THE PEOPLE v. AARON DUGGAN (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Defendant and appellant Aaron Duggan was convicted of attempted voluntary manslaughter.   The jury also found true a number of special allegations, including the allegation that appellant's offense was a hate crime.   Appellant was sentenced to serve 22 years in state prison.

Appellant appeals the judgment on numerous grounds.   For reasons we shall explain, we reject all of appellant's arguments except one.   The trial court erroneously imposed a sentence enhancement on appellant for committing a hate crime “in concert with another person” in violation of Penal Code section 422.75, subdivision (b) ¹ without properly instructing the jury regarding the elements of this enhancement.   The court should have instead imposed an enhancement pursuant to section 422.75, subdivision (a), which applies to hate crimes committed without acting in concert with another person.   We therefore modify the judgment to impose a sentence enhancement pursuant to section 422.75, subdivision (a).   In all other respects, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

1. Appellant's Background As a Skinhead

When the incident that led to this case occurred appellant was a self-proclaimed “skinhead.”   The term skinhead refers to a Caucasian person who believes in the ideology of white supremacy and who has a specific style of appearance, most notably a close-shaved head.

About two months before the incident appellant moved from Bakersfield to San Dimas.   He rented a room from the family of Alexandria P., who was 15 years old at the time.   Appellant was 27.   Appellant met Alexandria P., as well as her boyfriend Kody R. and Kody R.'s friend Clinton S. through a mutual friend in Bakerfield who was active in white supremacy circles.

Kody R., who was 15 years old and Clinton S., who was 17 years old, were interested in becoming skinheads.   Appellant served as their “elder.”   Kody R. and Clinton S. were “fresh-cuts” appellant was training to become skinheads.

Appellant had skinhead, white supremacist and Nazi tattoos all over his body.   In his conversations with Alexandria P., Kody R. and Clinton S., he talked about his racist views and referred to non-white people by using racial slurs.

2. The Stabbing of “Mike” Y.

On April 28, 2008, at about 8:00 p.m. Kirsten B. and B.R. met at a junior high school playground in San Dimas to fight.   Kirsten B. and B.R. were both teenagers and minors.   The girls decided to fight for reasons unrelated to appellant.

At the time Kirsten B. was Alexandria P.'s friend and was temporarily living in her home.   Kirsten B. went to the fight in Alexandria P.'s vehicle with Alexandria P., Kody R. and appellant.

B.R. walked to the fight from a nearby mobile home park where she lived.   Her boyfriend Nicholas A. and a group of other individuals who lived at the mobile home park, including “Mike” Y. followed her to the school.

Kirsten B. and B.R. engaged in a fist fight for about one or two minutes when Kirsten B. stopped the fight because she was tired or injured or both.   While they were fighting appellant was yelling, “White power.”

After Kirsten B. and B.R. stopped fighting someone shouted, “White power.”   Nicholas A. responded by yelling, “Fuck bigots.”   Kody R. and appellant briefly spoke, then Kody R. went over to Nicholas A. and started swinging at him.   Kody R. and Nicholas A. engaged in a fist fight.   While Kody R. and Nicholas A. were fighting Kody R. and appellant were shouting, “White power.”   This fight stopped when Kody R. scratched Nicholas A.'s eye with his fingernail, and Nicholas A. withdrew from the fight.

After Kody R. and Nicholas A. stopped fighting, appellant kept saying racial slurs.  “Mike” Y. heard appellant say, “Fuck gooks” while looking at “Mike” Y. Since “Mike” Y. was the only Asian there, he believed the statement was directed at him.  “Mike” Y. responded by saying, “Fuck bigots.”   Appellant then came at “Mike” Y. with his fists up, and hit “Mike” Y. in the chin.  “Mike” Y. and appellant then engaged in a fist fight.

While appellant and “Mike” Y. were fighting, Kody R. was saying, “White power” and “Heil Hitler” and jumping around.   At one point “Mike” Y. punched appellant and knocked him back to a crouching position;  appellant held himself up with one arm.  “Mike” Y. thought he had won the fight and turned his back to appellant and faced his friends while he was “showing off.”   Appellant then got up, took out a knife, and stabbed “Mike” Y. in the back several times.   When “Mike” Y. turned around, appellant stabbed him in the face.  “Mike” Y. then wrestled appellant to the ground, took the knife away, and tossed it to one side.   Before he did so, “Mike” Y. was stabbed six times.

At this point the fight stopped.  “Mike” Y. was transported by helicopter to a hospital, where he spent four days.   Appellant, Kody R. and Alexandria P. went to Alexandria P.'s vehicle.   In the vehicle, appellant admitted that he had stabbed “Mike” Y. and stated, “Fuck gooks.   I will kill them all.”

3. The Information

In an information appellant was charged with one count of attempted murder pursuant to section 187, subdivision (a) and section 664.   The information also stated that appellant committed a hate crime in violation of section 422.75, subdivision (b), personally used a dangerous weapon in violation of section 12022, subdivision (b)(1), and personally inflicted great bodily injury in violation of section 12022.7, subdivision (a).   In addition, the information alleged that appellant suffered a prior conviction of a serious felony within the meaning of section 667, subdivision (a)(1), and that appellant suffered a prior conviction of a serious or violent felony or juvenile adjudication for purposes of the Three Strikes law, section 1170.12, subdivisions (a) through (d) and section 667, subdivisions (b) through (i).   The alleged prior conviction occurred in 2004 and was for assault with a deadly weapon in violation of section 245, subdivision (a)(1).

4. The Trial

At trial the People called numerous witnesses who were at the scene of the stabbing, including “Mike” Y., Alexandria P., Nicholas A., B.R. and Kirsten B. These witnesses supported the version of the incident we have described.   The People also called Dr. Ramkumar Subramanyan, the physician who treated “Mike” Y. Dr. Sabramanyan testified that “Mike” Y. was stabbed in the face and back and was seriously injured.   In addition, Clinton S. testified that appellant gave Clinton S. the knife he stabbed “Mike” Y. with and asked him to get rid of it.   Clinton S. further testified that prior to his arrest, appellant said he was going to Canada, and asked Clinton S. whether he would go with him.   Eric Kraus, an expert on white supremacy groups, testified on behalf of the People regarding skinhead ideology, customs and practices.

Appellant called several witnesses, including his mother and himself.   He testified that he stabbed “Mike” Y. in self-defense because “Mike” Y. swung a knife at him and appellant thought he had been stabbed.   No other witnesses, however, testified that “Mike” Y. had a knife.   Further, appellant admitted that he had not been stabbed, and that he did not have a scratch or nick.   Appellant also denied saying, “White power” or “gook” before, during or after his fight with “Mike” Y.

5. The Verdict and Sentence

A jury returned a verdict of not guilty with respect to the attempted murder charge against appellant.   The jury, however, convicted appellant of the lesser included offense of attempted voluntary manslaughter.   The jury also found the special allegations against appellant were true.   Appellant waived a jury trial with respect to the allegations regarding his prior conviction of a felony.

The trial court sentenced appellant to 66 months for the underlying offense, plus 198 months for enhancements for a total of 22 years.   Of relevance here, appellant received what the trial court described as the “low term” of two years as a sentence enhancement for committing a hate crime in concert with another person in violation of section 422.75, subdivision (b).²  The trial court explained why he gave the low term in this way:  “There were obviously overtones concerning the hate crime here that the jury found to be true.   However, I don't find it necessarily to be the instigating factor.   [¶] ․ I don't find necessarily that [appellant] went to that location planning to commit a hate crime, so I will give [him] the low term.”

Appellant filed a timely appeal.

DISCUSSION

Appellant makes four major arguments challenging the judgment.   We shall address each of them in the order they were asserted.

1. The Trial Court Did Not Erroneously Sustain Kody R.'s Invocation of the Privilege Against Self–Incrimination

Appellant's first argument relates to the alleged assertion of the privilege against self-incrimination by Kody R. Although appellant presented several witnesses in his defense, and testified himself, he did not call Kody R. as a witness.

During the trial, appellant's attorney, Al Amer, advised the court that Kody R. was subpoenaed as a defense witness.   Appellant's counsel further stated:  “She [Kody R.'s mother] is prepared to bring him to court, and it wasn't until after the prosecutor mentioned that he could be — he was concerned about him maybe saying something that could subject him to maybe possible prosecution in the future that he changed his mind, and his attorney advised him not to come to court.”

The trial court advised Amer:  “ ․ I don't know what to tell you.   There is nothing that I can do, unless the People choose to grant immunity, and that's within their option.   It is not within the court's ability to grant or not grant, and the court doesn't have the ability to bring charges or decide not to bring charges.   Those all rest with the prosecution.”

The deputy district attorney stated:  “I got the file from juvenile, and it appears Mr. R. pled to some misdemeanors on that case.  [¶] ․ If he [Kody R.] wants to testify, he should come in and testify.”

Later, Amer stated:  “And if I may, your honor, for the record, there is nothing that I can do about it as well.   If somebody's lawyer says ‘I don't want my client to testify,’ I have to respect that person's constitutional right and that lawyer's advice.   And at that point I have to stop all communications, and that's what I did in this case.”

After hearing additional argument, the trial court said:  “․ I will allow the attorneys to work it out.   I mean, those are tactical decisions.”   Near the conclusion of this discussion, the trial court stated:  “Mr. Amer is saying that Mr. [R.]'s attorney is advising him not to testify, so — and I don't have anything before me regarding the statement, and I can't prejudge necessarily the evidence without knowing the full effect of it.”  (Italics added.)

Appellant correctly points out that the trial court was not in a position to rule on Kody R.'s alleged assertion of the privilege against self-incrimination.  “[B]efore a claim of privilege can be sustained, the witness should be put under oath and the party calling him be permitted to begin his interrogation.   Then, the witness may invoke his privilege with regard to the specific question and the court is in a position to make the decision as to whether the answer might tend to incriminate the witness.”  (People v. Harris (1979) 93 Cal.App.3d 103, 117.)  “ ‘[A] blanket refusal to testify is unacceptable;  a person claiming the Fifth Amendment privilege must do so with specific reference to particular questions asked or other evidence sought․  [O]nce this is done, the trial court must undertake a particularized inquiry with respect to each specific claim of privilege to determine whether the claimant has ․ establish[ed] that the testimony or other evidence sought might tend to incriminate him.’  “ (In re Marriage of Sachs (2002) 95 Cal.App.4th 1144, 1151.)

Appellant argues that the trial court erroneously “sustained” Kody R.'s invocation of the privilege against self-determination without determining whether Kody R. was entitled to claim the privilege.   The premise of this argument is incorrect.   The trial court did not make a ruling on Kody R.'s alleged claim of the privilege because the issue was not before the court.   The trial court therefore did not erroneously “sustain” Kody R.'s invocation of the privilege.³

Moreover, a judgment cannot be reversed based on the erroneous exclusion of evidence unless the error resulted in a miscarriage of justice and it appears from the record that, inter alia, “[t]he substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means.”  (Evid.Code, § 354;  see also Cal. Const., art., VI, § 13.)   Here, there is nothing in the record indicating what Kody R.'s testimony would have been had he been called as a witness.   Accordingly, appellant did not show that the trial court's alleged error resulted in a miscarriage of justice, that is, he did not show it is reasonably likely appellant would have received a more favorable verdict in the absence of the alleged error.  (People v. Racy (2007) 148 Cal.App.4th 1327, 1335;  People v. Watson (1956) 46 Cal.2d 818, 836).

Appellant contends that the trial court's alleged error deprived him of his Sixth Amendment right to present a defense, and his Fourteenth Amendment right to due process of law.   When a trial court's error deprives the accused of a federal constitutional right, the state-law miscarriage of justice requirement does not apply.   Instead, the judgment must be reversed unless the error was harmless beyond a reasonable doubt.  (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman ).)

Appellant claims that the Chapman standard applies here.   He cites Crane v. Kentucky (1986) 476 U.S. 683 (Crane ) and Davis v. Alaska (1974) 415 U.S. 308 (Davis ) to support his position.   In Crane, the defendant sought to introduce evidence bearing on the credibility of his own confession.   This evidence was “central to the defendant's claim of innocence.”  (Crane, at p. 690.)   Likewise, in Davis, the trial court barred evidence impeaching a “crucial witness” for the prosecution.  (Davis, at p. 310.)

Here, by contrast, appellant did not show that Kody R.'s testimony was “central” to his defense or that Kody R. was a “crucial” witness because there is nothing in the record indicating what Kody R. would have said had he been called as a witness.  Crane and Davis are thus distinguishable.   Because appellant did not show how, if at all, Kody R.'s testimony would have supported his defense, we reject his claim that the trial court's purported exclusion of Kody R.'s testimony is a violation of a federal constitutional right.   The Chapman standard thus does not apply.  (See People v. Boyette (2002) 29 Cal.4th 381, 428–429;  People v. Fudge (1994) 7 Cal.4th 1075, 1102–1103.)

2. The Trial Court Did Not Abuse Its Discretion by Denying Appellant's Motion for a Mistrial

During the trial appellant made two motions for mistrial based on improper references made by witnesses to appellant's prior conviction.   The first motion was made after the following testimony by Alexandria P. “[Defense counsel:] And during this 85 minutes, you talked with [appellant's mother] about a lot of details, didn't you?  [¶] [Alexandria P.] “I – she had actually brought up his [appellant's] other past case in the phone call.”

After appellant objected, the trial court ruled that Alexandria P.'s answer was “stricken as nonresponsive,” and further advised the members of the jury that they were “not to consider it for any purpose whatsoever.”   In denying appellant's motion for a mistrial, the trial court found that Alexandria P.'s statement was relatively vague and non-prejudicial.   The trial court stated:  “Her [Alexandria P.'s] comment was that [appellant's mother] talked about his other case.   That could mean a variety of things.” ⁴

Subsequently, the following exchange occurred between deputy district attorney George Castello and witness Allen Rich, a deputy sheriff.  “[Casetello:] Now, when you got back to the station, could you explain to us what happened there?  [¶] [Rich:] “Mr. Duggan was booked into the system on a parole violation.   At the completion of that, I interviewed him concerning this case.”

After appellant's counsel objected, the trial court stated:  “The answer will be stricken after he was transported to the station.   Ladies and gentlemen, you are not to consider it for any purpose.”

Later, outside the presence of the jury, Rich admitted he knew he was not supposed to mention appellant's parole status but claimed that it “slipped out” unintentionally.   Appellant renewed his motion for a mistrial.   The trial court, however, denied the motion.   In so doing, the trial court stated that “the nature of the prior has not come before the jury.   It's the fact that there is a prior incident or a parole violation, but the actual underlying conduct has not come before the jury at this point.”   The trial court also explained:  “I am going to deny the motion for a mistrial [because] I find the critical issue here to be the motive behind the stabbing itself, not who did it.   So I find the mention by Detective Rich to be not as prejudicial as in the cases where it was granted.   So I am exercising my discretion to deny the motion for a mistrial․”

The trial court gave the jury the following instruction regarding Rich's comment about appellant being on parole:  “Detective Rich was directed not to mention Mr. Duggan's parole status.   The fact that Mr. Duggan may be on parole is not evidence in this case, and I have admonished you not to consider it for any purpose.   However, you may consider Detective Rich's failure to follow the court's order in evaluating his possible motive and/or bias in this case against Mr. Duggan.”

Appellant argues that the trial court's denial of his second motion for mistrial was prejudicial error.   He further contends that Alexandria P.'s reference to appellant's “past case” was relevant to his second motion because the cumulative effect of Alexandria P.'s statement and Rich's statement unfairly prejudiced appellant.

A trial court should grant a motion for mistrial only when a party's chances of receiving a fair trial have been “irreparably damaged.”  (People v. Williams (2006) 40 Cal.4th 287, 323.)  “ ‘ “The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.”  ‘ “ (People v. Delgado (1993) 5 Cal.4th 312, 328.)   Further, a jury is presumed to follow a trial court's instruction to disregard improper evidence.  (People v. Tafoya (2007) 42 Cal.4th 147, 161, fn. 4.)

Turning to the facts of this case, we agree with the trial court that the references to appellant's “past case” and “parole violation” by Alexandria P. and Rich were vague, and did not indicate the nature or seriousness of appellant's prior offense.   Further, the trial court immediately struck the improper statements by Alexandria P. and Rich and later gave the jury a strong mitigating instruction regarding Rich's statement, which we assume the jury followed.   It is also worth noting that there is no evidence of prosecutorial misconduct.

Moreover, the evidence of appellant's guilt is overwhelming.   Appellant's self-defense argument was severely undermined by the medical evidence that “Mike” Y. was stabbed in the back several times, by the fact that appellant sustained no injuries from a knife, and by a lack of collaborating testimony or physical evidence.   Further, appellant's denial of using the terms, “White power” and “gook” was contradicted by numerous witnesses, including Alexandria P., whom he described as “kind of like my little sister.”   Finally, appellant's conduct after the incident showed a consciousness of guilt.   The People established through the testimony of Clinton S., appellant's “fresh-cut,” that appellant tried to hide his knife and planned on fleeing the United States.

In light of all of these circumstances, we hold that the trial court did not abuse its discretion in denying appellant's motion for mistrial.

3. The Trial Court Did Not Properly Instruct the Jury Regarding the Hate Crime Enhancement

Under the Penal Code, a sentence enhancement can be imposed on a person who commits an offense that is a hate crime.   A “hate crime” is defined as “a criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim:  [¶] ․ [¶] (3) Nationality.  [¶] (4) Race or ethnicity ․“ (§ 422.55, subd. (a).)

Section 422.75 provides in relevant part:  “(a) ․ a person who commits a felony that is a hate crime or attempts to commit a felony that is a hate crime, shall receive an additional term of one, two, or three years in the state prison, at the court's discretion. [¶] (b) Except in the case of a person punished under ․ subdivision (a) of this section, any person who commits a felony that is a hate crime, or attempts to commit a felony that is a hate crime, and who voluntarily acted in concert with another person, either personally or by aiding and abetting another person, shall receive an additional two, three, or four years in the state prison, at the court's discretion.”  (Italics added).

Appellant was charged with committing a hate crime in violation of section 422.75, subdivision (b).  The jury instruction regarding the hate crime allegation, however, contained no mention of the element of voluntarily acting in concert with another person.   As a result, the jury was not asked to find—and thus did not find—that appellant committed a hate crime in concert with another person.   Accordingly, the trial court's sentence enhancement of the low term of two years pursuant to section 422.75, subdivision (b) was erroneous and must be vacated.

The People argue that the case should be remanded for resentencing pursuant to section 422.75, subdivision (a).   Appellant contends that the sentence enhancement should be modified to the one-year low term of section 422.75, subdivision (a).   We agree with appellant.

The hate crime jury instruction by the trial court properly advised the jury regarding a sentence enhancement pursuant to section 422.75, subdivision (a), which relates to committing a hate crime without acting in concert with another person.   After being given this instruction, the jury found that the allegation that appellant committed a hate crime was true.   The trial court then ruled that appellant should be given the low term for committing a hate crime because in its view, while there was evidence supporting the hate crime allegation, the victim's nationality, race, or ethnicity was not the “instigating factor” in the underlying crime.   This ruling was well within the trial court's discretion.

There is no reason to believe that the trial court's decision of imposing the low term for a hate crime sentence enhancement would be different if the trial court imposed the enhancement pursuant to section 422.75, subdivision (a) rather than section 422.75, subdivision (b).  We therefore modify the judgment so that it imposes the low term sentence enhancement of one year pursuant to section 422.75, subdivision (a), making the total sentence term 21 years.

4. A Conviction of Involuntary Manslaughter Is Not Necessarily Inconsistent With a Hate Crime Sentence Enhancement

Appellant contends that because he was convicted of attempted voluntary manslaughter instead of attempted murder, there was no substantial evidence supporting the hate crime enhancement.   In essence, appellant argues a finding that appellant was guilty of attempted voluntary manslaughter is necessarily inconsistent with a finding that he was guilty of a hate crime.   We reject this argument.

“Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” (§ 187, subd. (a).)  A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of voluntary manslaughter. (§ 192;  People v. Moye (2009) 47 Cal.4th 537, 549 (Moye ).)

There are two forms of voluntary manslaughter.   The first is when the defendant unlawfully kills a human being “upon a sudden quarrel or heat of passion.” (§ 192, subd. (a).)  “A heat of passion theory of manslaughter has both an objective and a subjective component.”  (Moye, supra, 47 Cal.4th at p. 549.)   The objective element is that the accused's heat of passion must be due to provocation that would cause an ordinary person to act rashly or without due deliberation and reflection.  (Id. at p. 550).  “To satisfy the subjective element of this form of voluntary manslaughter, the accused must be shown to have killed while under ‘the actual influence of a strong passion’ induced by such provocation.”  (Ibid.).

The other type of involuntary manslaughter is imperfect, or unreasonable, self-defense.   If the accused has the unreasonable but good faith belief in having to act in self-defense when he unlawfully killed another human being, he is guilty of involuntary manslaughter, not murder.  (Moye, supra, 47 Cal.4th at p. 549.)

As stated, a hate crime means that a criminal act was committed “in whole or in part because of” certain characteristics of a victim. (§ 422.55, subd. (a).)  “ ‘In whole or in part because of’ means that the bias motivation must be a cause in fact of the offense, whether or not other causes also exist.   When multiple concurrent motives exist, the prohibited bias must be a substantial factor in bringing about the particular result.   There is no requirement that the bias be a main factor, or that the crime would not have been committed but for the actual or perceived characteristic.” (§ 422.56, subd. (d).)

We now turn to the facts of this case.   Because the jury in this case was instructed regarding both heat of passion and imperfect self-defense voluntary manslaughter, we can assume that the jury found that appellant was guilty of attempted voluntary manslaughter under one of those two theories.   Likewise, because the jury found the hate crime allegation was true, we assume that it found that appellant was motivated to stab “Mike” Y., at least in part, because of his race, nationality or ethnicity.   Contrary to appellant's contention, however, the jury's findings are not mutually incompatible.

The jury could have found that a reasonable, ordinary person in appellant's shoes could have acted rashly and without reflection due to “Mike” Y.'s provocation.   Appellant was involved in a physical fight in front of one of his “fresh-cuts.”   According to “Mike” Y., “Mike” Y. was “showing off” to his friends after he punched appellant, knocking him to the ground.   At the same time, the jury could have found that appellant was further enraged because the person who was beating him in the fight was an Asian—a member of a group appellant thought was inferior.   Accordingly, there is nothing inconsistent about a finding that appellant acted upon a sudden quarrel or heat of passion and that appellant was motivated, in part, by his hatred of Asians.

Similarly, the jury could have found that appellant had an unreasonable but good faith belief that “Mike” Y. was attempting to kill him, and at the same time was motivated to stab “Mike” Y., in part, because “Mike” Y. was an Asian.   In other words, the jury could have found that appellant had “multiple concurrent motives” to stab “Mike” Y., as contemplated by section 422.56, subdivision (d).

We conclude that there is nothing mutually incompatible about a finding that appellant is guilty of attempted voluntary manslaughter and a finding that appellant committed a hate crime.

DISPOSITION

The judgment is modified by vacating appellant's two-year sentence on a section 422.75, subdivision (b) enhancement and by imposing a one-year section 422.75, subdivision (a) enhancement and, as modified, the judgment is affirmed.   The trial court is directed to forward to the Department of Corrections an amended abstract of judgment reflecting the above modification.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Except as otherwise indicated, all future statutory references are to the Penal Code..  FN1. Except as otherwise indicated, all future statutory references are to the Penal Code.

FN2. The trial court has discretion to impose an additional sentence of 2, 3 or 4 years for violation of this statute. (§ 422.75, subd. (b).).  FN2. The trial court has discretion to impose an additional sentence of 2, 3 or 4 years for violation of this statute. (§ 422.75, subd. (b).)

FN3. Apart from Amer's inadmissible statements to the trial court, there is nothing in the record indicating that Kody R. had been subpoenaed or that if called to testify, Kody R. would have indeed asserted the privilege.   There is also nothing in the record indicating that appellant attempted to enforce the alleged subpoena.   It is unclear from the record whether appellant did not attempt to enforce the alleged subpoena for tactical reasons, or whether appellant did not do so because his counsel believed, rightly or wrongly, that he could not compel Kody R. to testify..  FN3. Apart from Amer's inadmissible statements to the trial court, there is nothing in the record indicating that Kody R. had been subpoenaed or that if called to testify, Kody R. would have indeed asserted the privilege.   There is also nothing in the record indicating that appellant attempted to enforce the alleged subpoena.   It is unclear from the record whether appellant did not attempt to enforce the alleged subpoena for tactical reasons, or whether appellant did not do so because his counsel believed, rightly or wrongly, that he could not compel Kody R. to testify.

FN4. When the trial court denied appellant's second motion for mistrial, it again explained why it denied appellant's first motion:  “With regard to Ms. [P.], ․ I believe her mention was that she had discussed with Mr. Duggan [sic ] his [sic ] prior case.   Now, to me that is actually fairly innocuous.   A case can be a misdemeanor, it can be a juvenile matter, it can be a traffic ticket.   So I am not as concerned with that, and I don't find that actually to be prejudicial at all, which is why I denied the motion for a mistrial with regard to that.”.  FN4. When the trial court denied appellant's second motion for mistrial, it again explained why it denied appellant's first motion:  “With regard to Ms. [P.], ․ I believe her mention was that she had discussed with Mr. Duggan [sic ] his [sic ] prior case.   Now, to me that is actually fairly innocuous.   A case can be a misdemeanor, it can be a juvenile matter, it can be a traffic ticket.   So I am not as concerned with that, and I don't find that actually to be prejudicial at all, which is why I denied the motion for a mistrial with regard to that.”

CROSKEY, Acting P. J. ALDRICH, J.