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Name: People v. Kelley
Case #: A093862
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 10/18/2002
Subsequent History: 11/18/02: rehrg. denied; 1/22/03: revw. denied

During Kelley’s jury trial for first degree murder, statements by his girlfriend, were admitted, which tended to incriminate him. The statements were made late at night after several hours of interrogation by officers, who repeatedly accused the girlfriend of lying. Trial counsel did not move to exclude the statements. On appeal, Kelley challenged the effectiveness of counsel, arguing that the statements would have been excluded because they were coerced, and that the jury would then have had reasonable doubt as to his guilt. The appellate court here rejected the argument, finding that Kelley had not met his burden of showing that the circumstances of the statements demonstrated coercion. The police officers’ testimony offered “plausible contradictions” to the girlfriend’s version of the interview. Defense counsel questioned her extensively about the circumstances of her statements. Since Kelley did not establish that the statements were wrongly admitted, counsel was not ineffective for failing to object to them. Further, trial counsel was not ineffective for failing to request an instruction directing the jury to consider the voluntariness of the girlfriend’s statements. Counsel could have rationally concluded that such an instruction was unnecessary and futile. Further, it was not reasonably probable that a different result would have occurred with such an instruction in light of the evidence against appellant, and the slender basis for concluding that the statements were involuntary. The prosecution’s questioning about appellant’s unproven prior acts of domestic violence was improper because the questions sought only irrelevant and inadmissible matter. The prior incident had no relevance to the murder, and the trial court abused its discretion when it allowed the questioning. However, in light of the evidence against appellant, and the brief questioning, the error was harmless under either standard. There was no violation of federal or state law by the recording of appellant’s jailhouse conversations, and the subsequent introduction of transcripts of them. The consent exception applies, since appellant’s housing unit had a warning sign above its telephones. The trial court did not err by failing to give appellant’s requested instruction on voluntary manslaughter based on provocation. The jury’s verdict, finding appellant guilty of first degree murder, and rejecting second degree murder, demonstrated that it necessarily rejected this theory. Heat of passion and premeditation are “mutually exclusive.” Further, since there was insufficient evidence to support a jury verdict on an imperfect self-defense theory, the trial court did not err by failing to give a voluntary manslaughter instruction based on that theory as well.