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Name: People v. Gunder
Case #: C050683
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 05/25/2007

It was not error to admit evidence that appellant had possession of a gun prior to the murders. During appellant’s trial for first degree murder, the prosecutor elicited testimony from appellant’s son concerning a conversation appellant and the son had prior to the murders, which indicated that appellant had a gun and was ready to use it. Defense counsel objected to the testimony under Evidence Code section 352, and the court overruled the objection. On appeal, appellant argued that the trial court failed to indicate that it had weighed the probative value of the evidence against the prejudice and that the incident lacked any probative value other than his disposition to carry guns, because nothing linked the gun involved to the murder weapon. The appellate court held that the record was adequate to show that the court weighed the prejudice against the probative value. Further, the evidence was probative on the question of appellant’s actual possession of a firearm, which contradicted appellant’s assertion that the evidence was planted or mishandled. The court also rejected appellant’s assertion that the incident was an uncharged crime, and that there was undue prejudice caused by the admission of the evidence. It was not error to admit a videotape of a witness who asserted a complete memory loss at trial. The prosecutor also called a witness who was a long time friend of appellant’s, and who claimed to have a complete loss of memory so he did not remember anything about appellant shooting himself in the ankle prior to the shootings. The court allowed the prosecutor to play a videotape where the witness described the incident. On appeal, appellant contended that his counsel was ineffective for failing to contest the admissibility of the statements. The appellate court rejected the argument, finding that there was a reasonable basis for the court to conclude that the forgetfulness was feigned, and therefore the prior extrajudicial statement could be admitted as a prior inconsistent statement. Nor was counsel ineffective for failing to object on confrontation grounds. The circumstance of feigned memory loss is not parallel to a refusal to testify. The witness feigning memory loss is subject to cross examination. There was sufficient evidence of premeditation and deliberation where there was a “reservoir” of bad blood between appellant and the victims, appellant broke into the home and shot the victims at point-blank range, and appellant shot the victims in two different rooms while reloading the weapon in between shots.