People v. Gebreselassie CA1/3

Filed 9/2/15 P. v. Gebreselassie CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A133350
v. (Alameda County
ASMEROM GEBRESELASSIE, Super. Ct. No. C158985A)
Defendant and Appellant.
THE PEOPLE,
Plaintiff and Respondent, A134246
v.
TEWODROS GEBRESELASSIE, (Alameda County
Defendant and Appellant. Super. Ct. No. C158985B)
Asmerom and Tewodros Gebreselassie were convicted of the Thanksgiving, 2006
murders of Regbe Bahrenegasi and Winta and Yonas Mehari. It is undisputed that
Asmerom1 was the shooter, while his younger brother Tewodros was prosecuted as an
accomplice. Asmerom contends the court committed constitutional error when it
deprived him of his right to the retained counsel of his choice, denied requests for
continuances after he was granted leave to represent himself, terminated his right of self-
representation during trial, and denied his post-verdict request for a copy of the trial
1
Because a number of the individuals involved in the case share surnames, we will
in most cases use first names. We do so only for clarity, and mean no disrespect by
adopting this practice.
1
transcript. In addition, he alleges prosecutorial misconduct and a number of prejudicial
evidentiary errors.
Tewodros contends the trial court erroneously refused to sever his case or grant a
mistrial due to Asmerom’s misconduct before the court, admitted an investigating
officer’s testimony that he disbelieved a statement Tewodros gave shortly after the
murders, admitted prejudicial double hearsay that suggested he lied about registering a
gun he purchased not long before the murders, and refused his request to respond to that
testimony. Tewodros also asserts reversal is warranted for prosecutorial misconduct.
Both defendants maintain that the alleged errors, independently or cumulatively, deprived
them of a fair trial.
We affirm the judgment as to Asmerom. We conclude that the combined effect of
evidentiary errors affecting Tewodros deprived him of a fair trial and thus compels
reversal of his conviction.
BACKGROUND
This was a very long trial, spanning some four months before the jury. The
following is an admittedly non-comprehensive overview of the evidence introduced
during those months, prefaced for clarity with a brief description of the identities and
interrelationships of the two families most deeply involved in and affected by the
murders: the Gebreselassies and the Meharis. We will supplement the following
overview as we address the specific legal challenges raised in this appeal.
I. The Meharis and the Gebreselassies
Asmerom and Tewodros are two of 11 siblings. The family includes brothers
Abraham, Tewodros, Tesfamariam (Tesfu) Tewolde, Dawit, Hermon and Mulugeta, and
sisters Senait, Asmeret, and Betelhem. Asmerom, the second oldest, left Ethiopia as a
young man in the early 1980’s and settled with relatives in Oakland in 1985. He later
helped older brother Abraham emigrate to the United States, followed eventually by their
mother and the rest of the siblings.
Abraham met his wife, Winta Mehari, during a vacation in Ethiopia in 1998.
Their son, Issac, was born in 2004. During the intervening years the Gebreselassie
2
family helped Winta’s mother Regbe and her brothers, twins Merhawi and Angesom,
Yonas, and Yehferom, emigrate to the United States. With the exception of Winta,
Abraham and Issac, who lived in Berkeley, the Gebreselassies and the Meharis lived in
the Keller Plaza apartment complex in North Oakland.
The two families were very close, “like one family,” and shared a “very good
relationship.” Angesom Mehari described the Gebreselassie matriarch as “almost like a
mother,” and her children like his own brothers and sisters. Angesom and Merhawi
viewed Abraham as a father or brother. The two families frequently socialized together
and shared holidays, birthdays and family dinners.
II. Abraham Gebreselassie’s Death
In the early morning of March 1, 2006, Abraham, a seemingly healthy 42-year old,
suddenly fell ill and died. Winta called 911, reporting that her husband was not
breathing, then called her family and the Gebreselassies. An autopsy conducted by
pathologist Thomas Rogers was inconclusive. A toxicology screen for prescription and
street drugs was negative and there was no evidence of foul play.
Suspicious about their brother’s sudden death, Asmerom and Tesfu met with
Berkeley Police Sergeant Robert Rittenhouse to discuss their belief that Winta had a hand
in it. Sergeant Rittenhouse reviewed the autopsy and 911 reports and interviewed Winta,
Dr. Rogers, a second pathologist the Gebreselassies had retained to review Dr. Rogers’
report, and a supervising investigator with the coroner’s office. On August 11, Sergeant
Rittenhouse told Asmerom and Tesfu that Abraham’s death did not appear to be a
homicide and that the police department did not intend to further investigate it.
Asmerom, nonetheless, remained suspicious. He believed the Meharis had two
motives for murdering Abraham. They wanted to prevent him from disclosing that
Merhawi Mehari was homosexual and to collect on Abraham’s life insurance policy.
Asmerom continued to urge Sergeant Rittenhouse and the insurance company to
investigate his brother’s death. And he repeatedly confronted the Mehari family. Twice
in the late summer or fall he went to their apartment and questioned Winta’s mother and
brothers about the night Abraham died. According to Angesom, Yehferom and Merhawi,
3
Asmerom accused the Mehari family of murdering Abraham. Concerned by these
confrontations, the family decided that Asmerom was no longer welcome in their home
and agreed to lock the door and call the police if he returned.2
Yehferom testified about another encounter with Asmerom, about six weeks
before Thanksgiving, when Asmerom and Tesfu came to his workplace at Central
Parking in Oakland. Asmerom said he had discovered something about Merhawi. Then,
according to Yehferom, Asmerom said “You guys have murdered Abraham, I’m going to
murder you,” and insulted Yehferom and his family. They left when Yehferom
threatened to call the police. Then, about 10 days before Thanksgiving, Asmerom and
Tesfu approached Merhawi at the Oakland library. Asmerom confronted Merhawi with
e-mails from a gay website that he believed proved Merhawi was homosexual, and
accused him of having molested their young nephew Issac. According to Asmerom,
Merhawi admitted he was homosexual and that he had molested Issac, and he begged
Asmerom not to tell anyone. According to Merhawi, Asmerom called Regbe a
“prostitute” and said “[t]hat bitch mother of yours and you guys are the ones that killed
my [brother].” After speaking with Merhawi, Asmerom went to see Yehferom to tell him
about Merhawi’s sexual orientation “since [Yehferom] is the older sibling.” Asmerom
testified that Yehferom “came with an attitude” and refused to speak with him.
Tewodros was not present on these occasions, never said anything derogatory to
the Meharis, and conducted himself respectfully in their presence until Thanksgiving day
2006. Merhawi testified that before the murders he saw Tewodros as a pacifist who
wouldn’t hurt a fly. Tewodros testified that he and the Meharis, including Winta, Issac,
Angesom, Merhawi and Yonas, continued to “constantly” visit each other at their
respective homes between Abraham’s death and Thanksgiving. Tewodros was never told
he was unwelcome at the Meharis’ home.
Tewodros was aware of but did not share Asmerom’s suspicion that the Meharis
had killed Abraham. His concerns, rather, were that an unknown outsider, possibly
2
Asmerom, in contrast, testified that he continued to visit Regbe at her apartment
up until the day before Thanksgiving.
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someone Winta knew, might have murdered Abraham for the insurance proceeds and, if
so, that Asmerom’s continuing investigation could endanger the whole family. As a
precaution the Gebreselassies changed the locks to each of their apartments, and
Tewodros bought a gun.
III. The Murders of Winta, Regbe and Yonas
The Mehari family gathered at Regbe’s apartment the afternoon of November 23,
2006 for Thanksgiving lunch. Regbe, Winta, Issac, brothers Angesom, Merhawi, Yonas
and Yehferom, and Misghina Gebreselassie, a cousin of Asmerom and Tewodros, were
there. Misghina had something to drink and left after a few minutes. Tewodros arrived
just before Misghina left. He greeted everyone in the apartment, asked Angesom about
his school, spoke with Yonas about college, and commented to Winta that Issac was
growing up. Regbe invited Tewodros to eat with them.
Tewodros got a plate of food and sat on a chair next to the television. Angesom,
Yehferom and Winta were sitting on the couch across from him. Yonas was at a
computer table near Winta. Merhawi was on the phone with Yosef, the eldest Mehari
brother, who lived in London. Regbe sat on a stool next to the phone, using a small
portable burner to prepare a traditional Ethiopian coffee ceremony. Tewodros was
playing with 2-year-old Issac, letting him open and shut his cell phone.
Much of what happened next was hotly disputed at trial, as will be seen. What is
undisputed is that Asmerom arrived at the Mehari apartment shortly after 3 p.m., armed
with a nine-millimeter semiautomatic pistol. Shots broke out. Regbe, Yonas and Winta
were killed, Yehferom was shot in the ankle, and Angesom was severely injured when he
jumped from the third floor apartment to escape.
Either just before or after the shooting began, Tewodros grabbed Issac and fled to
his mother’s apartment. Asmerom also returned there, called 911 and reported that he
had shot several people in self-defense. He begged the police to arrive quickly because
people had been hurt.
Two guns were recovered from the apartment, a Lorcin 380 automatic that had
been reported stolen from its registered owner and a Luger Kahr Arms 9 millimeter
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registered to Mulugeta Gebreselassie. The Lorcin had six live rounds in its magazine but
the chamber was empty. All of the fatal bullets and cartridge casings found at the scene
of the shootings came from the Luger. Asmerom admitted bringing the Luger to the
Meharis’ apartment, but denied that he brought a second gun. Tewodros’s cell phone was
found by the chair where he had been sitting, next to Yonas’s body.
IV. Prosecution Case
The prosecution theory was that Asmerom murdered Winta, Regbe and Yonas as
revenge for Abraham’s death and Tewodros helped him when he signaled that the
Meharis had all gathered, let him into their apartment, and then spirited Issac to safety
before Asmerom opened fire. Asmerom admitted the shooting but asserted he did so in
self-defense. His theory was that the Meharis had killed Abraham primarily to conceal
Merhawi’s sexual orientation, and that they lured him to their apartment to kill him for
the same reason. With respect to Tewodros, the defense was that he knew nothing of
Asmerom’s plans and had no part in the murders.
A. Angesom’s Testimony
The state’s case was supported primarily by the testimony of Angesom, Merhawi
and Yehferom. Angesom testified he saw Tewodros walk toward the apartment door
while speaking on his cell phone. He paced back and forth near the door for several
minutes as Issac played around and between his legs. Then, Asmerom walked in and
Tewodros left the apartment with Issac. Angesom could see part of the door from where
he sat, but he did not see Tewodros unlock or open it. Other than Issac, none of the
Mehari family members were anywhere near the front door. Asmerom was holding a gun
in his right hand and a brown paper bag in his left. First he shot Yonas, then, as Regbe
cried “my child” and reached toward him, Asmerom shot her too. At that point Angesom
escaped by jumping head first from the living room window to the turf three floors
below, seriously injuring his back and arm.3
3
Angesom testified that he did not go into the bedroom or see any other family
members do so. He did not remember telling his doctor in December 2006 that he
jumped from the third story balcony, which is off the bedroom.
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B. Merhawi’s Testimony
Merhawi gave the following account. Issac was playing with Tewodros’s phone,
opening and shutting it. Later Merhawi saw Tewodros talking on a cell phone, although
he had not heard it ring. Tewodros was saying “Hello, hello, I can’t hear you” and
“Hello, Mulu, Hailu, hello, I can’t hear you” as he walked toward the apartment’s front
door. Issac was with him. Tewodros unlocked the lower lock and tried to open the door,
but the top lock was still locked. As Tewodros reached to unlock it, the house phone
rang and Merhawi crossed the room to answer it. The caller was his brother Yosef. After
the two chatted briefly, Yosef asked to speak with Regbe.
Merhawi could not see the front door or Issac and Tewodros from where he was
standing. He did not see Tewodros unlock the upper lock or open the door. But
Asmerom came in and started shooting. First he shot Yonas, then Regbe. Winta got up
from the sofa, and Asmerom shot and killed her. Merhawi did not see what happened to
Angesom once the shooting started. One minute Angesom was standing up, and the next
he was gone. He did not see Angesom jump out the window or move towards the
bedroom. Yehferom grabbed Asmerom’s hand and they struggled over the gun.
Merhawi followed and grabbed Asmerom from behind. Asmerom backed into the
hallway and fled.
Merhawi had never owned a gun, had never seen any of his family with a gun, and
none of them had a gun the day of the murders. He denied that his family invited
Asmerom over for Thanksgiving to murder him so that he could not expose Merhawi’s
sexual orientation or continue to investigate Abraham’s death. Merhawi confirmed that
Tewodros knew Issac liked phones and had given him a phone to play with on
Thanksgiving. He denied that his mother opened the door for Asmerom.
C. Yehferom’s testimony
Yehferom testified that Tewodros was playing with Issac, holding his phone and
playing different ring tones, when he started talking on the phone as if he had received a
call. He walked toward the front door saying “Who’s this? Who’s this? I can’t hear
you.” After pacing back and forth by the door he unlocked both locks, opened the door
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and carried Issac out of the apartment. Asmerom came in carrying a gun in his right hand
and a plastic bag in his left hand. He said “[y]ou’ve killed Abraham and I’m going to kill
you” and shot Yonas, Regbe and Winta. Yehferom saw Angesom pass by on his right
toward the living room window just after Regbe fell. Yehferom struggled with Asmerom
and grabbed the gun away from him, but Asmerom pulled a second gun from his
waistband. Yehferom was shot in the ankle during the struggle, but managed to get the
second gun away from Asmerom and pushed him toward the hall.
D. The Initial Investigation
Questioned by police the day of the murders, Merhawi said that Tewodros fled the
apartment with Issac after the first shot was fired, but Yehferom said they left before
Asmerom came in. Yehferom told police that Asmerom came in saying “Everybody here
killed Abraham, I’m going to kill you,” but Merhawi said that Asmerom said nothing.
Merhawi told police that Asmerom had one gun. Yehferom said Asmerom entered
holding two silver handguns. When asked whether Asmerom fired both of the guns or
just one, Yehferom said just one, and added that Asmerom was carrying a gun in his right
hand and a plastic bag in his left. There were no records indicating that police looked for
or found a plastic bag at the crime scene.
Asmerom and Tewodros were questioned by homicide police early the morning of
November 24. Tewodros waived his Miranda rights and spoke with Sergeant James
Morris for about three hours, of which only 21 minutes were taped. He explained that he
had suspected foul play was involved in Abraham’s death, but “kept everything inside.”
Regbe had invited him to Thanksgiving when he ran into her and Winta the day before.
On Thanksgiving he was playing with Issac when he heard Yehferom yelling at
Asmerom. He did not know that Asmerom was coming over or who opened the door to
let him in. Yehferom pulled out a gun and Asmerom started shooting in the air.
Tewodros heard one shot, grabbed Issac and ran.
Asmerom was questioned for just over an hour, about half of which he spent
talking about his belief that the Meharis killed Abraham. Concerning the shootings, he
initially told Sergeant Morris that Regbe opened the door for him and then stood there,
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but he later said that she sat down after letting him in. He admitted the shootings. He
said that Winta was “evil,” that the events of November 23 happened because Merhawi
was a homosexual, and that the Meharis “maybe” murdered Abraham to conceal
Merhawi’s homosexuality. He knew the Meharis planned to kill him to prevent him
from revealing Merhawi’s lifestyle and that Winta invited him to Thanksgiving to “set
him up.”
Oakland Police Officer Jason Sena interviewed Yehferom around 5:00 p.m. that
evening. Yehferom said Tewodros had been in the apartment for a short period of time
and then made a call, opened the door for Asmerom, and left with Issac as Asmerom
entered. Asmerom came in holding two guns and started shooting.
E. Hailu Legsse and Mulu Reda
Hailu Legsse and Mulu Reda, a married couple, also lived in the Keller Plaza
complex and were acquainted with the Mehari and Gebreselassie families. Both testified
that Tewodros did not call them on November 23, 2006.
F. Cell Phone Records
The prosecution theorized that Tewodros signaled Asmerom to come over to
Regbe’s apartment by calling another brother, Dawit Gebreselassie, who was with
Asmerom in their mother’s apartment. There were no calls between Tewodros and
Asmerom on the day of the shooting. Records for Tewodros’s phone showed two calls
were placed to Dawit’s number on November 23, one at 2:57 p.m. and the second at 3:04
p.m. The first call connected for 3 seconds but could have gone to voice mail or was
unanswered. The second call went through, but the connection time was zero seconds.
Michael Dikovitsky from Metro PCS cell phone services testified that Tewodros’s
phone would call the last number dialed if someone flipped it open and twice hit the
“send” button. Dikovitsky testified that to speed dial a call required first pressing the
assigned speed dial number, followed by the “send” key, then “end call.” He did not
know whether opening and closing the phone would activate or deactivate the speed dial.
But Raymond MacDonald, a manager with T-Mobile’s law enforcement relations group,
also testified about one-touch dialing with Tewodros’s phone. According to MacDonald,
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one simply needs to hit and hold down a single key to speed dial a call; it was not
necessary to press send as well. MacDonald also testified that closing the phone would
end the call.
IV. Defense Cases
A. Asmerom’s Testimony
Asmerom testified in his own defense. He said that on November 10, 2006 he told
Merhawi he had proof Abraham was murdered, and that he would not expose Merhawi’s
homosexuality if he confessed he was present when Winta killed Abraham. Merhawi
admitted to Asmerom that Winta poisoned Abraham to keep him from exposing
Merhawi’s homosexuality and for the insurance money. He, Yonas, and Angesom were
there when Abraham died. Three days later Asmerom told Merhawi he had changed his
mind and intended to expose Merhawi’s homosexuality to his family and church.
On November 20 Asmerom sent Winta a letter with “proof” that her brother was
homosexual, and proposed they hold a family discussion about it. The next day he saw
Winta at Keller Plaza. She admitted Merhawi was homosexual and, further, that he had
molested Issac. At Asmerom’s urging, Winta invited him to meet with the Meharis to
discuss the families’ problems at Regbe’s apartment when they gathered for
Thanksgiving.
But Asmerom grew suspicious about Winta’s invitation that he come alone. He
believed that she and her family might be planning to kill him to keep him from exposing
Merhawi’s homosexuality and the truth about Abraham’s death, so he brought his gun to
the meeting to defend himself.
Asmerom knocked at the apartment door. Regbe, not Tewodros, opened it for
him. Tewodros was sitting in the living room next to Issac; Asmerom had not known
Tewodros would be there. Yehferom and Merhawi almost immediately started cursing at
him and Merhawi threatened to “knock [him] down.” Asmerom started to back out of
the apartment, but Merhawi drew a gun from his waistband. Asmerom pulled out his
own gun, told Merhawi to put his weapon down, and fired a warning shot toward the
window.
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Everybody ducked, including Merhawi. At that point Asmerom saw that
Yehferom also had a gun, on the sofa. Scared, he said “If anybody moves, I’m going to
kill you.” Tewodros grabbed Issac and left. Yehferom picked up his gun. Asmerom
fired in his direction. Everything became chaotic. Merhawi ran towards Asmerom with
his gun drawn. Asmerom shot toward Merhawi, then shot Regbe as she tried to grab him.
Regbe wanted to kill Asmerom for the same reason the Meharis killed Abraham: to hide
Merhawi’s homosexuality. Winta then came at Asmerom, screaming and saying “it’s
our fault, our fault,” so he shot her too. He did not want to kill her, but she was blocking
his way.
Yehferom grabbed Asmerom’s hand. Asmerom’s gun went off. He saw that
Yehferom was also holding a gun. He dropped his weapon and struggled with Yehferom,
knocking the gun from his hand. The struggle continued until Asmerom distracted
Yehferom by pretending he had a second gun in his waistband and managed to flee to his
mother’s apartment.
B. Tewodros’s Testimony
Tewodros testified that he ran into Regbe and Issac on the street on Thanksgiving
morning. He told Regbe he would stop by later, and she welcomed him. Tewodros
neither told Asmerom he was planning to visit the Meharis nor knew his brother would
be there. Asmerom did not ask him to be there and open the door for him.
When Tewodros dropped by on Thanksgiving day, the Meharis were watching
football and Regbe was making and serving coffee. Everyone was friendly, but
Tewodros felt they were nervous. Regbe gave him coffee and food. After he ate,
Tewodros sat on a chair near the television. Issac had been playing with his cell phone
most of the time since he arrived at the apartment. Tewodros was bouncing Issac in his
lap when Regbe and one of the twins got up. Yehferom yelled “what the hell are you
doing here?”
Tewodros looked up and saw Asmerom. When questioned after the murders he
said he did not see who opened the door for Asmerom, but he guessed it was Regbe
because she was close to the door. Asmerom said something like “Winta, what’s going
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on.” Yehferom pulled a gun, then Asmerom said “drop your gun” and fired toward the
window. He did not see Asmerom pull the gun out. He heard a shot and then saw a gun
in his brother’s hands. Nor did he see Yehferom aim or fire his gun. Tewodros ducked,
then fled the apartment with Issac.
Tewodros had purchased his Metro PCS flip phone about two months earlier under
an assumed name to preserve his anonymity when he visited political chat rooms. His
brother Dawit’s phone number was programmed into the phone so that it could be speed-
dialed by pressing and holding the number assigned to it for a few seconds or less.
Closing the phone would end the call. It was possible that Issac inadvertently pressed
Dawit’s number when he was playing with the phone.
Tewodros had called Dawit earlier on November 23, but he did not call him, or
anyone else, from Regbe’s apartment. He did not pretend to have a phone conversation
and did not say “Mula, Mula” or “Hailu, Hailu.” Issac was playing with the phone most
of the time. Sometime later Tewodros realized the phone had been left behind in the
Meharis’ apartment, but he had no idea whether he left it or Issac was playing with it and
left it there. He did not throw or kick the phone back into the apartment as he fled.
A couple of months before Thanksgiving, Tewodros bought a gun and changed his
family’s locks for protection. He registered the gun in his name, kept it in his mother’s
closet and never took it outside.
Asmerom told Tewodros in November that the Mehari family had murdered
Abraham to hide Merhawi’s homosexuality. Tewodros believed this was true. He was
worried that Merhawi would molest Issac and felt that, as a homosexual, Merhawi should
not be active in the church. Nonetheless there were no problems between himself and the
Meharis before November 23, and he and the Meharis frequently visited each other’s
homes. They did not discuss the Gebresalassies’ suspicions about Abraham’s death,
although everyone knew that Asmerom was still investigating it. After the murders
Tewodros told the district attorney that Asmerom and the Meharis did not get along, but
at trial he testified that he only meant the Meharis were uncomfortable around Asmerom
because of his investigation.
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V. Verdicts
Asmerom and Tewodros were each charged with three counts of murder,
attempted murder, kidnapping and false imprisonment by violence. After three months of
trial and six days of deliberations, the jury found both defendants guilty on all counts.
Both were sentenced to multiple consecutive life terms without the possibility of parole.
Both filed timely appeals.
DISCUSSION
Asmerom’s Appeal
I. Issues Regarding Representation
Asmerom raises three issues related to his representation at trial. First, he asserts
the trial court erroneously refused to let him substitute in newly retained private counsel
before the trial started. Then, he contends, after he successfully moved to represent
himself, the court committed further error by denying his requests for a continuance to
prepare his case. Finally, Asmerom asserts the court violated his constitutional right of
self-representation when it later terminated his pro se status. Having carefully reviewed
the extensive record, we are satisfied that none of these points have merit.
A. Choice of Counsel
We turn first to Asmerom’s assertion that the trial court violated his constitutional
right to counsel of his choosing when it denied his request to substitute in new private
counsel before the trial started. We disagree.
1. Background
Asmerom was initially represented by Ray Plumhoff and Marvin Lew from the
Office of the Public Defender. In August 2008 he unsuccessfully moved for new counsel
under People v. Marsden (1970) 2 Cal. 3d 118. In September 2008, William DuBois
stated his intent to substitute in as privately retained counsel. The court cautioned Mr.
DuBois that “given the fact that this case is now about two years old, . . . it’s going to be
my intention to get this case tried by mid-2009” and that “[g]iven the amount of litigation
that occurred in this case before this arraignment, I do not anticipate that it should take
too long for you to be ready for trial.” Mr. DuBois concurred.
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After delays occasioned in part by Mr. DuBois’s commitments on other trials, on
June 5, 2009 the court again remarked on its prior intention to start trial in July.
Nonetheless, it continued the case until August 17 due to Mr. Du Bois’s “medical issues
that have to be dealt with.” Then, on August 4, Asmerom wrote to the court complaining
that Mr. Du Bois was too busy to pay attention to his case and was only “after money.”
The letter also complained that former counsel Plumhoff “didn’t do his best during the
prelim hearing, that’s why I am bound to trial.” A week later Du Bois moved to
withdraw as counsel on the ground of an irremediable breakdown of the attorney-client
relationship. The court granted the motion, and on August 31 reappointed Mr. Lew over
Asmerom’s protests that he had a conflict of interest with the public defender and that
Lew was not his attorney. In October Asmerom retained William Cole as his new
attorney and the court relieved Mr. Lew.
Mr. Cole’s representation was also short-lived. On December 1, 2009, at
Asmerom’s request, the court relieved Mr. Cole and again reappointed the Public
Defender to represent him. The court warned Asmerom that “I will not let another
lawyer in the case. We’re going to set a trial date on December 18th. I’m not going to let
another lawyer in the case unless they are able to go to trial on that date. You need to
understand that, I don’t want you to be surprised.” On December 18 the court set trial for
May 3 and instructed counsel to block out their calendars through at least June.
On May 27 Asmerom brought another Marsden motion once again to remove
Plumhoff and Lew. He told the court “ ‘My public [defenders] have revealed or have
given defense evidence to the prosecutor. They are an agent of the District Attorney.
The way my attorneys have dealt with my case is incompetence and intentional to hurt
my case. They violated their duty of loyalty to me. Their primary motive is their
personal interest rather than to represent their client.’ ” After exploring Asmerom’s
specific complaints, most of which seemed to concern evidence he felt his attorneys were
not properly addressing, the court denied the motion.
On June 21 Asmerom’s attorneys declared a doubt as to his competence. Mr. Lew
explained their concerns were “specifically in regards to his ability to rationally assist
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counsel . . . in preparation of his defense pursuant to Penal Code section 1368, et seq.
[¶]. . . [¶] Mr. Gebreselassie’s potential testimony in this matter is critical to his defense
of self-defense. He has been unable to prepare to testify because of his preoccupation
with matters which we believe are properly characterized as paranoid delusions. These
things have prevented Mr. Gebreselassie from preparing his testimony as well as
preventing him from preparing other aspects of his defense with our cooperation.”
Asmerom’s delusional thinking was said to include beliefs that his attorneys were
colluding with the District Attorney out of racist animus; that they were sabotaging his
defense because (he believed) they were homosexual and therefore in league with two
gay witnesses [presumably Angesom and Merhawi]; and that they possessed, but refused
to present, “categorically irrefutable” evidence that the Meharis killed Abraham.
Asmerom had refused to speak with counsel since June 9 because of his delusions about
their allegiance with the prosecution.
The court suspended proceedings for a psychological evaluation and took the
Marsden motion under submission. At a July 12 hearing Asmerom continued to detail
his complaints about attorneys Lew, Plumhoff, Cole and Du Bois. Lew and Plumhoff felt
they could continue representing Asmerom pending the competency evaluation. On July
26 the court granted the Marsden motion and relieved Lew and Plumhoff. The court
explained that “the disagreements here signal a breakdown that is such a magnitude that I
don’t think that, even though you two are outstanding lawyers, I don’t think [Asmerom]
can get a fair trial if you guys are representing him. Because I think—whether the
delusions or non-delusions, his state of mind is such as it relates to both of you that he
will not cooperate, he will order his family not to cooperate. . . .”
After contacting the court-appointed counsel panel, the court provisionally
assigned Mr. Du Bois to represent Asmerom on the understanding that Du Bois had other
commitments, would need the court-appointed counsel panel to provide backup counsel,
and would inform the court the following week whether he could take on the
representation. But on August 4, Asmerom announced he had retained private counsel,
Mr. Lefcourt. The court, however, had been informed that Lefcourt had declined to take
15
the case, and continued Du Bois as Asmerom’s counsel subject to confirming that the
appointed counsel panel could meet his requirements for fees and backup counsel. Du
Bois anticipated he would need four months to prepare for trial. Four days later, Mr.
Lefcourt confirmed that he would not represent Asmerom.
On August 18 Mr. DuBois declined the appointment because the appointed
counsel program had not met his support requirements. Asmerom’s family had retained
Mr. Lefcourt contingent on his obtaining county funding for investigation, expert
witnesses, transcripts and other defense costs. But on August 31 Lefcourt informed the
court he would be out of the country from September 2 until September 20 and would
apply for funding for defense costs only after his return. Lefcourt estimated trial
preparation would take six months after that due to his heavy client load and trial
schedule.
On September 2 the court stated its intention to obtain a court-appointed lawyer
for Asmerom. It explained: “[I]n light of the fact that Mr. Lefcourt has made at least five
special appearances, has not—is not yet prepared to make a general appearance; in light
of the fact that at least three to four boxes of discovery [have] been sitting untouched in
my courtroom since sometime in—since the latter part of July, 1st part of August, and it
is now September 2nd; in light of the fact that there have been continuing motions by
Tewodros to sever this matter. And as I indicated yesterday, I believe that both
defendants have an agenda here to try to [game] the system to get separate trials; in light
of the fact that this trial is most definitely one that is anticipated or perceived by the
people who wrote the law on joinder that this basically would be the same case tried
twice if it was tried separately, we’re going to get this case moving with or without Mr.
Lefcourt. If he can meet the schedule that we’re going to put together, then he most
definitely can continue to represent Mr. Asmerom Gebreselassie.
“But based upon the fact that he has made the special appearances, has not
ascertained whether or not he can get public funds for ancillary services; based on the
fact that yesterday he gave us a six month—his associate, because he was too busy to
show up, gave us a six month estimate for trial without having looked at any of the
16
materials that we have here in this courtroom for discovery; and also, the fact that he’s
going to be preparing a declaration for ancillary fees without having looked at the
information that are in these files to ascertain what ancillary services, investigation, so
forth, has already been done, the totality of that leads this court to believe that it would be
the best interest of all parties to have court appointed send us a lawyer.”
The court appointed Darryl Stallworth to represent Asmerom, over Asmerom’s
objection, after Stallworth confirmed he could be ready for trial by January. Mr. Lefcourt
had “sort of been hovering on this case,” the court noted, but had not committed to take
it, had not made a general appearance, had not reviewed the court files, and had not made
a request for ancillary funds. “So I don’t know what Mr. Lefcourt is going to do. [¶] I
now have a more than able and competent attorney from court-appointed who indicates
he can be ready to go with jury selection starting December 1st and then trial starting
January 3rd. [¶] I also would indicate that Mr. Lefcourt’s associate, having looked at the
file, threw out the number that Mr. Lefcourt would need six months to prepare for this
case. I don’t know how they came to that number since nobody’s looked at anything. [¶]
I would also note that Mr. Lefcourt indicated his associate indicated, he had two no-time
waiver trials in San Francisco, one starting on October 8th and then one trailing after that
date. So I don’t know if that puts him into April, May or June.” The court appointed Mr.
Stallworth with the proviso that Mr. Lefcourt could take over if he could obtain county
funding for Asmerom’s defense costs and comply with the trial schedule.
On September 27 Asmerom moved to substitute Mr. Lefcourt in as counsel,
subject to obtaining public funding for defense costs and “the setting of a reasonable trial
schedule.” Lefcourt acknowledged the December trial date was incompatible with his
request for six months to prepare, but argued the court could either sever Tewodros’s
case or find good cause to continue the trial for approximately three more months. 4 The
court was unpersuaded. It noted that Mr. Lefcourt had been “dabbling” in the case for
almost two months “and you still can’t tell me exactly when you are going to be
4
Tewodros revoked his time waiver in June or July, and the 70th day ran in early
September 2010.
17
ready. . . . [Y]ou are now asking me to postpone this case until May to allow you to
come into the case, try several other cases in the meantime, which means you won’t be
working on this case. You haven’t read the preliminary hearing transcript, you haven’t
picked up the discovery. You haven’t read enough of this case to know even what you
are asking for in terms of ancillary costs.” The court noted the “great amount of
difficulty with Asmerom in terms of his unhappiness with prior counsel” and predicted
that, if it allowed yet another substitution, Asmerom would attempt to dismiss Mr.
Lefcourt as well when trial approached. The court found that “continu[ing] the case for
another 7 or 8 months at this point does an injustice to the orderly administration of
justice to the co-defendant, as well as to the prosecution and their witnesses.”
Accordingly, it rejected Asmerom’s bid to replace Mr. Stallworth with Mr. Lefcourt.
This is the ruling Asmerom now challenges as constitutional error.
2. Analysis
“The right of a criminal defendant to counsel and to present a defense are among
the most sacred and sensitive of our constitutional rights. [Citations.] While we have
recognized competing values of substantial importance to trial courts, including the
speedy determination of criminal charges, the state should keep to a ‘necessary minimum
its interference with the individual’s desire to defend himself in whatever manner he
deems best, using any legitimate means within his resources’ [Citation]. A criminal
defendant’s right to decide how to defend himself should be respected unless it will result
in ‘significant prejudice’ to the defendant or in a ‘disruption of the orderly processes of
justice unreasonable under the circumstances of the particular case.’ [Citation.] In other
words, we demand of trial courts a ‘resourceful diligence directed toward the protection
of [the right to counsel] to the fullest extent consistent with effective judicial
administration.’ ” (People v. Ortiz (1990) 51 Cal. 3d 975, 982–983.)
But, as explained in People v. Keshishian (2008) 162 Cal. App. 4th 425, 428, the
right to retained counsel of choice is not absolute. “ ‘[T]he “fair opportunity” to secure
counsel of choice provided by the Sixth Amendment “is necessarily [limited by] the
countervailing state interest against which the sixth amendment right provides explicit
18
protection: the interest in proceeding with prosecutions on an orderly and expeditious
basis, taking into account the practical difficulties of ‘assembling the witnesses, lawyers,
and jurors at the same place at the same time.’ ” ’ [Citation.]” (People v. Keshishian,
supra, 162 Cal.App.4th at p. 428.) Thus, “ ‘ “The right to counsel cannot mean that a
defendant may continually delay his day of judgment by discharging prior counsel,” ’ and
the court is within its discretion to deny a last-minute motion for continuance to secure
new counsel.” (Id. at p. 429.) “A court faced with a request to substitute retained
counsel must balance the defendant’s interest in new counsel against the disruption, if
any, flowing from the substitution. [Citations.]” (People v. Lara (2001) 86 Cal. App. 4th
139, 153; see also Stevens v. Superior Court (1988) 198 Cal. App. 3d 932 [affirming trial
court’s decision to relieve retained counsel whose scheduling conflicts would have forced
six-month continuance].)
The court’s decision here to disallow a further change of counsel was a valid
exercise of its discretion. The history described above shows the court carefully balanced
Asmerom’s request to bring Mr. Lefcourt in against his extensive history of
dissatisfaction with, and termination of, a series of qualified attorneys; the resulting
delays and disruption to the judicial process; and the prejudice to Tewodros, the
prosecution, and witnesses that would have resulted from allowing yet another
substitution. Its ruling did not impinge on Asmerom’s constitutional rights to counsel of
his choice.
Asmerom relies heavily on People v. Courts (1985) 37 Cal. 3d 784, but this is a
very different case. The defendant there entered a plea on July 19, 1982, and started
discussing representation with a private attorney in September. Over the ensuing month
he arranged funding to hire private counsel, and on October 21, 1982, paid a retainer to
attorney Swartz. He then moved for substitution of counsel and a continuance of the
October 26 trial date to allow new counsel to investigate and prepare for trial. (Id. at pp.
787–789.) The court of appeal held the denial of those requests was an abuse of
discretion. The defendant had requested only one prior continuance and engaged in a
good faith, diligent effort to obtain new counsel in a timely fashion. Moreover, there was
19
no indication that the requested continuance would significantly impinge on judicial
efficiency or inconvenience the court, the parties or the jurors. (Id. at pp. 791–794.)
Here, in contrast, Asmerom’s dissatisfaction with a series of prior attorneys had
already caused substantial delay by the time he moved to retain Mr. Lefcourt. He had
filed at least three Marsden motions while represented by the public defender’s office and
fired two private attorneys, one of whom, Mr. DuBois, he later attempted to rehire.
Although the case was over four years old, Mr. Lefcourt seemed to be making no haste to
jump in and wanted another six months after a trip abroad to prepare for trial. With this
history, the court found that further delay for another substitution of counsel would
unacceptably disrupt the trial process and impede Tewodros’s statutory speedy trial
rights. The court also surmised, not unreasonably on this record, that Asmerom was
exploiting his right to counsel of choice to “try to [game] the system” in order to obtain a
severance. “ ‘The right to counsel cannot mean that a defendant may continually delay
his day of judgment by discharging prior counsel.’ ” (People v. Rhines (1982) 131
Cal. App. 3d 498, 506.) The court appropriately balanced Asmerom’s right to counsel of
his own choosing against the interest of the People, the court and the co-defendant in an
expeditious resolution of the case.
B. Asmerom’s Post-Faretta Request for a Continuance
Asmerom contends the trial court erred when it denied requests for continuances
after granting his Faretta5 motion to represent himself at trial. We disagree.
1. Background
On November 29, 2010, the day the trial was set to begin, Tewodros’s attorneys
were unexpectedly tied up in another trial. The court found good cause to continue the
trial until January 3. At that same hearing, Asmerom made another Marsden motion, 6
and, after it was denied, moved under Faretta to represent himself. The trial court
granted the motion, appointed Mr. Stallworth to serve as advisory counsel, and directed
5
Faretta v. California (1975) 422 U.S. 806.
6
At a hearing on December 16, the court noted Asmerom had brought at least six
Marsden motions; Asmerom thought there had been eight or ten.
20
him to provide Asmerom with appropriately redacted case files. Asmerom was fully
cautioned that the January 3 trial date would not be continued “whether you’re ready to
go or not.”
On December 16 Asmerom requested an additional three months to investigate
allegedly newly discovered evidence—the 911 tape from the night Abraham died—but
said he was nonetheless ready to go to trial on January 3, or even “tomorrow.” Advisory
counsel concurred that the defense preparation could be done by January 3 or January 10.
The court continued the trial to January 10 and denied Asmerom’s request for three more
months, noting that the defense had been on notice of the 911 tape for at least eight
months and had ample time to complete its investigation before January 10.
During the first week of January 2011 Asmerom again sought a continuance, this
time to review discovery materials he claimed had not been provided to him and to hire
an expert to examine the 911 tape. The trial court found the January 10 trial date allowed
sufficient time for Asmerom’s needs, and, specifically, that it provided adequate time for
an audio expert to analyze the 911 tape before Asmerom’s defense case. Asmerom also
renewed his bid to retain Mr. Lefcourt as defense counsel and asked for a five or six
month continuance for Mr. Lefcourt to prepare. The court denied this request as well.
2. Analysis
“The decision to grant or deny a continuance normally rests within the sound
discretion of the trial court. [Citation.] While it is true that a defendant who chooses to
conduct his defense in pro. per. does so subject to the disabilities normally attendant upon
the status as a prisoner [citation], a pro se defendant must be given a reasonable
opportunity to prepare a defense. [Citations.] The denial of a proper request for a
continuance to prepare a defense constitutes an abuse of discretion and a denial of due
process.” (People v. Cruz (1978) 83 Cal. App. 3d 308, 324–325.) The erroneous denial of
a defendant’s request for a continuance after being granted in propria persona status is
“usually treated as prejudicial per se.” (People v. Hill (1983) 148 Cal. App. 3d 744, 758.)
There was no abuse of discretion here, because Asmerom was not denied a
reasonable opportunity to prepare his defense. (See § 1050, subd. (e) [continuances
21
granted only for good cause]; Cal. Rules of Court, rule 4.113 [motions to continue
criminal trials are disfavored and denied unless movant proves the “ends of justice”
require continuance].) The case had been pending for over four years, during which time
Asmerom actively participated in preparation for his defense. He did not show he could
not complete his investigations of the 911 tape by January 10. Despite his complaints
about access to discovery materials, both he and his advisory counsel assured the court in
mid-December that they could be ready for trial by January 3. Moreover, Asmerom’s
tortuous history of changing representation supported a reasonable inference that
Asmerom was attempting to exploit the Faretta mandate as yet another means of
delaying the trial. The court manifestly did not abuse its discretion in denying the
continuance.
C. Revocation of Asmerom’s Right to Self-Representation
On February 16, 2011, 25 days into the trial, the court terminated Asmerom’s right
to represent himself due to his repeated inappropriate outbursts and other misconduct in
court. Asmerom contends this was error, and that the error was prejudicial per se. To the
contrary, the trial court properly revoked Asmerom’s right to self-representation.
1. Background
Asmerom was cautioned when he was granted pro per status that he would have to
act appropriately during trial or the court could terminate his right to self-representation.
“You also understand, the other part that concerns me a little bit that you, again, tend to
get a little verbose and a little worked up when you get agitated. And when you’re before
the trial judge and he decides that you stepped over the line, he can terminate your pro
per privileges right in the middle of trial and assign you a lawyer, and that very seldom
looks good to the jury. They’re going to go, wow, all of a sudden this guy’s messed this
up so bad and now he’s got a lawyer. That generally works to the detriment of the case.”
Asmerom acknowledged that he understood.
During jury selection, with the jurors outside the courtroom, Asmerom engaged in
a prolonged and heated diatribe accusing the Meharis of murdering his brother and the
prosecutor, the trial court and District Attorney Nancy O’Malley of being prejudiced
22
against him. The outburst resulted in his removal, yelling and screaming, from the
courtroom. When Asmerom was brought back the next day, the court warned him he
would be removed again if there were further outbursts.
Angesom Mehari was the state’s first important witness. During cross-
examination, Asmerom, acting as his own counsel, accused him, rather dramatically, of
murdering Abraham: “The question is you were there participating in Abraham’s
murder!!! You were there at Abraham’s house killing my brother!!! Tell the truth!!!”
The court warned him “I don’t want another outburst like that. If you do that again, you
know what the consequences [are].”
Things deteriorated the next day. When the court instructed Asmerom to move to
another line of questioning, Asmerom exclaimed, “I have never seen this kind of justice.”
The trial court admonished him to keep quiet, but he continued: “I’m not going to keep
quiet. That’s my life. That’s my life. The jurors has the right to know everything.
You’re arguing justice. You’re prejudiced. That’s my life. I have a right to defend the
way I want to defend. The jury knows that he’s prejudiced.” The court excused the
jurors and admonished Asmerom. “I’ve warned you before. You continue not to follow
my instructions. You’re disrespecting the Court. You’re disrupting the trial. So until
you can do that and keep your words to yourself, you are out of here. So he’s out of
here.” Before Asmerom could be removed, he responded: “It doesn’t matter. You are
trying to give my case to my adversary [sic] counsel. No problem. You’re a prejudiced
person. We all know that. You are acting like a DA.”7
Later that day Asmerom’s advisory counsel sought clarification about his role in
light of Asmerom’s absence from the courtroom. The court explained it had not yet
decided whether to revoke Asmerom’s pro per status and intended to review the case law.
The next day, Asmerom accused the court of disliking and disrespecting him, offending
his family, and trying to revoke his pro per status “from the beginning.” The court
terminated his self-representation. It explained: “There’s certainly a component of
7
The prosecutor heard this last statement as “You’re acting like a dick.”
23
emotional instability, and that’s been demonstrated with his outbursts. [¶] Now, it’s not
sufficient for a 1368; however, I do think there are some components there . . . . [¶] . . .
Number one is the nature of the misconduct as stated—or as on the record. The Court
had ordered him to move on. This was yesterday, to another subject matter. He refused,
continued not to follow the Court’s rules, regulations . . . . [¶] And then as the jurors were
walking out, filing out, made several comments to the Court. For example, ‘You’re
prejudiced. You’re a prejudicial person. We all know that. You’re acting like a DA.’
[¶] . . . It was also the outburst during the jury selection process which evidence[d] some
emotional instability. On cross-examination of the first three witnesses, the Court has
continuously and constantly ordered him to ask questions and not make self-serving
gratuitous statements. [¶] And in terms of the impact of the misconduct on the trial
proceedings, not only is it delaying the trial, but I am afraid that it has an effect on the
jury and how the jury views him versus the evidence presented. [¶] I think it clearly
subverts the Court’s integrity of the trial and severely compromises the Court’s ability to
conduct a fair trial. . . . [T]he impact on the trial is to the extent that the codefendant [has]
filed a motion to sever. And in the preliminary reading it looks like it was preliminarily
focused on the outbursts during jury selection and then what happened yesterday.”
The court also noted its futile admonitions to follow court rules and procedures
throughout the trial, Asmerom’s apparent attempt to intimidate Angesom during cross-
examination, and the lack of suitable alternative sanctions. It then terminated Asmerom’s
pro per status and appointed his advisory counsel to represent him for the remainder of
the trial.
2. Analysis
The right of self-representation, rather than absolute, is subject to forfeiture
whenever “ ‘deliberate dilatory or obstructive behavior’ threatens to subvert ‘the core
concept of a trial [citation] or to compromise the court’s ability to conduct a fair trial.”
(People v. Carson (2005) 35 Cal. 4th 1, 10, citing United States v. Dougherty (D.C. Cir.
1972) 473 F.2d 1113, 1125–1126 and Illinois v. Allen (1970) 397 U.S. 337.) As observed
in Faretta, “the trial judge may terminate self-representation by a defendant who
24
deliberately engages in serious and obstructionist misconduct. [Citation.] Of course, a
State may—even over objection by the accused—appoint a ‘standby counsel’ to aid the
accused if and when the accused requests help, and to be available to represent the
accused in the event that termination of the defendant’s self-representation is necessary.”
[Citation.] [¶] ‘The right of self-representation is not a license to abuse the dignity of the
courtroom. Neither is it a license not to comply with relevant rules of procedural and
substantive law.’ ” (Faretta, supra, 422.U.S. at p. 834, fn. 46; see also People v. Carson,
supra, 35 Cal.4th at p. 8.)
When circumstances warrant, the trial court must thus decide “whether a
defendant is and will remain so disruptive, obstreperous, disobedient, disrespectful or
obstructionist in his or her actions or words as to preclude the exercise of the right to self-
representation.” (People v. Welch (1999) 20 Cal. 4th 701, 735.) While each case must be
evaluated in its own context and on its own facts, relevant factors may include the nature
of the misconduct and its impact on the trial proceedings, the availability and suitability
of alternative sanctions, whether the defendant has been warned that particular
misconduct will result in termination of in propria persona status, and whether the
defendant has intentionally sought to disrupt and delay the trial. (People v. Carson,
supra, 35 Cal.4th at p. 10.) “The trial court possesses much discretion when it comes to
terminating a defendant’s right to self-representation and the exercise of that discretion
‘will not be disturbed in the absence of a strong showing of clear abuse.’ ” (Ibid.)
The court properly exercised its discretion here. Asmerom was argumentative,
insulting and disrespectful to the court, and either unable or unwilling to control his
outbursts and abide by courtroom rules and protocol despite multiple warnings that
failure to do so would result in the termination of his right to represent himself. “ ‘[T]rial
judges confronted with disruptive, contumacious, stubbornly defiant defendants must be
given sufficient discretion to meet the circumstances of each case.’ . . . [W]hen a
defendant’s obstreperous behavior is so disruptive that the trial cannot move forward, it is
within the trial judge’s discretion to require the defendant to be represented by counsel.”
(United States v. Brock (7th Cir. 1998) 159 F.3d 1077, 1079.) This is such a case.
25
II. Admission of Entries From Winta’s Laptop
A. Background
In May 2010, Asmerom’s public defender moved in limine to exclude a one-page
document containing what appeared to be two diary entries recovered from Winta’s
laptop computer, the first expressing love for her deceased husband and the second
concern about her poor treatment by the Gebreselassie family. Defense counsel sought to
exclude both entries on the ground, among others, that they were impermissible hearsay.
When the trial began, Asmerom incorporated this and other in limine motions filed by his
former counsel in his response to the prosecutor’s motions in limine.
When the motions were argued on January 10, 2011, no one could locate a copy of
the printed-out diary entry. Asmerom confessed he “had no clue about this one. I didn’t
see it or read it. I have to wait.” The prosecutor said the People did not intend to
introduce the document during their case in chief, but “if the defense opens the door
suggesting . . . Winta murdered Abraham, then I would be asked to be allowed to bring it
in.” The court postponed ruling on admissibility “until we find out what it is.”
At trial, Asmerom continued to espouse his view that Winta and her family had
murdered Abraham. The following exchange took place on April 13, during the
prosecutor’s cross-examination of Asmerom: “Q. After March 1st, 2006, you believed
that Winta did not love Abraham; isn’t that true? [¶] A. Miss Leventis, if a person, a lady,
kills her husband, how do you assume she loves him?” The prosecutor then asked
Asmerom about the “diary entry that [Winta] put in her computer for her love for
Abraham.” Asmerom described it as a “fake.” Slightly paraphrasing passages from the
note, the prosecutor asked: “Isn’t it true that she said, ‘I’m angry and sorry that I didn’t
tell my husband often enough how much I truly love him. Sorry because I didn’t spend
enough time with him, help him, enjoyed every minute with him. I was too busy going to
school as if I was guaranteed to have tomorrow with him. I’m angry because I didn’t
have a brother or a sister for Issac. So now I’m trying very hard not to put off, hold back
or save anything that would add laughter to my son and my family lives. And every
morning when I open my eyes I tell myself that every day, every minute, every breath
26
truly is God’s gift.’ You know she said that after Abraham died, don’t you?” Asmerom
again responded the note was “garbage” and “a fake.”
Soon after that, the prosecutor asked Asmerom if he knew Winta’s relationship
with the Gebreselassie family became strained after Abraham died. When Asmerom
responded that it had not, the prosecutor was permitted to bring in the second diary entry
to prove Asmerom was lying when he said there were no problems between Winta and
the Gebreselassies. The prosecutor read the entry, dated September 8, 2006, in which
Winta described her frustration that Tesfu Gebreselassie was withholding papers she
needed for her taxes and, more generally, that the Gebreselassie family was treating her
unfairly.8
Asmerom testified that he did not learn of the diary entries until his attorney
received them in discovery, and that they did not change his view that Winta did not love
Abraham. The prosecutor subsequently referred to and quoted both entries in arguing to
8
“ ‘Friday, can’t sleep much in the very early mornings like after 5:00 o’clock
a.m. thinking about paper work for the garage such as tax papers. Had a good morning
and afternoon since mother came and made coffee. It is file day today. I had called
Tesfu yesterday, but he called me this morning and I asked him to give me some papers
to prepare 2005 tax paper. Called me in the evening when I was about to enter church.
Met Haniellum. So I had to call Yoni to get the paper from him. [¶] ‘Got home around
8:00 p.m. and the only paper he gave him was some four months of paper work and none
of the bank papers. Called him back and didn’t pick up his phone. After awhile called
me back and I asked him to give me all the paper that was in the box or give me the box
if he doesn’t need anything from it so that I might be able to find some papers that would
help me for the tax preparation. He tells me that the only other paper in there is
Abraham’s telephone book and he would like to keep it. And I know that is not the only
thing in there!!!’ Multiple exclamation points. [¶] ‘I mean it is not his paper!!!’ Multiple
exclamation points in all capitals. ‘He has no right to it. He is purposely not giving me
the papers and there is no way for me to get any copies of the paper because that is the
bank returned the original check. It is not fair what the whole family is doing to me. I
never did anything to them!!!’ Multiple exclamation points. [¶] . . . . ‘I got really mad
and I called Yehfer on the way home still really pissed, but Yehfer told me the worse
thing that could happen from this is paying more money and we will be able to do it
together even if it takes time. I’m a little calm now. I’ll read my Bible and sleep. I have
my son, my lovely charming son scratching his hands from the allergies he has. He likes
it when I scratch it for him.’ ”
27
the jury that Asmerom lied when he testified there were no problems between the two
families and that Winta did not love Abraham.
2. Analysis
Asmerom contends the entries were hearsay and were not made admissible by the
state of mind hearsay exception (Evid. Code, § 1250). He all but concedes, however, that
the first entry regarding Winta’s feelings about Abraham were admissible to prove her
state of mind, and we agree. “Subject to Section 1252,[9] evidence of a statement of the
declarant’s then existing state of mind, emotion, or physical sensation (including a
statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not
made inadmissible by the hearsay rule when: (1) The evidence is offered to prove the
declarant’s state of mind, emotion, or physical sensation at that time or at any other time
when it is itself an issue in the action. . . .” (Evid. Code, § 1250, subd. (a)(1), footnote
added.) It was thus within the court’s discretion to admit this first entry. (See People v.
Escobar (2000) 82 Cal. App. 4th 1085, 1103; People v. Ortiz (1995) 38 Cal. App. 4th 377,
386 [the trial court is vested with broad discretion in determining admissibility of
evidence pursuant to the state of mind exception to the hearsay rule].)
The second entry, about Winta’s subsequent difficulties with the Gebreselassie
family, does not fall so neatly within the state of mind exception. Evidence Code section
1250, subdivision (b) specifies that this exception “does not make admissible evidence of
a statement of memory or belief to prove the fact remembered or believed.” As the
second entry consisted of “historical memories and beliefs” about Winta’s problems with
the Gebreselassies, it thus was not admissible to prove the truth of those memories and
beliefs. (See People v. Deeney (1983) 145 Cal. App. 3d 647, 652 [descriptions of conduct
of a third person that may have caused the declarant’s state of mind are inadmissible
under section 1250].)
9
Under Evidence Code section 1252, a statement of the declarant’s mental
condition is admissible unless the statement was made “under circumstances such as to
indicate lack of trustworthiness.”
28
Nonetheless, it was admissible for another reason. The fact that Winta felt the
Gebreselassies were treating her unfairly had some tendency to prove that she and her
family would not have welcomed Asmerom’s company or invited him to Regbe’s
apartment, and thereby to undermine his contrary testimony. Used thus as circumstantial
evidence of Winta’s state of mind, the statement was nonhearsay circumstantial evidence
not made inadmissible by the hearsay rule. (See generally People v. Ortiz, supra, 38
Cal.App.4th at pp. 377, 389–392.) Asmerom complains that no limiting instruction was
given as required when out of court statements are used as circumstantial evidence of the
declarant’s mental state, but he did not request such an instruction and has therefore
forfeited the claim for appeal. Finally, and in any event, these diary entries were of little
independent significance in light of the substantial testimony confirming the strains
between Asmerom and the Meharis in the months leading up to the murders. Assuming
arguendo it was error to admit the entry concerning Winta’s treatment by the
Gebreselassies, the error could not conceivably have been prejudicial.
III. Exclusion of Evidence of Victims’ Alleged Homosexuality
Asmerom contends the trial court committed reversible error when it excluded
certain evidence concerning Angesom and Merhawi’s sexual orientation. Not so.
Background
1. The Ruling
Asmerom argued that the Mehari siblings killed Abraham in the belief that only he
knew of their sexual orientation, and that they tried to kill Asmerom for the same reason.
The prosecution moved to exclude evidence of Merhawi and Angesom’s alleged
homosexuality unless Asmerom placed it in issue in his defense case. Until that time, the
prosecution asked the court to preclude defense questions about the twins’ sexual
orientation and alleged involvement with gay chat lines or web sites and to exclude
related telephone and email records and testimony about the Eritrean Orthodox Church’s
29
disapproval of homosexuality.10 Asmerom countered that evidence the twins were in fact
homosexual “will put to rest any claim that they were not gay and therefore did not really
care that defendant would be making these revelations.”
The court ruled the twins’ sexual orientation was not to be mentioned until after
Asmerom had testified to his belief in that regard. “The relevant part is not whether
they’re homosexuals or not. It’s [Asmerom’s] belief that they are.” The court explained
that Asmerom would be allowed to introduce evidence supporting that belief in his case
in chief, “and we’ll see how far you get with that if you want.”11
Asmerom sought in his case-in-chief to recall Merhawi to testify about his
“homosexuality issues” and alleged confession during their November 10, 2006
encounter at the library, and to recall Angesom “for questions about the homosexuality
that we were unable to address in the prosecutor’s case in chief.” The prosecutor
reiterated her position that the twins’ actual sexual orientation was irrelevant. Moreover,
she observed that Asmerom had already questioned Angesom and Merhawi about their
sexual orientation on cross-examination, merely shifting to the term “lifestyle” when the
court barred his questions about homosexuality. The court permitted Asmerom to recall
only Merhawi, and only for questioning about the encounter at the library. It later
sustained objections when Asmerom asked Merhawi whether he was “fooling and
deceiving the church” about his homosexuality, whether anyone in his church or
community knew he was homosexual before November 10, 2006, and whether the twins
were engaging in homosexual activities when they arrived in this country.
2. The Evidence
In his opening statement, Asmerom presented his view that the Meharis murdered
Abraham, and later attempted to murder him, to prevent the Gebreselassies from
disclosing Merhawi’s homosexuality. The defense continued on that theme during the
10
The prosecutor acknowledged that evidence of Asmerom’s threats to go public
with the twins’ alleged homosexuality was relevant and admissible.
11
Later, during the prosecution case, the court reaffirmed that ruling in the face of
renewed defense attempts to question the twins about their actual sexual orientation.
30
state’s case-in-chief, and Merhawi was extensively cross-examined about the
confrontation at the library, Asmerom’s threats to expose his “lifestyle,” the Eritrean
Orthodox Church’s views on homosexuality, Winta’s and Yehferom’s reactions to
Asmerom’s disclosure, whether the Meharis decided to kill Asmerom to “make sure [he]
would not be able to expose your lifestyle and further investigate you and your family
having murdered Abraham,” and whether they killed Abraham for that same reason.
Asmerom also cross-examined Angesom about whether he was angry because Asmerom
“was wanting to meet with your family about your social relationships and Merhawi’s
relationship with Issac, correct?”
In his defense case, Asmerom testified about Merhawi’s sexual orientation and
their church’s disapprobation of homosexuality. He testified that “[t]he topic of
homosexuality in our culture is something people kill for. It’s not something to be taken
lightly and just blame the people about that.” Asmerom also testified about the
investigation he had conducted after Abraham told him his suspicions about Merhawi.
Asmerom testified he had proven through phone records that Merhawi was contacting an
interactive gay website; and then, using a false identity, Asmerom exchanged emails with
Merhawi to confirm he was homosexual. When Asmerom and Tesfu confronted
Merhawi with this “evidence” at the library on November 10, according to Asmerom,
Merhawi admitted he was gay and that he had molested Issac. Asmerom threatened to
expose Merhawi unless he confessed to his family.
Asmerom also described how he had visited Yehferom that day to discuss
Merhawi’s homosexuality. He testified that he told Yehferom “Since you’re an active
member of the Ethiopian orthodox church, and since this homosexual behavior brings
disgrace to your family, it’s unacceptable and disgusting.” He elaborated on cross-
examination that “[i]n our culture homosexuality could drive to kill each other. That’s
something that could have you get killed. It’s a pride, a family pride. If I am a
homosexual person, my mother would not be approached by anybody. My family would
be shot. They would be considered like garbage. The first thing the family would do,
they would stay away from me, or I would have to kill myself, or my mother or my
31
family members would have to commit suicide.” Asmerom elicited similar testimony
from church administrative leader Tekle Germle that “within the orthodox church, within
our religion, homosexuality is not allowed or acceptable. . . .” and that Germle personally
believed homosexuals should be banned from the church.
Asmerom also testified that on November 4, 2006, he went to the Mehari family
with his “proof” of Merhawi’s sexual orientation He told them “that Merhawi had a
problem, that he is a homosexual, and they were shocked. You know why they were
shocked? Because he is part of our family. He’s our brother. It’s unacceptable behavior
because that’s how it is. They were all shocked. And because he also serves at the
church, we were shocked. . . . Because they know homosexual behavior and because it’s
acceptable in this country, we decided we have to inform the church now.”
When Merhawi was recalled in Asmerom’s case in chief, Merhawi was asked
“Isn’t it true that you confessed to my client that Winta poisoned Abraham because he
promised to you he wouldn’t reveal your secret homosexual lifestyle to the community
and church?” Merhawi denied it. He also denied that Asmerom promised not to reveal
his homosexuality if he confessed the Meharis poisoned Abraham or that he molested
Issac.
3. Analysis
Asmerom’s central complaint seems to be that, while the jury heard a good deal
about homosexuality, his defense was crippled because he was not permitted to question
the Mehari twins about or offer other evidence to prove “the fact of” their homosexuality.
Nonsense. As chronicled above, Asmerom was permitted to introduce more than ample
evidence supporting his defense theory that the Meharis tried to kill him because he
threatened to go public with his accusations about Angesom and Merhawi. While the
court limited his ability to introduce evidence of their actual sexual orientation or
activities, its rulings were well within its broad discretion to exclude evidence on the
grounds that its probative value was substantially outweighed by the risk of undue delay,
prejudice or confusion. (Evid. Code, § 352; see People v. Geier (2007) 41 Cal. 4th 555,
32
581, overruled on other grounds in Melendez-Diaz v. Massachusetts (2009) 557 U.S.
385.)
IV. Admission of Yehferom’s Testimony About Issac’s Custody
Asmerom contends the court committed prejudicial error when it admitted
Yehferom’s testimony that after Winta’s death the family court awarded him custody of
his orphaned nephew and denied the Gebreselassies’ bid for visitation. The People
argued the testimony was relevant because it tended to undermine Asmerom’s accusation
that Yehferom participated in Abraham’s murder. There was no error. While the family
court’s decision was at best marginally relevant to the issues at trial, the trial court
reasonably found it had adequate bearing on Yehferom’s credibility to warrant admission.
“A collateral matter has been defined as ‘one that has no relevancy to prove or disprove
any issue in the action.’ [Citation.] A matter collateral to an issue in the action may
nevertheless be relevant to the credibility of a witness who presents evidence on an
issue.” (People v. Rodriguez (1999) 20 Cal. 4th 1, 9.) In any event, the testimony was
relatively innocuous. Asmerom’s contention that the jurors would infer from it that the
family court had determined the Gebreselassies were “bad people” and Yehferom was “a
good guy” and defer to that inference rather than make their own assessments is nothing
but speculation. Accordingly, assuming the court erred, there is no reasonable possibility
the error affected the verdict.
V. Prosecutorial Misconduct
Both defendants contend the prosecutor committed misconduct in closing
argument when she appeared to comment on the absence of evidence the court had
precluded the defense from presenting at trial. There was no prejudicial error.
A. Background
During cross-examination, Tewodros’s counsel asked Merhawi about a May 2009
incident at a rest stop near Los Angeles, when Merhawi accidentally encountered
defendants’ sister Asmeret with a friend. Counsel asked Merhawi: “Isn’t it a fact that you
told both of them words to the following effect, ‘I’m going to kill you. I’m going to kill
you.’ And then to her, ‘I’m going to kill you,’ meaning her, ‘and drink your blood?”
33
Merhawi acknowledged the encounter occurred but denied making the threat. He
elaborated that Asmeret was insulting and that one of her companions said he would
“brew you like coffee beans.”
At the start of Asmerom’s defense case he proffered testimony from Degefu
Bagaro that Bagaro was at the encounter and observed Merhawi’s threat. The defense
argued the testimony was relevant both to impeach Merhawi and to support Asmerom’s
asserted need to defend himself against the Meharis. The court found the testimony was
of only marginal relevancy and excluded it under Evidence Code section 352.
In her rebuttal argument, the prosecutor repeatedly touched on the theme that the
defense had tried to smear the Meharis to distract the jurors from the evidence. As one
example, she argued: “The questions about Merhawi allegedly threatening to kill Asmeret
and drink her blood while they’re at a rest stop on Interstate 5 where there are other
witnesses, he told you he never said that, and that is the state of the evidence because
Asmeret didn’t get up and testify about that, did she? No witnesses got up and testified
about that. That’s about distracting you from the evidence in this case because the state
of the evidence is that never happened.”
After closing arguments finished and the jury was excused for the day, Asmerom
asserted the prosecutor committed misconduct in “suggest[ing] to the jury that we didn’t
produce a witness that we weren’t able to do because of the court’s ruling.” Asmerom
requested an admonition “letting [the jurors] know that production of all evidence is not
required, and that the prosecutor mentioned that there [was] certain evidence by the
defense that was not required that should not be taken into consideration because not all
evidence is required. Or preferably, if the court would consider that the prosecutor made
a mistake.” In response, the prosecutor asserted that her comment merely referred to the
defense’s failure to call Asmeret to testify about the alleged threats. The court denied the
request for an admonition.
B. Analysis
“ ‘The applicable federal and state standards regarding prosecutorial misconduct
are well established. “ ‘A prosecutor’s . . . intemperate behavior violates the federal
34
Constitution when it comprises a pattern of conduct “so egregious that it infects the trial
with such unfairness as to make the conviction a denial of due process.” ’ ” [Citations.]
Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is
prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or
reprehensible methods to attempt to persuade either the court or the jury.” ’ ” ’ ” (People
v. Ochoa (1998) 19 Cal. 4th 353, 427.) “ ‘The focus of the inquiry is on the effect of the
prosecutor’s action on the defendant, not on the intent or bad faith of the prosecutor.’ ”
(People v. Sanchez (2014) 228 Cal. App. 4th 1517, 1528.)
Preliminarily, we reject the People’s contention that defendants failed to preserve
this claim for appeal by waiting too long to object and request an admonition. “ ‘To
preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely
objection at trial and request an admonition; otherwise, the point is reviewable only if an
admonition would not have cured the harm caused by the misconduct.’ ” (People v.
Bradford (1997) 15 Cal. 4th 1229, 1333.) Asmerom’s counsel refrained from
interrupting the prosecutor’s argument, but he objected and requested an admonition
promptly after her argument and in time for the court to have included an admonition in
its jury instructions. We see no reason to suspect that, as the People assert, the timing of
such an admonition would have confused or distracted the jury.12 (See People v. Lewis
(2009) 46 Cal. 4th 1255, 1303, fn. 34 [objection and request for rereading of jury
instruction not forfeited by waiting until end of prosecutor’s argument].)
Defendants fare less well in asserting prejudicial misconduct. The prosecutor’s
reference to their failure to call Asmeret to testify about Merhawi’s alleged threat was a
permissible comment on the state of the evidence. (See People v. Vargas (1973) 9 Cal. 3d
12
The cases the People cite to argue the admonition was untimely merely observe
that defense counsel sometimes refrain from objecting to a prosecutor’s comments to
avoid drawing the jurors’ attention to them. (See People v. Harris (2008) 43 Cal.4th
1269,1290 [failure to request an admonition not ineffective assistance of counsel where
counsel could have decided objection would highlight prosecutor’s remarks]; People v.
Huggins (2006) 38 Cal. 4th 175, 206 [same].) That point has no bearing on whether the
objection and request for an admonition here was timely.
35
470, 475 [comment on defense failure to call logical witnesses not misconduct].) But
assuming arguendo that the prosecutor’s remark was deceptive,13 defendants exaggerate
its potential effect. “To prevail on a claim of prosecutorial misconduct based on remarks
to the jury, the defendant must show a reasonable likelihood the jury understood or
applied the complained-of comments in an improper or erroneous manner. [Citations.] In
conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging
rather than the least damaging meaning from the prosecutor’s statements.” (People v.
Frye (1998) 18 Cal. 4th 894, 970, overruled on another point in People v. Doolin (2009)
45 Cal. 4th 390, 421 fn. 22; People v. Berryman (1993) 6 Cal. 4th 1048, 1072, overruled
on another point in People v. Hill, supra, 17 Cal.4th at p. 823, fn.1.)
Here, the prosecutor’s brief and isolated remark at worst merely drew attention to
the lack of evidentiary support for one of many defense attacks on Merhawi’s character
and credibility. It concerned a tangential event that occurred more than two years after
the murders, and the longstanding and intense ill-will between the Mehari and
Gebreselassie families was exhaustively demonstrated at trial regardless of what did or
did not happen at the rest stop. Furthermore, the court instructed the jurors that neither
side was required to call all available witnesses, and that statements of counsel are not
evidence. We presume the jury understood and followed those instructions. (People v.
Letner and Tobin (2010) 50 Cal. 4th 99, 173.) On this record, it is not reasonably possible
that a different result would have obtained absent the challenged comment. (See People
v. Cunningham (2001) 25 Cal. 4th 926, 1019; People v. Sanchez (1995) 12 Cal. 4th 1,
disapproved on another point in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)
13
We do not mean to suggest that any deception was intentional. As the Supreme
Court has observed, “the term prosecutorial ‘misconduct’ is somewhat of a misnomer to
the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt
description of the transgression is prosecutorial error.” (People v. Hill (1998) 17 Cal. 4th
800, 842.)
36
VI. Post-Verdict Request For Trial Transcript
1. Background
After the verdicts were returned, Asmerom retained new private counsel to move
for a new trial and requested a copy of the trial transcript, which the court denied.
Asmerom renewed the request when he moved for a new trial on grounds including
ineffective assistance of counsel, the exclusion of evidence of the twins’ homosexuality
and Abraham’s murder, and the denial of adequate opportunity to consult with counsel
before testifying.14 His new attorney acknowledged he did “not know whether the trial
transcript would reflect any of the information asserted by the defendant,” but argued a
transcript was necessary to properly raise the issues in a new trial motion.
The trial court found the defense had not shown a particularized need for the
transcript and denied the request. Noting that it had presided over the trial, the court
further ruled that Asmerom’s claims of jury misconduct, inadequate consultation with
counsel before testifying and improper exclusion of evidence were meritless.
2. Analysis
Asmerom contends the denial of his request for a trial transcript violated his due
process rights and requires remand to allow him to seek a new trial based on the
reporter’s transcript prepared for this appeal. He is wrong. The trial court may properly
deny a request for free transcripts to prepare a new trial motion where an indigent
defendant fails to show a particularized need for them, and it is the defendant’s burden to
establish that necessity. (People v. Bizieff (1991) 226 Cal.App.3d 1689,1702; People v.
Lopez (1969) 1 Cal. App. 3d 78, 83.) “There are no mechanical tests for deciding when
the denial of transcripts for a motion for new trial is so arbitrary as to violate due process
14
Asmerom’s new counsel explained at the hearing that “actually, he’s alleging
misconduct from most of the main principals in the case, other than the court reporter and
the clerk, and it’s impossible for me to properly raise these issues without having a
transcript. All I know about the trial is what he’s told me and a few things that Mr.
Stallworth has told me about the trial.” Asmerom also wanted an evidentiary hearing at
which he would call Sergeant Morris, Inspector Beal and several of the jurors as
witnesses.
37
or to constitute a denial of effective representation. Each case must be considered on its
own peculiar facts and circumstances.” (People v. Bizieff, supra, 226 Cal.App.3d at p.
1700; People v. Markley (2006) 138 Cal. App. 4th 230, 242).
Here, the judge who heard the new trial motion had presided over the trial and was
intimately acquainted with the issues raised. Both defendants’ trial attorneys were deeply
knowledgeable about the case, and there was no showing that either was unable or
unwilling to consult with Asmerom’s newly retained counsel. (Cf. People v. Lopez,
supra, 1 Cal.App.3d at p. 82 [new trial motion ordinarily does not require a full trial
transcript because it is usually brought by the lawyer who tried the case before the judge
who presided at trial]; see also United States v. Banks (M.D. Pa. 1974) 369 F. Supp. 951,
955, fn. 7 [need for transcript obviated by trial judge’s familiarity with the case].) The
trial court could also legitimately consider the delay involved in preparing a voluminous
(in the neighborhood of 30 volumes, as it turned out) transcript. (People v. Bizieff, supra,
226 Cal.App.3d at p. 1704.) Moreover, even with the benefit of the full trial transcript
prepared for this appeal, Asmerom has not shown with any specificity how the transcript
would have enabled his new counsel to effectively seek a new trial. The court reasonably
denied his request.
TEWODROS’S APPEAL
I. Sergeant Morris’s Testimony
A. Lay Opinion Testimony On Credibility
Tewodros asserts the court erred when it admitted Sergeant Morris’s testimony
that he did not believe the statement Tewodros gave to police after the murders.15
1. Background
Questioned at the police station after the shootings, Tewodros repeatedly told
Sergeant Morris he did not know Asmerom would be at the Meharis’ apartment that day,
did not summon Asmerom or open the apartment door for him, and that he left with Issac
15
Asmerom joins this claim.
38
after, not before, Asmerom fired the first shot. His testimony at trial was consistent with
his statement to police.
In rebuttal, the prosecutor called Sergeant Morris. Over objection Sergeant Morris
testified that, with respect to Tewodros’s police statement, he “did not believe
[T]ewodros’s account of events. So I, again, was asking him what occurred at 5301
Telegraph. And during the course of the investigation, his answers were not adding up. ”
After the court overruled a defense objection and motion to strike, Sergeant Morris
repeated that Tewodros’s “answers were not adding up to what occurred that day. I just
didn’t believe what he was telling me.” Later, on cross-examination by Asmerom,
Sergeant Morris repeated that he “didn’t believe what [Tewodros] was telling me that
day.” The court again overruled the objection and motion to strike.
2. Analysis
It is settled that a lay witness’s opinion about the truthfulness of another witness’s
statements is irrelevant and inadmissible. “Lay opinion about the veracity of particular
statements by another is inadmissible on that issue. As the Court of Appeal recently
explained . . . , the reasons are several. With limited exceptions, the fact finder, not the
witnesses, must draw the ultimate inferences from the evidence. Qualified experts may
express opinions on issues beyond common understanding [citations], but lay views on
veracity do not meet the standards for admission of expert testimony. A lay witness is
occasionally permitted to express an ultimate opinion based on his perception, but only
where ‘helpful to a clear understanding of his testimony’ [citation], i.e., where the
concrete observations on which the opinion is based cannot otherwise be conveyed.
[Citations.] Finally, a lay opinion about the veracity of particular statements does not
constitute properly founded character or reputation evidence [citation], nor does it bear
on any of the other matters listed by statute as most commonly affecting credibility
[citation]. Thus, such an opinion has no ‘tendency in reason’ to disprove the veracity of
the statements.” (People v. Melton (1988) 44 Cal. 3d 713, 744 (Melton); see also People
v. Sergill (1982) 138 Cal. App. 3d 34, 39–40 [where credibility was critical, admission of
police officer’s opinion of child victim’s truthfulness was prejudicial error]; but see
39
People v. Padilla (1995) 11 Cal. 4th 891, 946–947 [declining to decide whether this
aspect of Melton survived Proposition 8].)
Here, Sergeant Morris’s testimony that he disbelieved Tewodros’s statements and
that his version of the shootings didn’t “add[] up” cannot rationally be distinguished from
the statements held inadmissible in Melton and Sergill. The People nonetheless argue it
was admissible to explain why Morris questioned Tewodros for so long and mostly with
the tape recorder off, not for his opinion on veracity, but we disagree. Despite
Tewodros’s objection that the testimony was “opinion and conclusion,” the prosecutor
never suggested it was relevant for the different purpose the People now propose; nor was
the jury given a limiting instruction to that effect. The record, accordingly, gives no basis
to believe the jury would have considered Sergeant Morris’s testimony for anything but
its plain meaning—i.e., that Tewodros lied to the police and, by clear inference, also lied
to the jury. It should not have been admitted.
B. Hearsay About Tewodros’s Gun
Tewodros and Asmerom contend the trial court committed further error when it
allowed Sergeant Morris to testify that there was no record Tewodros registered the gun
he bought before the murders. Tewodros also contends that, once that testimony came in,
the court erred when it refused to let him reopen his case to rebut it. Here, too, their
contentions have merit.
Tewodros testified in his case in chief that he purchased a gun several months
before the shooting because he was concerned about protecting himself and his family
from the unknown person he thought was responsible for Abraham’s death. After his
arrest he told police about the gun and told them where to find it in his mother’s closet.
There was nothing to suggest the gun was used in the murders.
On cross-examination, the prosecutor asked Tewodros whether he had registered
the gun in his name. He testified that he had and explained that when he purchased the
gun he filled out the registration paperwork, took an exam on gun safety, and waited the
30-day period to receive the firearm. On rebuttal, the prosecutor presented testimony
from Sergeant Morris that two service dispatchers ran inquiries and told him no guns
40
were registered to Tewodros. Tewodros objected and moved to strike the testimony as
hearsay, but the objection was overruled. The prosecution rested its case that afternoon.
The next morning Tewodros moved to reopen his case to show he had done all he
could to register the gun in his name. He proffered new gun registration paperwork in his
name, a receipt for a $30 payment for gun registration made out to the store where he
bought it, and a handgun safety certificate from the California Department of Justice. He
also offered to testify that he had paid for the registration and believed the gun shop
would handle the paperwork. Defense counsel argued the evidence was necessary to
rebut an anticipated prosecution argument that Tewodros’s ownership of an unregistered
gun indicated a secretive or even illegal intent. The prosecutor responded that she would
not make that argument and objected that the proffered records were unauthenticated and
should have been offered during Tewodros’s testimony. The court found the issue was
only marginally relevant and denied the request to reopen.
C. The Errors Were Prejudicial
The state, correctly, does not dispute that Morris’s testimony about the firearm
registration was inadmissible double hearsay. (See, e.g., People v. Wimberly (1992) 5
Cal. App. 4th 439, 445–446; People v. Scalzi (1981) 126 Cal. App. 3d 901, 906.) Whether
or not the court’s subsequent refusal to allow Tewodros to reopen his case was an abuse
of discretion (see People v. Funes (1994) 23 Cal. App. 4th 1506, 1520), it prevented
Tewodros from refuting the plain implication that he lied to the jury when he testified he
had registered the gun purchased just months before the murders. We consider, then,
whether the cumulative impact of this error and the erroneous admission of Morris’s
testimony that he disbelieved Tewodros’s statement to police requires reversal. We are
persuaded that it does.
“Lengthy criminal trials are rarely perfect, and this court will not reverse a
judgment absent a clear showing of a miscarriage of justice. [Citations.] Nevertheless, a
series of trial errors, though independently harmless, may in some circumstances rise by
accretion to the level of reversible and prejudicial error. (People v. Purvis, supra, 60
Cal.2d at pp. 348, 353[combination of “relatively unimportant misstatement[s] of fact or
41
law,” when considered on the “total record” and in “connection with the other errors,”
required reversal]; People v. Herring, supra, 20 Cal.App.4th at pp. 1075–1077
[cumulative prejudicial effect of prosecutor’s improper statements in closing argument
required reversal]; see In re Jones (1996) 13 Cal. 4th 552, 583, 587 [cumulative prejudice
from defense counsel’s errors requires reversal on habeas corpus]; People v. Ledesma
(1987) 43 Cal. 3d 171, 214–227 [same]. . . .)” (People v. Hill, supra, 17 Cal.4th at pp.
844–845, parallel citations omitted.)
Tewodros’s credibility went to the heart of his defense case. No physical evidence
connected him to the shooting, nor were there any confessions or admissions. The phone
records showing calls made from Tewodros’s cell phone to his brother Dawit’s were
open to innocent as well as culpable interpretations. Indeed, whether Tewodros was a
knowing participant in the murders depended almost completely on his word against that
of the three Mehari brothers, whose own depictions of the critical events displayed
troubling inconsistencies. The jurors were properly instructed that they could reject the
entire testimony of a witness who testified falsely as to any material point, and the
prosecutor’s closing argument hammered on the theme that the case came down to
witness credibility.
In this context, where Tewodros’s veracity weighed so crucially in the balance, the
jury was allowed to hear testimony from a highly experienced police investigator with
intimate knowledge of the case that he believed Tewodros lied when he spoke to the
police and denied involvement in his brother’s crimes. Compounding that damaging
testimony, at the very end of trial the jury heard from the same officer that, in essence,
Tewodros’s testimony that he had registered the gun he bought not long before the
murders was untrue.
A cold written record of a trial is often an inadequate substitute for being present
in the courtroom and observing the proceedings first-hand. Here, when the trial court
ruled upon the motion for new trial, it observed that Tewodros did not appear to be a
credible witness. Maybe so. But on this record we cannot deny the reasonable
possibility that these errors, in the aggregate, tipped the scales in the jury’s assessment of
42
Tewodros’s credibility and thus denied him the fair trial he was entitled to. As
Tewodros’ counsel expressed at oral argument, all that is necessary for reversal is for
there to be a reasonable possibility that without the errors a single juror would have voted
to acquit. Reversal is required under any standard. (See People v. Hill, supra, 17 Cal.4th
at p. 844; People v. Maestas (1993) 20 Cal. App. 4th 1482, 1498.)16
DISPOSITION
The judgment as to Asmerom is affirmed. The judgment as to Tewodros is
reversed. The matter is remanded to the trial court for further proceedings.
16
In light of this conclusion, we do not address Tewodros’s contention that the
court erred when it denied his motions to sever and for mistrial based on Asmerom’s
misconduct in court. Nor do we reach his claim of sentencing error.
43
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Siggins, J.
We concur:
_________________________
Pollak, Acting P.J.
_________________________
Jenkins, J.
People v. Gebreselassie, A133350, A134246
44