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 II .

The United States Supreme Court decisions that have presumed that pretrial publicity was prejudicial involved extreme circumstances, however. In one case in which the high court reversed a judgment, the critical feature was that a local television station in a relatively small community on several occasions broadcast the entire spectacle of the defendants jailhouse confession. (Rideau v. Louisiana (1963) 373 U.S. 723, 727.) Explaining two other cases in which the high court presumed prejudice, the court stated that [t]he trial in [Estes v. Texas (1965) 381 U.S. 532] had been conducted in a circus atmosphere, due in large part to the intrusions of the press, which was allowed to sit within the bar of the court and to overrun it with television equipment. Similarly, [Sheppard v. Maxwell (1966) 384 U.S. 333] arose from a trial infected not only by a background of extremely inflammatory publicity but also by a courthouse given over to accommodate the public appetite for carnival. The proceedings in these cases were entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob. They cannot be made to stand for the proposition that juror exposure to information about a state defendants prior convictions or to news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process. (Murphy v. Florida, supra, 421 U.S. at p. 799.) The reviewing court instead must look for indications in the totality of the circumstances that [the defendants] trial was not fundamentally fair. (Ibid.)

Defendant has not demonstrated similarly extreme circumstances. We acknowledge that in the present case there was extensive print and television coverage of the crimes, the search for the perpetrator, the fears engendered by the nearly year-long series of murders, and defendants subsequent arrest and extradition. A further spike in publicity occurring at the time of the preliminary examination served to summarize the earlier events and added potentially prejudicial information, such as an overstatement of the incriminating value that the cautious trial court eventually permitted to be attributed to the DNA evidence, defendants incriminating statements to a friend, the murder conviction of defendants father, and the circumstance that some of the victims jewelry could be traced to defendant. Some elements of the news coverage could be labeled inflammatory or sensational, for example when the perpetrator then unidentified  was compared with Jack the Ripper or a television announcer referred to a reign of terror, when newspaper and television articles emphasized the community fear provoked by the murders, and when the television promotional spot repeatedly exhibited defendants image along with those of locally well-known convicted murderers. As noted, the crimes were of a nature that might arouse racial animus, although the news coverage itself did not exploit this circumstance.

On the other hand, the bulk of the newspaper articles and television reports merely recounted the facts of the crimes, the course of the investigation, and the circumstances of defendants arrest. There were articles and reports concerning the arrest and potential prosecution of other persons and, as the trial court observed, it appeared from the news reports that the community remained uncertain whether it was defendant who actually was the perpetrator. The great bulk of the articles and reports was framed in neutral terms and did not amount[] to an out-of-court campaign to convict, reflecting  inflamed public sentiment [citation]  such as when a defendant is persistently labeled in incendiary terms; a werewolf, a fiend,a sex-mad killer, and the like [citations]. As the . . . Court observed, coverage that consists of straight news stories rather than invidious articles which would tend to arouse ill will and vindictiveness, [citation], is not so troubling. (DeLisle v.Rivers, supra, 161 F.3d at p. 385.)

In the present case, defendant does not allege that there was a barrage of publicity immediately preceding the trial. [C]essation of publicity for some period prior to trial will go a long way toward undoing the damage of a previous media blitz. (DeLisle v. Rivers, supra, 161 F.3d at p. 385.) Defendants own expert noted the small number of articles and reports that were published between the preliminary examination and the hearing on the motion to change venue. The promotional television spot upon which defendant places great weight was withdrawn approximately six months prior to trial. The juror questionnaire instructed prospective jurors not to expose themselves to any further media coverage. Defendant does not contend on appeal that the media intruded and created a circus atmosphere at trial. The entire venire contained only a small proportion of persons who had formed an opinion as to defendants guilt, and nothing in the record suggests the panel of seated jurors harbored any opinion concerning defendants guilt. Contrary to defendants claim, we cannot, as a general matter, simply disregard a jurors own assurances of his impartiality based on a cynical view of the human propensity for self-justification. [Citation.] (Id. at p. 384.)^[1] On balance, defendant fails to persuade us that his was one of the extraordinary cases in which prejudice must be presumed. We conclude that defendant has failed to demonstrate a violation of his federal constitutional right to a trial by an impartial jury or to due process of law.

2. Expert opinion evidence

Defendant contends the trial court abused its discretion and deprived him of a fair trial when, on motion of the prosecution, it permitted FBI Special Agent Larry Ankrom to testify as an expert that, based on his experience comparing the records of hundreds of crime scenes, various common marks among the six charged homicides led him to conclude the crimes were committed by the same person. Defendant asserts a violation of his constitutionally guaranteed right to the presumption of innocence absent proof of guilt beyond a reasonable doubt. (U.S. Const., 5th & 14th Amends.) He also claims a denial of his right to reliable factfinding in a capital case (U.S. Const., 8th Amend.; Caldwell v. Mississippi, supra, 472 U.S. 320), and what he terms an arbitrary deprivation of the state-created protection of Evidence Code section 800 in violation of his right to due process of law. (U. S. Const., 5th & 14th Amends.)

The prosecution announced prior to trial that it intended to call FBI Special Agent John Douglas to testify as an expert on crime scene analysis and signature crimes, anticipating Douglas would express his opinion that all six charged murders had been committed by the same person. Evidently the prosecution also anticipated that Douglas would testify concerning psychological elements involved in serial murders.

Defendant objected to the proposed testimony on multiple grounds, including Douglass lack of qualifications as an expert on psychological matters (Evid. Code,  720), improper subject matter for expert testimony (Evid. Code,  801), relevance (Evid. Code,  210), and the testimonys prejudicial impact outweighing its probative value. (Evid. Code,  352.) Defendant also relied upon the Fifth and Fourteenth Amendments to the United States Constitution and analogous provisions of the California Constitution.

The court conducted a lengthy pretrial hearing, receiving extensive testimony from Douglas and his colleague, FBI Special Agent Ankrom. The court did not believe the witnesses training or experience qualified them to express an opinion regarding the probable state of mind of the perpetrator, and that aspect of the proposed testimony was excluded. The court concluded the witnesses had sufficient training and experience in crime scene investigation, however, and that the subject matter of crime scene analysis and the signature crimes was beyond common experience. The court ruled the proposed testimony on that limited topic was admissible. The prosecution elected not to call Douglas; only Ankrom testified.

Ankroms qualifications as a crime scene expert were significant. As he testified, he was a 13-year veteran special agent for the FBI. For the five years preceding the trial, he had been assigned to the FBIs National Center for the Analysis of Violent Crime (Center), a clearinghouse and pool of experts from whom law enforcement agencies throughout the nation sought advice and assistance. In conjunction with his position with the Center, Ankrom received two years of intensive training in criminology and other academic topics and, more specifically, was trained to review comprehensive information concerning crimes and to perform a criminal investigative analysis of the case material for various purposes, including to develop a profile of the perpetrator, to make recommendations on interview strategy, and to give advice regarding linkage between potential serial crimes.

Ankroms experience was based not only on his training but also on his five years as an active agent who had been called upon to review comprehensive information regarding hundreds of crimes and to offer expert advice to law enforcement agencies whose investigations in these cases faced obstacles or had failed to produce results. Ankroms experience included reviewing records related to various serial homicide cases and conducting lengthy interviews with eight convicted serial killers for the purpose of identifying evidence that would link the crimes committed by each perpetrator. He had reviewed autopsy reports, police reports, photographs, and other records for well over a hundred female homicide victims who had been stabbed to death, and he testified that in his experience the multiple deep, clustered stab wounds such as occurred in the present case were unusual.

According to Ankrom, he and other agents at the Center analyze crime evidence for linkage by looking for common methods of operation among groups of crimes  that is, the methods used by the criminals to complete their crimes and to achieve the intended murder, rape, or other crime. In addition to identifying common methods among a series of crimes, the agents look for signature elements  actions that were not necessarily involved in or necessary for completing the crimes, but that served as distinctive common denominators among the crimes.

Ankrom further testified that the San Diego Police Department contacted the Center in early 1990 concerning the Schultz and Weinhold murders. Ankrom reviewed autopsy reports, crime scene photographs, autopsy protocols, criminal investigative reports, maps, and social histories of the victims. In April 1990, the San Diego Police Department contacted him to report the Tarr murder. In September 1990, that agency reported the Clark murders to him. At the request of the San Diego Police Department, which relied upon his superior expertise in crime scene analysis, Ankrom thereafter met personally with members of the San Diego Police Department investigative team, reviewed the evidence with them, and offered his advice. The department informed him in February 1991 of the Keller murder.

Ankrom testified that it was his opinion that all six murders were committed by the same person. During his analysis of the crimes, he noted certain common features, as follows: The murders occurred in a small geographical area of San Diego, the first three having occurred in adjacent apartment complexes. Most occurred between 10 a.m. and 2 p.m., and they occurred in the victims residences. There was no mark of forced entry. The weapon used was a knife, and the victims were White females. Beyond these features exhibiting a common modus operandi, the crimes bore certain distinctive marks. In each murder except that of Tarr, where the murder was interrupted, there were numerous stab wounds that were tightly clustered in each victims chest and were extremely deep, sometimes penetrating to the victims back. According to Ankrom, another distinctive common denominator was the position of the victims when found. They were lying on their backs, nude or in a state of partial undress, and seemed to Ankrom to be positioned for display. The experts opinion that all the murders were committed by the same person was very firm.

Defendant contends Ankroms testimony was inadmissible under state law because it concerned matters that were not beyond the common experience of jurors. He points out, for example, that jurors are charged with evaluating whether similarities among charged and uncharged crimes suggest the same person committed the crimes or that the perpetrators intent or motive was the same in committing each crime. (Evid. Code,  1101.)^[2] On the other hand, he urges, expert opinion is restricted to subjects that are sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (Evid. Code,  801, subd. (a), italics added.)

We apply an abuse of discretion standard in reviewing a trial courts decision to admit the testimony of an expert. (People v. Robinson, supra, 37 Cal.4th at p. 630.) The trial court obviously exercised its discretion in the present case; it gave very careful attention to the issue, holding an extensive hearing, engaging in discussion with counsel, and ultimately excluding any testimony concerning the perpetrators probable state of mind, motive, or intent. We conclude for a number of reasons that the trial court did not abuse its discretion in the present case.

First, although ordinarily courts should not admit expert opinion testimony on topics so common that persons of ordinary education could reach a conclusion as intelligently as the witness  (People v. McDonald (1984) 37 Cal.3d 351, 367, disapproved on another ground in People v. Mendoza (2000) 23 Cal.4th 896, 914), experts may testify even when jurors are not wholly ignorant about the subject of the testimony. (People v. McDonald, supra, 37 Cal.3d at p. 367.) If that [total ignorance] were the test, little expert opinion testimony would ever be heard. (Ibid.)

Rather, the pertinent question is whether, even if jurors have some knowledge of the subject matter, expert opinion testimony would assist the jury. (Evid. Code,  801, subd. (a), People v. McDonald, supra, 37 Cal.3d at p. 367.)

We acknowledge that ordinarily jurors are equipped to examine crime scene photographs and autopsy evidence and to form an opinion, in the context of their own perception of the evidence in the particular case, whether the wounds depicted are so similar they suggest the wounds were inflicted by the same person.^[3]

Notwithstanding the ability of jurors to review the evidence before them and draw commonsense inferences, it may aid them to learn from a person with extensive training in crime scene analysis, who has examined not only the evidence in the particular case but has in mind his or her experience in analyzing hundreds of other cases, whether certain features that appear in all the charged crimes are comparatively rare, and therefore suggest in the experts opinion that the crimes were committed by the same person. A juror could assume that most stabbing victims are found on their backs, or that tightly clustered six-and-a-half-inch stab wounds to the chest are characteristic of murders by stabbing. In the present case, however, Ankrom was asked whether in his extensive experience the tight clustered wound pattern, the depth of the wounds, in combination with the women being found on their backs, is that distinct? And he testified in response: It is. In my opinion its something that we would find in our review of other cases to be a rare occurrence, especially in conjunction with the additional and consistent similarities in modus operandi he identified among the murders in the present case. He added: To see that the wound pattern takes place in that exact spot repeatedly is something that is a distinct common denominator. Under these circumstances, we cannot conclude the testimony was of no assistance to jurors who previously never had examined crime scene evidence other than the evidence before them, nor can we conclude Ankroms evidence   would add nothing at all to the jurys common fund of information.   (People v. Farnam (2002) 28 Cal.4th 107, 163.)

Another basis for our conclusion that the trial court did not abuse its discretion in admitting Ankroms testimony is that other courts have permitted expert opinion testimony in comparable circumstances. Experts on the subject of crime scene reconstruction, for example, ordinarily may be permitted to give opinion testimony concerning such matters as the probable location where the crime occurred, notwithstanding the jurys ability to examine photographs, coroners reports, and other evidence to form their own common sense conclusions regarding the crime scene. (People v. Farnam, supra, 28 Cal.4th at pp. 162-163.)

Perhaps even more to the point, courts have held an expert may testify concerning criminal modus operandi and may offer the opinion that evidence seized by the authorities is of a sort typically used in committing the type of crime charged. An experienced police officer may testify as an expert, for example, that tools discovered in a defendants automobile are of the type commonly used in burglaries. (People v. Jenkins (1975) 13 Cal.3d 749, 755.) A police inspector may explain that conduct such as that engaged in by the defendant constituted the usual procedure followed in committing the crime of till tapping. (People v. Clay (1964) 227 Cal.App.2d 87, 93; see also People v. Ochoa (2001) 26 Cal.4th 398, 438 [a detective with relevant training may furnish expert opinion concerning the gang-related significance of the defendants tattoo]; People v. Gardeley (1996) 14 Cal.4th 605, 617 [the expert properly testified concerning the culture and habits of criminal street gangs, opining on whether certain behavior constituted gang-related activity]; People v. Martinez (2003) 113 Cal.App.4th 400, 413-414 [an expert properly testified that a gang ordinarily will exact revenge upon a gang member who reveals gang confidences]; People v. Gamez (1991) 235 Cal.App.3d 957 965 [based upon his expertise concerning the modus operandi of armed robbers, an officer properly testified concerning the probable intent to commit robbery exhibited by persons who acted as the defendants did].)

Federal cases have upheld the admissibility of testimony by a trained police officer explaining that a defendants activities were consistent with a common criminal modus operandi. (U.S. v. Webb (9th Cir. 1997) 115 F.3d 711, 713, and cases cited; see also U.S. v. Cross (D.C. Cir. 1991) 928 F.2d 1030, 1050, and cases cited; U.S. v. Espinosa (9th Cir 1987) 827 F.2d 604, 612.) Such modus operandi  evidence helps the jury to understand complex criminal activities and alerts it to the possibility that combinations of seemingly innocuous events may indicate criminal behavior.  (U.S. v. Webb, supra, 115 F.3d at p. 714.) Testimony concerning criminal modus operandi may be helpful to the jury even if the modus operandi is not particularly complex. (Ibid.; see also U.S. v. Hankey (9th Cir. 2000) 203 F.3d 1160, 1168-1169 [explaining the trial courts duty to evaluate the reliability of the evidence].)

In United States v. Rogers (9th Cir. 1985) 769 F.2d 1418, the court determined that it was appropriate for an FBI agent to testify as an expert that of the 1,800 robberies that had occurred in Los Angeles, only two were perpetrated in a bank vault by a person wearing a bandana. The evidence was relevant to prove that the two charged robberies were committed by the same person. The court commented that it is settled law enforcement officers may testify concerning the techniques and methods used by criminals. (Id. at p. 1425.) The court continued: The testimony as to the frequency of bandana wearing in Los Angeles area bank robberies was relevant to the identity of the perpetrator of the robberies. The fact that very few robberies involve this garb make it more likely that the same person committed both robberies. (Id. at p. 1426.)

One sister-state decision specifically extends the rule permitting experienced officers to testify concerning criminal modus operandi to the topic of expert opinion testimony on modus operandi admitted for the purpose of establishing linkage among crimes. The Delaware Supreme Court concluded that an FBI agent properly was permitted to testify as an expert regarding serial murders, and that he properly could opine that the three charged murders were committed by the same person. (Pennell v. State (Del. 1991) 602 A.2d 48, 55.) The court determined that the expert had extensive and specialized experience with signature crimes and crime analysis. (Ibid.) It added that the experts testimony could assist the jury in understanding behavior unknown to the general public. (Ibid.)

Respondent has acknowledged and brought to our attention one state court decision reaching a different conclusion on so-called linkage evidence. In that case, the defendant was prosecuted for murder and the state introduced evidence of an uncharged rape and attempted murder. The prosecution called upon an expert from the FBI to testify that the charged murder, which occurred in New Jersey, and the uncharged attempted murder, which occurred in Maine (and during which the defendant was apprehended), bore common marks in terms of their modus operandi and their ritualistic elements, and that the same person committed both crimes. The New Jersey Supreme Court determined that the linkage evidence was inadmissible, reasoning that the experts opinion was based upon behavioral science of doubtful and unproven reliability. (New Jersey v. Fortin (N.J. 2000) 745 A.2d 509, 513-514.) The New Jersey court believed that the linkage concept had not attained such a state of the art as to have the scientific reliability of DNA testing (id. at p. 514), and there was no evidence it was accepted in the scientific community or even that it could be tested outside the FBI center where the theory had been developed. (Ibid.)

To the extent the New Jersey expert was offering testimony similar to Ankroms, we believe the New Jersey court erred in comparing such testimony to DNA evidence. In our view, that court applied an incorrect standard in searching the scientific community for peers to test [the experts] theories and duplicat[e] his results. (New Jersey v. Fortin, supra, 745 A.2d at p. 514.) Ankroms testimony was based upon his extensive experience, not theories that normally would be subject to peer review or that would be otherwise comparable to DNA testing. (See U. S. v. Hankey, supra, 203 F.3d at p. 1169 [expert opinion on gang culture is not examined for acceptance in the scientific community, nor should it be subject to peer review]; see also Pennell v. State, supra, 602 A.2d at p. 55 [distinguishing FBI agents linkage testimony on the same basis].)^[4]

Defendant contends Ankroms testimony falls under a different line of judicial decisions. He likens this testimony to profile evidence, which defendant asserts must be excluded. A profile ordinarily constitutes a set of circumstances  some innocuous  characteristic of certain crimes or criminals, said to comprise a typical pattern of behavior. In profile testimony, the expert compares the behavior of the defendant to the pattern or profile and concludes the defendant fits the profile. (See People v. Robbie (2001) 92 Cal.App.4th 1075, 1084; see also People v. Smith (2005) 35 Cal.4th 334, 357, 358.)

The comparison is unavailing because, unlike profile evidence, Ankroms testimony did not refer to defendant at all. We agree with the Delaware Supreme Court, which in rejecting a claim that similar linkage testimony constituted profile evidence, explained  Profile evidence is that which attempts to link the general characteristics of serial murderers to specific characteristics of the defendant. (Pennell v. State, supra, 602 A.2d at p. 55, italics added.) The testimony in that case indicating that three murder scenes bore such common marks that, in the opinion of the expert, they suggested the crimes had been committed by the same person did not seek to tie characteristics of serial murderers to characteristics of the defendant. (Ibid.)

Significantly, Ankroms testimony did not evaluate defendants behavior against a pattern or profile. Ankrom did not offer an opinion that he believed defendant was the culprit, nor did he relate his findings to defendant at all. Instead, he compared documentary evidence of the crime scenes in the present case and, based upon his observation of common marks and his experience, concluded the crimes had been committed by a single person. In any event, profile evidence does not describe a category of always-excluded evidence; rather, the evidence ordinarily is inadmissible only if it is either irrelevant, lacks a foundation, or is more prejudicial than probative. (People v. Smith, supra, 35 Cal.4th at p. 357.) In sum, [p]rofile evidence is objectionable when it is insufficiently probative because the conduct or matter that fits the profile is as consistent with innocence as guilt. (Id. at p. 358.)

Defendant next claims that Ankroms testimony that he was confident the same person committed all the crimes invaded the province of the jury and constituted testimony concerning the ultimate issue of guilt or innocence. Having argued the jury was perfectly capable of using common sense to determine whether similarities at the crime scenes suggested all the crimes were committed by the same person, defendant claims Ankroms testimony rendered the jurors incapable of making such a determination. According to defendant, it was solely the jurys obligation to determine whether the asserted similarities among the crimes warranted the inference that a single person had committed them. In essence, defendant argues, the expert improperly rendered an opinion on guilt or innocence in violation of Evidence Code section 800 and defendants right under the Eighth and Fourteenth Amendments of the federal Constitution to reliable factfinding in a capital case, and the admission of this testimony also constituted an arbitrary deprivation of state procedural rights and to due process of law in violation of the Fifth, Sixth, and Fourteenth Amendments of the federal Constitution.

Despite the circumstance that it is the jurys duty to determine whether the prosecution has carried its burden of proof beyond a reasonable doubt, opinion testimony may encompass ultimate issues within a case. Evidence Code section 805 provides that [t]estimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact. (See People v. Valdez (1997) 58 Cal.App.4th 494, 597 [a gang expert testified that the defendant was a member of a particular gang and that his activities were undertaken on behalf of the gang].)

Of course an experts opinion that a defendant is guilty is both unhelpful to the jury  which is equally equipped to reach that conclusion  and too helpful, in that the testimony may give the jury the impression that the issue has been decided and need not be the subject of deliberation. But Ankrom did not testify that defendant was guilty, nor did Ankrom tell the jury whom to believe or direct the jury toward a specific conclusion on any element of the charged crimes. His testimony did not mention defendant at all. Ankroms conclusion, based upon special training and experience in evaluating the records of hundreds of crime scenes, that he believed all the crimes were committed by the same person, did not bind the jury, nor would Ankroms testimony be understood as essentially directing a verdict. The court instructed the jury that they were the exclusive judges of credibility (CALJIC No. 2.20), and that they were not bound by an experts opinion, being free to accord the opinion the weight it deserves after considering the basis for the opinion (CALJIC No. 2.80).

Defendant next contends Ankroms testimony constituted or closely resembled improper mathematical probability evidence such as that disapproved by this court in People v. Collins (1968) 68 Cal.2d 319. In that case, an expert witness (a mathematics instructor) testified that there was a one in 12 million chance that the defendants were not guilty. (Id. at p. 325.) An eyewitness had observed some characteristics of the perpetrators, such as that they seemed to be a White woman with a blonde ponytail accompanied by an African-American man with a beard in a yellow automobile, and the expert used these assertedly distinctive features to calculate the probability that a couple other than the defendants could have met this description. This court reversed the judgment, because the experts opinion testimony had no basis in the facts. For example, one of the factors relied upon by the expert was the presence of a yellow automobile at the scene, but there was no evidentiary basis for the experts bold assertion that one out of every ten cars which might have been at the scene of the robbery was partly yellow. (Id. at p. 327.) Further, there was no proof that the characteristics selected for analysis were mutually independent  a necessary precondition to the statistical operation known as the product rule. (Id. at p. 328, see also id. at p. 325 [the product rule states that the probability of the joint occurrence of a number of mutually independent events is equal to the product of the individual probabilities that each of the events will occur (italics & fn. omitted)]; see also People v. Soto (1999) 21 Cal.4th 512, 525.) We found the error prejudicial, because it distracted the jury from its task and encouraged jurors to rely upon an engaging but logically irrelevant expert demonstration. (People v. Collins, supra, 68 Cal.2d at p. 327.)

The present case is distinguishable, because Ankroms testimony was not cloaked in scientific garb but was expressed as a matter of professional experience gained over a lengthy period of observation. Moreover, as defendant does not deny, the facts relating to the charged crimes analyzed by Ankrom were well established, and Ankrom did not employ a mathematical formula to add a specious weight to his conclusion.

People v. Hernandez (1997) 55 Cal.App.4th 225 is of no assistance to defendant. There a computer was used to search a police database respectively for sex crimes committed in a restricted area prior to the defendants arrival in the neighborhood, and for such crimes committed subsequent to his arrest and incarceration. The search was directed at crimes that bore similarity to those with which the defendant was charged. The prosecutions argument was that the absence of similar crimes in the database when defendant no longer was in the neighborhood demonstrated that defendant likely was guilty. The reviewing court reversed for lack of a proper foundation establishing that the data entered into the computer was accurate and complete. (Id. at p. 240.)

By contrast, Ankrom analyzed multiple sources, including primarily his own professional experience, in drawing the conclusion that the same person had committed all of the charged murders. He did not rely upon the absence of evidence shown by a system of data collection that might omit pertinent evidence.

Next defendant contends the trial court abused its discretion under Evidence Code section 352 in permitting Ankrom to testify, asserting that the probative value of the evidence was slight and the potential for undue prejudice was great. He argues that the trial court arbitrarily violated the principles underlying Evidence Code section 352, thereby denying him various constitutional rights, including his right to due process of law under the Fifth and Fourteenth Amendments to the federal Constitution, his right to a reliable penalty determination pursuant to Beck v. Alabama (1980) 447 U.S. 625, and his rights under the Fifth and Fourteenth Amendments to the presumption of innocence and to the requirement that the prosecution meet its burden of proving defendants guilt of the charged crimes beyond a reasonable doubt.

Defendant claims the evidence had slight probative value, because Ankrom failed to recognize salient distinctive features in the various crimes and overstated the evidentiary value of the asserted similarities. These claims go to the weight, not the admissibility of the evidence. It was for defendant to expose the weaknesses in the experts opinion on cross-examination  and defendant did so. Nor do we see the overwhelming prejudicial impact posited by defendant. We do not believe that Ankroms stature as an FBI agent employed at the special center he described would cause the jury to abandon its function as factfinder, especially in light of the guidance offered to the jury by the courts jury instructions.

We also reject defendants various constitutional claims. At trial, defendant objected to Ankroms testimony based on the Fifth and Fourteenth Amendments to the United States Constitution and analogous provisions of the California Constitution. Assuming, without deciding, that the points asserted by defendant properly were preserved (see People v. Partida (2005) 37 Cal.4th 428, 433-434), they are without merit for the same reasons that defendants state-law claims have been rejected. (See People v. Ward (2005) 36 Cal.4th 186, 211.) As we have concluded in past cases, [a]pplication of the ordinary rules of evidence generally does not impermissibly infringe upon a capital defendants constitutional rights. (People v. Kraft (2000) 23 Cal.4th 978, 1035.) Defendant has not persuaded us that his case presents an exception to this rule.

Finally, defendant contends Ankroms testimony that the Centers work had exonerated an innocent person in the past violated defendants constitutional rights. Defendant claims: The jurors would have undoubtedly understood this aspect of Agent Ankroms testimony as meaning that Ankroms unit reviewed many thousands of homicide cases, and if they had found any others that were similar to the crimes charged against [defendant], they would have surely brought that to the attention of the appropriate authorities. Furthermore, the implication was clear that such review would continue in the future, and if they discovered after the present trial that somebody else was committing similar crimes, that would be brought to the attention of the authorities. Thus, even if [defendant] were wrongly convicted and sentenced to death, he would nonetheless be freed before any execution occurred. [] . . . Thus, the jury was not merely encouraged to rely on the Agents expertise to overcome their own doubts; in addition, they were encouraged to rely on Agent Ankroms unit to discover and correct any error they might make. According to defendant, these circumstances deprived him of the reliable factfinding that is required in capital cases under Caldwell v. Mississippi, supra, 472 U.S. 320.

Defendant did not object on this basis during Ankroms testimony or proffer the constitutional argument he has made in this court, and this aspect of his claim therefore is forfeited. (People v. Partida, supra, 37 Cal.4th at pp. 433-434.) In any event, we find no error. Defendant has not cited any rule of evidence that would require the exclusion of such testimony, and his concerns about the effect upon the jury of the testimony in question rest solely upon speculation.

3. Discovery

During discovery, the defense received a report prepared by Ankrom regarding the investigation he conducted in the present case. The report expressed the opinion the crimes were linked, citing considerable evidence and Ankroms experience. The report also mentioned that FBI agents at the center maintained a database of the various violent crimes that had been reported to them and that the database (called the VICAP database) was designed to track serial killers. Of the 5,000 homicides in the database at the time of the present crimes, some involved multiple stabbing deaths of female victims in their homes, but none were similar to the signature aspects of the crimes charged in this proceeding.

The defense moved for discovery of the VICAP database, claiming it formed one of the bases for Ankroms opinion and was critical to adequate cross-examination. The prosecution responded that it lacked authority to disclose the confidential VICAP database, that the request should be addressed to the FBI, and that the prosecution had disclosed to the defense all material relating to the present crimes that Ankrom had referred to in his report. After a hearing, the trial court agreed that in the event Ankrom proposed to testify concerning the VICAP database and the extent to which it provided a basis for his opinion, the defense was entitled to examine the database record of the cases in which female murder victims had been stabbed multiple times in their homes.

Ankrom responded that he would not testify concerning the VICAP database and instead would base his trial testimony on his personal experience, which the court had established was substantial. Agent Douglas agreed the database results were not essential to support an opinion that the murders in the present case were linked.

Story continues as Part IV .

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^[1] Indeed, it is beyond question that mere prior knowledge of the existence of the case, or familiarity with the issues involved, or even some preexisting opinion as to the merits, does not in and of itself raise a presumption of jury taint; such a standard would be certainly unsalutary, and likewise impossible to achieve: [] It is not required . . . that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.  (DeLisle v. Rivers, supra, 161 F.3d at p. 382.)

^[2] We summarily reject defendants claim that the various charged crimes were not sufficiently similar to have been admissible pursuant to Evidence Code section 1101. That statute has no application to charged crimes.

^[3] Contrary to the suggestion of defense counsel at oral argument that Ankrom simply reviewed the same crime scene photographs reviewed by the jury, Ankrom testified he also reviewed, both in the present case and the hundreds of other cases he had analyzed, autopsy photographs, protocols from the autopsies, police investigative reports (concentrating on the report of the officers who were first on the scene), maps, background information concerning the victims, and the history of crimes in the pertinent geographic locations.

^[4] We do not mean to imply that expert testimony based upon experience rather than technical expertise is not subject to scrutiny for reliability. (See U. S. v. Hankey, supra, 203 F.3d at p. 1169 [exhaustively discussing trial courts gatekeeping responsibility]; U. S. v. Vesey (8th Cir. 2003) 338 F.3d 913, 916-917 [trial court erred in excluding the testimony of a defense expert, a convicted drug trafficker, who would have testified concerning the usual practice in drug transactions, and explaining scope of courts discretion in assessing reliability]; Kaye, et al., New Wigmore Treatise on Evidence (2004) , Expert Evidence  9.3.3, pp. 323-325 [analyzing reliability requirement in light of Kumho Tire Co., Ltd. v. Carmichael (1999) 526 U.S 137].)