First Degree Murder, the Blue SUV and the Facebook Posts

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.