Opinion
Defendant was convicted following a jury trial of first degree murder (Pen. Code, § 187), grand theft (Pen. Code, § 487, subd. (a)), first degree residential burglary (Pen. Code, § 459), and arson of an inhabited structure (Pen. Code, § 451, subd. (b)). In this appeal he claims that the trial court erred by admitting evidence of a reenactment of the homicide. We conclude that harmless error was committed, and affirm the judgment.
STATEMENT OF FACTS
Defendant did not dispute that he killed the victim, Ted Neff, by strangling him in his three-level townhouse on Bustos Place in Bay Point on the night of
Neff was gay and used craigslist to seek companionship and sexual relations. He was also an accomplished flautist, who owned a cherished solid gold Nagahara flute and a sterling silver flute.
Defendant advertised massage, escort and sexual services on craigslist. Neff contacted him, and in the middle of 2008 they began a sexual relationship that evolved into a friendship. Defendant visited Neff at his home regularly, often just to talk, eat dinner, or listen to Neff play the flute. On other occasions, Neff paid defendant for sexual encounters. At first, they used condoms, but they “trusted” each other, so thereafter they engaged in “unprotected sex.”
Defendant testified that around 6:00 on the night of December 3, 2008, he appeared unexpectedly at Neff’s residence for a visit. Neff was pleasantly surprised to see him. As they talked for a while in the living room, Neff told defendant about an “attempted break-in” the Sunday before, during which the “power switch” to the house was “pulled” to disconnect the electricity, and the front door was damaged. They watched a movie, then fit the fireplace logs on the second level of the residence. Smoke from the fireplace activated the fire alarm, which continued to ring loudly until defendant disconnected it on the third level.
After Neff left the house for 10 or 15 minutes, he returned and told defendant that he “had something very serious” to discuss. Neff said that “somebody he was seeing” in a “sexual way—had tested positive for HIV,” and he may have “contracted the disease.” He suggested that defendant get “checked out.”
Upon hearing Neff’s revelation defendant thought of his wife and son, and became enraged. Defendant testified that he felt upset and “betrayed.” He “started wrestling” with Neff, threw him to the floor and began choking him. Neff implored defendant to “please stop it,” but defendant was “on auto pilot,” and “wasn’t paying no mind to anything that was going on” other than choking the victim. Defendant stopped when he observed “a lot of saliva [and] some foamy stuff” coming from Neff’s mouth. Defendant decided to leave. Neff was breathing, but defendant thought he was unconscious.
When defendant was certain Neff was dead, he dragged the victim’s body down to the first-level bedroom. Defendant then decided for “revenge” to take Neff’s flutes, piccolos, and laptop computers, which he placed in a suitcase. Defendant became “paranoid,” so he grabbed a book or magazine, lit it on fire, and threw it in the entertainment room. He wanted to destroy evidence of his presence in the house. Defendant then immediately left Neff’s residence and drove straight home. However, within a few hours of killing Neff, defendant was back online soliciting a female customer to join him and his wife in a ménage-á-trois. Within a few days of the incident, defendant engaged in sex with his close friend Ernesto Molina. From the date of this homicide until his arrest, defendant never submitted to a medical test for HIV.
A neighbor reported the fire, and the Contra Costa County Fire Protection District responded to Neff’s townhouse residence just before 10:00 p.m. The first level suffered fire damage, primarily in the “entertainment room,” which was the point of origin of the fire started by an accelerant. Neff’s body was discovered in a bedroom on the first level. A forensic pathologist concluded that Neff died from asphyxia due to hand and ligature strangulation, and was “dead at the time of the fire.” The phone lines and fire alarms in the townhouse had been disconnected before the fire. Gas burners on the stove had been ignited.
The police investigation of Neff’s murder focused on the theft of the solid gold Nagahara flute. The Contra Costa County Sheriff’s Office was alerted by a flute dealer to defendant’s attempt to sell the flute, and given his telephone number. The sheriff’s department also discovered defendant’s connection to the victim through a posting on his craigslist escort service Web site of a photograph of him in a shower with the same “distinctive tile work” as was observed in Neff’s house. The phone number on the Web site advertisement matched the one of the man who attempted to sell Neff’s Nagahara flute to the flute dealer.
On the evening of December 5, 2008, a homicide detective “made an undercover call” to defendant and deceptively arranged a meeting for a $140 “session” with him at the Crowne Plaza hotel in Concord. Defendant
Defendant was arrested and taken to the field operations bureau of the sheriff’s department for a very lengthy interview. At first, defendant told the officers that the flutes found in his car trunk belonged to him, and explained that he had called a “flute specialist” to arrange a “tune-up” for the instruments. The officers thereafter informed defendant that the flutes were registered to Neff. Defendant then admitted that he was acquainted with Neff, and claimed he “broke in” and stole the flutes, laptops and a bag the Sunday before the victim’s death. Defendant also acknowledged that Neff was his “client.”
When presented with information that Neff’s flutes and other items were not taken on the Sunday before the victim was killed, defendant briefly continued to deny that he was associated with Neff’s death. He subsequently informed the officers that he was “gonna tell” them “what happened.” Defendant admitted that he strangled Neff after the victim told him “he might have AIDS.” Defendant said that he slapped Neff, pushed him “very hard” to the ground, and grabbed him around the neck until he noticed “saliva coming out of his mouth.” Defendant’s account of the killing of Neff given to the officers essentially paralleled his testimony at trial. Defendant told the officers that he did not “want to kill” or even “hurt” Neff, although he realized he “did a terrible thing to him.”
DISCUSSION
Defendant’s sole contention is that the trial court erred by admitting demonstrative evidence in the nature of a courtroom reenactment of the strangling of the victim. During cross-examination of defendant, the prosecutor asked him to “show us how you killed” the victim. Defense counsel objected to “a demonstration,” and the prosecutor indicated that he intended to portray the victim, and take defendant through the act of strangulation. The prosecutor argued that the proposed demonstration by defendant of “exactly what he did” was not “irrelevant or unduly prejudicial, pursuant to section 352,” and had a “direct bearing on [the] central issue in this case, which is intent to kill.” Defense counsel again objected to the absurd “theatrics,” and concurred with the court that he was raising a “352 objection.” Counsel
When the prosecutor returned to court with a female mannequin wearing a blue dress, a pink ribbon, and a hat, defense counsel repeated a “352 objection to this thing that’s in the courtroom.” Counsel acknowledged his prior statement of accession to use of a mannequin, but pointed out that the female mannequin was “different” than the allegation of “strangling a man, a full-grown man.” The court urged defense counsel to “disrobe her” and “take off the hat,” the hair, and the pink ribbon. When that was done, defense counsel declared, “I still object, but that’s better.” The court denied defendant’s request for a “402 hearing” on the matter, and declared that “we can just have him demonstrate to the extent he can” the strangulation of the victim. The prosecution proceeded to do just that. During the protracted demonstration, defendant was directed by the prosecutor and the court at different times, over his own objections and that of his counsel, to stand in certain positions, take a strap from a trash can in the district attorney’s office, place the strap around the mannequin’s neck, and apply force, as his acts were described for the jury. Basically, defendant was “led” by the court or prosecutor on what to do during the courtroom demonstration.
Defendant argues that evidence of the strangling demonstration had “virtually no probative value” to prove intent to kill or demonstrate the credibility of his testimony. He points out that the lack of “substantial similarity” between the “actual incident” and the “in court demonstration” distorted the jury’s evaluation of his emotional state when the killing occurred, to the detriment of his heat of passion claim. Defendant also maintains that the context of the demonstration in the courtroom was inflammatory and prejudicial to the defense. The in-court presentation had the potential of shifting jury focus from the evening of the homicide towards the unscheduled and unanticipated but court-approved “reenactment” of the crime in the courtroom, complains defendant. He therefore maintains that the trial court abused its discretion under Evidence Code section 352 (section 352) by admitting demonstrative evidence that was more prejudicial than probative.
I. The Claim of Lack of an Objection at Trial.
We first consider the Attorney General’s claim that defendant forfeited the section 352 objection on appeal by failing to offer an objection on that ground in the trial court. We agree that a challenge to the admission of evidence must be made at trial or is considered forfeited on appeal. (See People v. Jablonski (2006)
Defendant submits that his counsel properly offered a section 352 objection at trial. The record before us presents a rather puzzling sequence of events in which defense counsel offered a section 352 objection to a proposal to reenact the crime through simulated strangulation of the prosecutor by defendant, but seemed to assent to use of a mannequin instead. When the prosecutor subsequently presented a dressed female mannequin to be strangled by defendant, counsel explicitly reiterated a “352 objection” to the lack of similarity between the mannequin and alleged strangulation of Neff, “a full-grown man.” The mannequin was disrobed, whereupon counsel again objected, but acknowledged that an undressed mannequin was “better” than one in women’s clothing. The court then denied defendant’s request for an Evidence Code section 402 hearing, and directed defendant to demonstrate on the mannequin the manner in which he dispatched Neff.
We are persuaded that defense counsel’s series of objections, while perhaps not as detailed or precise as possible—understandable given the rather peculiar nature of the proffered evidence—was at least adequate to apprise both the trial court and the prosecution of the grounds for challenging the demonstrative evidence that are presented in this appeal. The essence of defendant’s ultimate challenge to the evidence was that the proposed demonstration with the “mannequin of a woman was different” than the alleged murder and was prejudicial. In light of the prior explicit section 352 objections the court was fairly informed of the analysis required before admitting the evidence. (People v. Partida (2005)
II. The Admission of the Demonstrative Evidence.
We thus proceed to examine whether the probative value of the demonstrative evidence was “ ' “substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)’ [Citation.]” (People v. Foster (2010)
On appeal, we review the trial court’s ruling on the admissibility of the evidence for abuse of discretion. (People v. Thornton (2007)
“Evidence of demonstration engaged in to test the troth of testimony that a certain thing occurred is admissible only where (1) the demonstration is relevant, (2) its conditions and those existing at the time of the alleged occurrence are shown to be substantially similar and (3) the evidence will not consume undue time or confuse or mislead the jury. [Citation.] The party offering the evidence bears the burden of showing that the foundational requirements have been satisfied.” (People v. Gilbert (1992)
The probative value of evidence of the reenactment of a crime depends primarily on its similarity to the events and conditions that existed at the time of the crime. (People v. Rodrigues (1994)
Here, the demonstrative evidence was offered to prove malice and “intent to kill” the victim. The Attorney General also suggests that the evidence was probative “to fill gaps” in defendant’s testimony, particularly details of the strangling that defendant could not recall in his testimony.
Defendant admitted the killing and contested only the element of malice and, to a much lesser degree, intent to kill. His defense was that the killing
Malice and intent to kill were convincingly established by defendant’s testimony. Defendant acknowledged that after he discovered a call from the San Francisco “AIDS department,” he “hated” Neff and strangled him a second time with a plastic strap until he was sure the victim could not breathe any longer. Defendant also testified that he realized Neff was dead, and “didn’t care.” Not only did defendant’s verbal account of the killing convincingly disclose his specific intent to kill, but a physical reenactment of the strangulation added nothing to the proof of intent or malice. Nor did the demonstrative evidence contribute any insight into the credibility of defendant’s testimony. The demonstration did not alter any inconsistencies in defendant’s testimony or affect his lack of recollection of the particulars of the killing. Essentially, the strangulation demonstration was merely cumulative evidence that had exceedingly slight probative value on the crucial issues presented at trial. (People v. Evers (1992)
The minimal probative value of the evidence was diminished further by the absence of similarity of both the setting and circumstances of the demonstration. A courtroom is hardly the appropriate venue to attempt to recreate and prove the manner of commission of a murder by strangulation. The setting was entirely dissimilar, lacking in the dimensions, configuration and the furniture that was present in the victim’s home. Further, the use of a small, disrobed, wigless, lifeless female mannequin rendered the exhibition almost derisory, with the spectacle of defendant throttling a nonsentient, plastic entity that bore little physical likeness to the large male victim, all as orchestrated by the prosecutor. The acts of the victim were not reproduced. The emotion associated with the strangling, which was an integral part of the defense, was entirely missing from the demonstration. But for the seriousness of the charge, the courtroom events were suggestive of a slapstick parody. We recognize that the use of mannequins as illustrative evidence has been approved to assist the jury in understanding the testimony of witnesses or to clarify the circumstances of a crime, even if the evidence is cumulative. (See People v. Williams (1997)
Turning to the prejudicial impact of the evidence, we find that a demonstration of the murder by defendant in court, before the jury, was inflammatory. It is one thing for the jury to hear a defendant’s verbal account of a murder. Watching the defendant strangle a substitute for the victim is more likely to inflame the emotions of the jury and evoke an emotional bias, while having exceedingly negligible probative value, if any, on the issues.
We find that the prejudicial effect of the evidence, while not great, exceeded its comparatively inconsequential probative value. We therefore conclude that the trial court abused its discretion by admitting the strangling demonstration evidence.
HI. The Error Was Not Prejudicial.
We conclude that the error does not require reversal of the judgment. The governing standard is whether it is reasonably probable the jury would have reached a different result had the demonstrative evidence been excluded. (People v. Carter, supra,
As for the claim of a killing in the heat of passion, defendant was required to establish that he strangled the victim “without malice ‘upon a sudden quarrel or heat of passion.’ [Citations.] Under that theory, an unlawful killing is voluntary manslaughter ‘ “if the killer’s reason was actually obscured as the result of a strong passion aroused by a ‘provocation’ sufficient
Defendant’s claim of heat of passion due to disclosure of Neff’s HIV exposure was subject to serious dispute without the strangling demonstration, given his conduct in returning to attack the victim a second time, stealing the victim’s property, setting fire to the residence, and failing to obtain HIV testing or refrain from subsequent sexual conduct. And even if his testimony was accepted by the jury, it did not establish adequate provocation to produce heat of passion in a reasonable person. In short, the evidence that defendant committed an act of first degree murder rather than voluntary manslaughter was overwhelming.
Finally, despite the rather absurd, indecorous courtroom spectacle of defendant strangling a female mannequin at the prompting of the prosecutor, we do not find that the demonstrative evidence was prejudicial to the defense. As we have noted, the strangling reenactment was merely a visual repetition of defendant’s testimony. The demonstration was entirely cumulative, and did not in any way compromise his defense by introducing new inculpatory evidence of malice or intent. The evidence did not disclose to the jury any information that was not presented in detail through defendant’s testimony and other evidence. (People v. Cole (2004)
Accordingly, the judgment is affirmed.
Marchiano, P. J., and Margulies, J., concurred.
Appellant’s petition for review by the Supreme Court was denied February 22, 2012, S198644.
Notes
In Williams and Cummings, respectively, experts impaled mannequins with knitting needles and plastic dowels to demonstrate bullet trajectories.