Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Nos. SCD189008 & SCD204073, Richard S. Whitney, Judge.
NARES, J.
A jury convicted Jason Edward Green of (1) assault by means likely to produce great bodily injury (count 1: Pen. Code, § 245, subd. (a)(1)); (2) battery with serious bodily injury (count 2: § 243, subd. (d)); and (3) failure to appear while released on bail (count 4: § 1320.5) in Superior Court of San Diego County case No. SCD189008. The jury found true the count 1 allegation that Green personally inflicted great bodily injury upon the victim in violation of section 12022.7, subdivision (a)). Green admitted allegations that he had suffered two prior serious felony convictions (§§ 667, subd. (a)(1), 1192.7, subd. (c)), and a prior strike (§§ 667, subd. (b), 1170.12). In this case, the court sentenced Green to a total prison term of 15 years four months.
All further statutory references are to the Penal Code.
By order dated July 8, 2008, this court granted Green's unopposed motion to amend his notice of appeal in People v. Green (Super. Ct. San Diego County, 2005, No. SCD189008) to include People v. Green (Super. Ct. San Diego County, 2007, No. SCD204073). Although case No. SCD204073 is not directly involved in this appeal, it is indirectly involved in that Green was sentenced in both cases at the same hearing, as reflected in the abstract of judgment.
During the sentencing hearing, the court also sentenced Green in case No. SCD204073 to a consecutive prison term of three years four months, resulting in an aggregate term of 18 years eight months.
Green appeals, contending his conviction of counts 1 and 2 in casen No. SCD189008 must be reversed because the prosecutor committed misconduct under both federal and state law during her closing argument by falsely arguing that Green only recently claimed the defenses of self-defense and defense of others, when she knew that he had claimed those defenses from the time he was arrested. Green also contends that, although his trial counsel did not object immediately after the prosecutor committed misconduct, he did not forfeit his prosecutorial misconduct claim; but if this court concludes he did forfeit this claim, his trial counsel provided ineffective assistance of counsel by failing to make a prompt objection and request a curative instruction. The People assert that Green forfeited his claim of prosecutorial misconduct.
We conclude that Green forfeited his claim of prosecutorial misconduct, and his ineffective assistance of counsel claim is unavailing because he has failed to demonstrate the prosecutor committed misconduct. Accordingly, we affirm the judgment.
As this appeal only seeks reversal of Green's convictions of counts 1 and 2 in case No. SCD189008, we need not, and do not, discuss the factual background of case No. SCD204073, as the factual background of the latter case is not pertinent to this appeal.
A. The People's Case
In the evening on December 27, 2004, Chad Richmond met his former girlfriend, Jerremie Minter, in the parking lot of a Jack-in-the-Box restaurant on Clairemont Mesa Boulevard so that he could turn over to her the custody of their daughter. Minter, who arrived with Chasson Hadden in Minter's white BMW car, entered the restaurant, where Richmond and the child were eating. Minter took the child to her car, the engine of which was running, and Richmond followed so he and Minter could talk about day care arrangements. Richmond asked Minter why she had parked so far away from the Jack-in-the-Box and why her engine was running, but she did not give him an explanation.
Green and his then-girlfriend, Hadden—both of whom were Minter's friends—were waiting in a gray pickup truck nearby. Richmond and Minter began arguing. Green got out of the truck and walked over to Minter and Richmond. Richmond did not know Green and asked Minter whether he was her new boyfriend. Green told Richmond to leave. Richmond turned back toward Minter, and the next thing he knew he was waking up in the parking lot.
Richard Lottes, who was Richmond's friend, was waiting for Richmond in the parking lot. As Richmond and Minter were talking near her car, Lottes observed Green approach Richmond from behind and hit Richmond about six times in the side of the face with his fist. Richmond collapsed to the ground. Lottes called 911.
Danielle B., a minor, was also in the parking lot that evening. She saw Green get out of the passenger's side of a gray truck, walk up to Richmond, and hit him in the face a couple of times. Green ran back to the truck, which was immediately driven away. Minter also drove away.
After the assault, Richmond was taken to a hospital, where he spoke with the police. He suffered a broken nose and fractures to his jaw, cheekbone and orbital bone. His injuries required surgery.
San Diego Police Detective Gary Lawrence investigated the assault. When he interviewed Minter the day after the incident, she told him a Hispanic male had walked up and hit Richmond, who is a White male. In another interview, Richmond told Detective Lawrence that Hadden was one of Minter's close friends. Detective Lawrence then did a background check on Hadden and learned that Green was Hadden's current boyfriend. Richmond later picked Green out of a photographic lineup as the person who attacked him.
Detective Lawrence arrested Green on February 9, 2005. After Detective Lawrence explained to him his rights under Miranda, Green said he knew nothing about the assault and denied being in the Clairemont area at the time of the assault. Green did admit he knew Minter, who he said was his girlfriend's close friend.
Miranda v. Arizona (1966) 384 U.S. 436.
After he interviewed Green, Detective Lawrence showed Minter the photographic lineup containing a picture of Green. Minter said she did not recognize anyone in the lineup. When Detective Lawrence told Minter that the person in the third photograph had been arrested for the crime, she did not admit that she knew Green.
Green called Hadden a number of times from jail. The calls were recorded. On February 9, the day of his arrest, Hadden told Green that a detective had shown Minter an old photograph of Green. On February 24, in another phone conversation, Green asked Hadden whether she had asked Minter, who had been arrested, to "stay solid." Hadden indicated she had done so, and expressed fear that she, Green and Minter were going to be sent to prison. The next day, Green told Hadden to return to the scene of the assault, indicating she should look closely at every building for surveillance cameras.
B. The Defense
Melchor Quevedo, an attorney, testified that he received a phone call from Green's uncle on the day of Green's arrest. Quevedo met with Green's uncle, Hadden, Minter and others. He told them not to speak about the case to anyone. Quevedo then met with Green and gave him the same advice.
Chip Venie, another attorney, represented Green at a readiness conference and at his preliminary hearing. At the preliminary hearing, Venie presented a mistaken identity defense. He told Green that his theory of the case would be that the police had arrested the wrong person.
Hadden testified that she and Minter were very close friends. Minter and Richmond had been in an abusive relationship in which Richmond was verbally and physically abusive. She once saw him throw a baby toy at Minter. Minter lived at Hadden's house for awhile after Minter broke up with Richmond. Richmond came over to Hadden's house one day in about May 2003, shoved his way into the house, and threw Hadden against the wall. Minter was hiding in Hadden's bedroom. Hadden called the police, and Richmond fled.
Hadden also testified she pleaded guilty to aiding and abetting Green in the commission of the assault by Green on Richmond because she did not want to pay for an attorney or miss work. On the day of the assault, she went to the Jack-in-the-Box with Minter, who worked with her at a Carlsbad car dealership, to get Minter's daughter from Richmond. After Minter put the child in the back seat of her car, Richmond yelled at her and would not let her close the door. Hadden indicated she told Green to help Minter. Green walked over to Richmond and told him to leave. Richmond told Green, "No," and asked Minter whether he (Green) was her new boyfriend. Green again told Richmond to leave. Richmond turned toward Green and got closer to him, and Green hit him once. Hadden drove the truck over to where Green was standing, Green got in, and they left.
Green testified in his own defense. He stated Minter had given Hadden a ride from work, and he went to the Jack-in-the-Box to pick up Hadden. As Richmond was preventing Minter from getting into her car, and at Hadden's request, Green went over and asked Richmond to leave. Richmond told Green it was none of his business. Green again asked Richmond to leave. Richmond aggressively turned toward him and dropped his hands. Green then hit Richmond in the cheek. Green knew that Richmond had been violent in the past, and he left the scene quickly because he was on parole. He told Hadden and Minter to keep quiet because he was afraid his parole would be revoked.
Green testified that following his arrest, his attorneys advised him to pursue the defense that no one could positively identify him as the person who hit Richmond. Green also stated that he failed to appear on the day set for his trial because he did not want to proceed with a public defender.
On cross-examination, Green indicated that, in hitting Richmond, he was acting in defense of Minter. On redirect examination, he testified that, apart from the misidentification defense about which his former attorneys had talked to him, he did not know he had a defense in this case.
On recross-examination, Green indicated that he had heard of the defense of self-defense; he was defending himself when he hit Richmond, but he did not tell that to anyone; and he thought the defense of "I wasn't there" was a stronger defense in this case than the defense of self-defense.
DISCUSSION
Green contends his convictions of count 1 (§ 245, subd. (a)(1)) and count 2 (§ 243, subd. (d)) in case No. SCD189008 must be reversed because the prosecutor committed prejudicial misconduct under both federal and state law during her closing argument by falsely arguing that Green only recently claimed the defenses of self-defense and defense of others, when she knew that he had claimed those defenses from the time he was arrested. Green also contends that, although his trial counsel did not object immediately after the prosecutor committed misconduct, he did not forfeit his prosecutorial misconduct claim; but if this court concludes he did forfeit this claim, his trial counsel provided ineffective assistance of counsel by failing to make a prompt objection and request a curative instruction. These contentions are unavailing.
A. Applicable Legal Principles
1. Prosecutorial misconduct
"To constitute a violation under the federal Constitution, prosecutorial misconduct must 'so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.' " (People v. Valdez (2004) 32 Cal.4th 73, 122, quoting Darden v. Wainwright (1986) 477 U.S. 168, 181.) However, conduct that does not render a criminal trial fundamentally unfair violates a defendant's state law due process rights only if the prosecutor used deceptive or reprehensible methods to persuade the jury. (People v. Earp (1999) 20 Cal.4th 826, 858.)
The trial court ordinarily grants a prosecutor wide latitude during argument (People v. Wharton (1991) 53 Cal.3d 522, 567), and an allegedly improper remark must be viewed in the context of the closing argument as a whole (People v. Lucas (1995) 12 Cal.4th 415, 475). However, while a prosecutor may argue all reasonable inferences from the record, she may not mislead the jury. (People v. Daggett (1990) 225 Cal.App.3d 751, 757-758.)
When the misconduct issues focus on comments the prosecutor made before the jury, the question is whether there is a reasonable likelihood the jury construed or applied any of the comments in an objectionable fashion. (People v. Cole (2004) 33 Cal.4th 1158, 1202-1203.)
A defendant may not complain of prosecutorial misconduct on appeal unless he or she objected on that ground in a timely fashion and also requested that the jury be admonished to disregard the perceived impropriety. (People v. Lopez (2008) 42 Cal.4th 960, 966.) The California Supreme Court has explained that "[t]he primary purpose of the requirement that a defendant object at trial to argument constituting prosecutorial misconduct is to give the trial court an opportunity, through admonition of the jury, to correct any error and mitigate any prejudice. [Citation.] Obviously, that purpose can be served only if defendant is required to, and does, raise any objection before the jury retires." (People v. Williams (2008) 16 Cal.4th 153, 254, italics added.)
A defendant's conviction will not be reversed for prosecutorial misconduct unless it is reasonably probable a result more favorable to the defendant would have been reached without the misconduct. (People v. Crew (2003) 31 Cal.4th 822, 839.)
2. Ineffective assistance of counsel
To establish ineffective assistance of counsel, Green bears the burden of showing both that counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms, and that it is reasonably probable the verdict would have been more favorable to him absent counsel's error. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1052-1053.)
"We presume that counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions." (People v. Holt (1997) 15 Cal.4th 619, 703) We will reverse on the ground of ineffective assistance of counsel " 'only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.' " (People v. Zapien (1993) 4 Cal.4th 929, 980, italics added.) Furthermore, in an appropriate case, we may dispose of an ineffectiveness claim on the ground of lack of prejudice without determining whether his counsel's performance was deficient. (Strickland v. Washington (1984) 466 U.S. 668, 697; In re Fields (1990) 51 Cal.3d 1063, 1079.)
B. Background
1. Defense testimony of attorneys Quevedo and Venie
On Thursday, July 5, 2007, the defense intended to present testimony by Quevedo and Venie, who had previously represented Green in this matter. Outside the presence of the jury, the prosecutor objected and requested a hearing under Evidence Code section 402. Also outside the presence of the jury, the prosecutor spoke off the record with both Quevedo and Venie, in the presence of Green's trial counsel, about what Green (who had waived the attorney-client privilege) had told them about the incident.
All further dates are to calendar year 2007.
After speaking with Quevedo and Venie, the prosecutor and defense counsel again appeared on the record before the court, outside the presence of the jury. Referring to Quevedo and Venie, the prosecutor stated she had "an objection to both of them testifying." In response, defense counsel informed the court that the prosecutor was going to withdraw her request for an Evidence Code section 402 hearing and indicated she (defense counsel) intended to call both Quevedo and Venie, whose testimony was going to be "very short." Green's counsel then stated:
"I'm just going to do the limited thing about the advice about them being quiet. That's all." (Italics added.)
The prosecutor again objected, stating, "I think it's cumulative to have both of them to say we told [Green] not to talk."
The following exchange then took place among defense counsel, the court, and the prosecutor:
"[Defense counsel]: It covers the periods of time. One represented him at one time and one the next.
"The Court: I'll have to rule on it. Let's just go ahead and call both of them.
"[The prosecutor]: My understanding is there is nothing else about what the defendant told him except for don't talk about the case."
As discussed, ante, Quevedo testified that he advised Green, Green's uncle, Hadden, Minter and others to not speak about the case to anyone; and Venie testified that he told Green his theory of the case would be that the police arrested the wrong person, and he (Venie) presented a mistaken identity defense on Green's behalf at the preliminary hearing.
2. Green's testimony
As already noted, Green testified that, in hitting Richmond, he was acting both in defense of Minter and in self-defense. On redirect examination, he stated that his former attorneys had talked to him about the defense of misidentification, and he did not know at the time that he had another defense in this case. He admitted on recross-examination, however, that although he had heard of the defense of self-defense, he did not tell anyone he had acted in self-defense; and he thought the misidentification defense about which his former attorneys had talked to him was a stronger defense than self-defense.
3. Prosecutor's closing argument and retirement of the jury for deliberations
On appeal, Green complains that in her closing argument on Friday, July 6, the prosecutor (Wendy Patrick Mazzarella) argued as follows that Green had engaged in "defense shopping" at the beginning of this case:
"Now, what else can you take into consideration when judging [Green's] testimony? His own admission that he was defense shopping when this case began. He admitted yesterday, I intended to go to trial with a misidentification defense. I thought that was a good one to use. You heard one of his prior attorneys Chip Venie testify yesterday that in his professional opinion it was a misidentification case. It was misidentification for a long period of time when we began this trial." (Italics added.)
The prosecutor also argued:
"And one of the things that I hope you consider in deciding [Green's] guilt is the admission yesterday of defense shopping. If this was a self-defense case, it would have been a self-defense case. It wouldn't have been a misidentification case. It wouldn't have been a look for cameras at the scene. Stay solid. Say I wasn't there. None of that would have happened if this was actually self-defense." (Italics added.)
In the mid-afternoon, at about 2:50 p.m.—after the parties completed their closing arguments and the court instructed the jury on the law—the jury retired to deliberate.
4. Green's belated mistrial motion
At around 9:00 a.m. on Monday, July 9, the next court day following the weekend, the jury resumed its deliberations. At around 10:00 a.m., defense counsel Linda Brown orally moved for a mistrial on the ground of prosecutorial misconduct:
"[Brown]: Your Honor, there's one thing I feel I need to put on the record, and I have to admit I was slow on the uptake on Friday, but when I was walking back out of here after we left--I mean I was angry, but I wasn't thinking clearly. We had a chambers conference, and I don't remember whether it was reported or not. But [the prosecutor] asked with regard to the two attorneys that I called that I only be able to go into the advice they gave them with regard to just being quiet. Do you remember our discussion?
Quevedo and Venie.
"The Court: Yes. I think it was on the record.
"[Brown]: And so I was pretty--in other words, limited that I was not going to be able to go into anything other than their advi[c]e with regard to be quiet and that was their strategy of misidentification. [¶] Well, then [the prosecutor], when she argued, she said this is the first time that this self-defense has come up. Obviously, you heard from their--from his two attorneys, and all they were doing was talking about misidentification, and in other words making it sound like he never said anything to those attorneys about the fact that he had to defend himself. And [the prosecutor] talked to both of them before we got started because [Green] had waived attorney-client privilege, and [the prosecutor] asked both of them what they talked about. Both of them said [Green] talked about the fact he thought [Richmond] was going to hit him. She limited m[y] being able to bring that out, and then she argued--insinuation that he didn't have that defense. This is the first time you've ever heard this, ladies and gentlemen, so I don't know--I guess what I'm saying is I'm asking for a mistrial. I need to put it on the record. I need to do something about it, and I don't know exactly what, but I should have done something then." (Italics added.)
Another prosecutor—Tracy M. Prior, who was temporarily substituting for prosecutor Mazzarella—responded:
"Your Honor, again, I sat through the closing argument, but I wasn't privy obviously to any of the information [defense counsel] is indicating. It appeared to me it was a comment that, you know, where this just came up now, meaning, you know, after the first defense--if [Green] would have stayed with self-defense and stuck with it, fine. All of a sudden we have three different ones, misid[entification] and self-defense and something else. I think it was made that way. I don't think it was meaning [Green] had an opportunity to come up with self-defense and he didn't. I don't know if it was objected to at the time. I don't recall that it was objected to at the time, and I would ask any motion for mistrial be denied."
Defense of others.
Indicating it remembered the chambers conference, the court denied Green's mistrial motion, stating:
"I felt the testimony that I allowed regardless of [the prosecutor's] representation to the court, what I did allow from the attorneys [Quevedo and Venie] was relevant to the issues at hand."
5. Green's belated request for a curative jury instruction
At around 1:40 p.m. in the afternoon of the same day, July 9—as the jury was completing its deliberations—defense counsel Brown asked the court to give the following proposed curative jury instruction:
"The prosecutor, in her closing argument, said that [Green] did not previously mention self-defense or defense of others to his former attorneys. That statement was not true, and to so state was prosecutorial misconduct."
The court asked for an explanation, and Brown stated:
"Okay. What [the prosecutor] did was limit the evidence. First she said she wanted [an Evidence Code section] 402 hearing and there really was not basis of a 402 hearing except for the purpose of discovery. And while you were doing something else--I don't remember what was going on, but you had some other matters to attend to. We were waiting, and we were supposedly going to do the 402 hearing with the two attorneys. And my client [Green] had previously waived his right to attorney-client privilege, so she said, well, he's already waived it. Let me talk to them now and see what they have to say. She talked to them, and she asked them what did he tell you. I was present during both of the conversations. They both said words to the effect of, he said... that [Richmond] was pulling on the door, wouldn't let her in [her car], and he went over there to help her, and then [Richmond] made some kind of a motion or moved towards him. And he hit [Richmond] because he thought he was--they both said words to that effect--I'm paraphrasing obviously--I don't remember the exact words they used. [¶] Then [the prosecutor] said I'm not going to ask for a 402 hearing, but then she said she wanted to talk in chambers to limit what was going to be talked about when the attorneys took the stand. [The prosecutor] asked for a limitation to their only being allowed to talk about their advice regarding be quiet. Don't say anything. And we're going to put on a misidentification defense. That's the only thing that was brought out. She limited it, and she knew that what she said was not true then because then she turned around and used it in closing arguments to say this is the first time, ladies and gentlemen, that anybody's ever heard about this self-defense. Before when we talked to the attorneys, it was I wasn't there, and she made it look like this was a contrived defense when she knew otherwise. [¶] [The prosecutor] limited it, and then she made a statement that she knew was false. And that's misconduct, Your Honor. It's classic misconduct. And I've got case law on it, and this instruction...." (Italics added.)
In reply, the prosecutor, Prior, indicated that a curative instruction was not needed because the trial prosecutor had not engaged in intentional misconduct, and the court had instructed the jury before closing arguments that argument was not evidence.
The court denied Green's request that it give the proposed instruction, finding there was no basis for the instruction "based [on] the state of the trial and the evidence and the arguments." However, because the trial prosecutor, Mazzarella, was not present to give her version of what happened, the court invited the defense, "at or before the time of sentencing," to bring a new trial motion "based upon this issue."
Shortly thereafter, at around 2:00 p.m. (July 9), the bailiff advised the court that the jury had reached a verdict.
6. Green's new trial motion
On March 21, 2008, the day of the sentencing hearing in this matter, the defense filed a new trial motion based on this issue. In support of that motion, defense counsel Brown submitted her own declaration. Following oral argument, the court denied the motion without explanation.
C. Analysis
We first address the People's argument that Green forfeited his claim of prosecutorial misconduct.
1. Forfeiture
Green does not dispute that his trial counsel failed to immediately object on Friday, July 6, when the prosecutor made her allegedly improper closing arguments; nor does he dispute that his counsel also failed to promptly request an admonishment to the jury to disregard those arguments.
The record shows the jury retired for deliberations later that day, at around 2:50 p.m. It also shows that defense counsel did not challenge the prosecutor's allegedly improper closing arguments until Monday morning, July 9, and that she did not request the proposed curative instruction until the afternoon on that date, shortly before the jury completed its deliberations and reached its verdict.
Because the defense failed to object to the alleged prosecutorial misconduct or request an admonition before the jury retired for deliberations, we conclude Green forfeited his claim of prosecutorial misconduct. (People v. Williams, supra, 16 Cal.4th at p. 254.) Even if Green had not forfeited his claim of prosecutorial misconduct, his claim is unavailing because, as we shall explain, the prosecutor did not commit misconduct.
2. Ineffective assistance of counsel
Green's alternative ineffective assistance of counsel claim, which is premised on his contention that his trial counsel did not object immediately after the prosecutor committed her alleged misconduct during closing arguments, is unavailing because he has failed to demonstrate the prosecutor's comments constituted misconduct.
Green specifically contends the prosecutor committed misconduct under both federal and state law by falsely and deceptively arguing to the jury that his claims of self-defense and defense of Minter were recent inventions, and thus he had engaged in "defense shopping." In support of this contention, Green asserts the prosecutor "successfully excluded evidence that [he] had told his lawyers—very early in the case—abouts facts that supported a claim of self-defense and defense-of-others."
These contentions are unavailing for two reasons. First, the record does not support his assertion that the prosecutor "successfully excluded" evidence that he told his lawyers, Quevedo and Venie, early in the case about facts supporting the defenses of self-defense and defense of others. Green's assertion is premised on his claim that he sought to introduce testimony by Quevedo and Venie that he had talked to them about such facts. The record, however, shows that Green never sought to introduce such testimony. On the contrary, the record shows that, after the prosecutor (in the presence of Green's attorney) met off the record with Quevedo and Venie—before they testified on Green's behalf—to learn what Green had told them about the incident, both the prosecutor and defense counsel appeared before the court, and defense counsel immediately indicated she intended to call both Quevedo and Venie as defense witnesses, but their testimony would be "very short," and it would be "limited" to the advice they gave to Green and others about the need to be quiet about the incident. Contrary to Green's claim on appeal, his defense counsel did not indicate she wanted to present testimony by Quevedo and Venie about what Green had told them early in the case about the incident, and the prosecutor made no motion to exclude any such evidence. Thus, there is no support in the record for Green's claim that the prosecutor "successfully excluded" such evidence.
Second, the record shows the prosecutor did not use deceptive methods or mislead the jury. Venie testified for the defense that he represented Green at the preliminary hearing, he told Green that his theory of the case would be that the police had arrested the wrong person, and he presented a mistaken identity defense at the preliminary hearing. During his own testimony, Green first testified that, after speaking to his attorneys, he did not know he had a defense other than the defense of misidentification. He then admitted on recross-examination, however, that although he had heard of the defense of self-defense, he thought the defense of "I wasn't there" was a stronger defense in this case than the defense of self-defense, and so he proceeded with the misidentification defense. The foregoing record shows that the prosecutor's argument about "defense shopping" was fair comment on the evidence presented at trial, and thus on Green's credibility as a witness. The prosecutor did not engage in misconduct when she argued to the jury, based on the testimony Venie and Green gave at trial, that earlier in the case Green had presented the defense that he was not present when Richmond was attacked, but at trial Green abandoned that defense and presented a defense that, although he was the one who hit Richmond, he did so in self-defense and in defense of Minter. The conflicting defenses reflected on Green's credibility as a witness, and the prosecutor was entitled to argue this point to the jury. The prosecutor's argument was not "deceptive," as Green contends, and his claim that such "deception" was "designed to undermine [his] credibility" is thus unavailing.
We conclude the prosecutor's comments during closing arguments did not infect the trial with such unfairness as to make Green's conviction a denial of due process, nor did they involve the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. We thus also conclude the court did not err in denying Green's motions for mistrial and a new trial. Accordingly, we affirm the judgment.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., McDONALD, J.