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P. v. Hall

P. v. Hall
15/03/14





P




 

 

P. v. Hall

 

 

Filed 10/15/13  P. v. Hall CA4/2

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule
8.1115(b).  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.

>.


 

 

IN THE COURT
OF APPEAL OF THE STATE OF
CALIFORNIA>

 

FOURTH
APPELLATE DISTRICT


 

DIVISION TWO

 

           

 
>






THE
PEOPLE,

 

            Plaintiff and Respondent,

 

v.

 

BLAIR
CHRISTOPHER HALL,

 

            Defendant and Appellant.

 


 

 

            E054107

 

            (Super.Ct.No. BAF005572)

 

            O P I N I O N

 


 

            APPEAL
from the Superior Court of Riverside
County
.  Gary B. Tranbarger,
Judge.  Affirmed. 

            Patrick
Morgan Ford for Defendant and Appellant.

            Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, and A. Natasha Cortina, Heather M. Clark, and Anthony Da
Silva, Deputy Attorneys General, for Plaintiff and Respondent.

            Defendant
Blair Christopher Hall was charged with the first degree murder of his wife of
29 years, Cristi Hall.  (Pen. Code,
§ 187, subd. (a).)  After a jury
deadlocked eight to four in favor of conviction and a mistrial was declared, a
second jury found defendant guilty of the murder, and the trial court sentenced
defendant to 25 years to life in prison. 
On this appeal, defendant
essentially raises four claims of evidentiary error and further claims that the
evidentiary errors were both individually and cumulatively prejudicial.  We conclude that all of the challenged
evidence was properly admitted, and affirm the judgment. 

            Defendant
has petitioned for a writ of habeas corpus in case No. E056812.  We ordered the href="http://www.mcmillanlaw.us/">writ petition considered with this
appeal.  By separate order, we summarily
deny the writ petition. 

I.  BACKGROUND

The prosecution claimed that,
shortly after 6:30 a.m. on June 7,
2007, defendant forcibly drowned his wife Cristi in the family’s href="http://www.sandiegohealthdirectory.com/">backyard spa.  The defense claimed that Cristi accidentally
drowned after hitting her head on the edge of the spa. 

A.  Prosecution’s Case-in-chief

            On
June 7, 2007, Lindsay
Patterson was on leave from the Navy and staying with her mother, Sharon Lopez,
in Lopez’s house in Calimesa.  The
backyard of Lopez’s house abutted the backyard of the house where defendant,
his wife Cristi, and their eldest daughter Courtney lived.  The yards were separated by a common
wall.  Before June 7, neither Patterson
nor Lopez had ever had any contact with the Halls.  The Halls had lived in their house since
2004. 

On June 7, defendant and Cristi
were having their master and guest bathrooms remodeled and combined into one
larger bathroom.  The contractor had
removed the showers and tubs, and on the morning of June 7 the Halls and Courtney
were planning to bathe outside in the family spa.  The contractor was scheduled to arrive around
6:45 a.m. 


Cristi came to Courtney’s room
sometime between 6:00 a.m. and 6:15 a.m. to wake her. 
Cristi was in her bathing suit and told Courtney that she and defendant
were on their way out to the spa.  Cristi
asked Courtney whether Courtney was going to join them in the spa, and Courtney
said she would bathe at her grandparents’ house later that day.  Courtney stayed in bed until defendant later
came by and roused her. 

Patterson awoke at 6:00 a.m.  After
waking, she sat on her mother’s back patio, drinking coffee and smoking a
cigarette.  After 5 to 10 minutes, she
went inside and used the bathroom next to the front door of the house.  The bathroom window was open and looked
toward the street in front of the house. 
Through the bathroom window, Patterson heard an adult woman scream, and
the scream sounded panicked.

The scream frightened
Patterson.  A minute later, she walked
out of the bathroom and toward the front door. 
At that point, she saw Lopez on the back patio and did not open the
front door but went to Lopez and asked her whether she heard the scream.  Lopez said she heard the scream. 

Lopez had been asleep in her
bedroom at the back of her house, which looks out onto her backyard.  Her bedroom door was open.  Around 6:30 a.m., Lopez was
awakened by a loud scream or screaming. 
She immediately got out of bed and walked down the hallway that led out
to her patio.  The sliding glass door to
the patio was open, and she walked out onto the patio.  After a couple of seconds, she heard some
splashing, thumping, and loud grunting sounds coming from the Hall
residence.  The sounds stopped just
before Patterson came to the sliding glass door. 

Lopez told Patterson that she
heard the scream, and thought that kids were playing in the Halls’ pool.  Lopez then went inside her house for some
coffee and noted that the atomic clock on her mantel read 6:32 a.m.  After
discussing with Lopez where the scream came from, Patterson walked onto the
patio and listened, because she was still curious about where the scream came
from. 

After listening for a minute or
so, Patterson walked over to the wall separating the Lopez and Hall yards
because she heard a “gurgling sound,” as if someone had swallowed too much
water.  She looked over (or through) the
wall and clearly saw the spa area in the Halls’ backyard.  She saw defendant in the spa, leaning over
and holding Cristi’s face down in the water, with his right hand on her head
and his left hand on her back.  Patterson
saw the right side of defendant’s body as he was leaning over Cristi.  Patterson initially thought the couple might
be engaged in a sex act because Cristi’s head was bent down between defendant’s
legs. 

After looking over the wall for
around 30 seconds, Patterson walked back to the patio where Lopez was drinking
coffee and told Lopez what she had seen. 
Lopez told her not to worry about it and it was probably nothing.  About 90 seconds after she left the wall,
Patterson went back to the wall and looked into the Halls’ backyard a second
time.  This time, she saw defendant
sitting alone in the spa, leaning back against the wall with his elbows on the
brick and looking around. Patterson did not see Cristi.  She went back to Lopez and told Lopez that
she did not see the woman anymore. 
Patterson was concerned because she did not believe enough time had
passed for Cristi to get out of the spa and walk inside the house.  Lopez told Patterson to stop being nosy and not
to worry about it. 

Still concerned, Patterson went
back to the wall and looked into the Halls’ backyard a third time.  This time, she saw defendant step out of the
spa and dry off with a towel as he walked around in a hurried manner.  He put on some slip-on shoes, and looked
toward the spa as he walked toward the wall where Patterson was looking toward
him.  Defendant looked angry and “as if
he was in his own world and disconnected from anything.” 

When defendant walked towards
her, Patterson loudly called out, “Sir? 
. . . Excuse me, sir?” a couple of times.  Despite her calls, defendant did not look in
Patterson’s direction.  Patterson watched
defendant walk to his house, stop at the mat at the back door, and continue to
dry himself with a towel. 

Patterson had a “gut feeling”
something was wrong.  She again went back
to Lopez and told her to call 911.  Lopez
ran inside, grabbed the telephone, and called 911.  Lopez brought the telephone to Patterson, on
the patio, and Patterson spoke with the 911 operator.  During the call, Patterson relayed to the
operator “in real time” some things she heard coming from the Halls’ yard, such
as a man yelling, “[t]ake her out.”

Courtney was looking at her alarm
clock at 6:37 a.m. when defendant came to her room,
knocked on the wall, and told her to get up because the contractors would soon
be there.  Around 30 seconds after he
left her room, Courtney heard defendant scream. 
She ran to the back sliding glass doors and saw defendant sitting on the
concrete ledge of the spa with his feet in the spa and his arms under Cristi’s
armpits, pulling her out.  Defendant told
Courtney to “[c]all 911.  Hurry,” and
Courtney did so.  While on the telephone
with the 911 operator, Courtney helped defendant pull Cristi out of the spa.  Defendant was wearing shoes when he got out
of the spa. 

After helping defendant pull
Cristi out of the spa, Courtney ran through the house, threw her telephone on
the living room sofa, opened the front door, ran outside to open the front
gate, and ran back through the house to the spa.  When she got back to the spa, defendant was
kneeling over Cristi but had not performed cardiopulmonary resuscitation
(CPR).  Courtney began chest compressions
while defendant gave breaths.  At this
point, Cristi was blue, her eyes were dark, and there were no signs that she
was still alive. 

Courtney called 911 a second time
because it seemed like it was taking a long time for responders to arrive.  She used her mother’s cell phone which was
lying on the ledge of the spa.  It was
her parents’ general practice to bring a cell phone with them when they used
the spa.  Courtney was outside and still
on the telephone with 911 when the first responders arrived. 

At 6:46
a.m., Eric Norwood, a firefighter and emergency medical technician (EMT),
and his captain were the first responders to arrive at the Hall house.  Norwood and his
captain each administered CPR to Cristi. 
They also moved her body a couple of feet to a dry area so they could
use defibrillator pads.  They were not
able to get any vital signs. 

Marc Woodward, a paramedic with
American Medical Response, arrived at the Hall house at 6:48 a.m.  He found
Cristi cool to the touch, with no pulse or heartbeat.  The fire department continued CPR while
Woodward created an advanced airway for Cristi by intubating her.  Woodward also inserted an I.V. on the top of
Cristi’s right hand.  Cristi was placed
on a backboard on the ground, lifted to the stretcher, and taken to the
ambulance.  She was not dropped, and no
injury occurred to her body while Woodward was present.  Nor did any bruising likely occur to Cristi’s
mouth as a result of the intubation. 

Photographs of defendant taken on
June 7, 2007, showed
injuries to his right bicep, chest, right leg, left foot, right foot, and on
the toes of both of his feet. 
Defendant’s DNA matched DNA in fingernail clippings taken from
Cristi.  A white metal earring and a hair
clip with a large clump of hair were found at the bottom of the spa.

Courtney looked after many of the
family’s financial responsibilities after Cristi’s death.  Only a couple of weeks after Cristi’s death,
Courtney discussed disconnect notices and late notices on bills with
defendant.  In 2004, defendant and Cristi
took out life insurance policies; the value of defendant’s policy was $1
million and the value of Cristi’s was $750,000. 
Following his arrest in this case, defendant relinquished his rights as
the primary beneficiary of Cristi’s policy, and the proceeds of the policy were
paid to his and Cristi’s three daughters, Courtney, Briana, and Ashtin. 

The prosecution presented the
testimony of two experts, Andrea Zaferes and Dr. Mark McCormick, who opined
that Cristi’s drowning was not an accident but a homicide.  Zaferes testified first, followed by Dr.
McCormick. 

1.  Andrea Zaferes’s Testimony

For seven years before trial,
Andrea Zaferes had worked as a “medical legal death investigator” for the
Dutchess County Medical Examiner’s office in New York.  Zaferes testified as an expert on drowning
deaths, and opined that Cristi’s death was not an accidental drowning. 

According to Zaferes, the
Association of Pool and Spa Professionals estimated that there are six to seven
million spas and hot tubs in the United
States, and the Consumer Safety Product Commission reported
15 cases of people who slipped, fell, and drowned in a spa or hot tub between
2003 and 2007.  Of those 15 drowning
cases, only three involved an adult hitting their head and drowning.  Zaferes also opined that head injuries in
drowning cases typically occur to the front of the head, and the biggest risk
factors for spa-related drowning are intoxication, cardiac and seizure
conditions, and age (i.e., toddlers and the elderly). 

Zaferes went to the Hall home and
got into the spa.  Mimicking an unconscious
person under water, she let herself go limp and exhaled the air from her
lungs.  She did this several times and
sank to the bottom each time.  She opined
that if a person drowned in the spa, their head and entire body would be on the
bottom of the spa.  

Zaferes examined defendant’s
injuries, and opined that the injuries on his right foot and chest did not
occur when he performed CPR on Cristi. 
Zaferes had given CPR and had seen CPR performed hundreds of times by people
who were barefoot and working on gravel, sand, docks, cement, pool decks, and
other types of environments, and had never seen a foot or chest injury like
defendant’s occur as a result of performing CPR. 

Zaferes also examined Cristi’s
injuries.  Visual inspection revealed the
presence of petechial hemorrhages, which Zaferes explained are little spots
visible on the skin due to capillaries rupturing from pressure.  Zaferes noted that the presence of petechia
is extremely rare in drowning cases, and their presence suggests the drowning
death was not accidental.  She had never
seen a drowning victim with as much petechia as on Cristi’s body.  She also opined that the two injuries on
Cristi’s head could not have come from a single blow. 

There was a bruise on only one
side of Cristi’s nose, and Zaferes had never seen a similar contusion result
from squeezing a person’s nose during CPR. 
A large clump of Cristi’s hair was found in the hair clip at the bottom
of the spa.  Zaferes had seen people
removed from pools hundreds of times and had read hundreds of articles and
police reports, but had never seen or heard of a clump of hair torn from a
person’s head during the removal process. 
Lastly, people who are in the process of drowning cannot scream, but may
make “gurgling noises.” 

            2.  Dr. McCormick’s Autopsy, Findings, and
Opinion


On June 8, 2007, Dr. Mark McCormick, a forensic pathologist for
the Riverside County Sheriff-Coroner’s office, performed the autopsy on
Cristi’s body.  The coroner investigates
homicides, suicides, accidental deaths, and natural deaths not under the care
of a physician.  In Riverside County, forensic
pathologists are responsible for determining the cause of death (e.g.,
drowning) and deputy coroners are responsible for determining the manner of
death (e.g., homicide or accident). 

On his initial inspection, Dr.
McCormick noticed smeared blood on parts of Cristi’s body, and medical
equipment, including an endotracheal tube in Cristi’s mouth, electrocardiogram
and defibrillator pads on her torso, and intravenous catheters in her
body.  The sheriff-coroner’s office
requests that life-saving medical equipment be left on the body so that they
may distinguish between injuries that occurred before death and those that
occurred as a result of life-saving measures. 


During his external examination
of the body, Dr. McCormick noted a three-inch-long laceration on the left side
of the scalp, one-quarter to three-quarters of an inch deep, and extending down
to the underlying bone.  There was a
smaller laceration toward the back of the head, also on the left side.  Dr. McCormick opined that the two lacerations
resulted from at least two separate blows or blunt force impacts to Cristi’s
head. 

The larger laceration could have
been caused by falling from a standing height onto concrete, or by the head
being driven into the side of a cement Jacuzzi with the force of a 250-pound
man.  The smaller laceration could not
have been caused by the head dropping to the ground if the head was up at an
angle and the back was resting on the ground.  

There were also injuries to
Cristi’s mouth and chin, including an abrasion on the inside of the left side
of her lower lip, a small bruise on the inside of the lip, abrasions on both
sides of the tongue near the top of the tongue, a bruise on the left side
within the muscle of the tongue, and an abrasion under the chin.  Dr. McCormick opined that these injuries were
more consistent with someone engaged in a struggle than an accidental injury or
intubation injuries.  In addition, the
injuries to the mouth showed at least two more areas of impact, and there were
too many points of impact to be explained by a slip and fall. 

Dr. McCormick also noted the
presence of numerous petechial hemorrhages on and in Cristi’s body.  Petechial hemorrhages are small pinpoint
hemorrhages that occur when pressure in the capillaries in the skin become too
great, causing the capillaries to rupture. 
They are most common in the tissues of the head, especially the eyes,
and are a “very rare finding” in accidental adult drowning deaths.  Cristi had petechial hemorrhages on her
cheeks, nose, the white parts of her eyes, the tissue surrounding her eyes, the
inside of her mouth, and on her upper arms and chest. 

Based on the totality of Cristi’s
injuries and his findings, Dr. McCormick concluded that the cause of Cristi’s
death was drowning, but the drowning was not accidental.  The existence of the petechial hemorrhages
alone was insufficient to support his conclusion that the drowning was not
accidental, but “certainly ma[d]e [him] suspicious” that it was not
accidental.  The injuries on Cristi’s
body, together with the number and intensity of the petechial hemorrhages, was
“very important” to his conclusion. 

Dr. McCormick explained that,
although lividity, which is the pooling of blood under the influence of
gravity, can cause petechial hemorrhages, those on Cristi’s body were not
caused by lividity because the lividity in her body was posterior, or in the
back, and was not present in her face. 
In addition, although there is some disagreement in the medical
literature concerning whether CPR can cause petechial hemorrhages, Dr.
McCormick was not convinced that CPR causes petechial hemorrhages because, in
his review of the cases offered as evidence, the people died of things that could
themselves have caused petechial hemorrhages. 
Furthermore, in his experience of performing around a dozen autopsies
per week where more than half of the people received CPR, he rarely saw
petechial hemorrhages and had never seen petechial hemorrhages in someone that
did not have another reason to have them. 
Nor had he ever seen them in any of his drowning cases, and in those
cases half or more of the people had received CPR.

B.  Defense Case

            The defense claimed Cristi
slipped, fell, hit her head, and accidentally drowned in the spa after
defendant went back inside the house to use the restroom.  The defense also presented evidence that
defendant had no motive to murder Cristi because the two of them were happy and
their marital and financial problems were behind them.

1.  Lack of Motive Evidence

Defendant’s daughters, Courtney,
Briana, and Ashtin, and two of Cristi’s five siblings, testified that defendant
and Cristi had “a very good marriage,” got along well, and were very loving and
passionate toward each other.  Defendant
and Cristi had a financially comfortable lifestyle during the last year of
Cristi’s life, and Cristi was happy the week before her death.  During the week before she died, Cristi
talked to Briana about “this being one of the happiest times of her life.” 

            2.  Defendant’s Direct Testimony

            Defendant
testified that when he and Cristi met in 1978 he was in the Air Force working
as a law enforcement specialist.  They
married in 1978 and had three daughters, Courtney, Briana, and Ashtin, in 1984,
1986, and 1988.  Defendant and Cristi
generally enjoyed a healthy marital life, and the last two years of Cristi’s
life were probably the best years of the couple’s marriage.  At the time of trial, defendant still had a
good relationship with Cristi’s parents, and he was still close to Cristi’s
sister Kathy and his brother-in-law Chuck. 


In 1994, defendant retired from
the San Bernardino Police Department and thereafter moved with his family to
Cascade, Idaho, where he
worked for the Cascade Police Department for three years.  He then became the chief of police for the
City of Emmet, Idaho, where he was
ultimately convicted of misusing public funds for personal use, a felony.  He pled guilty and served 10 months in jail
during 2000.  Upon his release, his law
enforcement career was over.

Before defendant’s conviction in
the Idaho case, Cristi
and the girls moved back to California.  Before defendant went to jail, Cristi began
training to become an X-ray technician. 
She continued training during 2000 and 2001, completed her training, and
began working for the County of San
Bernardino at Arrowhead Regional Medical Center.  Defendant and Cristi remained close while
defendant was in jail. 

When defendant was released from
jail at the end of 2000, the family finances were “[r]ough, at best.”  When defendant returned home, he worked a
short time in the auto/boat sales business. 
During 2001 or 2002, he opened his own business performing criminal
background checks for companies on their prospective employees.  His business grew between 2003 and 2005, and
by 2005 the family standard of living was better than ever.  The family’s gross income in 2004 or 2005 was
$295,000.  In 2004 or 2005, Courtney went
to college, followed later by Briana, then Ashtin.  Defendant and Cristi helped each girl pay for
college. 

Defendant testified on direct
that 2007 was the family’s best year financially.  But on cross-examination, he could not recall
the amount of his after-tax income or the amount of income he declared on his
income tax returns for 2007.  He also
admitted that he and Cristi may have had as little as $50,000 in net income
during 2007. 

On June 7, 2007, defendant got up around 4:30 a.m. or 5:00 a.m. to turn on
the spa to get it warm so they could bathe in it because they did not have a
working shower that day.  He went back to
bed, got up again around 5:30 a.m., and called
Briana, who was away at college, to wake her so she could go running.  Cristi also got up around 5:30 a.m., put on her bathing suit, and got ready to get
into the spa.  On their way out to the
spa, Cristi tried to wake Courtney, but Courtney did not go to the spa with
them. 

Defendant and Cristi stayed in
the spa together for around 45 minutes. 
Cristi bathed and put her face into the spa water.  After bathing, Cristi got out of the spa to
get another cup of coffee and use the restroom while defendant sat in the spa
alone for another five minutes. 
Defendant then got out of the spa and walked a few steps around the pool
to look at some soap bubbles that had seeped into the pool from the spa.  He then went inside the house to use the
restroom and was in there for five minutes or so.  It takes 15 to 20 seconds to walk from the
spa to the home.  As he walked out of the
restroom, the door to Courtney’s room was ajar and he pushed it open, hit the
wall, and told Courtney to get up. 

Defendant then walked out to the
backyard again.  He did not know anything
was wrong until he walked up to the pool deck and saw Cristi floating face down
in the spa.  He jumped into the spa with
his shoes on, put his arms under Cristi’s armpits, tried to pull her out of the
water, and yelled for Courtney.  It was
difficult for him to lift Cristi out of the water by himself because she
weighed nearly 200 pounds.  Courtney
helped him pull Cristi out of the spa, and they laid her on the pool deck.  He gave breaths to Cristi while Courtney
performed chest compressions.  Although
his shoes were on when he pulled Cristi out of the spa, he believed he was
barefoot when he administered CPR. 

3.  Defendant’s Testimony Under
Cross-examination


On cross-examination, defendant
admitted that in light of Courtney’s testimony that Cristi came to her room
between 6:00 a.m. and 6:10 a.m., he and Cristi could have gone to the spa
between 6:00 a.m. and 6:10 a.m., not 5:30 a.m., and could not have been in the
spa together for a half an hour, let alone 45 minutes as he testified. 

Defendant claimed that after
Cristi finished washing herself in the spa, she went into the house to get more
coffee, use the restroom, and wake Courtney. 
He passed Cristi in the doorway as he was going inside after using the
spa, Cristi was coming back outside, and Cristi told him she tried to wake
Courtney.  Although he believed Cristi
was going back to the spa after they passed each other in the doorway, he did
not ask her why she was going back to the spa after she had already washed
herself and the spa water was now dirty. 


When he passed Cristi on his way
back to the spa, defendant was going into the house to use the bathroom.  While in the bathroom, that looks out to the
spa area, he never heard any splashing, did not hear anyone scream, and did not
hear any other sounds coming from the spa area. 


When asked whether he did
anything that might look as though he was holding Cristi under water, defendant
said that Cristi “may” have been washing her face by dunking it into the
spa.  But during the police interview, he
never provided this explanation to the detectives, despite being asked to
explain why it would look like his wife’s face was under water.  During the police interview, he never
mentioned that Cristi’s face was in the water at any time. 

Defendant did not use the cell
phone by the spa to call 911, but called Courtney out to the yard to call
911.  He did not recall whether he began
giving Cristi CPR right after he and Courtney got Cristi out of the spa, but he
admitted he performed no chest compressions even after Courtney left the spa
area to open the front door and gate for the first responders.  He did not have any injuries on his feet
before June 7, and claimed he must have incurred the injuries when he was
giving breaths to Cristi. 

4.  Dan Witte’s Testimony 

Dan Witte testified that, in May
2007, he contracted with defendant and Cristi to remodel their bathrooms into
one large bathroom.  On June 7, Witte was
scheduled to arrive at the Hall house around 7:00
a.m. to begin work for the day.  At
that time, he had been working on the Hall house for around two weeks, and
defendant and Cristi seemed to get along well. 
They did not argue and readily agreed about questions concerning the
remodel.  Witte admitted that, before
June 7, defendant gave him a check for $5,000, but before Witte attempted to
deposit the check he discovered that the bank account on which it was drawn had
insufficient funds to cover it, and he was never paid for any of his work.

5.  Expert Testimony Regarding
the Source of the Scream


Two of the Halls’ neighbors
testified they did not hear a woman scream on the morning of June 7, 2007. 

Genevieve Heckman, Ph.D., a human
factors expert, concluded that the source of the scream Patterson and Lopez
heard did not come from Cristi, and that Patterson could not have seen
defendant holding Cristi under water. 
Dr. Heckman generally testified that people can misidentify sound if the
context in which it is heard is misleading; memories can be distorted by
recalling an event multiple times; distance affects ability to perceive facial
expressions; people tend to overestimate the duration of events they
experience; and distance affects depth perception. 

Dr. Heckman performed a vantage
point study at the Hall residence to demonstrate the principle that the larger
the distance from point A to point B, the larger the compression of depth to
the observer.  Dr. Heckman took two sets
of pictures of her assistant posing in the spa with a mannequin.  The first set of pictures was taken from the
wall separating the Hall and Lopez houses and showed the person and the
mannequin in the spa, positioned in three different distances from one
another.  The second set of pictures was
taken from a closer vantage point and showed that when the figures appeared to
be touching from the farther vantage point, they actually were not.  Dr. Heckman admitted that the two sets of
pictures were not taken at the two vantage points simultaneously, thus
permitting the mannequin to shift or drift while she walked from one vantage
point to another. 

6.  Dr. Frank Sheridan’s Expert
Testimony That Cristi Accidentally Drowned


Dr. Frank E. Sheridan, a forensic
pathologist and the chief medical examiner in the coroner’s division of the San
Bernardino County Sheriff’s Department, testified for the defense that Cristi’s
death was consistent with an accidental drowning, but he could not rule out the
possibility that the death was a homicide. 


During the course of his career,
Dr. Sheridan had performed many autopsies on drowning victims, and had rendered
opinions that certain drownings were accidental and others were homicides.  He reviewed the autopsy report prepared by
Dr. McCormick, photographs taken of Cristi at the hospital and during the
autopsy, police reports, witness statements, and prior testimony in the
case.  He also went to the Hall home and
observed the spa, and observed that it was “a very dangerous spa.”  The spa had no handrails and stairs leading
down into it, raising the possibility of falling, and there was a larger
distance down to the second step than to the first step.  In addition, one of the corners of the spa
protruded toward the center and was opposite to the stairs leading down into
the spa. 

Dr. Sheridan agreed with Dr.
McCormick that the cause of Cristi’s death was drowning, but opined that the
severity of the larger laceration to her head was consistent with the force
involved in a fall from a standing position, or with her falling and hitting
her head on any edge of the spa.  The
injury “[a]lmost certainly” would have rendered Cristi unconscious.  The injuries to Cristi’s mouth, torso, and
ribs also could have been caused by a fall, taking her out of the spa, or
efforts to resuscitate her.  Dr. Sheridan
admitted, however, that the two lacerations to Cristi’s head were not caused by
the same impact. 

Dr. Sheridan believed that the
petechia in Cristi’s body was caused when she died face down and tilted with
her head lower than her feet and toward the bottom of the spa.  Given the configuration of the spa, he opined
that if Cristi fell, then her feet would have been held up by the seating tiers
and her head would have been lower than her feet.  He was not aware that defendant testified he
found Cristi with her head floating close to the surface of the water. 

C.  Prosecution Rebuttal

            1.  Dr. Craig Nelson’s Expert Rebuttal
Testimony


            Dr. Craig Nelson, a forensic pathologist
and the deputy medical examiner for San Diego County, examined the
autopsy report, coroner’s investigation, photographs taken at the scene,
hospital, and autopsy, and other evidence in the case, and concluded that the
cause and manner of Cristi’s death was drowning by homicide.  Like Dr. McCormick, Dr. Nelson believed there
were too many injuries in different locations on Cristi’s body to be consistent
with a slip and fall and subsequent drowning. 
The two lacerations on Cristi’s head were not caused by a single fall,
and the larger one was consistent with someone taking her head and slamming it
into the side of the spa.  Further,
petechial hemorrhages are not normally present in accidental drownings, and the
number of petechial hemorrhages on Cristi far exceeded what would be expected
from resuscitation efforts. 

2.  The Police Officers’
Rebuttal Testimony (Defendant Not Honest)


Raymond Chopko, a police
detective in Idaho, met defendant in Cascade, Idaho in 1996, considered himself
a friend of defendant’s, and got to know defendant fairly well between 1996 and
2000.  They worked together in law
enforcement for nearly two years, their daughters attended the same school, and
their families socialized with each other, including on weekends.  Based on his professional and personal
experiences with defendant, Detective Chopko opined that defendant was
“probably the biggest con man I’ve ever met in my life.”  On cross-examination, Detective Chopko
admitted he had not spoken with defendant since 1998. 

Jerald Winkle worked for the Los
Angeles Police Department for 23 years and retired as a lieutenant.  He met defendant in Idaho when he and
other police officers, including Detective Chopko and ex-police officers like
himself, met to play cards and have dinner. 
Winkle was a friend of defendant and his family when they lived in Idaho, around 15
years before trial.  Based on his
relationship with defendant, Winkle opined that defendant was “not honest,” and
he was ashamed “to bring up the fact that [defendant] was [or had been] a
police officer.”  Like Detective Chopko,
Winkle had not spoken to defendant since 1998, when defendant left Idaho. 

3.  Rebuttal Testimony of
Cristi’s Friends and Coworkers


            Cynthia
Rojas was one of Cristi’s coworkers and friends.  Rojas had known Cristi for about a year
before her death and took breaks with her at work.  When Rojas first met Cristi, she was “happy,
bubbly,” and “outgoing,” and would say “good morning” to everyone.  About three weeks before Cristi’s death,
Rojas noticed a “big difference” in Cristi’s personality; she became “very
quiet.  She looked sad” and “anxious,”
and was “moody.”  Rojas had not seen
Cristi act moody prior to the three weeks before her death. 

            Leticia
Valenzuela was also friends with Cristi at work and knew her for about three
years before her death.  During the week
before Cristi’s death, Valenzuela noticed a significant change in Cristi’s
personality.  Cristi became very serious,
appeared to have a lot on her mind, and stopped greeting people when she
arrived at work.  Contrary to her normal
disposition, she did not appear happy and seemed upset at something.  Normally, Cristi would greet everyone and was
friendly. 

            Taffy
McDowell was also Cristi’s friend and coworker. 
They took their breaks and lunches together.  When McDowell first met Cristi, Cristi was
happy-go-lucky, cheerful, outgoing, caring, and kind.  One time when she had lunch with Cristi,
McDowell complimented Cristi on her family and her relationship with her
husband.  In response, Cristi “said at
one point in time [Cristi did not say when] it had got that bad where they were
contemplating divorce.”  McDowell also
noticed a big change in Cristi a week or two before her death; she was
introverted, was “distant” to everyone, and seldom came out of her office.  McDowell said “it looked like the life had
been sucked out of her[.]” 

            Julie
Dietel was “best friends” with Cristi and had known her since 1999.  When they first met, Cristi was always in a
good mood and could make anyone laugh, and have a good time.  Between 2006 and 2007, Dietel spoke with
Cristi on the telephone almost every day. 
About six months before Cristi’s death, Dietel noticed that Cristi’s personality
changed; she was unhappy and in a bad mood. 
Dietel asked Cristi what was wrong, and Cristi told her she was mad at
their boss.  Dietel did not believe that
what was affecting Cristi was work-related, however.  On cross-examination, Dietel said she
believed Cristi’s marriage to defendant was “great” up until the time Cristi
died; they appeared to love each other. 

III.  DISCUSSION

A.  Issues Concerning Andrea Zaferes’s Expert Qualifications and Testimony

Andrea Zaferes testified as an
expert for the prosecution on water-related deaths, and opined that Cristi’s
drowning death was a homicide, not accidental. 


Defendant essentially raises two
claims concerning Zaferes’s testimony. 
He claims the court erroneously failed to conduct a hearing outside the
presence of the jury and before Zaferes testified to determine whether Zaferes
was qualified to testify as an expert on whether water-related deaths were
homicides or accidents.  Second, he
claims Zaferes was not qualified to render “an expert medical opinion” that
Cristi’s drowning death was nonaccidental because she was not a medical
doctor.  Neither claim has merit. 

1.  Relevant Background

            (a)  The
Settled Statement Hearing


On March 2, 2012, and at the request of appellate counsel, the
court held a settled statement hearing to settle or determine the content of
certain unreported, in-chambers discussions that were not later summarized on
the record.  (Cal. Rules of Court, rule
8.137.)  During the hearing, the court
and parties agreed that, before Zaferes testified, defense counsel objected to
her testimony on two grounds:  (1) she
was not qualified to testify as an expert on whether Cristi’s drowning death
was accidental or intentionally caused, and (2) whether a drowning death was
accidental or intentionally caused is not a proper subject for expert opinion.

At the hearing, the court
said:  “I do believe the issue came up,
which was, not only she, as an individual, wasn’t qualified, and I believe what
we said is, [w]ell, I’m going to have to hear her.  And I couldn’t make a decision and didn’t
make a decision in chambers.  And I did
hear her and made a decision she was qualified. 
[¶]  And as for the issue that no person could
opine such things, again, I said, I have to hear her.  So I did hear her, and I did permit her to
give the opinions.  So I don’t know—if
you just want the record to reflect that the issues were raised so there’s no
waiver on appeal, I have no problem with that.” 
The prosecutor agreed that the defense had preserved the issues for
appeal. 

Defense counsel than added:  “There were objections made that I had made
during the testimony even though we had discussed in chambers that the defense
would object to this.  The thing is at
the time that I made the objection, I didn’t make a long record as we had
already discussed at length the reasons why we thought the objections were
valid.  So I tried to preserve the issue
as best I could by objecting at trial but didn’t in front of the jury make a
long record because of the conversations we had had in chambers, and I explained
that to [appellate counsel].” 

During the settled statement
hearing, defense counsel at no time asserted that he asked the court to conduct
a hearing, outside the presence of the jury and before Zaferes testified, to determine whether Zaferes was
qualified to testify as an expert on any issue. 
To the contrary, based on defense counsel’s comments during the settled
statement hearing, it appears that he was satisfied to challenge Zaferes’s
expert qualifications, or take her on voir dire, when she testified before the
jury. 

            (b)  Zaferes’
Qualifications


At trial, the prosecutor called
Zaferes as a witness and, before eliciting any expert opinions, examined her at
length concerning her background, and qualifications.  Zaferes was currently employed as a “medical
legal death investigator for the Dutchess County Medical Examiner’s office in New York,” and had
been for seven years.  She had worked as
an EMT for 19 years, and had a bachelor’s degree in psychology.  As an EMT, she administered CPR over 30 times
and worked on cases involving head lacerations, mostly from car accidents, some
falls, and a few assaults.

As a medical-legal death
investigator, whenever there was a “reportable death” in Dutchess County, Zaferes was
responsible for determining whether the medical examiner’s office investigated
the death to determine whether it was a homicide or suicide.  Her duties included visiting the scene of the
death to examine the body and the scene, reviewing witness statements,
interviewing law enforcement and medical personnel, and writing a report.  She had “worked over 600 deaths” and had been
“on 150 to 160 death scenes.”  She also
taught detectives how to interview witnesses “for specific water-related
incidents.” 

Around 20 years before trial,
Zaferes helped found, and continued to work with, an organization called
“Riptide,” that assisted law enforcement agencies and families in investigating
water-related deaths and bodies found in water. 
For Riptide, she reviewed materials, asked questions, and helped
determine whether the water-related deaths were homicides, suicides, or
accidents. 

She had worked on over 100
homicidal drowning investigations and had spent hundreds of hours on 30 to 40
of those cases.  At any given time, she
was working on two to three homicidal drowning cases.  She regularly kept herself informed of the
latest research and trends in the field of water rescues and homicidal
drownings. 

She also taught “water rescue”
for a company called Lifeguard Systems; taught fire, police, military and U.S.
Coast Guard personnel “how to find bodies and evidence in the water” and “how
to process water-related scenes”; and worked pro bono as “the water consultant”
for the National Center for Missing
and Exploited Children.

Since 1987, she had taught
“hundreds and hundreds of people” how to perform CPR in water-related
conditions, including how to get a person out of a pool, ocean, or lake and
onto a dock, boat, or beach, and perform CPR in those conditions.  In addition, she taught “well over a thousand
law enforcement and death investigators in a 24-hour or 16-hour program [she]
created called Body Found in Water in Homicidal Drowning Investigations.” 

She was an associate member of
the National American Medical Association, the International Association of
County Coroners and Medical Examiners, the American Academy of Forensic
Sciences, the New York State Coroners and Medical Examiners Association, the
Water Safety Congress, and “a few other smaller water and forensic related”
organizations.  She had spoken “at over
77 aquatic and medical conferences,” and “at over 33 forensic conferences for
death investigators and law enforcement on the topic of how to investigate a
water death.” 

            (c)  Defense
Counsel’s Examination of Zaferes


During the prosecution’s direct
examination of Zaferes, defense counsel at no time objected that Zaferes was
not qualified to testify as an expert witness on any issue.  (Evid. Code, §§ 720, 801.)href="#_ftn1" name="_ftnref1" title="">[1]  In cross-examining Zaferes, the defense
questioned Zaferes’s background and qualifications, including the number of times
she had testified as an expert witness and her educational background. 

The defense established that
Zaferes had no advanced degrees.  She had
never attended medical school and was not a medical doctor, medical examiner,
or coroner.  Zaferes acknowledged that
forensic pathologists are licensed medical doctors, and that forensic pathology
is a branch of pathology concerned with determining the cause of death and the
circumstances surrounding the death. 

Zaferes agreed that, in California, only licensed
forensic pathologists—that is, medical doctors concerned with determining the
cause of deaths and the circumstances surrounding deaths—can be medical
examiners.  The defense also established
that Zaferes’s work did not include performing autopsies or incisions, but
Zaferes pointed out that she assisted with the autopsies and asked questions,
and that the medical examiner consulted with her in water-related cases.  The following colloquy then ensued:

            “[DEFENSE
COUNSEL:]  In California to have the
credential as a medical examiner, you must first be a licensed forensic
pathologist.

            “[ZAFERES:]  That’s correct.

            “[PROSECUTOR:]  I am going to object as irrelevant to this
line of questioning.

            “THE
COURT:  Well, under [section] 352 we are
going to move to a different subject, but nothing will be stricken.

            “[DEFENSE
COUNSEL:]  Your expertise does not
include the medical examination of tissues under a microscope.

            “THE
COURT:  Counsel, we’re moving on.  We’ve established this point.

            “[DEFENSE
COUNSEL:]  And, ultimately, it is the job
of a forensic pathologist to make a determination . . . .

            “THE
COURT:  Counsel, we’re making the same
point over and over.  We’re moving
on.  [¶] 
 . . .  [¶]

            “[DEFENSE
COUNSEL:]  The determination of homicide
versus accident, ultimately is that of a medical examiner; correct?

            “[ZAFERES:]  Depending on the state.  Sometimes it’s the coroner or deputy
coroner.” 

2.  Analysis/Failure to Conduct
Section 402 Hearing


Defendant first argues that the
court was required to conduct a hearing, outside the presence of the jury and
before Zaferes testified—apparently on the court’s own motion and in the
absence of defense counsel’s request for such a hearing—to determine whether
Zaferes was qualified to testify as an expert witness.  Defendant is mistaken.  The court had no such sua sponte obligation.

The record on appeal, including
the matters discussed during the settled statement hearing on March 2, 2012,
does not show that the defense ever asked the court to conduct a hearing
outside the presence of the jury so that the defense could question or voir
dire Zaferes concerning her qualifications to testify as an expert, and so that
the court could expressly rule on whether she was qualified to testify before
she testified.  Defendant cites no
authority to support his claim that the court was required to conduct such a
hearing on its own motion, in the absence of any request for such a hearing.

As defendant points out, a
witness may not testify as an expert before his or her qualifications to
testify as an expert have been “shown.” 
(§ 720, subd. (a) [“[a]gainst the objection of a party, [a
witness’s] special knowledge, skill, experience, training, or education >must be shown before the witness may
testify as an expert.”  (Italics
added.)].)  But this does not mean that
an expert witness’s qualifications can
only be
shown in a hearing
conducted outside the presence of the jury and before the witness
testifies. 

To the contrary, the procedure
followed here—direct examination by the prosecutor concerning the witness’s
qualifications before the witness renders any expert opinions—is proper and
commonly followed.  (See 1 Jefferson,
Cal. Evidence Benchbook (Cont.Ed.Bar 4th ed. 2009) Opinion Testimony From Expert
and Lay Witnesses, § 30.19, p. 669 [“It is common for the proponent of
expert opinion testimony to first ask the witness questions concerning the
expert’s qualifications to testify.  This
is commonly called ‘voir diring’ the expert. 
If there is no objection, the proponent continues with questions
concerning the case.”].) 

Further, nothing in sections 400
to 406 or 720 requires the court to conduct a hearing outside the presence of
the jury and before a witness testifies, to determine whether the witness is
qualified to testify as an expert, in the absence of a request for such a
hearing.  To the contrary, section 402
states:  “(a)  When the existence of a preliminary fact is
disputed, its existence or nonexistence shall be determined as provided in this
article.  [¶]  (b) 
The court may hear and
determine the question of the admissibility of evidence out of the presence or
hearing of the jury . . . .” 
(Italics added.)  Nothing in
section 405 is to the contrary. 

In a similar vein, defendant
complains that the court “failed to require a showing” of Zaferes’s expert
qualifications “as described by the statute.” 
Not so.  Zaferes’s qualifications
were “shown” during the prosecution’s direct examination of her, before she
rendered any expert opinions. 
(§ 720, subd. (a).) 

Nor does the record support
defendant’s assertion that the court failed to find that Zaferes was qualified
to testify as an expert.  Whether a
witness is sufficiently qualified to testify as an expert is a fact to be
determined by the court, not the jury, before the witness may testify as an
expert.  (See Fairbank v. Hughson (1881) 58 Cal. 314, 315;
§§ 310, 400-406,href="#_ftn2"
name="_ftnref2" title="">[2] 720, subd. (a).)  As a general rule, the qualifications of a
witness to testify as an expert is made by the court pursuant to section 405; >Martin v. Superior Court (1991) 230
Cal.App.3d 1192, 1200.)href="#_ftn3"
name="_ftnref3" title="">[3] 

After Zaferes testified on direct
examination concerning her qualifications, the court implicitly found that she
was qualified to testify as an expert before the court allowed her to render
any expert opinions.  During the settled
statement hearing, the court recalled that the issue of Zaferes’s
qualifications “came up” during off-the-record discussions in chambers.  The court explained:  “I believe what we said is, [w]ell, I’m going
to have to hear her.  And I couldn’t make
a decision and didn’t make a decision in chambers.  And I did hear her and made a decision she
was qualified.”  Given that the defense
did not ask the court to rule on Zaferes’s qualifications, there was no need
for the court to make its finding explicit. 


Lastly, we disagree that the
court “further erred by restricting cross-examination of [Zaferes] regarding
her medical expertise.”  Defendant points
to the portion of defense counsel’s cross-examination in which the court
sustained its own section 352 objection to asking Zaferes whether, in California, a medical
examiner had to be a licensed forensic pathologist, and whether her expertise
included examining tissue under a microscope. 
That objection was properly sustained because counsel’s questions were
cumulative.  (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1385 [trial court has
broad discretion to limit “marginally relevant and cumulative”
questions].)  Moments earlier, defense
counsel asked Zaferes, and Zaferes acknowledged, that she was not a forensic
pathologist, she did not perform autopsies, and the duty of a forensic
pathologist was to determine the cause of death, and the manner or
circumstances surrounding the death. 

3.  Analysis/Zaferes’s Expert
Qualifications and Opinion


            Defendant
claims that Zaferes was not qualified to “give a medical opinion” that Cristi’s
drowning was not accidental because she was not a medical examiner or forensic
pathologist, and had no medical school training.  We disagree. 


            “A
person is qualified to testify as an expert if he has special knowledge, skill,
experience, training, or education sufficient to qualify him as an expert on
the subject to which his testimony relates.” 
(§ 720, subd. (a).)  Expert
opinion testimony is limited to a subject “that is sufficiently beyond common
experience that the opinion of an expert would assist the trier of fact
. . . .”  (§ 801,
subd. (a).)  “‘The qualification of
expert witnesses, including foundational requirements, rests in the sound
discretion of the trial court.  [Citations.]  That discretion is necessarily broad:  “The competency of an expert ‘is in every
case a relative one, i.e., relative to the topic about which the person is
asked to make his statement.’ 
[Citation.]”  [Citation.]  Absent a manifest abuse, the court’s
determination will not be disturbed on appeal. 
[Citations.]’  [Citation.]”  (People
v. Casteneda
(2011) 51 Cal.4th 1292, 1336.) 


            Defendant
argues that Zaferes was not qualified to opine that Cristi’s drowning death was
not accidental because she was not a medical examiner or forensic pathologist,
and had no graduate or medical school training. 
However, formal education and professional degrees are not required to
render an expert opinion.  (>People v. King (1968) 266 Cal.App.2d
437, 443.)  Rather, “[t]he foundation
required to establish the expert’s qualifications is a showing that the expert
has the requisite knowledge of, or was familiar with, or was involved in, a
sufficient number of transactions involving the subject matter of the opinion.”  (Howard
Entertainment, Inc. v. Kudrow
(2012) 208 Cal.App.4th 1102, 1115.) 

A sufficient foundational showing
for Zaferes’s opinion was made here.  On
direct examination, Zaferes testified at length concerning her background and
experience in determining, and in helping others determine, whether
water-related deaths are accidents, suicides, or homicides.  Given the breadth and longevity of her
experience in advising medical examiners, forensic pathologists, law enforcement
personnel, and others concerning how to investigate water-related deaths and
determine whether they were accidents, suicides, or homicides, Zaferes was, as
the People argue, “uniquely qualified” to render an opinion that Cristi’s
drowning death was not accidental. 
Whether Cristi’s drowning death was an accident or homicide was not a
“medical causation issue” which can only be determined by expert medical
testimony.  (Salasguevara v. Wyeth Laboratories, Inc. (1990) 222 Cal.App.3d 379,
384.)

Finally, defendant relies on
several cases in which the courts concluded that an expert was not qualified to
opine on a question that fell outside the area of the expert’s special
knowledge, skill, experience, training, or education.href="#_ftn4" name="_ftnref4" title="">[4]  The cases are inapposite because the question
of whether Cristi’s drowning death was accidental was a question falling well
within the realm of Zaferes’s training and experience. 

B.  The Rebuttal Testimony of
Cristi’s Coworkers That Cristi Was Dejected


Defendant next claims the court
erroneously allowed the prosecutor to present the rebuttal testimony of
Cristi’s friends and coworkers that Cristi was dejected at work during the
weeks before her death.  He argues that
the coworkers’ testimony was irrelevant to rebut the defense claim that
defendant and Cristi had a happy marriage, and were happy during the weeks
preceding Cristi’s death, because there was no showing that Cristi’s
dejectedness at work had anything to do with him.

Of course, only relevant evidence
is admissible (§§ 210, 350), and all relevant evidence is admissible
unless excluded under the federal or state Constitutions or by statute (>People v. Heard (2003) 31 Cal.4th 946,
972-973).  Relevant evidence is defined
as “evidence . . . having any tendency in reason to prove or disprove
any disputed fact that is of consequence to the determination of the
action.”  (§ 210.)  The court has broad discretion in determining
whether evidence is relevant, but lacks discretion to admit irrelevant
evidence.  (People v. Scheid (1997) 16 Cal.4th 1, 14.)  We review the court’s rulings on the
admissibility of evidence for abuse of discretion.  (People
v. Cowan
(2010) 50 Cal.4th 401, 482.) 


The court did not abuse its
discretion in admitting the coworkers’ testimony.  The testimony was relevant to rebut the
defense claim that defendant and Cristi had a happy marriage and, more
specifically, that Cristi was “the happiest she had ever been[.]”  The defense not only claimed that defendant
and Cristi had a happy marriage, it also claimed that, during the week before
her death, Cristi told two of her daughters that she was “the happiest she had
ever been[.]”  Further, the defense
claimed that Cristi was the happiest she had ever been precisely because she
and defendant had such a happy marriage and were so happy together.  Thus, contrary to defendant’s argument, the
evidence that Cristi was dejected at work during the weeks before her death was
relevant to rebut the defense claim that Cristi was happy, and that she and
defendant were happy together. 

Defendant also claims that the
coworkers’ testimony should have been excluded under section 352 because it was
unduly prejudicial, or likely to evoke an emotional response against him.  Not so. 
The court has discretion to exclude relevant evidence if its probative
value is substantially outweighed by the probability its admission will result
in “undue prejudice.”  (§ 352; >People v. Zapien (1993) 4 Cal.4th 929,
958.)  In this context, unduly
prejudicial evidence is that which “‘“uniquely tends to evoke an emotional bias
against the defendant as an individual . . . .”’”  (People
v. Alexander
(2010) 49 Cal.4th 846, 905.) 
Nothing about the coworkers’ testimony was likely to evoke an emotional
bias against defendant.

C.  The Rebuttal Testimony That Cristi and Defendant Once Contemplated
Divorce


            One
of Cristi’s friends and coworkers, Taffy McDowell, testified in rebuttal that
one time when she and Cristi had lunch together, McDowell complimented Cristi
on her family and her relationship with her husband.  In response, Cristi “said at one point in
time it had got that bad where they were contemplating divorce.”  McDowell did not say when Cristi and defendant contemplated divorce—whether it was
shortly before Cristi’s death or many years earlier. 

            Defendant
claims that McDowell’s testimony was irrelevant to rebut the defense claim that
Cristi was happy at the time of her death because there was no showing >when Cristi and defendant contemplated
divorce.  He also claims the testimony
should have been excluded under section 352 because it was likely to mislead
the jury to believe, without any evidentiary basis, that he and Cristi were
contemplating divorce near the time of her death. 

We find no abuse of discretion in
the admission of the testimony.  Not only
did the defense claim that defendant and Cristi had a good marriage near the
time of her death, it claimed they had a good marriage, and suggested there
were never any serious problems during the marriage.  McDowell’s testimony was relevant to rebut
this claim.  (People v. Scheid, supra, 16 Cal.4th at p. 14 [court has broad
discretion to determine whether evidence is relevant].) 

Nor was the evidence likely to mislead the jury to believe
that the parties were necessarily contemplating divorce near the time of
Cristi’s death.  (§ 352.)  In closing argument, the prosecutor
told the jury:  “I want to be clear about
this conversation with Taffy McDowell. 
It’s unclear what time period Taffy is suggesting to you that they were
contemplating divorce.  And it certainly
might have been in the past before June
7th, 2007, but I’m submitting to you that information
because it reflects that [it] isn’t a perfect marriage.  It’s
not an ideal situation that the defense has attempted to make it out to be
.”  (Italics added.) 

D.  The Rebuttal Testimony of Defendant’s Former Friends and Fellow Police
Officers


Defendant next claims the court
prejudicially erred in admitting bad character evidence against him,
specifically, the rebuttal testimony of Idaho Police Detective Raymond Chopko
that defendant was “probably the biggest con man [Detective Chopko had] ever
met in [his] life,” and the rebuttal testimony of former Los Angeles Police
Department Lieutenant Jerald Winkle, who testified that defendant “was not
honest.”

Defendant concedes that when he
testified in his own defense and denied his guilt, he placed his reputation for
truth and honesty in issue.  (>People v. >Taylor (1986) 180
Cal.App.3d 622, 631; § 780, subd. (e).) 
He argues, however, that “[t]here were two problems with the court’s
ruling allowing the . . . police officers to give their opinion
regarding [his] honesty.  [¶]  The first problem” with the officers’
testimony is that their opinions were “based primarily upon prior incidents the
court held were inadmissible.”  We find
no merit to this claim. 

Before trial, the court ruled
that the prosecution would not be allowed to impeach defendant’s testimony with
reputation evidence in the form of “specific bad acts.”  The proffered bad acts evidence included (1)
defendant’s statement to Winkle, around 15 years before trial, that defendant
was receiving a disability retirement pension from the San Bernardino County
Sheriff’s Department based on his claim that a carjacker shot him, when in fact
he shot himself in his leg; and (2) an incident in Idaho, witnessed by Detective
Chopko, in which defendant threw a bag of kittens into a river and drowned
them.  At the time, defendant allegedly
told Detective Chopko that “‘the wife’s cat had kittens again and I am not
going to have cats around.’” 

Defendant argues the admission of
Detective Chopko’s and Winkle’s opinion testimony that he was a “con man” and
“dishonest” “effectively prevented defense counsel from cross-examining either
witness about the basis for his opinion and the opinions were therefor




Description Defendant Blair Christopher Hall was charged with the first degree murder of his wife of 29 years, Cristi Hall. (Pen. Code, § 187, subd. (a).) After a jury deadlocked eight to four in favor of conviction and a mistrial was declared, a second jury found defendant guilty of the murder, and the trial court sentenced defendant to 25 years to life in prison. On this appeal, defendant essentially raises four claims of evidentiary error and further claims that the evidentiary errors were both individually and cumulatively prejudicial. We conclude that all of the challenged evidence was properly admitted, and affirm the judgment.
Defendant has petitioned for a writ of habeas corpus in case No. E056812. We ordered the writ petition considered with this appeal. By separate order, we summarily deny the writ petition.
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