California First Degree Murder Premeditation Confrontation Forensic Certificate Expert DNA Lawyers Attorneys

THE PEOPLE, Plaintiff and Respondent, v. RICHARD J. BOJORQUES, Defendant and Appellant.

COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION ONE

September 28, 2010, Filed

Defendant Richard Bojorques was convicted of first degree murder. The prosecution presented the testimony of three DNA experts. The first was Dr. Rick Staub, the forensic laboratory director at Orchid Cellmark in Dallas. He testified about DNA, DNA analysis, and his company's testing of the evidence in this case. The employees who actually performed the testing were not called as witnesses. Defendant contends there was insufficient evidence of premeditation and that his constitutional right of confrontation was violated by the testimony of witnesses who did not themselves perform the DNA testing and autopsy.

Issue:

Whether the evidence was sufficient to prove premeditation?

Whether the testimony of expert witnesses violated his Sixth Amendment right to confrontation?

Observation and Holding:

Premeditation requires that the act be considered beforehand. The extent of the reflection, not the length of time, is the true test. These processes can occur very rapidly, even after an altercation is under way. The record in this case does not contain evidence in any of the three Anderson categories. It appears that the police and prosecution were unable to find either anyone who witnessed Linasero's murder or any evidence of a prior relationship or even prior contact between defendant and Linasero. Defendant's statements to Jackson did not give rise to any inference of a motive or planning activity on his part. Although the physical evidence tended to show a violent struggle and sexual assault, neither of these factors constituted substantial evidence that defendant premeditated Linasero's murder. They are fully consistent with a killing resulting from an unconsidered or rash impulse. Defendant used his hands, not any object he brought with him to the scene. An unjustified killing of a human being is presumed to be second, rather than first, degree murder. In order to support a finding that the murder is first degree the People bear the burden of proving beyond a reasonable doubt that the defendant premeditated and deliberated the killing. Here, the evidence showed only manual strangulation, not ligature strangulation. There is no evidence that defendant, watching Linasero, lured her to a more secluded location, pursued her, or was even in her company for any time other than that consumed by the struggle, sexual assault, and killing, which may have been nearly simultaneous. The Attorney General also argues that the manner of killing shows that defendant had time to premeditate. But the passage of sufficient time does not mean that premeditation actually occurred. Accordingly, we agree with defendant that there was insufficient evidence of premeditation to support his first degree murder conviction.

With respect to Dr. Staub's testimony, Geier is directly on point. Like the testifying witness in Geier, Staub was the supervisor of the laboratory that performed the DNA testing and analysis. Staub testified regarding the science underlying DNA testing and the procedures and protocols used by Orchid Cellmark. He reviewed all of his company's records, including the electropherograms and all supporting documentation and testified that all proper procedures and protocols were followed. He then testified, based upon his review and expertise, what the DNA testing established and [*27]what the significance of those results were. He also testified that he agreed with the conclusions reached by the actual Orchid Cellmark analysts who performed the DNA testing and analysis. As in Geier (but not Melendez-Diaz), Staub testified and was extensively cross-examined by the defense. Dr. Staub's reliance upon the electropherograms and supporting documentation produced by the actual Orchid Cellmark analysts did not entail testimonial hearsay under Crawford.

Dr. Word's testimony was essentially that of an expert opining that she agreed with the results and conclusions reached by Orchid Cellmark. Her testimony did not itself introduce those results and conclusions, Dr. Staub's did. Thus, Dr. Word's reliance upon the documentation produced by the actual Orchid Cellmark analysts did not introduce testimonial hearsay in violation of the confrontation clause.

The court reduced Defendant's conviction to second degree.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content

California First Degree Murder Premeditation Confrontation Forensic Certificate Expert DNA Lawyers Attorneys

By: Atchuthan Sriskandarajah

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