People v. Mackabee CA2/4 ( 2014 )

Filed 6/20/14 P. v. Mackabee CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B250143
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA089655)
v.
MARCEL MAURICE MACKABEE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Arthur Jean, Jr., Judge. Affirmed.
H. Russell Halpern for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B.
Wilson and Jessica C. Owen, Deputy Attorneys General, for Plaintiff and
Respondent.
________________________________
INTRODUCTION
Marcel Maurice Mackabee appeals from a judgment and sentence, following
his conviction for murder. He contends his conviction should be reversed, as his
trial counsel’s representation was ineffective. Finding no reversible error, we
affirm.
PROCEDURAL HISTORY
1
A jury found appellant guilty of murder (Pen. Code, § 187, subd. (a)). It
further found the murder was committed with a firearm (§ 12022, subd. (a)(1)),
and during the commission of a robbery (§§ 211, 212.5), within the meaning of
section 190.2, subdivision (a)(17).
The court sentenced appellant to life imprisonment without the possibility of
parole. Appellant timely filed a notice of appeal.
FACTUAL BACKGROUND
A. The Prosecution Case
1. The Victim
On March 24, 2011, Philip Victor Williamson was found in an alley in the
City of Long Beach. His shirt had been clipped off, he was not wearing pants, and
he had no identification or keys on his person. He was gasping for breath, and
bleeding from his head. After being treated at the scene, he was rushed to the
hospital. At the hospital, he was treated for a single gunshot wound to the back of
his head and was placed on life support. Shortly thereafter, Williamson died as a
result of the gunshot wound.
Lane Walker, a close friend of Williamson’s, testified that Williamson
trafficked in marijuana. Williamson would acquire marijuana in Northern
California, transport it to Southern California, and sell it to cannabis clubs. Walker
1
All further statutory citations are to the Penal Code, unless otherwise stated.
2
assisted Williamson by transporting the marijuana on multiple occasions. Walker
introduced appellant to Williamson, and the three would smoke marijuana together
on occasion. A couple of days before Williamson died, he told Walker that he had
three duffel bags of marijuana at his house. Having seen the duffel bags in which
Williamson transported marijuana, Walker estimated that the bags would have
contained 12 to 18 pounds of marijuana. After Williamson’s death, Walker was
interviewed by the police. She provided the police with the phone numbers of
appellant and his wife. Appellant’s was a number ending in 4649.
Arturo Zamora helped Williamson sell marijuana in Southern California. A
few days before Williamson’s death, Williamson asked Zamora to help him sell 10
or 11 pounds of high quality marijuana. Around that same time period, Zamora
saw Williamson with a large amount of cash in his bedroom. Based upon
Zamora’s experience working at a bank, he estimated Williamson had between
$150,000 and $375,000 in cash.
2. The Police Investigation
Long Beach Police Detective Donald Goodman was assigned to investigate
the murder. His investigation led him to believe Williamson’s body had been
dumped in the alley, as (1) no one living nearby had heard gunshots, (2) there was
no blood trail in the alley, and (3) Williamson had no pants or identification on his
person. After ascertaining Williamson’s identity, Detective Goodman looked up
his address in a database and went to his apartment in Beverly Hills. The
apartment was locked, and there were no signs of forced entry. Inside, Detective
Goodman found items indicative of drug trafficking, including a scale, a box of
sandwich bags, a “pay owe” ledger, nine cell phones, small amounts of marijuana
in different containers, and seven large duffel bags, which were empty but smelled
3
strongly of marijuana. He did not find large quantities of marijuana, and found
only about $144 in cash.
Detective Goodman also found a 7-Eleven receipt inside Williamson’s
home, with a time-stamp of 12:27 p.m., March 24, 2011 (the day of Williamson’s
murder). The items listed on the receipt were found in the home. The police went
to the 7-Eleven to obtain video surveillance. Detective Goodman reviewed the
video. He saw a man who looked like appellant purchase the items at the 7-Eleven
and leave in a dark sports utility vehicle (SUV). The video was played for the jury.
Detective Goodman obtained Williamson’s cell phone records. The last call
was to a phone number ending in 4649 listed on a piece of paper found in
Williamson’s home. Next to the phone number was the name “Marcel.” Detective
Goodman obtained a search warrant, and learned the number was registered to a
“John Lamack.” The detective could not find an exact match in police databases
for a person with that name and birthday. Because Williamson was from the Chico
area of Northern California, the detective called Chico Police Department for
assistance. He was told that a search on the number had a negative result.
However, the call led to information that allowed Detective Goodman to find
appellant’s full name, Marcel Mackabee. He learned that appellant was also from
Chico, and that appellant’s wife, Rosemary Sayegh, had an SUV -- a black Toyota
4Runner -- registered under her name.
The police obtained authorization to wiretap appellant’s home and cell
2
phones, the cell phone of his wife and the phone of his cousin, Charles Mackabee.
2
Some of the phone calls were the subject of an Evidence Code section 402
hearing, during which the prosecutor discussed the participants in and the contents
of each call. Defense counsel argued the calls were irrelevant and admission of the
calls would prejudice appellant due to his use of coarse language. The court ruled
that the calls were admissible.
4
To stimulate conversation, the police passed out fliers around Chico; the fliers
contained information about the crime and the murder victim. The police also
released video footage to the media of appellant at the 7-Eleven; a media release
explained the police were looking for the person depicted in the video, as well as
the 4Runner he was seen entering outside the 7-Eleven.
Detective Goodman testified that he participated in the process of obtaining
the wiretap authorization, and that he listened to every intercepted phone call. He
further testified that he was familiar with appellant’s voice. Several recordings of
calls were played for the jury to show that appellant was aware of and interested in
the police investigation of Williamson’s murder. During one of the calls, appellant
was advised to “stay off the phezzy.” Detective Goodman stated that it meant to
stay off the phone.
On the morning of July 12, 2011, a police surveillance team observed
appellant’s wife, Sayegh, leave the 4Runner on a residential street and walk away
from it. Soon thereafter, a black Mitsubishi pulled up next to the 4Runner. A thin
Black man got out and jumped into the 4Runner. Both cars then sped away in the
same direction. Another police surveillance team followed the cars onto the
Interstate 5 freeway.
At Detective Goodman’s instruction, the California Highway Patrol (CHP)
performed a traffic stop of the 4Runner. Appellant’s cousin, Chevez Turner, and
appellant’s half-brother, Jacquez Newman, were inside. A CHP officer told the
two men that they were being detained based on the tint of the SUV’s windows and
on suspicion of drug trafficking. The police impounded the 4Runner while the
men took a bus home. The police documented the condition of the vehicle and
installed a hidden Global Positioning System (GPS) transmitter to track the
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vehicle. The police then released the vehicle back to CHP custody, where it was
retrieved by appellant.
The police froze Sayegh’s bank accounts, believing the accounts might hold
the money missing from Williamson’s home. On July 29, the police observed
Sayegh take a “bank bag” from her workplace to a mall parking lot. There, she
met another woman and gave her the bag. The police made contact with the other
woman, and found $38,700 in cash inside the bag.
That same day, the police used the GPS transmitter to track the 4Runner to a
residential street within a few miles of Chevez Turner’s home. After impounding
the 4Runner, Detective Goodman noticed that its entire interior had been changed.
Joseph Trawicki, the custodian of records for Sprint (appellant’s and the
victim’s cellular service provider), testified that the location where a cell phone
was used can be discerned from cell phone records, as using the cell phone requires
communication with the nearest cell phone tower. The cell phone records for
phone numbers ending in 7652 and 4649 and a notebook showing cell phone tower
locations were submitted into evidence. The phone records indicated that the
subscriber for the first number was Philip Williamson, and for the second number
was “John Lamack.” The second number was the same number written next to the
name “Marcel” on the slip of paper found in Williamson’s apartment. It also was
the number Walker had identified as appellant’s. The cell phone records indicated
that on the day of the murder, the phones were used in Beverly Hills around noon,
and in Long Beach that evening.
Finally, 12 minutes before the police were dispatched to the alley where
Williamson was found, the 4Runner was recorded a half mile away by an
automated license plate reader camera.
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3. Ronnie Turner’s Testimony
Ronnie Turner, appellant’s uncle and the father of Chevez Turner, testified
3
at the preliminary hearing but died before trial. Over a hearsay objection by trial
counsel, Ronnie’s prior testimony was read to the jury. According to Ronnie,
when he saw the 7-Eleven surveillance video broadcast, he recognized appellant
and screamed. The scream woke appellant, who was staying at his uncle’s home.
The two men then replayed the footage. Appellant left that night.
Appellant already had told Ronnie what had happened. Appellant said he
had stolen a large quantity of marijuana from “a white boy” from Chico. Appellant
had arranged a deal with the victim to purchase a large amount of marijuana. To
gain the victim’s confidence, appellant had shown him a photo of cash he
purportedly would use to purchase the marijuana. They had become friendly, and
the victim had shown appellant a large amount of money at his home. Appellant
said it was “more money than he [had] ever seen in his life.” After seeing the
money, appellant made a plan to rob the victim of his marijuana and money. The
plan involved three people. During the robbery, one of appellant’s companions
shot the victim while they were in the 4Runner. The victim’s body was dumped in
the alley in Long Beach. Appellant then returned to the victim’s house and took
money, marijuana, and a safe.
The cross-examination of Ronnie at the preliminary hearing also was read to
4
the jury. He admitted telling the police that he would do anything for his son,
Chevez. He also admitted contacting the police after learning that his son had been
3
As Ronnie and Chevez share the same last name, we refer to them by their
first names for clarity.
4
Appellate counsel represented appellant during the preliminary hearing.
Counsel later withdrew, and new counsel represented appellant at trial.
7
detained for failing to speak with the police about Williamson’s murder. Ronnie
wanted his son released if he spoke with Detective Goodman about what appellant
had told him. Ronnie also admitted having suffered a felony conviction and
having served two prison terms. Defense counsel asked numerous and specific
questions challenging the closeness of Ronnie’s relationship with appellant and the
likelihood that appellant would confide to Ronnie about a murder. In response to
counsel’s questioning, Ronnie acknowledged providing some inconsistent answers
to Detective Goodman. For example, he initially told Detective Goodman the
victim was robbed at the victim’s house; later, he told the detective the victim was
robbed in the truck.
4. Chevez Turner’s Testimony
At trial, Chevez stated he did not want to testify against appellant. He
admitted that at one time, appellant’s wife’s 4Runner was parked in his garage.
Although Chevez admitted to having been interviewed by the police on two
separate occasions, he then sought to assert a right against self-incrimination,
declined to answer some questions, and denied having told the officers details
relating to Williamson’s murder, including his conversations with appellant.
Detective Goodman testified he interviewed Chevez on two occasions.
Recordings of both interviews were played for the jury. In the first interview,
Chevez stated that after the 7-Eleven footage was broadcast, he was contacted by
appellant’s half-brother, Newman. Newman wanted Chevez to accompany him
and appellant to Los Angeles to get the 4Runner. In Los Angeles, the three men
met appellant’s wife, Sayegh, who was driving the 4Runner. Chevez and Newman
then got into the 4Runner and drove away; appellant drove away in the car the
three men had driven, and Sayegh walked home. Chevez and Newman were
driving the 4Runner to Chico when they were pulled over by the CHP. The CHP
8
impounded the car, a tow driver gave the men a ride to a nearby bus stop, and
Chevez took a Greyhound bus to Sacramento.
About a week later, appellant and Sayegh came to Chevez’s house.
Appellant asked if he could park the 4Runner in Chevez’s garage for a couple of
days. Chevez gave him permission. Appellant told Chevez that a body had been
in the 4Runner, and that there might be blood left in the vehicle. Two or three days
later, appellant returned for the 4Runner. At that time, appellant removed the
entire interior of the vehicle and replaced it with new parts.
In the second interview, Chevez told the police about another conversation
he had with appellant. Appellant told him that he, another cousin, Charles
Mackabee, and a third man met the victim to buy about 10 pounds of marijuana.
However, the third man “‘wowed’ out” and shot the victim. Charles and the
shooter then placed the victim’s body into appellant’s vehicle, and appellant drove
to an alley in Long Beach where they dumped the body.
5. Michelle Morris’s Testimony
Michelle Morris, Chevez’s wife, testified she saw the photograph of the man
shown in the 7-Eleven surveillance in the newspaper and thought the man
resembled appellant. The day after the footage of the 7-Eleven was broadcast, she
picked up her husband at the Sacramento Greyhound station. He told her that he
had been pulled over for the tint on his windows and “supposedly some dogs were
barking like they had smel[led] some drugs.” A few days later, she came home
from work to find a black truck parked in their garage. Morris “noticed some
cleaning smells” in the garage and saw one of the seats of the truck on the floor.
Morris told Chevez she wanted the truck out of their garage because she “had put
two and two together” and realized it “might have been the same truck they were
looking for on the news.”
9
Morris was later interviewed by the police. She told them she had overheard
appellant tell Chevez that the incident started in the house of the guy who got shot.
Appellant stated that he and his two cousins planned to buy some “trees” --
marijuana -- but the deal went bad and the victim ended up getting shot by one of
the cousins. According to appellant, the men then put the victim’s body into
appellant’s truck and drove it somewhere else.
6. Jerome Webster’s Testimony
Jerome Webster, a friend and co-worker of Chevez’s, contacted the police
about the 4Runner. Webster informed them of what Chevez had said appellant had
told him about the murder. Chevez stated appellant had told him that the victim
was showing off money -- $300,000 in cash -- and that appellant came back with
two other people to rob the victim. Appellant further stated the victim was killed
in Long Beach and dumped in an alley. After this conversation, Webster looked
up the news story about the murder on the computer. He saw the 7-Eleven footage,
and recognized the person in the video as appellant. When Webster contacted the
police, he also asked about a reward, but, at the time of trial, he had received no
reward money.
B. The Defense Case
Appellant testified in his defense. Appellant and his wife owned two
vehicles, a Chevy Geo and the 4Runner. Appellant admitted changing out the
interior of the 4Runner. He did so because when the police first impounded the
car, they had ripped the front seat, pulled off some buttons inside the dash, and left
behind a residue of chemicals used to detect blood and gunpowder. Appellant
claimed the police did not clean up the car to the satisfaction of his wife, forcing
him to “switch out everything” on his own. He did not file a claim with the police
10
for the damage to the 4Runner because he planned to file a lawsuit for damages to
the vehicle
Appellant admitted trafficking in marijuana. He would grow marijuana in
Northern California, transport it to Southern California, and sell it in Southern
California and out of state. Appellant was introduced to Williamson by Walker.
He sold Williamson marijuana a couple of times, and they became friends. The
day of the murder, appellant and Williamson went to a 7-Eleven and got materials
to smoke “blunts” -- marijuana cigarettes -- together. They then played video
games at Williamson’s home for a couple of hours before appellant left, by
himself, for his aunt’s house in Long Beach. Appellant then left his aunt’s house
and drove to Los Angeles. He identified the number of the cell phone he was using
at that time as a number ending in 4649.
Appellant was the only person driving the 4Runner on March 24. Appellant
rarely drove the 4Runner; he usually drove rental cars. Appellant preferred driving
rental cars because he “like[d] to stay underneath the radar, so [he] switch[ed] cars
all of the time.” At one point, he left the 4Runner with Chevez, because he had to
go to court in Chico and a rental car was more fuel efficient
DISCUSSION
Appellant contends his trial counsel rendered ineffective assistance, because
(1) counsel failed to interject objections to certain evidence elicited by the
prosecution, (2) counsel failed to file a motion pursuant to section 1538.5 to
exclude the testimony of four prosecution witnesses, and (3) counsel failed to call
Detective Goodman to impeach Ronnie’s testimony.
In order to prevail on a claim of ineffective assistance of counsel, appellant
must show (1) that counsel’s representation fell below an objective standard of
reasonableness under prevailing professional norms, and (2) that there is a
11
reasonable probability that but for counsel’s unprofessional errors, the result would
have been more favorable to the defendant. (Strickland v. Washington (1984)
466 U.S. 668, 687-688; People v. Gray (2005) 37 Cal. 4th 168, 206-207; People v.
Kelly (1992) 1 Cal. 4th 495, 519-520.) When “defense counsel’s reasons for
conducting the defense case in a particular way are not readily apparent from the
record, we will not assume inadequacy of representation unless there could have
been ‘“no conceivable tactical purpose’” for counsel’s actions.” (People v. Earp
(1999) 20 Cal. 4th 826, 896.)
A. Failure to Interject Evidentiary Objections
Appellant contends that defense counsel’s failure to raise certain evidentiary
objections constituted ineffective assistance. We disagree. Whether to object to
evidence is quintessentially a tactical decision entrusted to counsel. (People v.
Neely (1999) 70 Cal. App. 4th 767, 783 [“Whether to object to testimony and on
what grounds are generally tactical matters”]; People v. Perry (1969)
271 Cal. App. 2d 84, 114-115 [“‘The choice of when to object and when to allow
the evidence to come in as offered is inherently a matter of trial tactics.”’].)
Absent a showing that there could be no tactical reason for counsel’s decision,
appellant cannot demonstrate ineffective assistance. (See People v. Lucas (1995)
12 Cal. 4th 415, 444 [“The decision whether to object to evidence at trial is a matter
of tactics and, because of the deference accorded such decisions on appeal, will
seldom establish that counsel was incompetent”]; People v. Freeman (1994)
8 Cal. 4th 450, 490-491 [“[T]he decision whether to object is inherently tactical, the
failure to object to evidence will seldom establish incompetence.”].) Moreover,
even where no tactical reason could explain the failure to object, ineffective
assistance is not shown absent prejudice. (See People v. Lucas, supra, at p. 445
[“a conviction will not be reversed unless the record on appeal demonstrates
12
counsel had no rational purpose for the failure to object, and the failure was
prejudicial”].) As discussed below, appellant has failed to show either that counsel
lacked a tactical reason to refrain from objecting to certain evidence, or that his
failure to do so was prejudicial.
First, appellant has not shown that most of his proposed evidentiary
objections would have been sustained. Defense counsel cannot be considered
ineffective for failing to make groundless objections. (People v. Boyette (2002)
29 Cal. 4th 381, 437.) For example, appellant’s suggestion that his trial counsel
should have objected to certain evidence under the best evidence rule is without
merit, as the Legislature has repealed that rule. (People v. Skiles (2011) 51 Cal. 4th
1178, 1187.) Similarly, trial counsel could have raised no valid objection to
Walker’s testimony that Williamson trafficked in marijuana, as it was based on her
assistance in transporting marijuana for him. Nor could counsel have legitimately
objected to Zamora’s estimate of the amount of money at Williamson’s, as it was
based on Zamora’s personal experience working at a bank.
Much of Detective Goodman’s testimony that appellant now contends
should have been objected to was admissible to explain the detective’s
investigation of the murder. (People v. Zavala (2013) 216 Cal. App. 4th 242, 249-
250 (Zavala) [trial court well within its discretion to allow detective’s testimony
concerning phone call records for limited purpose of explaining the detective’s
steps in his investigation].) Likewise, the testimony of Sprint records custodian
Trawicki was based upon the cell phone records, which were properly admitted
into evidence as business records. (Id. at p. 249.) Moreover, appellant admitted
using the phone number registered to “John Lamack.”
Second, even were some of appellant’s proposed evidentiary objections
colorable, appellant has not shown his trial counsel lacked any tactical basis for
13
failing to raise them. Competent counsel may forgo even a valid objection for
tactical reasons. (People v. Slaughter (2002) 27 Cal. 4th 1187, 1210.) For
example, defense counsel may forgo an objection to avoid highlighting testimony
to the jury (People v. Wharton (1991) 53 Cal. 3d 522, 567), or to avoid causing a
prosecutor to establish a more compelling foundation for the admission of the
contested testimony (People v. Dennis (1998) 17 Cal. 4th 468, 532). Appellant
suggests that testimony about the ownership of the 4Runner was inadmissible
hearsay, but there were ample reasons for counsel to forego making an objection.
Appellant admitted that his wife owned a 4Runner and that he was driving it on the
day of the murder. Chevez testified he picked up the 4Runner from appellant’s
wife and was driving it when stopped by CHP. He further testified that it was the
same 4Runner he allowed appellant to park in his garage, the same 4Runner
appellant told him had had a body in it, and the same 4Runner whose interior
appellant replaced. Finally, it was indisputably the same 4Runner whose license
plate was recorded by the automated license plate reader as being a half-mile from
the alley where Williamson was found minutes before police were dispatched to
attend to him.
Moreover, appellant has not shown that he suffered prejudice as a result of
his counsel’s failure to interpose objections. Admission of hearsay evidence is not
prejudicial where there is independent and uncontradicted evidence to the same
effect. (People v. Welch (1999) 20 Cal. 4th 701, 749.) Thus, Detective Goodman’s
testimony that Williamson’s body was dumped in the alley was cumulative of
testimony by Ronnie and Chevez that appellant told them the body was dumped in
the alley. Similarly, Detective Goodman’s testimony about the CHP stop was
corroborated by Chevez’s testimony as a percipient witness to the stop.
14
There was overwhelming evidence of appellant’s guilt. Appellant admitted
being with the victim the day of the murder; the 4Runner he was driving was in the
immediate vicinity of the alley minutes before the victim’s body was found; and
appellant admitted his involvement in the murder to Ronnie and Chevez Turner.
Despite appellant’s cataloguing of numerous objections trial counsel could have
5
made, he fails even to attempt to show prejudice, and we find none. Thus,
appellant has not shown that his trial counsel’s failure to interpose evidentiary
objections constituted ineffective assistance.
B. Failure to File a Section 1538.5 Motion
Appellant contends trial counsel erred in failing to file a motion to exclude
the testimony of Chevez, Ronnie, Morris, and Webster, as the police discovered
these witnesses only after illegally installing the GPS transmitter in the 4Runner.
We disagree.
First, even assuming that the installation of the GPS transmitter in the
4Runner while in lawful custody was a “search” for purposes of the Fourth
Amendment (see United States v. Jones (2012) __ U.S. __ [132 S. Ct. 945]
(Jones)), searches conducted in objectively reasonable reliance on binding
appellate precedent are not subject to the exclusionary rule. (People v. Davis
(2011) __ U.S. __ [131 S. Ct. 2419, 2423-2424] [applying good-faith exception
enunciated in United States v. Leon (1984) 468 U.S. 897 to new Fourth
Amendment precedent].) Here, the police installed the GPS transmitter in 2011,
5
For example, Detective Goodman’s testimony that “John Lamack” was a
fictitious name is irrelevant, as appellant admitted using the phone number
registered to that name. Likewise, testimony about (1) the date of appellant’s
marriage to Sayegh, (2) the home address of appellant’s cousin Charles, (3) the fact
that a car seen near the victim’s residence was owned by the victim, and (4) the
fact that appellant’s grandmother owned a house in Chico has no bearing on
appellant’s guilt or innocence.
15
before Jones was decided. At the time, People v. Zichwic (2001) 94 Cal. App. 4th
944, 953 -- holding the installation of a tracking device is not a “search” for
purposes of the Fourth Amendment -- was still good law. Thus, the testimony of
the four witnesses cannot be excluded as “‘fruit[s] of the poisonous tree.’” (Wong
Sun v. United States (1963) 371 U.S. 471, 488 [evidence is “‘fruit of the poisonous
tree’” where it is discovered by exploitation of illegality].)
More important, the police would have discovered these witnesses even
without installing the GPS transmitter. Chevez was in the 4Runner when the CHP
stopped the vehicle. Thus, the police were aware of Chevez before the GPS
transmitter was installed. A simple investigation would have led to Chevez’s
father, Ronnie, and his wife, Morris. As to Webster, aside from being Chevez’s
co-worker and friend, he contacted the police on his own. Thus, appellant cannot
show that the police would not have discovered these witnesses but for the
purported illegal action of installing the GPS transmitter. (See also People v.
Thierry (1998) 64 Cal. App. 4th 176, 180 [even where evidence is the “‘fruit of a
poisonous tree,’” it may be admitted if (1) the same evidence was discovered
through an independent, untainted source, (2) the evidence inevitably would have
been discovered, or (3) the connection between illegality and evidence is too
attenuated].) Accordingly, trial counsel was not ineffective for failing to file a
section 1538.5 motion to exclude the witnesses’ testimony.
C. Failure to Impeach Ronnie Turner’s Testimony
Finally, appellant contends trial counsel was ineffective for failing to call
Detective Goodman to impeach Ronnie’s preliminary hearing testimony read into
evidence at trial. We disagree.
Trial counsel’s failure to call Detective Goodman did not constitute
ineffective assistance. Ronnie’s entire preliminary hearing testimony was
16
admitted, including his cross-examination by defense counsel. Counsel challenged
Ronnie’s credibility repeatedly, eliciting that he was a convicted felon, and that his
primary motivation in speaking with the police was to secure his son’s release.
After claiming to be close to appellant, Ronnie acknowledged on cross-
examination that he had been to appellant’s house only once. He also
acknowledged providing inconsistent accounts to Detective Goodman about what
appellant had told him. We discern no ineffective assistance in trial counsel’s
decision not to call Detective Goodman to elaborate on those inconsistencies.
In sum, appellant has not shown that trial counsel’s representation was
inadequate, or that trial counsel’s purported errors were prejudicial.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, J.
We concur:
EPSTEIN, P. J. EDMON, J.*
________________________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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