert as a
surrebuttal witness on the issue of dilution. We are convinced that
Dr. Spiehler's testimony explaining the basis for her opinion was
permissible under Evidence Code section 801, subdivision (a), and that
her opinion testimony regarding the effect of dilution on alcohol and
drug levels in blood was properly admitted under our state rules
related to the admission of expert opinion testimony. (People v.
Catlin, supra, 26 Cal.4th at pp. 138-139.)
(9) Defendant next contends there is a heightened
reliability requirement of expert testimony in capital cases under the
Eighth and Fourteenth Amendments. We disagree. In People v. Prince
(2007) 40 Cal.4th 1179, 1229 [57 Cal.Rptr.3d 543, 156 P.3d 1015],
faced with the same claim when a defendant objected to admission of an
expert's testimony, we reiterated that "`[a]pplication of the ordinary
rules of evidence generally does not impermissibly infringe on a
capital defendant's constitutional rights.'" (Quoting People v. Kraft,
supra, 23 Cal.4th at p. 1035.) In any event, despite defendant's
contention, she has not established that Dr. Spiehler's testimony was
"so unreliable as to violate due process and the Eighth Amendment to
the United States Constitution."
(10) We conclude the trial court did not abuse its
discretion by allowing Dr. Spiehler to provide the jury with her
expert medical opinion testimony in rebuttal.
IV. PENALTY PHASE ISSUES
A. Admissibility of Defendant's Admission That
She Mistreated Her Nephew
Defendant contends the trial court erred during the
penalty phase by admitting evidence that she had smeared feces on the
face of her nephew. Defendant claims admission of that testimony
violated section 352 of the Evidence Code as well as her Fourteenth
Amendment right to due process and her right to heightened reliability
in a capital case under the Fifth, Sixth,
[ 53 Cal.4th 144 ]
Eighth, and Fourteenth Amendments to the United
States Constitution and article I, sections 7 and 15 of the California
Constitution. We conclude the evidence was properly admitted.
Before the evidence of the feces incident was
admitted, defendant had introduced evidence to show that she was a
good mother. That evidence presented defendant as someone who
consistently acted lovingly and protectively towards her children by
hugging and kissing them, keeping them well groomed and well fed,
taking them to medical appointments, and exhibiting pride in them.
Linda Michele Smith, defendant's sister, later
testified that she had been speaking with defendant on the telephone
when defendant, whom Linda described as "an immaculate housekeeper,"
told her she had found a soiled "pull up" diaper that her nephew had
stuffed between his bed and an adjacent wall. Defendant told her
sister that she "got really mad," made him smell the soiled diaper,
and then rubbed the feces in his face. After Smith "got angry" about
how defendant had treated her nephew, defendant said she had not
rubbed the feces in his face, that she had "just meant I made him
smell it." Linda testified she did not believe defendant's partial
retraction. During closing argument in the penalty phase, the
prosecutor explained that the evidence that defendant had rubbed feces
from her nephew's soiled diaper in his face was "offered to rebut the
testimony that [defendant] was a good mother."
(11) Evidence Code section 352 provides: "The court
in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will .
. . create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury." "Evidence is substantially more
prejudicial than probative [citation] [only] if, broadly stated, it
poses an intolerable `risk to the fairness of the proceedings or the
reliability of the outcome' [citation]." (People v. Waidla (2000) 22
Cal.4th 690, 724 [94 Cal.Rptr.2d 396, 996 P.2d 46].) "`The prejudice
which . . . Evidence Code section 352 is designed to avoid is not the
prejudice or damage to a defense that naturally flows from relevant,
highly probative evidence.' [Citations.] `Rather, the statute uses the
word in its etymological sense of "prejudging" a person or cause on
the basis of extraneous factors.'" (People v. Zapien (1993) 4 Cal.4th
929, 958 [17 Cal.Rptr.2d 122, 846 P.2d 704]; accord, People v. Doolin
(2009) 45 Cal.4th 390, 439 [87 Cal.Rptr.3d 209, 198 P.3d 11]
(Doolin).) The potential for such prejudice is "decreased" when
testimony describing the defendant's uncharged acts is "no stronger
and no more inflammatory than the testimony concerning the charged
offenses." (People v. Ewoldt (1994) 7 Cal.4th 380, 405 [27 Cal.Rptr.2d
646, 867 P.2d 757].) We apply an abuse of discretion standard to
review a trial court's ruling on the
[ 53 Cal.4th 145 ]
admissibility of evidence under section 352.
(People v. Jablonski (2006) 37 Cal.4th 774, 805 [38 Cal.Rptr.3d 98,
126 P.3d 938].)
Defendant's initial claim that her statements were
inadmissible hearsay is meritless. The trial court concluded the
statements fell under the hearsay exception for admissions of a party
(Evid. Code, § 1220), and, implicit in its ruling was a finding that
the statements were sufficiently reliable to be admitted in the
penalty phase of defendant's trial. We are convinced that Smith's
testimony provided substantial evidence to support the trial court's
ruling, even under the heightened reliability standard set forth in
Woodson v. North Carolina (1976) 428 U.S. 280, 305 [49 L.Ed.2d 944, 96
S.Ct. 2978]. We therefore next address defendant's section 352 claim.
The trial court had excluded evidence of the
"feces" incident under Evidence Code section 352 during the guilt
phase of defendant's trial on the basis that issue was "collateral" to
the guilt of defendant for the deaths of her four children and was
"redundant" on the issue as to whether defendant "disliked" her
nephew. In that context, the trial court found the prejudicial effect
of the potentially "disturbing testimony" that "a woman would spread
feces on a child" more prejudicial than probative "given the People's
theory."
(12) However, at the penalty phase, once defendant
raised the subject of her ability to parent, the trial court properly
recognized that the prosecution was entitled to respond and introduce
specific evidence of defendant's conduct that contradicted defendant's
assertions. (Ramos, supra, 15 Cal.4th at p. 1173 ["In light of [a
defense witness's] portrayal of defendant's religious recommitment,
the prosecution could impeach her testimony with acts tending to
contradict that impression."]; People v. Gates (1987) 43 Cal.3d 1168,
1211 [240 Cal.Rptr. 666, 743 P.2d 301] ["If the defense chooses to
raise the subject it cannot expect immunity from cross-examination on
it."].) Defendant's attempt to distinguish Ramos and Gates based on
the fact that those cases involved cross-examination of a defense
witness fails. Our focus is on the scope of admissibility of relevant
rebuttal character evidence in response to either party's introduction
of character testimony, and a "defendant has no right to mislead the
jury through one-sided character testimony during either the guilt or
penalty trial." (People v. Siripongs (1988) 45 Cal.3d 548, 578 [247
Cal.Rptr. 729, 754 P.2d 1306].)
"Prejudice for purposes of Evidence Code section
352 means evidence that tends to evoke an emotional bias against the
defendant with very little effect on issues, not evidence that is
probative of a defendant's guilt." (People v. Crew (2003) 31 Cal.4th
822, 842 [3 Cal.Rptr.3d 733, 74 P.3d 820].) Here, as the trial court
recognized, although the proffered evidence of the "feces" incident
was potentially "disturbing," that evidence was highly probative as
[ 53 Cal.4th 146 ]
impeachment evidence regarding defendant's
portrayal of "how the children were treated in the home." Defendant's
claim to the contrary, the prosecution's proffered rebuttal character
evidence was sufficiently "specific" and was related to a "particular
. . . character trait defendant offer[ed] in [her] own behalf."
(People v. Rodriguez (1986) 42 Cal.3d 730, 792, fn. 24 [230 Cal.Rptr.
667, 726 P.2d 113].) As explained above, "`[e]vidence is not
prejudicial, as that term is used in a section 352 context, merely
because it undermines the opponent's position or shores up that of the
proponent. The ability to do so is what makes evidence relevant.'"
(Doolin, supra, 45 Cal.4th at p. 438.) In Doolin, the court concluded
the "challenged evidence was directly relevant to impeach defendant's
own testimony and that of his witnesses. Although evidence of
[defendant's rape of D.] and [his] mistreatment [of his girlfriend] is
unpleasant, it paled in comparison to the testimony from four
witnesses that defendant tried to kill them." (Id. at p. 439.)
Similarly, here, where the charged offenses included four counts of
first degree murder based on defendant having killed her four
children, admission of evidence that defendant had mistreated her
nephew once by rubbing his face in feces did not create "an
intolerable `risk to the fairness of the proceedings or the
reliability of the outcome.'" (People v. Waidla, supra, 22 Cal.4th at
p. 724.)
Considering all of the circumstances, we conclude
the trial court did not abuse its discretion by admitting the evidence
of defendant's uncharged misconduct, and that the admission of the
challenged evidence did not violate due process or fail to meet the
Eighth Amendment requirement of heightened reliability. (Woodson v.
North Carolina, supra, 428 U.S. at p. 305.)
B. Admission of Testimony of a Crime Scene
Reconstructionist
(13) Section 190.3, factor (a) permits the jury, in
determining the penalty, to take into account the "circumstances of
the crime[s] of which the defendant was convicted in the present
proceeding." Crime scene reconstruction expert Rod Englert appeared at
the penalty phase as the prosecution's first witness. Defendant
contends his crime scene reconstruction testimony was inadmissible
factor (a) evidence, "violated the heightened requirement of the
Eighth Amendment to the United States Constitution, and was more
prejudicial than probative within the meaning of Evidence Code section
352 and the due process clause of [the] Fourteenth Amendment" to the
United States Constitution. As we explain, defendant's claim has no
merit.
Evidence depicting the "`circumstances of the crime'" generally is
admissible at the penalty phase. (People v. Loker (2008) 44 Cal.4th
691, 755 [80 Cal.Rptr.3d 630, 188 P.3d 580]; see Ramos, supra, 15
Cal.4th at p. 1164.) The trial court's discretion to exclude such
evidence at the penalty phase is more
[ 53 Cal.4th 147 ]
circumscribed than it is in the guilt phase.
(People v. Box (2000) 23 Cal.4th 1153, 1201 [99 Cal.Rptr.2d 69, 5 P.3d
130].) Defendant concedes that, "[h]ad Englert's testimony been
confined to bullet trajectories, etc., it may have been marginally
relevant and therefore admissible." However, she complains that, in
addition to such relevant testimony, Englert provided "unduly
inflammatory" evidence by "editorializing about [defendant] pausing to
reload the gun while the boys cowered in fear" and by making
"speculative comments about the sequence of the shootings and the
boys' state of mind."
After holding an extensive Evidence Code section
402 hearing on the admissibility of the challenged crime scene
reconstruction evidence, the trial court determined the expert would
provide "some helpful information" regarding the sequence of the shots
fired, how the errant bullets "entered into the equation," and
regarding the "other bullets that were fired in the bedroom of the
three boys." The court added that the expert would "shed some light on
other areas that were not covered by the medical examiners' testimony
and going directly to the circumstances of the crime, which is
obviously relevant at the penalty phase." After expressly weighing the
probative value of the proposed testimony against its potential for
prejudice, the trial court found the evidence admissible. We find no
abuse of discretion in the trial court's ruling.
Defendant's claim that Englert's testimony before
the jury was unduly inflammatory is belied by the record. For example,
defendant claims Englert testified that, while defendant reloaded her
gun, Brigham and Matthew "cowered" on the lower bunk. However, while
Englert used the word "cowering" out of the presence of the jury
during the Evidence Code section 402 hearing regarding the
admissibility of the proffered reconstruction evidence, he did not use
that word during his actual testimony. Similarly, during his penalty
phase testimony before the jury, Englert did not use the word
"huddling," as defendant suggests. Instead, he testified that, based
on the physical evidence of the crime scene, Brigham and Matthew were
"very close together" when they were shot. Again, despite defendant's
claim to the contrary, Englert did not testify before the jury that
Matthew "scramble[d] to the other end of the bed"; Englert simply
stated that, once Brigham had been shot but Matthew had not been hit,
Matthew "move[d] to the opposite end of the bed" and "bent over."16
Similarly, there was no testimony that Brandon was "slumped" over, as
defendant claims. Instead, Englert testified Brandon was shot in the
left temple, he "went down and onto the floor," and that the "second
shot was fired into the back of [his] neck." Similarly, the expert's
testimony that Austin was in a defensive posture when shot was not
unduly
[ 53 Cal.4th 148 ]
inflammatory or unduly "chilling," as defendant claims; Englert gave
his straightforward expert opinion that Austin had pulled his knee up
and "close to [his] head" in a defensive posture, "putting a barrier
between himself and the shots that were being fired at him with the
knee up" because "stippling could not get on his knee with his knee in
a flat position."
Contrary to defendant's contention, the evidence
provided by Englert was not based on speculation. Based on his
extensive training and experience, as well as on an examination of the
premises and a thorough review of the police and medical reports in
this case, Englert presented testimony regarding bullet trajectories,
stippling, and the relative positions of the multiple victims and the
shooter that was "sufficiently beyond common experience that the
opinion of an expert would assist the trier of fact." (Evid. Code, §
801.) That evidence was relevant, probative, and not unduly
prejudicial. (See, e.g., People v. Robinson (2005) 37 Cal.4th 592,
643-644 [36 Cal.Rptr.3d 760, 124 P.3d 363] [deputy medical examiner's
penalty phase testimony regarding relative positions of the victims
and the shooter was admissible].) Englert's testimony that defendant
fired at the height of Austin's head three times, that one shot missed
to the right of Austin, one missed to the left, and one struck him in
the face, provided the jury with probative evidence regarding
defendant's determination to shoot Austin in the head and provided the
jury with one basis to consider whether the death penalty was
appropriate in this case. Evidence that defendant reloaded her gun in
the boys' bedroom was similarly probative on the issue of penalty.
Finally, nothing in the record of the expert's
testimony supports defendant's claim that the reconstruction evidence
did not meet "the heightened reliability requirement of the Eighth
Amendment." At trial the defense left unchallenged Englert's testimony
that, based on the disciplines on which he relied and the facts of
this case, his expert opinion "is within a reasonable degree of
scientific certainty as what occurred in that residence and the
sequence it occurred in." The testimony was presented in a
dispassionately objective manner and did not create "an intolerable
`risk to the fairness of the proceedings or the reliability of the
outcome.'" (People v. Waidla, supra, 22 Cal.4th at p. 724.)
Accordingly, we find no violation of the Eighth or Fourteenth
Amendment to the United States Constitution.
We conclude the trial court did not abuse its
discretion by admitting expert crime scene reconstruction testimony at
the penalty phase to show the "circumstances of the crime" under
factor (a) of section 190.3.
[ 53 Cal.4th 149 ]
C. Exclusion of Expert Testimony Concerning the
Conditions of Confinement in Prison
Defendant offered the testimony of James Esten, a
former employee of the Department of Corrections, to testify as an
expert as to the conditions of confinement should defendant be
sentenced to a term of life imprisonment without the possibility of
parole. The defense proposed to introduce photographs taken at Valley
State Prison for Women that depicted areas where defendant most likely
would be housed if sentenced to life imprisonment without parole. The
defense also proposed to have Esten testify regarding the "conditions
of confinement." The trial court excluded the testimony as irrelevant.
Defendant contends that ruling violated section 190.3 as well as her
rights under the Eighth and Fourteenth Amendments to the federal
Constitution.
(14) "We have previously held that evidence of the
conditions of confinement that a defendant will experience if
sentenced to life imprisonment without parole is irrelevant to the
jury's penalty determination because it does not relate to the
defendant's character, culpability, or the circumstances of the
offense. [Citations.] Its admission is not required either by the
federal Constitution or by Penal Code section 190.3. [Citations.]"
(People v. Quartermain (1997) 16 Cal.4th 600, 632 [66 Cal.Rptr.2d 609,
941 P.2d 788]; see also People v. Ervine (2009) 47 Cal.4th 745,
794-795 [102 Cal.Rptr.3d 786, 220 P.3d 820].) Based on our prior
decisions, we conclude the trial court did not err by excluding the
proffered testimony regarding the conditions of confinement that
defendant would experience if sentenced to life imprisonment without
parole.17
D. Exclusion of Proffered Mitigating Hearsay
Evidence and Admission of Hearsay Evidence in Aggravation
Defendant contends the trial court improperly
excluded proffered mitigating evidence that she had been sexually
molested by her cousin and father, as well as evidence that she helped
a fellow inmate at the jail infirmary obtain needed medical attention.
She contends that, "[i]n contrast, the [trial] court admitted evidence
of an alleged incident at the jail where [she] supposedly became angry
during an organized game" and made threats to a fellow inmate and a
jail staff member. Defendant claims these rulings "lacked balance
[ 53 Cal.4th 150 ]
allowing inflammatory hearsay in aggravation and
denying, as unreliable, important mitigating evidence."
We note that defendant contends that her penalty
phase jury should not have been precluded from considering, as a
mitigating factor, any aspect of her character that would permit the
jury to return a sentence less than death. She relies on a capital
case, Green v. Georgia (1979) 442 U.S. 95 [60 L.Ed.2d 738, 99 S.Ct.
2150], to argue that this court should dispense with traditional state
rules of evidence when the death penalty is involved. In Green,
although the statement was not otherwise admissible, the Supreme Court
permitted the admission of a declaration against penal interest that
the declarant shot the victim after ordering Green to leave because it
was "highly relevant to a critical issue in the punishment phase of
the trial" and "substantial reasons existed to assume its
reliability." (Id. at p. 97.) We have repeatedly rejected the broad
reading of Green v. Georgia that defendant urges. (See People v.
Weaver (2001) 26 Cal.4th 876, 980-981 [111 Cal.Rptr.2d 2, 29 P.3d
103].) Here, as in Weaver, we conclude the proffered mitigating
evidence "bore no special indicia of reliability, so the rule [set
forth in Green v. Georgia] did not require the trial court to dispense
with the hearsay rule." (Weaver, at p. 981.)
(15) Under our state rules of evidence, defendant
had a right to present reliable mitigating evidence at her penalty
trial. (People v. Phillips (2000) 22 Cal.4th 226, 238 [92 Cal.Rptr.2d
58, 991 P.2d 145]; see also Green v. Georgia, supra, 442 U.S. at pp.
96-97.)
With regard to defendant's attempt to introduce
evidence that she was molested by her cousin Greg while she was a
teenager, the trial court sustained an objection for lack of
foundation after defense counsel asked Greg's father, Don, if an
"inappropriate relationship" had developed between Greg and defendant
while defendant was living with Don's ex-wife Rose. The objection was
properly sustained because Don had testified moments earlier that he
"wasn't involved," with defendant, Greg, or Rose at the time in
question, he "didn't see them much" at that time, and he "didn't pay
much attention" to what they were doing.
The trial court also excluded as unreliable hearsay
the proffered statement by a career counselor that defendant had said
she was molested by her father. The trial court reasoned that the
statement was unreliable because defendant had confided in many
people, including her psychiatrist and her psychologist, that she had
been molested by "a number of other people, but not her father," and
because defense counsel conceded that defendant never had indicated
that she had been molested by her father "to any of the mental health
professionals" who interviewed her. In this instance, we agree with
defendant that the fact she did not make the proffered statement to
mental health professionals
[ 53 Cal.4th 151 ]
did not make the statement inadmissible.
Nonetheless, we conclude any error in excluding the statement was
harmless given the limited probative value of the proffered evidence.
With regard to the proffered medical assistance
mitigating evidence, there was no eyewitness available to describe
what happened during the incident in which a jail nurse assertedly did
not respond to an inmate's request for medical assistance and
defendant helped the inmate obtain the necessary medical attention.
The proffered evidence was in an investigative report written by a
doctor who was not present during the alleged incident. When
defendant's attorney gave the trial court that report, he noted that
he expected a hearsay objection from the prosecutor. The trial court
excluded the proffered testimony because it did not fall within a
recognized exception to the hearsay rule and was not sufficiently
reliable to be admitted during defendant's penalty trial. Assuming
arguendo that defense counsel could have laid a foundation that the
proffered report fell within the official record exception to the
hearsay rule (Evid. Code, § 1280),18 we conclude any error in
excluding the report was harmless as its probative value as mitigating
evidence was not substantial.
(16) While "[e]xclusion of hearsay testimony at a
penalty phase may violate a defendant's due process rights if the
excluded testimony is highly relevant to an issue critical to
punishment and substantial reasons exist to assume the evidence is
reliable" (People v. Phillips, supra, 22 Cal.4th at p. 238), we
conclude the excluded evidence in question, namely the proffered
statement by a career counselor that defendant had said she was
molested by her father and the investigative report regarding
defendant helping an inmate obtain medical assistance, was not "highly
relevant" (ibid.).
We next conclude the trial court properly admitted
evidence from defendant's jail records to impeach defense witness
James Esten's expert opinion that defendant would not be a danger to
others in the future if sentenced to prison. Esten had interviewed
defendant and reviewed her jail records. After Esten characterized a
fight in which defendant was involved at Las Colinas Detention
Facility in San Diego County as one in which she was confronted by
another inmate and "retaliated appropriately in defending herself" by
beating up that inmate, Esten was impeached by parts of the jail
record that suggested it was defendant who confronted the other
inmate, who spat at
[ 53 Cal.4th 152 ]
defendant in response. Esten also was impeached by
parts of the jail record that described defendant as "vindictive,"
"full of loathing," and "antisocial," and parts of the jail record
that indicated, while defendant was playing a game with another
inmate, defendant said she might hit "the bitch" and then threatened
to hit a staff member who was refereeing the game. Finally, Esten was
impeached by the part of the jail record that indicated that defendant
had threatened to kill Eric and the women who had accompanied Eric to
the children's funeral if they came to her preliminary hearing. Esten
testified that none of this impeachment evidence changed his opinion
regarding defendant's "future dangerousness."
(17) The prosecution is entitled to impeach a
defense expert's testimony with acts that tend to contradict his
opinion "[s]o long as the People ha[d] a good faith belief that the
acts or conduct about which they wish to inquire actually took place."
(People v. Siripongs, supra, 45 Cal.3d at p. 578; see also Ramos,
supra, 15 Cal.4th at p. 1173.) Nothing in the record suggests
otherwise. We conclude the trial court properly admitted the
challenged evidence to impeach Esten's expert opinion testimony
regarding defendant's future dangerousness.
Here, as in Doolin, supra, 45 Cal.4th at page 439,
"[i]n the interest of complete review, we note that even if we were to
assume evidentiary error, any error would be harmless, whether
assessed under the federal constitutional (Chapman [v. California
(1967)] 386 U.S. [18,] 24 [17 L.Ed.2d 705, 87 S.Ct. 824]) or state
(People v. Watson [(1956)] 46 Cal.2d [818,] 836 [299 P.2d 243])
standard of review." We conclude there is no reasonable possibility
that admission of the excluded proposed mitigating evidence and the
exclusion of the admitted impeachment evidence in aggravation would
have altered the jury's penalty verdict in light of the overwhelming
evidence that defendant deliberately murdered her four innocent young
children out of vengeance and hatred toward her most recent boyfriend
and the father of two of her sons.
E. Cumulative Error
Defendant claims the cumulative effect of the
various errors that occurred during her trial requires reversal of her
murder convictions and the death sentence, even if no error was
individually prejudicial. Having found only minor harmless errors
during defendant's trial, we reject her claim of cumulative effect.
F. Instructional and Constitutional Challenges
to California's Death Penalty Law
Defendant contends various features of California's
death penalty statute and related standard jury instructions violate
the Fifth, Sixth, Eighth, and
[ 53 Cal.4th 153 ]
Fourteenth Amendments of the federal Constitution,
parallel provisions of the state Constitution, and prevailing
international law. We have rejected each of those challenges in the
past. (See People v. Letner and Tobin (2010) 50 Cal.4th 99, 208-209
[112 Cal.Rptr.3d 746, 235 P.3d 62]; People v. Schmeck (2005) 37
Cal.4th 240, 303-304 [33 Cal.Rptr.3d 397, 118 P.3d 451].) We reaffirm
our prior holdings.
The statutory special circumstances that qualify a
defendant for the death penalty (§ 190.2) are not unconstitutionally
overbroad. (People v. Verdugo (2010) 50 Cal.4th 263, 304 [113
Cal.Rptr.3d 803, 236 P.3d 1035]; People v. Harris (2005) 37 Cal.4th
310, 365 [33 Cal.Rptr.3d 509, 118 P.3d 545].) California homicide law
and the special circumstances listed in section 190.2 adequately
narrow the class of murderers eligible for the death penalty. (People
v. Gamache (2010) 48 Cal.4th 347, 406 [106 Cal.Rptr.3d 771, 227 P.3d
342]; People v. Barnwell (2007) 41 Cal.4th 1038, 1058 [63 Cal.Rptr.3d
82, 162 P.3d 596].)
Factor (a) of section 190.3, which permits the jury
to consider "[t]he circumstances of the crime" in deciding whether to
impose the death penalty, does not license the arbitrary and
capricious imposition of the death penalty. (People v. Brady (2010) 50
Cal.4th 547, 589 [113 Cal.Rptr.3d 458, 236 P.3d 312]; People v. Cook
(2007) 40 Cal.4th 1334, 1366 [58 Cal.Rptr.3d 340, 157 P.3d 950]; see
also Tuilaepa v. California (1994) 512 U.S. 967, 974-980 [129 L.Ed.2d
750, 114 S.Ct. 2630].)
The instruction that tells a jury to consider
"whether or not" (§ 190.3) certain mitigating factors were present
does not impermissibly invite the jury to aggravate on the basis of
nonexistent or irrational aggravating factors. (People v. Morrison
(2004) 34 Cal.4th 698, 730 [21 Cal.Rptr.3d 682, 101 P.3d 568].)
The use in the sentencing factors of such
restrictive adjectives as "extreme" and "substantial" in section
190.3, factors (d) and (g), does not act as an unconstitutional
barrier to the consideration of relevant mitigation evidence. (People
v. Schmeck, supra, 37 Cal.4th at p. 305.)
Neither unanimity nor proof beyond a reasonable
doubt is constitutionally required for the jury's findings on the
aggravating factors in this case. (People v. Bolden (2002) 29 Cal.4th
515, 566 [127 Cal.Rptr.2d 802, 58 P.3d 931].) The reasonable doubt
standard does not apply to the jury's determination that death is the
appropriate penalty, and the jury should not have been instructed as
to the burden or standard of proof in selecting the penalty to be
imposed. (People v. Stanley (2006) 39 Cal.4th 913, 964 [47 Cal.Rptr.3d
420, 140 P.3d 736].) "`Nothing in Cunningham v. California (2007) 549
U.S. 270
[ 53 Cal.4th 154 ]
[166 L.Ed.2d 856, 127 S.Ct. 856], Apprendi v. New
Jersey [(2000)] 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348], or
Ring v. Arizona [(2002)] 536 U.S. 584 [153 L.Ed.2d 556, 122 S.Ct.
2428], affects our conclusions in these regards.'" (People v. Curl
(2009) 46 Cal.4th 339, 362 [93 Cal.Rptr.3d 537, 207 P.3d 2]; see also
People v. Thomas (2011) 51 Cal.4th 449, 506 [121 Cal.Rptr.3d 521, 247
P.3d 886].)
The federal Constitution does not impose on the
prosecution a burden of proof as to penalty, and the state need not
prove beyond a reasonable doubt whether "aggravating circumstances
exist, that the aggravating circumstances outweigh the mitigating
circumstances, or that death is the appropriate penalty." (People v.
Lewis (2008) 43 Cal.4th 415, 533 [75 Cal.Rptr.3d 588, 181 P.3d 947].)
The federal Constitution does not require that the jury be unanimous
as to which aggravating factors apply. (People v. Davis (2009) 46
Cal.4th 539, 628 [94 Cal.Rptr.3d 322, 208 P.3d 78].) The instructions
were not defective in failing to require that the jury provide express
findings regarding the presence of aggravating factors. (People v.
Bunyard (2009) 45 Cal.4th 836, 861 [89 Cal.Rptr.3d 264, 200 P.3d
879].) Nothing in Apprendi v. New Jersey, supra, 530 U.S. 466, or its
progeny, requires a different result. (People v. Lewis, supra, 43
Cal.4th at p. 534.)
Our state death penalty statute is not
unconstitutional for failing to require intercase proportionality
review or disparate sentence review. (People v. Verdugo, supra, 50
Cal.4th at p. 305; People v. Cox (2003) 30 Cal.4th 916, 970 [135
Cal.Rptr.2d 272, 70 P.3d 277]; see also Pulley v. Harris (1984) 465
U.S. 37, 50-51 [79 L.Ed.2d 29, 104 S.Ct. 871]; Roper v. Simmons (2005)
543 U.S. 551, 560-561 [161 L.Ed.2d 1, 125 S.Ct. 1183].)
Defendant's sentence does not violate international
law. (People v. Lewis, supra, 43 Cal.4th at p. 539.)
Our death penalty law does not deprive capital
defendants of equal protection by denying procedural safeguards to
capital defendants that are afforded to noncapital defendants. (People
v. Hinton (2006) 37 Cal.4th 839, 913 [38 Cal.Rptr.3d 149, 126 P.3d
981].)
Finally, we reject defendant's claim that, when
viewed as a whole, our sentencing scheme "fails to provide a
meaningful or reliable basis for selecting the relatively few
offenders subjected to capital punishment." Having concluded that none
of defendant's challenges to our state's capital sentencing scheme
have merit, we reject this general claim as well.
[ 53 Cal.4th 155 ]
V. DISPOSITION
We affirm the judgment.
Cantil-Sakauye, C. J., Kennard, J., Baxter, J.,
Werdegar, J., Corrigan, J., and Liu, J., concurred.
Footnotes
1. All further statutory references are to the
Penal Code unless otherwise indicated.
2. Because defendant and Eric Eubanks share the
same last name, we refer to Eric Eubanks by his first name throughout
this opinion.
3. All calendar references are to 1997 unless
otherwise noted.
4. Code of Civil Procedure section 203 sets forth
which persons are qualified to be trial jurors in the State of
California. It provides that "[a]ll persons are eligible and qualified
to be prospective trial jurors . . ." except persons who are not
citizens, who are less than 18 years of age, who are not domiciliaries
of California or residents of the jurisdiction wherein they are
summoned to serve, who have been convicted of malfeasance in office or
a felony and their civil rights have not been restored, who are
serving as grand or trial jurors in a California court, who are the
subject of conservatorship, or, as relevant to the issues raised by
defendant, "who are not possessed of sufficient knowledge of the
English language, provided that no person shall be deemed incompetent
solely because of the loss of sight or hearing in any degree or other
disability which impedes the person's ability to communicate or which
impairs or interferes with the person's mobility." (Code Civ. Proc., §
203, subd. (a).)
5. "The jury `pool' is the master list of eligible
jurors compiled for the year or shorter period from which persons will
be summoned during the relevant period for possible jury service. A
`venire' is the group of prospective jurors summoned from that list
and made available, after excuses and deferrals have been granted, for
assignment to a `panel.' A `panel' is the group of jurors from that
venire assigned to a court and from which a jury will be selected to
try a particular case." (People v. Bell (1989) 49 Cal.3d 502, 520, fn.
3 [262 Cal.Rptr. 1, 778 P.2d 129].) We construe defendant's claim as a
complaint that the excusal process resulted in a "skewed" jury panel.
6. Apparently, no records were maintained regarding
these additional proceedings "other than the summons and attachments."
7. All calendar references regarding the jury
screening are to 1999 unless otherwise noted.
8. The summons form in this case appears routine.
(Code Civ. Proc., § 210.5 ["The Judicial Council shall adopt a
standardized jury summons for use . . . ."].) To the extent defendant
is claiming the form of the jury summons constituted constitutional
error, she has forfeited that claim as well by failing to object on
that ground in the trial court.
9. Defendant asks this court to take judicial
notice of census figures for the North Judicial District of San Diego
County. The People object on the basis that this material was not
presented to the trial court and should not be considered for the
first time on appeal. We have rejected similar requests because the
data was not presented in the trial court. (See, e.g., People v. Ramos
(1997) 15 Cal.4th 1133, 1155, fn. 2 [64 Cal.Rptr.2d 892, 938 P.2d 950]
(Ramos).) We additionally note that the summonses sent out in
defendant's case did not request any ethnicity or race identification,
and prospective jurors who responded to the summonses did not identify
their ethnic or racial background on the questionnaires they filled
out. Here, in light of our conclusion that defendant's representative
cross-section claims are forfeited and, in any event, cannot be
established on their merits, the census figures for the North Judicial
District of San Diego County are irrelevant to our discussion. Thus,
defendant's request that we take notice of those census figures is
denied. (See, e.g., Zelig v. County of Los Angeles (2002) 27 Cal.4th
1112, 1141, fn. 6 [119 Cal.Rptr.2d 709, 45 P.3d 1171].)
10. With regard to defendant's claim that some
jurors were excused for hardship despite not having a note from their
employers, the jury commissioner had discretion to grant hardship
excuses based on financial burden (Cal. Rules of Court, former rule
860(b) and (d)(3), now rule 2.1008(b) and (d)(3).) Similarly, with
regard to defendant's claim that some jurors were excused for lack of
language proficiency, daycare problems, medical concerns not tied to
an appointment, and for prior jury service, the jury commissioner was
authorized to screen out such prospective jurors. (Code Civ. Proc., §
203, subd. (a)(6); Cal. Rules of Court, former rule 860(d)(5), (7),
and (e), now rule 2.1008(d)(5), (7) and (e).) With regard to all these
contentions, as well as defendant's claim that five jurors were
excused for no reason, we presume that "official duty has been
regularly performed" (Evid. Code, § 664), and that the jury
commissioner properly determined that the excused prospective jurors
fell within a category of ineligibility or hardship.
11. We note that Detective Rawlins did not explain
in his second affidavit why he needed additional items showing
dominion and control or what items had been discovered during the
first search that showed dominion and control, and that his affidavit
in support of the second search warrant contained a misstatement, that
he did "not contemplate making an arrest under the facts as they
presently exist," although defendant already had been arrested and
arraigned at the hospital. However, as the People point out, defendant
"has not demonstrated any possible harm caused by any error in the
second search warrant" because the only items she claims harmed her
were her handwritten notes, which were seized during the first search.
12. The Kelly rule alternatively is called the
Kelly/Frye rule. (Frye v. U.S. (D.C. Cir. 1923) 293 Fed. 1013; see,
e.g., People v. McDonald (1984) 37 Cal.3d 351, 372 [208 Cal.Rptr. 236,
690 P.2d 709] (McDonald), overruled on other grounds in People v.
Mendoza (2000) 23 Cal.4th 896 [98 Cal.Rptr.2d 431, 4 P.3d 265].) We
refer to it as Kelly in accord with our comment in People v. Cowan
(2010) 50 Cal.4th 401, 469, footnote 22 [113 Cal.Rptr.3d 850, 236 P.3d
1074].
13. Under California law, the level of intoxication
for driving under the influence is a blood-alcohol content of 0.08
percent. The therapeutic range for fluoxetine is 250 to 1,200
nanograms. The therapeutic range for nordiazepam is 0.1 to 1.5
micrograms, and the toxic range for diazepam is above 3 micrograms.
Defendant had a therapeutic range of diazepam and nordiazepam in her
blood. Valium had been in her blood for several hours as evidenced by
the presence of its metabolite, but it could not be determined when
she had taken the Valium.
14. Spiehler explained during the hearing that the
chapter on dilution in Garriott's 1988 edition upon which she had
relied was removed from the later edition because Garriott could not
locate the doctor who had written that chapter in the earlier edition.
Defendant's presumption that that section of the book "had been
discredited" is not supported by the record.
15. On cross-examination, Dr. Spiehler conceded
that a letter she wrote on May 28, 1999, stated that defendant's
blood-alcohol level could have been 0.09 percent. It is unclear from
the record when she altered her position and concluded that
defendant's blood-alcohol level was 0.07 percent.
16. At the Evidence Code section 402 hearing,
Englert did say that Austin appeared to have been "scrambling away
from the shooter," and that Brigham and Matthew appeared to have been
"scrambling and holding on to each other, for avoidance and retreat,"
but that testimony was not presented to the jury.
17. On appeal defendant suggests that this court
never has addressed the specific issue concerning evidence of "a day
in the life" of a prisoner serving a life term without parole. We
simply note that her case does not present such an issue. While
arguing that it was entitled to present evidence of the conditions of
confinement, the defense specifically informed the trial court that it
did not intend "to go into . . . what a typical day is like" for
prisoners sentenced to a term of life imprisonment without parole.
18. Evidence Code section 1280 provides that
"[e]vidence of a writing made as a record of an act, condition, or
event is not made inadmissible by the hearsay rule when offered in any
civil or criminal proceeding to prove the act, condition, or event if
all of the following applies: [¶] (a) The writing was made by and
within the scope of duty of a public employee. [¶] (b) The writing was
made at or near the time of the act, condition, or event. [¶] (c) The
sources of information and method and time of preparation were such as
to indicate its trustworthiness."
