Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03F00237
CANTIL-SAKAUYE, J.
A jury found defendant Jacoby Nehamiah Pope guilty of attempting to murder Christopher Howard and discharging a firearm at an occupied motor vehicle, found true charged firearm enhancements, and deadlocked on charges he attempted to murder Michael Gise and Rashad Leone. Sentenced to 58 years eight months to life in prison, defendant appeals.
Defendant contends his right to due process was violated by (1) the People’s failure to (a) preserve his car, which was used in the shooting, (b) provide the defense with information regarding “the recovery and torching of [his] car,” and (c) tell the defense that law enforcement attempted to interview Troy Wright, a percipient witness; and (2) statements at trial that he “was on probation and the implication [] [he] was a gang member.” Finding no constitutional violation, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Underlying Offenses
On January 6, 2003, Christopher Howard drove his friends Michael Gise and Rashad Leone to a park to smoke some marijuana. On the way there, Howard saw three women in front of a house and approached them in his car. When he asked them how they were doing, they walked into the garage. When he drove past the house a second time, Troy Wright ran out of the garage and confronted him. As the two men argued, defendant exited the garage and watched. After a few moments, Howard drove to the park.
When the three men arrived at the park, they remained inside the car and rolled “a blunt.” About 10 seconds later, the women from the house drove by. Less than five minutes after that, a car sped toward Howard’s car. The driver of the speeding car fired numerous shots at Howard’s car, striking Howard in the buttocks and Gise in the back.
That same day, the Sacramento County Sheriff’s Department issued a statewide “be on the lookout” (B.O.L.O.) for a 1991 dark gray Ford Tempo registered to defendant. According to the B.O.L.O., defendant was “RESP IN 245 W/GUN FROM VEH IN SAC . . . .”
The next day, January 7, 2003, defendant was arrested after Howard and Gise identified him as the shooter. Howard and Gise also identified Troy Wright as defendant’s passenger at the time of the shooting.
At trial, Howard testified that he did not know who shot him. He said that he identified defendant as the shooter on January 7, 2003 because Gise told him that defendant was the shooter.
B. Evidence Concerning Defendant’s Car
On January 9, 2003, three people reported a fire near Calvine Road. When firefighters responded, they found defendant’s car engulfed in flames. The passenger compartment was completely consumed by the fire, but the trunk area was only “partially involved.” A can of charcoal lighter fluid was found on the passenger seat, and a pair of red and white tennis shoes and a video game controller were found in the trunk. The Elk Grove Police Department also responded “for a possible stolen vehicle” and “assisted with evidence photos.” Sometime thereafter, law enforcement apparently caused the car and its contents to be destroyed. At the time of the fire, defendant was in custody.
“Sometime around January 20, 2003,” Sergeant Maness of the Sacramento County Sheriff’s Department was informed that defendant’s car had been destroyed by fire. Sometime before April 21, 2003, Detective Armando Aguilar, who was investigating the shooting, told the prosecutor handling the case that defendant’s car had been burned. Maness wrote a supplemental report about the car, which he gave to Aguilar to forward to the District Attorney’s Office and the records division of the Sheriff’s Department. Aguilar never forwarded the report, however, and at the time of trial, the report was no longer available.
On April 21, 2003, a different prosecutor took over and tried the case.
The information that defendant’s car was destroyed was not disclosed to the defense prior to trial.
On March 3, 2004, the parties gave their opening statements which were not reported. According to defendant, during opening statements, defense counsel told the jury, among other things, that (1) the car used in the shooting belonged to defendant, (2) the sheriff’s department made little effort to find the car, (3) the car had never been located, and (4) law enforcement made little attempt to interview Wright.
Later that same morning, the prosecutor requested a side bar and advised the trial court: “[A]fter [defense counsel’s] opening statement . . . I made a point to call the detective to ask him why I didn’t have information in my file regarding [defendant’s] car or if he could find out what happened to the car. And he indicated to me that he thought that Sergeant Mannis [sic] had indicated to him that it was found, and it was torched in I think Roseville, maybe Elk Grove. And I asked him to immediately find that information, get that report, and call me today. [¶] He called me back and told me I got the report. I’m sorry. It has been sitting with me all this time. I never submitted it.”
Thereafter, the People moved to present “evidence of the torched vehicle,” while defendant moved to dismiss the charges against him “due to outrageous government misconduct that violated his right to due process” under Penal Code section 1385, or in the alternative, to suppress “all evidence regarding the recovery and condition of the car” based on law enforcement’s suppression and destruction of the evidence pursuant to sections 1054.1 and 1054.5 and Brady v. Maryland (1963) 373 U.S. 83 (Brady). Defendant argued that “[t]he torched car and the investigation of the fire would have lead to exculpatory evidence. Although the car was burnt, law enforcement and defense investigators could have inspected the car for . . . shell casings, firearms, bullet holes, and other physical evidence.” He also asserted that evidence “the car was torched after [defendant was taken into custody], . . . [and] would be exculpatory and material . . . because it would demonstrate that the [d]efendant did not destroy evidence and that someone other than the [d]efendant had a motivation to destroy the vehicle.”
Section 1385 allows “[t]he judge or magistrate . . . of his or her own motion . . . and in furtherance of justice,” to dismiss an action. (§ 1385, subd. (a).) Hereafter, undesignated statutory references are to the Penal Code.
Pursuant to section 1054.1, “[t]he prosecuting attorney shall disclose to the defendant or his . . . attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies: [¶] . . . [¶] (c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged. [¶] . . . [¶] (e) Any exculpatory evidence. [¶] (f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial . . . .”
Section 1054.5 provides in pertinent part: “Upon a showing that a party has not complied with Section 1054.1 . . . and upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure. (§ 1054.5, subd. (b).)
The People ultimately withdrew their motion, and the trial court denied defendant’s motion to dismiss. The court also rejected defendant’s assertion that the People’s delay in disclosing evidence concerning his car violated his right to due process. The court found that evidence “that someone other than [defendant] destroyed the vehicle or had a motivation to destroy [it] . . . [¶] [i]s significantly more ambiguous if not inculpatory rather than exculpatory. In other words, . . . it is almost equally arguable that Troy Wright, a person also present in the vehicle[,] or friends of the defendant, destroyed that vehicle on behalf of defendant. [¶] [I]n any event, even if the vehicle had been preserved it would make no difference in terms of that particular argument. Clearly someone else destroyed that vehicle and that can be argued; with or without destruction; with or without failure to disclose. That argument, that position is still fully available to the defense regardless of the conduct of the fire department, Elk Grove detectives, or the D.A.’s office.”
Nevertheless, the court granted defendant’s motion to suppress ruling “anything related to the recovery of that vehicle, its destruction, the information surrounding it, all of that will not be presented by the People in this case.” In order to mitigate any prejudice to the defense as a result of the late discovery, the court further ruled that, “while the defense could not invent false information like the car was never found,” it could pursue law enforcement’s failure to do “anything more than the B.O.L.O. and sit[] out front” of defendant’s house.
At the time it granted defendant’s motion, the court did not expressly state the basis for its ruling, and the defense reasonably presumed the ruling was based on a finding that the People had committed one or more discovery violations. During posttrial motions, however, the court stated: “I want to make clear that when I granted [defendant’s] motion [to suppress] I was not making a finding that there was any Brady . . . violation or any discovery violation. . . . [¶] [W]hat the court was actually doing was prohibiting the [People] from changing their mind again” and attempting to present evidence regarding defendant’s car.
C. Evidence Concerning Law Enforcement’s Efforts To Interview Troy Wright
Later in the trial, Detective Aguilar testified that Sergeant Maness attempted to interview Wright, but Wright refused to speak to him. Defendant again moved to dismiss the case. Defense counsel argued he had “no discovery, report, or anything that would suggest in any way, shape, or form that law enforcement directly or indirectly ever attempted to contact [] Wright or that they ever contacted him,” and based on that, he pursued a certain strategy. The trial court denied the motion, finding nothing in section “1054 required the district attorney to disclose what an investigator may or may not have done in the investigation” and that the information was not exculpatory under Brady.
D. Additional Statements At Trial
Prior to trial, the court denied defendant’s motion to preclude Detective Aguilar from testifying that he was a “gang detective.” The court ruled he could “testify to whatever his experience is that causes him to be an experienced detective,” including his position as a gang detective. At trial, Detective Aguilar testified he was “currently assigned to the gang suppression unit” and had been in that position for six years. Defense counsel asked to approach, and following a brief unreported discussion, the court admonished the jury “that the detective’s being in the gang unit has no relevance whatsoever to any issue in this case for your determination.” Aguilar then went on to describe his other assignments in the sheriff’s department.
Later, when asked “[w]hat was the purpose for your responding to” a particular address, Aguilar responded, “Well, [defendant] was on probation and this was --.” Defense counsel objected and moved to strike Aguilar’s response. The trial court sustained the objection and ordered the response stricken. Later, Aguilar explained that while Gise was attempting to find a photograph of Wright in a school yearbook, “we received a call from the probation office.” Defense counsel did not object, but at the next recess, moved for a mistrial, or in the alternative, for a curative instruction, based on Aguilar’s reference to defendant being on probation. The trial court denied the motion for a mistrial, but instructed the jury that defendant’s probation “was merely a juvenile misdemeanor traffic violation probation” and that Aguilar’s “gang assignment and experience has always been solely in the area of Hispanic gangs and no other.”
During closing argument, and without objection, the prosecutor described defendant as a “thug[] with [a] gun[].”
E. Posttrial Motions
After the jury rendered its verdicts, defendant moved for an order granting a mistrial, or in the alternative, a new trial. He argued his “trial was fundamentally unfair in light of the cumulative error from the destruction of potentially exculpatory evidence, withholding of evidence, implications that [d]efendant was a member of a gang, and testimony that [he] was on probation.” Finding there was “no individual error,” and thus no cumulative error, the trial court denied the motion. In doing so, the court noted that each issue raised in defendant’s motion, except for the prosecutor’s alleged misconduct during closing argument, was “previously addressed by this [c]ourt,” and “the [c]ourt’s view has not changed . . . with regard to its rulings.” With respect to the prosecutor’s reference to defendant as a “thug[] with [a] gun[]” during closing argument, the court noted there was no objection to the reference, and thus, the court “did not have any opportunity to cure any so-called prejudice . . ., and the [c]ourt could very well have done so.” Accordingly, the court found defendant forfeited his claim. The court also concluded that even if the issue had been preserved, the prosecutor’s language “was [not] synonymous with gang,” and thus, there was no error.
DISCUSSION
Defendant raises several due process issues which we address in seriatim.
I.
The People’s Failure To Preserve Defendant’s Burned Car Did Not Violate Due Process
“Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, [citation], evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (California v. Trombetta (1984) 467 U.S. 479, 488-489 [81 L.Ed.2d 413, 422]; fn. omitted.) Moreover, “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” (Arizona v. Youngblood (1988) 488 U.S. 51, 58 [102 L.Ed.2d 281, 289].) “‘On review, we must determine whether, viewing the evidence in the light most favorable to the superior court’s finding, there was substantial evidence to support its ruling.’ [Citations.]” (People v. Carter (2005) 36 Cal.4th 1215, 1246.)
Defendant argues “[t]he fact that someone other than [defendant] had possession of the car and destroyed [it] would have played a significant role in [his] defense.” As the trial court correctly observed, the fact that someone other than defendant had possession of the car and destroyed it was not lost when the car was destroyed. “That argument . . . [wa]s still fully available to the defense regardless of the conduct of the fire department, Elk Grove detectives, or the D.A.’s office.” Defendant, however, elected not to make that argument. Instead, defendant successfully moved to suppress the evidence “related to the recovery of that vehicle, its destruction, [and] the information surrounding it.”
Defendant also claims the “car was material evidence because the perpetrators of the shooting used [it]” and it “contained exculpatory value before it was destroyed.” Defendant, however, does not even attempt to explain how the car itself or its contents--a pair of tennis shoes and a game controller--would have aided in his defense. Without more, the fact that the car was used in the shooting “‘is not enough to satisfy the standard of constitutional materiality.’” (City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 8, quoting Arizona v. Youngblood, supra, 488 U.S. at p. 56 [102 L.Ed.2d at p. 288] [“[T]he mere ‘possibility’ that information in the prosecution’s possession may ultimately prove exculpatory ‘is not enough to satisfy the standard of constitutional materiality’”].) (Ibid.) Moreover, the fact that tennis shoes and a game controller were found in the car was not destroyed. As the trial court correctly observed: “[E]ven though the tennis shoes are gone the witness can testify saying that there were red tennis shoes in that car.” The same is true with respect to the game controller. Defendant, however, elected not to elicit evidence concerning the car’s contents, and instead successfully moved to suppress it.
Accordingly, defendant has failed to establish a violation of his right to due process based on the People’s failure to preserve his burned car or its contents.
II.
The People’s Delayed Disclosure Of Information Regarding The Torching And Recovery Of Defendant’s Car Did Not Violate Due Process
The prosecution has a duty to disclose to the defense evidence favorable to the accused “where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (Brady, supra, 373 U.S. at p. 87 [10 L.Ed.2d at p. 218].) Favorable evidence encompasses impeachment evidence as well as exculpatory evidence. (United States v. Bagley (1985) 473 U.S. 667, 676 [87 L.Ed.2d 481, 490].) “‘Such evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different[.]”’” (Youngblood v. West Virginia (2006) 547 U.S. 867 [165 L.Ed.2d 269, 272-273, quoting Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936 [144 L.Ed.2d 286 (1999)], quoting United States v. Bagley, supra, at p. 682 (plur. opn. of Blackmun, J.); see also United States v. Bagley, supra, at p. 685 (conc. opn. of White, J.).) “A ‘reasonable probability’ of a different result is . . . shown when the government’s evidentiary suppression ‘undermines confidence in the outcome of the trial.’” (Kyles v. Whitley (1995) 514 U.S. 419, 434 [131 L.Ed.2d 490, 506, quoting United States v. Bagley, supra, 473 U.S. at p. 678].)
In assessing whether evidence is material, the reviewing court “‘may consider directly any adverse effect that the prosecutor’s failure to respond [to a Brady request] might have had on the preparation or presentation of the defendant’s case. The reviewing court should assess the possibility that such effect might have occurred in light of the totality of the circumstances and with an awareness of the difficulty of reconstructing in a post-trial proceeding the course that the defense and the trial would have taken had the defense not been misled by the prosecutor’s incomplete response.’” (In re Brown (1998) 17 Cal.4th 873, 887, quoting United States v. Bagley, supra, 473 U.S. at p. 683 (plur. opn. of Blackmun, J.).)
In his opening brief, defendant relies on United States v. Bagley, supra, 473 U.S. at page 683, for the proposition that we must consider the impact the People’s untimely disclosure may have had on his preparation and presentation of a defense. As the People correctly note, the portion of the opinion relied on by defendant is the plurality opinion of Justice Blackmun, which was joined only by Justice O’Connor. While we are not required to follow Justice Blackmun’s plurality opinion in United States v. Bagley, nothing precludes us from doing so. (Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141, 1170; Board of Supervisors v. Local Agency Formation Com. (1992) 3 Cal.4th 903, 918.) Indeed, our Supreme Court has repeatedly followed the portion of Justice Blackmun’s plurality opinion relied upon by defendant. (See, e.g., People v. Hoyos (2007) 41 Cal.4th 872; In re Steele (2004) 32 Cal.4th 682, 700-702; In re Brown, supra, 17 Cal.4th at pp. 887-891.)
There is no Brady violation for delayed disclosure if the defense receives the information in time to use it at trial and is not prejudiced by the delay. (People v. Wright (1985) 39 Cal.3d 576, 589-591; U.S. v. Coppa (2d Cir. 2001) 267 F.3d 132, 144; Knighton v. Mullin (10th Cir. 2002) 293 F.3d 1165, 1172-1173.)
We review “[c]onclusions of law or of mixed questions of law and fact, such as the elements of a Brady claim,” independently. (People v. Salazar (2005) 35 Cal.4th 1031, 1042.) “[F]indings of fact, though not binding, are entitled to great weight when supported by substantial evidence.” (Ibid.)
In defendant’s view, the fact that “someone other than [he] torched the car . . . is favorable to [him] because it reveals that someone other than [he] had possession of his vehicle shortly after the shooting and a motive to destroy evidence of [the] shooting.” Even assuming for arguments sake that the fact that someone other than defendant set fire to his car is favorable to him, that fact was disclosed to him early in the trial, and he had an opportunity to present it. (People v. Wright, supra, 39 Cal.3d at pp. 589-591.)
Defendant also argues that “[t]he fact that no investigation occurred is favorable to [his] defense because it would have contributed to impeach the investigation and bolster [his] position that he stood wrongly accused due to a shoddy investigation.” Again, even assuming that (1) no investigation occurred and (2) the fact no investigation occurred is favorable to defendant, defendant was advised of that fact during trial and had the opportunity to present it. (People v. Wright, supra, 39 Cal.3d at pp. 589-591.)
Although defendant had the opportunity to present evidence that someone else set fire to his car and that “no investigation” occurred, he claims his right to due process was violated because the People’s untimely disclosure hindered him in preparing and presenting a defense.
Defendant raises this issue under a separate heading, asserting that, “[t]he People’s suppression of evidence denied [him] a fair trial [under the 5th and 6th Amendments] because [he] could not prepare or present a defense of third-party culpability.” We analyze the issue in connection with his Brady claim since it involves the alleged suppression of evidence. Indeed, the case upon which defendant primarily relies, United States v. Bagley, supra, 473 U.S. at page 667, involves a Brady claim.
He first asserts that “[h]ad the defense known that the car was located, it would have immediately inspected the vehicle, interviewed the witnesses to the fire, and hired an expert to investigate the torching of the car.” Defendant’s assertion is unavailing because “‘[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish “materiality” in the constitutional sense.’” (People v. Hoyos, supra, 41 Cal.4th at p. 922, quoting United States v. Agurs (1976) 427 U.S. 97, 109–110.) Rather, he must show “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” (United States v. Bagley, supra, 473 U.S. at p. 682 (plur. opn. of Blackmun, J.); see also id. at p. 685 (conc. opn. of White, J.).) Defendant has not made the requisite showing. That witnesses could have provided information that might have helped the defense is insufficient to establish a Brady violation. (People v. Hoyos, supra, 41 Cal.4th at p. 922.)
Defendant also notes that he “never received any discovery regarding [the] Elk Grove Police Department’s investigation regarding the torched car.” There is no evidence in the record that the Elk Grove Police Department investigated “the torched car.” Rather, according to a report by the Elk Grove Fire Department, which defendant did receive, “Elk Grove Police responded for a possible stolen vehicle . . . [and] assisted with evidence photos.” Defendant has failed to show that the photographs were still available, and even if they were, how they are material to his defense. Accordingly, he has failed to establish a Brady violation based on any investigation by the Elk Grove Police Department concerning his car.
Defendant next argues that “[o]nce the information about the car [was] disclosed, [he] was prejudiced because the defense could not present the evidence that it promised in its opening statement[],” i.e., that little effort had been made to find defendant’s car. We find that any potential prejudice to defendant was mitigated by the trial court’s ruling that the defense could pursue what efforts, if any, the investigating officers made to locate defendant’s car. The court ruled that while defense counsel “could not invent false information like the car was never found,” he could pursue law enforcement’s failure to do “anything more than the B.O.L.O. and sit[] out front” of defendant’s house. Consistent with the court’s ruling, during closing argument, while arguing that Aguilar was “extremely sloppy,” counsel noted, among other things, “that the only thing they did in terms of finding this gray car that was registered to [defendant] was put out the BOLO, be-on-the-lookout. That’s all he did.”
Finally, defendant complains that he was prejudiced in that he was prevented from presenting a defense of third-party culpability. He argues “evidence regarding the destruction of the car used by the shooter fulfilled the requirements for admissibility of evidence of third-party culpability. Specifically, the fact that someone destroyed the car days after [defendant] was in custody suggested that a third person committed the crime that [defendant] was accused of because someone had possession of the car and a motive to destroy [it].” First, defendant did present a defense of third-party culpability. During closing argument, defense counsel not only argued that defendant was not the shooter, but that Troy Wright had a motive to shoot at Howard and the other men in Howard’s car, noting that Wright had a confrontation with Howard just prior to the shooting. Second, had defendant believed that evidence regarding the destruction of the car was critical to his defense, he could have presented it to the jury. He chose not to. While we are mindful that the presentation of such evidence would have conflicted somewhat with defense counsel’s opening statement insofar as he told the jury that defendant’s car had not been recovered, defendant was not without a remedy. He could have asked the trial court to inform the jury that the defense was not told that the car had been found or of the circumstances of its recovery until after opening statements. Defendant, however, chose to pursue another strategy, successfully moving to have the evidence suppressed.
Pursuant to section 1054.5, subdivision (b), where a party fails to comply with section 1054.1’s disclosure requirements, “the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.” Even though the trial court “clarified” during posttrial motions that it had not granted defendant’s motion to suppress based on a violation of the discovery rules, the court may have been willing to advise the jury that the information concerning defendant’s car was not disclosed to the defense until after opening statements.
Defendant has failed to establish a Brady violation based on the People’s failure to disclose information concerning his car.
III.
The People’s Failure To Disclose Law Enforcement’s Attempt To Interview Wright Did Not Violate Due Process
Defendant fails to cite any authority for his contention that the People had a constitutional obligation to tell the defense it had attempted to interview Wright.
In order to establish such an obligation, defendant must show the evidence was exculpatory or impeaching and there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. (United States v. Bagley, supra, 473 U.S. at p. 676 [87 L.Ed.2d at p. 490]; Youngblood v. West Virginia, supra, 547 U.S. at p. 867 [165 L.Ed.2d at pp. 272-273].) He has done neither.
Accordingly, defendant has failed to establish a Brady violation based on the People’s failure to disclose that law enforcement had attempted to interview Wright.
IV.
Detective Aguilar’s Statements Did Not Violate Defendant’s Due Process Rights
Finally, defendant claims that, statements regarding his probation status and the implication that he was a gang member violated his rights to due process and requires reversal. Under Additional Statements At Trial, ante, we described Detective Aguilar’s testimony as to his experience as a detective and his testimony that defendant was on probation. Any possible prejudice to defendant as a result of Detective Aguilar’s testimony that he worked in the gang unit and reference to defendant being on probation was cured by the trial court’s instruction that defendant’s probation “was merely a juvenile misdemeanor traffic violation probation” and that Aguilar’s “gang assignment and experience has always been solely in the area of Hispanic gangs and no other.”
Defendant also argues that the People’s description of defendant as a “thug[] with [a] gun[]” during closing argument also suggested he was a gang member. Defendant forfeited this argument by failing to object below. (People v. Cook (2006) 39 Cal.4th 566, 613.) In any event, it lacks merit because the jury would not have reasonably understood the comment as referring to gang membership.
Accordingly, whether considered individually or cumulatively, Aguilar’s statements and the prosecutor’s reference did not deprive defendant of his right to a fair trial.
To the extent defendant claims that an assessment of the cumulative effect of the trial errors he raises mandates reversal of the judgment, the claim is moot since we find no such error.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J., BUTZ, J.