P. v. Smith

Filed 6/26/07 P. v. Smith CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Stephen A. Marcus, Judge. Affirmed.

Kim Malcheski, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and John Yang, Deputy Attorney General, for Plaintiff and Respondent.

______________________________________

Jamaal Smith appeals from the judgment entered following a jury trial in which he was convicted of first degree premeditated murder, in which a principal was armed with a firearm. Defendant contends that a statement he made to the police should have been suppressed under Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602] (Miranda), a police witness improperly expressed his personal belief that defendant was involved in the murder, and the prosecutor committed misconduct. Defendant further contends that trial counsel rendered ineffective assistance in various respects. We affirm.

BACKGROUND

On April 16, 2004, the brother of Victor Benjamin shot and killed someone in Bellflower. Afterward, members of the Benjamin family began to receive threats of retaliation. Benjamins mother last saw her son alive on the morning of April 19 at the familys Long Beach residence. Early that evening, Benjamins body was discovered in an alley behind 2nd Avenue in Los Angeles, wrapped in a sheet.

Law enforcement and medical witnesses testified that a sweatshirt wrapped with duct tape was around Benjamins head. His wrists and ankles had also been bound with duct tape. Benjamin sustained four gunshot wounds, including one to his right eye. None of the wounds was independently fatal. The cause of death was the combined effects of the wounds and asphyxia. Benjamin had likely been killed in a different location and his body moved to the alley where it was found.

A fingerprint expert testified that six identifiable fingerprints were lifted from the duct tape on Benjamins wrists, ankles, and head. All belonged to defendant. A fingerprint on the tape on Benjamins right wrist was partially covered by another layer of tape. That print was consistent . . . with the defendant being present while tape was being applied around Benjamins wrist.

Defendant was interviewed by the police in September 2004. He said that he did not know Benjamin or recognize a photograph of Benjamin. When defendant was told that his fingerprints had been lifted from duct tape around Benjamins body, defendant responded he did not know how the fingerprints could have gotten there.

Defendants aunt, Yolanda Sanchez, testified that she rented two properties near the 2nd Avenue location in Los Angeles where Benjamins body was found. (When interviewed by Detective Walthers, Sanchez initially denied knowing defendant. She conceded that she knew him only after she was confronted with a log showing that she had visited defendant in jail.) A map introduced into evidence showed that Long Beach, where defendant lived, and Bellflower, where defendants brother had killed someone, are adjacent to each other and are a considerable distance from where Benjamins body was found.

In defense, a fingerprint examiner testified that, with respect to the print that had been covered by another layer duct tape, the removal of the upper layer of tape would have destroyed the underlying print. Thus, it is possible that defendant could have touched the duct tape only after all of it had already been wrapped around Benjamins wrist.

DISCUSSION

1. Miranda Issue

a. The record

At trial, defendant made a motion on Miranda grounds to exclude evidence of a statement he made to the police. At a hearing under Evidence Code section 402, the court listened to a recording of the interview in which statement was made. The interview began with preliminary questioning about where defendant lived. The following then ensued:^[1]

Det. Walthers: Jamall [sic] I am Detective Walthers and this is my partner Detective Nolte. Okay. And we are investigating the shooting of a guy named Victor Benjamin.

[Defendant]: Um Hum

Det. Walthers: Okay. And since you are in custody here in County Jail before I talk to you I am going to read you your rights. Now you have had your rights read to you before right so youre clear?

[Defendant]: Yes

Det. Walthers: You have the right to remain silent. Do you understand?

[Defendant]: Yes

Det. Walthers: Anything you say may be used against you in court.... Do you understand?

[Defendant]: Yes

Det. Walthers: You have the right to the presence of an attorney before any questioning. Do you understand?

[Defendant]: Yes

Det. Walthers: If you cannot afford an attorney one will be appointed for you free of charge before any questioning if you want. Do you understand?

[Defendant]: Yeah

Det. Walthers: Okay. Do you mind talking to us?

[Defendant]: I dont have anything to say.

Det. Walthers: Umm. Do you wanna [hear] what we are talking about. I mean who this guy is?

[Defendant]: I dont know nobody by that name.

Det. Walthers: Okay. Well, Ill tell you what you can answer a few questions and stop whenever you wanna stop when you want to find out who this guy is.

[Defendant]: I dont know nobody by that name why would I have any questions to answer. (Italics added.)

As the interview continued, defendant said he did not recognize a photograph of Benjamin. He denied being at a party in Bellflower the previous April where there was a shooting. When asked what he thought about his fingerprints being on duct tape with which Benjamin was bound, defendant responded, It doesnt ring a bell. After additional questions about the duct tape, defendant was asked about his role in the shooting, which likely involved more than just him.^[2] Defendant responded to this line of inquiry by stating, I dont have any more questions to answer. Walthers then asked, You just gonna take the [rap] for all these guys? Defendant responded, I aint tak[ing] the [rap] for nothin cause I didnt do anything. I dont have any more questions to answer though.

Walthers testified at the hearing that defendant was in county jail on an unrelated charge when the interview took place. Although defendant did not expressly say that he would talk about the incident, Walthers took defendants continued willingness to talk to him as an implied waiver of defendants Miranda rights. Defendant was also interviewed by Walthers on a subsequent occasion. In that interview, defendant was asked, Do you want to talk about what happened? He answered, No. It was further established that at the time of the interviews, defendant was 23 years old, had been in the Navy, and had had prior contacts with law enforcement.

The trial court ruled that although this is certainly not a textbook example of how to take a [Miranda] waiver, looking at the context . . . and the totality of the circumstances, defendants prior contact with the criminal justice system and his prior service in the Navy are factors that may be considered. The court continued that the most significant factor here is that his statement, when the police explain the rights to him and say, Are you willing to talk to us? I dont have anything to say, and then he goes on to say a whole bunch of things. That is not, by any stretch of the imagination considered an invocation. Its just not. [] Its not even the type . . . where there would be a necessity to clarify. And the examples given for those where clarification is necessary: Well, you know, how long would it take to get a lawyer here? or, Do I have to have a public defender or some other kind of lawyer? Those would be issues in which we would be discussing clarification. [] But his . . . response to the officers question Do you want to talk, just doesnt in any way exhibit an invocation of his constitutional rights, which I have found, based on the record, that he was aware of and that he understood.

Secondarily, the court did listen to the tape, and I find that [defendant] appeared to be actively engaged in the conversation with the police, and theres no hint throughout this conversation that he is invoking any rights. For example, I dont have anything to say does not translate into: I want my lawyer. I want to exercise my right to remain silent. It just doesnt translate that way. [] . . . But I do think that when Detective Walthers that when he said that you can stop whenever you want to stop, thats actually another opportunity to put the defendant on notice that he has a right to walk away from the situation. [] So I actually see that as some extra points for the police in the situation. They gave him another opportunity to step away or to be aware that he could walk way. The court also compared this interview with the second conversation in which it was clear the defendant, when he wanted to, had no problem expressing the right that he did not want to speak to the police.

b. Defendants contention and controlling legal principles

Defendant contends that his statement, I dont have anything to say, was sufficient to invoke his right to remain silent, that trial counsel was ineffective for allowing the trial court to focus on the right to counsel, and that the erroneous admission of the statement into evidence constituted prejudicial error. We finding nothing in defense counsels performance that would impede our analysis of the Miranda issue on its merits and therefore do not discuss the ineffective assistance contention. We agree that the statement should not have been admitted but conclude that defendant was not prejudiced.

In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendants rights under Miranda [], the scope of our review is well established. We must accept the trial courts resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained. [Citation.] We apply federal standards in reviewing defendants claim that the challenged statements were elicited from him in violation of Miranda. [Citation.] (People v. Box (2000) 23 Cal.4th 1153, 1194.) The state must demonstrate the voluntariness of a confession by a preponderance of the evidence. [Citations.] (Id. at pp. 11941195.)

If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. (Miranda, supra, 384 U.S. at pp. 473474.) Whether the suspect has indeed invoked that right, however, is a question of fact to be decided in the light of all the circumstances: A desire to halt the interrogation may be indicated in a variety of ways, and the words used by the suspect must be construed in context. [Citation.] (People v. Hayes (1985) 38 Cal.3d 780, 784785.) [N]o particular form of words or conduct is necessary on the part of a suspect in order to invoke his or her right to remain silent [citation] . . . . (People v. Crittenden (1994) 9 Cal.4th 83, 129.)

If a suspects request for counsel or invocation of the right to remain silent is ambiguous, the police may continue talking with him for the limited purpose of clarifying whether he is waiving or invoking those rights. [Citations.] (People v. Box, supra, 23 Cal.4th at p. 1194.) [T]he case law draws a sensible distinction between clarification and interrogation. On the one hand, it permits clarifying questions with regard to the individuals comprehension of his constitutional rights or the waiver of them; on the other hand, it prohibits substantive questions which portend to develop the facts under investigation [citations]. (People v. Turnage (1975) 45 Cal.App.3d 201, 211; see also People v. Carey (1986) 183 Cal.App.3d 99, 102103.)

c. Analysis

Citing People v. Jennings (1988) 46 Cal.3d 963, 977979, in which the defendants statements to an interrogating officer that he was not going to talk and would shut up (id. at p. 977) were found insufficient to invoke the right to remain silent, the Attorney General argues that the trial court correctly ruled there was no invocation in this case. But the Jennings court noted that if it were reviewing only the portion of the interview in which these statements were made, the defendants claim would appear meritorious. (Id. at p. 978.) The court continued that a different picture emerges (ibid.) on consideration of those statements in context, which included that more than one officer had questioned the defendant over an extended period of time, and the defendants statements were likely directed at an officer the defendant did not like or trust, with whom he was then speaking. (Id. at pp. 978979.)

Other cases cited by the Attorney General are equally distinguishable. Thus, in In re Joe R. (1980) 27 Cal.3d 496, 513516, after the defendant denied accusations for the first 30 to 40 minutes of the interview and was then confronted with physical evidence, it was reasonable to interpret Thats all I have to say or Thats all I want to tell you as an expression of Thats my story, and Ill stick with it rather than as an invocation of his right to remain silent. (Id. at p. 516.) In People v. Silva (1988) 45 Cal.3d 604, 629, after the defendant answered several questions with specific information about the incident under investigation, defendant answered a question by stating, I dont know. I really dont want to talk about that. The Silva court affirmed the rejection of the defendants Miranda argument, quoting the trial courts finding that if you listen to the portion of the tape to which I listened, it is clear from the inflection that he was not even intimating that he wished to terminate the interrogation . . . . (Id. at p. 630, italics omitted.)

On the other hand, authority on which defendant relies may also be distinguished from this case. Thus, in People v. Peracchi (2001) 86 Cal.App.4th 353, 361, [a]lthough [the defendants] initial statements to the officer regarding whether he was willing to waive his rights may have been ambiguous (I dont think so. At this point, I dont think I can talk, I need to be able to think, I guess I dont want to discuss it right now), his intent to remain silent became clear through further questioning. Ultimately, [the defendant] stated, I dont want to discuss it right now, clearly indicating that he intended to invoke his right to remain silent. And in People v. Carey, supra, 183 Cal.App.3d at pages 103104, in response to clarifying questions, the defendant repeated, I aint got nothing to say, four different times.

Having also listened to the recording of defendants interview with Walthers, we conclude that defendant invoked his right to remain silent under Miranda. The words, I dont have anything to say, came within the first few minutes of his interview. No evidence was presented regarding what may have been said prior to the interview that would provide a context to allow taking defendants words in anything other than a literal manner. In addition, we do not hear anything in defendants tone of voice to indicate that his words should not have been taken as an invocation. Nor, even if defendants words are deemed ambiguous, were any follow-up questions posed to clarify the ambiguity of whether defendant was willing to talk. We also disagree with the trial court that after defendant said, I dont have anything to say, then he goes on to say a whole bunch of things. Instead, defendant said very little in the interview, and what he did say consisted almost exclusively of denials of Waltherss accusations and suggestions.

Having determined that defendants statement should not have been admitted into evidence, we assess prejudice under the standard of Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824]. As such, defendants conviction may be affirmed only if the record shows that admission of his statements was harmless beyond a reasonable doubt. (See Arizona v. Fulminante (1991) 499 U.S. 279, 309 [111 S.Ct. 1246, 1265]; People v. Neal (2003) 31 Cal.4th 63, 86; People v. Cahill (1993) 5 Cal.4th 478, 509510.)

Defendant argues prejudice primarily on the basis that his denial of knowing how his fingerprints got onto the duct tape provided the basis for instructing the jury under CALJIC No. 2.03 that false or misleading statements could be considered to prove consciousness of guilt. But at trial, defendant never challenged the prosecution fingerprint experts opinion that defendants, and only defendants, fingerprints were on duct tape wrapped around three different parts of Benjamins body. Rather, the defense was that, given the lack of any evidence directly connecting defendant with Benjamin, it was possible that the fingerprints were placed on the duct tape only after Benjamin had already been killed by others, and that in any event the prosecution had failed to establish premeditation. Given this state of the evidence, we conclude that an instruction allowing the jury to infer consciousness of guilt from defendants statement did not adversely affect the defense presented to the jury.

In addition, the reality of the case is that there was no viable defense. Uncontested evidence of defendants fingerprints on the duct tape, coupled with evidence of the manner in which Benjamin was killed and the subsequent dumping of Benjamins body in an area with which defendant had a familial connection provided overwhelming proof that defendant was guilty of premeditated murder. Accordingly, defendants contention of prejudicial error in the admission of his statement must be rejected.

2. Testimony Regarding Defendants Involvement in the Murder

As set forth in footnote 2, ante, while interviewing defendant, Detective Walthers pressed for information about others who might have been involved in the murder, suggesting that defendant could be less culpable than the existence of his fingerprints might suggest. Evidence of the interview was presented to the jury when Walthers testified.

During Waltherss testimony, the prosecutor asked: During that conversation, toward the end of it, after confronting [defendant] with some evidence, you said that: This is an opportunity for you. What was your purpose in telling him that, and then giving him some scenarios of how you think his fingers could have appeared on the duct tape? Walthers responded: When youre interviewing someone and he makes denials when theres so much evidence against them and theyre so obviously involved, its common practice to give them some kind of an out that makes them feel as if theyre minimizing their involvement in order to in order to further your interview and have them continue having a conversation with you. [] So although his involvement although its obvious he has involvement, his fingerprints are all over the tape, I know hes there, I dont really know what his involvement is. And hes obviously trying to minimize it by saying he was not there, which is obviously false so Im basically giving him some scenarios that may give him the opportunity to admit to being there and minimize his involvement.

Defendant contends that through this testimony Walthers improperly expressed his personal belief in defendants involvement in the murder and that trial counsel rendered constitutionally ineffective assistance for failing to object. We disagree.

Immediately following the exchange quoted above, the prosecutor asked Walthers if he had an open mind regarding defendant. Walthers responded: Theres always the chance theres a logical explanation for why his prints were there. And I, of course, want to get to the truth of the matter. So the only person who knows for sure what his involvement is at the time is him, so I need to, of course, give him an opportunity to give me that information.

A consistent line of authority in California as well as other jurisdictions holds a witness cannot express an opinion concerning the guilt or innocence of the defendant. [Citations.] (People v. Torres (1995) 33 Cal.App.4th 37, 4647.) Contrary to defendants contention, that is not what occurred here.

Viewed in context, Walthers was not giving a personal opinion about defendants guilt. Rather, he was explaining his interrogation techniques, which included trying to ferret out the greatest amount of information possible from a suspect whose fingerprints had been found on duct tape with which a murder victim had been bound. Nor in any event was Waltherss opinion prejudicial, either by itself or as an aspect of ineffective assistance of trial counsel. (See In re Cox (2003) 30 Cal.4th 974, 10191020 [ineffective assistance claim may be rejected by first determining lack of prejudice].) Walthers did not expressly provide, or even allude to information other than what had been properly presented to the jury that several fingerprints belonging to defendant, and only to defendant, were on the duct tape that had been wrapped around Benjamins body. Accordingly, defendants contention must be rejected.

3. Prosecutorial Misconduct

Defendant contends that, with respect to a discovery violation, reversal is required because the trial court erred in denying his motion to dismiss, the prosecutor committed prejudicial misconduct, and defense counsel rendered ineffective assistance for failing to object. We disagree.

Testifying for the prosecution on a Tuesday, fingerprint expert Amy Adams gave her opinion that the print on the duct tape that was beneath another layer of tape demonstrated that defendant was present when the tape was being wrapped around Benjamins wrist. Defense counsel noted that Adamss conclusion had not been included in discovery materials and requested a mistrial. Extensive proceedings were undertaken regarding the prosecutors discovery obligations and appropriate remedies.

During the course of these proceedings, it was established that the previous Friday the prosecutor had spoken with Adams outside of court and asked if any aspect of the fingerprint evidence could establish when defendant touched the duct tape. Adams reviewed the fingerprint evidence and for the first time offered an opinion that defendant was present when the duct tape was being wrapped around Benjamins wrist. The prosecutor initially argued that he did not have an obligation to provide this information because all of the physical evidence regarding fingerprints had previously been made available to the defense. The prosecutor later conceded that the information should have been provided to defendant.

The trial court concluded that a discovery violation had occurred but that dismissal was not required because the prosecutor had merely misunderstood his discovery obligations, the evidence was not extraordinary or a dramatic surprise, and defendant had been deprived of it for only a few days. As remedies, defendant was given the opportunity to further cross-examine Adams. He was also granted a continuance to secure his own fingerprint expert to both assist in cross-examining Adams and testify for the defense, which the expert did. In addition, the jury was to be instructed under CALJIC No. 2.28 on the prosecutors failure to timely produce the evidence.^[3]

During closing argument, the prosecutor stated: Now, we started this trial I announced ready for trial with the evidence that we felt proved the case beyond a reasonable doubt, and that was even before we [knew] about this these features (indicating), because we believed that the number of fingerprints and where they are and how he died is enough evidence to prove a case beyond a reasonable doubt. But Im a lawyer so I ask questions.

So while we were in the midst of jury selection, I wanted to go over the photos with her. I was not the D.A. on the case back at the preliminary hearing. [Defense counsel] has been involved in this case longer than I have. So in going over this case, before you came to court one morning, I met her, and we talked about the tape, and I asked her the question: Is there anything about this tape, anything at all, that suggests a sequence of the print in the taping? And she said, Well, no one had ever asked me that question before. Let me take a look. And she went through the various photographs, and she identified this piece, 7D-1R, and she said, Do you see this nice beautiful print here (indicating)? Now, its a fingerprint to you and me, but I guess if youre in the business of comparing these things, this is a very nice one. In fact, several of them are very nice.

She said, Well, do you see how its interrupted along the very well defined line, kind of a jagged-edge line, almost square like the edge of a piece of tape on the side of a piece of tape?

I said, Yes.

She said, Well, in my opinion, this print was laid, and then there was another piece laid on top of this tape that interrupted this fingerprint. Now, Im looking at it. Im no expert, but my common sense reasonable interpretation of this is thats exactly what happened.

But I said, Well, wait a minute. Why couldnt there have been two pieces of tape, and then it was touched, both pieces on the outside, and then when you separated them, you just took this corner of the print with the other piece?

She said, Because if you look below the edge line of this tape, you can faintly see remnants of the continuation of this prints ridge marks. Thats how I know the print was laid first. And in pulling this tape off the top of it, some of the definition of the ridge mark was removed, some of it was left behind.

It is conclusive proof that he was involved in the taping. Now, I learned about that on Friday. I think we started selecting this jury was it Thursday? And I didnt run back to the courthouse to say to the defense attorney: You know this picture youve had over a year and has been available for your scrutiny and all that? Guess what I found out about it? Because in my mind hes had the picture for over a year. This is nothing new. This has always been there. But, apparently, I was wrong. I was supposed to run right back and tell him. So when you got that instruction on delayed evidence, its not the actual physical tape that was delayed. Its just my knowledge of learning about these features that I delayed telling him by a couple of days, in which he has had since had an opportunity to consult with an expert on, who, I might add, didnt disagree with Ms. Adamss interpretation. He offered another possibility, I submit to you, a much more unreasonable one, but he didnt disagree with this one.

Defendants contention that his motion to dismiss should have been granted is not included in the caption of his argument and is mentioned only in passing. As such, it may be rejected as insufficiently developed to be cognizable on appeal. (People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2.) In any event, defendant has not demonstrated that the continuance and the jury instruction given here were inadequate as sanctions for the prosecutors discovery violation. (See People v. Barnett (1998) 17 Cal.4th 1044, 1131.)

With respect to the assertion of misconduct, we agree that it was improper for the prosecutor to inject himself personally into the narrative, providing hearsay as to the background that became the basis of the CALJIC No. 2.28 instruction. (Cf. People v. Bolton (1979) 23 Cal.3d 208, 212.) But unlike Bolton, on which defendant relies, there was nothing about the narrative which constituted an attempt[] to smuggle in by inference claims that could not be argued openly and legally. (Ibid.) Adams was asked on cross-examination when was the first time since the preliminary hearing that she looked at the fingerprint evidence. She responded, Last Friday. In argument, the prosecutor accurately characterized Adamss testimony. Accordingly, there was no reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [ Citation.] (People v. Samayoa (1997) 15 Cal.4th 795, 841.) Defendants claims of prejudicial misconduct and ineffective counsel must fail.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

We concur:

VOGEL, J.

ROTHSCHILD, J.

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^[1]The interview quotations in this opinion are taken from a transcript that was submitted at the Evidence Code section 402 hearing.

^[2]Det. Walthers: Jamal [sic] this is an opportunity for you to ... this wasnt done to this individual by one person okay, there is more than one person involved, more than one person involved. You are one of those people there is no doubt about that, or your fingerprints wouldnt, its impossible for your fingerprints to be on that duct tape, okay. Its impossible for your fingerprints to be on that duct tape if youre not involved. Because your fingerprints that were on the duct tape when the tape was wrapped around him numerous times and it sealed your prints in there they cant go away. You couldnt have been walking down the alley and put your prints there later because its covered by other tape. Do you understand that? So you were there when this person was taped up. Whether he was alive at that point or dead at that point Im not sure, but there is no disputing the fact that you were there. Do you understand that?

[Defendant]: Yeah, I understand what you are trying to say but I dont know anything.

Det. Walthers: You do know something. What were trying to find out is ... we know you were there. What were trying to find out is how involved you were. Were you the guy that pulled the trigger or were you the guy that somebody said hey let me borrow your car, Ive gotta get rid of something or are you the guy that didnt want to get involved and thought they were just going to scare the guy and he ended up getting killed. I dont know. Youre one of those people. Okay and what were trying to do here is gauge your involvement, okay. Did you pull the trigger and shoot this guy?

^[3]Ultimately, the jury was instructed as follows: The prosecution and the defense are required to disclose to each other before trial the evidence each intends to present at trial so as to promote the ascertainment of the truth, save court time and avoid any surprise which may arise during the course of the trial. Delay in the disclosure of evidence may deny a party a sufficient opportunity to subpoena necessary witnesses or produce evidence which may exist to rebut the non-complying partys evidence.

Disclosures of evidence are required to be made at least 30 days in advance of trial. Any new evidence discovered within 30 days of trial must be disclosed immediately. In this case, the People failed to timely disclose the following evidence: the analysis by Ms. Adams of Exhibit 47 and her opinions about the tape over the fingerprint.

Although the Peoples failure to timely disclose evidence was without lawful justification, the Court has, under the law, permitted the production of this evidence during the trial.

The weight and significance of any delayed disclosure are matters for your consideration. However, you should consider whether the untimely disclosed evidence pertains to a fact of importance, something trivial or subject matters already established by other credible evidence. The other factor to be considered is that the defense did present their own expert on this issue. (Italics added.)