P. v. Mendez
Defendant Raymundo Mendez was convicted of assault with personal use of a firearm. The chief defense was mistaken identity. Three eyewitnesses identified defendant as the assailant. One eyewitness said defendant was wearing a blue shirt with no vest or jacket at the time of the assault. When defendant was stopped by police a few minutes later, he was wearing a jacket. Another eyewitness said defendant was wearing a blue shirt and a vest, and an investigating officer noted in her report defendant was wearing a vest. The only claimed error on appeal is the court erred in allowing the arresting officer, who was called as a defense witness, to testify on cross-examination that it is common for people who commit gun crimes to change clothes after the crime and discard the gun. Defendant argues this evidence was irrelevant and inherently prejudicial “profile†evidence.
Defendant waived this claim by failing to object at trial on the ground the evidence was irrelevant or prejudicial. In any event, we find no merit to the claimed error. Courts have condemned the prosecution’s use of expert testimony to describe the method and means of a particular type of criminal to commit a particular type of crime as evidence that, since the charged crime shares the same or similar characteristics, the defendant must also be guilty of committing the same crime. The brief cross-examination of the arresting officer in this case does not come close to falling within this prohibited category of profile evidence.
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