Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court for the County of Los Angeles. Ct. No. NA064231, James B. Pierce, Judge.
Patricia Ihara, 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, Linda C. Johnson and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
COOPER, P. J.
SUMMARY
Mark Alan Broughton, who was on parole after a conviction for assault with a deadly weapon, was tried for the murder of his wife, Teresa Davila Broughton (Davila). Davila and Broughton did not live together, but saw each other frequently, and Broughton was with Davila when she died. The medical examiner could not determine the cause of death, and found the death to be a homicide only because of suspicious circumstances. Broughton claimed Davila, who suffered from diabetes, obesity, and heart disease, died of natural causes after he unsuccessfully administered cardio-pulmonary resuscitation (CPR). However, Broughton did not call for help, and remained in Davila’s apartment with her decomposing body for at least eight days and perhaps a week or so longer. There were three previous incidents of domestic violence, two in 1989 and one in 1995, and a July 19, 2001 restraining order for bad Broughton from contact with Davila; remaining away from Davila was also a condition of Broughton’s parole. A jury convicted Broughton of murder after a trial at which the prosecutor was admonished several times for misconduct of various sorts. Broughton appeals, asserting insufficiency of the evidence, prosecutorial misconduct, and other claims of error.
We reverse the judgment. While the evidence was sufficient to sustain a conviction, the case was an extremely close one. Prosecutorial misconduct and other error affecting a critical element of the prosecution’s case lead us to conclude that, had the trial proceeded without those defects, there is a reasonable probability the verdict would have been different.
FACTUAL AND PROCEDURAL BACKGROUND
Broughton was charged with murder (Pen. Code, § 187, subd. (a)) in a one-count information that also alleged he had served one prior prison term. (§ 667.5, subd. (b).) A jury found him guilty of murder, and the trial court found the prior prison term allegation to be true. The court denied Broughton’s motion for a new trial on grounds of insufficient evidence and prosecutorial misconduct, and Broughton was sentenced to state prison for 16 years to life. The court imposed a $10,000 restitution fine, a $10,000 parole revocation restitution fine (stayed), and a $100 security fee, and Broughton was given credit for 742 days in custody. Broughton filed a timely notice of appeal.
All statutory references are to the Penal Code unless otherwise specified.
The jury was instructed on second degree murder only.
Broughton contends on appeal that he was entitled to one additional day of custody credit and that the security fee should be reduced to $20. The People concede these points.
The evidence presented at trial, viewed in the light most favorable to the judgment, was as follows.
1. The condition of Davila’s body.
Davila’s body was found in the bedroom of her apartment on March 24, 2004, in a state of moderate to severe decomposition. Broughton was living in the apartment. He had covered Davila’s body with blankets and clothing, sprinkled white talcum powder throughout the apartment, and was using several fans and air conditioning. Shades were drawn and blankets covered windows and the sliding glass door in the living room. An autopsy determined Davila had been dead for “days to weeks.” The medical examiner (Dr. Vadims Poukens) could not determine the cause of Davila’s death due to the state of decomposition. Death was not caused by blunt force trauma or sharp force injuries, but decomposition could mask superficial injuries. Poukens could not exclude asphyxia as a cause of death, but there was no physical evidence of asphyxia. The autopsy showed Davila “had a bad heart.” Her heart was slightly enlarged, and she had significant arteriosclerosis (clogged arteries). She was five feet tall and at autopsy her body weighed 212 pounds. She was diabetic, and could have died from diabetic shock or a heart attack. Had there been no suspicious circumstances, the medical examiner would have determined Davila died of heart disease.
The police did not inventory or collect Davila’s medications at the crime scene.
2. The discovery of the body.
Davila’s body was discovered when the Long Beach police came to Davila’s apartment to check on her welfare. They did so after receiving a call from Broughton’s stepfather (a San Bernardino County sheriff’s employee), who told the police he had received a telephone call from Broughton and that Broughton’s wife “may or may not be dead.” When the police arrived (Officer Dylan Lobascio and his partner), Broughton opened the door and said, “I’m glad to see you guys. Come in. Come in.” Broughton appeared to be relieved that the police had arrived. When Broughton opened the door, the police officers could smell the decomposition. Broughton told them his wife had passed away a few days ago, and at the time he didn’t know what to do, so he had kept her there. The body was on the floor between the bed and the window. Blood stains were found on the underside of a pillow on the bed, and the bed sheet also appeared to contain dried blood stains.
When Lobascio asked Broughton what had happened, Broughton related the following. He talked with Davila by telephone on March 9, 2004, and Davila told him she was not feeling well and wanted Broughton to come over and help take care of her. Broughton agreed. On March 16, Davila was not feeling well, and Broughton helped her into bed. He left to go to the local 7-Eleven store, and returned 12 to 15 minutes later to find Davila lying on the bed and breathing heavily. She had bubbles coming out of her mouth and was unresponsive. Broughton rolled her over to get the fluid out of her mouth; he got the fluid out but she remained unresponsive, so he moved her to the floor and administered CPR. The CPR was unsuccessful and Davila died. Broughton said he was “confused, numb, didn’t know what to do and didn’t want to let go,” so he kept Davila’s body in the apartment; when the decomposition odor began, he used powder and fans to deal with it. On March 23, 2004, he called his stepfather and told him what had happened.
Another officer, Gary Lawson, arrived on the scene later and also spoke to Broughton. He asked Broughton why he didn’t call 911, and Broughton responded, “I didn’t know what to do.” Lawson also asked why he waited so long to call the police, and Broughton first told him that he (Broughton) didn’t have rent money for the place he had been staying, and had no other place to go; Broughton then said, “I couldn’t let her go.”
Lawson also asked Broughton what had happened. Broughton’s account was similar to the one he gave Lobascio. He said he and Davila had been married since 1978, were currently separated and liked to live apart, but still cared for each other. He went to Davila’s apartment on March 16 because she was not feeling well. At around 11:00 a.m., Davila told Broughton she was not feeling well, was having trouble breathing and had an upset stomach. He asked her if she was feeling well enough for him to go to the 7-Eleven store, and he did so. When he returned at 11:45, Davila was sitting on the bed and having trouble breathing, and Broughton noticed bubbles coming from her mouth. He thought that meant she had liquid in her lungs and told her not to lie down because that was restricting her breathing. She did lie on the bed and stopped breathing, and he then noticed blood coming out of her nose. Then he placed her on the floor and began mouth-to-mouth resuscitation.
3. Broughton’s record and history of domestic violence.
At trial, the parties stipulated to the occurrence of three incidents of misdemeanor conduct by Broughton against Davila during their marriage: (1) on May 5, 1989, police officers observed Davila with a swollen left eye and a small laceration; (2) on June 2, 1989, officers observed Davila with bruises and swelling to her shoulder and redness to her neck area; and (3) on September 2, 1995, officers observed Davila with a bruise to her left knee.
In addition, Veronica Mercado, a friend of Davila’s and a neighbor from 1998 to May 2003, testified that she heard Broughton threaten Davila “more than once” in 2002 or 2003. She testified:
Broughton was paroled from prison in July 2002, returned to prison for violating his parole in September 2002, and remained in prison until September 2003, several months after Mercado last saw Davila, so the threats apparently occurred between July and September 2002.
“[S]ometimes he would go like, you know, ‘one of these days I’m going to kill you, bitch,’ and, you know, inside of the apartment, right. And sometimes, when he was coming from outside, he will come close to the door and kick the door and, you know, tell her to open the door and let him in. And then he would go like, ‘I’ll have a surprise for you. One of these days I’m going to kill you.’”
The last time Mercado actually saw Davila was in July 2003.
Broughton admitted during interrogation that he “got … prison time” for aggravated assault, for stabbing someone who had attacked him in his house. He was placed on parole in July 2002. One of the special conditions of Broughton’s parole was that he could not have any contact with Davila. Less than two months after his release, he was found in Davila’s company and taken into custody for violating his parole. He was released a year later, in September 2003, six months before Davila’s death.
An abstract of judgment placed in evidence at Broughton’s sentencing showed that his conviction for assault with a deadly weapon occurred on May 7, 1998. Broughton’s sentence of three years for the assault was executed after his probation was revoked; sentence was pronounced on July 19, 2001, the same date the court issued a restraining order under section 136.2 protecting Davila.
Davila had not reported Broughton, and it did not appear that he was at her apartment against her wishes.
The trial court permitted the prosecution to reopen its case to receive expert testimony from a Long Beach police officer working the domestic violence detail, Detective Robin Hawkins. Hawkins testified that domestic violence victims do not always tell the truth, often recant their allegations, do not always report what happens to them, and usually stay with their abusers.
4. Broughton’s interviews with the police.
After the police found Davila’s body on March 24, 2004, Broughton was taken into custody for violating the conditions of his parole. He was interviewed for several hours on March 24th by Detective Richard Conant and another detective, and again nine months later on December 17, 2004, by Detective Mark McGuire and Detective Conant. (Broughton was not charged until February 9, 2006.) The tapes of both interviews were played in their entirety for the jury.
The March 24, 2004, interview.
Conant testified that Broughton’s story about how Davila died was consistent throughout the March 24 interview, although “as the interview went on and the questioning continued, more details about the event came out.” Conant said that nothing changed in the story Broughton had told him at the apartment and what Broughton told him in the taped interview. Broughton was combative at certain points, and at times began to get angry, as when he was questioned about why he did not call 911. He said, “I didn’t call 911. I just didn’t. Why, I don’t know.” And: “I can’t tell you ‘cause I don’t know. I was stressed out ….” While staying in Davila’s apartment with her dead body, he prepared food for himself, fed the cat, and washed his shirts. He at first denied drinking after Davila’s death, but then admitted he “had a beer.” He said he was despondent, and “What happened is what happened.”
At one point Broughton claimed he wasn’t aware his current parole conditions included a prohibition on contact with Davila. He also said he had last been at his residence (a residential hotel in Wilmington) on March 15, and on that day called Davila, who said she was sick and needed his help. When questioned about the cause of the 2001 restraining order, he said, “I don’t know exactly. . . . Eighteen years ago or something, I guess we got in a bit of argument.” The detectives asked if it “went pretty bad,” and Broughton winked at the detectives and said “Yes, yes.” He admitted being arrested for domestic violence against Davila on “[a] couple” of occasions, including “[w]hen [he] beat her up in 1995.” He said he didn’t remember the details of the domestic violence incidents involving Davila. He stated he thought she went to the hospital and had a check up after one of the incidents. When the detective said, “But it’s been a pattern going back 20 years up until a year or two ago, and now we have this incident,” Broughton replied, “Which is ridiculous. I know it doesn’t look good, does it?” Broughton admitted being convicted of assault with a deadly weapon for stabbing someone who “attacked me in my house”; he said the victim in that case was a convicted child molester who came into his house when Davila was selling her van. When the detectives told him there was blood on the bed, Broughton said it probably dripped from the pillow; he said that the pillow recovered from the bed was the one that was on the floor when he was doing CPR, that blood was coming out of her mouth and nose when she was on the floor, and he put the pillow on the bed after she died; he said “[t]he original pillow, the one that I covered up on the bed was down on the floor. I didn’t want her – I didn’t want it all over her face . . . .”
Broughton said he was not allowed to work, and had lung cancer. During his second interview (see post), he stated he was not allowed to drive because he is an epileptic.
The December 17, 2004, interview.
Detectives McGuire and Conant conducted a second interview with Broughton nine months later. Broughton was cooperative and “a little jovial . . . .” His account of Davila’s death, according to McGuire, was consistent with his two previous accounts to Detective Conant (at the apartment on March 24 and at his subsequent taped interview). This time he stated he performed CPR at first on the bed. Davila wasn’t breathing, and then he turned her over and put her on the floor, and started pushing her back and compressing her, “but there was nothing, just the fluid.” Davila ended up on her side when he changed the pillow; “I had to get the pillow out from her head and lay her head back down.” Broughton said he went to Davila’s apartment on March 12, he left that day and came back on March 16 because Davila told him she was very sick. He said he did not call 911 “because I didn’t wanna go back to prison and – and if I did call [they would] have took me back . . . .” The detectives confronted Broughton with a notebook in which he had written several entries relating to Davila’s death. Broughton said they were “[n]otes for my stepfather,” and he wrote them after Davila died. When asked by the police whether he had made any phone calls during the time he was at Davila’s apartment, Broughton said he called his sister-in-law after Davila died, and asked her to call his stepfather, as he was too distraught.
The notebook contained several entries dated March 2004. An entry dated March 10 stated Broughton went to the 7-Eleven store, Davila needed CPR when he returned, her lungs were full of fluid, she died in his arms, and he had been with her since 1975. An entry dated March 23 said, “Ex-wife died on March 14th.” The entry continued, partially crossed out, “I didn’t see you on (16) is because I was . . . taking care of my dead. My rent was due on the 19th. Remember they have no phone. My name is on the . . . I should find a new place by then. No see you on the 16th. My ex-wife died.”
At the preliminary hearing, Broughton’s stepfather testified that, a week before March 23rd, Broughton’s sister-in-law called and told him (the stepfather) that Broughton had called her and said Davila had died.
5. Other evidence.
The pillow recovered from the bed had three blood stains on one side; two of them were reddish-brown in color, and the third appeared to be a continuation of a large brown-and-yellow stain from the other side of the pillow (which was negative for blood). There was also a reddish brown blood stain on the corner of the bed sheet. The DNA extracted from the bloodstains was consistent with Davila’s DNA. Broughton was excluded as a contributor to any of the stains, and fingernail scrapings and clippings taken from Davila were consistent with her own DNA, not with Broughton’s. The medical examiner (Poukens) testified that fluid may come out of a decedent’s nose and mouth at the time of heart stoppage, and this fluid is usually a clear fluid with a slight mixture of blood, pinkish rather than bright red in color.
Video from a nearby 7-Eleven store’s surveillance camera showed Broughton visited the store numerous times between March 9 and March 23, 2004, and purchased 40-ounce bottles of malt liquor and bottles of wine, as well as other items. He appeared friendly with the clerks.
Broughton had an appointment with Joseph Gilmartin, his parole agent, on March 16, 2004, but did not appear. On March 23rd, Broughton left a voicemail message for Gilmartin, saying that his wife had died, he would be coming in before the end of the month to file a resident report with Gilmartin, “but right now everything is kinda right up in the air.”
The wife of the manager of the residential hotel in Wilmington where Broughton lived testified that on March 8, 2004, she put a letter concerning a change in management under the door of Broughton’s room. The letter was still there on March 21, 2004, when she entered Broughton’s room to leave a note regarding the overdue rent. When the police examined Broughton’s room on March 25, a sheet covered the window, and the letter and note were recovered from the room.
There was a single black “x” marked on the date of March 9, 2004, on a calendar in Davila’s apartment.
6. The defense evidence.
Broughton presented evidence from several of Davila’s doctors; from a forensic pathologist; and from a clinical psychologist who evaluated Broughton.
Dr. Jennifer Hsieh is an endocrinologist. Davila was referred to her in July 2003 because her diabetes was poorly controlled. Davila then weighed 224 pounds, and had smoked half a pack of cigarettes per day since age 16. In January 2004, Davila told Hsieh she had gotten extremely sick, and had stopped taking the medication Hsieh prescribed. Davila had high blood pressure and a blood sugar level that was high, but not severely out of control. Hsieh last saw Davila on March 4, 2004. (She was apparently the last person, other than Broughton, to see Davila.) Davila was “flushing and sweaty,” but had restarted her medications and her diabetes had improved. When asked if Davila’s diabetes was life threatening, Hsieh said, “That’s a tough one to answer,” but that she would say “[i]t would not be considered life threatening.” Hsieh characterized Davila’s diabetes control as 65-70, on a scale of zero (perfect diabetes control) to 100 (uncontrolled diabetes). Davila had had diabetes for 13 or 14 years.
Dr. Cathy Gentemann, a doctor specializing in internal medicine, last saw Davila in January 2004, when her medical problems included poorly controlled diabetes, high blood pressure, schizophrenia, a foot ulcer, restless leg syndrome, and obesity. Her blood pressure and diabetes placed Davila at higher risk of a heart attack, but arteriosclerosis is not necessarily a life-threatening condition, and Gentemann didn’t “see any medical problem that I would expect her to immediately die from.”
Dr. Clifford Sussman and colleagues in his medical group treated Davila from 1999 to 2001. Sussman testified Davila was prescribed medication for various mental disorders (depression, psychosis, anxiety, and schizophrenia). Davila was also on medications not related to her mental health or diabetes, including Celebrex, which the FDA has warned can increase the risk of cardiovascular disease, in particular heart attack and stroke.
Dr. Robert Anthony, a forensic pathologist, agreed with the medical examiner (Poukens) that Davila’s cause of death could not be determined, but criticized Poukens for failing to consider Davila’s medical records when he determined her death was a homicide, and for not ordering a comprehensive toxicology report. He testified that a person sweating, with foam or bubbles coming out of their mouth, “[p]otentially could be” consistent with a drug overdose, including prescription drugs. It could also be consistent with a heart attack. A diabetic with insufficient insulin may have fluid buildup in the lungs, and may start bubbling fluid from the mouth and nose prior to death. Anthony also testified about the risk of sudden death for people with enlarged hearts and about the variable symptoms of pre-heart attacks. He said that the blood on the pillow could be accounted for because, when a dying person is subjected to CPR, air can mix with bloody material from the breakdown of capillaries, and pink to dark red foam can come from the mouth. He testified the manner of death, in his opinion, should be “undetermined” rather than homicide.
The defense also presented testimony from Dr. Stephen Bindman, a clinical psychologist and neuropsychologist who tested Broughton’s I.Q. Bindman testified Broughton had an overall I.Q. of 88, which is in the 16th or 17th percentile and is classified as low average. Various subtests generally placed Broughton in the low average range, although he scored in the 80th percentile on an information subtest and in the 25th percentile on a vocabulary subtest. Broughton’s general memory was classified as poor (at the 5th percentile) and affected his ability to remember events accurately. Broughton’s performance on one of the tests indicated that he could not “describe how things are functionally related very well,” suggesting impairment in the frontal lobe of his brain.
On cross-examination, Bindman testified he concluded, from the tests and history, that Broughton had “a diffuse encephalopathy as well as probably a temporal lobe epilepsy,” which accounted for an appreciable decrement in his I.Q. (from an estimated 105 to 88). “The history showed epilepsy, and the tests which I gave suggested that he had focal problems . . . which are common in epilepsy. And I pointed out that I had enough data to substantiate that he was brain damaged. But to really tie it down I would need to do more work . . . . But that’s as far as I could go. That’s – I’ve given my best tentative estimate that he is brain damaged. I’m relatively certain.”
7. The prosecutor’s conduct during trial.
Before the trial began, the court held a hearing under Evidence Code section 402 concerning evidence the prosecution sought to adduce of Broughton’s prior acts of violence against Davila and others. In addition to Broughton’s interviews with the police, the prosecutor wanted to adduce evidence about two instances in 1989, and another in 1995, involving misdemeanor violence by Broughton against Davila. The trial court ruled Broughton’s statements to the police about these acts were admissible, “but the specific instances in ‘89 and ‘95 are excluded at this point until I hear what you intend to introduce.” Eventually, the parties presented the jury with a stipulation about those three instances. The court also ruled that, with respect to Broughton’s 1998 conviction for felony assault, the People would not be allowed to go into the facts of the assault without a further order or ruling by the court.
During the course of the trial, there were incidents precipitating motions for a mistrial by defense counsel, one of which was among those the trial court later characterized as “major violations” by the prosecutor, deputy district attorney Grace Rai, as well as other incidents for which the prosecutor was admonished. These are related in serial order.
In addition, the prosecutor was cited for contempt of court (see footnote 16, post), but this was in connection with conduct that did not occur in the presence of the jury.
a. Gilmartin’s testimony.
During the testimony of Joseph Gilmartin (Broughton’s parole officer), the prosecutor asked him if one of Broughton’s special conditions of parole was “taking part in a 52 session – or 52 sessions of domestic violence counseling.” The court sustained the defense objection (“leading and hearsay”), and then the prosecutor asked what other special conditions of parole existed. Gilmartin answered, “It was to attend and complete a 52 week batterer’s program.” The defense moved to strike the answer on hearsay and relevance grounds, and the court struck the answer from the record. Defense counsel then moved for a mistrial, stating the prosecutor had been previously admonished not to ask questions of that nature. The trial court stated:
“Counsel, if I didn’t make it clear before, I’m making it clear now. This is not relevant, the fact that he [the parole officer] added conditions that had nothing to do with this victim is not relevant to this trial. . . . [¶] . . . [¶] It’s not to be gone into at all. I’ll take under submission your moving for mistrial. At this time it’s denied.”
Defense counsel cross-examined Gilmartin, eliciting that Broughton “had completed a 26 week course” prior to reporting to Gilmartin for parole supervision. On redirect examination, the prosecutor asked the subject of the 26-week course, and Gilmartin said “it may have been more directed towards an anger management sort of a class,” but he (Gilmartin) didn’t have more specific information on it. When the prosecutor asked if Broughton gave him a certificate saying he had completed the course, defense counsel’s hearsay objection was sustained, but the prosecutor again asked if Broughton had given Gilmartin a certificate, and the trial court struck Gilmartin’s “yes” answer. The prosecutor then said, “It wasn’t on domestic violence,” and defense counsel objected again. Her objection was sustained, and she then renewed her request for a mistrial. The prosecutor complained that defense counsel could “ask any question she wants” but the prosecutor couldn’t ask follow-ups. The trial court explained the hearsay rule, and indicated it had allowed defense counsel to elicit Broughton’s completion of counseling “because there was a motion for mistrial based on your prior questioning. . . . Then you brought up the subject again, contrary to my instructions, and you started to ask him about specifics. . . . Then you asked him specifically the leading question as to some nature of domestic violence. That’s improper. That’s contrary to the court’s ruling. I’m not going to discuss this with you. Move on.”
b. The 1999 incident.
During Virginia Mercado’s testimony about Broughton’s threats to kill Davila in 2002, the prosecutor asked Mercado if she had ever seen injuries on Davila, such as bruising marks or red marks. The court allowed the question, and Mercado said:
“Once I saw her, you know, her wrist. She had some kind of, you know, like a bandage or something. So I asked her, and she keeps claiming that her bone hurt. So I asked her what happened. She was at my house.”
The defense moved to strike the answer as non-responsive, and the court held a sidebar. The court stated it was not familiar with the incident and asked the prosecutor, “What is this about?” The prosecutor said that she “didn’t know that [the witness] was going to say that,” and the court told the prosecutor “to stay away from it then . . . .”
Later, during cross-examination of Dr. Sussman, the prosecutor elicited testimony that Davila was seen on August 20, 1999, in the emergency room, for injuries to her head and right arm, and that Davila said a neighbor had beaten her up. After the conclusion of Sussman’s testimony, a recess was taken; after reconvening and dismissing the jury for lunch, the court indicated that there had been “further discussions in chambers” about “the bringing in front of this jury a prior instance, a prior specific instance of violence against [Davila], namely, a 1999 incident that was covered on cross-examination by [the prosecutor] in front of this jury.” The court recounted the pre-trial “lengthy discussions as to what the court would allow in and what the court would not allow in,” and “now there’s some instance in 1999 that the court did not have any prior knowledge of, and in the court’s opinion was totally inappropriate to bring in front of this jury . . . .” The court asked how it could “unring that bell,” and at the end of the defense case, a stipulation was read to the jury that there was no evidence to suggest Broughton was responsible for or involved in the 1999 incident. The trial court later described this incident as “the most egregious and the major error” done by the prosecutor.
The court continued: “Now I’ve indicated to counsel that this will not be tolerated in the future. And there will be further sanctions by counsel on either side if they bring in other instances other than the 2004. Anything that’s relevant to that certainly comes in. But any prior instances of violence, they are not to be discussed with this jury except for the very limited circumstances that the court allowed previously. [¶] I don’t know how I can make that order any more clear or more specific than I’ve made it. . . . It’s an absolute order. . . . ” The prosecutor asked for “time to respond on the record,” which the trial court permitted. The prosecutor then argued that the 1999 incident should be distinguished from the four incidents discussed before trial at the Evidence Code section 402 hearing because it was an incident of violence against Davila as opposed to violence by Broughton. The trial court then asked if the prosecutor would stipulate that the 1999 incident had nothing to do with Broughton, and she replied, “That’s not true.” The prosecutor said that “the order by the court up until now has been confusing to me . . . .” After further colloquy, the court repeated and the prosecutor acknowledged that the court’s ruling was “crystal clear.”
In connection with the discussion of this stipulation, the prosecutor began a lengthy and contentious defense of her “confusion as to the court’s ruling.” She eventually stated that “from the beginning, Your Honor, the People have felt that you’ve been slanted against our case . . . .” After this comment, the prosecutor continued to argue with the court, repeatedly stating the court had “shut the People down” when the court asked her what authority she had for bringing up an additional incident of domestic violence without prior notice and a court ruling. The court later cited the prosecutor for contempt of court for impugning the integrity of the court, based on her statement that the court was slanted against the People’s case. (When it cited the prosecutor with one count of contempt, the court stated that “it’s not an isolated case even though I’m only proceeding on one count,” and “There were at least ten other instances, and I’d be happy to cite those to you if you want, but I’d rather not go through it of other instances of misconduct,” and “Now [defense counsel] I’m sure in trying this case went through hell.”) After the trial, an in camera hearing was held at which the prosecutor apologized, admitting her statements were “completely inartful and inappropriate,” and stating she spoke before she thought, and “would never insult the court in the middle of a murder trial in which I depend on its rulings and it to be fair.” The trial court then took the contempt proceeding off calendar.
c. Eliciting inadmissible hearsay.
The prosecutor also elicited inadmissible hearsay in the form of questions. During Mercado’s testimony, the prosecutor asked her if she remembered telling Detective McGuire that the victim was afraid of Broughton. The trial court sustained defense counsel’s objection and struck Mercado’s “yes” answer. The prosecutor’s next question was whether Mercado was “in fear of the defendant,” to which the defense objection was also sustained. Similarly, during her direct examination of Detective McGuire, the prosecutor asked: “Remember when you stated in your interview to the defendant, you had mentioned a doctor who had stated that [Davila] . . . was in fear of the defendant?” The trial court struck McGuire’s “yes” answer.
d. The “choking” claim in closing argument.
One of the prosecution’s theories was that Davila died of asphyxiation (and that the blood on the pillow came from a battering of some sort by Broughton). In closing argument, the prosecutor referred to the 1989 and 1995 incidents of domestic violence that had been adduced in evidence thusly:
“But throughout this entire history no one sees [Broughton] do this. [Davila] just miraculously shows up with these – with these swollen eyes, with these bruises on her knee, on her shoulder, redness to her neck. How does redness to the neck happen? How does that happen? Probably by choking.”
The prosecutor knew, however, from the police report that Davila told police Broughton had held a knitting needle to her neck and jabbed at her neck with it. The trial court sustained defense counsel’s objection, and told the jury, “[y]ou must base your decision only on the evidence in the case. Counsel has crossed the line in that regard.” The prosecutor immediately resumed, saying: “You be the judges. You be the judges. In your own personal experience, how does redness of the neck happen?” The court later remarked that it thought the objection and its comment to the jury cured any error that was made, “but it was definitely a significant violation by the People.” At the conclusion of the prosecutor’s argument, defense counsel again moved for a mistrial, pointing out that the prosecutor, in the choking claim, “clearly stated something that she has absolutely no evidence of fact, and, in fact, she has evidence quite to the contrary.” The trial court admonished the prosecutor, who eventually admitted there was evidence contrary to her statement. At a later sidebar, after the case was given to the jury, the prosecutor stated, “I don’t believe that I said it was due to choking, the redness on her neck.”
The trial court stated: “I’m admonishing you not to refer to evidence that you know does not exist and, in fact, exists to the contrary. I’m admonishing you to only make proper statements based on the evidence in this case as I have repeatedly throughout this trial. And we will take all these matters up, all these admonishments up, after the conclusion of this case.”
e. The prosecutor’s repeated references to trauma.
The fourth violation “of major significance that may have affected this trial,” in the trial court’s view, was the prosecution’s repeated, “and I mean repeated,” argument “trying to make this case a trauma case” when there was no evidence of trauma:
“And what I’m talking about is the arguments in regards to at one point in time [the prosecutor] held up the photographs and said, ‘Is this a fair fight?’ I remember that very vividly, implying that somehow the damage that was done here was done as a result of trauma, and there’s no evidence of that. The other item that was referred to is the excessive blood over and over and over again, again, trying to turn this case into a trauma case which it wasn’t.”
For example: “She’s not here to speak on her behalf. We only have a defendant’s self-serving statements. [¶] But we do have this. We have the trauma that she suffered. The reason the defendant had to keep her body in and have decomp eat away the remains of whatever trauma she faced on her face, to bleed this kind of blood, she did not go gentle into that good night. She had trauma that can not be explained by the defendant’s little study in forensics and by watching all these people die in the so-called – in the places that he’s been.”
f. Other incidents.
The prosecutor was also admonished by the trial court for violating Code of Civil Procedure section 273, subdivision (b) during her closing argument. That section provides that a rough draft transcript by the official reporter “cannot be used, cited, or transcribed as the official certified transcript of the proceedings.” The prosecutor told the jury she had asked the reporter to print out an answer given by Dr. Anthony (the defense’s forensic pathologist) about “homicidal violence of undetermined etiology,” and she reproduced the testimony for the jury and read from it. The trial court later told the prosecutor that, when she put the testimony on the overhead projector without telling the jury it was a draft, she violated section 273, subdivision (b), and “I’m going to ask you not to do that again ever.” While a violation of this sort might ordinarily be unremarkable, the record shows that, when the prosecutor read the answer at issue to the jury, she omitted a sentence of Anthony’s answer – quoted in italics in the margin – that contained an important qualifying statement.
When explaining “homicidal violence of undetermined etiology,” Anthony said:
Finally, in her closing argument, the prosecutor said, “I don’t believe that it is involuntary manslaughter. It is murder,” and “[i]f you don’t think he’s guilty of murder, just come back not guilty on the murder. Okay? He did not do involuntary manslaughter. I don’t want that. I’m not looking for it because it didn’t happen.” While admonishing her “for the umpteenth time” (in connection with the choking claim), the court also admonished the prosecutor for improper expressions of personal belief.
“I’m admonishing you for the umpteenth time. I’m also admonishing you in regards to expressions of personal interest in this case. When you say, ‘I don’t want you to come back with involuntary manslaughter. I don’t believe this,’ none of those expressions are proper. You know it. I know it, and I’m going to ask you not to make personal expressions of belief or opinions in regards to your arguments.”
On appeal, Broughton asserts many other claims of misconduct by the prosecutor; in a number of cases (noted below), no objection was made and those claims are waived. (People v. Thornton (2007) 41 Cal.4th 391, 454.)
8. The “rebuttal” witness.
After the close of the prosecution case, and after the contretemps over the 1999 incident, the prosecutor sought to present a rebuttal witness to testify that victims of domestic violence often stay with their batterers and sometimes go to emergency rooms and lie about the nature of the injuries. After initially refusing, the trial court decided to allow the prosecution to bring in a witness. The defense objected that such testimony would not be proper rebuttal, but the trial court characterized it as reopening the evidence. The court expressly stated that bringing in the requested witness “has nothing to do with the 1999 incident.” When the prosecutor said that testimony on lying about injuries “directly has to do with the [1999] incident,” the court said: “No, no, no, no. We’re not going to start litigating the 1999 incident. If you’re bringing in domestic violence for the 1999 incident, that does not come in.” And again: “I am not going to allow either side to argue that the 1999 incident was connected to this defendant either directly, indirectly, by speculation, by insinuation or by any other means.” Detective Hawkins then testified that domestic violence victims do not always tell the truth or report what happens to them.
In closing argument, the prosecutor did not refer to the 1999 incident. However, she referred to Hawkins’s testimony about lying by victims of domestic abuse, and the only possible incident in which Davila could have been lying was the 1999 incident. The trial court later acknowledged that it erred when it allowed “the domestic violence rebuttal witness.” As the court explained:
“If I had known then what I know now in how that was going to be used – I mean the only purpose really of that domestic violence expert was this 1999 incident and how that victims lie. They don’t always mean to be lying and so forth. That’s really how that expert was used on closing argument repeatedly over and over and over again. And it was all in regards to the 1999 incident. And that is my greatest concern.”
The prosecutor mentioned Detective Hawkins’s testimony at least three times. “And as you heard Detective Hawkins testify, some of these – not every domestic violence incident gets reported.” And: “We all know this man has a temper. He’s admitted it himself. It’s clear in all those domestic violence incidents, and we know from Detective Hawkins that, hey, you know what? Victims don’t always leave their batterers. Sometimes, unfortunately, they leave by death, and victims don’t always report every single incident.” And again, after talking about Broughton’s “not so ancient history of violence,” the prosecutor said: “Well, doesn’t look like it [ancient history]. [¶] And we heard from Detective Hawkins again, and I say this for the last time. Not all victims report all incidents all the time. And sometimes even when they do, they’re not telling the truth. We know that.”
9. The verdict and motion for a new trial.
Defense counsel asked for a jury instruction on prosecutorial misconduct that specifically referred to the 1999 incident and the choking claim. The court refused the instruction, observing it was “a very tough call to make,” but that it was satisfied the instruction was not necessary. “I felt that by bringing this to the attention of the jurors, while you may be unringing the bell, you’re also ringing that bell again loud and clear.”
Defense counsel initially asked for a jury instruction referring generally to “certain uncalled for insinuations about the defendant [by the prosecutor].” When asked what those were, counsel mentioned the 1999 incident, and said that, even with the stipulation that there was no evidence Broughton was involved in that incident, “the insinuation that [the prosecutor] had placed out there still exists, and it’s still prosecutorial misconduct . . . . [T]here were several other questions to which objections were sustained which insinuate that there is more to this case than the jury’s actually hearing. And I think that is misleading to the jury.” The court “agree[d] with the last statement,” but thought the proposed instruction was too broad, and indicated it would consider a modified instruction. The modified instruction later requested (and refused) was: “[T]he prosecutor has made certain uncalled for insinuations about the defendant, specifically she has asked questions pertaining to the completion of the domestic violence program [and] a 1999 incident in which Ms. Teresa Davila Broughton was hospitalized. The prosecutor also stated in closing argument that the redness on Ms. Davila Broughton’s neck in a 1989 incident was due to choking. The prosecutor has no evidence to present to you regarding these prejudicial questions and remarks. These questions and remarks are all found improper by the court. You must disregard these improper, unsupported remarks and any unwarranted insinuations based on such.”
The jury found Broughton guilty of murder, and Broughton moved for a new trial based on insufficiency of the evidence and prosecutorial misconduct. The court denied the motion. It observed there had been “four major violations of not only court orders and so forth but – and I’m not referring to any of the misconduct that was directed personally at the court. . . . But I’m talking about errors on the record or with this jury, and items that were of major significance that may have affected this trial.” The court discussed these items: the 1999 incident, the choking claim, the repeated references to trauma, and the rebuttal witness (see ante, parts 7(b), 7(d), 7(e) and 8 of the factual and procedural background). It then discussed the People’s evidence, which it described as “four items that the People have and only four items.” These were the concealment of the body (“a very strong piece of evidence”), plus (1) the prior threat to the victim, (2) the prior violence to another individual (the stabbing incident), and (3) the prior domestic violence, which were “very significant corroboration . . . for the People’s interpretation of . . . the concealed body.” The court concluded there was sufficient evidence for the jury to find Broughton killed Davila:
“I think those four areas go to that. I think it’s very, very important. It’s very tough. It’s because it’s all circumstantial evidence, but I think in light of the defendant’s very lengthy statements that he gave, that the jury could rightly conclude that this concealment along with those other three things I mentioned was sufficient to convict him of murder.”
The court then stated that it was “a very difficult analysis to make” as to the impact of the four errors it had identified on the jury’s determination as to whether or not the defendant committed murder. The court then read a response that one juror (an attorney not involved in criminal law) had sent the court, in response to the court’s standard questionnaire asking, among other questions, for impressions of court personnel. The juror wrote:
“Prosecutor: Disturbing and irritating mannerisms in hunting for pictures and notes leaving one with the impression of poor organization or hunting and stumbling for what to do next. Also irritating manner of unnecessary repetition of facts or points made. I did not get a favorable impression in the closing argument when the prosecutor’s characterization of the evidence or testimony strayed from presentation or summarization to slang, ridicule, and clichés that seemed to reflect more her anger or frustration or personal opinion and emotion instead of a logical and true summary of what[’s] . . . been presented.”
The court read the juror’s comments into the record, “because I think that’s what was necessary for this jury to determine, what was hype, what was exaggeration, and what was evidence in this case.” Finally, the court said:
“The 1999 incident was specifically addressed by the court, and the court told the jury to ignore that. I believe they did. I only can hope that they did. The repeated argument sure did not help, but most of that was what I would consider hype and over dramatization and repetitive nature that really had nothing to do with the evidence in the case. I can only hope and pray that the jury could see through all that. Based on this comment, I believe they did. The motion for new trial is denied.”
DISCUSSION
On appeal, Broughton’s principal claims are that the evidence was constitutionally insufficient to support his murder conviction, and that prosecutorial misconduct denied him a fair trial. While we cannot say the evidence was insufficient as a matter of law, the closeness of the case, combined with prosecutorial misconduct that bolstered the critical element of the prosecution’s case, compel us to conclude that Broughton must have a new trial. We discuss first Broughton’s claim the evidence was insufficient to support his conviction, and then turn to the claims that compel us to reverse his conviction.
A. The evidence was sufficient to support a conviction.
Because we are reversing the judgment on other grounds, we need not address most of Broughton’s other claims, including claims that he was denied a fair trial because jury instructions (CALCRIM No. 852) permitted the jury to convict him based on prior acts of domestic violence, and that Evidence Code 1109 (permitting evidence of prior acts of domestic violence) is unconstitutional. However, Broughton also contends the evidence was insufficient to support a conviction. If that were so, double jeopardy principles would prevent his retrial. (People v. Hill (1998) 17 Cal.4th 800, 848.) We accordingly address, and reject, his claim of insufficient evidence.
A claim that CALCRIM No. 852 violated defendant’s due process rights was rejected in People v. Reyes (2008) 160 Cal.App.4th 246, 253; see also People v. Reliford (2003) 29 Cal.4th 1007, 1012, 1016 [upholding validity of the 1999 version of CALJIC No. 2.50.01, an instruction that dealt with propensity evidence in the context of uncharged sexual offenses]. Appellate courts have also rejected due process challenges to Evidence Code section 1109. (People v. Johnson (2000) 77 Cal.App.4th 410, 412, 420; see also People v. Falsetta (1999) 21 Cal.4th 903, 907 [rejecting a due process challenge to Evidence Code section 1108, a provision that permits propensity evidence involving sexual offenses].)
In reviewing Broughton’s claim, we determine whether, viewing the whole record in the light most favorable to the prosecution, the record discloses substantial evidence – evidence which is reasonable, credible, and of solid value – from which a reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Osband (1996) 13 Cal.4th 622, 690.) We must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Ibid.)
Broughton claims the prosecution’s case was based on suspicion and speculation, and there was no “solid or convincing” evidence that he killed her – principally because the coroner could not determine the cause of death, and there was “strong evidence” that Davila died from a heart attack. We disagree.
First, the coroner’s inability to determine the cause of death was due to the advanced state of decomposition of the body. This in turn was due to Broughton’s failure to report her death. A rational trier of fact could make the inference the prosecution suggested: that Broughton concealed the body and delayed reporting Davila’s death for at least a week, and perhaps much longer, because he killed her and in order to prevent the cause of death from being discovered. Broughton did not call 911 when Davila was allegedly in medical distress; he did not call the police, or anyone else, when she died; he covered her body, which was on the far side of the bed between the bed and the window, where it could not be seen from the door of the apartment or from the door of the bedroom; the windows were covered; and he used fans and talcum powder to mask the decomposition odor. Broughton claims the record shows Davila’s body was “not ‘concealed’ in the sense that [Broughton] purposefully hid it to prevent it from being found.” He relies on his statements to the police about pulling her off the bed and trying to resuscitate her on the floor, where she died, and that she was too heavy to move. But the jury was not required to believe that explanation, and could have concluded that Broughton’s account of moving Davila from the bed to the floor to perform CPR was implausible. In short, as the trial court concluded, the concealment of the body was “a very strong piece of evidence.”
Second, Broughton’s claim there was “strong evidence” Davila died of a heart attack is merely his characterization of the evidence and the inferences that should be drawn from it. But it is the jury’s province to decide what inferences to draw from the facts it determines. The coroner testified that, had there been no suspicious circumstances, he would have determined Davila died of heart disease. But there were suspicious circumstances, and the evidence that Davila died of a heart attack was, in the end, just as speculative as any other cause of death – all the testimony was consistent on the point that the cause of death could not be determined. Broughton points to all the medical evidence about Davila: the autopsy finding that her heart was enlarged; Broughton’s description of Davila’s pre-death symptoms that were consistent with symptoms of a heart attack; the medications she was taking (pseudoephedrine and codeine) suggesting she had flu-like symptoms that can also be symptoms of a heart attack; her high risk for a heart attack (poorly controlled diabetes, clogged arteries, obesity, smoking, medications including Avandia and Celebrex which might be associated with increased risk of heart attack, high blood pressure). Again, however, the evidence that Davila was at greater risk of a heart attack than most of us does not require a jury to infer heart disease caused her death, in the face of the suspicious circumstances suggesting otherwise.
Third, Broughton argues that his inability to adequately explain the bloodstains on the bedding is not evidence that he caused her to bleed, and the prosecution’s theory he did so is “pure speculation.” He points to Dr. Anthony’s testimony that that a dark red foamy material can sometimes come out of a person’s mouth who is being actively subjected to CPR, and to Broughton’s statement to the police at the scene that, when he returned from the 7-Eleven store on the day she died, he noticed blood coming out of her nose after she stopped breathing. But the coroner testified that fluid bubbling from the mouth during a heart stoppage is usually pinkish rather than bright red in color, and the jury could have disbelieved Anthony’s testimony. Indeed, the jury could have disbelieved Broughton’s claims to the police that he performed CPR.
Fourth, as the People point out, there was evidence Broughton’s demeanor, for example, on the videos from the 7-Eleven store, was inconsistent with his claims of shock and despondency as reasons for not reporting Davila’s death. And, while his accounts of Davila’s death were generally consistent, there were contradictions in his various accounts as to when he began staying at Davila’s apartment, and contradictions between his notebook and his statements as to when she died.
Finally, while the evidence of concealment of the body would not be sufficient standing alone to support a murder conviction, there was convincing evidence that Broughton was disposed to commit domestic violence on Davila, in the form of three incidents of misdemeanor domestic violence in 1989 and 1995. There was also evidence of his stabbing another individual, threats to kill Davila in 2002, and a restraining order protecting Davila issued in July 2001 that was still in effect. We conclude that, viewed as a whole, the record discloses substantial evidence from which a reasonable jury could have found beyond a reasonable doubt that Broughton killed Davila.
B. Reversal is required due to prosecutorial misconduct and trial court error.
The Supreme Court has summarized the standards under which we evaluate prosecutorial misconduct.
“A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44.)
The defendant may not complain on appeal of the prosecutor’s misconduct unless he timely objected at trial “and also requested that the jury be admonished to disregard the perceived impropriety.” (People v. Thornton, supra, 41 Cal.4th at p. 454.) If the defendant objected, or if an objection would not have cured the harm, we ask whether the improper conduct was prejudicial, that is, whether it is reasonably probable a result more favorable to the defendant would have occurred if the prosecutor had refrained from the misconduct. (People v. Haskett (1982) 30 Cal.3d 841, 866.)
We have described the prosecutor’s conduct in some detail. Much of the conduct for which she was admonished consisted of efforts to put before the jury inadmissible evidence of Broughton’s propensity for domestic violence (the Gilmartin testimony, the 1999 incident, questions suggesting Davila was afraid of the defendant), or the misstatement of domestic violence evidence that was properly admitted (the choking claim). This is misconduct, and it is particularly troubling when viewed in context, as we necessarily do. (See People v. Morales, supra, 25 Cal.4th at p. 47.) At its core, the prosecution’s case depended on Broughton’s history of domestic violence. Without that history, Broughton’s conduct after Davila’s death could not have supported a murder conviction. Certainly his concealment of the body was not normal conduct. But, as the jury was instructed, while an attempt to hide evidence may show an awareness of guilt, it cannot prove guilt by itself. Moreover, Broughton had violated his parole by staying with Davila, and had no place to go after March 19, so one could infer he did not report Davila’s death because he knew he would be returned to prison, and he had no other place to go – explanations he proffered at various times in his interrogations, along with “I couldn’t let her go.” As the jury was also instructed, where two reasonable inferences may be drawn from circumstantial evidence, a jury is required to draw the inference pointing to innocence rather than guilt. (While most of us may not consider it reasonable to remain with a dead body under any circumstances, surrounding circumstances must necessarily be considered.) In any event, the point is that, without the evidence of Broughton’s commission of other domestic violence against Davila, it is difficult to see how a murder conviction could be had – that evidence was at the heart of the prosecution’s case.
Not satisfied with the evidence of domestic violence that she was allowed to adduce, the prosecutor repeatedly sought to put other evidence of Broughton’s propensity for violence before the jury, in violation of the court’s express rulings. We conclude this misconduct brings this case within the principle stated in People v. Wagner (1975) 13 Cal.3d 612, 621, namely, “a miscarriage of justice has occurred when the case is closely balanced and the acts of misconduct are such as to have contributed materially to the verdict.” In Wagner, the question of the defendant’s guilt turned on a single issue: his credibility vis-à-vis that of the prosecution witnesses. The misconduct in Wagner was the prosecutor’s improper cross-examination of the defendant, implying he had previously engaged in similar illegal acts. (Ibid.; see People v. Bolton (1979) 23 Cal.3d 208, 215 [misconduct was harmless beyond a reasonable doubt, but “[a] closer case, marred by the same misconduct, might well require reversal”].) In short, this was an extremely close case, with no evidence of the cause of death and no evidence of a motive for murder. The principal acts of prosecutorial misconduct, as in Wagner, went to an issue that was the lynchpin of the prosecution’s case, improperly bolstering the evidence that Broughton in 1989 and 1995 committed acts of domestic violence on Davila. Under these circumstances, we think that, absent the prosecutorial misconduct, there was a reasonable probability the verdict would have been different.
We recognize that the jury was admonished or otherwise directed not to consider the matters that constituted the more egregious conduct by the prosecutor. Thus, the jury was expressly told by stipulation that there was “no evidence to suggest that defendant . . . was responsible for such injuries or involved in such incident [the 1999 incident].” Similarly, when the prosecutor stated the redness to Davila’s neck in the 1989 incident was probably caused by choking, the trial court sustained an objection and told the jury, “[y]ou must base your decision only on the evidence in the case. Counsel has crossed the line in that regard.” And, of course, the jury was instructed that the remarks and questions of attorneys are not evidence, that they should not assume something is true just because an attorney’s question suggested it was true, and that they were to disregard testimony that was stricken from the record. We conclude, however, that these admonishments and instructions were not sufficient, particularly in view of the cumulative nature of the prosecutor’s improper statements and questions and the closeness of the case, to cure the prejudicial effect of the prosecutor’s conduct and related trial errors. (See People v. Wagner, supra, 13 Cal.3d at p. 621 [“neither the admonition nor the form instruction were sufficient to cure the prejudicial effect of the prosecutor’s repeated insinuations regarding defendant’s past conduct”].) We note several points.
First, while the trial court told the jury the prosecutor had “crossed the line” after she made the choking claim, the jury of course was not told the prosecutor had information to the contrary. The trial court refused the defense request to instruct the jury specifically that certain questions and remarks, including the choking remark, were improper and must be disregarded, concluding that while it was “a very tough call to make,” bringing it to the attention of the jurors would be “ringing that bell again loud and clear.” However, as the court stated in People v. Bolton, supra, 23 Cal.3d at p. 215, fn. 5, while an instruction may exacerbate the problem by calling the jurors’ attention to improper remarks, nevertheless, “when the defense counsel requests cautionary instructions, the trial judge certainly must give them if he agrees misconduct has occurred.”
Second, the trial court identified four “major violations.” One of them was not prosecutorial misconduct, but rather an acknowledgement that the court erred in permitting a rebuttal witness whose testimony’s only purpose was to emphasize that domestic violence victims do not always tell the truth or report what happens to them. But, as the court reported, “there were others,” as related in part 7 ante. We recognize that many of Broughton’s claims of misconduct are trivial and in some cases forfeited for lack of an objection (see footnote 21, ante). In addition, the prosecutor’s repeated references to trauma, which so troubled the trial court (see part 7(e) of the factual background), did not elicit an objection from defense counsel. However, the other conduct described in part 7 did elicit objections, and cannot be characterized as trivial, minor or collateral. Further, while we cannot and do not characterize the prosecutor’s efforts to present a rebuttal witness (and to cite her testimony in closing argument) as misconduct, the trial court erred in permitting that testimony (see post), and the prosecutor naturally capitalized on that error in her argument. The pertinent point is that “a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” (People v. Hill, supra, 17 Cal.4th at p. 844; People v. Herring (1993) 20 Cal.App.4th 1066, 1075 [“these statements by themselves and absent timely and specific objection would not be cause for reversal since a timely admonition likely would have cured the harm,” but “we must weigh the cumulative effect of the improper statements that pervaded the prosecutor’s closing argument”].) Likewise, we necessarily weigh the cumulative effect of trial court error and prosecutorial misconduct.
Third, the trial court itself betrayed a significant level of concern when it said that it “can only hope and pray that the jury could see through all that [hype and over dramatization in closing argument].” The trial court thought the jury could, emphasizing one juror’s unfavorable comment on the prosecutor’s closing argument (as straying from summarization of the evidence to “slang, ridicule, and clichés that seemed to reflect more her anger or frustration or personal opinion and emotion instead of a logical and true summary . . . ”). We are less sanguine than the trial court. The prosecutor’s efforts to portray Broughton as a batterer, and therefore a murderer, with inadmissible evidence occurred during the trial as well as in closing argument. In light of the indispensable role Broughton’s history of domestic violence played in the prosecution’s case, it is not enough to “hope and pray” that the jury was able to ignore the improper statements and insinuations on that subject, both at trial and in closing argument.
Finally, we address several points raised in the People’s brief.
First, in several instances, the People argue Broughton forfeited specific assertions of prosecutorial misconduct because, while an objection was made, he did not request a jury admonition – as in the case of the prosecutor’s questions suggesting that Davila was afraid of Broughton (part 7(c), ante). The People are mistaken; defense counsel requested an instruction referring to “certain uncalled for insinuations about the defendant [by the prosecutor],” and mentioned to the court the 1999 incident and “several other questions to which objections were sustained which insinuate that there is more to this case than the jury’s actually hearing.” (See footnote 23, ante.) The request was denied as too broad, as was counsel’s subsequent request for a narrower instruction referring only to the 1999 incident, the Gilmartin testimony, and the choking claim. Consequently, to the extent defense counsel did not request an admonition with respect to any specific claim of misconduct, it is clear such a request would have been futile. Consequently, there is no merit in the People’s argument.
Second, the People argue with respect to each specific claim of misconduct that the particular incident did not prejudice Broughton – either because an objection was sustained, or because the jury was instructed that questions were not evidence, and so on. But, as we have seen, admonitions and instructions may be insufficient in the face of repeated insinuations (People v. Wagner, supra, 13 Cal.3d at p. 621), and we must weigh the cumulative effect of improper statements, rather than view each one standing alone. (People v. Herring, supra, 20 Cal.App.4th at p. 1075.)
Third, the People argue that the trial court did not err in admitting Detective Hawkins’s testimony. We disagree. Evidence Code 1107 permits expert testimony in a criminal action about what is commonly known as battered women’s syndrome:
“[E]xpert testimony is admissible . . . regarding intimate partner battering and its effects, including the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge.” (Evid. Code, § 1107, subd. (a).)
But such evidence is admissible only “when it is relevant to a contested issue at trial other than whether a criminal defendant committed charged acts of domestic violence” (People v. Gadlin (2000) 78 Cal.App.4th 587, 592), for example, a defendant’s claim of self-defense, or to impeach the credibility of a recanting victim. But in this case, there was no contested issue at trial on which the expert testimony would have been probative. It was probative only to impeach Davila’s statement that a neighbor had beaten her up in the 1999 incident – an incident the trial court had ruled off limits in no uncertain terms – and to suggest that Broughton abused Davila more recently and more frequently than the evidence indicated. Consequently, as the trial court acknowledged, the admission of Hawkins’s expert testimony was erroneous. And while that error alone would not warrant reversal, we necessarily consider the cumulative effect of the error in the context of the prosecutorial misconduct associated with the same critical element of the prosecution’s case.
In short, this was a close case that hinged on Broughton’s history of domestic violence. The prosecutor’s misconduct in repeatedly bringing before the jury inadmissible evidence on that topic, along with the trial court’s related error, lead us to conclude it is reasonably probable the verdict would have been different absent these defects. Broughton is entitled to a reversal of the judgment and a retrial.
DISPOSITION
The judgment is reversed. Pursuant to Business and Professions Code section 6086.7, subdivisions (a) and (b), the clerk is ordered to send a certified copy of this opinion to the State Bar and to deputy district attorney Grace Rai.
We concur: RUBIN, J., BIGELOW, J.
“It means the circumstances of the case to your mind are entirely consistent with a homicide, but you don’t know why or how it could have happened. Usually I use this terminology when you have, for instance, a young healthy victim, and you can’t find any anatomic or circumstances that would explain how the death occurred. But you’re convinced that there’s no way this person could have died under the circumstances under which they’re found due to anything other than due to some sort of homicidal violence.”
By omitting the italicized sentence, the prosecutor suggested that Anthony was describing the circumstances that existed in the Davila case. Anthony subsequently stated that such cases “do exist. But like I said, usually they are not in the circumstances where you have a victim with a large amount or a number of preexisting medical conditions.”
Questions containing insinuations and suggestions – such as “Would it be fair to say he was nonchalant?”; “Did your description of him as . . . hypermasculine – ”; and others – to which objections were sustained.
Mischaracterizing evidence during closing argument. The prosecutor stated, quoting Broughton’s statement to the police: “And ‘I’d like to do a lie detector test,’ when you’ve been told repeatedly they’re not admissible in a court case.” In fact, the record shows Broughton asked for a lie detector test, and the police answered him by saying that the test was not admissible in court, to which Broughton replied, “You’re kidding? I didn’t know that.” Defense counsel did not object during closing argument.
Rude and intemperate behavior with a defense witness (Dr. Anthony). The prosecutor asked him, “How much do you get paid to be a consultant when you moonlight as a consultant?” “So basically you only looked at [the coroner’s] report, and you got paid your two grand, and then you came in and told this jury that he was wrong?” And, referring to other experts in a different case in which Anthony testified, “But they were also so-called expert witnesses for the defense? [¶ . . . ¶] And [they were hired] to get the defendant off, right?” Defense counsel’s objections to the second and fourth questions were sustained; she made no objection to first and third questions.
Appealing to the passion and prejudice of the jury in closing argument, by repeated use of the gruesome photograph of Davila’s decomposing body. (The prosecutor, putting up the picture a second time, said, “Who dies like this in the middle of CPR? If he’s giving her chest compressions and blowing in her mouth, who dies like this? Looks like they’re sleeping. Totally inconsistent with the defendant’s story.”) Also, during the trial, while cross-examining Anthony about another case, the prosecutor held up a photo of the victim in that case who was slashed from mouth to ear, and was twice told by the court to put the photo down because it was not evidence. Broughton claims this was done to shock and inflame the jury against the defense witness and “emotionally advanced the prosecutor’s speculative theory that [Broughton] caused trauma to [Davila’s] face.” But no objection was made during closing argument.
The court admonished the prosecutor for characterizing Dr. Anthony’s prior testimony: “Well, I asked you about Ms. Zuniga. You didn’t seem to remember that. [¶] The Court: Counsel, please. You’re characterizing it, and that’s unfair. Just ask your question.” The prosecutor soon repeated the same question: “And when I asked you some questions about that case, you said that you didn’t remember.” The court again told her not to characterize the testimony. The prosecutor then asked the witness what his prior answer was, and the court told her it was in the record. The prosecutor said, “Thank you. I was just arguing it to the jury then.” (Broughton contends the prosecutor also improperly argued her case in asking witnesses argumentative questions, such as asking Dr. Sussman whether he had heard about the suspicious circumstances under which Davila was found, and asking Anthony, “Would you consider it suspicious if someone says that they’re – they just lost their soul mate, the love of their life, and yet they don’t call 911 to try and save her when she’s in medical distress? Would you find that to be suspicious?” Defense counsel’s objections on relevance grounds were sustained.