People v. McGee

• Decision Date: 18 December 2002
• Docket Number: No. B152420.,B152420.
• Citation: 128 Cal.Rptr.2d 309,104 Cal.App.4th 559
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Brian M. McGEE, Defendant and Appellant.

128 Cal.Rptr.2d 309

104 Cal.App.4th 559

The PEOPLE, Plaintiff and Respondent, v. Brian M. McGEE, Defendant and Appellant.

No. B152420.

Court of Appeal, Second District, Division 7.

December 18, 2002.

Certified For Partial Publication.^*

As Modified on Denial of Rehearing Jan. 7, 2003.

Review Denied March 26, 2003.^**

Peter Gold, San Francisco, by appointment of the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Myung J. Park, Deputy Attorneys General, for Plaintiff and Respondent.

PERLUSS, J.

Brian M. McGee appeals from his conviction after a jury trial for one count of murder and one count of attempted murder, arguing the trial court erred in considering his several motions under People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal. Rptr. 890, 583 P.2d 748 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69] (Batson), which alleged the prosecutor was improperly discriminating in the exercise of peremptory challenges. McGee also contests several of the trial court's evidentiary rulings.

We reject McGee's evidentiary claims. However, we conclude the trial court failed to follow required procedures for determining whether the prosecutor had improperly excused African-American prospective jurors on the basis of group bias and remand for a new Wheeler hearing.

FACTUAL AND PROCEDURAL BACKGROUND

1. The December 3, 1998 Shootings

McGee (sometimes known as Geeter) lived in an apartment in the Nickerson Gardens housing project in Los Angeles with Linda Williams and Jonathan Bowen. Williams was dating Lee Anthony Lewis, who lived nearby with his mother.

On the evening of December 3, 1998, Lewis went to the apartment to see Williams. McGee answered the door, told Lewis to go away and closed the door. Lewis did not leave and instead tried to get Williams's attention by shouting at her window. McGee and two friends, Charlie Mack and Larry Hamilton, then came out of the apartment and attacked Lewis for "disrespecting" them. During the assault, Mack hit Lewis in the mouth with a handgun. McGee threatened Lewis not go to the police "or he would kill him."

Williams heard the commotion and went outside to see Lewis. McGee and Mack forced her back into, the apartment. Mack pointed the gun at her and said "`If you or your boyfriend go and tell the police, or call the police, we're going to kill you.'" McGee repeated the threat to Williams, who ran out of the apartment in search of Lewis.

Williams found Lewis down the street talking to the police. After Lewis reported the incident, the police escorted Lewis and Williams back to the apartment, where Lewis identified Mack and Hamilton as two of the attackers. Mack and Hamilton were placed under arrest.

The police then accompanied Williams and Lewis to Lewis's house. Williams noticed McGee's uncle, George Adams, watching from a nearby corner. After the police departed, Adams knocked on the door. When Lewis answered, Adams said, "`Lee Anthony, man, you should have just left it alone'" and "`should have taken it like a man.'"

Seconds after Adams left, McGee burst into the Lewis residence and began shooting. After the shooting stopped, Williams told Lewis's mother, "`Geeter shot us, Geeter shot us.'" When the police arrived, both Williams and Lewis told the officers they had been shot by McGee.

Lewis died of multiple gunshot wounds to the chest and buttocks. Although she had been shot seven times, Williams survived and testified at trial.

2. The Charges Against McGee

McGee was charged with one count of murder (Pen.Code, § 187), one count of attempted premeditated murder (Pen. Code, §§ 664, 187) and one count of making terrorist threats (Pen.Code, § 422). The information specially alleged Lewis had been intentionally killed because he was a witness to a crime (Pen.Code, § 190.2, subd. (a)(10)). It also alleged that McGee personally used and discharged a handgun (Pen.Code, §§ 12022.5, subd (a)(1), 12022.53, subds. (b) & (c)), which caused great bodily injury and death (Pen. Code, § 12022.53, subd. (d)). The information further alleged McGee had personally inflicted great bodily injury on Williams in the commission of the attempted murder alleged in count 2 (Pen.Code, § 12022.7, subd. (a)). Finally, the information alleged all crimes were committed for the benefit of a criminal street gang (Pen.Code § 186.22, subd. (b)(1)).

3. Voir Dire and McGee's Wheeler Motions

The case was tried to a jury. During jury selection McGee's counsel made a series of four motions under Wheeler and Batson, each of which was denied.

The trial court denied McGee's initial motion, finding he had failed to establish a prima facie case of improper discrimination:

"MR. HAIG: Your Honor, there would be a defense motion for a declaration of mistrial and to bring up a new panel based on People v. Wheeler and Batson v. Kent[ucky].

"The defense allegation [is] that the People have used their peremptory challenges in a self-incriminatory fashion and they have exercised six peremptory challenges and of those six peremptory challenges five of them have been more African Americans, and the record should reflect that my client is African-American, and I believe that the prima facie showing has been made to show there is a discriminatory use of the peremptory challenges in this case...."

The trial court denied the motion, stating, "I don't believe you've made a prima facie case."

Jury selection continued, and the prosecutor excused juror number three. McGee's counsel again challenged the prosecutor's use of peremptory challenges:

"MR. HAIG: Your Honor, I would again renew the motion under Wheeler, People v. Wheeler and Batson v. Kentucky. The last juror that was excused by the People was African-American so he's exercised seven peremptory challenges. Just so the record is clear, six have been against African-Americans one has been of a female Hispanic. So I would ask especially since my client is African-American that the People—that a prima facie showing has been made the People are using their peremptory challenges in a discriminatory fashion. I ask the court to ask the People to state a reason for each one of the peremptory challenges.

"THE COURT: Okay. I'm not sure there's a prima facie case as to all the peremptories but as to the last one I believe there is a prima facie case.

"MR. HAIG: If the court does find a prima facie showing that means there has been a pattern, whether it is insidious or not, is for the court for determine; and I don't think it is but I think here's enough for a prima facie showing, and I think that the court—any reviewing court's going to want to know the reasons for each one of the strikes [not] just the last one.

"And the reason I say that is that this court or reviewing court if it determines that any or all of the strikes for any of the African-American jurors is invalid, say that the recommendation is a mistrial and bringing of a new panel, so I would ask and I am just asking this for the court's and for the record that the People be asked to furnish a reason for each of the strikes of the African-American jurors and that is just my request. If the court doesn't want to employ it that way, that's fine.

"THE COURT: No. I didn't find a prima facie case the first time you made it. I do now and that's as a result of the last challenge. So at this time the ball's in Mr. Nunez's court."

The prosecutor then explained that during his six years as a prosecutor, he has "had problems with teachers and mail carriers" resulting in hung juries, and juror number three was a postal worker. He also stated that "I believe that there was some sort of reluctance or holding back on her part in terms of opening up and asking [sic] the questions that I think that are important in a case of this magnitude to be answered."

The trial court responded: "You know, it's hard to put your finger on it but, you know, I got the same impression. You know, I don't know. It was just a feeling on my part that she was reluctant to open up, as we say; and I understand your theory as far as postal workers are concerned. It's a theory shared by many prosecutors. I think Mr. Haig may be just as aware of that as you are and that the court is. All right. I'll accept it."

McGee's third motion was made after the prosecutor exercised two more peremptory challenges against African-American jurors. At that point, the prosecutor had exercised eight out of nine peremptory challenges against African-Americans. McGee's counsel argued, "I believe that not only established a pattern but shows that the People are using their peremptory challenges in a discriminatory way." The trial court denied the motion, finding McGee had failed to make a prima facie showing the prosecutor had used the peremptory challenges because of race or other group bias.

During the selection of alternate jurors, the prosecutor struck two additional African-American jurors without asking them any individual voir dire questions. McGee's counsel renewed his Wheeler motion, arguing, "All but two of the strikes by the People have been for African-Americans and in the—the last juror I think establishes, again, a pattern that the peremptories are being utilized in a discriminatory fashion." The court once again found no prima facie showing, but nonetheless invited comment from the prosecutor. The prosecutor explained the last juror had been excused because she had several close relatives in prison. The court said "okay" and proceeded to complete jury selection.

4. Sentence, Judgment and Appeal

The jury ultimately selected and sworn convicted McGee of murder and attempted murder, acquitted him of making terrorist threats and found true all the special allegations. He was sentenced to life in prison without the possibility of parole plus a consecutive sentence...