Filed 7/15/13 P. v. Hines CA2/8

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          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                SECOND APPELLATE DISTRICT

                                            DIVISION EIGHT

THE PEOPLE OF THE STATE OF                                              B242558
CALIFORNIA,
                                                                        (Los Angeles County
                   Plaintiff and Respondent,                             Super. Ct. No. NA087602)

         v.

WILLIE HINES,

                   Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Richard R. Romero, Judge. Affirmed.

         Vaneessa Place, under appointment by the Court of Appeal, for Plaintiff
and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Roberta L. Davis
and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.


                                   __________________________
       Willie Hines appeals from the judgment entered after he was convicted of
residential robbery and various sexual assault charges. He contends that the trial
court should have dismissed the case because his due process rights were violated
by the prosecution’s loss or destruction of exculpatory evidence. We affirm the
judgment because Hines waived the issue by not obtaining a ruling on his motion
to dismiss and because the missing evidence was not exculpatory under the
Trombetta and Youngblood line of cases.1

                       FACTS AND PROCEDURAL HISTORY

       On the morning of March 3, 1998, a man brandishing a gun broke into
R.M.’s Long Beach apartment as she slept and, after taking certain valuables from
her at gunpoint, raped and orally copulated her. R.M. called 911 after the attacker
left and was taken by sheriff’s deputies to a hospital, where a nurse performed a
sexual assault examination that included collecting DNA samples with vaginal
swabs. The nurse who performed the exam noted tearing in R.M.’s genital area
that could have occurred during consensual intercourse but was more consistent
with the blunt force trauma common to sexual assault.
       R.M. described her attacker as a young African-American who wore a mask
and a black hoodie to conceal his face. She was able to recall his eyes, noting that
the “whites” (sclera) were yellow. A few weeks after the attack, R.M. described
the man to her neighbor, a professional artist, who made a sketch of the man based
on that description.
       Vicky Ferguson lived less than one-fourth of a mile from R.M. After
hearing about the attack, she called the sheriff’s department to tell them about an
encounter she had that morning. Ferguson said she was unloading her van outside


1
       California v. Trombetta (1984) 467 U.S. 479, and Arizona v. Youngblood
(1988) 488 U.S. 51. For ease of reference, we will refer to a motion filed under
these two cases as a Trombetta motion.

                                          2
of her home when she was startled by an unknown African-American man who
was standing close behind her. The man stared at Ferguson for a moment before
walking away in the direction of R.M.’s apartment building.2
       No suspects were identified at the time and the case went cold. As a result,
the DNA samples taken from R.M. during the sexual assault exam were not
analyzed until 2002. The results were entered into a criminal investigation
database for comparison, but no match was obtained at that time.
       In 2010 the database sample taken from R.M. was matched to the DNA of
Willie Hines, whose sample had been entered into the database after he was
convicted of a drug offense. Hines was arrested and another DNA sample was
taken from him. This new sample also matched the DNA evidence collected from
R.M. Hines was charged with first degree residential robbery, rape, attempted
rape, and forcible oral copulation.
       R.M. was questioned again by sheriff’s investigators and told them that
even though her attacker took off his mask during sexual assaults, all she could
remember about his features were his large eyes with their yellow sclera.
       A sheriff’s detective showed R.M. and witness Ferguson a six-pack
photographic lineup that included a photo of Hines. R.M. said that Hines’s eyes
resembled those of her attacker, but she could not definitively identify him.
Ferguson ruled out four individuals from the six-pack, including Hines, as the man
she happened to see on the morning of the attack, but could not rule out the other
two men.
       The parties agree that Ferguson’s statement excluding Hines as the man she
saw was at some point either lost or destroyed, though the record does not show
how this occurred. The defense brought a pretrial motion to dismiss under


2
       Ferguson did not testify as a trial witness. Instead, she testified at a hearing
to determine whether her testimony would be relevant at trial. We discuss the
circumstances surrounding this hearing in detail in section 2. of our DISCUSSION
post. For now it is enough to note that the trial court never ruled on the matter.
                                           3
Trombetta/Youngblood, contending that the destruction or loss of Ferguson’s
statement regarding the six-pack violated Hines’s constitutional due process rights
because her failure to identify him as the man she saw that morning was
exculpatory. The trial court never ruled on that motion.
       At trial, the prosecution relied primarily on the DNA match between Hines
and the samples taken from R.M. after the attack. Hines testified that he knew
R.M. and that they had consensual sex twice before the date of the attack. Hines
did not dispute that R.M. had been raped, but contended that his DNA was found
in the sample taken from R.M. because of their previous consensual sexual
encounters. R.M. testified that she did not know Hines and had never seen him
before the attack.
       A jury convicted Hines of all four counts. He contends that the trial court
erred by not granting his Trombetta motion.

                                      DISCUSSION

1.     The Law Applicable to Trombetta Motions

       The prosecution violates a defendant’s due process rights if it fails to retain
evidence that might be expected to play a significant role in the defense case and
has exculpatory value that is apparent before it is destroyed, so long as comparable
evidence is not available by other reasonable means. (People v. Alexander (2010)
49 Cal.4th 846, 878, citing Trombetta, supra, 467 U.S. at pp. 488-489.) The mere
possibility that evidence may ultimately prove exculpatory is not enough to trigger
that duty, however. (City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 8,
citing Youngblood, supra, 488 U.S. at p. 56.) There is no due process violation
unless the prosecution acted in bad faith. (Ibid.)3


3
        Because we conclude in the alternative that the issue has been waived and
that the missing evidence was not sufficiently exculpatory, we do not address the
bad faith contention.
                                          4
2.     Hines Waived the Trombetta Issue By Not Obtaining a Ruling

       Respondent contends that Hines waived the Trombetta issue because he
never obtained a ruling from the trial court on his motion to dismiss. (People v.
Braxton (2004) 34 Cal.4th 798, 813 [issues waived on appeal for failure to press
for a ruling from trial court].) Hines concedes that he never obtained or “pushed
for” a ruling on his motion. He contends he was excused from doing so after the
trial court ruled that Ferguson’s testimony about the man she saw was irrelevant.
According to Hines this evidentiary ruling expressed the trial court’s belief that
Ferguson’s testimony was not truly exculpatory. We disagree because, as set forth
below, the trial court never ruled on that issue either.
       Shortly before the trial began, the prosecutor brought a motion to prevent
Hines from calling Ferguson as a witness because evidence that she saw another
African-American man in the area was too speculative to serve as proof that
someone other than Hines attacked R.M. After a brief Evidence Code section 402
hearing on the issue, the trial court agreed.
       When court resumed the next day, however, defense counsel said the trial
court had “indicated [the day before] that you would allow me to supplement my
presentation on the 402 motion.” Hines then called Ferguson as a witness for that
purpose. Ferguson recounted her encounter with the man who startled her. She
said Hines looked very similar to that man but did not identify him as the man she
saw that morning. After that testimony, the trial court said to defense counsel, “I
take it you’re not going to call her now.” Defense counsel said he did not know.
The trial court said it could not make a ruling if defense counsel was unsure
whether he intended to call Ferguson as a witness. Defense counsel said he could
not decide until he heard the evidence. The trial court replied, “any ruling is
deferred since it’s not called for.”
       The prosecutor said that because of the deferred ruling it wanted to be sure
Ferguson was not mentioned in the opening statements. The trial court agreed.


                                           5
Defense counsel said he understood that as a result of the deferred ruling on
Ferguson’s testimony that there would be no mention of her. However, defense
counsel said that Ferguson helped R.M. with the sketch that was drawn of the
attacker based on R.M.’s description and wondered whether he could mention that
another person had been present at that time without naming Ferguson.4 The trial
court denied that request. Defense counsel said, “So with a deferred ruling, if at
some point I do call the sketch artist and there is testimony from him --.” The
court replied that that was for future determination based on what happened at
trial.
         Citing to the above-described portion of the record, Hines contends that the
trial court “reserved ruling on the motion, subsequently denying all testimony
relative to Ferguson as irrelevant.” We do not read the record this way. Instead,
after initially ruling that Ferguson’s testimony was irrelevant, the trial court
allowed Hines to reopen the issue and call Ferguson to testify in another Evidence
Code section 402 hearing. At the end of that hearing, the trial court said it would
defer a ruling on the issue because defense counsel was unsure whether he wanted
to call Ferguson as a witness. Because it was unclear whether Ferguson’s
testimony would come in at all, the trial court ruled that she could not be
mentioned in the opening statements. The record does not show that Hines ever
tried to call Ferguson as a witness. As a result, the trial court never actually ruled
on the admissibility of Ferguson’s testimony, an issue that became moot when
Hines failed to call her as a witness.
         As we see it, Hines attempts to excuse his failure to obtain or press for a
ruling on his Trombetta motion by relying on yet another motion where no ruling
was ever made. In short, he seeks to excuse one waiver with another. We deem
the issue waived.


4
       The defense contention that Ferguson helped with the sketch was made at
the previous day’s hearing on the admissibility of Ferguson’s testimony.
                                            6
3.     The Trombetta Motion Lacked Merit

       We alternatively hold that Hines’s Trombetta motion lacked merit because
the missing evidence was not sufficiently exculpatory. As discussed above, a
defendant’s Trombetta rights are not violated unless the evidence is sufficiently
exculpatory and comparable evidence is not available by other reasonable means.
Hines’s motion fails to meet either test.
       As to the first point, Hines contends the missing evidence was exculpatory
because it showed that someone else attacked R.M. However, remote evidence is
not admissible on that issue. (People v. Panah (2005) 35 Cal.4th 395, 481
(Panah).) Evidence that someone else had a motive or the opportunity to commit
a crime, without more, will not raise a reasonable doubt about a defendant’s guilt.
There must be direct or circumstantial evidence linking the third person to the
actual perpetration of the crime. (Ibid.)
       The defendant in Panah was on trial for abducting and murdering a child
who was visiting her father at the apartment complex where the defendant lived.
The defendant claimed the trial court erred by excluding evidence that a witness
saw three men in a moving van at his apartment complex the morning the victim
disappeared. The Panah court noted that the defendant tried to introduce the
evidence to show that the police investigation was shoddy, not to show that
someone else was guilty. Even so, “the mere presence of three men in the parking
lot of defendant’s apartment complex at the time [the victim] disappeared, absent
any evidence, direct or circumstantial, linking them to the crime, does not qualify
as admissible third party culpability evidence.” (Panah, supra, 35 Cal.4th at
p. 481.)
       Ferguson’s missing statement is equally speculative. At most it shows that
another African-American man, albeit one acting oddly, was in the area at the time
of the break-in and attack at R.M.’s apartment. There is no evidence linking that



                                            7
man to the crime. As a result, it was not admissible on the issue of third party
culpability and therefore had no exculpatory value.
       Second, despite Hines’s contention that he was prejudiced by the failure to
fully inquire into the circumstances surrounding Ferguson’s participation in the
photo lineup and develop the exculpatory nature of her statement, he fails to show
that comparable evidence was not reasonably available by other means. Ferguson
testified at the second section 402 hearing and was presumably equally available
as a witness at trial.5 So, the fact that her earlier written statement may have been
destroyed was of little, if any, consequence.

                                   DISPOSITION

       The judgment is affirmed.



                                                  RUBIN, J.
WE CONCUR:



              BIGELOW, P. J.




              FLIER, J.




5
       As discussed in section 2., Hines waived the Trombetta issue by foregoing
the chance to call Ferguson as a witness. Had he done so, and had the trial court
excluded her testimony, we would be in a position to evaluate his claim that no
comparable evidence was available.
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