PEOPLE v. CLEOPHUS PRINCE, JR

Filed 4/30/07

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S036105

v. )

)

CLEOPHUS PRINCE, JR., )

) San Diego County

Defendant and Appellant. ) Super. Ct. No. CR130018

__________________________________ )

Story continued from Part III .

The court ruled that Ankrom would not be permitted to testify regarding the VICAP database but stated it credited Ankroms testimony that his opinion would not be based upon the FBI database.

The defense renewed the discovery request at the conclusion of Ankroms testimony on direct examination, claiming Ankroms conclusion that the clustered stabbing pattern in the present case was in our experience a rare occurrence must have been based on a comparison of the present case with the cases in the FBI database, and that discovery of that database was essential to permit adequate cross-examination.

The court denied the motion, stating: I dont think its necessary for this witness, or any other witness for that matter, to bring in each and every prior case that one has examined in order to provide a fair opportunity to cross-examine that witness.

Defense counsel then cross-examined Ankrom, eliciting testimony that he never had worked as a homicide investigator and never had been to a homicide crime scene, and that he never had examined a map of the entire San Diego County area and was not certain of the location of the sites of the murders within the area. Defense counsel vigorously challenged the witnesss view that certain elements of the crimes were similar and distinctive, asking him to compare the present crimes with others in which the perpetrator left bizarre signature marks. Under cross-examination, Ankrom conceded that another unsolved stabbing case that occurred in San Diego County while defendant was in custody bore certain similarities to the charged murders. Defense counsel himself then elicited the information that the witness had consulted a large FBI database, and attempted unsuccessfully to bring before the jury the circumstance that the defense had not been provided access to that database. On inquiry by defense counsel, the expert again expressed his opinion that the crimes were committed by a single person, but that this opinion was not based on the database.

On appeal, defendant contends the trial court erred in denying his discovery motion directed at the FBI database allegedly used by Ankrom (and Douglas) in forming the opinion that all the murders charged in the present case were committed by the same person.

Defendant claims the denial of discovery deprived him of fundamental fairness because, he claims, it impaired his ability to cross-examine the expert as to the basis for his opinion. Defendant also relies upon Evidence Code section 721, subdivision (a), which provides that a witness testifying as an expert may be cross-examined to the same extent as any other witness and, in addition, may be fully cross-examined as to . . . (3) the matter upon which his or her opinion is based and the reasons for his or her opinion. Defendants argument is premised upon the circumstance that an experts stated opinion is only as reliable as the matter that forms the basis for his or her opinion. In the view of the defense, it was forced to accept the mere conclusions of the witness, without the materials needed to test their strength.

The defendant generally is entitled to discovery of information that will assist in his defense or be useful for impeachment or cross-examination of adverse witnesses. [Citation.] A motion for discovery must describe the information sought with some specificity and provide a plausible justification for disclosure. [Citation.] The courts ruling on a discovery motion is subject to review for abuse of discretion. [Citation.] (People v. Jenkins, supra, 22 Cal.4th at p. 953.)

The defense was not entitled to examine all the written records generated during Ankroms career in order to be able to cross-examine him concerning his own professional experience. (See People v. Roberts, supra, 2 Cal.4th 271, 299 [a defendants right to confrontation was not violated by the courts denial of a request for discovery of the many sources of the experts gang expertise, including conversations with inmates and other investigations].) Nor was the defense entitled to challenge the basis for the experts opinion by examining him concerning a database not relied upon by the expert.

Defendant disputes that Ankrom could have formed his opinion without relying upon the database. He claims the distinctive marks identified by Ankrom as the basis for his opinion were not truly distinctive, so that the only true basis for Ankroms opinion must have been his mental comparison of the charged crimes with all the other crimes in the VICAP database. We are not persuaded. At the pretrial hearing on the admissibility of the experts testimony, the court credited the experts claim that his opinion was not based upon the database, and Ankrom had ample personal experience upon which to base his opinion.

With respect to defendants right of confrontation and cross-examination at trial, defendants lack of access to the VICAP database did not impair his ability to cross-examine the expert concerning the basis for his opinion, nor was it unfair to permit the expert to testify without providing such access. The expert informed the court that the database was not the basis for his opinion, and the court credited this claim. Ankrom personally had reviewed records in more than 100 murder cases in which a female victim was stabbed to death. The trial court acted well within its discretion in concluding that Ankrom based his opinion upon his personal experience in the field of crime analysis, and at trial Ankroms testimony conformed to this expectation on the part of the trial court. Defendant cross-examined the expert regarding his training and the scope of his experience, and challenged the experts opinion by questioning him on the differences that existed among the charged crimes. In addition, as the trial court noted, the defense could have impeached the witness by presenting coroners testimony that the stabbing wounds in each murder were distinctive.

Defendant contends that an arbitrary deprivation of state-created discovery rights deprived him of due process of law, citing Hicks v. Oklahoma (1980) 447 U.S. 343, but he fails to identify any violation of such rights.^[1]

Defendant also relies upon People v. Price (1991) 1 Cal.4th 324 for the proposition that a defendant should be given wide latitude in the cross-examination of experts to test their credibility. [Citation] If a witness frustrates cross-examination by declining to answer some or all of the questions, the court may strike all or part of the witnesss testimony [and] . . . may decline to admit the testimony in the first instance. (Id. at p. 421.) In that case, we concluded the court did not abuse its discretion in excluding the testimony of a defense witness concerning prison gangs, because the expert was unwilling to identify the persons he had interviewed for the study that formed the basis for his opinion. The court was within its discretion in concluding that the experts unwillingness to disclose would unduly impair cross-examination. (Ibid.) But in the present case, the database that defendant wished to examine was not the basis for the witnesss opinion.

Defendant contends that withholding access to the FBI database violated his constitutional right to effective counsel, thus denying him the right to present a meaningful defense, a fair opportunity to be heard, and the constitutional right to reliable factfinding in a capital case. Defendant has not identified a state law or constitutional right affording access to the FBI database, so his right to effective counsel was not impacted. There was no denial of a state-created right; as we have seen, defendant had the opportunity to present a meaningful defense and had a fair opportunity to be heard with respect to the admissibility of the expert testimony, and his inability to examine the expert concerning something the expert denied considering as a basis for his opinion did not undermine the reliability of the factfinding process.

Defendant invokes his right to compulsory process, claiming his lack of access to the FBI database depriv[ed] [him] of evidence clearly bearing on the credibility of key prosecution witnesses. In support, he cites Brady v. Maryland (1963) 373 U.S. 83, Kyles v. Whitley (1995) 514 U.S. 419, and Pennsylvania v. Ritchie (1987) 480 U.S. 39, 57-58. As these cases recognize, the prosecution must disclose material exculpatory evidence to the defense. (See also In re Brown (1998) 17 Cal.4th 873, 879 [discussing application of this principle to information under the control of separate agencies that form part of the prosecution team]; In re Sassounian (1995) 9 Cal.4th 535, 543-544 [discussing the right to disclosure of evidence that would impeach a prosecution witness].) But the database is not part of the record, and the record on appeal does not indicate there exists any material or exculpatory evidence in the database. As we have done in the past, [b]ecause defendants claim is dependent upon evidence and matters not reflected in the record on appeal, we decline to consider it at this juncture.  (People v. Jenkins, supra, 22 Cal.4th at p. 952.)^[2]

Finally, defendant claims that Ankroms testimony encouraged the jury to ignore any reasonable doubts and to rely upon his expertise, while the denial of defendants discovery request left the defense unable to test the strength of the bases of the witnesss conclusions. The consequence, defendant claims, was that the court improperly lightened the prosecutions burden of proof beyond a reasonable doubt. We reject this claim, having determined that Ankrom properly was permitted to testify as an expert and that defendant had an adequate opportunity to challenge the basis for Ankroms opinion.

4. Admissibility of evidence of defendants statements

Defendant contends the trial court abused its discretion in permitting the testimony of Robin and Robert Romo and Ernest Tuua recounting defendants incriminating statements.

a. The Romos testimony

Robin Romo testified she resided in an apartment in the Buena Vista Gardens complex with her husband Robert and a roommate, Tony. Defendant visited her home weekly, partly to see her roommate, with whom he worked out in the gym on an almost daily basis. Within one or two days after the murder of Holly Tarr, defendant visited her. Robin Romo informed him of Tarrs murder, and he said Yes, I remember. I was at the pool. I saw her leaving. Defendant did not explain how he had recognized Tarr prior to the publicity surrounding her murder. One or two days later, defendant visited again while Robins husband and two other persons were present. Robin testified that defendant told them that he had gone out on a date with this woman and was taking her home. He knew that she wanted him. When they got there she had changed her mind and said that he was crazy. And so he forced himself on her. Then when he was done, got up, turned around, she was crying, so he said he went back and did her again, got dressed and left.

Robert Romo testified that defendant had discussed his relations with women and had said something about a girl crying. Defendant may have mentioned slapp[ing] her around. In sum, he was leaving some girl, she was crying and she had said something to him. He had said that he went back to her, did her again. According to Robert, defendant was graphic and vulgar in describing his relations with women.

David Holden, who was an acquaintance of defendants early in 1991, testified that defendant told him he had met a girl named Janene and had worked out with her at a club. Defendant told Holden that he had gone to the womans home and had sex with her on one or two occasions, but that he could not continue the relationship because the woman was married.^[3]

Prior to trial, defendant objected to the admission of the incriminating statements he made to Robin Romo, citing the corpus delicti rule and Evidence Code sections 352 and 1101, as well as the Fifth and Fourteenth Amendments to the United States Constitution and parallel provisions of the California Constitution. Defendants theory was that the statement admitted the commission of another rape (not the rape of Janene Weinhold), that a corpus delicti had not been established for the other rape, that the uncharged rape constituted improper bad character evidence under Evidence Code section 1101, and that this evidence should have been excluded under Evidence Code section 352 as more prejudicial than probative. The superior court (Wellington, J.) determined that circumstantial evidence tied defendant to the rape of Weinhold, and that defendants admission was relevant to prove that defendant had raped Weinhold. The court declared: By itself, unsupported by the rest of the evidence, it would be pretty unpersuasive and perhaps inadmissible; but in context with the rest of it, frankly, it is my impression that it is a substantial and significant point. In the courts view, defendants claim that the connection to the Weinhold murder was too tenuous to make this evidence admissible went to the weight of the evidence, not its admissibility. When the case was transferred to the trial court, Judge Hayes adopted Judge Wellingtons comments and rulings, adding that the evidence did not constitute bad character evidence under Evidence Code section 1101, because it related to a charged crime.

At trial (after Robin Romo and David Holden already had testified), defendant objected to the admission of Robert Romos testimony on the same grounds raised with regard to Robin Romos testimony, emphasizing that Roberts testimony should be excluded as character evidence barred by Evidence Code section 1101, that it was cumulative to Robins testimony, and that it was unduly prejudicial. The court thereafter ordered the witness to be examined outside the presence of the jury, warning him not to refer to defendants statement that he had tied up a woman and not to volunteer any information. Defendant renewed his objection under Evidence Code section 352. The court responded that the evidence was relevant and that its probative value outweighed its prejudicial impact, overruling the objection on the same basis upon which it earlier had ruled on the admissibility of Robin Romos testimony.

Defendant contends the statements made by Robin Romo were of slight probative value, because they were made some seven weeks after Weinholds murder, they did not identify the woman to whom defendant referred in his admission, there was no evidence defendant had a consensual dating relationship with Weinhold, the statements reference to a date seems inconsistent with a midday murder, and the statement was ambiguous. On the other hand, defendant argues, the prejudicial impact of the evidence was great because it suggested defendant had a disposition to sexually assault women and, he claims, the evidence was used in the prosecutors closing argument to just that effect.

We examine the courts action for abuse of discretion (People v. Rowland (1992) 4 Cal.4th238, 264) and conclude that the court did not abuse its discretion in denying defendants Evidence Code section 352 motions to exclude the Romos testimony. Contrary to defendants claim, this testimony had a tendency in reason to prove or disprove any disputed fact (Evid. Code,  210), namely that he had raped Weinhold in the weeks prior to his conversation with the Romos. Defendant was linked to the crime by the DNA evidence, his statement to Holden that he had been dating a woman named Janene, and the testimony of Weinholds neighbor that she had observed defendant sitting on the stairs leading to Weinholds apartment. Indeed, as the trial court observed, the statements defendant made to the Romos had considerable probative value. Further, these statements were admissible even if they were not clear and unambiguous admissions, and even though they did not include any admission of the murder. (People v. Kraft, supra, 23 Cal.4th at p. 1035). Contrary to defendants claim, the statements did not constitute evidence of other crimes reflecting negatively on defendants general character  their reference was to a charged crime.

Defendant contends the court did not expressly weigh the prejudicial impact of the evidence against its assertedly slight probative value. Although the record must affirmatively show that the trial court weighed prejudice against probative value (People v Padilla (1995) 11 Cal.4th 891, 924, disapproved on another point in People v. Hill (1998) 17 Cal.4th 800, 822-823, fn. 1), the necessary showing can be inferred from the record despite the absence of an express statement by the trial court. (Ibid.) The record indicates the court gave careful consideration to defendants claims at hearings held outside the presence of the jury. The court considered an offer of proof as to the anticipated testimony of Robert Romo and excluded certain damaging elements of the witnesss statements from evidence. The court referred to the high probative value of the evidence, and we properly may infer that the court determined that the probative value outweighed any undue prejudice.

Defendant contends the trial court also erred in its ruling admitting Robert Romos testimony for the reason that this testimony was cumulative and added highly prejudicial matter through Romos volunteered statement that he didnt know if he slapped her around and that defendants conversation was so vulgar and graphic that Romo left the room. The circumstance that defendant may have slapped around a woman who may have been one of the murder victims was relevant to the rape charge, and the defense could cross-examine the witness on this point. The reference to vulgar and graphic conversation simply described the tone of the conversation and was of negligible prejudicial impact.

b. Tuuas testimony

In June and July of 1990, Ernest Tuua was defendants supervisor at Expo Stucco Products. Tuua testified that defendant told him he was having sex with a mother and her daughter, using the term doing to indicate sexual relations. Defendant told him the mother was a massage therapist. Defendant said he was able to manipulate the daughter and play mind games, disrupting the close relationship between the mother and the daughter.

Defendant objected on the basis of relevance and Evidence Code section 352, and renews those claims in this court. We conclude the trial court was within its discretion in finding the evidence relevant and determining that its probative value was not outweighed by its prejudicial impact. The evidence tied defendant to the subsequent murders of Pamela and Amber Clark. The two victims were mother and daughter, and Pamela was a massage therapist. In light of the other evidence demonstrating defendants modus operandi and planning activity, the circumstance that the murders occurred some weeks subsequent to the conversation does not eliminate the probative value of the conversation. The circumstance that defendant presented evidence that he had patronized another massage therapist, Gayle Sovinee, during this period, did not render Tuuas testimony irrelevant  it was for the jury to determine whether to believe that the massage therapist to whom defendant referred in his conversation with Tuua was Pamela Clark or Sovinee. (Sovinee did not have a daughter and testified she treated defendant on only one occasion and did not date him.)

Having contended the Romo and Tuua testimony was without probative value and was irrelevant, and that its prejudicial impact far outweighed its probative value under state law, defendant also claims the admission of the testimony constituted an arbitrary deprivation of state-guaranteed rights in violation of the Fifth and Fourteenth Amendments to the United States Constitution, citing Hicks v. Oklahoma, supra, 447 U.S. 343. He adds that the admission of this testimony denied him the right to a reliable verdict under the Eighth Amendment and Beck v. Alabama, supra, 447 U.S. 625, 638, footnote 13, and Woodson v. North Carolina, supra, 428 U.S. 280.

Application of the ordinary rules of evidence generally does not impermissibly infringe upon a capital defendants constitutional rights. (People v. Kraft, supra, 23 Cal.4th at pp. 1035-1036.) The trial court did not err under state law, and defendant does not provide any persuasive reason for us to conclude that the application of Californias rules of evidence violated his constitutional rights, nor does he establish any basis for concluding that the admission of this evidence rendered the jurys death penalty verdict unreliable.

5. Exclusion of Tiffany Schultzs statements concerning conflict with her boyfriend

Christopher Burns testified as a prosecution witness. He was Tiffany Schultzs boyfriend. The couple shared a two-bedroom apartment with another man, Daniel Ganss. Burns testified that when he left for work on the day of Schultzs murder, she was still in bed. Burns returned from work at approximately 5:30 p.m. He testified that he believed the front door was locked. Schultzs towel, some suntan oil, and the top of her swimsuit were on a lawn chair located by the front door, and the rear screen door and sliding glass door were open. Ordinarily, the sliding door was left open if someone was home, but the screen was kept closed. The door to Gansss room was closed. Burns departed for a 6:15 p.m. appointment at a tanning salon. He returned home after 7:00 p.m., straightened up the apartment, and prepared some food. Ganss returned home and Burns, having become worried, asked him if he knew where Schulz was. When Ganss opened his bedroom door, the two men discovered her body. Law enforcement officers arrested Burns for the murder but released him three days later.

Prior to trial, anticipating that the defense would seek to use certain evidence either in cross-examination of Burns or in its case-in-chief, the prosecution filed an in limine motion seeking exclusion of police reports of the statements of six witnesses who were acquainted with Schultz. The declarants had informed law enforcement officers that Schultz had made statements to them asserting that Burns had struck her and threatened her with a knife, that the couple had furious arguments over Schultzs employment as an exotic dancer, and that Burns enjoyed pornography. The prosecutor asserted that during the trial, he would not examine Burns concerning his relationship with Schwartz, leaving the topic unavailable for cross-examination. The prosecutor contended that the six statements constituted inadmissible hearsay, adding that defendant lacked evidence to demonstrate third party culpability that would be admissible pursuant to People v. Hall (1986) 41 Cal.3d 826, 833 (Hall), in which we declared that otherwise admissible evidence of third party culpability should be admitted if it is capable of raising a reasonable doubt of [the] defendants guilt.

Defendant, for his part, filed a motion in support of admissibility of out-of-court statements made by Tiffany Schultz. Specifically, the motion sought an order permitting counsel to cross-examine Burns regarding certain out-of-court statements made by Tiffany Schultz shortly before her death. The motion relied in part upon the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and parallel provisions of the state Constitution. Defendant claimed primarily that he should be permitted to use the statements for the purpose of attacking Burnss credibility, but added that if the court determined the statements were being offered for their truth, they then would be admissible as evidence of third party culpability. (Although at times defendants position has been unclear, the record requires that we reject respondents claim that the defense did not seek admission of the statements as evidence of third party culpability.) Defense counsel also sought permission to examine Burns concerning his relationship with Schultz. In support of his motion, defendant proffered investigative reports by the San Diego Police Department memorializing police interviews with the six persons in question.^[4]

After a hearing at which counsel and the court analyzed the statements both with regard to their admissibility in cross-examination and as evidence of third party culpability, the court commented: I dont see them [the statements] as so inherently trustworthy that I ought to make my own exception to the hearsay rule. The things people say in the middle of difficult emotional entanglements are, I think, historically not the kinds of things that are necessarily reliable.

The court also commented that the defense planned to use the statements as evidence of third party culpability but that the statements showed only motive. The court predicted that defense examination of Burns regarding the statements would create a side show without producing evidence of any reasonable probative value. Defense counsel stated that he also wished to use the statements for the purpose of impeaching Burnss credibility, but the court questioned why it was even significant for the defense to discredit Burns. The court asked: What evidence is he giving that you disagree with and need to impeach by showing that hes got a motive to lie?

The court (Wellington, J.) issued a written ruling denying the defense request on hearsay grounds and also declaring: This motion is actually broader than its title suggests, and includes requests to cross-examine Schultzs boyfriend, Chris Burns, in an effort to show that he, not defendant killed Schultz. At argument counsel indicated that he is not ready to make an offer of proof regarding third party culpability. When he is (before trial) he will bring this matter back before us for examination. [] Finally, should Mr. Burns be called as a witness, defendant should at least be entitled to show, on cross-examination, that Burns had been a suspect in the Schultz killing. This, at least arguably, shows a motive to see defendant convicted.

Immediately prior to the prosecutors opening statement to the jury, the trial court (Hayes, J.) confirmed Judge Wellingtons order and invited the defense to make an offer of proof of nonhearsay evidence that would be admissible to establish third party culpability, and the defense answered that it was not ready to do so.

When the guilt phase was nearing its conclusion, the trial court questioned defense counsel concerning potential third party culpability evidence, noted that the court would adhere to its earlier ruling concerning the admissibility of the statements, and declared that we werent going to be hearing testimony on that in the absence of some offer of proof consistent with Hall, supra, 41 Cal.3d 826. Defense counsel responded: Right now, our witness list, we wont need to address that issue.

Defendant did not make any further offer of proof in support of the admission of evidence demonstrating third party culpability.

On appeal, defendant contends fairness demanded that the statements recounted by the six acquaintances of Schultz in their interviews with the police be admitted as evidence of third party culpability under Hall, supra, 41 Cal.3d 826, despite their character as hearsay. He relies upon Chambers v. Mississippi (1973) 410 U.S. 284 and Green v. Georgia (1979) 442 U. S. 95. He claims a violation of his right to present a defense, to confront and cross-examine the witnesses against him, and to a fundamentally fair trial. He also claims that without this evidence the verdict was unreliable within the meaning of the Eighth Amendment to the United States Constitution.^[5]

We review the trial courts ruling for abuse of discretion. (People v. Robinson, supra, 37 Cal.4th at p. 625.) We are not persuaded that exclusion of the out-of-court statements constituted a violation of the right to present a defense or to confront and cross-examine witnesses. Even if the evidence had not been excludable as hearsay, the trial court did not abuse its discretion in excluding it, because defendant failed, despite several invitations from the court, to make an offer of proof that was adequate under Hall, supra, 41 Cal. 3d 826, in support of his theory that the defense possessed evidence demonstrating that Burns was the person who murdered Schultz.

[T]hird party culpability evidence is admissible if it is capable of raising a reasonable doubt of [the] defendants guilt, but . . . [w]e do not require that any evidence, however remote, must be admitted to show a third partys possible culpability. . . . [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendants guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.  (People v. Robinson, supra, 37 Cal.4th at p. 625, quoting Hall, supra, 41 Cal.3d at p. 833).) [I]n making these assessments, courts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible ([Evid. Code,]  350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice or confusion [citation].  (People v. Robinson, supra, 37 Cal.4th at p. 625, italics added, fn. omitted.)

As the trial court found, contrary to the guidelines we provided in Hall, supra, 41 Cal.3d 826, the statements proffered by defense counsel did not directly or circumstantially connect Burns to the actual commission of the crimes. The statements demonstrated no more than motive. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1137 [noting cases holding mere evidence of third partys anger toward victim was insufficient, and third partys possible motive alone insufficient to raise reasonable doubt of defendants guilt].) Indeed, defense counsel himself seemed to recognize he had not made a sufficient offer of proof. The trial court also appropriately determined that the probative value of the evidence was slight, whereas its potential for delay and confusion of issues was great. Under the circumstances, the court did not err in excluding this evidence.^[6]

As we have done in similar cases, [w]e . . . reject defendants various claims that the trial courts exclusion of the proffered evidence violated his federal constitutional rights to present a defense, to confront and cross-examine witnesses, and to receive a reliable determination on the charged capital offense. There was no error under state law, and we have long observed that, [a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accuseds [state or federal constitutional] right to present a defense.  (People v. Robinson, supra, 37 Cal.4th at pp. 626-627, quoting People v. Hall, supra, 41 Cal.3d at pp. 833-834 [referring to third party culpability evidence]; see also People v. Yeoman (2003) 31 Cal.4th 93, 141 [rejecting a claim based upon Chambers v. Mississippi, supra, 410 U.S. at p. 302 in a similar context].)

Defendant next contends the prosecutor committed misconduct by suggesting in his closing argument to the jury that there was no evidence of any discord between Schultz and Burns. The prosecutor observed: Lets go chronologically, if we may, starting off with the murder of Tiffany Schultz. Youve heard evidence about Buena Vista Gardens. You heard the evidence when the defendant moved in. It was approximately three weeks after he moves in that Tiffany Schultz is dead, she has been murdered. [] Shes living there with her boyfriend, Christopher Burns. She was a young student. There is absolutely no evidence prior to her murder that anything was amiss. In Buena Vista Garden[s] apartments, you heard some evidence about a burglary, but as soon as Mr. Prince moves in, we have a series of murders starting off with Tiffany Schultz.

Defendant forfeited his present claim of prosecutorial misconduct by failing at trial to object and seek an admonition (People v. Welch (1999) 20 Cal.4th 701, 753), but in any event, the prosecutors argument did not contain the suggestion attributed to it. This is apparent from the context in which the prosecutors statement was made; his point related to the comparative state of affairs at the Buena Vista Gardens apartments before and after defendant moved there. Accordingly, we reject defendants claim on the merits.

6. Hughes-Webb testimony

Leslie Hughes-Webb testified that defendant accosted her at the door of the home where she was staying and forced his way in. After a struggle, she knocked him over and fled. She identified defendant at a live lineup and at trial. At the preliminary hearing she testified a woman who had participated in the lineup told her she had identified another person and that the other womans certainty had caused Hughes-Webb to question her own identification somewhat. During her trial testimony, defense counsel cross-examined her concerning this source of uncertainty in her identification. Specifically, after the lineup, Hughes-Webb and another woman who had participated in the lineup were given a ride home in a patrol car. The other woman said repeatedly how certain she was of her identification, specifying whom she had identified. Defense counsel asked Hughes-Webb whether she was aware that the other woman had identified a person other than defendant.

The prosecutor objected on the ground that the other womans statement as to which man she had identified was irrelevant and constituted hearsay. The trial court sustained the objection on hearsay grounds, adding that defense counsel could question Hughes-Webb concerning her own state of mind after the live lineup, including whether the other woman had said something to give her pause.

The court directed the jury to disregard the question concerning the other womans possible identification of another individual. Under further cross-examination, Hughes-Webb testified she had been in a police car with the other woman, who had talked a great deal and quite emphatically about her conclusion and feelings. The other womans comments caused Hughes-Webb to hesitate about the accuracy of her own identification. Hughes-Webb wanted to believe that [she] didnt pick him and informed the police detective who was driving her and the other woman that she felt some uncertainty and hesitation.

Story continues as Part V .

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^[1] Defendant claims the court at least should have conducted in camera review of the FBI database in order to determine whether due process and fundamental fairness required making some of the materials available to the defense. In support he cites White v. Superior Court (2002) 102 Cal.App.4th Supp. 1, where the appellate department of the superior court concluded the trial court did not abuse its discretion in ordering an in camera hearing to determine whether the defendants right to impeach the credibility of a peace officer, who investigated allegations that the defendant assaulted a ward in a juvenile facility, should overcome the Inspector Generals claim that disclosure would be against the public interest. The appellate department simply determined that the trial court had not abused its discretion, and certainly did not hold that an in camera hearing should be held whenever a defendant seeks access to materials that he or she believes provided a basis for an experts opinion.

^[2] To the extent defendants claim concerns pretrial discovery and is based upon the confrontation or compulsory process clauses of the Sixth Amendment, it is on a weak footing. As we have previously observed, in light of the divided views of the justices of the Supreme Court . . . it is not at all clear whether or to what extent the confrontation or compulsory process clauses of the Sixth Amendment grant pretrial discovery rights to the accused. [Citations]. (People v. Hammon (1997) 15 Cal.4th 1117, 1126; see also People v. Gurule (2002) 28 Cal.4th 557, 592 [discussing the limits on a defendants constitutional right to disclosure prior to trial]; People v. Anderson (2001) 25 Cal.4th 543, 577, fn. 11 [the high court has never held that the confrontation clause requires more than the opportunity to ask the witness questions pertinent to his or her credibility (italics omitted)]; Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1134-1135.)

^[3] Defendant mentions this evidence, but it is difficult to determine whether on appeal he is challenging the admission of Holdens testimony. Any claim of error is forfeited, because defendant did not object to this testimony at trial. (Evid. Code,  353; People v. Marks (2003) 31 Cal.4th 197, 228.)

^[4] The police treated Burns as a suspect for a brief period and interviewed witnesses in January of 1990. Defendant proffered written reports of six of these interviews. (1) Ann Cappiello told an officer that she knew Schultz well and also knew Burns. Cappiello informed the officer that Schultz told her she was unable to join in a social event because she was having problems with Chris. Tiffany couldnt speak with me until Chris went into the shower. Tiffany said that Chris didnt agree with her working [as an exotic dancer] at Les Girls . . . . Cappiello informed the officer: I found Tiffany to be depressed and in tears due to their living arrangements. They had some argument about some Playboy type books that Chris had in the apartment. The books made Tiffany question herself. Tiffany never mentioned any physical violence. (2) Kelly Finn testified that Schultz informed her on January 10, 1990, that the couple argued over Schultzs employment at Les Girls. She told me they had a fight, he was threatening her with something, I dont know with what. After he threw his temper [tantrum], he left the house abruptly and slammed the door. It was after he left she called me. She was scared and wanted to get out of the apartment. Schultz told Finn she believed Burns would kill her if she didnt quit her job. This was not the first time Finn had heard of such arguments. The witness informed the police of Schultzs statement that she and Burns had a rough sex life that included bondage. Burns was a very jealous person, and Schultz told Finn that Burns had struck her about three and one-half weeks previously. Finn herself had seen bruises on Schultzs body that Schultz attributed to Burnss violence. Schultz told Finn that Burns had told her (Schultz) he would kill her if she did not quit her job, and that he had threatened her with a knife. (3) Susan Franco told the investigating officer that Schultz had confided in her on several occasions regarding problems with Burns. Burns did not want her to dance at Les Girls and was withholding sex from Schultz, who felt ugly and insecure as a consequence. There was no mention of violence. The conversation occurred on January 11 or 12, 1990. (4) Daniel Ganss, the couples roommate, did not report any violence or complaint of violence in the home. Schultz was upset that Burns did not desire her. Burns mentioned some bondage incident, which embarrassed Schultz. (5) Beth Ann Maupin testified that Schultz confided in her during the week preceding her murder, stating that she and Burns were having problems, that Burns did not want her to work at Les Girls, and that the couple had engaged in some bondage that got too rough for Schultz. The witness did not mention any statements concerning other violence. (6) Peggy Maupin said that Schultz had told her that she and Burns were having sexual problems, that Burns did not want her to dance at Les Girls, and that he was jealous.

^[5] Respondent is mistaken in asserting that defendant failed to make such a constitutional claim below.

^[6] As noted above, Burnss testimony at trial merely related Schultzs whereabouts on the morning of her death and described the discovery of her body. The testimony was of slight importance, because Ganss and the physical evidence confirmed what he had to say. To the extent defendants claim is based upon the limitations the court placed on his ability to challenge Burnss credibility, any error would be harmless under any standard.