Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Napa County Super. Ct. No. CR 122583
Sepulveda, J.
A jury convicted defendant Michael Scott Posey of murdering his estranged wife by shooting her in the head. (Pen. Code, §§ 187, 12022.5, subd. (a).) Defendant appeals his conviction, and presents numerous claims on appeal. Most of the claims assert that evidence was wrongly admitted. Defendant contends that the trial court erred in admitting evidence relating to: (1) prior instances of defendant’s misconduct indicating a character for violence; (2) defendant’s threats to kill his estranged wife; (3) spousal rape; (4) defendant’s statement that he would kill a wife who made divorce difficult and costly; and (5) expert opinion testimony that defendant’s account of an accidental shooting is inconsistent with the physical evidence. Defendant also asserts prosecutorial misconduct and ineffective assistance of defense counsel. We reject these claims and affirm the judgment.
Defendant has also filed a petition for a writ of habeas corpus. That petition will be decided by separate order.
I. FACTS
Defendant’s estranged wife, Elizabeth Posey (Liz), was shot to death when she went to defendant’s house to drop off the couple’s children for a weekend visit. She died from a contact shot to the head: the muzzle of a gun had been pressed under her chin, against the skin. Defendant told the police the gun discharged accidentally during a struggle to disarm Liz after she tried to kill him because he reneged on a promise to pay a $2,000 expense.
Elizabeth Posey was commonly referred to by her nickname, Liz. We use that name here.
The prosecution maintained that defendant planned to murder Liz when she came to the house and did so by holding her down and shooting her in the head. The prosecution presented numerous police officers and forensic scientists who testified that defendant’s account of the shooting was inconsistent with the physical evidence. The prosecution also presented evidence that Liz was too frightened and intimidated by defendant to attack him as defendant claimed and that defendant, not Liz, had a reputation for violent behavior. We summarize the evidence here, and provide a fuller account later in our discussion of defendant’s challenges on appeal.
A. Portrait of a marriage
Defendant and his wife were married in 1992, and separated in 1995. It was defendant’s first marriage at age 40. Liz was 16 years younger than defendant, and the mother of two children from a previous marriage when she married defendant. Liz had two additional children with defendant.
The marriage was tumultuous. A neighbor heard loud arguments between them, and both defendant and Liz telephoned the police on different occasions to accuse the other of domestic violence. Defendant telephoned the police three or five times. One of those calls resulted in Liz’s arrest: she had thrown a child’s plastic “sippy cup” at defendant, and it struck his knee. Defendant claimed there had been more serious assaults, but the police never received any report of them. There was evidence of violence against Liz. Liz called the police to report domestic violence, and told a friend that defendant once forced Liz to have sex with him. One witness reported seeing defendant push and shove his wife, and another saw a large bruise on Liz’s leg.
Several witnesses testified about defendant’s hostile and bullying treatment of his wife. Defendant was a dentist, and his wife worked a short time in his dental office. Defendant’s office manager testified about an incident when she was in the back office with defendant when Liz came to ask a question. Defendant told his wife to “shut up,” and when she protested that she did not want to shut up, he yelled at her to “shut the fuck up.” Liz started crying, and stayed alone in the back room upset and crying for “an hour or more.” A dental assistant described defendant’s interactions with Liz as “toxic,” and testified that defendant was “mean” to Liz and berated her in front of staff. Another employee of defendant visited the couple at home, and described a bad relationship in which defendant yelled at Liz, was “controlling,” and treated his wife with disrespect.
Defendant and his wife were overheard at the office discussing divorce. Liz said she was thinking about filing for divorce and defendant told her that he would “make her life a living hell if she didn’t let him be the one to file for the divorce.” Defendant filed for divorce and served the papers on Liz in September 1995. Defendant was angry about the divorce, according to one of his employees.
Multiple witnesses testified that Liz feared defendant would kill her. Liz’s fear of defendant was attested to by her divorce lawyer, her mother, and six friends. Defendant’s own friend, Eric Clarke, testified at trial to a statement defendant made years earlier, about Clarke’s own divorce. When Clarke told defendant that Clarke’s wife made the divorce difficult and costly, defendant said: “[I]f someone did that to me I would kill them.”
B. Evidence of defendant’s violent acts at his dental office
Defendant’s dental staff related several instances of defendant’s violent behavior: (1) defendant tried to pull a report from his office manager’s hand and, when she resisted, he hit her on the arm; (2) defendant kicked a dental assistant on the shin because she did not give defendant a dental instrument fast enough; (3) defendant raised his hand in a threatening gesture when a dental assistant mistakenly took an x-ray with defendant in the room; (4) defendant kicked another dental assistant on the shin when she relayed a patient’s displeasure at being kept waiting; (5) defendant poked a dental assistant with a dirty dental instrument because she picked the wrong color for a patient’s tooth crown; (6) defendant slapped a patient in the face when she complained about dental pain; and (7) defendant grabbed a lab technician by the arm when she refused to assist with a dental cleaning, and blocked her exit when she quit and wanted to leave the office.
C. Events leading up to the shooting
In April 1996, defendant and his wife were separated and had been living apart for seven months. The parties agreed to child visitation and family support of $3,000 monthly but disputed property division. Liz and her divorce lawyer believed Liz had a claim to properties worth between $220,000 and $400,000, and also suspected defendant of concealing additional assets from the divorce court.
On April 5, 1996, Liz asked the court to order defendant to pay her attorney fees. When making the request, Liz’s lawyer advised the court (and defendant) that the lawyer had information that defendant was concealing assets and that a “significant investigation was warranted.” The court ordered defendant to pay $7,500 for Liz’s divorce lawyer, payable immediately. The lawyer later testified that defendant gave the lawyer “a piercing glare” and seemed angry. Defendant did not pay the court-ordered attorney fees until threatened with a contempt proceeding. A financial investigator testified at trial that defendant was, in fact, concealing assets from the divorce court.
On April 16, 1996, Liz underwent breast augmentation surgery to replace silicone breast implants from four years earlier with larger, saline implants. The surgery required cutting through Liz’s breasts and chest muscle and suturing the muscle and skin with about 40 sutures. Liz was bandaged and sent home with instructions “to be careful and quiet for about a week.” She was told to “[a]void any athletics. Any strenuous work. Heavy use of the arms. Lifting. Things like that.” Liz’s plastic surgeon testified that a patient may experience “a fair amount of pain” after surgery and that lifting “can cause more pain, and in a more serious nature could cause bleeding” and require additional surgery to remove the blood. The surgeon opined that a patient three days after the operation would suffer “significant pain” if she were in a struggle with someone and using her arms to pull back and forth and hold something to her chest.
D. The shooting
The shooting occurred on Friday, April 19, 1996, three days after Liz’s surgery. At about 2:30 p.m., Liz went to her divorce lawyer’s office to deliver documents. The documents substantiated Liz’s suspicions that defendant was concealing assets. Liz left the lawyer’s office around 2:40 p.m. in a “positive” and “cheerful” mood. She told the lawyer’s paralegal that she was going to make a short stop at defendant’s house. Defendant had custody of the children on the weekends, and Liz intended to drop them off at his house. Liz had plans for the rest of that day—she had a 3:30 p.m. appointment for a manicure and a dinner date with a new boyfriend. But Liz never left defendant’s house. She arrived around 3:00 p.m. At about 3:46 p.m., defendant telephoned 911 to say his wife had been shot. When the police arrived, defendant told them Liz had tried to kill him.
E. Defendant’s police statement following the shooting
Defendant was taken into custody and interviewed by the police for about two hours. Defendant told the police that he and Liz were separated but that the divorce was “amicable” and “very congenial.” He said Liz came to the house around 3:00 p.m. to drop off the children for the weekend. The two children were ages three years, and 20 months. Defendant said he and Liz talked for a while and then, about 15 minutes after she arrived, the couple put the children down for naps. They put the younger boy in the children’s bedroom, and the three-year old in defendant’s bedroom where he could watch a video to fall asleep.
After the children were in the bedrooms, defendant said he and his wife were in the kitchen talking about the divorce when Liz asked him for the $2,000 he had promised to pay for her breast surgery. Defendant explained that he had promised a couple of months earlier to pay for the surgery but decided to renege because family support had recently been set at $3,000 monthly. Defendant related to the police that he told Liz he would not pay for the surgery and that she should pay for it out of the $3,000 a month he was paying her. According to defendant, Liz “didn’t say a word after that. She went into the bedroom and got the gun.” Defendant had bought the gun (a Walther PPK semiautomatic handgun) years earlier, and kept it in a locked gun safe in an armoire in his bedroom. Defendant said he had taught Liz to fire the gun, and that she knew the safe combination.
Defendant said Liz returned “within seconds.” Defendant was at the sink and, upon hearing Liz return to the kitchen, turned around to see her standing about eight feet away, near the stove, pointing a gun at him. Liz’s face was emotionless. Immediately, without saying anything, Liz fired the gun. The shot went wide, and struck a cabinet. Defendant said the noise shocked Liz, and she lowered the gun to her side. Defendant demanded the gun, and she refused. Defendant felt his life was threatened. Defendant approached her and the two struggled over the gun. Liz pulled the gun toward herself, clutching it at her chest with both hands, and defendant wrapped his hands around her hands and tried to get the gun away from her. The two were standing chest to chest, virtually “attached” as they fought over the gun. Liz bit his chest. Defendant told the police that Liz’s face remained expressionless and that he was not “the least bit upset” during the struggle and just “wanted to get the gun in a place where it wasn’t gonna hurt anybody.” As Liz clutched the gun to her chest, the gun went off and she collapsed to the floor. Defendant called 911.
At the police station, defendant told the police that Liz was “a very violent person,” which is “one of the main reasons” he was divorcing her. He said he had “called the cops a total of three times on her” and the police arrested her once. When he called the police the first time, Liz told them he physically abused her, “which is a complete lie.” Defendant said Liz “lies a lot.” Defendant said he never struck his wife but she “had beat the fuck out of [him], arms, fists, feet flailing.” Liz had threatened to shoot defendant “on various occasions” but he thought the threats harmless because she had “violent rages” when she made “thousands of threats.” Defendant told the police that Liz should have had “violence counseling.”
Detective Edward Knutsen conducted the interview of defendant, and later testified that he felt defendant’s statement was evasive and suspicious. As an example of evasion, Detective Knutsen recalled defendant’s reply when the police asked if the shooting was accidental. Detective Knutsen asked how Liz died, and defendant answered by posing alternative scenarios: “Q. Could there be any possibility that the gun went off accidentally as you wrestled it from her? . . . [¶] . . . [¶] A. Let me—let me think. Either I shot her intentionally, the gun went off accidentally in the struggle or she shot herself. [¶] I did not shoot her . . . . [¶] The other possibility—the gun went off in the struggle. That sounds like the most plausible, because I was pulling her—I was trying to pull the gun at the same time as holding her close to keep the separation minimal so that—you know, if—if I separated too much, she could shoot me again. But if I got too close—I was afraid of the gun, man.” Detective Knutsen testified that, in 31 years of police work, he never had an eyewitness answer a question about “what happened” with a list of options. The detective also noted that, although defendant was cooperative, he was “conveniently cooperative” in highlighting evidence, such as prior accusations of domestic violence against Liz.
Detective Knutsen’s opinion was elicited on cross-examination. He conceded, under defense counsel questioning, that defendant never refused to answer a question during interrogation but the detective countered that some of the answers were evasive.
A police forensic specialist, Janet Lipsey, photographed defendant and collected evidence from him while he was at the station. When Lipsey first contacted defendant, he was lying face down on the floor in the interview room. Lipsey asked defendant to sit in a chair because she needed to photograph him and process his hands for gunshot residue. Defendant ignored repeated requests to sit in a chair, and rubbed his hands palm-side down on the carpet. Rubbing hands on a carpet, like washing hands with water, can remove evidence of gunshot residue, and Lipsey was concerned that defendant was destroying evidence by rubbing his hands against the carpet. After defendant rubbed his hands, Lipsey tested his hands for gunshot residue. The results of the test provided nothing of significance. Some gunshot residue was found on Liz’s hands, but a criminalist testified that the residue proved only that she was around a gun that was fired and did not show that she fired the weapon herself.
F. Defendant’s police statement after charges were filed
The police released defendant after the shooting and conducted an extensive investigation. Defendant was not charged with murdering his wife until May 2005, nine years after the shooting. The prosecution explained to the trial court that the lapse of time was due to “a methodical, time consuming evaluation of the physical evidence” and defendant’s finances.
When defendant was arrested for murder in 2005, he was again interviewed by the police. As he did after the shooting in 1996, defendant said that Liz died in a struggle for the gun after she shot at him. But defendant said he no longer remembered specific details of the struggle. Defendant repeated his accusations of domestic violence against Liz, and added a new claim that Liz twice stabbed him. Defendant said the incidents of domestic violence were always her violence against him, and insisted: “I’m not physically violent.” Toward the end of the interview, Detective Knutsen accused defendant of intentionally killing Liz and staging the crime scene to make it look like Liz fired a shot at him. Defendant replied: “What do you want me to say? You’re welcome to your opinion . . . . All I can tell you is the best that I recall of what happened.”
G. Forensic evidence
Numerous police officers and forensic scientists testified that defendant’s account of the shooting was inconsistent with the physical evidence. The prosecution argued to the jury that the evidence showed that defendant planned to murder Liz when she came to the house and did so by holding her down and shooting her in the head. Unexpectedly, the gun jammed (perhaps because it was wrapped in a cloth that blocked the gun’s ejection port). Defendant then hurriedly cleared the jam and fired a second round into the kitchen cabinet so he could tell the police Liz was the aggressor.
Richard Waller, a criminalist, reconstructed the scene of the shooting based on the physical evidence and concluded that Liz and defendant were not standing when the fatal shot was fired. Based upon the location of blood spatter, among other things, Waller opined that Liz was on her knees. Another criminalist, Fay Ann Springer, agreed that Liz was kneeling (or otherwise low to the ground) and that defendant was likely bent at the waist or crouching.
Vincent Di Maio, M.D., a forensic pathologist, summarized the evidence showing inconsistencies between defendant’s account of the shooting and the physical evidence: (1) defendant said he was unable to get the gun away from Liz but defendant was five feet, eight inches tall and weighed 175 pounds, while she was much smaller at five feet one inches tall and about 100 pounds; (2) defendant claimed an unsuccessful chest to chest struggle with a woman who had undergone breast surgery three days earlier who supposedly showed no expression of pain during the struggle; (3) Liz scratched defendant’s back just before the shooting (his back had scratch marks and her fingernails on both hands had fibers matching his shirt material), but defendant said her hands were on the gun during the struggle; (4) the blood spatter was inconsistent with a standing shot because the spatter was low to the floor and blood spray from the shot was on defendant’s shirt and pant leg but not on the gun or Liz’s hands and shirt sleeve cuffs; and (5) ballistics reports show that the spent casing from one of the two rounds fired in the kitchen jammed the gun during ejection (requiring that it be cleared before a second shot could be fired) but there was no jam mentioned in defendant’s account. According to defendant, the gun remained operational after the cabinet was struck and it soon discharged a second round, killing Liz.
Waller and Lucian Haag, another criminalist and a firearms expert, provided a fuller explanation of the ballistics evidence. Defendant’s Walther semiautomatic pistol has a magazine that holds multiple rounds or cartridge cases containing gunpowder and a bullet projectile. When the gun is fired, the gunpowder explodes, hurling the bullet down the barrel of the gun and ejecting the spent cartridge casing out the side of the gun. A metal slide on top of the gun moves forward bringing another cartridge into position and the gun is ready to fire again with a pull of the trigger. A gun will jam and become inoperative if a spent casing is not fully ejected from the gun. A “stovepipe” jam occurs when a spent casing starts to flip out of the ejection port but hits an obstruction and the forward moving slide slams into the stalled casing, which leaves the casing sticking out of the gun at almost a 90 degree angle. To clear the jam, one has to manually remove the casing. To remove the casing, one generally removes the magazine and pulls back the slide. Prosecution witnesses concluded that the gun jammed during the shooting in defendant’s kitchen because the spent casing found next to Liz’s body had a deep indentation indicative of a stovepipe jam.
There was additional physical evidence inconsistent with defendant’s account of the shooting. Defendant claimed he never had control of the gun on the day of the shooting, and certainly never loaded it, but when arrested he had a blood blister on his finger that looked like the blister criminalist Waller suffered when he test fired defendant’s gun and pinched his finger putting the magazine into the gun. Detective Knutsen testified that he once owned the same gun model defendant had and sometimes pinched his finger inserting the magazine and received a blister like the one defendant had when arrested. There was also undisputed evidence that Liz died from a contact shot under her chin, with the muzzle of the gun against her skin. But defendant told the police Liz had the gun down at her breast level. In the videotaped police interview, defendant demonstrated Liz holding the gun at chest level.
Detective Knutsen also observed that Liz supposedly shot at defendant from only eight feet away but the bullet went into a cabinet more than three feet from where defendant was standing. Also, the bedroom armoire and gun safe doors were closed when the police arrived at the scene of the shooting, meaning that if Liz removed the gun from the armoire’s safe to kill defendant, she closed the doors after herself.
H. Gun use evidence
In his statement to the police, defendant said he taught Liz to use his handgun on several visits to her grandfather’s forest cabin. The statement was contradicted by Liz’s son from her first marriage, Michael. Michael testified that family visits to the grandfather’s cabin did include target practice, but that Liz never participated. Michael said Liz did not like guns: she did not like shooting guns, nor being around them. The only evidence at trial of Liz’s gun use (aside from defendant’s statement) came from her mother, who testified that Liz participated in target practice during family visits to the forest cabin when Liz was a child, age 13 and younger. Other witnesses testified that Liz, as an adult, did not like guns and was afraid of them. A friend said Liz was concerned about having guns around her children. The testimony was used by the prosecution to challenge defendant’s statement that Liz went into the bedroom where her young son was watching a video or napping and retrieved a gun in front of him to kill his father.
I. Defense evidence
The defense presented forensic scientists who disagreed with the prosecution’s expert witnesses. A ballistics expert opined that the dent observed on the spent casing near Liz’s body was created when the casing was extracted and ejected from the gun, and was not caused by a gun jam as prosecution witnesses said. An expert in blood spatter and crime scene reconstruction testified that the physical evidence was consistent with defendant’s statement that he was standing face to face with Liz when the gun discharged and killed her.
A psychologist also testified for the defense. He opined that defendant, when interviewed by the police after the shooting, was suffering from “acute stress disorder,” or what is commonly called shock. The psychologist said defendant was “in a daze” during much of the interview, and that it is not uncommon for one to have imperfect recollection of traumatic events.
The defense also presented character witnesses. A dental assistant who worked in defendant’s office testified that defendant could be “moody” but that she never saw him violent with anyone. She testified that she thinks defendant is “a good guy” and not “capable of murder.” Another dental office worker testified that defendant could sometimes be “abrasive” but was always “professional.” Two women who knew defendant from his participation in the Boy Scouts organization also vouched for defendant. One said that defendant is honest, calm, disciplined, and respectful to people. Another said defendant was honest, caring and “a man of integrity.” She never saw defendant violent.
II. INSTRUCTIONS, VERDICT, AND SENTENCING
The court instructed the jury on the elements of murder, and explained that defendant is guilty of first degree murder only if he acted willfully, deliberately, and with premeditation. (CALCRIM Nos. 520, 521.) The court also explained that an accidental killing is excusable homicide and thus defendant would not be guilty of murder if Liz was killed as a result of an accident. (CALCRIM No. 510.) The court further instructed the jury on self-defense, imperfect self-defense, and heat of passion provoked by the victim. (CALCRIM Nos. 520, 521, 570.)
The jury convicted defendant of first degree murder committed with personal use of a firearm. (Pen. Code, §§ 187, 12022.5, subd. (a).) The court denied defendant’s motion for a new trial and sentenced defendant to prison for 25 years to life for murder, and an additional four years for personal use of a firearm. (Pen. Code, §§ 190, subd. (a), 12022.5, subd. (a).)
III. DISCUSSION
Defendant presents numerous claims on appeal. Most of the claims assert that evidence was wrongly admitted. Thus, defendant contends that the trial court erred in admitting evidence relating to: (1) prior instances of defendant’s misconduct indicating a character for violence; (2) defendant’s threats to kill Liz; (3) defendant’s rape of Liz; (4) defendant’s statement that he would kill a wife who made divorce difficult and costly; and (5) expert opinion testimony that defendant’s account of an accidental shooting is inconsistent with the physical evidence. Defendant also asserts prosecutorial misconduct and ineffective assistance of defense counsel. We discuss these claims below.
A. Defendant’s violent character trait
Defendant asserts that his conviction rests on impermissible character evidence. Defendant states: “What swayed the jury in this case was not the state’s evidence concerning [defendant] Posey’s role in the shooting of Elizabeth, but its evidence concerning Posey’s character—who he supposedly was and what he allegedly had done on occasions other than April 19, 1996[,]” the day of the shooting. Defendant says the prosecutor “spent much of the trial presenting witnesses on Posey’s bad character,” and maintains that “[t]here is no reported decision in California of a criminal trial involving more evidence of a defendant’s uncharged misconduct [to prove bad character] than was introduced here.”
Defendant overstates the amount of character evidence presented in the case. The prosecution’s case in chief stretched over 13 days of trial, and amassed over 2,000 pages of transcribed testimony. The majority of that testimony came from police officers and forensic scientists. Testimony from defendant’s dental office staff concerning his character—of which defendant complains the most strenuously—amounts to less than 10 percent of the testimony presented. However, we recognize that evidence of uncharged misconduct can be highly prejudicial and its admission, in whatever quantity, requires careful analysis to avoid injustice. (People v. Ewoldt (1994) 7 Cal.4th 380, 404.) We turn to that analysis.
1. General principles on admission of character evidence
Generally, evidence of a person’s character (in the form of an opinion, or evidence of reputation or instances of conduct indicating character) is inadmissible to prove conduct in conformity with that character (i.e., that defendant had the disposition to commit the charged offense). (Evid. Code, § 1101, subd. (a); People v. Falsetta (1999) 21 Cal.4th 903, 910-911.) Such evidence may be admitted when relevant to prove some fact (such as motive, intent, plan, or absence of accident) other than the defendant’s disposition. (Evid. Code, § 1101, subd. (b).)
There are exceptions to the general rule precluding use of character evidence to prove disposition. A criminal defendant is free to present evidence of his good character to show his innocence of the alleged crime and, if defendant does so, the prosecution may present character evidence in rebuttal. (Evid. Code, § 1102.) Also, a criminal defendant may present evidence of the alleged victim’s bad character and, if defendant does so, the prosecution may present rebuttal evidence. (Evid. Code, § 1103, subd. (a).) If a criminal defendant presents evidence that the victim had a violent character, the prosecution may counter with evidence of defendant’s violent character. (Evid. Code, § 1103, subd. (b).)
A defendant’s evidence of his good character, and the prosecution’s rebuttal evidence on the issue, is statutorily limited to an opinion or evidence of reputation, and excludes evidence of specific instances of conduct. (Evid. Code, § 1102.) It remains an open question as to whether this limitation on the form of character evidence has been abrogated. (People v. Sully (1991) 53 Cal.3d 1195, 1226; People v. Lankford (1989) 210 Cal.App.3d 227, 235-240.) We assume, for purposes of this appeal, that Evidence Code section 1102 remains fully viable.
2. Procedural background: character evidence initially excluded, then ruled admissible under Evidence Code section 1103
The defense filed an in limine motion to exclude evidence of defendant’s violent acts at his dental office. The prosecution agreed to the exclusion for its case in chief, but argued that the evidence would be admissible as rebuttal evidence if the defense presented evidence suggesting that Liz had a violent nature. (Evid. Code, § 1103, subd. (b).) The court granted the motion to exclude the evidence noting, as did the prosecution, that evidence of defendant’s violent character would be admissible if the defense tried to prove that the victim was known for violence. The court ruled that evidence of defendant’s violent acts at his dental office “will not be presented during the prosecutor’s case-in-chief unless something arises to change the situation[,] in which case I’ll revisit those issues.”
The prosecution’s opening statement to the jury made no mention of any character trait for violence in either defendant or Liz. It was defense counsel who introduced character as an issue. Defense counsel told the jury that “the evidence will show that there is nothing, absolutely nothing in the life, the style, the person or the spirit of Michael Posey that would have led him to murder Elizabeth Posey on April 19, 1996.” The defense posed the question: “who was Michael Posey back in 1996 and who is he today?” The defense answered: “The evidence will show that Michael Posey today is the same person he was back in 1996: A dedicated father; a dedicated family man; a dedicated friend; a dedicated dentist; a man who has led and lived an incredibly responsible life. And the evidence will show that there is nothing in Michael Posey’s background, Michael Posey’s experience, or Michael Posey’s makeup that would ever lead him to commit such a heinous crime.”
Liz’s character was attacked. The defense said: “The evidence will show that Elizabeth had anger and behavior issues stemming from her childhood that strained and ultimately destroyed their marriage. The evidence will show that she was jealous of everything Michael did. She was extremely possessive and she became extremely volatile on occasion.” Defense counsel maintained that Liz was the aggressor on the day she died. He recounted defendant’s police statement that Liz went for a gun when defendant refused to reimburse her $2,000. Defendant’s refusal supposedly “sent Elizabeth into a rage, the kind of rage that she had been in many times before.”
The prosecution began its case with police testimony. On the second day of witness testimony, the prosecution presented Detective Knutsen, who had interviewed defendant after the shooting. With Detective Knutsen on the witness stand, the prosecution played the videotaped interview of defendant for the jury. As related above, defendant told the police that Liz tried to kill him and a struggle for control of the gun ended with her accidental shooting. The statement included defendant’s opinion that Liz was a violent person, and numerous references to prior instances of her violent acts against him.
On the sixth day of witness testimony, the prosecution presented evidence that defendant provided an account of the shooting inconsistent with his police statement. Jeff Johnson, Liz’s first husband, testified that defendant telephoned him within a few days of the shooting to explain what happened. According to Johnson, defendant said that defendant and Liz went to the living room and sat for awhile after she fired a shot at him, and then returned to the kitchen where she was shot during a struggle for the gun. Near the end of direct examination, the prosecutor asked (without objection) if Johnson ever saw Liz display any violence during his marriage to her. Johnson said there was never any physical violence.
Cross-examination explored whether Liz was truly nonviolent. On cross-examination, defense counsel asked: “Now you’ve actually seen Elizabeth Posey become violent before, haven’t you?” Johnson answered: “Verbally.” Defense counsel then asked about an incident from 1995, after Johnson and Liz were divorced and both remarried. Under questioning by defense counsel, Johnson testified that Liz and Johnson’s new wife had a verbal argument about the children. Liz was sitting in her car with the door open as Johnson’s wife stood inside the door arguing with Liz. Liz put the car in reverse to back up with the door open, and the door came within inches of striking Johnson’s wife. Defense counsel also elicited testimony that Liz had “erratic mood swings,” was stressed and angry during her divorce from defendant, and lied about a lot of things. Less than a week before the shooting, Johnson had told defendant that Johnson thought Liz “was about to have a nervous breakdown” and was “about to snap.”
Soon after Johnson’s testimony, the court and attorneys discussed the proceedings outside the jury’s presence. The prosecutor reminded the court of its earlier in limine ruling precluding admission of defendant’s prior acts of violence, and asked that the prosecution now be permitted to introduce that evidence because the defense introduced evidence of the victim’s violent character. (Evid. Code, § 1103, subd. (b).) Defense counsel recognized that the issue was admission under Evidence Code section 1103, and made no argument that the evidentiary provision was inapplicable. The court ruled: “I think the door is wide open now under [Evidence Code section] 1103. We knew it would happen eventually, I suppose, and it has, so there is no rule against doing it in [the prosecution’s] case in chief. The rule is once [the defense] talked about the victim’s propensity for violence, then [the prosecution] could introduce character evidence for the defendant’s propensity for violence. I haven’t heard any reason [the prosecution] shouldn’t do that, so feel free to do that. [If it] becomes cumulative or something like that I’ll entertain those objections, but I’ll let [the prosecutor] go quite a ways with this because it goes to the core of the case for both sides.”
3. Defendant’s violent behavior at his dental office
The prosecution proceeded to introduce evidence of defendant’s propensity for violence. Leeann Blazer, office manager at defendant’s dental practice for two years, described an incident when defendant was violent towards her. Blazer was in the back office retrieving a report from the printer. The printer produced connected pages with the first page print side down. Blazer’s practice was to refold the pages to make the report easier to read. Blazer was doing this when defendant entered the room and asked: “what the hell are you doing?” Blazer explained, and defendant said if the paper was meant to be folded that way the printer would print it that way. Blazer said she needed to fold the paper so she could read it from the file. Blazer was standing a couple feet from defendant with the stack of paper in her hand. Defendant reached over and tried to grab the paper from Blazer’s hand. Blazer pulled it away and said he did not need to read the report, that he hired her to prepare reports, and she needed to read the report with the paper folded. As Blazer pulled her hand away, defendant said “that’s not yours, this is my business, those are my reports.” Defendant hit Blazer on the arm, and she fell against the wall from the force of the blow. Blazer quit. She immediately collected her purse, left the office, and never worked for defendant again.
Sherry Rochester (formerly San Filippo) worked with defendant for about five years. On one occasion, she was assisting defendant with a patient when defendant kicked her on the shin because she had not given defendant a dental instrument fast enough. Another time, Rochester took an x-ray of a patient when defendant was in the x-rayed room, and he came out “very angry” and raised his hand as if to strike her. She said “go ahead, I dare you” and he backed down.
Minette Leggett worked with defendant for eight years as a dental assistant. She said defendant was “very abusive” and described violent episodes when defendant kicked her and poked her with a dirty dental instrument. In the first episode related, defendant was performing a root canal. Another patient had been waiting for two hours in an examination room, and grew irate. Leggett came to tell defendant that the waiting patient was irritated and, when she did so, defendant gave her a painful kick on the shin. Leggett asked the women assisting defendant in the root canal if they saw what defendant did, and they said yes. When Leggett left the room, she heard defendant tell the assistants: “you saw nothing.” One of those assistants, Katherine Haugen, corroborated Leggett’s testimony about the angry kick and testified that, in her opinion, defendant has a violent character.
In the second violent episode Leggett described, defendant was displeased with the color of a tooth crown Leggett had selected for a patient. As Leggett was leaving the examination room, defendant gave her “the evil eye,” reached out with a pointed dental instrument he had been using in the patient’s mouth and poked her with it, breaking the skin. Leggett was concerned about infection and had blood tests performed.
Pam LaPierre was a lab technician in defendant’s office, and training to be a dental assistant. She said defendant was violent with a patient, and with her. LaPierre testified that she and defendant were in a treatment room with a patient who was crying and in pain. The patient started to leave the chair. Defendant put the patient back in the chair, told her to shut up, and slapped her in the face. LaPierre described another instance when defendant asked her to help him clean someone’s teeth. LaPierre told him she could not assist him because she did not have a license as a dental technician but defendant insisted anyway. LaPierre refused and defendant grabbed her by the arm and pulled her toward the examination room. LaPierre was scared. She pulled away, told defendant she was leaving, and went to get her purse. Defendant told LaPierre she could not leave, and blocked the doorway. LaPierre asked defendant to please move out of the way. Defendant stayed in the doorway, but then moved away and LaPierre fled from the office. Defendant followed LaPierre down the office building stairs but stopped before the exit. LaPierre never worked for defendant again.
4. Defendant’s anger and bullying behavior with female patients and staff
The prosecutor asked Liz’s ex-husband Johnson, who was a dental patient of defendant, about defendant’s interactions with dental staff and asked if Johnson ever noticed “anything about [defendant’s] attitude with regards to men versus women?” Johnson said defendant “was real demanding with the women. Very demanding.”
Defendant’s office manager for over seven years, Aileen Contreras, testified that defendant had a “volatile temper,” would “fly off the handle for no reason,” and had angry outbursts. Office manager Blazer testified that defendant had “mood swings” when he would be in a (short-lived) good mood, then suddenly in a bad mood when he was “short, curt, controlling, demanding,” and angry. Blazer said defendant sometimes lost patients because he would behave angrily in front of them. Both Blazer and dental assistant Rochester said defendant belittled his female staff. Blazer described one instance when he lambasted her in front of a patient over a bad x-ray. The patient took Blazer’s side, and told defendant he was an “asshole.” Dental assistant Haugen said defendant had mood swings and yelled and cursed at his staff.
The defense tried to show Haugen’s bias by stating, on cross-examination, that she did not like defendant. Haugen insisted that she did like him. The defense then impeached her testimony with her statement to the police, in which she said defendant was “the strangest, meanest human being” she had ever met. The defense accused Haugen of being a gossip who talked badly about everybody.
5. Defense evidence of the victim’s violence and defendant’s nonviolence
The defense presented evidence of Liz’s violent character and defendant’s nonviolent character. As discussed, the defense elicited Johnson’s testimony that Liz almost struck Johnson’s wife with a car. The defense also established on cross-examination of Detective Knutsen that defendant had called the police several times to report domestic violence by Liz.
Four witnesses were presented who attested to defendant’s good character, including his nonviolent nature. A dental assistant who worked in defendant’s office testified that defendant could be “moody” but that she never saw him violent with anyone. A woman who knew defendant from his participation in the Boy Scouts organization testified that defendant was honest, caring and “a man of integrity.” She never saw defendant violent.
In closing argument to the jury, defense counsel argued that defendant “is a good decent man,” and dismissed testimony from defendant’s dental staff about kicking and slapping as “petty incidents” that showed nothing more than an “idiosyncratic” man with “personality quirks,” not a murderer. In contrast to defendant’s good character, Liz was depicted as a woman “on the verge of a nervous breakdown,” who “had a temper,” was “volatile,” “had the potential for violence,” tried to run over Johnson’s wife, and had assaulted defendant on five prior occasions. The defense said it was this situation—Liz’s violent personality and the stress of the divorce—that led her to attack defendant and ultimately die in a shooting accident.
6. Evidence of defendant’s violent character was properly admitted to counter defense evidence of the victim’s violent character
As noted above, if a criminal defendant presents evidence that the victim had a violent character, the prosecution may counter with evidence of defendant’s violent character. (Evid. Code, § 1103, subd. (b).) The trial court ruled that defendant Posey presented evidence of Liz’s violent character by eliciting on cross-examination of Jeff Johnson (Liz’s ex-husband) testimony concerning a specific instance when Liz acted violently: she intentionally backed up her car during an argument, almost striking Johnson’s wife. The court ruled: “I think the door is wide open now under [Evidence Code section] 1103. We knew it would happen eventually, I suppose, and it has, so there is no rule against doing it in [the prosecution’s] case in chief.” The prosecution proceeded to introduce character evidence from defendant’s dental staff.
Appellate counsel for defendant says the trial court erred in holding that defendant opened the door under Evidence Code section 1103, subdivision (b). Defendant, through counsel, argues: “On direct, the prosecution elicited (inadmissible) character evidence from Johnson—Johnson testified that Elizabeth was nonviolent. The defense properly responded, during cross, by asking Johnson about whether his opinion reflected certain specific instances of violence. [¶] . . . [¶] This sort of cross-examination is not character evidence—indeed, it is not substantive evidence at all. It is admitted only for impeachment.”
The argument does not bear scrutiny. It is true that the prosecutor’s direct examination of Johnson was objectionable in asking Johnson if he ever saw Liz display any violence during his marriage to her. A prosecutor may not present evidence of the victim’s character until the defense introduces the issue. (Evid. Code, §§ 1101, subd. (a), 1103, subd. (a)(2).) But defendant did not object to the prosecutor’s examination of Johnson, thus forfeiting his right to challenge the testimony now. (Evid. Code, § 353; People v. Demetrulias (2006) 39 Cal.4th 1, 19-22.)
It is likely that no objection was made because the defense intended to raise the issue of Liz’s character with Johnson, as shown by the fact that it immediately did so on cross-examination. It was defense counsel’s cross-examination of Johnson, not the prosecutor’s single question on direct examination, that opened the door to propensity evidence. Johnson testified, on direct, that Liz never displayed any violence during his marriage to her. On cross-examination, defense counsel asked: “now you’ve actually seen Elizabeth Posey become violent before, haven’t you?” and proceeded to elicit testimony about the car episode.
It is not true, as defendant asserts on appeal, that the cross-examination was for the sole purpose of impeaching Johnson’s testimony that Liz was nonviolent. The defense never made that assertion in the trial court when given the opportunity to do so, and the assertion is unsupported by the record. There could be no effective impeachment of Johnson’s testimony that Liz showed no instances of violence during their marriage with evidence of Liz’s violent act after their marriage. Proper impeachment of a character witness occurs when the witness expresses an opinion as to an individual’s good character, or testifies about the good reputation of that individual, and the value of that opinion or knowledge of reputation is tested on cross-examination by asking if the witness is familiar with prior acts of misconduct of the individual inconsistent with the character evidence presented. (People v. Hempstead (1983) 148 Cal.App.3d 949, 953-954.) Here, Johnson did not provide opinion or reputation evidence as to Liz’s character for violence. He was asked about specific conduct during a specific period of time. On direct, Johnson was asked “Did you ever see [Liz] display any violence during the time that you were married to her?” Johnson testified: “No physical [violence.]” Cross-examination as to a specific instance of violence years after the marriage ended was not impeachment.
The record as a whole shows that the defense elicited Johnson’s testimony about Liz’s violent act as substantive evidence to show her to be a violent person capable of shooting a gun at defendant. The true purpose of the cross-examination is shown by the fact that the defense’s exploration of Liz’s character did not stop at eliciting testimony from Johnson about her backing up a car toward Johnson’s wife, but included an inquisition on Liz’s “erratic mood swings.” Moreover, the defense made substantive use of Johnson’s testimony in closing argument to the jury, when defense counsel told the jury that Liz “had a temper,” was “volatile,” and tried to run down Johnson’s wife.
The intent to introduce defense evidence on Liz’s alleged violent nature was plain from the start of the case. In his opening statement to the jury, defense counsel said that Liz had “anger and behavior issues” and “became extremely volatile on occasion.” Defense counsel maintained that Liz was the aggressor on the day she died. He recounted defendant’s police statement that Liz went for a gun when defendant refused to reimburse her $2,000. Defendant’s refusal supposedly “sent Elizabeth into a rage, the kind of rage that she had been in many times before.”
Appellate counsel’s argument that character evidence had “no probative value in establishing what happened” at the scene of the shooting—and was slyly inserted into the case by the prosecution—is not credible. Defendant relied upon Liz’s supposed violent attack upon him to explain her death. His account of the shooting depended upon Liz being volatile enough to try to kill her husband. Although appellate counsel now derides the use of character evidence in the case, defendant’s prospect for exoneration was improved by substantiating defendant’s police statement that Liz was a violent person. As the trial court recognized, evidence on propensity for violence “goes to the core of the case . . . .” The court properly ruled that defendant opened the door to rebuttal evidence on his violent character by introducing evidence of Liz’s violent act against Johnson’s wife.
Defendant next argues that, if character evidence was admissible, admission was limited to a trait for violence. Defendant contends that character evidence unrelated to violence was wrongly admitted. Defendant challenges an array of testimony from several witnesses. The short answer is that defendant forfeited any challenge to this testimony by failing to object in the trial court. (Evid. Code, § 353; People v. Demetrulias, supra, 39 Cal.4th 1 at pp. 19-22.) The long answer—to avert assertions that defense counsel was incompetent by failing to object—is that the evidentiary challenge is meritless. We have reviewed all of the many challenges raised in defendant’s opening brief on appeal but will limit our discussion to a few.
Much of the testimony challenged by defendant, contrary to his position, does constitute evidence that defendant had “a character for violence or a trait of character for violence.” (Evid. Code, § 1103, subd. (b).) Testimony about defendant’s poor anger management, like that of office manager Contreras (stating that defendant had a “volatile temper,” would “fly off the handle for no reason” and had angry outbursts) is a trait “tending to show violence,” especially when introduced, as it was, in the broader context of physical assaults on office staff. (Evid. Code, § 1103, subd. (b).)
Some of the challenged testimony was admissible for reasons apart from defendant’s character. Defendant’s bullying behavior, with Liz and other women, was admissible to prove a fact other than disposition. (Evid. Code, § 1101, subd. (b).) The evidence supported the prosecution’s position that Liz was too intimidated and frightened of defendant to initiate an attack upon him and wrestle him for a gun, contrary to his defense at trial that the shooting was an accident occasioned by Liz’s aggression. Defendant’s portrait of Liz as the aggressor was undercut by Contreras’s testimony that Liz dissolved into an hour-long bout of tears when defendant told Liz to “shut the fuck up,” and by testimony (by Johnson, Contrares, Blazer, and Rochester) that defendant was controlling, demanding, and belittling with women. Evidence of defendant’s angry outbursts at his dental office over minor events like a bad x-ray and a mismatched crown was also relevant to show that Liz’s death was not an accident. The evidence undermined defendant’s police statement that he was not “the least bit upset” and was in a purely defensive posture after his wife supposedly tried to kill him. Some of the evidence was also relevant in establishing a motive for murder, by showing that defendant’s relationship with Liz was not “amicable and congenial” as he told the police, but “toxic,” as his former employee Haugen described it.
Some of the testimony challenged on appeal was not introduced as substantive evidence at all. Office manager Blazer, in describing defendant’s belittling attitude toward women, described an instance when defendant criticized her about an x-ray in front of a patient. The patient took Blazer’s side, and called defendant an “asshole.” The patient’s “asshole” comment was not introduced as substantive evidence of defendant’s character, but to show defendant’s belittling conduct toward his female staff, which even a bystander recognized.
Defendant also complains on appeal that a former employee described him as the “strangest, meanest human being” she had ever met. But this testimony was introduced by the defense for witness impeachment, not by the prosecution as character evidence. Former employee Haugen testified on direct that defendant was “mean” to Liz and berated her in front of staff. The defense tried to show Haugen’s bias by having her concede dislike for defendant. When Haugen insisted that she did like him, the defense impeached her testimony with her statement to the police, in which she said defendant was “the strangest, meanest human being” she had ever met. Haugen’s description of defendant was not, as defendant argues on appeal, prosecution character evidence.
Finally, defendant argues that evidence that he berated his wife, kicked and slapped his dental staff, and controlled and belittled women should have been excluded as more prejudicial than probative. (Evid. Code, § 352.) As indicated above, we disagree with defendant’s claim that the evidence was of little probative value. Defendant’s verbal attacks upon, and disrespect for, his wife provide evidence of intent and motive, and counter the defense of an accidental shooting. It should be beyond dispute that the existence of a hostile relationship is highly relevant in a domestic shooting case. “[E]vidence of prior quarrels between the same parties [involved in uncharged and charged acts] is obviously relevant on the issue whether the accused committed the charged acts,” as is evidence showing prior “ ‘antagonism or enmity.’ ” (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 585-586.) “Where the victim of the crime is the spouse of the accused, evidence tending to show that the relations between the accused and the victim were unpleasant or hostile is admissible on the question of motive . . . . ” (41 C.J.S. (2008) Homicide, § 329.) Defendant’s misconduct with his staff (both physical assaults and bullying of women) was important in showing that Liz would have been too frightened and intimidated by defendant to attack him as defendant claimed and that defendant, not Liz, had a reputation for violent behavior.
We regard the potential for undue prejudice to be minimal here. The introduction of uncharged misconduct into a trial bears the risk that a jury will “punish the defendant for the uncharged offenses, regardless whether it considered him guilty of the charged offenses . . . . ” (People v. Ewoldt, supra, 7 Cal.4th 380 at p. 405.) That risk is low where the testimony describing defendant’s uncharged acts is “no stronger and no more inflammatory than the testimony concerning the charged offenses.” (Ibid.)
Here, the evidence of defendant’s uncharged misconduct with his wife and dental staff was far less inflammatory than the evidence on the charged offense of murder. Defense counsel dismissed testimony from defendant’s dental staff about kicking and slapping as “petty incidents.” Whether or not the incidents are properly characterized as “petty,” the incidents were not inflammatory. The incidents were far tamer than other instances of uncharged misconduct, like robbery and child molestation, that have been introduced in criminal trials over claims that the evidence of prior acts is inflammatory. (People v. Lindberg (2008) 45 Cal.4th 1, 25-26; People v. Ewoldt, supra, 7 Cal.4th at pp. 404-405.) The uncharged misconduct here—kicking and slapping office staff—was unflattering but not inflammatory. There was no danger that a jury, thinking a man innocent of murder, would convict him anyway to punish him for bullying his employees.
Defendant suggests that the prosecutor prejudicially overemphasized defendant’s character in closing argument, by rhetorically asking, “Who is Michael Posey?” and then recounting defendant’s prior conduct with Liz and the dental staff. The suggestion fails to acknowledge that it was the defense which first posed the question “Who is Michael Posey?” in its opening statement to the jury, and interjected defendant’s character into the trial. The defense posed the question: “who was Michael Posey back in 1996 and who is he today?” The defense answered: “The evidence will show that Michael Posey today is the same person he was back in 1996: A dedicated father; a dedicated family man; a dedicated friend; a dedicated dentist; a man who has led and lived an incredibly responsible life. And the evidence will show that there is nothing in Michael Posey’s background, Michael Posey’s experience, or Michael Posey’s makeup that would ever lead him to commit such a heinous crime.” The defense later introduced evidence that Liz was a violent person, and presented character witnesses who averred that defendant is nonviolent, honest, calm, caring, respectful to people and “a man of integrity.” The prosecutor was entitled to challenge that evidence. (Evid. Code, §§ 1101, subd. (b), 1102, subd. (b), 1103, subd. (b).) His closing remarks providing a different answer to the question first asked by the defense, “Who is Michael Posey?” were not inflammatory. The probative value of the evidence of defendant’s uncharged misconduct outweighed the potential prejudicial effect, and was properly admitted and considered by the jury.
B. Admission of victim’s statements of defendant’s threats and her fear
As noted above in the summary of facts, multiple witnesses testified that Liz feared defendant would kill her. Liz’s fear of defendant was attested to by her divorce lawyer, her mother, and six friends. Defendant concedes on appeal that evidence Liz feared defendant was admissible. (Evid. Code, § 1250, subd. (a)(1).) But defendant argues that inadmissible hearsay was introduced when several of these witnesses went beyond attesting to Liz’s fear of defendant and testified that Liz reported to them that defendant had threatened to kill her. (Evid. Code, § 1250, subd. (b).) Defendant is mistaken. Defendant’s threats to kill Liz were admitted as circumstantial evidence of Liz’s fearful state of mind, not to prove that defendant made the threats.
The prosecution wanted to introduce additional witnesses to testify that Liz feared defendant but the court barred the testimony as cumulative.
1. General principles on admission of victim’s reports of threats and fear
In a murder trial, a witness’s testimony that the victim said the defendant threatened her is undeniably relevant in tending to prove that defendant, in fact, made threats of physical harm to the victim and, inferentially, that he carried them out. (People v. Noguera (1992) 4 Cal.4th 599, 620-621.) However, when introduced for that purpose, the testimony is hearsay and inadmissible unless authorized by a recognized exception. (Id. at p. 621; Evid. Code, § 1200.) A spontaneous declaration “under the stress of excitement,” for example, is a recognized exception. (Evid. Code, § 1240.)
Hearsay evidence of a victim’s fear may be introduced to prove the victim’s state of mind. (Evid. Code, § 1250, subd. (a)(1).) Under this exception, hearsay statements that the victim feared defendant are admissible, not to prove that defendant actually made or posed a threat to the victim, but “for the limited purpose of establishing [the victim’s] state of mind at or near the time she was murdered.” (People v. Noguera, supra, 4 Cal.4th at p. 621.) “[H]earsay statements of victims concerning fears of or threats against them by the accused, when offered to prove the conduct of the accused, are not within [this] exception to the hearsay rule.” (Id. at p. 622, italics added.) But a victim’s statement that she feared defendant is admissible to prove the victim’s state of mind, when her state of mind is factually relevant. (People v. Hernandez (2003) 30 Cal.4th 835, 872-873.)
Where, for example, a defendant claims his estranged wife was shot during a struggle for a gun she pointed at him during a quarrel, hearsay testimony that the wife feared defendant was relevant to disproving his claim that she took aggressive action against him. (People v. Schindler (1969) 273 Cal.App.2d 624, 630-633, 637-640.) “If [the victim] were afraid of appellant and fearful that he might kill her, then an inference could be drawn that it was unlikely she would do anything to provoke him and unlikely she would produce a loaded firearm at a time when appellant was angry and had just quarreled with her.” (Id. at p. 638.)
Yet another circumstance is presented when a witness testifies that a victim reported being threatened by the defendant, but the testimony is not used to prove that defendant actually uttered the threat. Such testimony, if used to show the victim’s fear, is not hearsay at all. A statement is hearsay if it is “made other than by a witness while testifying” and “is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) There is a “distinction between (1) using an out-of-court declarant’s assertion of his state of mind (e.g., A testifies that he heard the declarant B say, ‘I am afraid of C’) to prove that mental state directly, and (2) using his assertion of other facts (e.g., A testifies that he heard B say, ‘C threatened to kill me’) to prove the same mental state indirectly. The first is hearsay [admissible under the state of mind exception] because it is used testimonially, i.e., it is offered for the purpose of inducing the trier of fact to believe in the truth of the assertion itself, just as if the declarant had so testified on the witness stand. The second is not hearsay because it is used circumstantially, i.e., it is offered as evidence of conduct on the part of the declarant (B reported that C threatened to kill him) from which the trier of fact is asked to draw an inference as to the declarant’s state of mind at the time (B fears C.)” (People v. Green (1980) 27 Cal.3d 1, 23-24, fn. 9, italics omitted, overruled on other grounds as stated in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3; accord People v. Jackson (1989) 49 Cal.3d 1170, 1187, fn. 3; see also People v. Ortiz (1995) 38 Cal.App.4th 377, 389-390 [distinguishing state of mind hearsay from nonhearsay circumstantial evidence].)
2. Procedural background: state of mind evidence ruled admissible but Smith’s testimony regarding the details of any particular threat ruled inadmissible
The defense filed an in limine motion asking the court to exclude hearsay evidence of Liz’s fear of defendant as irrelevant and unduly prejudicial. (Evid. Code, §§ 350, 352, 1200.) On the same grounds, the defense also asked the court to exclude Liz’s statement to her divorce lawyer, Doug Smith, that defendant had threatened to kill her. The prosecution opposed the motion to exclude evidence of Liz’s fear of defendant, noting that Liz’s fearful state of mind was relevant to rebutting the defense position that Liz was the initial aggressor and attacked defendant. (Evid. Code, § 1250, subd. (a)(1).) As for Attorney Smith’s testimony, the prosecution said it expected Smith to relate Liz’s fear of defendant, not a particular threat.
The court denied the defense motion seeking to exclude evidence of Liz’s fearful state of mind. The court found the evidence relevant to contesting defendant’s police statement that Liz was the aggressor and noted that the evidence “is not being offered to prove that because the alleged victim was afraid, the defendant must have actually killed her.” The court granted the defense motion to preclude Attorney Smith from testifying that Liz told him that defendant threatened her. The prosecutor said he was not asking to introduce evidence of a particular threat but the court reached the issue anyway: “I want to make something very clear. I don’t think there’s any legal basis for Doug Smith saying [his] client told [him] on a certain date that [defendant] threatened her. That’s flat out hearsay. That violates Crawford these days. I don’t think there’s any exception for it anymore.”
Crawford v. Washington (2004) 541 U.S. 36 (Crawford). As discussed later, the court was mistaken because Crawford only limits introduction of testimonial hearsay. (Id. at p. 68.)
3. Several witnesses, including Attorney Smith, testified about threats
The prosecutor questioned numerous witnesses about Liz’s fear of defendant. Several witnesses, in describing Liz’s fear, said that Liz reported receiving death threats from defendant.
Susan Wuesterfeld Jarrell, Liz’s mother, testified without objection about Liz’s fear of defendant, and his threats. “Did your daughter ever tell you that she was afraid of the defendant. [¶] A. Yes. [¶] Q. All right. Was that one time or more than one occasion? [¶] A. On more than one occasion. [¶] Q. Any estimate as to how many times she talked to you about that? . . . [¶] A. I would say five or six times. [¶] Q. All right. And concerning the different times that she talked to you about that, in terms of what did she tell you as far as that she was afraid of the defendant? [¶] A. She was afraid that he would harm her physically. [¶] Q. Did she—and she told you that on these various occasions? [¶] A. Yes. [¶] Q. Do you recall the last time that she talked to you as far as her fears of him? [¶] A. Yes, I do. [¶] Q. How long was that before her death? [¶] A. It was early in April of 1996. [¶] Q. What did she tell you at that time? [¶] A. She told me that he threatened to kill her.”
Attorney Doug Smith, Liz’s divorce lawyer, also testified without objection about Liz’s fear of defendant. “[D]id Elizabeth Posey tell you she was in fear for her safety, that she was afraid of the defendant, and that he would hurt her? [¶] A. Yes. [¶] Q. What did she tell you in that regard? [¶] A. Elizabeth Posey was fearful. She told me that he had threatened to kill her.”
Liz’s long-time friend, Tara Maruyama, also testified on the matter. “Q. Did [Liz] tell you that she was afraid of the defendant? What was it that she told you as far as—how she was afraid of the defendant? [¶] A. On many occasions, we would talk about how she felt, but specifically, the last time that she came down to visit me, she said that—she had told me that he told her that if she left him, that he would kill her.”
4. The evidence of threats was properly admitted to show Liz’s state of mind
Defendant argues that the admission of this testimony from Jarrell, Smith, and Maruyama violated the pretrial ruling of the trial court and “ran afoul of hearsay and confrontation rules.” He is wrong on both points. The pretrial ruling excluding evidence of defendant’s threat to kill Liz was concerned exclusively with Smith’s testimony, not other witnesses, and precluded Smith from testifying about particular details. The court said: “I don’t think there’s any legal basis for Doug Smith saying [his] client told [him] on a certain date that [defendant] threatened her.” It is not clear if the ruling was meant to encompass the testimony that was later elicited from Smith, in which Smith gave no details and simply said: “[Liz] told me that [defendant] had threatened to kill her.” Even assuming the pretrial ruling had meant to preclude Smith’s testimony, the ruling was in error and properly disregarded by the court when the witness took the stand.
“[A] ruling on a motion in limine is not generally binding on the trial court, which is free to reconsider its ruling at the time the challenged evidence is offered . . . .” (People v. Karis (1988) 46 Cal.3d 612, 634, fn. 16 (Karis).)
The testimony of Smith and the other witnesses that Liz said defendant threatened to kill her was not inadmissible under hearsay or confrontation rules. The trial court stated, when ruling on the pretrial motion, that Smith’s testimony would violate confrontation rules under Crawford, supra, 541 U.S. 36. The court was mistaken. A criminal defendant’s constitutional right “to be confronted with the witnesses against him” (U.S. Const., 6th Amend.) “contemplates that a witness who makes testimonial statements admitted against a defendant will ordinarily be present at trial for cross-examination, and that if the witness is unavailable, his [or her] prior testimony will be introduced only if the defendant had a prior opportunity to cross-examine” the witness. (Giles v. California (2008) ___ U.S. ___, 128 S.Ct. 2678, 2682; accord Crawford, supra, 541 U.S. at p. 51.) Crawford only limits out-of-court testimonial statements that are analogous to testimony given by witnesses at trial, such as prior testimony at a preliminary hearing, before a grand jury or at a former trial, and responses to police interrogations. (Crawford, supra, 541 U.S. at pp. 68-69; Davis v. Washington (2006) 547 U.S. 813, 824-828; People v. Cage (2007) 40 Cal.4th 965, 984.) Liz was not acting as a witness and providing testimonial statements when she confided her fears to her mother, friend, and divorce lawyer. Remarks to acquaintances, even if they describe criminal events, “are not the concern of the confrontation clause.” (Cage, supra, at p. 991; accord People v. Griffin (2004) 33 Cal.4th 536, 579, fn. 19.) “An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” (Crawford, supra, 541 U.S. at p. 51.) Liz’s statements that defendant threatened to kill her were not testimonial, and thus were outside the reach of the confrontation clause.
Liz’s statements were also outside the reach of the hearsay rule because the statements were not admitted for the truth of the matter asserted (defendant threatened Liz) but as circumstantial evidence that Liz was afraid of defendant (Liz told people she received threats from defendant and, inferentially, was afraid of him). (People v. Green, supra, 27 Cal.3d at pp. 24-25, fn. 9.) The evidence was introduced to prove Liz’s state of mind, not to prove the threats occurred.
In the pretrial hearing, the prosecutor made clear that he wanted to prove Liz’s fearful state of mind and did not intend to prove specific threats. At trial, shortly before Debbie Wright and other witnesses testified about Liz’s fear of defendant, the prosecutor repeated his intention to elicit testimony concerning Liz’s state of mind, not to prove past acts by defendant. During the examination of Liz’s friend, Glenn Morrill, the court gave a limiting instruction: “The witness has just said that he heard Elizabeth Posey say more than once that she was afraid of Michael Posey. That evidence is being offered to show the state of mind of Elizabeth Posey. What she believed. It’s not offered to prove anything other than that. It’s just her state of mind.” When examining the witnesses, the prosecutor never asked them to relate threats Liz received. The prosecutor broadly asked Jarrell, Smith, and Maruyama what Liz had told them about being afraid of defendant, and they replied that Liz reported being threatened. The defense did not move to strike these answers, nor ask for another jury instruction limiting use of the evidence. (Evid. Code, § 355; People v. Ferraez (2003) 112 Cal.App.4th 925, 934; 31 Cal.Jur. 3d (2008) Evidence, § 182.)
On another occasion, such a broadly worded question posed to Liz’s friend Elizabeth Webster was objected to on hearsay grounds, and the prosecutor reworded the question to avoid reference to a threat.
Nevertheless, defendant argues on appeal that the evidence should have been excluded because “expressions of mental state inevitably lead a jury to believe that if the victim was afraid of the defendant, that state of mind was based on the actual occurrence of threats or assaultive conduct.” The argument is against the weight of authority. “When the declarant’s state of mind is relevant and the statements of threats or brutal conduct are circumstantial evidence of that state of mind, the evidence is admissible so far as a hearsay objection is concerned.” (Rufo v. Simpson, supra, 86 Cal.App.4th 573, 598-599.) The Evidence Code contemplates that “[statements] of a decedent narrating threats or brutal conduct” may be used “as circumstantial evidence of the decedent’s fear.” (Assem. Com. on Judiciary com., 29B pt. 4 West’s Ann. Evid. Code (1995 ed.) foll. § 1250, p. 282.)
Defendant concedes that “threat evidence can be admitted in some cases for valid, non-hearsay purposes,” but argues that the threats evidence is this case was misused because the prosecution argued to the jury that defendant had, in fact, made threats. We cannot say that the danger of misuse was sufficiently grave that the trial court abused its discretion in allowing admission of the evidence. (Evid. Code, § 352.) As for the prosecutor’s alleged misuse of the threats evidence in closing argument to the jury, we discuss that claim later in the context of defendant’s other allegations of prosecutorial misconduct.
C. Admission of victim’s accusation of spousal rape
Among the witnesses who testified that Liz feared defendant was Liz’s friend and manicurist, Debbie Chiamparino Wright (formerly, Snider). On cross-examination, defense counsel tried to establish that the alleged fear was based on nothing more than verbal and emotional abuse, and that Liz never told Wright of any physical abuse. The defense insisted that Wright had never previously related claims of physical abuse when discussing Liz with investigators before trial. The effort backfired when Wright said it depends on what one calls physical abuse, and went on to describe sexual abuse in the form of forced intercourse.
On appeal, defendant argues that Wright’s testimony about spousal rape was inadmissible hearsay and violated his right to confront witnesses against him. We conclude that the defense forfeited any challenge to the evidence by introducing the subject on cross-examination. Having introduced part of Wright’s conversation with a police officer about spousal rape, the prosecution was entitled to inquire into the whole of the conversation. (Evid. Code, § 356; People v. Williams (1975) 13 Cal.3d 559, 564-565.) Moreover, the evidence was properly admitted as a prior consistent statement to rehabilitate a witness accused of fabricating testimony. (Evid. Code, §§ 791, subd. (b), 1236; People v. Jennings (1988) 46 Cal.3d 963, 983.) No violation of confrontation rights occurred because Liz’s discussion with her manicurist was not testimonial. (Crawford, supra, 541 U.S. at pp. 68-69; Davis v. Washington, supra, 547 U.S. at pp. 824-828; People v. Cage, supra, 40 Cal.4th at p. 984.)
1. The spousal rape testimony
The prosecution offered Wright’s testimony to establish three points: (1) Liz had a 3:30 p.m. appointment on the day she died and had never missed a manicure appointment in four years (thus questioning defendant’s account that Liz willingly stayed to talk with him after arriving at 3:00 p.m., and was still alive at 3:30 p.m. and shot just before he called the police at 3:46 p.m.); (2) Liz said she was afraid of defendant; and (3) Liz said she believed defendant was concealing assets from the divorce court.
On cross-examination, defense counsel explored Liz’s stated fear. “Q. You mentioned at some point she said she was afraid of Michael Posey; is that right? [¶] A. Yes. [¶] Q. But she never once told you that Michael Posey had ever been physical with her, did she? [¶] A. Um, yes. Well, depends, yes.” Defense counsel then implied that Wright was fabricating testimony in saying at trial that there had been physical abuse. “You never once told anybody on the prosecution side that . . . Elizabeth Posey told you that Michael Posey was physical with her, did you? [¶] A. I guess it depends on what physical part they’re talking about. What I guess what I interpret physical. [¶] Q. Well, isn’t it what Mrs. Posey told you is that she thought Michael Posey was emotionally and verbally abusive? Isn’t that what she told you? [¶] A. Yes. [¶] Q. And Mrs. Posey never once told you that Michael Posey had been physically abusive did she? [¶] A. No. She told me that there was some physical abuse.”
Defense counsel continued, unsuccessfully, to try to elicit an admission that Wright’s report of physical abuse was newly minted for trial and that although Wright now said Liz spoke of physical abuse, Wright had never relayed any claim of physical abuse to the prosecution or police during pretrial investigations. Counsel asked: “Do you recall Detective Lonergan specifically asking you whether it was a verbal abuse or physical abuse? Do you recall that? [¶] A. I don’t recall. [¶] Q. You recall that the only thing you told Detective Lonergan was verbal abuse? Do you recall that? [¶] A. No, I do not.”
A written report of Detective Lonergan’s interview of Wright shows that Wright reported emotional abuse, and never mentioned physical abuse in the form of beatings or the like. But Wright also told the detective that Liz said defendant was “very demanding regarding their sexual activity,” and that Liz’s “last pregnancy was the result of spousal rape.”
On redirect, the prosecution inquired into the witness’s conversation with Detective Lonergan and what Wright told the detective about defendant’s abuse of Liz. The prosecution asked, “do you remember talking to Detective Lonergan about something . . . Elizabeth had told you where she had been abused by the defendant? [¶] A. I guess it depends on what I consider abuse. [¶] Q. What did she tell you? [¶] A. Sexual abuse.” The prosecution asked Wright to relay what Liz had said, and defense counsel objected (without specifying grounds) and asked to approach the bench. The bench conference was unreported. Redirect examination continued: “Q. Describe what it is that she told you in terms of what she complained to you about that had happened to her in terms of sexual abuse. [¶] A. Forced. He forced her to please him orally. [¶] . . . [¶] Q. Okay. So you remember her complaining to you and saying that he had forced her to orally copulate him? [¶] A. And to have sex with him.” Questioning about the episode continued. Wright testified that Liz said that defendant “forced her head down to his privates and forced her to give him head, and then forced her to have sex.” Wright said Liz “believed that’s how their second child was conceived,” from “forced sex.”
On recross-examination, defense counsel challenged the credibility of Wright’s testimony. Counsel asked, and received negative replies, to a series of questions, including whether Wright ever encouraged Liz to take action for the alleged rape by filing a police report, seeking a restraining order, or getting a divorce. In closing argument to the jury, defense counsel dismissed Wright’s testimony as just another instance of the prosecution trying to “dirty up the defendant.”
2. The defense forfeited its right to contest evidence of spousal rape
The defense introduced the subject of Liz’s complaints of abuse, and thus forfeited its right to challenge the evidence on appeal. The prosecution’s direct examination of Wright was short; it is transcribed in fewer than eight pages. The prosecution did not elicit any evidence about particular misconduct by defendant. Wright simply testified that Liz, on more than one occasion, said she was afraid of defendant. The defense, in an effort to show no basis for the alleged fear, introduced the subject of whether defendant had physically abused Liz.: “Q. Well, isn’t it what Mrs. Posey told you is that she thought Michael Posey was emotionally and verbally abusive? Isn’t that what she told you? [¶] A. Yes.” The defense, which had a police report showing that Wright never reported Liz saying she had been punched or kicked, tried to get an admission that there was no “physical” abuse. But Wright (remembering Liz’s report of spousal rape) said there was physical abuse, depending on how one interprets the word “physical.” After the defense introduced the subject, the prosecution on redirect had Wright explain what she considered physical abuse, and Wright related Liz’s accusation of spousal rape.
On appeal, defendant says that defense counsel “misstep[ped]” by asking Wright to confirm that Liz had not mentioned physical abuse. Defendant contends that counsel was incompetent in doing so, which is a claim we address later. But defendant also contends that “if counsel’s misstep opened the door, it did so only slightly.” Defendant argues that, although cross-examination revealed that Liz had spoken of physical abuse, the prosecution should not have been permitted to introduce the details of that physical abuse.
We disagree. The cross-examination suggested that Liz had never told Wright of any physical abuse and that Wright’s trial testimony claiming otherwise was fabricated. Under those circumstances, admission of the content of the accusation of spousal abuse was necessary for an understanding of the statements introduced by the defense (to explain that Wright considered spousal rape to constitute physical abuse) and to rehabilitate Wright after her credibility had been impugned. (Evid. Code, §§ 356, 791, subd. (b), 1236; People v. Harrison (2005) 35 Cal.4th 208, 238-239; People v. Jennings, supra, 46 Cal.3d at p. 983; People v. Williams, supra, 13 Cal.3d at pp. 564-565.)
Defendant argues that, even if the details of the accusation were admissible, admission of the hearsay statements could not be admitted for the truth of Liz’s accusation. However, there is no record of defendant objecting in the trial court on this basis, and thus the issue is not preserved for appeal. (People v. Harris (2005) 37 Cal.4th 310, 335.) Nor did defendant request a limiting instruction. (Evid. Code, § 355.) In any event, were we to consider the claim on the merits, we would find the claim forfeited by defense counsel’s introduction of the subject of physical abuse on cross-examination, which the prosecution was then entitled to explore on redirect.
On appeal, defendant argues that the defense did not introduce the subject of abuse generally. Defendant argues: “When defense counsel sought on cross to have Wright elaborate on Elizabeth’s hearsay statements placed in the record by the prosecution on direct for the limited purpose of establishing the deceased’s state of mind, he did not change the nature of the testimony being elicited. That is to say, whatever Wright testified to on cross concerning Elizabeth’s statements was, like her testimony on direct, only admissible on the question of whether Elizabeth feared Posey; it could not constitute proof that events had in fact occurred that led her to fear Posey.”
The argument is unsupported by the record. Direct examination was limited to Liz’s fear. Defense counsel opened the door to whether that alleged fear had any foundation in physical abuse. The direct examination was short and limited in scope, most of which was conveyed in two questions: “Q. And did [Liz] ever say anything to you as far as being afraid of him? [¶] A. Yes. [¶] Q. And was that—was that on one occasion or more than one occasion? [¶] A. More than one occasion.” Cross-examination did not stay focused on Liz’s fear of defendant but probed deeply into whether there was any basis for the expressed fear. Defense counsel suggested that Liz was just “bad-mouthing” defendant and continually tried to get Wright to admit that Liz never spoke of physical abuse. The clear implication of cross-examination was that Liz never spoke about physical abuse because there was none. Under these circumstances, the prosecution was entitled to introduce Wright’s testimony about physical abuse (in the form of spousal rape) without limitation.
D. Admission of defendant’s generic threat
As noted above in our statement of facts, defendant’s friend, Eric Clarke, testified at trial to a statement defendant made years earlier, about Clarke’s own divorce. When Clarke told defendant that Clarke’s wife made the divorce difficult and costly, defendant said: “[I]f someone did that to me I would kill them.” The trial court admitted the testimony, over objection, under hearsay exceptions for party admissions and state of mind as circumstantial evidence that defendant acted in accordance with his stated intent, motive, and plan in killing Liz when she made divorce difficult and costly. (Evid. Code, §§ 1220, 1250, subd. (a)(2).) Under the state of mind exception to the hearsay rule, “a generic threat is admissible to show the defendant’s homicidal intent where other evidence brings the actual victim within the scope of the threat,” unless “the circumstances in which the statements were made, the lapse of time, or other evidence suggests that the state of mind was transitory and no longer existed at the time of the charged offense.” (Karis, supra, 46 Cal.3d 612 at 637; see Evid. Code, § 1252 [state of mind evidence inadmissible if circumstances indicate lack of trustworthiness].)
On appeal, defendant argues that defendant’s generic threat against wives creating difficult divorces was wrongly admitted. Defendant contends: 1) Liz was not within the scope of the threat because the divorce was not difficult, but “amicable”; and (2) too much time (eight years) had elapsed between the time of the threat and Liz’s death. The first contention is contradicted by the record, which contains powerful evidence of a difficult and costly divorce. The second contention has some initial appeal. Eight years is, indeed, a long time. However, we find that the trial court did not abuse its discretion in deciding to admit the testimony under the particular facts of this case.
1. Admissibility of generic threats
As defendant acknowledges, there is an established body of law permitting admission of generic threats—statements of intent that do not name a particular victim or time and place of the intended crime. In People v. Rodriguez (1986) 42 Cal.3d 730, 742-743, defendant was charged with killing two police officers when they stopped him for driving a stolen vehicle. The California Supreme Court upheld admission of defendant’s generic threats made in the preceding months that he would kill any officer who attempted to arrest him. (Id. at pp. 756-758.) In Karis, defendant was charged with kidnapping two women, raping one, and shooting them both. (Karis, supra, 46 Cal.3d at pp. 621-623.) One of the women died. (Id. at p. 623.) The court upheld admission of defendant’s statement, made three days before the abduction, that he would not hesitate to eliminate witnesses if he committed a crime. (Id. at pp. 626, 635-638.) In People v. Lang (1989) 49 Cal.3d. 991, 1013-1016, the prosecution was permitted to introduce defendant’s statement: “I’ll waste any mother fucker that screws with me.” The statement was made about a month before defendant shot a man, allegedly in self-defense. (Id. at pp. 1002, 1015.) In People v. Cummings (1993) 4 Cal.4th 1233, 1257-1258, 1266-1267, 1289, the court upheld admission that defendant said days before a police officer was shot during a traffic stop that, if the police tried to get him, he would get them first. In People v. Gutierrez (2002) 28 Cal.4th 1083, 1107, 1109-1110, 1138, the court rejected a claim that defendant’s generic threat (to kill a police officer) was too remote, when it was made seven months or longer before the charged offense of attempted murder of a police officer. In People v. Crew (2003) 31 Cal.4th 822, 830, 842, the court upheld admission of a generic threat (“I think I would like to kill someone, just to see if I could get away with it”) made several months before defendant allegedly killed his wife, whom he had specifically threatened.
2. Clarke’s testimony
Clarke was defendant’s friend. At trial, Clarke testified that he and his young daughter were driving home with defendant from a day trip to Lake Berryessa in 1988 when defendant asked questions about Clarke’s divorce. Clarke was reluctant to elaborate on the matter in front of his daughter, but he answered a number of defendant’s questions and, basically, told defendant that Clarke’s wife made the divorce “difficult and costly.” To Clarke’s shock and surprise, defendant responded: “[I]f someone did that to me I would kill them.” After Liz’s death eight years later, Clarke notified the police to report the conversation.
Clarke testified at an evidentiary hearing and on direct examination in front of the jury that defendant made the statement in or around 1988, eight years before Liz’s death. On cross-examination, Clarke vacillated and said it was possible the statement occurred in 1986.
At trial, Clarke denied the prosecutor’s suggestion that Clarke called the police because of any link in his mind between the statement and Liz’s death. Clarke insisted that he reported the statement to the police because he had previously mentioned the statement to friends, and wanted to explain the context of the statement should it reach the police. The prosecutor asked if Clarke had not also told the police that defendant made an additional statement, after saying he would kill someone, to the effect that “if I did it, I could get away with it.” Clarke said he did not remember defendant making that additional comment, but admitted that the transcription of his 1996 police statement reporting the comment was accurate. Clarke denied that defendant’s comment about getting away with murder was the motivating factor for calling the police. Clarke insisted that he called the police because defendant’s comment about killing a wife who made divorce difficult was a “dramatic” statement and he wanted to explain its genesis so it would not be misconstrued.
3. Clarke’s testimony was properly admitted
We review the trial court’s determination as to the admissibility of evidence, including the application of hearsay exceptions, for abuse of discretion. (People v. Rowland (1992) 4 Cal.4th 238, 264.) As noted above, “a generic threat is admissible to show the defendant’s homicidal intent where other evidence brings the actual victim within the scope of the threat,” unless “the circumstances in which the statements were made, the lapse of time, or other evidence suggests that the state of mind was transitory and no longer existed at the time of the charged offense.” (Karis, supra, 46 Cal.3d at p. 637.)
Defendant’s generic threat that he would kill a wife who made divorce difficult and costly was admissible because other evidence brought Liz within the scope of the threat. Defendant argues that his divorce was actually amicable, but substantial evidence exists to the contrary. The divorcing couple was in the midst of a dispute over a division of property worth as much as $400,000 and Liz suspected, rightly, that defendant was concealing additional assets. Days before her death, the divorce court ordered defendant to pay $7,500 to Liz’s lawyers for the express purpose of an extensive investigation into defendant’s finances. Liz’s divorce lawyer testified that defendant was angered by the fee award, and one of defendant’s employees said defendant was angry about the divorce.
Defendant also asserts that Liz was not within the scope of the threat because there were differences between Clarke’s and defendant’s divorces. In a proceeding outside the jury’s presence, Clarke testified that he had told defendant about “several incidents” during the divorce, including that Clarke’s wife had lied to mutual friends about who initiated the divorce, and delayed court proceedings while living in the family home. (Evid. Code, § 402.) In response to a “collection of things” Clarke described about his wife’s behavior, defendant said: “[I]f someone did that to me I would kill them.” (Italics added.) On appeal, defendant argues that Liz did not come within the scope of the threat because she did not behave in the exact same way as Clarke’s wife—there was no evidence, for example, that Liz lied to the couple’s mutual friends, as Clarke’s wife supposedly did. The argument is specious. Clarke’s wife did nothing more than create a difficult and costly divorce, as Clarke summarized the matter for the jury. It was this general behavior, not particular instances of conduct, that elicited defendant’s statement.
The stronger component of defendant’s argument against admissibility is his claim that too much time elapsed between his 1988 statement and Liz’s 1996 death. Defendant maintains that cases admitting generic threat evidence have concerned threats made days or months before the commission of the charged crime—not years. The People assert that the passage of time does not preclude admissibility and cite an analogous case in which a defendant’s declaration of intent made three years before the charged crime was held admissible. (People v. Taylor (2001) 26 Cal.4th 1155, 1173.) In Taylor, defendant was convicted of murdering a woman and paralyzing her husband, to obtain their black Corvette automobile while pretending to be a buyer responding to an advertisement listing the vehicle for sale. (Id. at pp. 1163-1164.) The trial court admitted testimony that defendant had planned three years earlier to commit another robbery and murder in order to obtain a black Corvette from its owner. (Id. at p. 1172.) The California Supreme Court upheld admission upon finding that the plan was not too remote in time to establish a preexisting intent to accomplish crimes like the one charged. (Id. at pp. 1172-1173.)
We find no abuse of discretion in the court’s decision to admit defendant’s statement about a wife causing a difficult and costly divorce: “[I]f someone did that to me I would kill them.” Although the lapse of time reduces the likelihood that a declared state of mind continued to exist at the time of the charged offense, the content and circumstances of the particular declaration must be considered in evaluating whether the lapse of time renders the declaration untrustworthy, and therefore inadmissible. (Evid. Code, § 1252; Karis, supra, 46 Cal.3d at pp. 636-637.) Here, the declaration was not made under the stress of a transitory emotional state. Defendant made the statement in a calm setting to a friend, and did so in “a matter of fact tone.” Defendant was age 36 at the time of the declaration, a mature adult of presumably considered views. The declaration was an unusually dramatic reaction to the recounting of stressful but nonthreatening events, and thus suggested a peculiar mental state unlikely to change over time. Difficult divorces are common; defendant’s reaction was not. Even defendant’s friend, who suffered the experience, found defendant’s statement shocking and upsetting. And, as the trial court noted, there was no evidence of any “intervening circumstances” to suggest that defendant “changed his mind about how he would handle a situation similar to what his friend [went] through.” In fact, the evidence was that defendant’s aggressive and bullying attitude toward women subsisted to the present. Under these circumstances, we cannot say the trial court abused its discretion in admitting the declaration.
E. Admission of expert testimony
As noted above, the prosecution presented forensic scientists who reconstructed the scene of the shooting and opined that defendant’s account of the shooting was inconsistent with the physical evidence. On appeal, defendant argues that the witnesses exceeded the proper limits of expert testimony by rendering an opinion on defendant’s credibility. We reject the argument. Experts may not opine on whether a witness is lying or telling the truth. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82; see Evid. Code, § 801, subd. (a).) But experts may opine on whether scientific facts exist to support a witness’s account of events. (Evid. Code, § 780, subd. (i).) The experts here did not exceed allowable limits of expert testimony.
1. General principles
“The general rule is that an expert may not give an opinion whether a witness is telling the truth, for the determination of credibility is not a subject sufficiently beyond common experience that the expert’s opinion would assist the trier of fact; in other words, the jury generally is as well equipped as the expert to discern whether a witness is being truthful.” (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 82.) In Coffman, that rule was violated when a psychologist opined that one of the defendants was “ “a credible reporter’ ” of events and “ ‘was not lying about what happened to her.’ ” (Id. at pp. 20, 81-83 & fn. 26.)
Experts are permitted to give testimony concerning crime scene reconstruction. (People v. Prince (2007) 40 Cal.4th 1179, 1223.) In doing so, experts commonly opine that a witness’s account of the events is inconsistent with the physical evidence. (People v. Tackett (2006) 144 Cal.App.4th 445, 452; People v. Minor (1994) 28 Cal.App.4th 431, 436; People v. Hansen (1992) 10 Cal.App.4th 1065, 1071.) Such expert opinions may indirectly challenge a witness’s veracity, by showing the facts to be inconsistent with the witness’s statements. Nothing precludes such testimony. (Evid. Code, § 780, subd. (i).)
2. Pretrial ruling
The defense moved in limine to preclude Di Maio, a forensic pathologist, from testifying that defendant lied in his account of the events leading to Liz’s death. The prosecution agreed that Di Maio should not say the defendant lied, but should be permitted to opine that defendant’s account of events is inconsistent with the evidence. The court granted the motion, ruling that Di Maio was “not allowed to call the defendant a liar in any way, shape, or form.” Di Maio could not, the court ruled, testify as to whether defendant’s statements were “consistent with the truth.” But the court explained that Di Maio could answer “no” to a question from the prosecutor asking “if somebody said that this is what happened, do you think the evidence is consistent with that?” After the prosecutor asked for further clarification, the court stated that Di Maio should not say that the evidence “totally contradicts what the defendant [says]” because such testimony is “just a little too close” to calling defendant a liar, but Di Maio “can say, ‘That statement is inconsistent with the evidence that I understand, and I’ll tell you exactly why it’s inconsistent,’ and [Di Maio] can explain his reasons.”
3. The testimony was properly admitted
The expert witnesses here did not say defendant was a liar, only that the forensic evidence they examined was inconsistent with defendant’s account of an accidental shooting during a standing struggle for a gun. The testimony was within the boundaries set by the trial court’s in limine ruling, and fully admissible.
(a) Vincent Di Maio, forensic pathologist
Forensic pathologist Vincent Di Maio testified that he reviewed “photographs of the scene and body”; the autopsy report; “all police investigative reports of the incident”; a scene diagram; interviews of defendant; photos of defendant taken after the incident; crime lab reports; a videotape of an expert’s examination of the weapon; and reports of several criminalists including Waller and Springer. Di Maio then summarized the evidence showing inconsistencies between defendant’s account of the shooting and the physical evidence.
As we recounted in our statement of facts above, Di Maio noted various inconsistencies: (1) defendant said he was unable to get the gun away from Liz but defendant was five feet, eight inches tall and weighed 175 pounds, while she was much smaller at five feet one inches tall and about 100 pounds; (2) defendant claimed an unsuccessful chest to chest struggle with a woman who had undergone breast surgery three days earlier and supposedly showed no expression of pain during the struggle; (3) Liz scratched defendant’s back just before the shooting (his back had scratch marks and her fingernails on both hands had fibers matching his shirt material), but defendant said her hands were on the gun during the struggle; (4) the blood spatter was inconsistent with a standing shot because the spatter was low to the floor and blood spray from the shot was on defendant’s shirt and pant leg but not on the gun or Liz’s hands and shirt sleeve cuffs; and (5) ballistics reports show that the spent casing from one of the two rounds fired in the kitchen jammed the gun during ejection (requiring that it be cleared before a second shot could be fired) but there was no jam mentioned in defendant’s account.
Di Maio opined that the evidence he examined was in “total disagreement” with defendant’s account of the shooting and “contradicts” defendant’s account. Di Maio noted, “this is objective scientific evidence: the fibers, the proportionate size, the blood and the jammed weapon.”
On cross-examination, defense counsel questioned Di Maio closely on the pathologist’s interpretation of the forensic evidence, and pressed Di Maio to admit alternative interpretations. Defense counsel also questioned Di Maio about the pathologist’s basis for concluding that the evidence was inconsistent with defendant’s police statement, and emphasized that defendant (interviewed shortly after his wife’s traumatic death) had told the police that things happened quickly and that he could not remember all the details.
At one point, the defense focused on Di Maio’s opinion that defendant’s statement that Liz’s hands were on the gun during the couple’s struggle was inconsistent with the existence of fibers under Liz’s fingers and scratch marks on defendant’s back. Di Maio asked, rhetorically, “how did the scratch marks occur if she has got a gun in her hand?” Defense counsel asked Di Maio if he had ever considered that Liz may have switched the gun from hand to hand during the struggle, and Di Maio replied that defendant did not describe such a situation. Di Maio explained: “what I am saying is that the objective evidence doesn’t agree with his account of the incident.” Defense counsel then pointed out that defendant told the police: “I think she had a two-handed grip,” and got Di Maio to concede that defendant did not positively say Liz had two hands on the gun when she shot at defendant and that defendant had told the police he was uncertain of all the details of the shooting. Having obtained the concession, defense counsel asked: “And today, though, you are coming here saying this man wasn’t telling the truth [about the shooting] because he said it was a two-handed grip?” Di Maio replied that he was not opining on defendant’s veracity: “Actually, you [defense counsel] said he wasn’t telling the truth[.] All I said was that the objective evidence doesn’t agree with the account of the incident.”
This final exchange emphasizes the limited nature of Di Maio’s testimony. The pathologist did not say that defendant was lying, which would have been improper. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 82.) Instead, Di Maio reviewed the physical evidence and explained why he believed the evidence was inconsistent with defendant’s account. The jury was left to decide whether any inconsistency was due to inadvertence (because defendant was in shock and could not remember all the details) or deliberate deception.
On appeal, defendant admits that Di Maio “was never asked about his opinion of the truth of [defendant] Posey’s statements.” But defendant argues that Di Maio’s testimony was nevertheless improper because the pathologist testified that the evidence contradicted defendant’s account of the shooting, thus suggesting that defendant was untruthful. We disagree. The expert did not invade the province of the jury by stating that the evidence was inconsistent with, or contradicted, defendant’s statements. The jury was the final arbiter of whether the inconsistency or contradiction was the result of inadvertence or deception.
A pathologist is free to testify that a defendant’s account of a shooting is inconsistent with forensic evidence. (People v. Mayfield (1997) 14 Cal.4th 668, 765-767.) In Mayfield¸ the California Supreme Court upheld admission of a forensic pathologist’s testimony that the victim’s fatal bullet wound could not have been inflicted in the manner defendant described in his trial testimony, given physical evidence relating to gun powder residue. (Id. at p. 766.) Di Maio’s testimony was similar to that approved in Mayfield¸ and was properly admitted into evidence.
Moreover, there is no reason to suppose that the jurors failed to follow instructions advising them that they were not required to accept the opinions of expert witnesses as “true or correct,” and emphasizing that the jurors “alone must judge the credibility or believability of the witnesses” and must “not automatically reject testimony just because of inconsistencies or conflicts.” (CALCRIM Nos. 226, 332.) The jury was also advised: “People sometimes honestly forget things or make mistakes about what they remember.” (CALCRIM No. 226.) The jury was thus well equipped to consider and to resolve the competing accounts of the shooting from defendant and the various experts presented by the prosecution and defense.
(b) Richard Waller and Fay Ann Springer, criminalists
Richard Waller, a senior criminalist for the State of California, testified over the course of three days of trial. Waller reconstructed the scene of the shooting based on the physical evidence and concluded that Liz and defendant were not standing when the fatal shot was fired. Based upon the location of blood spatter, among other things, Waller opined that Liz was on her knees. At the conclusion of Waller’s extensive testimony on direct examination, Waller was asked “in considering the defendant’s statement, specifically this April 19, 1996, statement where the defendant described his account of how Elizabeth Posey was killed, is there anything about the defendant’s account that is consistent with the evidence that we’ve discussed here?” Waller replied: “The only thing that I can think of that is consistent with the statement is that Mrs. Posey was shot in the head. Is consistent with that.”
Fay Ann Springer, another criminalist, agreed with Waller’s opinion that Liz was kneeling (or otherwise low to the ground) when she was shot and that defendant was likely bent at the waist or crouching. Concerning blood spatter evidence, the prosecution asked Springer: “in looking at Elizabeth Posey’s clothing, did you see any kind of evidence on her clothing, her hands, her cuff, the cuffs of her sleeves, shoes, any of that, that would be consistent with the defendant’s account of how this shooting occurred?” Springer replied: “Well, what’s not consistent is if her hands are in front or near the wound area, we would expect to find spatter on her hands or her cuffs, unless there was something shielded. [¶] Also, what would not be consistent is there’s no real physical evidence to indicate that she was standing. So there is no spatter on the front of her pants or on her shoes that would indicate that she was in a total upright position.”
We find nothing objectionable in the prosecutor’s examination of Waller and Springer. As with Di Maio, Waller and Springer did not say defendant was a liar, only that the forensic evidence they examined was inconsistent with defendant’s account of an accidental shooting during a standing struggle for a gun. The testimony was properly admitted. (People v. Mayfield, supra, 14 Cal.4th at pp. 765-767.)
Finally, we note that the prosecution was not alone in asking expert witnesses whether defendant’s police statement was consistent with the physical evidence. The defense asked similar questions of its expert criminalist, Celia Hartnett. Defense counsel asked Hartnett whether the blood spatter evidence and position of Liz’s body were consistent with defendant’s account of the shooting and inconsistent with the prosecution’s theory. The defense’s use of a similar mode of examining experts reinforces the prevalence, and propriety, of this technique.
F. Alleged prosecutorial misconduct
Defendant argues on appeal that the prosecutor “committed grave misconduct” in closing argument to the jury by (1) misusing Liz’s statements to friends that defendant threatened to kill her as evidence that the threats actually occurred, when the evidence was admissible only to show Liz’s fearful state of mind; and (2) misrepresenting Clarke’s testimony about defendant saying he would kill a woman who made divorce difficult to include the additional statement by defendant that, if he did it, he could get away with it. Defendant forfeited the claims by failing to object in the trial court. In any event, the claims do not warrant reversal of the judgment, as we explain below.
1. General principles
“The standards governing review of misconduct claims are settled. ‘A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such “ ‘unfairness as to make the resulting conviction a denial of due process.’ ” [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial.’ ” (People v. Parson (2008) 44 Cal.4th 332, 359.) However, a defendant’s conviction will not be reversed for prosecutorial misconduct that violates state law unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. (People v. Wallace (2008) 44 Cal.4th 1032, 1071.) “In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for appeal.” (Parson, supra, 44 Cal.4th at p. 359.)
In closing arguments to juries, prosecutors are entitled to vigorously argue their cases and “have wide latitude to draw inferences from the evidence presented at trial.” (People v. Welch (1999) 20 Cal.4th 701, 752-753; People v. Hill (1998) 17 Cal.4th 800, 823.) “ ‘ “ ‘It is the province of a district attorney to state to a jury the various conclusions that he draws from the evidence, and to make it clear to the jury what conclusions in his opinion should be drawn from the evidence introduced, so long as he keeps within the scope of conclusions which may properly be drawn.’ [Citation.] ‘The right of counsel to discuss the merits of a case, both as to the law and facts, is very wide, and he has the right to state fully his views as to what the evidence shows, and as to the conclusions to be fairly drawn therefrom. The adverse party cannot complain if the reasoning be faulty and the deductions illogical, as such matters are ultimately for the consideration of the jury.’ ” ’ ” (People v. Woods (1991) 226 Cal.App.3d 1037, 1056.) Although a prosecutor is given wide latitude to argue his or her case, it is misconduct for a prosecutor to mischaracterize the evidence or to refer to facts not in evidence. (Hill, supra, at pp. 823, 827-828)
2. The closing argument concerning Liz’s fear of defendant
The prosecutor presented a long closing argument to the jury. His initial remarks span more than 100 pages of the reporter’s transcript, and his rebuttal, following defense counsel’s almost equally long closing argument, is 27 pages in length. During the course of his closing argument, the prosecutor turned to Liz’s fear of defendant, and her reports of threats: “[T]here is the sobering evidence that you hear with regards to Michael Posey’s threats to kill Elizabeth Posey. When Elizabeth is down in Modesto the last time that she sees Tara Maruyama, which is like January or February, she tells her about the fact that the defendant said if you leave me I will kill you. Glenn Morill testified she told him she was afraid she was going to die. That Michael Posey was a smart person. He’d find a way to kill her, and she was concerned what would happen to her kids. Pathetic. [¶] Doug Smith her attorney who was pushing her to get a restraining order and to put the details in, and she’s like I don’t want to do that. Probably because of the advice of Glenn Morrill who said don’t get a restraining order. Just stay away from him. Told about the defendant’s threats to kill, and that as we talked about she said I think I’m safe as long as I’m with the children. [¶] And then also her friend Beth Webster who told you Elizabeth told me about the defendant’s threats to kill her and that she was afraid.”
Webster did not actually relate threats. Webster was asked, “did Elizabeth [Posey] tell you at that time that she was fearful that the defendant was going to kill her?” and Webster replied: “Yes.”
As we explained earlier, testimony that Liz reported being threatened was introduced as circumstantial evidence of her fear, not to prove that defendant actually threatened her. Defendant argues on appeal that the prosecutor’s argument, set out above, misused the evidence for the latter, forbidden purpose.
Defendant made no objection to the prosecutor’s remarks and sought no curative admonition regarding any of the prosecutor’s remarks on this subject. He has therefore forfeited appellate review. (People v. Parson, supra, 44 Cal.4th at p. 359.) “ ‘Because we do not expect the trial court to recognize and correct all possible or arguable misconduct on its own motion [citations], defendant bears the responsibility to seek an admonition if he believes the prosecutor has overstepped the bounds of proper comment, argument, or inquiry.’ ” (People v. Wilson (2008) 44 Cal.4th 758, 800.)
Even assuming defendant’s complaint with closing argument was preserved for review, we would reject it as meritless. The prosecutor did not directly rely on the threats evidence to prove that defendant threatened his wife and, inferentially, carried out those threats. But the argument was suggestive on that point, and the prosecutor was wrong to suggest there was evidence of actual threats. Nevertheless, a prosecutor’s misuse of evidence admitted for a limited purpose does not necessarily warrant relief. (People v. Ortiz, supra, 38 Cal.App.4th 377, 396.) In Ortiz, the prosecutor made a brief comment during closing argument suggesting the truth of the content of a statement made by the victim and admitted only to show the victim’s state of mind. (Ibid.) Although the comments challenged here are longer, they are still relatively brief in the context of a lengthy argument. The comments did not constitute “ ‘deceptive or reprehensible methods to persuade the jury’ ” and certainly did not infect the trial with “ ‘ “such unfairness as to make the resulting conviction a denial of due process.” ’ ” (People v. Parson, supra, 44 Cal.4th at p. 359.) Nor is it reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. (People v. Wallace, supra, 44 Cal.4th at p. 1071.)
3. The closing argument concerning Clarke’s testimony
As discussed above, defendant’s friend, Eric Clarke, testified that he had told defendant that Clarke’s wife made divorce difficult and costly, to which defendant replied: “[I]f someone did that to me I would kill them.” After Liz’s death eight years later, Clarke notified the police to report the conversation. The prosecutor asked if Clarke had not also told the police that defendant made an additional statement, after saying he would kill someone, to the effect that “if I did it, I could get away with it.” Clarke said he did not remember defendant making that additional comment, but admitted that the transcription of his 1996 police statement reporting the comment was accurate. Clarke denied that defendant’s comment about getting away with murder was the motivating factor for calling the police. Clarke said he called the police because defendant’s comment about killing a wife who made divorce difficult was a “dramatic” statement and he wanted to explain its genesis so it would not be misconstrued.
In closing argument to the jury, the prosecutor summarized Clarke’s testimony. Defendant complains that the prosecutor misrepresented that testimony. We conclude that the argument was fair comment and extrapolation from the evidence.
The prosecutor began by stating “Michael Posey said to Eric Clarke back in 1988 after Eric Clarke described to him a situation where he was going through a difficult divorce, he told him . . . .” Defense counsel objected on the ground that the comment “misstates the evidence,” possibly because the prosecutor referred to the year as 1988 but Clarke had vacillated about the year under cross-examination. The court advised the jury: “We’ll probably hear a little bit of disagreement from time to time between the lawyers about what the evidence was. I don’t want to comment on the evidence, so I’m going to tell you right now it’s your recollection of the evidence that counts not theirs. What they say during arguments is not evidence. What they put on charts is not evidence. Base your decision on the actual evidence in this case. They’ll both have a chance to comment on them on their view of what it is.”
The prosecutor began again, stating: “[defendant] said to Mr. Clarke in a very matter of fact tone, if somebody did that to me I’d kill them. And a little further on he said and if you did it right you wouldn’t get convicted anyway. [¶] And you remember Mr. Clarke talking about that and saying I was shocked that he said something like that. I was shocked that he said it first of all period. I was shocked that he said it in front of my daughter. And then he said you could get away with it if you did it right. You wouldn’t get convicted anyway. [¶] He was very concerned about that and remembered that. And the thing that is very powerful about that, ladies and gentlemen, is that eight years went by . . . . [¶] But the thing that happened that’s very significant is that Elizabeth Posey was killed in the Maplewood residence on April 19th of 1996. It was in the papers. Mr. Clarke told you that he saw that. His blood went cold. He was concerned about that. Concerned enough, ladies and gentlemen, that even though they had been friends, even though they had talked about lots of different things, he called the police and said I need to talk to you about this. And meet Michael Posey, if somebody did that to me, if he went through a divorce like that I’d kill them, and if you did it right you wouldn’t get convicted anyway. [¶] And, ladies and gentlemen, the case that you’ve heard, all of the evidence that you’ve heard in this case is about Michael Posey trying to do it right. And how do you do it right, ladies and gentlemen? You stage a crime scene. You create evidence. You create situations in terms of problems. You have your wife arrested for domestic violence when she threw a little child’s sippy cup at you. You do all these types of things. But most important, ladies and gentlemen, if you’re going to do it right you need to stage the murder. And you need to be careful how you do that, and you need to think about it.”
On appeal, defendant argues that the prosecutor misrepresented Clarke’s testimony because there was no competent evidence that defendant said he could get away with murder. Defendant notes that the prosecutor tried to refresh Clarke’s recollection on the point, without success. The prosecutor asked Clarke: “after [defendant] told you, if somebody did that to [him] in a divorce [he’d] kill them, . . . you then talked to him that would be wrong to do that, didn’t you?” Clarke replied “I cannot remember that.” The prosecutor asked: “Do you recall the defendant then talking to you about the fact [that] if, if he did it, he could get away with it?” Clarke replied: “I do not recall that now. I saw that in my transcript, but I do not recall that at this time.”
But the examination did not end there. The prosecutor continued to press the matter, and established that Clarke’s trial testimony was inconsistent with his statement to the police. “Q. And, isn’t it true that the defendant told you, after you said you talked to him about this, he told you that he would kill somebody if they did what had happened, what your wife had done to you in your divorce, that the defendant then told you, well, if I did it, I could get away with it? [¶] A. I saw, saw that in my transcript, but I don’t recall that now. I just don’t remember that. [¶] Q. So you remember everything else about that but you don’t remember that? [¶] A. I don’t remember that follow up part, yeah. [¶] Q. And when you read the transcript, that appeared to be an accurate transcription of your conversation? [¶] A. Yes. I’m not denying that I didn’t, but I just don’t recall it.”
Although an inartful examination, it is sufficiently clear that Clarke was confronted with his prior inconsistent statement to the police, and admitted telling the police that defendant said “if I did it, I could get away with it.” (Evid. Code, § 769, 1235.) If there was any doubt about the matter, it was cleared up in later questioning of Clarke. The prosecutor asked Clarke if he contacted the police after Liz’s death because he was concerned about defendant’s statement about getting away with murder. In this exchange, Clarke posited defendant’s statement about escaping conviction as fact, but denied that the statement was his motivation for calling the police. “Q. And one of the—isn’t it fair to say that one of the things that concerned you, that you read in your statement, was his statement to you, if you did it right you wouldn’t get convicted anyway? [¶] A. You know, I don’t recall that as being the motive. The relevance. It was more the statement. Uhm—. [¶] Q. Didn’t that, isn’t that one of the reasons that you contacted law enforcement, because that statement really bothered you, that if you did it right—. [¶] A. No. [¶] Q. —you wouldn’t get convicted? [¶] A. No, that he said, if somebody did that to me I would kill them, that’s a dramatic statement. And I wanted to make sure it wasn’t presented—that didn’t come up in any ad hoc way. [¶] Q. And [the] second part of the statement, it’s you testimony that part didn’t bother you, as far as, if you did it right you wouldn’t get convicted anyway? [¶] A. Well, he generally, you know— [¶] . . . [¶] Q. Would it be fair to say, yes or no, that that part of the statement didn’t disturb you; is that what you are telling us or testifying to today? [¶] A. That’s not the reason I called them, that part of the statement.”
The prosecutor’s argument was therefore proper. Although Clarke initially said he could not remember defendant talking about getting away with murder, Clarke admitted that he had earlier reported the remark to the police. Clarke’s prior inconsistent statement to the police was admissible as substantive evidence. (People v. Sapp (2003) 31 Cal.4th 240, 295-297.) Clarke also later affirmed the existence of defendant’s remark as fact. Defendant has misread Clarke’s testimony in arguing that there is no competent evidence that defendant said he could get away with murder. The evidence is in the record. And defendant has misread the prosecutor’s closing argument in maintaining that the prosecutor wrongly said the “getting away with it” portion of defendant’s remarks is what motivated Clarke to telephone the police. The prosecutor did not specify which portion of the remarks motivated the telephone call. In any event, prosecutors “have wide latitude to draw inferences from the evidence presented at trial.” (People v. Hill, supra, 17 Cal.4th at p. 823.) The prosecutor was entitled to argue a different motivation for Clarke’s telephone call than the one the witness claimed.
Moreover, the jury was admonished, and instructed, that nothing the attorneys say is evidence. (CALCRIM No. 222.) If the prosecutor did make improper comments on Clarke’s testimony, it is not reasonably probable that a result more favorable to the defendant would have been reached without the challenged comments. (People v. Wallace, supra, 44 Cal.4th at p. 1071.)
G. Alleged ineffective assistance of counsel
Defendant acknowledges that his retained trial attorneys, Colin Cooper and Kellin Cooper, “fought vigorously for their client” but contends that they made mistakes that deprived him of the effective assistance of counsel. We find no grounds for faulting defense counsel.
1. General principles
“In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it ‘fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms.’ [Citations.] Unless a defendant establishes the contrary, we shall presume that ‘counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.’ [Citation.] If the record ‘sheds no light on why counsel acted or failed to act in the manner challenged,’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ [Citations.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 745-746.)
2. Wright’s testimony about spousal rape
Defendant’s chief complaint is that defense counsel opened the door to Wright’s testimony about spousal rape. As described earlier, Wright testified on direct examination by the prosecutor that Liz reported being afraid of defendant. On cross-examination, defense counsel tried to establish that the alleged fear was based on nothing more than verbal and emotional abuse, and that Liz never told Wright of any physical abuse: “Q. And Mrs. Posey never once told you that Michael Posey had been physically abusive did she? [¶] A. No. She told me that there was some physical abuse.” The defense responded to Wright’s assertion by trying to show that Wright never spoke of physical abuse until trial. “Q. You never once told Detective Lonergan that Mrs. Posey told you that Michael Posey had been physical with her, did you? [¶] A. No. [¶] Q. You never once mentioned that . . . when you testified previously regarding this case, did you? [¶] A. No.”
A written report of Detective Lonergan’s interview of Wright shows that Wright reported emotional abuse, and never mentioned physical abuse in the form of beatings or the like. But Wright also told the detective that Liz said defendant was “very demanding regarding their sexual activity,” and that Liz’s “last pregnancy was the result of spousal rape.”
On redirect, the prosecution inquired into the witness’s conversation with Detective Lonergan and what Wright told the detective about defendant’s abuse of Liz. The prosecution asked, “do you remember talking to Detective Lonergan about something . . . Elizabeth had told you where she had been abused by the defendant? [¶] A. I guess it depends on what I consider abuse. [¶] Q. What did she tell you? [¶] A. Sexual abuse.” The prosecution asked Wright to relay what Liz had said, and defense counsel objected (without specifying grounds) and asked to approach the bench. The bench conference was unreported. Redirect examination continued: “Describe what it is that she told you in terms of what she complained to you about that had happened to her in terms of sexual abuse. [¶] A. Forced. He forced her to please him orally. [¶] . . . [¶] Q. Okay. So you remember her complaining to you and saying that he had forced her to orally copulate him? [¶] A. And to have sex with him.”
3. Defense counsel was not incompetent in questioning Wright
“ ‘[T]he means of providing effective assistance are many and . . . as a consequence counsel has wide discretion in choosing which to use.’ ” (People v. Ledesma, supra, 39 Cal.4th at p. 747.) On the record before us, it appears that defense counsel decided to challenge Wright’s testimony about Liz’s fear of defendant by establishing that Liz never reported defendant hitting or kicking her. Defense counsel phrased his questions in terms of physical abuse and nearly succeeded in getting Wright to admit that there was no physical abuse. But the tactic backfired when Wright said it “depends” on what one means by physical abuse, which led to the allegations of coerced sex.
Defendant’s argument that trial counsel was negligently unprepared and surprised by Wright’s allegations is refuted by the evidence presented on the motion for new trial. Trial counsel’s files contain a transcript and report of Detective Lonergan’s 1996 interview of Wright, in which Wright reported Liz saying her youngest child was conceived by rape. The interview was apparently read by counsel because the transcript has handwritten underlining, including underlining of Wright’s statement that Liz feared defendant. Moreover, there are handwritten notes in the file directly referencing the allegation of spousal rape: “LP [Liz Posey] told her [Wright] last pregnancy a result of marital rape.” But there are also notes from an apparent telephone conversation between defense counsel and Wright, stating that Liz spoke of emotional abuse and “Liz never said [defendant] physically abusive” and Wright “never saw any injuries.” These notes suggest that defense counsel was well aware of the spousal rape allegation, but wanted to elicit Wright’s admission that there was no physical abuse in the form of injurious beatings.
As the prosecutor characterized the situation in opposing the motion for new trial: Defense counsel “Kellin Cooper clearly knew that Debbie Wright’s statement to Detective Lonergan included the facts of the forcible rape and oral copulation. Mr. Cooper apparently gambled that he could pummel Wright with questions about ‘physical violence’ and that such questions would not make the ‘sexual violence’ evidence admissible.” Appellate counsel says the assertion is illogical because everyone knows that coerced sex in marriage meets any definition of physical abuse. Unfortunately, that is not so. More importantly, it does not appear that defense counsel believed that allegations of coerced marital sex necessarily constituted physical abuse, or would be perceived that way by the witness he was cross-examining. Even after Wright’s testimony, Attorney Kellin Cooper argued in closing argument to the jury that “there is not one shred of evidence, not one scintilla of evidence, that Mike Posey ever, ever, laid a finger on Liz Posey.” Trial counsel’s point—in examining Wright and arguing to the jury—was that defendant was charged with murdering his wife yet had no proven history of beating his wife. Counsel’s decision to pursue this point was a tactical trial decision that we will not second guess on appeal.
Defendant’s proposed interpretation of the events—that trial counsel once knew about the spousal rape allegations but somehow forgot about them when he cross-examined Wright—is pure speculation. This interpretation is also highly improbable since the time between counsel’s retention in 2005 and trial in 2006 seems far too short a time for one to forget rape allegations. Moreover, the record refutes defendant’s claim that trial counsel must have relied solely upon the notes from his phone conversation with Wright when preparing for trial rather than the transcript of the police interview. Trial counsel showed a keen understanding of the police interview, as demonstrated in his questioning of Wright in which he referred repeatedly and specifically to Detective Lonergan’s interview. Defendant has failed to establish that trial counsel’s performance was deficient.
4. Defendant’s remaining claims of deficient performance
Defendant faults trial counsel for a number of additional reasons, all of them relating to matters previously discussed concerning the admission of evidence and the prosecutor’s argument to the jury. Our previous treatment of the matters makes a long discussion here unnecessary. As we have explained, much of the challenged evidence was properly admitted, and thus trial counsel’s lack of objection was not incompetent. Where an objection may have been warranted, the lack of objection was not prejudicial.
Nor do we fault defense counsel for presenting evidence that Liz had a violent character, which permitted the prosecution to counter with evidence of defendant’s violent character. (Evid. Code, § 1103, subd. (b).) As we discussed earlier, defendant relied upon Liz’s supposed violent attack upon him to explain her death. His account of the shooting depended upon Liz being volatile enough to try to kill her husband. Defendant’s prospect for exoneration was improved by substantiating defendant’s police statement that Liz was a violent person, and thus it was a reasonable defense tactic to introduce evidence of Liz’s alleged erratic nature.
The trial judge, who was in the best position to make a determination about the competency of trial counsel, stated that defendant’s trial attorneys “were very, very good trial lawyers” and “two of the very best trial lawyers” the judge had seen. We find no basis for departing from that assessment and declaring trial counsel incompetent.
IV. DISPOSITION
The judgment is affirmed.
We concur: Ruvolo, P. J., Rivera, J.