Opinion
NOT TO BE PUBLISHED
Super. Ct. No. P06CRF0427
BLEASE, Acting P. J.
A jury convicted defendant Mario Heliodoro Lozano of first degree murder (count 1; Pen. Code, § 187, subd. (a)) and unlawful driving or taking of a vehicle (count 2; Veh. Code, § 10851, subd. (a)); the jury also found that defendant personally discharged a firearm causing death. (§ 12022.53, subd. (d).) The trial court sentenced defendant to a total state prison term of 50 years to life (25 years to life on count 1, plus 25 years to life consecutive on the enhancement, with the two-year midterm on count 2 concurrent).
All further undesignated statutory references are to the Penal Code.
Defendant contends the trial court erred prejudicially by admitting experimental evidence which lacked a proper foundation. We conclude the evidence should not have been admitted, but the error was harmless; therefore, we shall affirm.
BACKGROUND
Introduction
On July 26, 2006, defendant killed his estranged girlfriend, Kathleen (“Kacie”) Barron, with two gunshots at her residence in Placerville, and then fled in her car. Arrested 17 days later in Mammoth Lakes, defendant confessed, but claimed the first shot was an accident and the second shot was meant to end Barron’s suffering from the first shot. At trial, over defense objection, the prosecutor put on evidence of an out-of-court attempt to reenact defendant’s story about the first shot (supposedly proving it could not have happened that way), then restaged the “reenactment” in court. Defendant did not testify, but presented the complete videotape of his confession as his defense.
Events prior to July 26, 2006
In December 2005, defendant and Barron began a romantic relationship and he moved into her home. He moved to Hawaii (his home state) in January 2006, but the relationship continued. She bought a travel trailer, which defendant expected them to use together later.
Barron kept two shotguns in her home, one by her bed, the other in a nearby gun rack; she also had two.22-caliber handguns. She often went shooting with her adult son, Nicholas Selbman. She was comfortable and familiar with guns.
Defendant returned in early July 2006 and moved back in with Barron. However, things did not go well this time. She told Selbman that she was unhappy defendant was staying with her. Later in the month, she left and stayed with friends, hoping defendant would leave so she could go back home.
On July 25, 2006, Barron said to an old friend, Michael Nuss, that even though she had already told defendant it was over, he had just showed up at her house and moved in, and now would not leave. As Barron and Nuss sat in her car, she played cell phone messages defendant had left, including one saying: “You got 12 to 14 hours to take care of what you got to take care of.”
July 26, 2006
Selbman called Barron in the morning to arrange to drop off his dog with her before work. She asked him to meet her down the street from her house, which was unusual. He offered to get defendant out of the house, but she said it was her problem, not Selbman’s.
When Selbman drove to Barron’s house around 8:45 a.m., he saw defendant outside. Selbman sensed tension between defendant and Barron, but left for work anyhow. Another old friend of Barron’s, Michael Thompson, came by her home between 11:00 and 12:00 p.m. He lent her $200; in return, she gave him some pain pills. Gesturing toward the house, she said she had business to take care of that day.
On cross-examination, Thompson testified that the pills were Vicodin and Barron might have had as many as 50. As we shall explain, defendant told the police that on returning to California he found that Barron had become deeply involved with drugs.
Another friend of Barron’s, Gary Chapman, arrived as Thompson was leaving, to collect $200 she owed him for work he had done on her trailer. She seemed upset that defendant was still there. Chapman drove away around 12:00 p.m.
Also around 12:00 p.m., Nuss missed a cell phone call from Barron. He immediately called back, but she did not answer or leave a message.
After getting off work at 5:30 p.m., Selbman called Barron several times, but could not reach her. When he got to her home around 6:00 p.m., he saw that her 1990 Oldsmobile, the car she normally drove, was missing.
As Selbman went to the house door to see if his dog was inside, he heard it barking from inside the travel trailer. The trailer door was locked. Selbman did not know why Barron would have locked the dog in the trailer. The trailer window was open and missing a screen, but the trailer’s air conditioning was on.
Walking over to the window, Selbman saw a chair in front. A footprint on it looked as if it had been made by a sandal; Selbman knew that defendant habitually wore sandals.
Selbman stood on the chair and looked into the trailer. He saw a shotgun lying in front of the window, and a cushion pushed over to one side. Then he saw Barron lying on the floor, covered in blood. He checked for a pulse, but did not find one. It looked as if she had been there for a while, because much of the blood had dried.
Barron’s lockbox, in which she stored valuables, was also in the trailer. She normally kept it under her bed; Selbman had never known her to keep it in the trailer.
The initial investigation
Arriving in response to Selbman’s 911 call, Placerville Police Officer Brody Jordan saw Barron’s body on the trailer floor. Officer Jordan also found two Mossberg 500A shotguns in the trailer, one on the cushion area in front of the window and the other on the floor below Barron’s right arm. The first shotgun was in fire mode and had a live round in the chamber, with two more live shells in the feeding tube; the second had five shells in the feeding tube, but the safety was on and there was no round chambered. The second shotgun had white tape on the back.
According to Selbman, the shotgun Barron used when they went shooting together was always marked with white tape.
There was an expended shotgun cartridge outside the trailer near the front door, and another one inside the trailer on the cushion, next to the first shotgun. The first cartridge would have had to have been fired from outside the trailer; the second would have had to have been chambered with the shotgun at least partly inside the window. Officer Jordan concluded that the shotgun holding a live round had fired the other rounds.
Officer Jordan found blood, blood spatter, hair, and bone fragments inside the trailer. Some of the hair was on the ceiling, with shotgun pellets nearby. From the location of the hair, the pellets, and the blood spatter, Officer Jordan concluded that when Barron was shot in the head, she was standing nearly upright near the north end of the trailer.
Officer Jordan also found two cell phones, a box of shotgun shells, shotgun pellets, and shotgun wadding in the trailer. Finally, he found two duffle bags which held clothing, toiletries, and other items, including pills in defendant’s name.
Forensic evidence
Forensic pathologist Dr. Elizabeth Albers, who performed the autopsy on Barron, testified that she died from two gunshot wounds, one to the chest and one to the head. The chest wound was “most likely” inflicted first.
The wound to Barron’s right upper chest was an entrance wound approximately two inches across by one and one-quarter inches wide, round and regular, without soot or stippling. The fact that it was round with no other injuries around it from spreading pellets indicated that the shot was probably fired from “relatively close to the body.” It traveled through the body from straight on, front to back, not at an angle.
The wound to Barron’s head was an entrance wound to the right side of the forehead and scalp, about three and one-quarter inches by two and three-quarters inches, with “irregular scalloped edges” and “multiple smaller defects around it due to those pellets starting to spread out.” The peripheral pellet marks indicated that this wound was inflicted from a greater distance than the chest wound. The direction of the head shot was from front to back, but also, unlike the chest shot, from right to left.
The chest shot not only severely injured the chest itself, but also perforated the pulmonary artery and aorta, disrupted all the heart valves, nearly bisected the heart, and damaged the lungs and ribs; these injuries would have been almost impossible to survive. The head shot caused extensive fractures to the top and base of the skull, perforations of the brain, and bleeding around the brain; these injuries would also have caused death.
The toxicology laboratory found that Barron tested positive for methamphetamine and hydrocodone. However, Dr. Albers did not see any damage to Barron’s organs indicative of chronic drug use.
Criminalist John Yount investigated blood spatter patterns and firearms evidence in the trailer. Examining Barron’s shirt, Yount found no evidence of soot or stippling. Apparent blood spatter on the shotgun lying on the floor (on its outer surface and inside on its muzzle) could have come from Barron’s head wound, possibly by splashing up into the barrel. Blood spatter by her feet was consistent with the theory that blood fell down her body or freely to the floor after she sustained the head wound while standing in the “breakfast nook” area of the trailer; it probably did not come from the chest wound because that did not bleed copiously.
Working from the pathologist’s report and the size of the hole in Barron’s shirt, Yount test-fired the shotgun which fired the shots to determine the approximate distance from which the chest wound was inflicted. He concluded that the most probable distance from the point of Barron’s chest to the muzzle of the shotgun was greater than two feet and less than five feet. He obtained results most closely approximating the damage to the shirt and the wound described in the pathologist’s report from distances of three and four feet.
Defendant’s arrest and statement
Placerville Police Lieutenant Kim Nida, in charge of investigating the case, found that Barron’s car was missing and defendant could not be located. Defendant immediately became the focus of the investigation.
Lieutenant Nida discovered that Barron’s ATM card was used to buy gas in Markleeville at 2:05 p.m. on the date of the offense. The gas station’s surveillance videotape (which was played for the jury) showed a man who looked like defendant pumping gas into a car that looked like Barron’s, then driving south out of town. Learning that defendant had an acquaintance in Mammoth Lakes, Lieutenant Nida alerted the police there.
After defendant (in possession of Barron’s car and handguns) was arrested in Mammoth Lakes on August 12, 2006, Lieutenant Nida came to interview him. He waived his Miranda rights and gave a full statement.
According to Lieutenant Nida, defendant said that when he returned to California from Hawaii, “he came into a crank-infested inferno.” Had he known what things were like there, he would not have returned. He had spent all his money to get there, including some he had sent to Barron believing she would save it; instead, she had spent it all on drugs. He had thought they would go to Arizona, but the travel trailer was in disrepair.
Defendant was also unhappy because he had learned that Barron, whom he said he loved, had another boyfriend -- “the pill guy” (her drug supplier). Defendant believed Barron had stayed with the other man at a motel the night before she died.
Lieutenant Nida described defendant’s account of the events of July 26, 2006, as follows:
Barron was standing inside her locked travel trailer and defendant was standing outside it, but the window was open. She told him to leave. He was willing to go, but not until she gave him back the duffle bags containing his property which were in the trailer; she refused. She displayed a shotgun, but without pointing it or threatening him. It was normal for her to have a gun in the trailer because she was paranoid and always went armed.
Defendant went back into Barron’s house, still determined to recover his property. He grabbed the shotgun in her bedroom and returned to the trailer, holding the gun at his side pointing down; he did not know if she saw it.
After arguing further about defendant’s property, they pointed their guns at each other. Standing on the trailer floor between the cushions by the window, Barron said, “So you want to play?”, then grabbed the barrel of defendant’s gun with her left hand and pulled it toward her, while still holding her own gun with her right hand. Pulling on defendant’s gun caused the trigger to depress. The resulting shot struck Barron either in the “gut” or the chest. Defendant had seen people “gut shot” before and knew “it wasn’t good.”
Barron dropped her gun, turned away, and walked back toward the kitchenette area of the trailer. As she was looking away, defendant fired the second shot, aiming for the back of her head (“the kill shot”), because he did not want her to suffer. He fired it around 30 seconds after the first shot.
Defendant climbed in the window, using the chair placed in front of it. He did not call 911 or think about giving Barron medical attention. He watched her die, then grabbed a silver lockbox which held her handguns and left through the window. He did not take his duffle bags; he did not know why. He took Barron’s car and fled.
The out-of-court “reenactment”
After Lieutenant Nida recounted defendant’s statement, she testified that she and the prosecutor had gone to where the trailer was stored and attempted to reenact the shooting as defendant had described it. Lieutenant Nida, who stood five feet 10 inches tall, had played the role of defendant, whom she believed to be six feet two inches or six feet four inches tall; the prosecutor, who stood five feet seven inches tall, had played the role of Barron (who was five feet five inches tall, according to Dr. Albers).
The arrest warrant issued for defendant states that he is six feet one inch tall.
Lieutenant Nida testified that she stood outside the trailer holding an unloaded shotgun and pointed it in through the window, while the prosecutor tried to grab her gun barrel as he stood flat-footed between the window cushions. This maneuver forced him to lean forward, bending at the waist.
The prosecutor asked: “Assuming that it was possible to reach out from that aisle way, envisioning this being the aisle way between the two cushions, and grab the barrel of that shotgun out that window, did you take steps to determine the distance from the barrel of that shotgun to, in essence, where Kacie’s chest would have been relative to that barrel if it was within arm’s length?” Lieutenant Nida answered: “Yes.”
Defense counsel objected that this line of questioning was speculative and lacked foundation. The trial court (Judge Daniel Proud) overruled the objection. The prosecutor then tried to show how the “reenactment” had established the possible distances between the barrel of defendant’s shotgun and Barron’s chest.
Defense counsel renewed his foundational objection. Outside the jury’s presence, the prosecutor asserted that whether the “reenactment” accurately portrayed defendant’s version of events went to weight, not admissibility. Judge Proud overruled the objection.
The prosecutor asked: “Lieutenant Nida, what did that tape measure read when you measured from the tip of that barrel, my arm fully extended, my body at an angle from the tip of that barrel, to the point in my chest that approximated closely where Kacie Barron was struck with that shotgun?” Lieutenant Nida answered that she believed it was two feet three inches. But when the prosecutor followed up: “2 feet 3 inches from the tip of the barrel to my chest while I was touching it or while I wasn’t touching it?”, Lieutenant Nida admitted she was not sure and had not written it down at the time. The prosecutor said: “We may have to re-create this in the courtroom.”
The in-court “reenactment”
The next morning, outside the jury’s presence, the parties argued about the prosecutor’s proposal to restage the “reenactment” in court.
Defense counsel objected that it constituted experimental evidence for which the People could not lay a proper foundation, because they could not show that the conditions of the “experiment” would accurately reproduce those of the original event. Counsel specifically asserted: (1) Barron’s measurements, aside from her height without shoes, had not been collected, and it could not be determined whether she was wearing shoes at the time of her death. (2) Defendant’s height and arm span were undetermined, and it was also unknown whether he was wearing shoes at the time of the shooting. (3) The relevant measurements of the trailer’s interior had not been taken. (4) The height of the trailer window off the ground had not been measured. (5) The relative arm spans of the “reenactors,” and how they compared to those of the actual persons, were also unknown. (6) The exact placement of the gun -- i.e., “whether the muzzle was outside the plane of the trailer at its extreme tip,” and how this related to the positions taken by the “reenactors” -- was also impossible to determine. Additionally, counsel asserted the experiment would unduly consume time.
The prosecutor replied: (1) This was not a “scientific experiment,” but “merely an illustration.” (2) So far as Barron’s absence precluded an exact duplication of the original conditions, defendant could not avail himself of that fact because he was responsible for her absence. (3) Defendant’s location, the location of the gun, and how it was being held were “completely irrelevant for the purposes of this illustration.” Its only purpose was to show “how close, roughly, would somebody be if their hand was on the barrel of the shotgun and the shotgun discharged and struck them in the way that Ms. Barron was struck? [¶] So it doesn’t matter if the shotgun is sitting in this witness chair or floating in midair or being pointed in that window. The distance, assuming the angle of shot is the same, will always be the same. There is some distance from which a person cannot touch the barrel of that gun anymore. It’s too far away. And there is some distance where the person can grab that gun. It’s close enough.” (4) The “illustration” would show “within some degree of reasonableness what those distances look like in the same way that John Yount testified to a range of distances with his test-fired shots.” (5) Unlike yesterday, this time they would illustrate the various distances with a tape measure, “so that the jury can see what 24 inches looks like relative to the barrel of this gun, so they can see what 36 inches looks like relative to this gun.”
Defense counsel retorted that an “illustration” which does not fairly represent the evidence or reasonable inferences from the evidence is misleading and inadmissible. To purport to reproduce defendant’s and Barron’s positions without support in the evidence would mislead the jury.
Judge Proud ruled: (1) The proposed evidence was “demonstrative evidence.” (2) The People were entitled to put on such evidence. (3) Any “variables” that might differ from those of the actual event were a matter for cross-examination. (4) Therefore, the “demonstration” would be permitted.
Before the jury, the prosecutor elicited from Lieutenant Nida that during the out-of-court reenactment at the trailer they had been able to “re-create a plausible scenario where I, with my arms and my posture, different than it is from Ms. Barron’s, was able to stand without touching the cushions and grab the shotgun as you pointed it inside the window” -- if the prosecutor leaned forward a great deal, “[t]o where [his] knee was almost on the cushions,” at around a 60-degree angle. However, if the prosecutor tried to stay off the cushion, it required “more of an off[-]balance awkward lean[.]”
The prosecutor had Lieutenant Nida “step down here in the well.” Using a tape measure, he and she then purported to illustrate the relative positions of defendant, Barron, and the shotgun from different distances. This demonstration, according to the prosecutor and Lieutenant Nida, showed that Barron could have gotten part of her hand on the gun from a distance of two feet, but only by “significant shifting and changing the angle of where [she] would be shot,” contrary to Dr. Albers’s opinion that the shot causing the chest wound was fired from straight on; the greater the distance, the more body shifting would have been needed. Lieutenant Nida averred that the measurements they had taken during the out-of-court reenactment were substantially the same as those they had just demonstrated to the jury.
Defense case
The only evidence defendant offered was his complete videotaped statement.
According to the transcript of the statement in the appellate record, defendant said Barron “threw down on me with a fuckin’ 12-gauge” and said “she’d blow my fuckin [sic] head off[.]” When he got the other shotgun and pointed it at her, he “thought she would pull the trigger first. I was kinda counting on that.” He did not know why she had not done it “because there was nothing but hate coming out of her eyes.” He did not know that her gun was on safety; he “thought she was locked and loaded. She was always locked and loaded.” After the first shot, he knew “[s]he wasn’t gonna make it.” The second shot was fired 30 seconds or less after the first shot.
Defendant first said that he did not get his belongings after shooting Barron because he just “panicked.” Later, he said he did not do it because “hell, it don’t matter if I got clothes now. Just go.”
Closing arguments
The prosecutor argued that defendant premeditated and deliberated the killing of Barron from the moment he took her shotgun, loaded it, removed the safety, and chambered a round. He then executed his plan by firing two lethal shots in rapid succession, as the physical evidence (including the courtroom demonstration) showed.
Near the end of his first closing argument, however, the prosecutor suggested that if defendant really waited 30 seconds before firing the second shot, that shot alone would prove premeditation, deliberation, and intent to kill. Defense counsel did not respond to this remark, and the prosecutor did not repeat it in his rebuttal.
Defense counsel, silently abandoning defendant’s story about the second shot, argued that the whole episode was a “horrible accident.”
DISCUSSION
Defendant contends the admission of the out-of-court and in-court “reenactment” evidence was prejudicial error. The People maintain that the evidence was correctly admitted and that in any event defendant cannot show prejudice. We agree only with the People’s second point. Judge Proud erred grossly by admitting this evidence, but the error was harmless because there is no reasonable likelihood defendant would have obtained a more favorable result had the evidence been excluded.
The parties differ, as they did below, about whether the evidence in question is “demonstrative” or “experimental” -- which matters because experimental evidence must meet a higher threshold for admissibility than demonstrative evidence. We agree with defendant that it was experimental evidence and that it did not meet the required threshold.
Demonstrative evidence “usually consists of physical objects such as clothing, weapons, machines, photographs, or models, introduced for examination by the judge and jury. Its evidentiary value lies in considerable part in demonstration of matters that are readily perceived by the senses.” (2 Witkin, Cal. Evidence (4th ed. 2000) Demonstrative, Experimental, and Scientific Evidence, § 1, pp. 8-9.) Experimental evidence is “evidence of the result of an experiment conducted either out of court or in the courtroom, under conditions similar to those that gave rise to the controverted issue, and offered as circumstantial evidence on that issue.” (Id. at p. 9.)
The evidence offered at issue did not involve the presentation of physical objects to demonstrate matters readily perceived by the senses. Rather, it involved an attempt to test the parties’ theories of the case by trying to determine whether the first shot could have been fired the way defendant said it was. This is a classic example of experimental evidence. (2 Witkin, Cal. Evidence, supra, § 35, p. 44 [principal use of experimental evidence is to test theories of the case by performing controlled experiments out of court].) Judge Proud erred by deeming it to be merely demonstrative.
For demonstrative evidence, the test of admissibility is simply whether the evidence is relevant. (2 Witkin, Cal. Evidence, supra, § 3, p. 11.) Judge Proud impliedly used that standard when he reasoned that any uncertainty about how far the reenactment resembled the actual events merely went to the evidence’s weight.
But relevance is only the first criterion which experimental evidence must satisfy. As we shall explain, even if that criterion was met here, the others were not.
“[A] trial court has discretion to admit ‘experimental’ evidence. The proponent of such evidence bears the burden of production and proof on the question whether such evidence rests upon an adequate foundation. ‘Admission of such evidence depends upon proof of the following foundational items: (1) [t]he experiment must be relevant; (2) it must have been conducted under at least substantially similar, although not necessarily absolutely identical, conditions as those of the actual occurrence; (3) the qualifications of the individual testifying concerning the experimentation must be demonstrated with some particularity; and (4) evidence of the experiment will not consume undue time, confuse the issues, or mislead the jury.’ [Citations.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1326 (Bradford).)
In his argument, defense counsel cited this passage of Bradford. In his ruling, Judge Proud did not mention Bradford, let alone explain why he thought it inapposite.
The experimental evidence here did not satisfy the second criterion. For all the reasons defense counsel gave, the People could not show that either the out-of-court experiment or its in-court restaging was “conducted under at least substantially similar... conditions as those of the actual occurrence....” (Bradford, supra, 15 Cal.4th at p. 1326.)
The only variables that were actually pinned down -- the respective heights of the original actors and the reenactors -- showed a substantial discrepancy. In trying to determine whether one person could have grabbed the barrel of a gun held by another while they stood at specified distances from each other, it obviously mattered whether their heights varied by three inches (Lieutenant Nida and the prosecutor) or by at least seven (defendant and Barron). That discrepancy alone cast serious doubt on whether the conditions of the reenactment were substantially similar to those of the actual occurrence.
Worse than that, other key variables were simply unknown and unknowable. For example, though the out-of-court reenactment used the trailer, the prosecutor failed to establish its relevant dimensions (e.g., the size of the interior and the height of the window off the ground) or to show that the window’s position relative to the ground in storage was even approximately the same as it had been in Barron’s driveway. And the in-court restaging of the out-of-court reenactment did not attempt to show that the reenactors were in the same relative positions as they had been when they did the prior reenactment. Indeed, on this record we cannot even guess where the prosecutor and Lieutenant Nida stood relative to each other in the courtroom.
Because the experimental evidence here did not satisfy the second criterion, it necessarily also failed to satisfy the fourth. As defense counsel pointed out, if the conditions of the experiment could not be shown to be substantially similar to those of the actual occurrence, the experiment was bound to consume undue time and to confuse or mislead the jury. (Bradford, supra, 15 Cal.4th at p. 1326.)
In light of this conclusion, we need not address the third criterion (the qualifications of the person testifying about the experiment).
For all these reasons, Judge Proud’s ruling admitting this evidence was a gross abuse of discretion.
Nevertheless, the error was not prejudicial. The test for prejudice when experimental evidence has been wrongly admitted is whether it is reasonably probable that the absence of the evidence would have changed the result. (People v. Roehler (1985) 167 Cal.App.3d 353, 391.) We conclude that a different result absent the experimental evidence was not reasonably probable.
If the experimental evidence had not been admitted, the jury would still have seen and heard the physical and forensic evidence; it would also have seen and heard defendant’s videotaped statement. That statement was so inconsistent with the physical and forensic evidence, and so implausible even on its own terms, that it could not have raised a reasonable doubt about the People’s case.
The testimony of Officer Jordan, Dr. Albers, and criminalist Yount established: (1) The chest shot was fired from straight on, at a distance between two and five feet, and did not travel at an angle. (2) The head shot, which entered on the right side of Barron’s forehead and scalp, was fired when Barron was facing toward defendant and standing nearly upright. (3) The chest shot, probably fired first, caused such severe injuries that it would have been mortal in a short time on its own.
Defendant’s account of how the shots were fired was not consistent with this evidence. According to defendant, Barron caused the first shot (which entered in a straight line and not at an angle) by pulling defendant’s gun barrel to the side; then, after being critically wounded in most of her internal organs, she was able to turn, walk away, and travel some distance inside the trailer; then he fired the head shot (which entered her forehead) as she faced away from him. These discrepancies alone would have made defendant’s account impossible for a rational jury to accept.
Furthermore, defendant’s story made very little sense as an account of either his or Barron’s motivations. A rational jury would have had great difficulty believing that defendant thought he could prevail in a confrontation with a woman who had just pulled a gun on him by getting another gun, loading it, and pointing it at her. His claim that he hoped she would pull the trigger first did not square with his claim that he wanted to recover his property (which he failed to take after all, though he took Barron’s car, handguns, and ATM card) and leave. And his claim that Barron -- a person thoroughly familiar with guns -- grabbed the barrel of a gun pointed at her, which she had no reason to think was not loaded, made no sense whatsoever except on the unsupported premise that she was drug-crazed or suicidal. (Although methamphetamine and hydrocodone were found in her system, there was no evidence presented as to amounts, times of ingestion, or possible effects on her behavior. Furthermore, none of the other evidence in the case suggested that Barron had been behaving irrationally on the day of her death.)
Defense counsel’s argument to the jury impliedly conceded that defendant’s statement was not credible. As noted above, counsel silently abandoned defendant’s account of the second shot (the “kill shot” fired after a 30-second pause to put Barron out of her misery), implicitly agreed with the prosecutor that the two shots were fired in rapid succession, and asked the jury to find that both shots were part of the same “accident.”
For all the above reasons, we think it is not reasonably probable that defendant would have obtained a better result absent the improperly admitted experimental evidence.
DISPOSITION
The judgment is affirmed.
We concur: ROBIE, J., CANTIL-SAKAUYE, J.