PEOPLE v. MAE POLK







Filed 12/13/10




CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. SUSAN MAE POLK, Defendant and Appellant.

A117633 (Contra Costa County Super. Ct. No. 031668-7)

Story continued from part I…..

An evidentiary hearing was held prior to the first trial at which defendant and the officer testified. The trial court ruled defendant was taken into custody at her home, prior to the formal police interrogation, but it refused to suppress her comments made at that time because they were not made in response to police questioning. The court also rejected her claim of coercion regarding statements made after the Miranda warnings were given. Although counsel had not challenged the adequacy of the Miranda warnings given defendant, the court nonetheless noted that it had reviewed the tape of the interview and concluded “a Miranda, full Miranda, advisement was given.” Defense counsel did not object to or otherwise comment on the court’s unsolicited conclusion that a full Miranda warning had been given, although he was provided an opportunity to do so.
During preparation for the second trial, defendant was initially represented by retained counsel. When the attorneys were discussing with the court the need for making in limine motions in preparation for the second trial, the court ruled that all pleadings, arguments, and rulings of the court from the first trial would be incorporated into the second trial, “with the understanding that you’re not waiving any objections or . . . objections to rulings, that you made the first time.”
Defendant soon thereafter made a motion under Faretta v. California (1975) 422 U.S. 806, for leave to represent herself. At the same time, her attorney declared an actual conflict had developed with defendant and asked to be relieved of his representation. The request was granted, and defendant was permitted to proceed in propria persona. There is no indication in the record counsel had any continuing role in defendant’s case.
At the second trial, after the testimony of the officers who responded to her home, defendant raised a general objection “to every non-Mirandized statement,” disputing again the admissibility of the statements she made before being interrogated at the police station. In response, the court noted, “The Miranda issue was litigated prior to the first trial. It wasn’t renewed formally. I’m gathering that there’s a renewal of that.” The court denied the motion after further argument.
Later, when one of the interrogating officers testified, defendant objected to admission of the statements she made to him as “a violation of my Miranda rights.” The court initially responded, “The Miranda issue is one for the Court, and has already been litigated and decided.” When defendant contended, “I have new evidence,” however, the court sent the jury away and heard argument. Defendant told the court, “I have examined the . . . transcripts very carefully, and I have done some more research. And . . . the transcripts indicate that prior to talking to [the interrogating officer] I told him that I was very, very tired. That is enough to trigger . . . not just a Miranda warning, but to indicate to the officers that they should not proceed with the discussion.” In the colloquy that followed, defendant did not challenge the substantive adequacy of the Miranda warnings, although she did raise again the issues surrounding the statements she made before being given the warnings. The court overruled defendant’s objection, in the process reiterating that it had earlier concluded the Miranda warnings were “properly given.”
Based on this record, there is no question the issue now raised—the substantive adequacy of the Miranda warnings given to defendant prior to her police interrogation—was never brought to the attention of the trial court or asserted as a basis for suppressing her statements during trial. Defendant cited Miranda, but the only arguments made under the authority of that decision were the claims her statements given after the Miranda warnings were coerced and her statements made prior to the warnings should be suppressed.
2. Waiver
“ ‘ “An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.” ’ [Citation.] ‘ “The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had . . . .” ’ [Citation.] ‘ “No procedural principle is more familiar to this Court than that a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” ’ ” (People v. Saunders (1993) 5 Cal.4th 580, 589–590.)
Under Evidence Code section 353, subdivision (a), a judgment can be reversed because of an erroneous admission of evidence only if the record contains an objection both “timely made and so stated as to make clear the specific ground of the objection or motion.” (People v. Demetrulis (2006) 39 Cal.4th 1, 20.) If a defendant fails to make a timely objection on the precise ground asserted on appeal, the error is not cognizable on appeal. (Ibid.) Accordingly, unless a defendant asserts in the trial court a specific ground for suppression of his or her statements to police under Miranda, that ground is forfeited on appeal, even if the defendant asserted other arguments under the same decision. (People v. Rundle (2008) 43 Cal.4th 76, 120–121, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Holt (1997) 15 Cal.4th 619, 666; People v. Ray (1996) 13 Cal.4th 313, 339.) Because she did not raise the issue of the substantive adequacy of the Miranda warnings in the trial court, defendant has forfeited that issue on appeal.
Defendant argues she “properly preserved” the issue by objecting on grounds of Miranda both prior to the first trial and during the second trial. As the discussion of the record shows, however, defendant did not merely cite Miranda. She and her retained counsel carefully articulated their arguments under Miranda. Both arguments contended her statements to police were coerced. No mention was made of the warnings themselves. These claims of coercion are simply not sufficient to preserve the present issue under Evidence Code section 353, subdivision (a), because they did not call to the attention of the trial court the substantive inadequacy of the warnings under Miranda and provide the trial court an opportunity to avoid error on that ground. On the contrary, as noted above, when the trial court sua sponte expressed an opinion the warnings were adequate, retained counsel acceded to the characterization.[1]
3. Ineffective Assistance of Counsel
Defendant contends that, if she has forfeited her right to raise the inadequacy of the Miranda warnings because the issue was not presented to the trial court, the failure to raise the issue was a consequence of ineffective assistance of counsel. Defendant, however, represented herself in the trial resulting in the judgment presently on appeal. “Defendants who have elected self-representation may not thereafter seek reversal of their convictions on the ground that their own efforts were inadequate and amounted to a denial of effective assistance of counsel.” (People v. Bloom (1989) 48 Cal.3d 1194, 1226.)
Defendant contends the fault for the failure to raise the inadequacy of the Miranda warnings lay with her retained counsel, whose motion in limine to suppress the statements prior to the first trial did not mention it. When a defendant elects self-representation, however, he or she can cite the errors of counsel as constituting ineffective assistance only when counsel has been assigned a particular role in connection with the proceedings, and only to the extent counsel has performed inadequately in that role. (People v. Blair, supra, 36 Cal.4th 686, 723; see, e.g., People v. Mendoza (2000) 24 Cal.4th 130, 157 [allowing ineffective assistance claim where defendant officially represented himself, but his attorneys retained responsibility for pretrial and trial proceedings].) While it is true, as defendant argues, her counsel was not merely advisory but responsible for all aspects of her defense at the first trial, he was relieved of those duties prior to commencement of the second trial, which led to the judgment here under consideration. As far as the record reveals, he had no role in that trial. Rather, defendant took on herself the responsibility for making all evidentiary objections. It was therefore defendant’s own failure to raise the Miranda issue when her statements to police were offered into evidence in the second trial that led to the forfeiture. “A self-represented defendant may not claim ineffective assistance on account of counsel’s omission to perform an act within the scope of duties the defendant voluntarily undertook to perform personally at trial.” (People v. Bloom, supra, 48 Cal.3d at pp. 1226–1227.)
Defendant contends retained counsel should be held responsible because he failed to make the Miranda argument prior to the first trial, arguing the trial court incorporated its rulings from the first trial into the second. While we might find some merit in this argument if, at the second trial, the court had prohibited the making of new arguments on issues covered in rulings from the first trial, refused to reconsider rulings made at the first trial, or otherwise dogmatically held to those rulings, that was plainly not the case. On the contrary, the trial court’s incorporation of proceedings from the first trial was merely a convenience, intended to relieve the attorneys of the burden of relitigating issues already raised and resolved.[2] Throughout the second trial, the court regularly permitted defendant to raise new legal arguments and even to revisit previously settled issues. In connection with the exclusion of her statements to police, for example, the court allowed defendant to reargue her contention the pre-Miranda statements should be suppressed. While the trial court initially told defendant admission of the post-Miranda statements was an issue of law that had been settled prior to the first trial, when defendant told the court she had “new evidence,” the trial court heard defendant out and considered her new argument. Defendant was therefore free to raise new issues of law throughout the trial and was in no way bound by her retained counsel’s failure to raise the Miranda issue prior to the first trial. For that reason, counsel’s failure at the first trial to raise the issue was not the cause of defendant’s failure to raise the issue at the second trial. There is no basis for a claim of ineffective assistance of counsel on this issue.
4. Prejudice
Even if the trial court’s error in admitting defendant’s statements on the prosecution’s case-in-chief had been preserved for appeal, we would find no grounds for reversal because, under these circumstances, any error in the admission of those statements was not prejudicial to defendant. In making this determination, we apply the Chapman standard requiring reversal unless admission of the statements was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 21–22; People v. Lujan (2001) 92 Cal.App.4th 1389, 1403.)
The evidence of defendant’s guilt, apart from her statements to police, was strong. In the days prior to the killing, defendant had made a number of threats to kill Felix. Her son Gabriel, who witnessed the threats, took them seriously enough to fear for his father’s life. Felix was similarly concerned. Felix was killed in the cottage behind defendant’s house, while defendant was home. Her footprint was found in the dried blood, the shoe prints matched her size, and clumps of her hair were clenched in Felix’s hands. Further, there was little or no evidence of self-defense, outside defendant’s testimony. The combination of a blunt force wound to the back of the head, a single stab wound to the back, and the remaining stab wounds to the front suggested that defendant set upon Felix from the back. Moreover, she lacked the wounds that might have been expected had she been attacked. She did not report the killing to police, as would have been expected if she had acted in self-defense, falsely pretended ignorance to her son, and apparently took steps to cover up the killing. Defendant’s statements to police, in which she confirmed the couple had marital problems but otherwise denied involvement in the killing, added no significantly inculpatory information to this evidence. Given the strength of the evidence of guilt, and the minimal inculpatory value of her statements to police, admission of those statements was harmless beyond a reasonable doubt.
Defendant contends admission of the statements was damaging because her various complaints about Felix to the interrogating officer revealed “[m]ultiple motives” to kill him. As an example, she cites her comments about Felix’s success in obtaining custody of Eli, his reduction of support payments to her, his efforts to remove her from the family home, his remark to Gabriel she was crazy, and his success in winning away Gabriel’s loyalty. Virtually all of these issues, however, were covered by the testimony of other witnesses, particularly Gabriel and Felix’s attorney. There was ample evidence, apart from defendant’s statements to police, that defendant felt herself wronged by Felix and bore extraordinarily angry feelings toward him at the time of the killing. Admission of these statements to police was therefore merely cumulative on issues that, to a large degree, were not even in dispute.
Defendant also argues “her false denials of any involvement in Felix’s death suggested guilt.” While this may be true, any suggestion of guilt was entirely the result of the strength of the evidence discussed above. Her denials to police were not inculpatory in themselves. If they suggested her guilt in context, it was only because of the strong evidence that she committed the killing.
In this regard, we do not consider as prejudicial any effect her statements to police might have had in refuting defendant’s own testimony asserting self-defense. Defendant cannot rely on prejudice arising out of the tendency of the statements to rebut her own testimony because the statements would have been admissible to impeach that testimony, regardless of the Miranda violation. (See People v. DePriest (2007) 42 Cal.4th 1, 32 [voluntary confession obtained in violation of Miranda admissible for purposes of impeachment].)
Defendant contends admission of the statements was particularly harmful because the prosecution made them a “centerpiece” of its case. A review of the prosecutor’s closing argument shows the true centerpiece of his case was the forensic evidence, which he argued heavily, along with defendant’s prior threats against her husband. While defendant’s statements were cited in closing argument, they were used to refute defendant’s claim she acted in self-defense. As noted above, there can be no claim of prejudice regarding such a use of the statements, since they would have been admitted as impeachment evidence in response to her testimony.
Defendant acknowledges the statements would have been admissible as impeachment evidence, but she contends, citing our decision in Bradford, supra, 169 Cal.App.4th 843, that their admission can nonetheless be found prejudicial because she might not have testified had the statements not been admitted. In fact, we rejected this type of reasoning in Bradford. In that case, also a murder prosecution, the evidence, apart from the defendant’s statements to police, would have supported any verdict from murder to voluntary manslaughter and was arguably consistent with a claim of self-defense. (Id. at p. 855.) The defendant’s statements to police, however, were highly inculpatory, tending to rule out any defense for the killing. (Id. at pp. 849–850.) The defendant took the stand and claimed he acted in self-defense, but the jury rejected the testimony and convicted him of second degree murder. (Id. at p. 850.) We found prejudice, noting, “Because of the significant bearing of the confession on the crucial issue of defendant’s mental state and the ample evidence that would have supported a finding of voluntary manslaughter rather than murder, we cannot say admission of the confession was harmless beyond a reasonable doubt.” (Id. at p. 855.)
In Bradford, the Attorney General argued the statements to police should not be considered prejudicial because they would have been admitted to impeach the defendant’s testimony in any event; the defendant responded he would not have testified if not for the need to counter his statements to police. We rejected both arguments, recognizing, “Whether defendant would have testified in the absence of the need to respond to his confession and, if so, whether the confession would have been admitted for purposes of impeachment requires us to engage in speculation about the parties’ tactical choices. Because it is impossible to determine what might have happened had the trial proceeded differently, we conclude that prejudice should be evaluated on the basis of the evidence actually presented, while excluding the improperly admitted confession. On this basis, as noted above, we cannot find the confession’s admission to have been harmless beyond a reasonable doubt.” (Bradford, supra, 169 Cal.App.4th at pp. 855–856.) For the same reason, we decline to speculate about defendant’s decision to testify here and, as noted, find no prejudice “on the basis of the evidence actually presented, while excluding the improperly admitted confession.” (Id. at p. 855.)
The two cases are otherwise poles apart. In Bradford, the defendant’s statements to police were highly inculpatory, while the remaining evidence was ambiguous. Thus, the evidence presented, minus the statements to police, could have supported any one of several verdicts, arguably including acquittal. The defendant’s statements to police were prejudicial because they tended to make the lesser verdicts much less probable by ruling out self-defense and heat of passion. In comparison, as discussed above, the evidence of guilt here was strong and unambiguous, and defendant’s statements to police were not in themselves inculpatory. Accordingly, under the test we articulated in Bradford, admission of the statements was harmless beyond a reasonable doubt.
Finally, defendant argues that if the statements had been admitted solely for impeachment purposes during her testimony, rather than introduced in the prosecution’s case-in-chief, they would have had less evidentiary force because she would have been entitled to a jury instruction precluding their consideration as proof of her guilt. (See, e.g., People v. Coffman and Marlow (2004) 34 Cal.4th 1, 63.) Such an instruction, however, would have had little impact on the evidentiary significance of the statements. Their chief value was not to provide affirmative proof of defendant’s guilt but to cast doubt on her exculpatory testimony of self-defense. As a result, introduction of the statements in the prosecution’s case-in-chief, rather than as impeachment evidence, did not change their value as evidence.
D. Use of the Word “Homicide”
Defendant contends the trial court committed misconduct because, by approving the use of the word “homicide” in reference to Felix’s death, the court “unmistakably informed the jury that the court had allied itself with the prosecution by accepting its theory” Felix’s death was a killing, thereby rejecting defendant’s claim he died a natural death.
1. Background
As discussed above, Dr. John Cooper opined on defendant’s behalf that Felix’s death was not a homicide because he died as a result “acute coronary insufficiency due to severe coronary artery disease,” to which his wounds “were a contributing factor.” Early in the trial, well prior to Cooper’s testimony, the prosecutor referred to Felix’s death as a “murder.” After the trial court sustained defendant’s objection to the use of that term and to his subsequent use of the term “killing,” the court directed that the death could be referred to as a “homicide.” In so doing, it overruled defendant’s objection that “homicide” was inappropriate because “[i]t is not established that there was a killing. The cause of death has not been established.” The matter was discussed again a few days later, when defendant objected to the court’s reference to a “homicide” during argument outside the jury’s presence. Defendant told the court she had contacted two experts who claimed Felix died of natural causes. The court responded, “There’s no jury here to be prejudiced by that term. If you’ll note in front of the jury, I’m not using that term.”
2. Discussion
A trial court “ ‘ “commits misconduct if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression it is allying itself with the prosecution.” ’ ” (People v. McWhorter (2009) 47 Cal.4th 318, 373.) It is essential the court maintain the appearance of neutrality because jurors have “great confidence [i]n the fairness of judges, and upon the correctness of their views expressed during trials.” (People v. Sturm (2006) 37 Cal.4th 1218, 1233.) Misconduct occurs “[w]hen ‘the trial court persists in making discourteous and disparaging remarks to a defendant’s counsel and witnesses and utters frequent comment[s] from which the jury may plainly perceive that the testimony of the witnesses is not believed by the judge.’ ” (Ibid.) A judgment will be reversed if “judicial misconduct or bias was so prejudicial that it deprived defendant of ‘ “a fair, as opposed to a perfect, trial.” ’ ” (People v. Guerra (2006) 37 Cal.4th 1067, 1112, overruled on another ground in People v. Rundle, supra, 43 Cal.4th 76, 151.)
Defendant’s claim fails for two reasons.[3] First, there was no misconduct. It is by no means clear the court’s approval of the word “homicide” communicated to the jury a rejection of defendant’s position on this issue. While we agree with defendant the word “homicide” implies a killing, as opposed merely to a death, this is a relatively subtle linguistic distinction, one more apparent to attorneys than laypersons. The incident on which the argument is based occurred on the first day of testimony, long before any presentation of evidence by defendant on this issue, and the court thereafter refrained from using the term “homicide” in front of the jury. When Cooper testified, the court said nothing to suggest it did not believe his testimony.
Yet even if we were to accept defendant’s argument that the trial court’s approval of the word “homicide” communicated its rejection of the claim Felix died of natural causes, the ruling did not constitute the type of persistent biased conduct necessary to demonstrate judicial misconduct. This ruling was an isolated event. To rise to the level of judicial misconduct on the ground of bias, there must be a pattern of judicial behavior suggesting a more complete rejection of the defendant and his or her innocence. Yet this single use of the word “homicide” is the only example of biased conduct cited by defendant. A review of the trial record shows the court exercised admirable restraint, maintaining an appearance of neutrality under difficult circumstances.
Defendant relies on People v. Sturm, supra, 37 Cal.4th 1218, but the cases are very different. The trial judge in Sturm “engaged in a pattern of disparaging defense counsel and defense witnesses in the presence of the jury, and conveyed the impression that he favored the prosecution by frequently interposing objections to defense counsel’s questions.” (Id. at p. 1238.) Nothing of the sort occurred here. At most, the court made a word choice that could be construed to suggest the court did not accept a particular factual contention of the defense. There was no disparagement of Cooper or defendant and no hint the court favored the prosecution more generally.[4]
Second, any rejection of this aspect of Cooper’s testimony by the court would have been harmless because his testimony on this issue was insufficient to relieve defendant of criminal responsibility for Felix’s death. To prove homicide, the prosecution was not required to show that defendant’s criminal conduct was the sole or even the primary cause of Felix’s death, but merely that it was a substantial factor in causing his death. As the Supreme Court summarized the law to be applied when there is more than one possible cause of death, “as long as the jury finds that without the criminal act the death would not have occurred when it did, it need not determine which of the concurrent causes was the principal or primary cause of death. Rather, it is required that the [criminal] cause was a substantial factor contributing to the result: ‘ “[N]o cause will receive judicial recognition if the part it played was so infinitesimal or so theoretical that it cannot properly be regarded as a substantial factor in bringing about the particular result.” ’ [Citations.] [¶] This is true even if the victim’s preexisting physical condition also was a substantial factor causing death. [Citation.] ‘So long as a victim’s predisposing physical condition, regardless of its cause, is not the only substantial factor bringing about his death, that condition . . . in no way destroys the [defendant’s] criminal responsibility for the death.’ ” (People v. Catlin (2001) 26 Cal.4th 81, 155–156.)
Cooper did not testify that Felix’s coronary artery disease was the sole cause of his death or, put another way, that Felix would have died that evening of coronary artery disease even if defendant had not stabbed him deeply and repeatedly. Rather, Cooper acknowledged the stab wounds played a crucial role in the death. As he said, “[I]f I were filling out a death certificate I would—I would put as cause of death acute coronary insufficiency due to coronary arteriosclerosis. And then there’s a section for significant contributing factors. I would put multiple stab wounds.” Accordingly, even if Cooper’s testimony was fully credited by the jury on this issue, it would not have proven that a homicide did not occur.[5] In the absence of any substantial evidence Felix’s death was not a homicide, the court’s reference to it as such was harmless and did not deprive defendant of a fair trial. (See People v. Guerra, supra, 37 Cal.4th at p. 1112.)
E. Cross-examination of Cooper
Defendant contends the trial court abused its discretion and committed reversible error when it permitted the prosecutor to cross-examine Cooper extensively about the unusual events surrounding the disclosure of his litigation file.
1. Background
During Cooper’s cross-examination, it emerged he maintained a file with respect to defendant’s case but had not brought it to California from his home in Texas. After a contentious exchange regarding the file, which the prosecution contended should have been turned over prior to Cooper’s testimony, the court dismissed the jury for the day to discuss the file’s disclosure. In response to the court’s questioning, Cooper said that, while most of his file remained at home, in his hotel room was a letter written by defendant describing the events on the night of the killing on which Cooper had relied in formulating his opinions, along with a few other relevant documents. The court asked Cooper to bring the letter to court the next day.
The next morning, a Friday, Cooper told the court the letter from defendant was not in his papers at the hotel, “[w]hich means that it was either taken or I have misplaced it.” He explained the lock on his hotel room door was not working, which would have allowed for theft of the document. Alternatively, he thought he might have left it on the airplane. When the court directed Cooper to have the file sent by overnight mail from his home, he responded that no one was at home to ship the documents. After further discussion, the court ordered Cooper to return to court on the following Monday with his file and to call the airline to inquire about the lost letter. Cooper answered, “Certainly,” giving no indication he would not comply with the order. Court adjourned at 10:10 a.m.
The following Monday morning, Cooper called the court to say he would not be returning. In a three-page letter sent by e-mail, he explained he was “withdrawing from any further participation” in the trial because of “the hostile behavior” of the prosecutor, who “has contrived to make my record-keeping the central issue.” Further, Cooper wrote, the prosecutor’s “stalling tactics have caused me to run out of time to participate in this trial.” The letter also claimed the prosecution’s pathology expert “saw fit to present a distortion of the autopsy evidence” and made “false representations,” accused the prosecutor of creating a “smokescreen” and seeking to bring about a mistrial, and claimed Cooper was under no “legal obligation” to bring the documents to court in the absence of a subpoena. In the course of his diatribe, Cooper confidently proclaimed defendant’s innocence.
The trial court characterized Cooper’s conduct as unprecedented in her experience, noting in consternation: “I have never had an expert take on the role to such an extent of an advocate, and then to indicate that he has chosen not to come back. . . . [¶] . . . [F]or him to do this to [defendant] in the middle of the testimony is . . . bizarre, and somewhat inexcusable, because it puts the defendant in an untenable position in some respects.” After denying defendant’s request for a mistrial as a result of the controversy, the court issued an order for Cooper’s reappearance.
When Cooper returned to court, he was subjected to extensive cross-examination about the foregoing events, over frequent and vigorous defense objection. The prosecutor began with questions about the contents of Cooper’s file and his use of various materials from the file in preparation for his testimony, but he soon moved to the events surrounding Cooper’s failure to bring his file, the conflicting statements he made about the location and contents of the file, and his sudden withdrawal from the case. Eventually, Cooper admitted he failed to appear because he was preparing for testimony in another matter. This led to questions about his letter to the court and his understanding of his legal obligations as an expert witness. Eventually, the prosecutor accused Cooper of withdrawing in order to avoid cross-examination.
2. Discussion
Under Evidence Code section 721, subdivision (a), an expert witness “may be cross-examined to the same extent as any other witness and, in addition, may be fully cross-examined as to (1) his or her qualifications, (2) the subject to which his or her expert testimony relates, and (3) the matter upon which his or her opinion is based and the reasons for his or her opinion.” “ ‘[I]t is well settled that the scope of cross-examination of an expert witness is especially broad; a prosecutor may bring in facts beyond those introduced on direct examination in order to explore the grounds and reliability of the expert’s opinion.’ ” (People v. Loker (2008) 44 Cal.4th 691, 739.) We reverse for error in the admission of evidence if “it is reasonably probable the verdict would have been more favorable to the defendant absent the error.” (People v. Watson (2008) 43 Cal.4th 652, 686.)
While we agree with defendant that a prosecutor’s cross-examination of an expert witness about his or her disclosure of documents would ordinarily be of limited relevance, we find no abuse of the trial court’s exercise of its discretion in these circumstances. Although defendant characterizes the disputed cross-examination as addressing Cooper’s knowledge of the rules of discovery, it was both broader and more pertinent than that.[6] Although an experienced expert witness, Cooper failed to bring his litigation file to court. When asked about it, he claimed under oath to have left it at home. Then he told the court he had some of it with him, including a letter from defendant. A day later, he said the letter was either stolen or left on an airplane. When ordered to return to court with the file after the weekend, Cooper acceded without complaint, but when Monday came around he refused to return. Initially, he attributed his refusal to his treatment by the court and the prosecutor, but he eventually disclosed he had another litigation commitment that week. The foregoing conduct was sufficiently irregular and suggestive of evasion and dishonesty as to bear on his credibility. Perhaps even more important, the tone of Cooper’s letter was that of an advocate for defendant’s acquittal rather than a dispassionate expert. The exploration of this attitude was highly relevant to the credibility of Cooper’s opinions. There was no abuse of discretion in permitting cross-examination on these matters.
In any event, there would be no basis for reversal as a result of the questioning even if permitting it had constituted error, since it was not prejudicial.[7] Because defendant acknowledged having killed Felix, the primary issue was whether the killing was in self-defense. The evidence refuting self-defense was strong, including defendant’s threats and avowals of intent to kill Felix prior his death, the pattern of his injuries, and her evasive conduct immediately following his death. While Cooper’s testimony regarding the pattern of Felix’s injuries was a significant part of defendant’s defense, the disputed cross-examination did not directly challenge the substance of Cooper’s opinion that Felix’s injuries were consistent with self-defense. In light of the strong evidence of guilt and the marginal impact of this cross-examination on the substance of Cooper’s testimony, there is no reason to believe the jury’s verdict would have been different in its absence.


To be continue as part III……

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