People v. Smith, A115149 (Cal. App. 9/29/2008), A115149
| Decision Date | 29 September 2008 |
| Docket Number | A115149 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. EDWARD LEE SMITH, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Appeal from the Alameda County, Super. Ct. No. C149528A.
A jury convicted appellant Edward Lee Smith of second degree murder and possession of a firearm by an ex-felon. (See Pen. Code,1 §§ 187, 12021, subd. (a)(1).) Allegations that he suffered a prior conviction for residential burglary and that he personally and intentionally discharged a firearm inflicting great bodily injury or death during the commission of murder were also found to be true. (See §§ 667, subd. (a), 12022.53, subd. (d).) Sentenced to state prison for a total term of 60 years to life, Smith appeals. He challenges the admissibility of some evidence and asserts a claim of ineffective assistance of counsel. He also raises issues of prosecutorial and judicial misconduct. We order the abstract of judgment to be corrected, but otherwise affirm the conviction.
On Sunday, June 9, 2002,2 Christian "C-Note" Dotson was shot and killed outside an apartment complex at 84th Avenue and Dowling Street in Oakland. He had been shot more than a dozen times in his head and torso. Dotson had sold marijuana on a corner near where he was killed. He had evidence of heroin, cocaine and marijuana use in his system at the time of death. He also wore a tattoo signifying his membership in the Kumi 415 gang. Three other people were also injured during this incident.
Witnesses to the shooting were initially reluctant to report their observations to police, so the Dotson case went unsolved for some time. In late June 2002, police arrested Stephen Swayne in Oakland on an unrelated charge and found a nine-millimeter semiautomatic Luger pistol in his car. By September 2002, ballistics tests confirmed that this was the Dotson murder weapon.
Oakland police routinely question arrestees about information they might have about violent crimes committed by others. In the two years after the Dotson shooting, five men—Varron Armstrong, Michael Attaway, Antone Bostic, Kevin Hampton and Juan Rodriguez—were questioned about it while each was in police custody on unrelated charges. All five men knew Dotson. Each man also knew appellant Edward Lee Smith, who went by the street name "E-Roc" and was thought to control drug sales in the area of the shooting. Each man lived at or frequented the apartment complex at 84th Avenue and Dowling Street where Dotson had been killed. Each had prior convictions or admitted engaging in some type of criminal activity, usually involving narcotics. Most of these five men used and/or sold illegal drugs.
The first of these five interviews occurred in March 2003. Varron Armstrong—suspected of using heroin—spoke with Oakland police after he was arrested on a drug charge. He told them about Dotson's murder. Armstrong told police that two days before the shooting, Smith and Dotson had quarreled about whether Dotson would sell heroin for Smith. On the day that Dotson was killed, he was selling drugs near the apartment complex. That day, Armstrong saw Smith come from the back of the apartment complex and shoot Dotson. After Dotson fell to the ground, Smith continued shooting him, then ran back the way he had come, toward 83rd Avenue. Armstrong viewed a photographic lineup for police, identifying Smith as the gunman.
In May 2003, Michael Attaway was arrested by Oakland police after using heroin and cocaine. By then, he had suffered prior convictions for second degree burglary and possession of narcotics for sale. Attaway offered the police information about the Dotson shooting, hoping for some leniency in his own case. He told the police that a few days before the shooting, Smith had threatened a group of men who were standing in the area near the apartment complex, telling them that he wanted everyone to leave. Smith said that he was not "doing no talking," but was "just shooting."
Attaway told police that on the day of the shooting, he had been living at the apartment complex. At that time, he had a $100 a day heroin habit, although he denied using any drugs that Sunday morning. When he woke, he saw Dotson standing outside the apartment complex and saw Smith ride by near Dotson. A minute or two later, Attaway heard his seven-year-old nephew say, "Watch out, C-Note, look behind you." Then, gunshots rang out. Attaway saw Smith shoot Dotson—multiple shots that forced Dotson to the ground and more shots that were inflicted after he had fallen. Smith then left, running back through the apartment complex from 84th Avenue to 83rd Avenue. He saw another man and woman who were also shot and injured that day. Attaway viewed a photographic lineup for police and identified Smith's photograph.
In February 2004, Juan Rodriguez was arrested. He was going through heroin withdrawal at the time that he gave a tape-recorded statement to Oakland police. Rodriguez lived in the neighborhood where Dotson was killed. He told police that he saw Dotson's body lying in front of the apartments on the day of the shooting. He had seen Smith and Antone Bostic3 ride by in a car that day. A few months before the shooting, Rodriguez had witnessed Dotson and Smith arguing—Smith pushed Dotson, called him a "rat bastard" and even pulled a gun on him. Rodriguez told police that Smith was angry because Dotson's girlfriend had planted drugs in someone's car.
A few months after the shooting, Rodriguez spoke with Smith, pointing out someone who looked like Dotson. Smith said: Smith said, "Once I kill a mother fucker, he's never coming back." Smith told Rodriguez several times that he had killed Dotson. He told Rodriguez that on the day of the shooting, he had asked Bostic for a ride. Bostic had driven the two of them in his car. He recounted how he had come from the back of the apartment complex with a gun; how he told a little boy to be quiet; how he had been looking for a man with the street name of Roddy-Rod, but did not find him, so he shot Dotson instead; and how he walked over to Dotson after the victim was on the ground and killed him. Rodriguez also identified Smith in a photographic lineup as the man who shot Dotson.
Rodriguez told the police that he had also spoken with Bostic about the shooting after it had occurred. Bostic told Rodriguez that he had given Smith a ride that morning. He thought that Smith intended to kill—not Dotson—but Roddy-Rod—a man who was not a member of the Kumi 415 gang. According to Rodriguez, Bostic felt "crossed-up" by Smith because he shot Dotson—who was a member of that gang—instead. Bostic was concerned that members of the Kumi 415 gang—with whom Rodriguez believed that Bostic4 was affiliated—would think he was involved with Dotson's death. Bostic also told Rodriguez that Smith had given him the gun to "put up," but that he sold it instead. In a photographic lineup, Rodriguez identified Bostic as the driver of the car that he saw on the day of the shooting.
In March 2004, Kevin Hampton was arrested and interviewed by Oakland police. He told police that he was at the 84th Avenue and Dowling Street apartment complex on the day that Dotson was shot and that he had information about the shooting. Just before the shooting, he saw Smith come from the back of the apartment complex. Smith walked by a child, tapped him on the shoulder and said " `Shh.' " Then, Hampton heard the child say, " `Hey, C-Note, watch out.' " Hampton saw Smith with a gun in his hand and heard him call out " `Hey, mother fucker, turn around' " before he started shooting. Smith shot first while his victim had not yet turned around and then fired more shots while standing over his fallen victim. Smith ran back the way he had come. Hampton viewed a photographic lineup for police and identified Smith as the man who shot Dotson.
In April 2004, a complaint was filed charging Smith with the murder of Dotson. Smith was arrested at his home in Oakland. A loaded, nine-millimeter Beretta semiautomatic pistol was found under a bedroom mattress during a search of his home. An amended complaint was filed against Smith adding a charge of possession of a firearm by an ex-felon. (See § 12021, subd. (a)(1).)
On June 19, 2004, Oakland police interviewed Antone Bostic, who was being held on a parole violation. Initially, Bostic did not tell police that the murder weapon had been in his car and he denied speaking with Smith after the shooting. Later, Bostic admitted to police that he had given Smith a ride to the area of the shooting; that Smith walked toward the apartment complex; that he heard multiple gunshots before Smith returned to the car and told him to drive away; and that Smith told him "I got that nigger" after the shooting. Bostic also told police that he sold the gun that Smith handed him after the shooting to a man named Stephen and that Smith asked for the gun back days after the shooting. Bostic was high on methamphetamine and heroin after a three-day binge at the time that he made his statement. Later, he could not recall what he was asked and what he said that day.
Three days after the Bostic interview, an amended complaint was filed, charging both Smith and Bostic with the murder of Dotson. In February and March 2005, a preliminary hearing was conducted on those charges. At that hearing, Rodriguez testified that Smith was in charge of drug sales in the 84th Avenue and Dowling area. A few months before the shooting, Rodriguez overheard Smith and Dotson arguing. Smith had pushed Dotson and had pulled a gun on him. Rodriguez testified that on the day of the shooting, he saw Smith and Bostic ride by the apartment complex in a car. Rodriguez also testified that Bostic...
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