People v. Harris CA2/5 ( 2021 )

Filed 3/23/21 P. v. Harris CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B299405
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA095119)
v.
TREVEON DESHAWN HARRIS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Alan B. Honeycutt, Judge. Affirmed.
Marilee Marshall, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Kathy S. Pomerantz, Deputy Attorney
General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Treveon
Deshawn Harris (defendant) of the premeditated murder of Alex
Anene (Alex). Defendant moved for a new trial, arguing
ineffective assistance of counsel (he believed his lawyer should
have called a crime scene reconstruction expert to testify) and
newly discovered evidence (opinion testimony as summarized in a
post-trial report prepared by that same expert). The trial court
denied the new trial motion and the only issue we are asked to
decide is whether that was reversible error.
I. BACKGROUND
Alex lived in an apartment with his elderly mother Monica
Anene (Monica). Monica went to bed around midnight on April
20, 2016, and Alex stayed up to finish doing his laundry and
packing for an early morning flight to Nigeria.
Not long after Monica fell asleep, she awoke to the sound of
gunfire; three shots, a pause, then six more shots. Monica got out
of bed and did not see Alex in the apartment. She was not
initially worried, but after a while, she became concerned and
unsuccessfully tried to reach him on his cell phone. Police
activity at the apartment building ensued, and officers soon came
to Monica’s door and told her Alex had been shot and killed in the
building’s laundry room, which also housed the apartment
building’s mailboxes.
The laundry room is on the apartment building’s lowest
level. It is a narrow, roughly rectangular space running from
west to east (approximately 18 feet long) and divided into two
distinct areas: a hallway in the western portion (approximately
12 feet long and four feet wide) with two rows of tenant mailboxes
along one wall, and an alcove in the eastern portion with two
2
washers and one dryer. Alex’s body was found in the hallway
with his head and torso under the mailboxes and his legs angled
toward the north wall. A trail of blood led away from the laundry
room, through the apartment building’s garage, up the driveway,
and out onto the street.
Police investigation of Alex’s killing turned up witnesses
and physical evidence incriminating defendant. One of Alex’s
neighbors lived with defendant’s ex-girlfriend in an apartment
over the laundry room. On the night in question, defendant
knocked on the neighbor’s door looking for his ex-girlfriend. After
the neighbor told defendant his ex-girlfriend was not there, he
“instantly got attitude” and became “upset” and “agitated.” A
short time after the neighbor closed her apartment door (“a
couple of seconds to a couple of minutes” later) the neighbor
heard at least five gunshots. In addition, when the authorities
processed evidence recovered at the crime scene, they found
defendant’s DNA in two samples of blood found inside the
laundry room and on pieces of a broken metal bracelet defendant
was known to wear that was found on the floor of the laundry
room. The police also performed DNA testing on the blood trail
leading away from the scene of the crime; it too was a
probabilistic match to defendant.
Later police investigation revealed defendant sought
medical treatment for a gunshot wound just 15 minutes after he
knocked on the neighbor’s door at the apartment building where
Alex lived. At approximately 2:00 a.m. on the night in question,
defendant went to a nearby hospital with a gunshot wound to his
left arm, but he left without receiving treatment. Later that
morning, however, defendant sought and received treatment for
3
his injury at another hospital. Defendant did not contact the
authorities to report he had been shot.
Police obtained a warrant to search defendant’s residence
and recovered a partially full box of .40 caliber ammunition. The
caliber of these bullets matched the caliber of nine expended
cartridges and bullet fragments found by the police in the
laundry room where Alex was killed. A forensic examination of
the expended cartridges recovered from the murder scene
determined they were all fired from the same weapon.
The police arrested defendant and the Los Angeles County
District Attorney charged him with murdering Alex. At trial, in
addition to presenting the aforementioned physical evidence and
witness testimony, the prosecution introduced call records and
text messages recovered from defendant’s cell phone (even though
defendant attempted to delete the messages). Beginning the
afternoon before the murder, defendant called his ex-girlfriend
several times but she did not answer. In response, he texted her:
“You answer your mother fucking phone when I call.”1 A few
hours later, he tried calling her again, and again she did not
answer; he then sent another text message: “Don’t I answer
when you call?”2 When she sent him a text reply a few minutes
later, he responded with another message: “Acknowledge me
then. Let me know something bitch. If something happened to
1
As read to the jury by the prosecutor. The actual text
message was as follows: “U ANSWER YO M.F. FONE WEN I
CALK.”
2
As read to the jury by the prosecutor. The actual text
message was as follows: “DON’T I ANSWER WEN U CALL?”
4
you out here, you know imma go crazy.”3 After that, in the three
hours that preceded defendant’s appearance at the neighbor’s
apartment door, defendant texted his ex-girlfriend once and
called her seven times without receiving a response.
The prosecution also presented autopsy-related testimony
and testimony from a firearms criminalist who examined the
crime scene. A medical examiner testified Alex was shot six
times: once in the right thigh, twice in the left thigh, once in the
right hand, and twice in the head (these two were the fatal
shots). The firearms criminalist testified Alex was shot in the
head while lying on the floor underneath the tenants’ mailboxes.
The criminalist opined all of the shots were fired in a downward
direction from west to east, that is, from the area near the
entrance to the laundry room toward the alcove where the two
washers and dryer were located.
Defendant did not put on a defense case at trial. But
defendant’s attorney did successfully offer exhibits into evidence
during the prosecution’s case, including a video of the path from
the neighbor’s apartment down the stairs to the laundry room
and some of defendant’s medical records.
During closing argument, the prosecutor theorized
defendant arrived at the neighbor’s apartment “enraged” by his
ex-girlfriend’s failure to answer his calls in the hours
immediately preceding the murder and then, finding her not at
home, killed Alex in an execution-style murder. Relying on the
3
As read to the jury by the prosecutor. The actual text
message was as follows: “ECNOLAGE ME THEN[.] LET ME
KNO SUMTHIN[,] BITCH[.] IF SUMTHIN HAPPEN TOO U
OUT HERE[,] U KNO I’MA GKO CRAZY.”
5
physical evidence, the prosecutor contended Alex must have
snatched at defendant’s left hand, which caused defendant’s
bracelet to break, caused defendant to shoot himself in the left
arm, and resulted in the gunshot to Alex’s right hand. The
prosecution dismissed the defense’s apparent theory—that there
must have been another, unidentified shooter who killed Alex—
because in the confined space of the laundry room it would have
been difficult if not impossible for a third-party shooter standing
near the entrance and firing toward the alcove to shoot around
defendant and hit Alex.
As anticipated, the defense argued there was another
shooter who intended to kill defendant, succeeded in shooting
him in the arm, and unintentionally shot and killed Alex. To
support this theory, defendant’s trial attorney directed the jury’s
attention to medical testimony and records regarding the absence
of any soot or stippling marks around defendant’s gunshot
wound, which, in counsel’s view, meant the shot must have been
fired from some distance away and could not have been self-
inflicted. Defendant’s attorney also argued defendant’s bracelet
was not torn from his wrist by Alex but shot off by the
unidentified third-party shooter.
After less than an hour of deliberation, the jury found
defendant guilty of first degree murder. The jury also found true
an associated personal use of a firearm enhancement (Pen. Code,4
§ 12022.53, subd. (d)).
Before sentencing, defendant retained new counsel and
filed a motion for a new trial that is the focus of this appeal. The
4
Undesignated statutory references that follow are to the
Penal Code.
6
new trial motion chiefly argued defendant’s former attorney (who
we will call the trial attorney) provided constitutionally
ineffective assistance in failing to call Bryan Burnett (Burnett), a
previously appointed expert for the defense who purportedly had
“conclusive evidence” of defendant’s innocence. Attached as an
exhibit to the motion was a 23-page report Burnett prepared
after the jury’s guilty verdict.
The trial court held an evidentiary hearing on the new trial
motion; defendant’s trial attorney and Burnett both testified.
Defendant’s trial attorney had received, at the time of trial, a
shorter seven-page report from Burnett opining defendant’s
bracelet was likely shot off defendant’s wrist. Trial counsel
testified he ultimately decided not to call Burnett because, on
balance, he thought he was a “loose cannon” whose testimony
would hinder, not help, the defense.
Among other things that gave him pause, defendant’s trial
attorney found Burnett’s belief that there were two guns involved
in the crime problematic. Trial counsel testified he tried to
explain to Mr. Burnett “repeatedly” that the presence of a second
gun would not help—and would actually hurt—defendant’s case
because there was no physical evidence supporting such a theory
(such as expended cartridges or bullets from a gun other than a
.40 caliber Smith and Wesson firearm) and because the jury
would likely conclude any second gun (in addition to a gun used
by the assumed third-party shooter) would have been in
defendant’s hand, not Alex’s. Defendant’s trial attorney also
consulted with another crime scene reconstructionist who
disagreed with Burnett’s findings, and this reinforced the
attorney’s view that it would be unwise to call Burnett to have
him testify to his “second gun” theory. Defendant’s trial attorney
7
also considered the favorable testimony he had been able to elicit
from the prosecution’s experts. The deciding factor for
defendant’s trial attorney in deciding not to call Burnett,
however, was the revelation that he had been professionally
disciplined.5 Defendant’s trial attorney consulted with a
supervisor in his office and the supervisor concurred with his
decision not to put Burnett on the witness stand.
When it was Burnett’s turn to testify during the new trial
motion hearing, he opined his findings about the bracelet in his
shorter, first report provided to defendant’s trial attorney were
exculpatory because they refuted the prosecution’s theory that
Alex pulled the bracelet from defendant’s wrist and, derivatively,
the theory that there had been a struggle between Alex and
defendant. Burnett also testified his second, longer report
completed after trial was also exculpatory because it showed
defendant “was a victim, not an assailant,” who happened to be
“in the wrong place at the wrong time.”
Among other things, Burnett opined Alex was shot in the
legs by a third party outside of the laundry room because the leg
wounds were “through and through” and there were no
corresponding defects in the walls of the room from bullet strikes.
Burnett testified the evidence supporting his opinion—prior
bleeding by Alex and bullet strikes on the floor of the laundry
room—was likely obscured by the massive blood pool near Alex’s
5
Although it had been explained to him at the time,
defendant’s trial attorney could not recall the exact nature of the
professional discipline suffered by Burnett. During his direct
examination, Burnett denied his accreditation had been taken
away.
8
body. Under questioning from the trial court, however, Burnett
conceded his opinion about the blood pool concealing theory was
rendered without any scientific basis.
Burnett further opined defendant was not Alex’s murderer
due to the nature of defendant’s arm wound, which he
characterized as a hit from a ricocheting bullet. Under
questioning from the trial court and defendant’s new attorney,
Burnett acknowledged he was not a pathologist and conceded
that his opinion about how an unjacketed bullet travels inside a
human body was based primarily on his “case experience” (prior
to opening his consulting business, he had worked for five years
as a trainee in a private crime lab).
The trial court denied the motion for a new trial. The court
found trial counsel made a reasonable decision not to call Burnett
after making a “detailed” assessment of the value of his
testimony and in light of the fact the prosecution had essentially
conceded at trial it was possible the bracelet had been shot off
rather than pulled off by Alex, which meant the information was
before the jury even without Burnett’s testimony. As for
defendant’s new evidence argument, i.e., the opinions expressed
in the longer report Burnett produced post-trial, the court found
the report based on “pure[ ] speculation” and, as such, insufficient
to warrant a new trial.
The trial court sentenced defendant to 50 years to life in
state prison and this appeal ensued.
II. DISCUSSION
As we will go on to explain at greater length, the trial court
correctly denied defendant’s new trial motion. Defendant’s trial
attorney made a reasonable—we could even say wise—tactical
9
decision not to call Burnett after considering his background and
proposed testimony and concluding he would not help (and might
even hurt) defendant’s case. The so-called new evidence in
Burnett’s post-trial report, for some of the same reasons, also
does not suffice to establish the trial court abused its discretion
in denying defendant’s motion for new trial.
A. Defendant’s Trial Counsel Was Not Constitutionally
Ineffective
A trial court has “authority to grant a new trial on the
ground of inadequate representation of counsel,” even though it is
not one of the enumerated grounds in the statutory provision
(§ 1181) for ordering a new trial. (People v. Fosselman (1983) 33
Cal. 3d 572, 577-578; People v. Callahan (2004) 124 Cal. App. 4th
198, 209.)
“‘[A] defendant claiming a violation of the federal
constitutional right to effective assistance of counsel must satisfy
a two-pronged showing: that counsel’s performance was deficient,
and that the defendant was prejudiced, that is, there is a
reasonable probability the outcome would have been different
were it not for the deficient performance.’ [Citations.]” (People v.
Woodruff (2018) 5 Cal. 5th 697, 736.)
In determining whether counsel’s performance was
deficient, we consider whether “‘“‘counsel’s representation fell
below an objective standard of reasonableness under prevailing
professional norms.’”’” (People v. Johnson (2016) 62 Cal. 4th 600,
653.) We “‘defer[ ] to counsel’s reasonable tactical decisions’ and
presume that ‘counsel acted within the wide range of reasonable
professional assistance.’ [Citation.]” (People v. Arredondo (2019)
8 Cal. 5th 694, 711.) Decisions about what witnesses to call are
10
“matters of trial tactics and strategy which a reviewing court
generally may not second guess.” (People v. Mitcham (1992) 1
Cal. 4th 1027, 1059; accord, People v. Bolin (1998) 18 Cal. 4th 297,
334 [deciding whether to call certain witnesses is a matter of trial
tactics, unless that decision results from an unreasonable failure
to investigate].)
The trial court correctly concluded there was no
performance falling below prevailing professional norms here.
Defendant’s trial attorney evaluated the value of Burnett’s
testimony to the defense in light of several factors including
favorable testimony regarding defendant’s bracelet that was
obtained from the prosecution’s witnesses, Burnett’s persistence
in promoting a theory that counsel found unsupported and
unhelpful, and the professional discipline Burnett suffered, which
would undermine the persuasiveness of his opinions. These
considerations alone provide a sound basis for making a
reasonable tactical decision to forgo calling an expert witness.
But counsel did more and consulted with (1) another defense
expert who faulted Burnett’s findings and (2) another, more
senior attorney who concurred with the decision not to call
Burnett to testify. On this record, it is not even close: defendant’s
trial attorney made a reasonable tactical decision that we will not
second guess. (People v. Mitcham, supra, 1 Cal.4th at 1059.)
B. The Trial Court Correctly Concluded Burnett’s Post-
Trial Expert Report Was Not Newly Discovered
Evidence Warranting Retrial
A new trial should be granted based on newly discovered
evidence only if the evidence is “material to the defendant” and
the defendant “could not, with reasonable diligence, have
11
discovered and produced [the evidence] at the trial.” (§ 1181,
subd. (8).)
“In ruling on a motion for new trial based on newly
discovered evidence, the trial court considers the following
factors: ‘“1. That the evidence, and not merely its materiality, be
newly discovered; 2. That the evidence be not cumulative merely;
3. That it be such as to render a different result probable on a
retrial of the cause; 4. That the party could not with reasonable
diligence have discovered and produced it at the trial; and 5. That
these facts be shown by the best evidence of which the case
admits.”’ [Citations.]” (People v. Delgado (1993) 5 Cal. 4th 312,
328.) “‘[T]he trial court may consider the credibility as well as
materiality of the evidence in its determination [of] whether
introduction of the evidence in a new trial would render a
different result reasonably probable.’ [Citation.]” (Id. at 329.)
Our review is for abuse of discretion. (Id. at 328.)
Three of the aforementioned factors establish there was no
abuse of discretion in denying defendant’s new trial motion. The
evidence, i.e., Burnett’s opinions in his longer post-trial report,
could have been discovered and produced at trial: Burnett was
the defense’s appointed expert, he consulted at significant length
with defense counsel before trial, and all of his opinions
expressed in his post-trial report concerned physical evidence
available at the time of trial. The purported newly discovered
evidence was also largely cumulative because the defense was
able to argue at trial—relying on points developed during the
prosecution’s case—that the bracelet was shot off defendant’s
arm (not pulled off during a struggle with Alex). And the claimed
newly discovered evidence was not so significant as to make a
different result probable on a retrial. Burnett’s conclusions were
12
informed by speculation and analysis outside his core area of
expertise, the jury likely would have discounted his opinions
anyway when it learned of the professional discipline he suffered,
and the import of his conclusions paled in comparison to the
other strong evidence in the case: defendant’s DNA at the scene,
his upset demeanor before the shooting, and the ammunition
discovered during the search of his residence that matched the
caliber of the ammunition used in the shooting (which was
determined to have come from a single firearm).
13
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
14