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People v. Kozlowski3/4/2002
ence unless the defendant objected to the proffered evidence in a manner that made clear the specific ground of the objection. (Evid. Code, § 353, subd. (a).) On appeal, a trial court's judgment is presumed to be correct. We never presume error. The appellant must affirmatively demonstrate error on the face of the record. If the record is silent, the appellant has not sustained his or her burden of establishing error. (See People v. Davis (1996) 50 Cal.App.4th 168, 172.)
The record in the trial court does not affirmatively demonstrate that Kozlowski asked the trial court to give a limiting jury instruction as to all of Gatson's statements rather than those specifically referenced immediately before the discussion. (See People v. Davis, supra, 50 Cal.App.4th at p. 172.) If Kozlowski had objected to the testimony of Lisa and Robyn about this particular statement, we might take a different view of the subsequent discussion of the admissibility of Gatson's statements against Kozlowski and the request for a limiting jury instruction about them. However, when statements are admitted into evidence without objection and no specific mention is made of the particular evidence challenged on appeal when a limiting jury instruction was requested, then the defendant has not established that this particular issue was brought to the attention of the trial court sufficiently to have preserved it on appeal. (See Evid. Code, § 353, subd. (a).) Thus, we find that Kozlowski waived any claim of error relating to the admissibility of Gatson's statements about shooting police officers.
2. Identification
Kozlowski also contends that the trial court erred when it failed to limit the jury's consideration of Gatson's statement about a prior victim who later identified him in court. Kozlowski reasons that this error denied him due process of law by impermissibly reducing the People's burden of proof and creating a substantial risk that he was convicted on the basis of irrelevant and inflammatory evidence rather than evidence of the charged offenses. He argues that because the evidence was critical on the issue of intent to commit attempted murder and kidnapping for extortion, all of the convictions except the robbery conviction must be reversed. At the very least, he urges, the findings of premeditation and deliberation were tainted. (See U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, § 15.)
Before trial, Gatson moved to preclude the prosecutor from mentioning in an opening statement his comment to the effect that the last time he let a girl go, she identified him in court. The motion was denied. Kozlowski did not participate in this aspect of the proceeding.
Later, Lisa testified that while Kozlowski was still in the car, Robyn asked Gatson to release them. Lisa told the jury that Gatson replied that " he last girl that said that to me was sitting up on a stand pointing her finger at me."
When Robyn testified, she was asked about this statement, which she suggested Gatson made while Kozlowski was out of earshot. Kozlowski objected to the question, arguing that the answer would be hearsay. The prosecution argued that the testimony was offered only to explain Robyn's subsequent conduct. The trial court received this evidence only for that limited purpose. Robyn told the jury that while Kozlowski was elsewhere, Gatson refused to return her cell phone because his last victim had pointed him out in court, reasoning that if she got her cell phone back, she would call for help. Gatson objected to this answer and asked that it be stricken, but the People prevailed in their argument that the evidence was not hearsay because it was offered to show Gatson's intent. Gat
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