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After a “jury convicted Keith Undray Ford of first degree
murder (California Penal Code § 187, subd. (a)) and the court sentenced
him to 25 years to life in state prison”, he appealed. People
v. Ford, 2014 WL 4446166 (California Court of Appeals 2014). You can, if
you are interested, read about the facts that led to the prosecution in the
news stories you can find here and here.
Ford raised several issues on appeal, but this post only
examines one of them: that the trial
judge “erred by admitting a message Ford posted on his Facebook page.” People
v. Ford, supra.
The Court of Appeals begins its opinion by explaining how
and why Ford was prosecuted for murder:
In August 2010, then 20–year–old [Ruben]
Martinez attended college and worked as a car salesman. Martinez owned a blue
SUV with big rims and tinted windows. Martinez treasured the car and washed it
several times a week. On an August 2010 night, Martinez planned to go to a
family party with his girlfriend, Jessica Blanco. He washed the SUV before
their date.
Around 10 p.m., Martinez picked Blanco
up at her house in Vallejo. His car was `really clean and shiny.’ Martinez
decided he wanted to see a movie instead of attending the family party, so he
and Blanco returned to Blanco's house so she could `check the movie times and
get a jacket.’ As they approached Blanco's street, Blanco noticed a white car.
It had been driving in the same direction as Martinez's car, but then made an
abrupt U-turn directly in front of Martinez's car and drove away in the
opposite direction.
Martinez reached Blanco's house. He
stopped the SUV in front of her house but left the engine running. Martinez sat
in the driver's seat and the white light from his cell phone was visible from
outside the car. Blanco got out of the car and went into her house to use the
bathroom. While inside, she heard a `really loud popping noise’ and `a
screeching noise, tires peeling, gravel.’ Blanco went outside and saw
Martinez's car had crashed into a neighbor's house, the engine still revving
and tires spinning.
Martinez was slumped in the driver's
seat, dead from a gunshot wound in his head.
People v. Ford, supra.
The opinion also explains that a neighbor,
Bethel J., and her daughter, Tenley,
lived across the street from Blanco. They were across the street from Blanco's
house when Bethel saw Martinez's car parked in front of Blanco's house and a
person in the driver's seat using a cell phone. Bethel and Tenley saw three
young African American men walking toward them. Tenley's dog charged at one of
the men, who appeared to be in his early twenties.
Tenley `couldn't really’ see that man's
face because it was dark, but she noticed he had short hair cut close to his
scalp. The man was “skinny” and taller than she. Initially, that man was with
his two companions, but he started walking faster and separated from the two
other men. One of the other men had dreadlocks and was wearing a hooded
sweatshirt.
People v. Ford, supra.
The Court of Appeals then goes on to explain that a
fingerprint examiner found a latent
palm print on the driver's side door of Martinez's SUV, just beneath the
window. The latent print matched Ford's left palm print. The fingerprint
examiner was certain `both impressions were made by the same palm.’ A few days
after Martinez died — but before the fingerprint results were in — a Vallejo
detective stopped Ford driving a white Oldsmobile sedan. Ford was 23 years old
and was wearing short hair in a `fade.’ There were six cell phones in the
center console of Ford's car, which Ford said he `bought [ ] stolen off the
streets.’ Ford told the detective he was at his mother's house in Vallejo,
about three miles from Blanco's residence, on the night Martinez was shot. Ford
did `not remain in custody’ and the detective did not speak to Ford again until
December 2010, when Ford was in jail for an unrelated firearm possession
charge.
Ford called his girlfriend while he was
in jail for the unrelated offense and before he was charged with Martinez's
murder. In a recorded conversation, Ford said, `luckily I aint in here for
murder, that's all I keep thinking about. . . . oh well I wish it didn't have to happen. . .
.’ He also said, `I just [wish] I was at home. . . . I know I gotta deal with
my [unintelligible] it's too late for all that ... to be wishin I was at
home.... See I'm disappointed in myself. But [expletive] that's what happens
when you carry a gun. Ain't nothin good gonna come of it. And I know this and
[expletive] still happen, cause I tell other people the only thing you gonna
get out of a gun is you gonna throw down with it or you gonna shoot somebody
with it. And I tell everybody that and look at my [expletive].’
People v. Ford, supra.
And, the court explains that
[s]everal months after Martinez's
murder, Ford posted the following message on his Facebook page: `I heard
through the grapevine you was looking for the guy. Let me know something. And
since you think I popped you, check this out. First off, I don't [expletive]
with the Vistas. Second off, I am too good of a shooter to hit a nigga that
many times and not knock they ass down. Last, when you getting shot, I was on
Fifth buying some syrup off Jigs. Plus, I don't even [expletive] with niggas,
so ain't nobody talked to me since I got out of jail last. Real killers move in
silence. And would I brag on a job I didn't even complete? Niggas knocking
[expletive] down. I don't need credit for an attempt, so take that how you want
to.’
People v. Ford, supra.
Finally, the opinion says the
police arrested Ford for Martinez's
murder. When told his palm print was on the door of Martinez's car, Ford
responded, `[T]hat don't mean nothing. That just means I came in contact with
the vehicle at one time or another.’ Ford did not explain how he `came in
contact” with Martinez's car `at one time or another.’
People v. Ford, supra.
As I noted above, at trial and again on appeal, Ford claimed
the trial judge abused his/her discretion
by admitting a message he posted on his
Facebook page several months after the homicide. He claims the message was
irrelevant, more prejudicial than probative, and that its admission violated
his constitutional right to a fair trial.
People v. Ford, supra.
The Court of Appeals began its analysis of Ford’s argument
by explaining that the
prosecution moved in limine to admit
the Facebook message and the court admitted it over Ford's objection,
concluding it was `relevant and probative.’ The court explained the message `talks
about the person being a good shooter, too good of a shooter to hit someone and
not knock them down, moving in silence. And apparently, the way that this
killing occurred, these could be descriptions of how the killing occurred . . .
so there seems to be some relevance
there.
Perhaps most of what is probative,
though, is [Ford] says, “Why would I brag on a job I didn't even complete?”. .
. . It says, “I don't need credit for an attempt, so take how you want to.” I
think there is some probative value to that, that there may be another killing
out there; there may be the killing of a victim that could be referred to “Why
would I take credit for an attempt’ when there's an actual killing.”’
People v. Ford, supra.
The trial judge went on to analyze the Facebook message
under California
Evidence Code section 352 and
concluded, `I don't see it being -- any probative value being substantially
outweighed. Again, I think it's very probative if the jury accepts the
prosecution's version of what it means. I don't think there's going to be an
undue consumption of time or misleading of jury issues or confusion issues. First
of all, while it references some other, perhaps, attempted shooting or
attempted killing, the defendant's denying it throughout the statement, so any
incident -- any other incidents not being brought up in front of the jury, such
as a [California Evidence Code section] 1101(b)-type situation. So it appears
to me to be relevant. I would allow it subject to the proper foundation. And I
have used my discretion under [California Evidence Code section] 352. I don't
see the prejudice outweighing the probative value.’
People v. Ford, supra.
The opinion then notes that a
prosecution witness read the Facebook
message to the jury twice because the witness missed a line while reading the
message the first time. During closing argument, the prosecutor argued the
Facebook message was an admission Ford shot Martinez.
People v. Ford, supra.
The Court of Appeals then took up whether admitting the
message was reversible error, noting, initially, that
[o]nly relevant evidence is admissible.
(California Evidence Code § 350.) ‘Relevant evidence’ means evidence . . . having
any tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.’ (California Evidence Code, §210.) A trial court may `exclude evidence if its probative value is
substantially outweighed by the probability that its admission will . . . create
substantial danger of undue prejudice. . . .’ (California Evidence Code, § 352)
`We review a trial court's rulings on
the admission ... of evidence for abuse of discretion.’ (People v. Chism,
58 Cal.4th 1266 (California Court of Appeals 2014.) ‘”A trial court will not be found to have abused
its discretion unless it ‘exercised its discretion in an arbitrary, capricious,
or patently absurd manner that results in a manifest miscarriage of justice.’”’
(People v. Hajek and Vo, 58 Cal. 4th 1144 (California Court of
Appeals 2014).
People v. Ford, supra.
The court then noted that Ford claimed the Facebook message
was irrelevant
because `it was not an admission of,
and had nothing to do with, the homicide for which [he] was standing trial.’ We
disagree with Ford's self-serving interpretation of the Facebook message. A
plausible reading of the message is Ford murdered Martinez, a disputed fact at
trial.
In the message, Ford implicitly
admitted committing a recent murder when he claimed he did not have to take
credit for an attempted murder. He stated, why `would I brag on a job I didn't
even complete. . . . I don't need credit for an attempt. . . .’ By claiming he
was `too good of a shooter to hit a nigga that many times and not knock they
ass down [,]’ Ford implied that when he shot someone, he did not miss. Finally,
Ford bragged that, unlike the accusation made by the recipient of the Facebook
message, `Real killers move in silence[,]’ suggesting he quickly shot Martinez
in the head without being noticed and immediately disappeared.
We conclude the court did not abuse its
discretion by determining the Facebook message was relevant. (People v. Hajek,
supra [determination of jailhouse recording's relevance was not an abuse of
discretion].)
People v. Ford, supra.
The Court of Appeals also found that Ford
has failed to demonstrate the risk of
undue prejudice substantially outweighed the Facebook message's probative
value, requiring exclusion under Evidence Code section 352. `Evidence is
substantially more prejudicial than probative [citation] if . . . it poses
an intolerable ‘risk to the fairness of the proceedings or the reliability of
the outcome.’ . . . (People v. Waidla, 22 Cal.4th 690 (California Court
of Appeals 2000) “’”Prejudice” as contemplated by [Evidence Code] section 352 is
not so sweeping as to include any evidence the opponent finds inconvenient.
Evidence is not prejudicial, as that term is used in a section 352 context,
merely because it undermines the opponent's position or shores up that of the
proponent. . . .”’ ‘”The “prejudice” referred to in Evidence Code section
352 applies to evidence which uniquely tends to evoke an emotional bias against
the defendant as an individual and which has very little effect on the issues.
. . . ‘ (People v. Doolin, 45 Cal.4th 390, (California Court of Appeals
2009).)
Here, the Facebook message may have
undermined Ford's case, but it was not more prejudicial than probative. It was
relevant to the issues in the case and did not tend to evoke an emotional bias
against Ford. We conclude the court did not abuse its discretion by admitting
the Facebook message.
People v. Ford, supra.
The Court of Appeals then explained that
[e]ven if we assume the court erred by
admitting the message, any error was harmless given the strong evidence of
Ford's guilt. (People v. Cummings, 4 Cal.4th 1233 (California Court of
Appeals 1993)) As previously discussed: (1) Ford's palm print was found on
Martinez's newly-washed car and Ford did not explain how his hand came into
contact with Martinez's car; (2) shortly before the shooting, witnesses saw a
man matching Ford's general appearance and a car similar to the one Ford drove;
(3) Ford told his girlfriend he was happy he had not been charged with murder,
he `wish[ed] it didn't have to happen[,]’ and conceded `the only thing you
gonna get out of a gun is you gonna throw down with it or you gonna shoot
somebody with it[;]’ and (4) Ford was found with multiple cell phones in his
car a few days after Martinez's murder, suggesting a motive to commit the
crime. It is not reasonably probable the jury would have returned a more
favorable verdict had the court excluded the Facebook message. (People
v. Watson, 46
Cal.2d 818 (California Supreme Court 1956)).
Finally, we reject Ford's final claim
that the cumulative impact of the alleged errors deprived him of a fair trial.
We have either rejected Ford's claims of error and/or found that any errors,
assumed or not, were not prejudicial. `Viewed as a whole, such errors do not warrant
reversal of the judgment.’ (People v. Stitely, 35 Cal.4th 514
(California Supreme Court 2005).)
People v. Ford, supra.
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