Opinion
G051049
06-29-2017
THE PEOPLE, Plaintiff and Respondent, v. PAUL MARSHAL CURRY, Defendant and Appellant.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10CF3053) OPINION Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed. Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Paul Marshal Curry was convicted of special circumstances murder for poisoning his wife, Linda Curry, for financial gain. On appeal, he contends the trial court erred in denying his motion to dismiss due to precharging delay. He also challenges the admission of various statements made by Linda and claims CALCRIM No. 359, the standard jury instruction on the corpus delicti rule, is unconstitutional. We reject these claims and affirm the judgment.
FACTS
Late on the night of June 9, 1994, appellant called 911 and reported Linda was unconscious and in need of help. When the paramedics arrived at the Curry home, they found Linda lying on the bedroom floor next to a pool of vomit. They tried to revive her, but she did not respond and was pronounced dead at the hospital early the next morning. Although Linda was a nonsmoker, she died from massive acute nicotine poisoning. Her autopsy not only revealed fatal levels of nicotine in her system, but toxic levels of a sedative called Ambien, as well. Hemorrhaging consistent with a needle puncture was discovered behind her right ear. The prosecution theorized appellant murdered Linda by sedating her with Ambien and injecting nicotine behind her ear to collect on her life insurance policies. The defense postulated Linda either committed suicide or died accidentally from giving herself a nicotine enema.
At the time of her death, Linda was 50 years old and appellant was 37. They had been married less than two years, and things had not gone well for them, particularly for Linda. In fact, soon after they married in the fall of 1992, Linda began experiencing unusual stomach pain, diarrhea and vomiting. In July 1993, she was admitted to the hospital for testing, but doctors could not figure out what was wrong with her. During her hospital stay, appellant was a frequent visitor. After he left Linda's room one day, her IV alarm sounded, and a responding nurse noticed her IV bag was abnormally cloudy. Further inspection of the bag revealed it had been punctured several times and laced with Lidocaine, a drug Linda had not been prescribed at that time.
In the aftermath of this incident, Linda told her sister Patricia that she suspected appellant was responsible for her illness. Linda spoke with the police after the hospital informed them of the incident. During their interview, which was recorded, Linda was asked, "If somebody were trying to do something to you, if they were trying to poison you, any idea who would try to do that?" Linda answered, "Well, the only person I could think of that would have a motive to do it would be Paul (appellant) and the only motive I can think of is money but I don't want to believe that or think that."
The investigating officer asked Linda to elaborate, to state all the things that would lead her to believe appellant was trying to kill her, and all of the things that would lead her to believe appellant was not trying to kill her. In the first category, Linda listed the fact appellant seemed to be sneaky, dishonest and very interested in her money. She said that coming into their marriage appellant did not have anything, but she had "a nice big house, a nice car, jewelry [and] furs." And after they wed, appellant wanted her to change all her bank accounts and credit cards over to his name and to designate him as the beneficiary on all her life insurance policies. Linda also said she and appellant had not had sex since they were married, and because she was 13 years older than appellant, she had always wondered why he would be interested in her.
On the other side of the ledger, Linda said the only thing that made her think appellant was not trying to kill her is that he treated her kindly and appeared to be a nice person. Commenting on the disparity between appellant's positive and negative qualities, Linda remarked, "Boy, I have a lot more going one way than the other way but, to me, the nice person sort of off-sets a lot of things." Ultimately, Linda decided to stay with appellant. However, she secretly removed him as the beneficiary on some (but not all) of her life insurance policies.
Despite a brief respite from her health problems, Linda was hospitalized again at the end of 1993 with the same symptoms as before. And as before, there was an incident with her IV bag that caused her concern. On the heels of a visit from appellant, her IV alarm sounded, and a nurse went into her room to see what was wrong. The nurse discovered Linda's IV tubing had been tampered with, as if someone had intentionally damaged it with a tool. There was fluid pouring out of Linda's IV line, and one of the connections on her IV bag was broken. Later on, after Linda was released from the hospital, she told Patricia that if she ever got sick again, she did not want appellant coming near her in the hospital.
Six months later, Linda did get sick again. However, she never made it back to the hospital alive. After becoming unconscious in her home, she passed away on the evening of June 9, 1994, as described above. According to the medical examiner, the amount of nicotine found in Linda's blood was consistent with her having died within 30 minutes of being exposed to that drug. Appellant was the only person with Linda during that time. In fact, he was alone with Linda the entire evening preceding her death. He would later tell police that he and Linda went to bed early that night. Then, around 11:00 p.m., their cat was making strange noises, which woke him up, but not Linda. Upon noticing Linda was not breathing, he called 911 and performed CPR on her until the paramedics arrived.
It wasn't until after Linda died that appellant learned she had replaced him with her sister Patricia as the beneficiary on some of her life insurance policies. Appellant still collected several hundred thousand dollars in proceeds from the policies, but he wanted Patricia to sign over all the policies to him. To entice her to do so, he gave her an expensive Rolex watch that had belonged to Linda. When that gesture proved ineffective, appellant filed a claim against Patricia on the disputed policies. He also filed a fraudulent insurance claim on the Rolex, alleging it had been stolen.
Five months after Linda died, the police interviewed appellant, and he denied any wrongdoing. He also denied collecting on any of Linda's life insurance policies. According to appellant, he and Linda never even discussed the issue of life insurance because he couldn't stand the thought of losing her. While appellant claimed Linda's death was financially devastating to him, appellant admitted to the police that he had just turned in their old car for a new Cadillac.
Police were unable to make a case against appellant. He moved to Kansas and remarried. However, the investigation into Linda's death continued, culminating in appellant's arrest for murder in November 2010. In speaking with a police detective at that time, appellant attempted to put his marriage to Linda in a positive light and downplay the amount of proceeds he received from her life insurance policies. He insisted he had no reason to kill Linda and nothing to do with her death.
In light of appellant's claims, the detective played him selected portions of the tape-recorded interview that Linda had with the police following her initial hospitalization in 1993. After playing the segment where Linda surmised appellant might want to kill her for her money, the detective asked appellant what Linda had just said. Appellant replied, "You heard her." The detective then played the portion of Linda's interview where she gave all of the reasons why she thought appellant might want to kill her and then remarked about how those reasons outnumbered the reasons why she thought appellant might not want to kill her. Asked to comment on Linda's assessment, all appellant had to say was that it was "unusual" and "nostalgic" to hear Linda's voice. When pressed about Linda's specific claims, appellant denied they had a sexless marriage or he was after her money. He also denied making a fraudulent insurance claim on Linda's Rolex. However, as his interview progressed, appellant eventually came clean about the claim, describing it as a "poor decision."
At trial, the defense presented evidence appellant and Linda had a loving relationship, and appellant was making upwards of $100,000 while they were together. The defense also tried to poke holes in the prosecution's theory that Linda died from massive acute nicotine poisoning as a result of being injected with that drug. To that end, a defense expert testified it would be hard to inject poison into a person's head behind their ear because the blood vessels in that area are very small. The defense also presented expert testimony that the hemorrhaging behind Linda's ear was inconsistent with an injection site and that the medical examiner may have overestimated the amount of nicotine in Linda's system, due to incomplete testing methods.
Appellant's employment history included stints working at chemical plants and the San Onofre nuclear power facility. Although he did not have a degree in chemistry or chemical engineering, he once boasted at a party prior to Linda's death that he could go into his garage and "get some chemicals that would kill someone and it would never be detected."
In attempting to refute the murder charges, the defense also presented evidence that Linda had a variety of physical ailments (including gastrointestinal problems, Epstein-Barr virus and chronic fatigue syndrome) and that she suffered from anxiety and depression for which she sought psychiatric treatment and was prescribed various medications. Based on this evidence, the defense theorized Linda may have been so pained and distraught she decided to take her own life. Alternatively, the defense surmised Linda may have died accidentally by giving herself a nicotine enema. This theory was derived from evidence Linda was interested in homeopathic medicine and had once told her doctor she had taken some Chinese herbs.
The defense's suicide and accident theories were undermined by evidence that appellant may have tried to poison his ex-wife, Leslie Curry. Leslie testified that while she was married to appellant in the late 1980's, she came down with mysterious flu-like symptoms that made her weak and disoriented. Leslie thought she might have Lyme disease, but doctors were unable to assign a cause to her symptoms. During this trying time, appellant convinced her to apply for life insurance. However, after she provided a blood sample as part of the application process, the insurance company rejected her application. Appellant left her. Not long after that, Leslie's health returned, and appellant started going out with Linda.
DISCUSSION
Alleged Due Process Violation Based on Precharging Delay
Appellant contends the trial court erred in denying his motion to dismiss due to the 16-year delay that occurred between the time Linda died in 1994 and the time he was charged with her murder in 2010. We find the motion was properly denied because appellant failed to show he was actually prejudiced by the delay.
As our Supreme Court has explained, "The due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 15 of the California Constitution protect a defendant from the prejudicial effects of lengthy, unjustified delay between the commission of a crime and the defendant's arrest and charging." (People v. Cowan (2010) 50 Cal.4th 401, 430.) However, "[p]rejudice . . . from precharging delay is not presumed. [Citations.]" (People v. Abel (2012) 53 Cal.4th 891, 908-909.) Rather, the defendant must affirmatively demonstrate he has suffered actual prejudice as a result of the delay. (Id. at p. 909; People v. Alexander (2010) 49 Cal.4th 846, 875.) "If the defendant establishes prejudice, the prosecution may offer justification for the delay; the court considering a motion to dismiss then balances the harm to the defendant against the justification for the delay. [Citation.] But if the defendant fails to meet his or her burden of showing prejudice, there is no need to determine whether the delay was justified. [Citations.]" (People v. Abel, supra, 53 Cal.4th at p. 909.)
In this case, appellant filed a 500-plus page motion to dismiss on the basis the lengthy delay between Linda's death and his arrest violated his due process rights. The motion identified five categories of evidence that were allegedly unavailable due to the delay:
1) Skin and scalp samples from Linda's autopsy. According to appellant, some of these samples were destroyed in 1997, and others were not properly preserved, so he was unable to have them independently tested. Appellant argued such testing could have proven Linda's skin and scalp were without nicotine, which would have undermined the prosecution's theory she died as a result of nicotine being injected behind her ear.
2) Appellant and Linda's medical and prescription records. Most of these records were lost, destroyed or otherwise unavailable by the time of trial. Appellant argued their unavailability deprived him of the opportunity to show that Linda was a regular Ambien user and that he never had legal access to the drug.
3) Testimony from the paramedics who treated Linda. By the time of trial, one of the paramedics who treated Linda had passed away, and the other could not remember the incident. Appellant asserted that if the case had proceeded to trial sooner, he would have been able to find out whether or not they saw Ambien in appellant and Linda's house on the night she died.
4) Information as to why Leslie Curry became ill. By the time of trial, Leslie could not remember the name of the doctors she saw when she became sick in the late 1980's while she was married to appellant. Nor could she recall the name of the company she applied to for life insurance. Appellant claimed that had Leslie known this information, he might have been able to prove the cause of her illness was Lyme disease, not poison.
5) Linda's psychiatrist records. These records were lost, destroyed or otherwise unavailable by the time of trial. Appellant argued the absence of these records deprived him of the opportunity to find out whether Linda was suffering from a psychiatric illness that might have led her to commit suicide.
As was its prerogative, the trial court deferred ruling on appellant's motion until after he was tried. (See People v. Martinez (2000) 22 Cal.4th 750, 769 [to place a defendant's claim of prejudice in better context, the trial court may consider a motion to dismiss after all of the evidence is adduced at trial].) Describing appellant's claim of prejudice as "speculative," the court found he failed to show he was actually harmed as a result of the precharging delay. It therefore denied his motion to dismiss without requiring the prosecution to put forth any justification for the delay. Appellant contends this ruling was erroneous. He argues he carried his burden of establishing prejudice, and thus the matter should be remanded to permit the trial court to balance the harm he suffered against any purported justification for the delay. We review the trial court's decision under the deferential abuse-of-discretion standard. (People v. Jones (2013) 57 Cal.4th 899, 922.) Under that standard, there is no basis to disturb the trial court's ruling.
There are three problems with appellant's offer of proof on the issue of prejudice. First, as a matter of basic relevancy, it is hard to see how the Ambien-related evidence would have helped his case, even if it turned out that Linda had a prescription for Ambien, he did not, and the paramedics had seen the drug in their house on the night of Linda's death. Assuming all those things were true, it would not refute the prosecution's theory he had actually given the drug to her, nor would it disprove appellant was the person who administered the nicotine. Thus, the unavailability of the Ambien evidence was not prejudicial to appellant. (See People v. Catlin (2001) 26 Cal.4th 81, 108 [loss of evidence due to precharging delay deemed nonprejudicial since it would have done very little in terms of refuting the prosecution's murder theory].)
Second, appellant's offer of proof was speculative as to whether the subject evidence would have been available at trial absent the precharging delay. (See People v. Jones, supra, 57 Cal.4th at pp. 922-924 [no due process violation where defendant failed to show loss of purported evidence was attributable to delay in filing charges].) For example, many of the skin and scalp samples from Linda's autopsy were destroyed in 1997, just three years after Linda died. And the pharmacy where Linda and appellant got their prescriptions closed as early as 1994. Thus, it is questionable whether the autopsy samples and the prescription records would have been available if the case had proceeded to trial in a more timely fashion. (See People v. Abel, supra, 53 Cal.4th 891, 910 [prejudice from precharging delay found lacking where defendant failed to show his investigator would have discovered the allegedly exculpatory evidence had the case proceeded to trial more quickly].)
The same is true with respect to the theorized testimony of Leslie Curry. Appellant asserts that had he been charged sooner, Leslie would have been able to remember more of the details surrounding her illness in the late 1980's. But there is no way of knowing this. While we acknowledge appellant's claim the passage of time dimmed the memory of certain witnesses, he has failed to show the requisite link between the precharging delay and their purported forgetfulness. (People v. Jones, supra, 57 Cal.4th at pp. 922-923 [finding no prejudice from precharging delay where witness would have had diminished memory "in any case"]; People v. Abel, supra, 53 Cal.4th at p. 909 ["defendant made no showing that (the witness's) recall would have been more specific had she been contacted earlier"].)
The third, and perhaps most fatal, problem with appellant's offer of proof is that there is no way of knowing if the evidence that was supposedly lost due to precharging delay was actually exculpatory in nature. He alleged the subject evidence might have been able to help his case, but that is not sufficient under the law. (People v. Jones, supra, 57 Cal.4th at p. 922.) It's not sufficient because when the value of the evidence is unknown, it is impossible for a court to conclude with any degree of certainty that its unavailability caused the defendant actual prejudice. In fact, in that situation, it is entirely possible the evidence would have hurt the defendant's prospects for success at trial. That possibility existed here because the lost evidence could very well have established Linda's autopsy samples contained nicotine, appellant had access to Ambien, his ex-wife had been poisoned, and Linda was free of mental illness. If that had been the case, appellant would have been worse off than he actually was. Because appellant can do nothing more than speculate that the precharging delay damaged his case his claim of prejudice cannot prevail. (Compare People v. Cordova (2015) 62 Cal.4th 104, 120 [precharging delay not prejudicial because "[n]o reason exists to believe any of these witnesses would have supplied exonerating, rather than incriminating, evidence, or any evidence at all"] and People v. Nelson (2008) 43 Cal.4th 1242, 1250-1251 [defendant failed to show multiple pieces of evidence would actually have been exonerating if they had been available for trial] with People v. Booth (2016) 3 Cal.App.5th 1284 [prejudice shown where record affirmatively established evidence lost due to precharging delay would have been exculpatory in nature]; People v. Boysen (2007) 165 Cal.App.4th 761 [same].)
Rather than addressing the deficiencies in his offer of proof, appellant draws our attention to a pair of opinions out of this court that suggest a defendant is not required to make a showing of actual prejudice in order to obtain a dismissal based on precharging delay, Ibarra v. Municipal Court (1984) 162 Cal.App.3d 853 (Ibarra) and Garcia v. Superior Court (1984) 163 Cal.App.3d 148 (Garcia). Indeed, in those cases we found general allegations of memory loss and witness unavailability sufficient to establish prejudice from pretrial delay, even though it was unclear whether the lost evidence would actually have been favorable to the defense. Although the showing of prejudice in both cases was theoretical and minimal, we remanded them to allow the trial court to balance the prejudice against the prosecution's justification for the delay. (Ibid.)
Respondent attempts to distinguish Ibarra and Garcia on the basis they involved speedy trial claims under the Sixth Amendment, as opposed to claims of precharging delay under the due process clause. However, "'regardless of whether defendant's claim is based on a due process analysis or right to a speedy trial not defined by statute, the test is the same, i.e., any prejudice to the defendant resulting from the delay must be weighed against the justification for the delay.' [Citation.]" (People v. Martinez, supra, 22 Cal.4th at p. 767.)
Ibarra and Garcia have never been expressly overruled. Nevertheless, we do not believe they are controlling here because they are at odds with subsequent California Supreme Court cases that clearly necessitate a showing of actual prejudice, not just the possibility of prejudice, before the prosecution is required to proffer a justification for the particular delay. (People v. Cordova, supra, 62 Cal.4th at p. 120; People v. Abel, supra, 53 Cal.4th at p. 909; People v. Alexander, supra, 49 Cal.4th at p. 875; People v. Nelson, supra, 43 Cal.4th at pp. 1250-1251.) As an intermediate appellate court, we are not at liberty to ignore this precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court."].)
California is consistent with other jurisdictions in requiring the defendant to establish actual harm from the delay in question. It is not enough for a defendant to merely allege, as appellant does here, the delay prevented him from obtaining or examining evidence that might have been of benefit to him. (See, e.g., Alcantara v. McEwen (9th Cir. 2015) 589 Fed.Appx. 374, 375; United States v. Vaughn (6th Cir. 2011) 444 Fed.Appx. 875, 878-879; United States v. Vera (9th Cir. 2003) 61 Fed.Appx. 330, 331; United States v. Crouch (5th Cir. 1996) 84 F.3d 1497, 1515; State v. Broughton (Ariz. 1988) 752 P.2d 483, 486-487; Com. v. Scher (Pa. 2002) 803 A.2d 1204, 1217, 1228; State v. Hales (Utah 2007) 152 P.3d 321, 334-335; State v. Davis (W.Va. 1999) 519 S.E.2d 852, 863-864; Bush v. State (Wyo. 2008) 193 P.3d 203, 221-222; Moberg v. Municipality of Anchorage (Ala. App. 2007) 152 P.3d 1170, 1173-1174; State v. Kleine (Mo. App. 2011) 330 S.W.3d 805, 809.)
In any event, the record amply shows the precharging delay that occurred in this case did not infringe appellant's right to a fair trial, which is the touchstone of due process. (United States v. Lovasco (1977) 431 U.S. 783, 790; People v. Nelson, supra, 43 Cal.4th at p. 1256; Scherling v. Superior Court (1978) 22 Cal.3d 493, 507; People v. Booth, supra, 3 Cal.App.5th at p. 1303; People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 914.) Despite the delay, appellant was able to compile hundreds of pages of evidence in support of his motion to dismiss. He also called numerous lay and expert witnesses on his behalf during the trial and vigorously cross-examined the prosecution's witnesses. This resulted in the jury hearing extensive testimony about Linda's medical history, her relationship with appellant and how she died. It also provided a factual foundation for the defense to argue Linda's death was caused by accident or suicide rather than criminal agency. In light of this, we conclude appellant's due process motion was properly denied. The trial court did not abuse its discretion in finding appellant failed to make a prima facie showing of prejudice from the precharging delay.
Admission of Linda's Testimonial Statements
Appellant contends the jury should not have been allowed to hear the statements Linda made to the police following her initial hospitalization in 1993. There is no question those statements were testimonial, given that they were made during a formal police interview for the primary purpose of preserving facts for later use at trial. (See Crawford v. Washington (2004) 541 U.S. 36; People v. Sanchez (2016) 63 Cal.4th 665.) And since appellant did not have an opportunity to cross-examine Linda about what she told the police, admitting her statements for their substantive truth would have violated the Sixth Amendment's Confrontation Clause. (Ibid.) But that was not the purpose for which they were admitted. Rather, the trial court admitted Linda's statements as a contextual aid for the limited purpose of helping the jury understand appellant's reaction and response to hearing them.
In particular, the trial court told the jury, "During the recorded interview with the defendant by law enforcement on November 9th, 2010, the investigators play[ed] for him segments of previous statements made by Linda Curry. As to the statements of Linda Curry played for the defendant during the November 9th, 2010, interview, you are not to consider those statements for the truth of the matter asserted in those statements; rather you may consider them as follows: [¶] 1. To evaluate and assess the defendant's reaction to hearing Linda Curry's statements; and [¶] 2. To evaluate the defendant's responses to the investigators' questions. [¶] You're not allowed to consider Linda Curry's statements played to the defendant for any other reason."
Appellant readily concedes testimonial statements that are not admitted for their truth do not run afoul of the Confrontation Clause. (People v. Ervine (2009) 47 Cal.4th 745, 775-776.) However, he claims the jury in his case would not have been able to adhere to the court's limiting instruction because it pertained to "beyond the grave" statements from the victim that were "immensely inflammatory." In other words, he contends Linda's words were so powerfully incriminating the jury could not possibly have ignored their substantive content and considered them solely for a purpose other than their truth. We disagree.
There is a strong presumption that jurors will follow all of the instructions they are given. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17 ["The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions."].) This presumption applies even in situations where the jury is instructed to consider a particular piece of evidence for a limited purpose. (United States v. Snype (2d Cir. 2006) 441 F.3d 119, 129; People v. Ervine, supra, 47 Cal.4th at p. 776.) However, there are limits to what a jury can be expected to do in terms of carefully parsing evidence that is introduced during the course of a trial. In some situations, it is simply not realistic to expect jurors to perform the difficult "psychological feat" of disregarding particular evidence, or using it for a limited purpose, even when they are expressly instructed to do so. (Delli Paoli v. United States (1957) 352 U.S. 232, 246-247 (Frankfurter, J., dissenting); see generally Lieberman & Arndt, Understanding the Limits of Limiting Instructions (2000) Vol. 6, No. 3, Psychology, Public Policy, and Law, pp. 677-711 (Limits of Limiting Instructions).)
We do not write on a blank slate here. The United States Supreme Court has committed the judicial system of the nation to admissibility of highly inflammatory evidence so long as a proper limiting instruction is given. For example, limiting instructions are presumed to be effective when: 1) Evidence obtained in violation of the Fourth Amendment or Miranda v. Arizona (1966) 384 U.S. 436 is admitted solely for impeachment purposes; 2) the defendant's prior convictions are admitted solely for sentencing purposes; 3) a codefendant's confession is admitted solely to rebut a claim the defendant's confession was coerced. (Richardson v. Marsh (1987) 481 U.S. 200, 206-207.)
This realization has led to the creation of the so-called Aranda/Bruton rule, upon which appellant heavily relies. (See People v. Aranda (1965) 63 Cal.2d 518 (Aranda) and Bruton v. United States (1968) 391 U.S. 123 (Bruton).) The rule applies in joint trials when the prosecution seeks to introduce a confession by one defendant that also implicates his codefendant. If the confessing defendant chooses not to testify, the confession cannot be admitted against his codefendant without violating the Sixth Amendment's Confrontation Clause, even when the jury is instructed to consider the confession only against the defendant who made it. Aranda and Bruton held a limiting instruction to that effect would not suffice to protect the codefendant's rights because the confessing defendant has a natural incentive to "shift blame on to others" (Bruton, supra, 391 U.S. at p. 136), and, for practical purposes, a jury "cannot determine that a confession is true insofar as it admits that A has committed criminal acts with B and at the same time effectively ignore the inevitable conclusion that B has committed those same criminal acts with A." (Aranda, supra, 63 Cal.2d at p. 529; accord People v. Song (2004) 124 Cal.App.4th 973; People v. Laursen (1968) 264 Cal.App.2d 932; cf. People v. Young (1978) 85 Cal.App.3d 594 [despite admonishment, jury could not reasonably be expected to disregard information that a codefendant had pleaded guilty to the same charges the defendant was facing].)
Nonetheless, subsequent cases have made it clear the Aranda/Bruton rule constitutes a "narrow exception" to the general presumption that juries are presumed to follow their instructions. (Richardson v. Marsh, supra, 481 U.S. at pp. 207-208.) The rule applies only when a "facially incriminating" confession of a nontestifying defendant "expressly implicat[es]" another defendant in a joint trial. (Id. at p. 208.) It does not apply when the jury must resort to other evidence in order to link the confession to another defendant. (Ibid.)
From a factual perspective, appellant's case does not fall within the narrow confines of the Aranda/Bruton rule. We are not faced here with the situation where one defendant has made a confession that implicates his codefendant in the charged offenses. Nor are we dealing with statements that are incriminating on their face or were made by someone who had a natural incentive to shift blame to others. To the contrary, Linda's statements went to the issue of motive, and she made it clear to the police that, as appellant's wife, she did not want to believe he was trying to kill her. Indeed, she returned to live with him. We are not dealing with a piece of evidence that involves an "inevitable conclusion." Under these circumstances, the rationale of the Aranda/Bruton rule does not apply. (See generally People v. Ervine, supra, 47 Cal.4th at p. 776 [refusing to extend Aranda and Bruton outside the specific context in which they were decided]; People v. Song, supra, 124 Cal.App.4th at p. 984 [recognizing the Aranda/Bruton rule does not apply to statements that do not directly implicate the defendant].)
Nor does the rationale of the other line of cases upon which appellant relies. Those cases deal with the situation where the defendant's own admissions (or his failure to respond to incriminating accusations) are used against him at trial. (See, e.g., United States v. Hale (1975) 422 U.S. 171; Jackson v. Denno (1964) 378 U.S. 368; People v. Jacobs (1984) 158 Cal.App.3d 740; People v. Glass (1975) 44 Cal.App.3d 772.) They are premised on the commonsense realization that once "the fact of a defendant's confession is solidly implanted in the jury's mind," it is not realistic to expect the jury to disregard that fact, even when it has been admonished by the court to do so. (Jackson v. Denno, supra, 378 U.S. at p. 388.) In the present case, though, we are not tasked with assessing the efficacy of a limiting instruction pertaining to incriminating statements that were made by the person who was on trial. That's an important distinction because while jurors may not be able to disregard or parse admissions that are attributable to the defendant himself (see Arizona v. Fulminante (1991) 499 U.S. 279, 296 [describing confessions as being unlike any other evidence and probably the most damaging evidence that can be admitted against the defendant]), the same is not true of incriminating statements that emanate from a neutral third party, especially when, as here, the statements speak primarily to the defendant's motive and do not directly implicate him in the charged offense.
The parties dispute whether it is harder for jurors to disregard evidence altogether or only consider it for a limited purpose. Research indicates that when it comes to most hearsay evidence, jurors are pretty good at following both "limited-use instructions and instructions to completely disregard" this type of evidence. (Limits of Limiting Instructions, supra, Vol. 6, No. 3, Psychology, Public Policy, and Law, at p. 691.)
Appellant argues that even if the trial court's limiting instruction theoretically immunized Linda's testimonial statements from attack on Sixth Amendment grounds, the prosecutor undermined the instruction by inviting the jury to consider the statements for their substantive truth. However, the record of the complained-of closing argument shows the prosecutor referenced the subject statements primarily as a way of illuminating appellant's responses to them, which was consistent with the limited purpose for which they were offered. Moreover, the prosecutor repeatedly reminded the jury it could not consider Linda's statements for their substantive truth, which served to reinforce the trial court's instructions on this issue. The prosecutor's argument was not improper (see People v. Ervine, supra, 47 Cal.4th at p. 776; People v. Turner (1994) 8 Cal.4th 137, 187-188; compare United States v. Hearn (6th Cir. 2007) 500 F.3d 479 [Confrontation Clause violated where, against the trial court's orders, the prosecutor used out-of-court statements for their substantive truth]; People v. Fletcher (1996) 13 Cal.4th 451, 470-471 [same]) and, all things considered, we simply do not believe it is reasonably likely the jury used Linda's testimonial statements for an improper purpose. We therefore uphold the trial court's decision to admit them into evidence.
Admission of Linda's Other Statements
Appellant also contends the trial court erred in admitting statements by Linda that were not testimonial in nature. We find these statements were properly admitted to refute appellant's characterization of his relationship with Linda and because they undermined his assertion Linda died by accident or suicide.
Before trial, the prosecutor filed a motion to introduce various statements Linda made after she and appellant got married. In particular, the prosecutor sought to introduce evidence that Linda told her friends and/or family: 1) She suspected appellant was poisoning her; 2) she did not want appellant to visit her in the hospital if she ever got sick again; 3) appellant stood to gain $1,000,000 on her life insurance policies; 4) she wanted to replace appellant as the beneficiary on her life insurance policies; and 5) she and appellant did not have an active sex life.
The prosecution argued these statements were admissible under Evidence Code section 1250, which authorizes the admission of out-of-court statements to prove the declarant's state of mind. This hearsay exception applies to 1) statements that directly reflect the declarant's state of mind when the declarant's mindset is at issue in the case, and 2) statements that are relevant to prove or explain the declarant's conduct. (Evid. Code, § 1250, subds. (a)(1) & (2).) The prosecutor also argued Linda's statements were admissible as nonhearsay evidence to shed light on what was going through Linda's mind when she made them. (See 1 Witkin, Cal. Evidence (5th ed. 2012) Hearsay, § 199, p. 1057 ["Statements that do not directly declare a mental or emotional state, but are merely circumstantial evidence of it, are outside the hearsay rule."] The trial court admitted the statements for a limited purpose, instructing the jury it could not consider them for their substantive truth, but it could use them to "evaluate Linda Curry's state of mind and the effect, if any, of her state of mind on her actions."
The fact the trial court admitted Linda's statements for this limited purpose as nonhearsay evidence shows the statements were not admitted pursuant to Evidence Code section 1250, under which statements are admitted for the truth of the matters asserted therein. (People v. Ortiz (1995) 38 Cal.App.4th 377, 389.) Therefore, we need not decide whether Linda's statements were admissible under that section. (See generally People v. Zapien (1993) 4 Cal.4th 929, 976 [appeal court reviews trial court's ruling, not its reasoning, and will affirm if that ruling was correct on any ground].)
Appellant does not dispute Linda's statements were indicative of her mental state at the time that she made them. In fact, appellant readily admits Linda's statements reflect she was suspicious of him and did not want him to prosper financially from her death. However, appellant argues Linda's statements should have been excluded because her state of mind was not an issue in the case, nor was it relevant to any issue in the case. (See People v. Riccardi (2012) 54 Cal.4th 758, 814-815 [whether admitted under Evidence Code section 1250 as a hearsay exception, or as nonhearsay evidence, statements showing the declarant's state of mind are admissible only if they have some tendency to prove or disprove a disputed fact that is of consequence to the case].)
Linda's feelings about appellant were relevant in this case because her feelings were so dissimilar to how appellant characterized their relationship and because the defendant had suggested her death was a suicide. Whereas appellant told the police he and Linda got along well and never discussed the topic of life insurance, Linda's statements indicated this was not the case, and in fact, she was worried appellant might want to kill her for her money. These statements not only helped explain why Linda may have wanted to remove appellant as a beneficiary on her life insurance policies, they also undermined appellant's claim he lacked a financial motive to kill her, which made them very relevant to the case. (See People v. Smithey (1999) 20 Cal.4th 936, 971 [victim's statements reflecting suspicion of defendant admissible to rebut defendant's claim they had a good relationship]; People v. Escobar (2000) 82 Cal.App.4th 1085, 1103 [victim's statements properly admitted to impeach defendant's claims about her state of mind].)
Linda's feelings about appellant were also relevant in that they cast doubt on the defense theory that she may have committed suicide. (See People v. Harris (2013) 57 Cal.4th 804, 842-843.) [upholding admission of victim's statements reflecting her state of mind because they tended to make defendant's theory of the case less probable]; People v. Ortiz, supra, 38 Cal.App.4th at pp. 390-391 [same].) Indeed, Linda's expressed desire to keep appellant out of her hospital room if she ever got sick again evinces a will to live that is wholly inconsistent with the defense's suicide theory. (See People v. Crew (2003) 31 Cal.4th 822, 829 [victim's statements admissible to refute the defendant's characterization of her as being a troubled individual].) Similarly, Linda's statements about her life insurance and suspicions of appellant indicate she was on to appellant's murder-for-profit scheme. The fact she was worried about appellant benefitting from her death could be understood by the jury as indicating it was very unlikely she took her own life.
Based on the foregoing, it is clear to us Linda's state of mind, as reflected in her various statements to friends and family, was pertinent to several issues in the case. Therefore, the trial court did not abuse its discretion in admitting her statements into evidence.
CALCRIM No. 359
Lastly, appellant argues the trial court erred by giving CALCRIM No. 359, the standard instruction on the corpus delicti rule. He contends the instruction lowered the prosecution's burden of proof in violation of his due process rights, but we do not see it that way.
Per CALCRIM No. 359, the trial court instructed the jury, "The defendant may not be convicted of any crime based on his out-of-court statements alone. You may rely on the defendant's out-of-court statements to convict him only if you first conclude that other evidence shows that the charged crime was committed. [¶] That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed. [¶] . . . [¶] You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt."
The jury was also instructed appellant could not be convicted based solely on any false or misleading statements he made before trial. (CALCRIM No. 362.)
CALCRIM No. 359 accurately reflects the corpus delicti rule, which requires the jury to take a preliminary step before using the defendant's out-of-court statements in considering whether the prosecution has proven its case beyond a reasonable doubt. In particular, the jury must determine as a threshold matter whether there is other evidence, however slight, of the charged offense. (People v. Alvarez (2002) 27 Cal.4th 1161, 1165.) The rule "is intended to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened. [Citations.]" (Id. at p. 1169.)
Appellant has no grievance with the rule. But he fears the jury may have read CALCRIM No. 359 to mean he could be convicted of murder based simply on his out-of-court statements plus other slight proof of that crime, even if the sum of those two evidentiary components did not amount to proof beyond a reasonable doubt. Stated differently, appellant is concerned the jury may have conflated the "slight" evidence standard applicable to his statements with the "beyond a reasonable doubt" standard applicable to his guilt.
As respondent rightly observes, appellant arguably forfeited his right to challenge CALCRIM No. 359 by failing to object to it in the trial court. (People v. Stowell (2003) 31 Cal.4th 1107, 1114.) Nonetheless, we will address his argument because the instruction allegedly violated his substantial rights (Pen. Code, § 1259; People v. Johnson (2004) 119 Cal.App.4th 976) and might otherwise inspire an inadequacy of counsel habeas corpus petition.
However, the "slight" evidence language and the "beyond a reasonable doubt" language in CALCRIM No. 359 address different points; one is a preliminary finding about whether a crime was committed, and the other is the ultimate finding about whether the defendant committed it. Lest there be any doubt about this distinction, the final sentence of CALCRIM No. 359 emphasizes with stark clarity the rule the defendant cannot be convicted unless the prosecution has proven his guilt "beyond a reasonable doubt." (CALCRIM No. 359.) Read as a whole, and in conjunction with the court's other instructions - which reiterated the prosecution's burden of proof on each element of the crime is proof beyond a reasonable doubt - no reasonable jury would believe CALCRIM No. 359 permitted it to convict appellant based only on slight evidence. The instruction did not violate appellant's rights.
In arguing otherwise, appellant relies on federal conspiracy cases that have nothing to do with the corpus delicti rule. (See, e.g., United States v. Durrive (7th Cir. 1990) 902 F.2d 1221; United States v. Dunn (9th Cir. 1977) 564 F.2d 348; United States v. Partin (5th Cir. 1977) 552 F.2d 621; United States v. Hall (5th Cir. 1976) 525 F.2d 1254.) As our Supreme Court has explained, "The problem with the instruction addressed in these federal cases is that it permitted the jury to conclude that the defendant was a participant in the conspiracy based only on 'slight evidence.'" (People v. Grimes (2016) 1 Cal.5th 698, 731.) That problem does not exist here. The "slight evidence" language in CALCRIM No. 359 referred solely to the initial issue of whether the jury could consider appellant's extrajudicial statements; it did not allow the jury to convict appellant using this lesser standard and was artfully constructed to make that clear. Therefore, the instruction was not erroneous.
Having found no trial court error in this case, we necessarily reject appellant's claim that cumulative error compels reversal.
DISPOSITION
The judgment is affirmed.
BEDSWORTH, ACTING P. J. I CONCUR: FYBEL, J. ARONSON, J., Concurring.
I concur in the majority's reasoning and its affirmance of the judgment, but write separately to convey my reservations about the trial court's admission of the victim's statements to her family and friends.
The victim, Linda Curry, told a friend she wanted to replace her husband, defendant Paul Curry, as the beneficiary on her life insurance policies. She told two other friends that she and defendant had not had sex in the previous six to eight months, and told her sister she suspected defendant had tried to poison her and did not want defendant to visit her if she was hospitalized again. Defendant objected to admission of these statements on hearsay and relevancy grounds. After a lengthy pretrial hearing on the issue, the trial court admitted the statements for the nonhearsay purpose of showing the victim's state of mind. The court gave the jury the following limiting instructions: "During the trial, certain evidence was admitted for a limited purpose. Witnesses Merry Seabold, Patricia Rycraft, David Arai, and Bill Sandretto testified that Linda Curry made certain statements to them about her condition, her relationship with the defendant, and her plans. You're not to consider those statements for the truth of the matter asserted in those statements; rather, you may consider the statements only to evaluate Linda Curry's state of mind and the effect, if any, of her state of mind on her actions. You may consider that evidence only for that purpose and for no other."
Here is the problem: the prosecutor never provided a cogent explanation why these statements were admissible for the nonhearsay purpose of showing the victim's state of mind. The prosecutor failed to do this because he misunderstood the distinction between a hearsay statement showing a declarant's then existing state of mind, admissible under the hearsay rule exception established by Evidence Code section 1250 (section 1250), and a nonhearsay statement offered as circumstantial evidence of the declarant's state of mind. For example, in his written motion to admit the statements, the prosecutor argued "these statements are not being admitted for the truth of the matter asserted, but as non-hearsay statements allowed under Evidence Code section 1250." Section 1250, however, has nothing to say about nonhearsay statements because it deals exclusively with the hearsay exception for a declarant's then existing statement of mind. Nevertheless, in admitting the victim's statement she intended to remove defendant from her life insurance policy, the trial court at one point explained, "this statement does show her state of mind . . . that it may have been a staged relationship. So I think that statement can come in under 1250." Despite this pronouncement, the court later limited evidence of the victim's statements to her friends by instructing the jury to consider it only for the nonhearsay purpose of showing the victim's state of mind and any effect it had on her actions. I believe the experienced and conscientious trial judge understood the distinction between section 1250 and nonhearsay statements, but that was not entirely clear from the record.
Evidence Code section 1250 states: "a) Subject to Section 1252, 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; or (2) The evidence is offered to prove or explain acts or conduct of the declarant. ¶ (b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed."
A leading treatise illustrates the distinction in the following manner: "When the declarant-victim (V) makes the statement 'I am afraid of D,' it is hearsay if offered to prove its truth - V's fear of D - but admissible under the hearsay exception [citation] for a declarant's statement of his or her then-existing state of mind, offered to prove that V acted in conformity with such statement of mind and did not voluntarily get into D's car. [¶] The declarant-victim's (V's) statement in this illustration, 'D told me he would kill me if I left him,' is nonhearsay because it is not offered to prove its truth, that D in fact told V he would kill her if she left him. On the contrary, it is offered for the relevant nonhearsay purpose of proving V's belief that D had made such a threat, even though D may not in fact have made the threat. From the fact of V's belief, the jury could reasonably infer that V was afraid of D and, from the fact of V's fear of D, the jury could reasonably infer that V had acted in conformity with her state of mind of being afraid of D and, therefore, had not gotten into D's car voluntarily." (1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 4th ed. 2009) Hearsay and Nonhearsay Evidence, § 1.47, p. 33.) --------
To further illustrate the ambiguity of the record, the parties on appeal based their arguments on the assumption these statements were admitted under the state of mind hearsay exception of section 1250. Indeed, the Attorney General acknowledges the trial court's limiting instruction directed the jury not to consider the victim's statements as true, but nevertheless argues the statements constituted admissible hearsay under section 1250. Perhaps the parties had the same difficulty I had in deciphering the basis for admitting these statements.
The majority correctly concludes none of these statements were admissible under section 1250, and focuses on whether a basis existed to admit these statements as circumstantial evidence of the victim's state of mind. The majority concludes some of these statements could be viewed as evidencing a state of mind inconsistent with suicide because it showed she wanted to remove defendant's motive to kill her by replacing him as a beneficiary on her life insurance policies. This rationale was not raised below, but seems more plausible than the theories relied on by the prosecutor in the trial court or the Attorney General on appeal. Whether this rationale supports admission of other statements is more problematic. But whether admissible or not, I conclude any error on this issue was harmless. (People v. Harris (2005) 37 Cal.4th 310, 336 ["'reasonable probability' standard of People v. Watson (1956) 46 Cal.2d 818, 836" applies to reviewing claims of evidentiary error].) Evidence defendant engaged in similar conduct with his previous wife, his numerous lies, evidence he tampered with the victim's IV lines when he was alone with her in her hospital room, and the implausibility of either an accidental or suicidal overdose of nicotine all show it is not reasonably probable defendant would have obtained a more favorable result absent the error. I therefore join the court's opinion in affirming the judgment.
ARONSON, J.