PEOPLE v. HIGGINS







Filed 1/13/11

CERTIFIED FOR PUBLICATION


COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. RAYMOND HIGGINS, Defendant and Appellant.

D055649 (Super. Ct. No. SCD212359)

STORY CONTINUE FROM PART I….

Beyond the prosecutor's highly improper accusation that Dr. Kalish and defense counsel had "attack[ed]" a rape victim, the prosecutor's argument in this regard suggested that Dr. Kalish had testified inconsistently in the two trials on the subject of back filling, and, by implication, that defense counsel and Dr. Kalish were willing to present whatever testimony might be necessary to help a client avoid conviction. This type of attack clearly constituted misconduct, and was highly prejudicial.
Although the trial court attempted to cure the prejudice caused by the prosecutor's improper remarks by admonishing the jury to disregard them, we are not convinced that the court's admonition was sufficient to cure the harm. The problem began five days earlier, when the prosecutor first mentioned that defense counsel had hired Dr. Kalish as a defense expert in a rape trial, and the trial court overruled defense counsel's objection to this comment. In closing argument, during the morning session that day, the prosecutor asserted that Dr. Kalish and defense counsel had "attack[ed] the victim" in that trial. The court did not admonish the jury concerning this issue until the afternoon session (after having originally overruled defense counsel's objection). By that time, the jury had been exposed to the prosecutor's problematic characterization for hours. Further, in light of the prosecutor's other comments attacking defense counsel's integrity, which we discuss in parts III.A.1.c. and III.A.1.d., post, this "curative" instruction may have had the opposite effect of what the court intended—i.e., rather than eliminating the harm from the improper comment, the instruction may have served simply to reinforce the fact that defense counsel had utilized Dr. Kalish in defending a person charged with rape, thereby potentially amplifying the damaging effect of the prosecutor's original misconduct.
To make matters worse, there was no evidentiary basis for the assertions that the prosecutor made in his closing argument on the subject of back filling, because the prosecutor neglected to elicit from Dr. Kalish any testimony that would have supported the point that the prosecutor was attempting to make in this portion of his argument. The prosecutor argued that Dr. Kalish had suggested that the victim in the rape case might have actually consented to sex, but that, as a result of back filling, she may have created a different story about what had occurred. However, the prosecutor never asked Dr. Kalish how the concept of back filling was relevant to his testimony in that case. Instead, the prosecutor asked Dr. Kalish only general questions about the process of back filling. As a consequence, the prosecutor's argument about the manner in which Dr. Kalish had used the concept of back filling in the rape trial—i.e., to challenge the victim's story—was not based on evidence elicited at trial. For this reason, alone, the prosecutor's remarks were highly improper. This improper argument, together with the prosecutor's highly prejudicial accusation that Dr. Kalish and defense counsel had "attack[ed]" a rape victim, created a situation that no instruction or admonition could fully cure.
b. Disparaging the defense expert

During closing argument, the prosecutor made a number of unfair disparaging comments about Dr. Kalish, in a further attempt to undermine Dr. Kalish's credibility. The prosecutor argued that Dr. Kalish was "being paid a lot of money to come in and give his opinion to spin. . . . His entire opinion is based on what the defendant told him." The prosecutor continued, "This isn't a man looking for the truth . . . . This was a man looking for an excuse, and he found one." The prosecutor also argued that the reason Dr. Kalish did not write a report until just prior to trial was because "[h]e doesn't want his opinion being critiqued, having me go out and talk to someone who would counter what he's saying. That's why. It's part of the game." Later, the prosecutor repeated the allegation that Dr. Kalish had been paid to make up a defense: "He got paid seven grand to meet for two hours with the defendant and come up with an excuse. That's what he did."
Although it is fair to ask a witness about compensation that the witness received for his or her work and trial testimony to attempt to show bias (see People v. Parson (2008) 44 Cal.4th 332, 362-363), the prosecutor crossed the line when he argued that Dr. Kalish had failed to write a report as an entrée to accusing Dr. Kalish of being a "hired gun" who had been paid to create an "excuse" for Higgins.
The record demonstrates that, in fact, Dr. Kalish had called the district attorney's office on two occasions, prior to trial, to offer to make himself available for an interview. The prosecutor informed defense counsel that he did not want to interview Dr. Kalish, and that he wanted Dr. Kalish to prepare a written report instead. Defense counsel suggested, as an alternative, that there be a pretrial hearing at which Dr. Kalish could testify and answer the prosecutor's questions. In response to this offer, the prosecutor said that he would be fine with examining Dr. Kalish, but that he would prefer a written report. At a subsequent pretrial hearing at which the subject was raised, the trial court directed defense counsel to have Dr. Kalish prepare a written report within the following three days.
In light of this record, it was unfair for the prosecutor to argue to the jury that the reason Dr. Kalish did not prepare a report until just prior to trial was to avoid having his conclusions examined and critiqued by the prosecutor. The record establishes that, in fact, Dr. Kalish had been willing to make his opinions available to the prosecutor prior to the time he submitted a report; the prosecutor's suggestion to the contrary misstated the facts, and gave the jury the false impression that Dr. Kalish had attempted to avoid having the prosecutor gain access to his conclusions.
The prosecutor further disparaged Dr. Kalish by twice asserting that Dr. Kalish had been hired by defense counsel to make up a defense for Higgins. Although "harsh and colorful attacks on the credibility of opposing witnesses are permissible" (People v. Arias (1996) 13 Cal.4th 92, 162, italics omitted), a prosecutor is to "argue, from the evidence, that a witness's testimony is unbelievable, unsound, or even a patent 'lie.' " (Ibid., italics added.) Further, accusations that counsel fabricated a defense or misstated facts in order to deceive the jury are forbidden. (E.g., People v. Friend, supra, 47 Cal.4th at pp. 30-31.) The prosecutor's statement in closing argument that Dr. Kalish "got paid seven grand to meet for two hours with the defendant and come up with an excuse," was not an argument based on the evidence. Rather, it was an unfair suggestion to the jurors that they should disregard Dr. Kalish's testimony because his testimony had been bought and paid for by defense counsel.
The prosecutor was free to question Dr. Kalish about the bases of his conclusions, as well as about the compensation he received for the work he performed on behalf of the defense. However, the prosecutor went too far when he argued to the jury that Dr. Kalish had essentially made up his conclusions only to get paid and supported this assertion by misstating the record, telling the jury that Dr. Kalish had tried to avoid having his conclusions examined by the prosecutor before trial.
c. Disparaging defense counsel's trial strategy
Higgins contends that the prosecutor "unfairly chastised" defense counsel for exercising Higgins's constitutional right to cross-examine witnesses. During closing argument, the prosecutor argued: " . . . Ms. Arnold. She's a vulnerable victim. She tried to do her best to tell you the truth. I sincerely—well, I think her testimony sincerely showed that to you. [¶] And he had her on the stand for three or four hours asking about every single little detail about a door. Why do you do that‌ It's just distraction. It's distraction. It's his job. I get it. I understand it. But it's distraction. [¶] She didn't even lock that dining room door. Why is Mr. Warwick asking her 25 questions about it‌ She doesn't know. Well, he sees an opportunity and he's going to take advantage of it."
The implication that defense counsel's cross-examination of one of the two main prosecution witnesses amounted to "tak[ing] advantage" of "an opportunity" was an improper comment about defense counsel's integrity. Rather than arguing about the evidence or the inferences to be drawn from the evidence, the prosecutor instead attacked the manner in which defense counsel presented his case, and unfairly suggested that defense counsel was doing something improper in thoroughly cross-examining a prosecution witness.
d. Suggesting improper strategies on the part of the defense

Higgins complains that the prosecutor posed argumentative questions that unfairly suggested that his attorney had improperly "coached" him to do or say certain things while on the witness stand. For example, the prosecutor asked Higgins if he recalled running across Arnold's front lawn. When Higgins responded that he did not recall having done so, the prosecutor asked Higgins whether he needed a moment. Higgins answered, "No." At that point, Higgins apparently rubbed his head, because the prosecutor then asked, "Did your defense attorney tell you to rub your head in terms of preparing you for . . . ." Defense counsel immediately objected. The court overruled the objection. Higgins responded that the "only thing that Mr. Warwick has told me is to be honest with the jurors."
At another point during his cross-examination of Higgins, the prosecutor asked, "How much time have you spent working on your testimony with Mr. Warwick‌" implying that Higgins's testimony was rehearsed. The prosecutor also asked Higgins whether defense counsel had suggested that Higgins look at the jury and maintain eye contact and "those type of things."^[1]
During closing argument, the prosecutor insinuated that Higgins was attempting to fabricate a defense by testifying that he had used the .38‑caliber firearm, and not the .45‑caliber firearm, to pry open the bedroom door, because Higgins had been charged "with assault with a semiautomatic firearm."^[2] The prosecutor argued, "I think that's indicative of how smart this man is. He is a very, very intelligent man, and he knows—I asked him questions." The prosecutor later argued that Higgins was "not a good actor[,] [a]nd make no mistake, that was an act, members of the jury. That was coached. That was trained. That was an act."
"A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel." (Hill, supra, 17 Cal.4th at p. 832.) "If there is a reasonable likelihood that the jury would understand the prosecutor's statements as an assertion that defense counsel sought to deceive the jury, misconduct would be established." (People v. Cummings (1993) 4 Cal.4th 1233, 1302.) In addition, the Supreme Court has said that "such locutions as 'coached testimony' are to be avoided when there is no evidence of 'coaching' . . . ." (People v. Thomas (1992) 2 Cal.4th 489, 537.)
Despite the fact that there was no evidence of coaching by defense counsel, the prosecutor suggested several times during his cross-examination of Higgins that Higgins had been "coached" by his attorney. The suggestion that Higgins had been "coached" to do or say certain things—both by the prosecutor's asking argumentative questions that suggested coaching, and the prosecutor's asserting during closing argument that Higgins had been coached by his counsel—constituted improper attacks on the integrity of defense counsel.
In addition to the prosecutor's attacking defense counsel's integrity by repeatedly suggesting that Higgins had been "coached," the prosecutor's comments with respect to Higgins's claim that he had used the .38‑caliber weapon—and not the .45-caliber weapon—in order to avoid a conviction for a charge of assault with a semiautomatic firearm had the additional effect of unfairly undermining Higgins's own credibility. The prosecutor essentially improperly impeached Higgins by asserting, incorrectly, that Higgins had been charged with assault with a semiautomatic firearm, and arguing that Higgins had changed his story in order to avoid a conviction on that charge. In fact, Higgins had not been charged with assault with a semiautomatic firearm. The People essentially admit that the prosecutor erred in claiming that Higgins had been charged with assault with a semiautomatic firearm, but contend that the prosecutor's misstatement was harmless. Although this error, alone, might not support reversal of Higgins's conviction, as we explain below, this error was but one of a number of instances of prosecutorial conduct that undermined the fairness of the proceeding.
2. Improper, argumentative questioning of Higgins
Higgins challenges a number of questions that the prosecutor posed to him on cross-examination as argumentative, and as constituting an improper attack on Higgins's credibility. For example, Higgins testified on direct examination that he had been "obsessed with trying to save Jamie" on the night in question because Higgins "had already lost Sean [Canepa]." The prosecutor asked Higgins, "You'd agree with me that it's pretty pathetic if you're using the memory of a dead 17-year-old kid as an excuse in this trial, wouldn't you‌ Would you agree with me‌ Is that the legacy that you want Sean Canepa to have— [‌]" Defense counsel objected and moved to strike the question. The trial court sustained the objection and granted the motion to strike.
Higgins also testified on direct examination about his sister's suicide and the fact that he had felt guilty about having been unable to attend her funeral. During cross-examination, Higgins mentioned that on the day of the incident at Arnold's residence, he had looked at a photograph of his sister that was taken when she was 19 years old. Apparently undeterred by the fact that the trial court had sustained the objection to the prosecutor's improper "question" regarding Sean Canepa's death, the prosecutor asked, "You agree that's pretty despicable if you were using that as an excuse—[‌]" Defense counsel objected on the ground that the question was argumentative. The trial court sustained the objection. Defense counsel then asked "for an admonishment" because "this has been a couple of times." In response, the trial court said to the prosecutor, "Let's ask questions, please, Mr. Lawson."
When Higgins denied that he had broken the sliding glass door in order to gain entry into the Arnold home, the prosecutor said, "This whole thing about, 'Oh, the door was unlocked,' that moment of clarity that you have in your mind, that's just another excuse that you're feeding the jury‌" The trial court sustained defense counsel's objection to this question as argumentative.
At another point, Higgins testified that he had been drunk when he went to the Arnold home. He said that he did not remember much of what had taken place, but that he did recall Wuerfel saying, "He's got a gun," which, Higgins said, caused him to realize what he was doing and to leave the Arnold home. The prosecutor interjected, "Isn't that convenient that all of a sudden, right after you've committed the crimes, that that's when you come to‌" Defense counsel objected to the argumentative nature of the question, and the court sustained the objection.
"An argumentative question is a speech to the jury masquerading as a question. The questioner is not seeking to elicit relevant testimony. Often it is apparent that the questioner does not even expect an answer. The question may, indeed, be unanswerable. . . . An argumentative question that essentially talks past the witness, and makes an argument to the jury, is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all." (People v. Chatman (2006) 38 Cal.4th 344, 384.)
"The rule is well established that the prosecuting attorney may not interrogate witnesses solely 'for the purpose of getting before the jury the facts inferred therein, together with the insinuations and suggestions they inevitably contained, rather than for the answers which might be given.' [Citations.]" (People v. Wagner (1975) 13 Cal.3d 612, 619.)
The prosecutor's "questions" as to whether Higgins agreed that it was "pathetic" and/or "despicable" for him to use the deaths of his daughter's best friend and his sister as "excuse[s]" for his behavior on the night of the incident were not proper questions designed to elicit actual evidence. Rather, they were "speech[es] to the jury masquerading as [ ] question[s]" (People v. Chatman, supra, 38 Cal.4th at p. 384), and served only to suggest to the jury, in a highly improper manner, that Higgins was making up excuses for his conduct. In addition, these "questions" suggested to the jury that the defense that Higgins was presenting was "despicable." The prosecutor's tactic in posing these "questions" was clearly improper, and appears to have been intended only to make Higgins look bad in the eyes of the jury.
Similarly, the prosecutor's "questions" about Higgins's memories of the night in question constituted improper argument. Rather than seeking facts, in posing these "questions," the prosecutor was arguing to the jury that the memories that Higgins claimed to have about certain parts of the incident were in fact only a convenient defense story. The trial court correctly sustained defense counsel's objections to these argumentative questions.
A trial court's sustaining an objection to an improper argumentative question and giving an appropriate admonishment or striking the question will generally be sufficient to cure the harm caused by the impropriety of posing argumentative questions. However, in this case, the prosecutor's argumentative questions, which struck direct blows to Higgins's credibility, were part of a pervasive pattern of improper statements and repeated misconduct. The prosecutor was clearly undeterred by the trial court's repeated sustaining of defense counsel's objections, since he continued to pose similarly objectionable questions throughout his cross-examination of Higgins. One is forced to conclude that the prosecutor intentionally posed questions that he knew were improper, in an attempt to discredit Higgins and his defense, and that the prosecutor was unconcerned about whether his "questions" drew objections, or whether the court sustained any such objections, because in merely posing these questions, the prosecutor accomplished his purpose. As we discuss further in part III.B., post, in this context, we are not convinced that the trial court's attempt to dispel the negative effects of these "questions" was sufficient to cure the prejudice that resulted from the combined effect of the prosecutor's improper questions and his other improper remarks.
3. Commenting on seeing the bulge in Higgins's pants
One day during trial, Higgins wore the work pants that he had been wearing on the night of the incident, in an attempt to demonstrate that it was possible that the two guns had been in Higgins's pockets without Arnold or Wuerfel noticing them during his first visit to the Arnold home.^[3] In closing argument, the prosecutor addressed the defense argument that Higgins's pants could have easily accommodated the two handguns without the guns being noticeable, saying, "I don't know if those pockets are the same . . . . I would submit to you that when the defendant was walking by, I could see the bulges through the lining, regardless." Higgins argues that this statement constituted prosecutorial testimony, and offered a fact that was not in the record.
There was no testimony by any witness as to whether one could or could not see bulges in Higgins's pants caused by the guns in his pocket. The prosecutor therefore was essentially testifying when he told the jury that he could see bulges in Higgins's pants during the demonstration. Whether Higgins had been absentmindedly carrying around the guns in his pockets as he claimed, or rather, went home between visits to the Arnold house in order to arm himself, as the prosecutor claimed, was significant to Higgins's intent—which was the only disputed issue at trial. The jury may have given too much weight to the prosecutor's improper statement that he could see the bulges during Higgins's demonstration, since the jurors may have taken what the prosecutor said as an established fact, rather than making an independent determination of the meaning of the demonstrative evidence.
4. Improperly referring to Higgins's potential sentence during
closing argument

Higgins complains that the prosecutor improperly raised the issue of sentencing when he suggested to the jury that the court would have discretion in sentencing Higgins. In an apparent attempt to counterbalance the defense evidence of Higgins's good character (i.e., Higgins's military record, his record as a successful businessman, his humanitarian efforts, and his general good character), during closing argument the prosecutor told the jurors, "Your job isn't to decide whether or not he's a good or bad guy. That's something for the judge to do at sentencing. [¶] Your job is to decide whether or not he broke the law. The judge is the ultimate person who gets to consider all that stuff. That's a sentencing issue." The prosecutor made the point again, stating, "That stuff is for the judge to consider at sentencing, not for you to consider when you're deciding whether or not he broke the law, whether or not he violated the Penal Code."
A defendant's potential punishment is not a proper matter for juror consideration. (See People v. Holt (1984) 37 Cal.3d 436, 458, superseded by statute on other grounds.) As the United States Supreme Court has explained, "The principle that juries are not to consider the consequences of their verdicts is a reflection of the basic division of labor in our legal system between judge and jury. The jury's function is to find the facts and to decide whether, on those facts, the defendant is guilty of the crime charged. The judge, by contrast, imposes sentence on the defendant after the jury has arrived at a guilty verdict. Information regarding the consequences of a verdict is therefore irrelevant to the jury's task. Moreover, providing jurors sentencing information invites them to ponder matters that are not within their province, distracts them from their factfinding responsibilities, and creates a strong possibility of confusion. [Citations.]" (Shannon v. United States (1994) 512 U.S. 573, 579, fn. omitted.)
The prosecutor's comments concerning sentencing were clearly improper. The comments may have suggested to the jury that even if it were to convict Higgins of all of the charged offenses, the judge might be lenient towards Higgins based on the evidence of Higgins's good character. This, in turn, could have caused the jury to be less concerned about returning a guilty verdict than if the suggestion had never been made. In addition, the prosecutor's improper comments regarding Higgins's potential sentence may have misled the jury concerning the consequences of a conviction, since the enhancement allegations of personal use of a firearm carry a mandatory five-year prison sentence. The prosecutor should not have raised the issue of sentencing at all. Once he did, he clearly should not have provided misleading information on the subject.
5. Telling jurors that they had the "right" to get justice for the
community by holding Higgins accountable

Higgins challenges the prosecutor's remark to the jury that it had "rights," including the right "to make sure the community gets justice." The prosecutor stated: "You equally have rights as a jury. Your right is to make sure that the community gets justice. Your right is to hold him accountable for his actions, to hold him responsible, to let him know that his vanity, his arrogance, his aggression, the fact that he was under the influence of alcohol, are not excuses and he will be held accountable. Those are your rights when you find him guilty of all three counts and the allegation."
There is no support for the prosecutor's assertion that a jury has the "right" to convict a defendant. This comment was clearly improper. By raising the notion of the jury's "rights," the prosecutor impliedly suggested to the jury that it should exercise its rights. Further, it is improper to appeal to the self-interest of jurors or to urge them to view the case from a personal point of view. (People ex rel. Dept. of Public Works v. Graziadio (1964) 231 Cal.App.2d 525, 533-534.) The prosecutor's suggestion to the jury that it had "rights" was not an argument about the evidence presented during trial. Rather, it was arguably an appeal to the jurors' self-interest, and suggested to the jurors that they had a personal stake in a certain outcome.^[4]
B. The prosecutor's conduct requires reversal

This is not a case in which the prosecutor engaged in a few minor incidents of improper conduct. Rather, the prosecutor engaged in a pervasive pattern of inappropriate questions, comments and argument, throughout the entire trial, each one building on the next, to such a degree as to undermine the fairness of the proceedings. Although we are not convinced that any individual instance of the prosecutorial misconduct of which Higgins complains would, by itself, require reversal, we conclude that the cumulative effect of all of the misconduct does require reversal.
The basic facts in this case were not in contention. The central issue was Higgins's intent, and the case turned on the jury's assessment of Higgins's credibility. A previous jury had deadlocked on these same charges, and there is no indication that the state of the evidence changed in any meaningful way between the two trials. Because Higgins's credibility was pivotal in this case, the prosecutor's repeated attempts to undermine Higgins's credibility—as well as the integrity of defense counsel and the defense expert witness—by posing grossly improper questions and presenting improper argument, was particularly prejudicial.
In reviewing the record and considering the extent of the prosecutor's improper questions and arguments, we conclude that the prosecutor's improper conduct " ' "so infected the trial with unfairness as to make the resulting conviction a denial of due process." ' " (People v. Riggs, supra, 44 Cal.4th at p. 298, citation omitted.) We further conclude that it is reasonably probable, i.e., that there is a reasonable chance, that Higgins would have obtained a more favorable result absent the repeated incidents of improper conduct. (See People v. Welch (1999) 20 Cal.4th 701, 753.) Again, in this context, "reasonable probability" means " 'merely a reasonable chance, more than an abstract possibility,' of an effect of this kind." (People v. Blakeley (2000) 23 Cal.4th 82, 99.) The aggregate prejudicial effect of the prosecutor's conduct therefore requires reversal.^[5]
The People argue that Higgins forfeited a number of his claims of prosecutorial misconduct by failing to object and to request an admonition at the time of the asserted misconduct. " 'As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]' [Citation.]" (Hill, supra, 17 Cal.4th at pp. 820-821.) However, the Supreme Court "has recognized exceptions to the forfeiture rule in cases of pervasive prejudicial prosecutorial misconduct . . . ." (People v. Dykes (2009) 46 Cal.4th 731, 775, fn. 8, citing Hill, supra, at p. 821; see also People v. Estrada (1998) 63 Cal.App.4th 1090, 1100 ["When . . . the misconduct is part of a pattern, when the misconduct is subtle and when multiple objections and requests for mistrial are made, we conclude it proper for a reviewing court to consider the cited misconduct in evaluating the pattern of impropriety"].)
Further, courts have recognized that in some situations an objection and/or admonition will actually exacerbate the prejudice to the defendant. (People v. Pitts (1990) 223 Cal.App.3d 606, 692, superseded by statute on other grounds.) For example, in a situation in which "improper comments and assertions are interspersed throughout trial and/or closing argument, repeated objections might well serve to impress upon the jury the damaging force of the misconduct." (Ibid.) "In such a situation, a series of admonitions will not generally cure the harmful effect of [the] misconduct." (Ibid.)
Due to the pervasive nature of the prosecutor's improper comments and questions in this case, and the fact that it is clear from the record that the prosecutor was undeterred by the trial court's repeated sustaining of objections to his improper questions and argument, we conclude that a series of admonitions would not have served to cure the unfairness caused by the prosecutor's conduct.

DISPOSITION
The judgment is reversed. The matter is remanded for a new trial.



AARON, J.

WE CONCUR:



NARES, Acting P. J.



McINTYRE, J.



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