This post examines a recent opinion from the Court of Appeal, Third District, California: The People
v. Fisher (2017). The court begins the opinion by explaining what the case
involves, what the charge was and what occurred at the trial level:
A jury found defendant Jacob Reed
Fisher guilty of first
degree murder. On appeal, he challenges the admission of several text messages. He first contends the trial court erred in admitting text messages from the victim to
defendant's cell phone. He argues the texts were hearsay and lacked foundation
to be relevant to his motive or mental state. . . .
People v. Fishers,
supra.
The opinion goes on to explain how, and why, the prosecution
arose:
On January 18, 2014, the victim was
beaten and fatally shot in an apartment complex courtyard. During trial, the
prosecution introduced evidence of numerous text messages. One series of texts
from the victim to defendant indicated the victim had a quarrel with defendant
and codefendant before the murder. Another series of texts involved codefendant
asking a friend for a ride (for himself and defendant) after the murder.
Defense counsel moved to exclude the texts from the victim's phone but not the texts
sent by codefendant.
People v. Fishers,
supra.
The court then quotes from the text messages at issue in the
trial, dividing them into “”text messages from the victim to the defendant” and
“text messages between codefendant and a friend, after the murder.” People v. Fishers, supra.
The text messages from the victim to Fishers consist of the
following:
In the days leading up to the January
18 murder, the victim sent several text messages to defendant, regarding a
dispute over a gun:
`When you gonna see mee bro i'm tired
of chasin ur bitch ass and why u lie to people, u knew gun was there cuz i
called u before you left apartments, fukin pun.’ (Sent Jan. 16, 2014 at 4:37
p.m.)
`What ru hoping to accomplish by doin
this? U stole from a friend cuz u were butthurt bout a name? Grow the fuck up
little boy! Thought you were more gangst.’ (Sent Jan. 17, 2014 at 9:40 p.m.)
`Little albino bear, this is brown
bear, going to go tax this sticks guy, be nice to have u watchin my
back/w/pistol, put this shit behind us! What d ya say I.’ (Sent Jan. 18, 2014
at 12:35 p.m.)
People v. Fishers,
supra.
The Court of Appeals then explains that
Defense counsel moved in limine to
exclude the texts. He argued they were hearsay, lacking in foundation
(asserting no evidence showed defendant received or responded to them), not
relevant, and more prejudicial than probative. The prosecution responded the
texts were offered for the nonhearsay purpose of showing the effect on
defendant. The prosecution added there was sufficient evidence the phone
belonged to defendant and that he had received the texts.
The trial court denied the motion to
exclude the texts. The court referenced other evidence of a dispute between the
victim and the two codefendants and explained the texts were not offered for
the truth of the matter asserted but as circumstantial evidence of motive and
intent.
People v. Fishers,
supra. In a footnote appended to the
end of the final sentence in the first paragraph, the Court of Appeals explains
that the
prosecution did not specify the
evidence. But at trial, the parties stipulated that, if called, defendant's
mother would testify the phone number the texts were sent to belonged to
defendant. And defendant's phone sent text messages before and after the
victim's series of texts, including texting `[c]all me’ to codefendant shortly
after the victim's last text.
People v. Fishers,
supra.
The opinion goes on to explain that the
trial court denied the motion to
exclude the texts. The court referenced other evidence of a dispute between the
victim and the two codefendants and explained the texts were not offered for
the truth of the matter asserted but as circumstantial evidence of motive and
intent.
The court, however, limited the
evidence to defendant. The jury was instructed: `[y]ou can only use this
evidence as to [defendant] only, as it has relevance, if any, to the effect it
had on defendant . . ., specifically his state of mind, attitude, intent and
motive. [¶] This evidence is limited to defendant . . . and not as to
[codefendant].’
People v. Fishers,
supra.
The Court of Appeals then takes up the text messages between
Fisher’s co-defendant “and a friend, after the murder”, explaining that
Shortly after the murder, codefendant
and a friend--apparently by directing her passenger to text while she
drove--exchanged texts:
FRIEND: `On my way what's going on’
CODEFENDANT: `Please hurry I need
your assistance asap’
FRIEND: `Do I need hand warmer’
FRIEND: `On my way’
CODEFENDANT: `No just need a ride
up out of here like yesterday’
FRIEND: `K b there soon’
CODEFENDANT: `It's me and my little
brother’
FRIEND: `K’
CODEFENDANT: `I need up out of
here’
FRIEND: `Its me and my girl.’
FRIEND: `5 mins.. coming up on fair
oaks’
CODEFENDANT: `Just hurry please and
just know the hood is hot’
FRIEND: `K’
FRIEND: `So ... what's new’
CODEFENDANT: `No it's hella hot’
FRIEND: `Cuz u’
FRIEND: `Cominh up now’
CODEFENDANT: `We ya’
FRIEND: `Just passed el camino’
FRIEND: `I'm looking for u’
CODEFENDANT: `I'm in apts right b4
marconi’
The opinion then noted that
the friend picked defendant and
codefendant up less than a mile from the murder. Defendant did not move to
exclude that text exchange.
People v. Fishers,
supra. In a footnote following the
codefendant’s reference to “a hand warner,” the court notes that a “hand
warmer” is a gun. People v. Fishers, supra. In another footnote, the court
explains that the codefendant “referred to defendant as his 1brother.” People v. Fishers, supra.
The Court of Appeals ended this section of the opinion by
explaining that the
friend picked defendant and codefendant
up less than a mile from the murder. Defendant did not move to exclude that
text exchange.
The jury found defendant guilty of
first degree murder and found he had used a firearm in committing the offense.
People v. Fishers,
supra.
The Court of Appeals then began its analysis of the
arguments Fishers made as to the two categories of text messages, beginning
with the “text messages from the victim to defendant.” People v. Fishers, supra.
It begins with the messages from the victim to Fishers, explaining that
defendant contends the trial court
erred in admitting the text messages from the victim's phone. He points out the
prosecutor's brief argument to the jury that the texts showed defendant took a
gun from the victim, thereby arguing the messages proved the truth of their
contents. He further argues the prosecution failed to provide the necessary
foundation that defendant was aware of the messages' content, asserting there
was no evidence he had received (and read) the texts.
People v. Fishers,
supra.
The Court of Appeal then begins the articulation of its
analysis of this issue, noting that
`”[A]n out-of-court statement can
be admitted for the nonhearsay purpose of showing that it imparted certain
information to the hearer, and that the hearer, believing such information to
be true, acted in conformity with such belief.’” (People v. Clark (2016)
63 Cal.4th 522, 562.)
We review the admission of hearsay
evidence under an abuse of discretion standard. (People v. Pirwani (2004)
119 Cal.App.4th 770, 787.) We apply the same standard to questions of the
existence of elements necessary to satisfy a hearsay exception. (Ibid.)
A court's ruling admitting hearsay evidence implies all necessarily fact
finding prerequisites. (Evid. Code, § 402; People v. Martinez (2000)
22 Cal.4th 106, 120.)
Here, the trial court acted within
its discretion in admitting the text messages from the victim to defendant for
the nonhearsay purpose of showing their effect on defendant.
The prosecutor's statement in
closing that defendant had taken the victim's gun, although inappropriate and
unwise, does not render admission of the evidence error. The court properly
instructed the jury that it may consider the messages only for defendant's
state of mind, attitude, intent and motive. We presume juries heed admonitions
and limiting instructions. (Francis v. Franklin (1985) 471 U.S.307, 324, fn. 9] [that a jury follows instructions is a ‘crucial
assumption’ of trial by jury].) And a prosecutor's statements to the jury are,
of course, not evidence.
Moreover, there is other evidence
that defendant received the text messages. The record reflects the messages
were sent to defendant's phone. The parties stipulated defendant's mother would
testify the number belonged to him. The record further reflects that
defendant's phone was in working order before and after the victim sent the
series of texts. Defendant texted codefendant several days before the victim's
first text. And two hours after the victim's last text, defendant texted `Call
me’ to codefendant. Any remaining doubt as to whether defendant had seen the
messages would go to their weight, for the jury to consider.
Accordingly, the trial court did
not abuse its discretion in admitting the text messages for the limited purpose
of showing their effect on defendant's state of mind.
People v. Fishers,
supra.
The court then took up the second, and final, issue in
Fishers’ appeal: ineffective assistance of counsel. People v. Fishers, supra.
It explains that
[d]efendant also challenges the
introduction of text messages sent by his codefendant to a friend, after the
murder. He argues the texts did not qualify under the hearsay exception for
statements of a coconspirator because the object of the conspiracy-murder--was
complete before the texts were exchanged. He further argues his trial counsel
rendered ineffective assistance in failing to object to their admission and for
failing to seek a limiting instruction.
Evidence Code section 1223 permits
evidence of a statement made while participating in a conspiracy, in
furtherance of the conspiracy's objective, so long as the statement was made
before or during the conspiracy.
Preliminarily, defendant has forfeited
his challenge by failing to raise it before the trial court. (See People
v. Rogers (1978) 21 Cal.3d 542, 548 [issues relating to the
admissibility of evidence will not be considered on appeal absent a timely
objection in the trial court].) Nevertheless, we will address the merits in
considering defendant's claim of ineffective assistance.
`[T]o establish a claim of ineffective
assistance of counsel, defendant bears the burden of demonstrating, first, that
counsel's performance was deficient because it “fell below an objective
standard of reasonableness ... under prevailing professional norms.”’ (People
v. Ledesma (2006) 39 Cal.4th 641, 745-746.)
Here, failing to object did not fall
below an objective standard of reasonableness because the texts were properly
admitted as coconspirator statements. (See Evid. Code, § 1223.) Although
the text messages were exchanged immediately after the murder,
they were sent while defendant and his co-defendant were still participating in
the conspiracy. They were attempting to escape the scene, waiting less than a
mile from the shooting. Indeed, their content indicates immediate flight: `Please
hurry I need your assistance asap’; `[I] need a ride up out of here like
yesterday’; `I need up out of here’; `Just hurry please and just know the hood is
hot.’
Defendant's argument that the
conspiracy had ended is unavailing. The uncharged conspiracy to murder the
victim implicitly included an objective of escaping the immediate area of the
shooting. (See Levenson & Ricciardulli, Cal. Criminal Law (The Rutter Group
2016) § 12:23, p. 12:23 [`a conspiracy is generally thought not to end until
all acts of escape or concealment are completed . . . [though not] merely
because the conspirators act in concert to avoid detection and punishment’]; People
v. Saling (1972) 7 Cal.3d 844, 852 [`Particular circumstances may
well disclose a situation where the conspiracy will be deemed to have extended
beyond the substantive crime to activities contemplated and undertaken by the
conspirators in pursuance of the objectives of the conspiracy’].) Because this
evidence was properly admitted as an admission of a coconspirator, defendant's
claim of ineffective assistance must fail.
The judgment is affirmed.
People v. Fishers,
supra.
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