People v. Morgan

• Decision Date: 12 January 2005
• Docket Number: No. C045006.,C045006.
• Citation: 23 Cal.Rptr.3d 224,125 Cal.App.4th 935
• Parties: The PEOPLE, Plaintiff and Respondent, v. Frances Nadene MORGAN et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

23 Cal.Rptr.3d 224

125 Cal.App.4th 935

The PEOPLE, Plaintiff and Respondent, v. Frances Nadene MORGAN et al., Defendants and Appellants.

No. C045006.

Court of Appeal, Third District.

January 12, 2005.

Certified for Partial Publication.^*

Review Denied April 20, 2005.^**

Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant Frances Nadene Morgan.

Laura P. Gordon, under appointment by the Court of Appeal, El Paso, TX, for Defendant and Appellant Douglas Roy Brown.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, J. Robert Jibson and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.

MORRISON, J.

In this case we consider a question that has intrigued and divided scholars of the law of evidence, namely, whether implied assertions are hearsay. Here, the question arises in a common context. While officers were executing a search warrant for evidence of possession of a controlled substance for sale, an officer answers the phone and hears the caller ask to buy drugs. Are the caller's questions and statements hearsay? We conclude that under the provisions of California's Evidence Code the caller's oral expressions are hearsay, but that case law, recognized and accepted when the Evidence Code was adopted and continuing thereafter, has created an exception to the hearsay rule for this reliable type of evidence.

Defendants Douglas Roy Brown (Brown) and Frances Nadene Morgan (Morgan) were convicted by jury of possession of methamphetamine for sale (Health & Saf.Code, § 11378) and possession of methamphetamine (Health & Saf.Code, § 11377, subd. (a)). They were granted probation, subject to certain conditions and jail time. On appeal both contend it was error to admit evidence of a phone call in which a caller sought to purchase methamphetamine. In addition, Brown contends there is insufficient evidence to support his conviction of possession for sale, it was error to exclude his version of the officer's portion of the phone call, and it was error to give CALJIC No. 2.62. Finally, in supplemental briefs, Morgan and Brown contend it was error to convict them of both possession of methamphetamine for sale and the lesser included offense of possession of methamphetamine. We find merit only in the last contention. We reverse the conviction for possession of methamphetamine and otherwise affirm the judgment.

FACTS

On January 24, 2003, officers, including narcotics detectives, executed a search warrant to search for evidence of sale of methamphetamine. Brown answered the door when the officers knocked and yelled that the police had arrived.

Upstairs were two bedrooms. Officers found Morgan's son, Ronald, in the second bedroom, drinking a beer. Morgan was lying on the bed in the master bedroom. On the bed was a game board with white powder, a straw, and a credit card on it. Next to the bed Craig Wimberly was sitting at a computer table.

On a table next to the bed was a digital scale. Under the bed was a Elk tobacco tin; inside were a felt baggie, seven plastic baggies with traces of white powder, a plastic baggie with a white powdery substance, and $356. In a purse officers found Morgan's driver's license, $305, and a day planner. Inside the day planner was a sheet that looked like a ledger with a name across the top and numbers. Detective Dreher opined it was a pay-owe sheet, but he could not be certain. Another alleged pay-owe sheet with many names was found in Morgan's purse. A hypodermic needle was found in a drawer of the computer table.

The parties stipulated .55 gram of methamphetamine was found on the game board and .81 gram of methamphetamine was in the tobacco tin. Dreher testified a usable quantity of methamphetamine was .1 gram. A user typically will use "an eight ball" of 3.0 to 3.5 grams per week. Methamphetamine is commonly sold in the following quantities: .2 gram or a 20 sack, a .16 gram or a teener, and a half teener which is .7 or .8 gram. When told that narcotics had been found in the master bedroom, Brown said it was "all mine."

Scraper bags are plastic bags with methamphetamine residue inside. Users often keep scraper bags to make enough methamphetamine for another hit. Users often have scales to make sure they do not get burned by sellers.

Based on finding the controlled substance, the scale with residue on it, the packaging, the money and the pay-owe sheets, Dreher opined that the methamphetamine was possessed for sale. He conceded the methamphetamine on the game board was consistent with personal use.

During the search the telephone rang and Detective Ashworth answered it. A male caller asked for Fran and Ashworth told him she was sleeping. The caller said he was "bogeying," which meant in need of drugs, and asked if he had any. Ashworth asked what he needed and the caller said a "half teener." Ashworth asked what he was driving and how long it would take him to get there. The caller said he was in a white T-bird and he would be there in two minutes. Five minutes later Ashworth saw a white Thunderbird in the parking lot.

Morgan's son, Ronald, testified he came home from work the day of the search and checked on his mother because she was ill; she was sleeping and Brown was next to her. Morgan was on permanent disability and slept all the time. She took medications, including vitamin B12 shots with a syringe. Morgan had loaned Ronald money and she was a stickler for recording it. Ronald believed the ledger with the name Ron on it was Morgan's record of that loan.

The parties stipulated Brown's employer would testify he paid Brown $400 that day in cash for wages.

Brown testified the methamphetamine was his and possessed solely for personal use. Morgan was his roommate and girl-friend. He had used methamphetamine for 20 to 25 years. Morgan did not use methamphetamine or like Brown's use. Brown claimed neither he nor Morgan sold methamphetamine. The night of the search Brown came home from work with his pay. He kept $100 and put $300 either in the tobacco tin or in Morgan's purse. He deals exclusively in cash because he has had bad experiences with checks and lacks identification. His friend Wimberly was there playing a computer game. Brown took out his methamphetamine and snorted "a big ol' rail" because he was tired. He intended to use the rest that he had taken out, but the police arrived.

Brown said he did not sell methamphetamine but sometimes people asked him for it. He might share some with friends and expected them to return the favor, but he could not recall the last time he gave someone methamphetamine. He kept scraper bags for hard times. He used the scale for several purposes. He weighed his weed and crank to check on people and also used the scale to weigh "meteorites." The ledgers were from when he and Morgan were collecting money to bail a friend out of jail.

The jury convicted Morgan and Brown of possession of methamphetamine for sale and possession, but acquitted them of unauthorized possession of a hypodermic needle.

DISCUSSION

I^***

II

Morgan and Brown contend the trial court erred in admitting the evidence of the phone call during the search and further erred in failing to give a limiting instruction. They assert the statements of the caller were hearsay, the statements did not fall within any exception to the hearsay rule, and they were not admitted for a relevant nonhearsay purpose. They further contend admission of the caller's statements violated their rights to confront and cross-examine witnesses under the confrontation clause.

The Attorney General responds that Morgan and Brown waived the hearsay objection by failing to raise it below. We reject this contention.

Before trial the People brought a motion in limine to admit the phone call. Brown moved to exclude the evidence under Evidence Code section 352, arguing the phone call was not probative and was unduly prejudicial as to him because the caller did not mention him. At the hearing on the in limine motion, Brown repeated his objection and Morgan also objected on the basis of Evidence Code section 352 and that admission of the call would violate confrontation rights. The prosecutor argued the statements were circumstantial evidence and would survive a hearsay objection. The trial court ruled the caller's statements were not hearsay. The issue of whether the caller's statements were hearsay was raised and ruled upon by the trial court; a more specific objection would have been superfluous. The hearsay objection is not waived.

In admitting the statements of the caller, the trial court relied upon People v. Nealy (1991) 228 Cal.App.3d 447, 279 Cal.Rptr. 36 and People v. Ventura (1991) 1 Cal.App.4th 1515, 2 Cal.Rptr.2d 586. In Nealy, during the course of a search, an officer answered the phone and the caller asked for defendant by name and inquired about purchasing a "dove." (People v. Nealy, supra, 228 Cal.App.3d at p. 450, 279 Cal.Rptr. 36.) The officer testified a "dove" was a "$20 piece of rock cocaine." The officer also returned two calls on defendant's beeper; the callers asked for defendant and wanted a "dove." (Ibid.) The trial court overruled hearsay objections, finding the telephone requests were not offered for the truth of the matters asserted. Instead, the requests were relevant and admissible as circumstantial evidence to show the cocaine seized in the search was possessed for purposes of sale. (Id. at p. 451, 279 Cal.Rptr. 36.) The reasoning process was as follows: During the search three people believed rock cocaine could be purchased at the apartment.

From these beliefs, a reasonable person might draw the inference that possession of cocaine for sale had been shown. (Ibid.) The appellate court agreed with this reasoning and found the trial court's analogy to bookmaking calls, in which calls to place bets were admissible to show a bookmaking operation, was...