Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F02074
HULL, J.A jury convicted defendant H.P. Chappell of one count of lewd and lascivious conduct on a child under the age of 14 (Pen. Code, § 288, subd. (a); unspecified section references that follow are to the Penal Code), and the trial court sentenced him to a prison term of six years.
On appeal, defendant contends that (1) the court erred in granting parties an additional peremptory challenge, (2) evidence was erroneously admitted and excluded, (3) the prosecutor engaged in misconduct, and (4) cumulative error compels reversal. We disagree with defendant’s claims, and therefore affirm the judgment.
Facts and Proceedings
Defendant lived in Elk Grove with two of his children. U.C., another daughter, lived with her mother in Stockton but often spent time with defendant and had a good relationship with him.
In June 2003, U.C. spent a few days at defendant’s house. U.C. was 12 years old at the time. One night, as U.C. and defendant watched television together, defendant stroked U.C.’s thigh. He told U.C. that she had nice legs and that her skin was smooth. U.C. estimated that this stroking lasted about eight minutes.
The next night, defendant invited U.C. to spend the night in his bed, something his children had done when they were younger. U.C. wore a tank top, underpants, and shorts. During some horseplay and tickling, defendant touched U.C.’s breast and said, “Oops. I wasn’t suppose to do that.”
After some more tickling, U.C. tried to go to sleep. She felt defendant trying to force his fingers into her vagina. She told him, “I’m trying to go to sleep, man.” She felt pressure on her vagina a second time and yelled, “What the fuck are you doing?” Defendant said, “You’ve had sex before, huh?”
U.C. went to her older sister’s bedroom and climbed into bed with her, something she had never done before. Her sister told an investigator that U.C. seemed traumatized. U.C. told her sister what had happened, and her sister informed a high school counselor even though she knew that the counselor would have to report her father.
When U.C. returned to her mother’s house, she told her mother what had happened. She was worried that telling her mother would put an end to visits with her father, but U.C. was also worried that something worse would happen in the future. Her mother was very upset, and called authorities.
As described later in this opinion, investigators interviewed defendant. Defendant said he had accidentally touched the victim’s vagina when they were playing on the bed, but he was unsure whether his fingers had actually penetrated. He gave contradictory statements about whether he touched the victim’s skin or touched her through her clothes.
An information charged defendant with one count of lewd and lascivious conduct. (§ 288, subd. (a).) When the case was first tried, the jury was unable to reach a verdict; this appeal stems from a retrial.
At the second trial, the victim described what occurred. Defendant argued that if any touching occurred, it was accidental and occurred during horseplay. He challenged the victim’s credibility and suggested she made up this story because she was angry with him.
The jury convicted defendant as charged, and the trial court sentenced defendant to a prison term of six years. This appeal followed.
Discussion
I
Peremptory Challenges
After the prosecutor had exercised all 10 of her peremptory challenges but before the jury was sworn, a prospective juror, K.B., informed the court that she had once been accused of molesting a child. K.B. had not revealed this information during voir dire, nor had she previously indicated that she wanted to talk to the judge in private as the court had invited.
The trial court concluded that K.B. had given responses during voir dire that were not complete and truthful, and that K.B.’s failure to make a timely disclosure impacted the prosecutor’s ability to select a fair juror. As a remedy, the court granted both sides an extra peremptory challenge over defendant’s objection. The prosecutor then used this challenge to excuse K.B.
On appeal, defendant contends that the trial court abused its discretion and violated defendant’s constitutional right to a fair trial by granting the prosecutor an extra peremptory challenge. There was no error.
Defendant’s abuse-of-discretion claim is predicated on the belief that there is no evidence to support the court’s determination that K.B. failed to make a timely and complete disclosure. According to defendant, K.B. took the first available opportunity to inform the court privately of her information. Defendant argues that although the court told the jury panel that they could discuss sensitive information outside the presence of other prospective jurors, the panel members were still required to make a public acknowledgement of sorts by raising their hands in response to a particular question and only then asking to speak to the court privately. Defendant contends that this procedure was embarrassing to prospective jurors and understandably led K.B. not to say anything until she could approach the court privately.
Abundant evidence supports the trial court’s determinations. The jury panel was sworn in and promised to answer all questions truthfully and accurately. The court told the prospective jurors, “Now, some of the questions you may be asked may call [for] information you’re sensitive about. If there’s any question you feel calls for an answer that you are particularly sensitive about, please advise me, and we can take up that question outside the presence of the other prospective jurors.”
During voir dire, the court asked a number of questions, including “Is there anyone here because of the nature of this charge, believes they could not be a fair juror in this case?” and “Have any of you or anyone close to you ever been accused of a similar type crime as that which is charged in this case?” Defense counsel asked whether anyone had “ever been accused of a crime.” The prosecutor asked whether any of the prospective jurors were wondering whether they should mention something, and asked whether there was anyone who felt they could say something in private.
Some of these questions were repeated as new prospective jurors replaced those who had been excused. Defense counsel asked whether any of these people knew someone who had been falsely accused of a crime.
When K.B. was seated as a prospective juror, the court asked the same questions it had asked previously, including whether any of the potential jurors or someone close to them had ever been accused of a similar crime. No one responded.
In response to individual questioning, K.B. said her boyfriend had been murdered and that the perpetrator had been convicted. She did not think this experience would affect her ability to be a fair juror in this case.
The prosecutor asked K.B. about legal problems her brother had encountered, prefacing her question by saying, “[I]f you’re not comfortable talking about that in court . . . .” K.B. responded that she was fine doing so, and disclosed that her brother had been arrested for a DUI years before. The prosecutor concluded her questioning of the potential jurors by again asking, “Is there anybody who’s sitting here with the thought maybe I should say, maybe I shouldn’t, something that’s on anybody’s mind?” There was no response.
It was at that point that the prosecutor exercised her last peremptory challenges, passing K.B. as an acceptable juror.
During the next break, K.B. informed the court that her boyfriend’s ex-wife had accused her of touching their daughter inappropriately but later recanted. K.B. had not disclosed this information during voir dire. The trial court asked K.B. whether there was anything in this experience that would affect her ability to be fair. She responded, “Actually it opened my eyes to a lot.”
As this detailed recitation makes clear, K.B. had numerous opportunities to indicate to the court that there was an issue that she wanted to discuss privately. She did not do so. Defendant insists that K.B. thought she was raising her concerns in a timely manner, but K.B.’s beliefs are beside the point. The court was confronted with a situation in which a juror concealed information that should have been disclosed earlier.
Defendant also suggests that this situation was partially of the court’s own making because it refused to change voir dire procedures despite counsel’s warnings. Defendant asserts that it is embarrassing to require a potential juror to raise his or her hand in public in response to a question in order to then ask to speak privately. Actually, the argument defendant raised in the trial court was much more limited in scope. Counsel expressed concerns only as to whether any potential juror would reveal publicly that he or she had been the victim of a similar crime; he did not raise similar concern about a reluctance to disclose whether anyone had been accused of such crimes.
The trial court did not abuse its discretion in determining that K.B. failed to disclose relevant information in a timely manner. Abundant evidence supports that conclusion.
In the second prong of his attack, defendant asserts that the trial court violated his right to a fair jury by giving each side an extra peremptory challenge. We do not agree.
Peremptory challenges are critical safeguards for impaneling a fair and impartial jury. A juror’s failure to disclose relevant information deprives both the defendant and the prosecution of the right to select an unbiased jury, thereby eroding the integrity of the trial process. (In re Hitchings (1993) 6 Cal.4th 97, 112.) “[F]alse answers or concealment on voir dire . . . eviscerate a party’s statutory right to exercise a peremptory challenge and remove a prospective juror the party believes cannot be fair and impartial. . . . ‘[J]uror concealment, regardless whether intentional, to questions bearing a substantial likelihood of uncovering a strong potential of juror bias, undermines the peremptory challenge process just as effectively as improper judicial restrictions upon the exercise of voir dire by trial counsel seeking knowledge to intelligently exercise peremptory challenges.’ [Citations.] ‘The denial of the right to reasonably exercise a peremptory challenge, be it by either the trial court or a juror through concealing material facts is not a mere matter of procedure, but the deprivation of an absolute and substantial right historically designed as one of the chief safeguards of a defendant against an unlawful conviction.’ [Citations.]” (Id. at pp. 111-112.)
Here, the trial court exercised its discretion to award an additional peremptory challenge to insure a fair and impartial jury, a step necessitated by K.B.’s failure to disclose highly relevant information during voir dire.
We note that the question before us is not whether the prosecutor was entitled to an additional peremptory challenge. Code of Civil Procedure section 231, subdivision (a) explicitly provides that in criminal cases of this type “the defendant is entitled to 10 and the state to 10 peremptory challenges.” The question here is whether the court erred in exercising its discretion and awarding an eleventh peremptory to each side. The fact that each party is entitled to only 10 challenges does not mean that a court cannot grant additional peremptory challenges in the appropriate circumstances.
Numerous cases describe such situations. For example, in People v. Terry (1994) 30 Cal.App.4th 97, a defendant had to exhaust his peremptory challenges when the court erroneously failed to honor his challenge for cause. (Id. at p. 103.) The court held that in order to demonstrate prejudice in this situation, a defendant must show that he was “deprived of the use of a peremptory challenge. This requires that the challenger show a use of all peremptory challenges and that he indicate dissatisfaction with the jury, suggesting that he would have benefited by the availability of at least one more peremptory challenge. [Citations.]” (Id. at p. 104.)
The court added: “Had the defendant indicated his dissatisfaction with the lack of additional peremptory challenges the court might well have granted additional peremptories. Although no statutory provision exists for the granting of additional peremptory challenges in criminal trials, the potential seems to be well established[.]” (People v. Terry, supra, 30 Cal.App.4th at p. 104.)
In fact, in People v. Bittaker (1989) 48 Cal.3d 1046, 1088, the California Supreme Court noted that “an erroneous denial of a challenge for cause can be cured by giving the defendant an additional peremptory challenge.” This conclusion was reaffirmed in People v. Yeoman (2003) 31 Cal.4th 93, 118-119.
Courts have utilized an award of additional peremptories to address other problems as well. In People v. Jackson (1996) 13 Cal.4th 1164, the Supreme Court described the efforts of Riverside County to address problems of underrepresentation in jury venires. (Id. at pp. 1192-1193.) The measures adopted by the county included permitting additional peremptory challenges. (Id. at p. 1193.) The Supreme Court described these procedures in a matter-of-fact manner, without any hint of concern or surprise. (Ibid.)
Although no explicit statutory authority for the grant of additional peremptories exists, Code of Civil Procedure section 231, subdivision (d) anticipates that good cause may require deviation from the normal jury selection process. This statute outlines the process for exercising peremptory challenges and then provides, “When each side passes consecutively, the jury shall then be sworn, unless the court, for good cause, shall otherwise order.” (Italics added; see also Code Civ. Proc. § 231, subd. (e) [“If all the parties on both sides pass consecutively, the jury shall then be sworn, unless the court, for good cause, shall otherwise order”].) “The trial court’s exercise of that discretion will not be set aside absent a clear showing of abuse.” (People v. Niles (1991) 233 Cal.App.3d 315, 321 [construing the identical language of predecessor Penal Code provisions].)
Here, the court had good cause for awarding an additional peremptory: a potential juror had not disclosed relevant information during voir dire. Under these circumstances, there was no violation of defendant’s constitutional right to a fair trial.
II
Evidentiary Challenges
Defendant contends that the trial court erred in (1) excluding evidence relating to the victim’s past conduct, (2) admitting statements by defendant and (3) admitting testimony by an expert witness. We address each claim in turn.
A. Evidence of the Victim’s Conduct
At trial, defendant sought to introduce evidence that the victim had engaged in acts of oral copulation at school in exchange for money. Defendant asserted that this evidence was relevant to impeach the victim’s credibility for two reasons. First, he argued that prostitution-related activity was admissible as evidence of moral turpitude. Second, he asserted that given the testimony of the victim’s mother that these acts occurred, the victim’s denial was inherently unbelievable and therefore reflected on the victim’s credibility as a witness.
The prosecutor countered that it was unclear exactly what happened in these incidents or when they occurred, and that admission of this evidence would result in a trial within a trial. She emphasized that the central issue was defendant’s intent when he touched the victim, and that the proffered evidence was of little probative value on this point.
The trial court agreed that acts of prostitution demonstrated moral turpitude, but excluded this evidence under Evidence Code section 352. The court concluded that the allegations were “substantially more prejudicial than they are probative. It would be time consuming. It would result in a trial within a trial, and it will be confusing to the jury, and it is not particularly probative on what the defense seeks to present by way of a defense.”
Defendant challenges this ruling, contending the court abused its discretion under Evidence Code section 352. He also contends that the exclusion of this evidence violated defendant’s constitutional rights to due process, fair trial, and confrontation. We disagree.
“Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
There was no such abuse of discretion here. Because the facts surrounding the incidents were unclear, the court acted well within its discretion in concluding that this evidence could confuse the jury and would require a time-consuming detour in the trial without adding significant probative value. Moreover, this evidence was cumulative, given that defendant had challenged the victim’s credibility and witnesses testified that the victim had lied on other occasions.
Given these circumstances, the trial court acted well within its discretion in excluding the proffered evidence under Evidence Code section 352.
Nor did the court’s decision infringe on defendant’s constitutional rights. A trial court may invoke Evidence Code section 352 to exclude marginally relevant evidence that would entail the undue consumption of time without contravening a defendant’s right to confrontation and cross-examination. (People v. Brown (2003) 31 Cal.4th 518, 545; People v. Morse (1992) 2 Cal.App.4th 620, 641-642.) “Although a criminal defendant is constitutionally entitled to present all relevant evidence of significant probative value in his favor, this does not mean the court must allow an unlimited inquiry into collateral matters; the proffered evidence must have more than slight relevancy. (People v. Marshall (1996) 13 Cal.4th 799, 836.) “‘[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on . . . cross-examination based on concerns about, among other things, . . . prejudice, confusion of the issues, . . . or interrogation that is repetitive or only marginally relevant . . . “the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent the defense might wish.”’ [Citations.]” (People v. Harris (1989) 47 Cal.3d 1047, 1091.)
Moreover, “if the exculpatory value of the excluded evidence is tangential, or cumulative of other evidence admitted at trial, exclusion of the evidence does not deny the accused due process of law.” (People v. Smithey (1999) 20 Cal.4th 936, 996.)
Given the marginal probative value of the proffered evidence and the undue amount of time it would have consumed at trial, the court’s determination to exclude this evidence did not violate defendant’s rights to due process, fair trial, or confrontation.
B. Statements by Defendant
During his interview with a detective, defendant said that he had been tickling his daughter when she started to roll off the bed. He accidentally touched the victim’s vagina when trying to grab her. When asked, “Do you know if your fingers went inside her at all?” defendant replied, “No. I know it didn’t. But I know it was in a soft place where it shouldn’t have been.”
The detective staged a sham DNA test and took a swab from defendant’s mouth, telling defendant that results would show that his DNA matched skin cell DNA found in the victim’s vagina. In reality, no DNA evidence had been found. Later in the interview, the detective told defendant that the test results were back and that she knew “your fingers went inside your daughter.” Defendant responded, “They didn’t purposely.”
The detective repeated, “Our tests show that there is your skin cells inside of your daughter’s . . . vagina.” Defendant said he did not act deliberately but knew he had touched the victim inappropriately. He said he did not know “if it went in or out.” He reiterated, “I just know my hand touched her unappropriately [sic]. I don’t know if it was inside of her or on the--or on her underwear, because I don’t know.”
He said again, “I just know I touched her unappropriate [sic]. I know it was in the wrong place. I know it was soft.” In response to the detective’s question, he said the vagina is “always called the soft place there. That’s what’s known as a soft place.” He knew he was “in the wrong place” because it was “soft.”
The detective asked again how defendant could “explain how your skin cells got inside of [the victim’s] vagina.” Defendant responded that his hand slid when he tried to pull U.C. back, adding, “I didn’t know if she had on underwear or what, but I just know that she was wet there, you know.” He then said, “Well, not wet, but I mean it was, you know, soft,” and repeated, “Not wet. But I can’t say it was wet, but it was soft, and I know it was wrong to think about (unintelligible) like that.”
The detective also told defendant, “The only chance you kind of get is to kind of talk to me about it. You don’t get another chance, because if it--if it goes anywhere, this is the last time you can kind of get to talk to anybody about what happened.”
Defendant contends that the detective’s deceptive conduct rendered his statements involuntary, and that the trial court therefore erred in allowing them into evidence. We disagree.
Defendant’s failure to raise this claim in the trial court precludes appellate review. (In re Seaton (2004) 34 Cal.4th 193, 198.) Recognizing this possibility, defendant alternatively frames his contention as one of ineffective assistance of counsel. However, counsel cannot be faulted for failing to raise a meritless claim. Contrary to defendant’s assertion, defendant’s statements were voluntary.
“A statement is involuntary if it is not the product of ‘“a rational intellect and free will.”’ [Citation.] The test for determining whether a confession is voluntary is whether the defendant’s ‘will was overborne at the time he confessed.’ [Citation.] ‘“The question posed by the due process clause in cases of claimed psychological coercion is whether the influence brought to bear upon the accused were ‘such as to overbear petitioner’s will to resist and bring about confessions not freely self-determined.’ [Citation.]” [Citation.] In determining whether or not an accused’s will was overborne, “an examination must be made of ‘all the surrounding circumstances--both the characteristics of the accused and the details of the interrogation.’ [Citation.]” [Citation.]’ [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 404.)
“Police trickery that occurs in the process of a criminal interrogation does not, by itself, render a confession involuntary and violate the state or federal due process clause. [Citation.] Why? Because subterfuge is not necessarily coercive in nature. [Citation.] And unless the police engage in conduct which coerces a suspect into confessing, no finding of involuntariness can be made. [Citations.] [¶] So long as a police officer’s misrepresentations or omissions are not of a kind likely to produce a false confession, confessions prompted by deception are admissible in evidence. [Citations.] Police officers are thus at liberty to utilize deceptive stratagems to trick a guilty person into confessing. The cases from California and federal courts validating such tactics are legion.” (People v. Chutan (1999) 72 Cal.App.4th 1276, 1280.)
For example, in People v. Parrison (1982) 137 Cal.App.3d 529, 537, police falsely told the defendant that a gun residue test produced a positive result. In People v. Watkins (1970) 6 Cal.App.3d 119, 124-125, police told the suspect that his fingerprints had been found on a getaway car; no such prints had been obtained. In Amaya-Ruiz v. Stewart (9th Cir. 1997) 121 F.3d 486, 495, the defendant was falsely told that he had been identified by an eyewitness.
Here, the interviewing detective told defendant that he was not under arrest, was free to leave at any time, and did not have to answer any questions. The detective added that “the door’s unlocked,” and she reiterated that defendant was not under arrest. Defendant responded that he understood.
Defendant insisted that any touching of the victim’s vagina was accidental and had occurred during horseplay. He could not remember if he touched the victim over her pants or on her skin, but later denied touching her skin. He knew that his finger did not penetrate, but knew it touched “a soft place where it shouldn’t have been.” He later said he could not say whether his finger “went inside of her.”
After the detective announced the “results” from the fake DNA test, defendant said he did not purposely put his finger in the victim’s vagina. He said he did not know if he had touched her inside or outside her vagina, but knew the touching was inappropriate and in the wrong place.
Defendant insisted from the beginning that any touching was accidental, and he held to that story throughout the questioning. The deceptions utilized by the detectives in this case were not likely to produce a false confession. Consequently, defendant’s statements must be deemed to have been voluntarily made, and the trial court did not err in admitting them into evidence.
C. Expert Testimony
At trial, a nurse testified that she examined the victim and that the examination results were normal. In an effort to demonstrate to the jury that sexual abuse does not necessarily result in physical injury, the prosecutor asked the witness whether she knew of cases where “a girl has been actually penetrated and had a normal exam.” The witness replied that she did, and explained: “There was one young girl who was actually nine, and the Sheriff’s Department actually confiscated photographs that showed her--appeared to be her sitting on her father’s erect penis, and she had an absolutely normal exam even right after--I saw her right after she had come from that home. And I’ve also seen teenagers who are pregnant that have normal exams.”
In response to further questions, the nurse testified that research demonstrated that “95 percent of kids have normal exams after something happened to them.”
On appeal, defendant contends that the description of the nine-year old girl abused by her father was “highly inflammatory and completely unnecessary,” and therefore his attorney was ineffective in failing to seek its exclusion before trial or objecting when this testimony was offered. We do not agree.
A defendant claiming ineffective assistance of counsel must establish not only that his or her attorney failed to act as a reasonable advocate, but also that “there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant.” (People v. Mitcham (1992) 1 Cal.4th 1027, 1058.) Even if we assume for purposes of argument that an objection under Evidence Code section 352 might have been successful, defendant cannot demonstrate prejudice.
Defendant asserts that the nurse’s testimony “would necessarily have a highly inflammatory impact on normal adult human emotions, casting an extremely negative reflection on [defendant]. Jurors could not help but think that the nurse’s description could possibly portray [defendant’s] future conduct if not put in prison.”
We cannot join in such speculation. While defendant is correct that this testimony might have been stressful and difficult for jurors to hear, it was unrelated to defendant. The challenged evidence involved different conduct and different people, and did not implicate defendant in the slightest. It did, however, illustrate the witness’s point that sexual abuse does not always leave physical evidence. We assume that the jury based its verdict on the evidence presented as instructed by the trial court, and did not engage in the unfounded conjecture imagined by defendant. (See People v. Delgado (1993) 5 Cal.4th 312, 331.)
III
Prosecutorial Misconduct
Defendant contends that the prosecutor engaged in misconduct in closing argument. We disagree.
Initially, we note that defendant did not object to the prosecutor’s argument, nor did he seek a curative admonition at trial. He has therefore forfeited any claim of error. (People v. Crew (2003) 31 Cal.4th 822, 839.)
Anticipating such a conclusion, defendant asserts his attorney was ineffective in failing to call this misconduct to the court’s attention in the requisite manner. He asserts objections should have been raised at two points during the prosecutor’s closing argument.
The first instance of alleged misconduct came during the prosecutor’s discussion of the victim’s credibility. She told the jury, “And what makes [the victim] more credible is that telling her mother was not something that was easy for her to do. You saw her mother in this courtroom. You saw how upset she was.” The prosecutor later added, “There is no mistaking that [the victim’s mother] is angry.”
Defendant contends that these comments misled the jury because the emotional state of the victim’s mother “was most likely due not to a single event more than two years in the past but to losing custody of [the victim] just 24 hours before appearing in court.” Although no evidence had been presented about any loss of custody, the victim was apparently in juvenile detention at the time of trial.
A prosecutor is given wide latitude to comment on the evidence and the inferences that can be drawn from it. (People v. Hill (1998) 17 Cal.4th 800, 819.)
Here, the victim described her mother as very angry and upset when she learned what defendant had done. The victim’s mother testified that she prayed her children never visited defendant again. The prosecutor did nothing improper in commenting on this anger in her closing argument. Defendant’s assertion that the witness’s demeanor when testifying was predicated on other events is entirely speculative and cannot form the basis for a successful claim of ineffective assistance of counsel.
The second instance of alleged misconduct is no more successful than the first. This claim focuses on the prosecutor’s comments about the victim’s credibility.
One of the victim’s aunts described U.C. as a habitual liar, but offered no specific examples of this behavior. Another aunt described two incidents from several years earlier in which the victim had lied. In one incident, U.C. denied taking a video game; in another, she denied throwing rocks at a neighbor’s dog despite having been seen doing so.
In commenting on this evidence, the prosecutor argued to the jury, “But let’s go back and talk about what the defense wants you to believe. [The victim] lies. Well, you heard from . . . defendant’s sisters, [who] told you what we all know of children. That children do lie. And the examples that were given were she took a video game, she threw some rocks at a dog. And then, when confronted, she denied it. [¶] When [the victim’s mother] was asked she said, yes, [the victim] has told white lies. Nothing like this.”
The prosecutor pointed out that defendant’s sisters said they did not see the victim often, and were testifying because they cared about defendant and wanted to help him. She continued: “But what they told you tells you nothing because what they described is a child throwing rocks. Children are children. And, [the victim], growing up from the time she’s born until she’s 13 years old has lied. Big deal.”
On appeal, defendant contends that his attorney should have objected to these statements. Again pointing to excluded evidence that the victim engaged in oral sex for money and lied to her mother about it, defendant asserts: “While throwing rocks and lying about it may be typical kid behavior, engaging in a childhood act of prostitution, and impliedly terming her mother a liar for relating the incident, was not. The prosecutor[’s] portrayal to the jury of [the victim’s] credibility as normal childhood behavior was inaccurate and in bad faith.”
We disagree. As previously discussed, the court properly excluded the evidence upon which defendant predicates his argument. The prosecutor’s remarks to the jury appropriately responded to evidence that had been presented at trial and constituted fair comment. There was no basis for objection and therefore no basis for an ineffective assistance of counsel claim.
IV
Cumulative Error
Defendant contends that the cumulative effect of the alleged errors compels reversal. Our conclusion that no error occurred disposes of defendant’s claim: there is no cumulative effect to be assessed.
Disposition
The judgment is affirmed.
We concur: SCOTLAND, P.J. ROBIE, J.