P. v. Posey

Filed 1/22/09 P. v. Posey CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

A jury convicted defendant Michael Scott Posey of murdering his estranged wife by shooting her in the head. (Pen. Code,  187, 12022.5, subd. (a).) Defendant appeals his conviction, and presents numerous claims on appeal. Most of the claims assert that evidence was wrongly admitted. Defendant contends that the trial court erred in admitting evidence relating to: (1) prior instances of defendants misconduct indicating a character for violence; (2) defendants threats to kill his estranged wife; (3) spousal rape; (4) defendants statement that he would kill a wife who made divorce difficult and costly; and (5) expert opinion testimony that defendants account of an accidental shooting is inconsistent with the physical evidence. Defendant also asserts prosecutorial misconduct and ineffective assistance of defense counsel. We reject these claims and affirm the judgment.[1]

I. facts

Defendants estranged wife, Elizabeth Posey (Liz),[2] was shot to death when she went to defendants house to drop off the couples children for a weekend visit. She died from a contact shot to the head: the muzzle of a gun had been pressed under her chin, against the skin. Defendant told the police the gun discharged accidentally during a struggle to disarm Liz after she tried to kill him because he reneged on a promise to pay a $2,000 expense.

The prosecution maintained that defendant planned to murder Liz when she came to the house and did so by holding her down and shooting her in the head. The prosecution presented numerous police officers and forensic scientists who testified that defendants account of the shooting was inconsistent with the physical evidence. The prosecution also presented evidence that Liz was too frightened and intimidated by defendant to attack him as defendant claimed and that defendant, not Liz, had a reputation for violent behavior. We summarize the evidence here, and provide a fuller account later in our discussion of defendants challenges on appeal.

A. Portrait of a marriage

Defendant and his wife were married in 1992, and separated in 1995. It was defendants first marriage at age 40. Liz was 16 years younger than defendant, and the mother of two children from a previous marriage when she married defendant. Liz had two additional children with defendant.

The marriage was tumultuous. A neighbor heard loud arguments between them, and both defendant and Liz telephoned the police on different occasions to accuse the other of domestic violence. Defendant telephoned the police three or five times. One of those calls resulted in Lizs arrest: she had thrown a childs plastic sippy cup at defendant, and it struck his knee. Defendant claimed there had been more serious assaults, but the police never received any report of them. There was evidence of violence against Liz. Liz called the police to report domestic violence, and told a friend that defendant once forced Liz to have sex with him. One witness reported seeing defendant push and shove his wife, and another saw a large bruise on Lizs leg.

Several witnesses testified about defendants hostile and bullying treatment of his wife. Defendant was a dentist, and his wife worked a short time in his dental office. Defendants office manager testified about an incident when she was in the back office with defendant when Liz came to ask a question. Defendant told his wife to shut up, and when she protested that she did not want to shut up, he yelled at her to shut the fuck up. Liz started crying, and stayed alone in the back room upset and crying for an hour or more. A dental assistant described defendants interactions with Liz as toxic, and testified that defendant was mean to Liz and berated her in front of staff. Another employee of defendant visited the couple at home, and described a bad relationship in which defendant yelled at Liz, was controlling, and treated his wife with disrespect.

Defendant and his wife were overheard at the office discussing divorce. Liz said she was thinking about filing for divorce and defendant told her that he would make her life a living hell if she didnt let him be the one to file for the divorce. Defendant filed for divorce and served the papers on Liz in September 1995. Defendant was angry about the divorce, according to one of his employees.

Multiple witnesses testified that Liz feared defendant would kill her. Lizs fear of defendant was attested to by her divorce lawyer, her mother, and six friends. Defendants own friend, Eric Clarke, testified at trial to a statement defendant made years earlier, about Clarkes own divorce. When Clarke told defendant that Clarkes wife made the divorce difficult and costly, defendant said: [I]f someone did that to me I would kill them.

B. Evidence of defendants violent acts at his dental office

Defendants dental staff related several instances of defendants violent behavior: (1) defendant tried to pull a report from his office managers hand and, when she resisted, he hit her on the arm; (2) defendant kicked a dental assistant on the shin because she did not give defendant a dental instrument fast enough; (3) defendant raised his hand in a threatening gesture when a dental assistant mistakenly took an x-ray with defendant in the room; (4) defendant kicked another dental assistant on the shin when she relayed a patients displeasure at being kept waiting; (5) defendant poked a dental assistant with a dirty dental instrument because she picked the wrong color for a patients tooth crown; (6) defendant slapped a patient in the face when she complained about dental pain; and (7) defendant grabbed a lab technician by the arm when she refused to assist with a dental cleaning, and blocked her exit when she quit and wanted to leave the office.

C. Events leading up to the shooting

In April 1996, defendant and his wife were separated and had been living apart for seven months. The parties agreed to child visitation and family support of $3,000 monthly but disputed property division. Liz and her divorce lawyer believed Liz had a claim to properties worth between $220,000 and $400,000, and also suspected defendant of concealing additional assets from the divorce court.

On April 5, 1996, Liz asked the court to order defendant to pay her attorney fees. When making the request, Lizs lawyer advised the court (and defendant) that the lawyer had information that defendant was concealing assets and that a significant investigation was warranted. The court ordered defendant to pay $7,500 for Lizs divorce lawyer, payable immediately. The lawyer later testified that defendant gave the lawyer a piercing glare and seemed angry. Defendant did not pay the court-ordered attorney fees until threatened with a contempt proceeding. A financial investigator testified at trial that defendant was, in fact, concealing assets from the divorce court.

On April 16, 1996, Liz underwent breast augmentation surgery to replace silicone breast implants from four years earlier with larger, saline implants. The surgery required cutting through Lizs breasts and chest muscle and suturing the muscle and skin with about 40 sutures. Liz was bandaged and sent home with instructions to be careful and quiet for about a week. She was told to [a]void any athletics. Any strenuous work. Heavy use of the arms. Lifting. Things like that. Lizs plastic surgeon testified that a patient may experience a fair amount of pain after surgery and that lifting can cause more pain, and in a more serious nature could cause bleeding and require additional surgery to remove the blood. The surgeon opined that a patient three days after the operation would suffer significant pain if she were in a struggle with someone and using her arms to pull back and forth and hold something to her chest.

D. The shooting

The shooting occurred on Friday, April 19, 1996, three days after Lizs surgery. At about 2:30 p.m., Liz went to her divorce lawyers office to deliver documents. The documents substantiated Lizs suspicions that defendant was concealing assets. Liz left the lawyers office around 2:40 p.m. in a positive and cheerful mood. She told the lawyers paralegal that she was going to make a short stop at defendants house. Defendant had custody of the children on the weekends, and Liz intended to drop them off at his house. Liz had plans for the rest of that dayshe had a 3:30 p.m. appointment for a manicure and a dinner date with a new boyfriend. But Liz never left defendants house. She arrived around 3:00 p.m. At about 3:46 p.m., defendant telephoned 911 to say his wife had been shot. When the police arrived, defendant told them Liz had tried to kill him.

E. Defendants police statement following the shooting

Defendant was taken into custody and interviewed by the police for about two hours. Defendant told the police that he and Liz were separated but that the divorce was amicable and very congenial. He said Liz came to the house around 3:00 p.m. to drop off the children for the weekend. The two children were ages three years, and 20 months. Defendant said he and Liz talked for a while and then, about 15 minutes after she arrived, the couple put the children down for naps. They put the younger boy in the childrens bedroom, and the three-year old in defendants bedroom where he could watch a video to fall asleep.

After the children were in the bedrooms, defendant said he and his wife were in the kitchen talking about the divorce when Liz asked him for the $2,000 he had promised to pay for her breast surgery. Defendant explained that he had promised a couple of months earlier to pay for the surgery but decided to renege because family support had recently been set at $3,000 monthly. Defendant related to the police that he told Liz he would not pay for the surgery and that she should pay for it out of the $3,000 a month he was paying her. According to defendant, Liz didnt say a word after that. She went into the bedroom and got the gun. Defendant had bought the gun (a Walther PPK semiautomatic handgun) years earlier, and kept it in a locked gun safe in an armoire in his bedroom. Defendant said he had taught Liz to fire the gun, and that she knew the safe combination.

Defendant said Liz returned within seconds. Defendant was at the sink and, upon hearing Liz return to the kitchen, turned around to see her standing about eight feet away, near the stove, pointing a gun at him. Lizs face was emotionless. Immediately, without saying anything, Liz fired the gun. The shot went wide, and struck a cabinet. Defendant said the noise shocked Liz, and she lowered the gun to her side. Defendant demanded the gun, and she refused. Defendant felt his life was threatened. Defendant approached her and the two struggled over the gun. Liz pulled the gun toward herself, clutching it at her chest with both hands, and defendant wrapped his hands around her hands and tried to get the gun away from her. The two were standing chest to chest, virtually attached as they fought over the gun. Liz bit his chest. Defendant told the police that Lizs face remained expressionless and that he was not the least bit upset during the struggle and just wanted to get the gun in a place where it wasnt gonna hurt anybody. As Liz clutched the gun to her chest, the gun went off and she collapsed to the floor. Defendant called 911.

At the police station, defendant told the police that Liz was a very violent person, which is one of the main reasons he was divorcing her. He said he had called the cops a total of three times on her and the police arrested her once. When he called the police the first time, Liz told them he physically abused her, which is a complete lie. Defendant said Liz lies a lot. Defendant said he never struck his wife but she had beat the fuck out of [him], arms, fists, feet flailing. Liz had threatened to shoot defendant on various occasions but he thought the threats harmless because she had violent rages when she made thousands of threats. Defendant told the police that Liz should have had violence counseling.

Detective Edward Knutsen conducted the interview of defendant, and later testified that he felt defendants statement was evasive and suspicious.[3] As an example of evasion, Detective Knutsen recalled defendants reply when the police asked if the shooting was accidental. Detective Knutsen asked how Liz died, and defendant answered by posing alternative scenarios: Q. Could there be any possibility that the gun went off accidentally as you wrestled it from her? . . . [] . . . [] A. Let melet me think. Either I shot her intentionally, the gun went off accidentally in the struggle or she shot herself. [] I did not shoot her . . . . [] The other possibilitythe gun went off in the struggle. That sounds like the most plausible, because I was pulling herI was trying to pull the gun at the same time as holding her close to keep the separation minimal so thatyou know, ifif I separated too much, she could shoot me again. But if I got too closeI was afraid of the gun, man. Detective Knutsen testified that, in 31 years of police work, he never had an eyewitness answer a question about what happened with a list of options. The detective also noted that, although defendant was cooperative, he was conveniently cooperative in highlighting evidence, such as prior accusations of domestic violence against Liz.

A police forensic specialist, Janet Lipsey, photographed defendant and collected evidence from him while he was at the station. When Lipsey first contacted defendant, he was lying face down on the floor in the interview room. Lipsey asked defendant to sit in a chair because she needed to photograph him and process his hands for gunshot residue. Defendant ignored repeated requests to sit in a chair, and rubbed his hands palm-side down on the carpet. Rubbing hands on a carpet, like washing hands with water, can remove evidence of gunshot residue, and Lipsey was concerned that defendant was destroying evidence by rubbing his hands against the carpet. After defendant rubbed his hands, Lipsey tested his hands for gunshot residue. The results of the test provided nothing of significance. Some gunshot residue was found on Lizs hands, but a criminalist testified that the residue proved only that she was around a gun that was fired and did not show that she fired the weapon herself.

F. Defendants police statement after charges were filed

The police released defendant after the shooting and conducted an extensive investigation. Defendant was not charged with murdering his wife until May 2005, nine years after the shooting. The prosecution explained to the trial court that the lapse of time was due to a methodical, time consuming evaluation of the physical evidence and defendants finances.

When defendant was arrested for murder in 2005, he was again interviewed by the police. As he did after the shooting in 1996, defendant said that Liz died in a struggle for the gun after she shot at him. But defendant said he no longer remembered specific details of the struggle. Defendant repeated his accusations of domestic violence against Liz, and added a new claim that Liz twice stabbed him. Defendant said the incidents of domestic violence were always her violence against him, and insisted: Im not physically violent. Toward the end of the interview, Detective Knutsen accused defendant of intentionally killing Liz and staging the crime scene to make it look like Liz fired a shot at him. Defendant replied: What do you want me to say? Youre welcome to your opinion . . . . All I can tell you is the best that I recall of what happened.

G. Forensic evidence

Numerous police officers and forensic scientists testified that defendants account of the shooting was inconsistent with the physical evidence. The prosecution argued to the jury that the evidence showed that defendant planned to murder Liz when she came to the house and did so by holding her down and shooting her in the head. Unexpectedly, the gun jammed (perhaps because it was wrapped in a cloth that blocked the guns ejection port). Defendant then hurriedly cleared the jam and fired a second round into the kitchen cabinet so he could tell the police Liz was the aggressor.

Richard Waller, a criminalist, reconstructed the scene of the shooting based on the physical evidence and concluded that Liz and defendant were not standing when the fatal shot was fired. Based upon the location of blood spatter, among other things, Waller opined that Liz was on her knees. Another criminalist, Fay Ann Springer, agreed that Liz was kneeling (or otherwise low to the ground) and that defendant was likely bent at the waist or crouching.

Vincent Di Maio, M.D., a forensic pathologist, summarized the evidence showing inconsistencies between defendants account of the shooting and the physical evidence: (1) defendant said he was unable to get the gun away from Liz but defendant was five feet, eight inches tall and weighed 175 pounds, while she was much smaller at five feet one inches tall and about 100 pounds; (2) defendant claimed an unsuccessful chest to chest struggle with a woman who had undergone breast surgery three days earlier who supposedly showed no expression of pain during the struggle; (3) Liz scratched defendants back just before the shooting (his back had scratch marks and her fingernails on both hands had fibers matching his shirt material), but defendant said her hands were on the gun during the struggle; (4) the blood spatter was inconsistent with a standing shot because the spatter was low to the floor and blood spray from the shot was on defendants shirt and pant leg but not on the gun or Lizs hands and shirt sleeve cuffs; and (5) ballistics reports show that the spent casing from one of the two rounds fired in the kitchen jammed the gun during ejection (requiring that it be cleared before a second shot could be fired) but there was no jam mentioned in defendants account. According to defendant, the gun remained operational after the cabinet was struck and it soon discharged a second round, killing Liz.

Waller and Lucian Haag, another criminalist and a firearms expert, provided a fuller explanation of the ballistics evidence. Defendants Walther semiautomatic pistol has a magazine that holds multiple rounds or cartridge cases containing gunpowder and a bullet projectile. When the gun is fired, the gunpowder explodes, hurling the bullet down the barrel of the gun and ejecting the spent cartridge casing out the side of the gun. A metal slide on top of the gun moves forward bringing another cartridge into position and the gun is ready to fire again with a pull of the trigger. A gun will jam and become inoperative if a spent casing is not fully ejected from the gun. A stovepipe jam occurs when a spent casing starts to flip out of the ejection port but hits an obstruction and the forward moving slide slams into the stalled casing, which leaves the casing sticking out of the gun at almost a 90 degree angle. To clear the jam, one has to manually remove the casing. To remove the casing, one generally removes the magazine and pulls back the slide. Prosecution witnesses concluded that the gun jammed during the shooting in defendants kitchen because the spent casing found next to Lizs body had a deep indentation indicative of a stovepipe jam.

There was additional physical evidence inconsistent with defendants account of the shooting. Defendant claimed he never had control of the gun on the day of the shooting, and certainly never loaded it, but when arrested he had a blood blister on his finger that looked like the blister criminalist Waller suffered when he test fired defendants gun and pinched his finger putting the magazine into the gun. Detective Knutsen testified that he once owned the same gun model defendant had and sometimes pinched his finger inserting the magazine and received a blister like the one defendant had when arrested. There was also undisputed evidence that Liz died from a contact shot under her chin, with the muzzle of the gun against her skin. But defendant told the police Liz had the gun down at her breast level. In the videotaped police interview, defendant demonstrated Liz holding the gun at chest level.

Detective Knutsen also observed that Liz supposedly shot at defendant from only eight feet away but the bullet went into a cabinet more than three feet from where defendant was standing. Also, the bedroom armoire and gun safe doors were closed when the police arrived at the scene of the shooting, meaning that if Liz removed the gun from the armoires safe to kill defendant, she closed the doors after herself.

H. Gun use evidence

In his statement to the police, defendant said he taught Liz to use his handgun on several visits to her grandfathers forest cabin. The statement was contradicted by Lizs son from her first marriage, Michael. Michael testified that family visits to the grandfathers cabin did include target practice, but that Liz never participated. Michael said Liz did not like guns: she did not like shooting guns, nor being around them. The only evidence at trial of Lizs gun use (aside from defendants statement) came from her mother, who testified that Liz participated in target practice during family visits to the forest cabin when Liz was a child, age 13 and younger. Other witnesses testified that Liz, as an adult, did not like guns and was afraid of them. A friend said Liz was concerned about having guns around her children. The testimony was used by the prosecution to challenge defendants statement that Liz went into the bedroom where her young son was watching a video or napping and retrieved a gun in front of him to kill his father.

I. Defense evidence

The defense presented forensic scientists who disagreed with the prosecutions expert witnesses. A ballistics expert opined that the dent observed on the spent casing near Lizs body was created when the casing was extracted and ejected from the gun, and was not caused by a gun jam as prosecution witnesses said. An expert in blood spatter and crime scene reconstruction testified that the physical evidence was consistent with defendants statement that he was standing face to face with Liz when the gun discharged and killed her.

A psychologist also testified for the defense. He opined that defendant, when interviewed by the police after the shooting, was suffering from acute stress disorder, or what is commonly called shock. The psychologist said defendant was in a daze during much of the interview, and that it is not uncommon for one to have imperfect recollection of traumatic events.

The defense also presented character witnesses. A dental assistant who worked in defendants office testified that defendant could be moody but that she never saw him violent with anyone. She testified that she thinks defendant is a good guy and not capable of murder. Another dental office worker testified that defendant could sometimes be abrasive but was always professional. Two women who knew defendant from his participation in the Boy Scouts organization also vouched for defendant. One said that defendant is honest, calm, disciplined, and respectful to people. Another said defendant was honest, caring and a man of integrity. She never saw defendant violent.

II. INSTRUCTIONS, VERDICT, AND SENTENCING

The court instructed the jury on the elements of murder, and explained that defendant is guilty of first degree murder only if he acted willfully, deliberately, and with premeditation. (CALCRIM Nos. 520, 521.) The court also explained that an accidental killing is excusable homicide and thus defendant would not be guilty of murder if Liz was killed as a result of an accident. (CALCRIM No. 510.) The court further instructed the jury on self-defense, imperfect self-defense, and heat of passion provoked by the victim. (CALCRIM Nos. 520, 521, 570.)

The jury convicted defendant of first degree murder committed with personal use of a firearm. (Pen. Code,  187, 12022.5, subd. (a).) The court denied defendants motion for a new trial and sentenced defendant to prison for 25 years to life for murder, and an additional four years for personal use of a firearm. (Pen. Code,  190, subd. (a), 12022.5, subd. (a).)

III. discussion

Defendant presents numerous claims on appeal. Most of the claims assert that evidence was wrongly admitted. Thus, defendant contends that the trial court erred in admitting evidence relating to: (1) prior instances of defendants misconduct indicating a character for violence; (2) defendants threats to kill Liz; (3) defendants rape of Liz; (4) defendants statement that he would kill a wife who made divorce difficult and costly; and (5) expert opinion testimony that defendants account of an accidental shooting is inconsistent with the physical evidence. Defendant also asserts prosecutorial misconduct and ineffective assistance of defense counsel. We discuss these claims below.

A.     Defendants violent character trait

Defendant asserts that his conviction rests on impermissible character evidence. Defendant states: What swayed the jury in this case was not the states evidence concerning [defendant] Poseys role in the shooting of Elizabeth, but its evidence concerning Poseys characterwho he supposedly was and what he allegedly had done on occasions other than April 19, 1996[,] the day of the shooting. Defendant says the prosecutor spent much of the trial presenting witnesses on Poseys bad character, and maintains that [t]here is no reported decision in California of a criminal trial involving more evidence of a defendants uncharged misconduct [to prove bad character] than was introduced here.

Defendant overstates the amount of character evidence presented in the case. The prosecutions case in chief stretched over 13 days of trial, and amassed over 2,000 pages of transcribed testimony. The majority of that testimony came from police officers and forensic scientists. Testimony from defendants dental office staff concerning his characterof which defendant complains the most strenuouslyamounts to less than 10 percent of the testimony presented. However, we recognize that evidence of uncharged misconduct can be highly prejudicial and its admission, in whatever quantity, requires careful analysis to avoid injustice. (People v. Ewoldt (1994) 7 Cal.4th 380, 404.) We turn to that analysis.

1.      General principles on admission of character evidence

Generally, evidence of a persons character (in the form of an opinion, or evidence of reputation or instances of conduct indicating character) is inadmissible to prove conduct in conformity with that character (i.e., that defendant had the disposition to commit the charged offense). (Evid. Code,  1101, subd. (a); People v. Falsetta (1999) 21 Cal.4th 903, 910-911.) Such evidence may be admitted when relevant to prove some fact (such as motive, intent, plan, or absence of accident) other than the defendants disposition. (Evid. Code,  1101, subd. (b).)

There are exceptions to the general rule precluding use of character evidence to prove disposition. A criminal defendant is free to present evidence of his good character to show his innocence of the alleged crime and, if defendant does so, the prosecution may present character evidence in rebuttal. (Evid. Code,  1102.)[4] Also, a criminal defendant may present evidence of the alleged victims bad character and, if defendant does so, the prosecution may present rebuttal evidence. (Evid. Code,  1103, subd. (a).) If a criminal defendant presents evidence that the victim had a violent character, the prosecution may counter with evidence of defendants violent character. (Evid. Code,  1103, subd. (b).)

2. Procedural background: character evidence initially excluded, then ruled admissible under Evidence Code section 1103

The defense filed an in limine motion to exclude evidence of defendants violent acts at his dental office. The prosecution agreed to the exclusion for its case in chief, but argued that the evidence would be admissible as rebuttal evidence if the defense presented evidence suggesting that Liz had a violent nature. (Evid. Code,  1103, subd. (b).) The court granted the motion to exclude the evidence noting, as did the prosecution, that evidence of defendants violent character would be admissible if the defense tried to prove that the victim was known for violence. The court ruled that evidence of defendants violent acts at his dental office will not be presented during the prosecutors case-in-chief unless something arises to change the situation[,] in which case Ill revisit those issues.

The prosecutions opening statement to the jury made no mention of any character trait for violence in either defendant or Liz. It was defense counsel who introduced character as an issue. Defense counsel told the jury that the evidence will show that there is nothing, absolutely nothing in the life, the style, the person or the spirit of Michael Posey that would have led him to murder Elizabeth Posey on April 19, 1996. The defense posed the question: who was Michael Posey back in 1996 and who is he today? The defense answered: The evidence will show that Michael Posey today is the same person he was back in 1996: A dedicated father; a dedicated family man; a dedicated friend; a dedicated dentist; a man who has led and lived an incredibly responsible life. And the evidence will show that there is nothing in Michael Poseys background, Michael Poseys experience, or Michael Poseys makeup that would ever lead him to commit such a heinous crime.

Lizs character was attacked. The defense said: The evidence will show that Elizabeth had anger and behavior issues stemming from her childhood that strained and ultimately destroyed their marriage. The evidence will show that she was jealous of everything Michael did. She was extremely possessive and she became extremely volatile on occasion. Defense counsel maintained that Liz was the aggressor on the day she died. He recounted defendants police statement that Liz went for a gun when defendant refused to reimburse her $2,000. Defendants refusal supposedly sent Elizabeth into a rage, the kind of rage that she had been in many times before.

The prosecution began its case with police testimony. On the second day of witness testimony, the prosecution presented Detective Knutsen, who had interviewed defendant after the shooting. With Detective Knutsen on the witness stand, the prosecution played the videotaped interview of defendant for the jury. As related above, defendant told the police that Liz tried to kill him and a struggle for control of the gun ended with her accidental shooting. The statement included defendants opinion that Liz was a violent person, and numerous references to prior instances of her violent acts against him.

On the sixth day of witness testimony, the prosecution presented evidence that defendant provided an account of the shooting inconsistent with his police statement. Jeff Johnson, Lizs first husband, testified that defendant telephoned him within a few days of the shooting to explain what happened. According to Johnson, defendant said that defendant and Liz went to the living room and sat for awhile after she fired a shot at him, and then returned to the kitchen where she was shot during a struggle for the gun. Near the end of direct examination, the prosecutor asked (without objection) if Johnson ever saw Liz display any violence during his marriage to her. Johnson said there was never any physical violence.

Cross-examination explored whether Liz was truly nonviolent. On cross-examination, defense counsel asked: Now youve actually seen Elizabeth Posey become violent before, havent you? Johnson answered: Verbally. Defense counsel then asked about an incident from 1995, after Johnson and Liz were divorced and both remarried. Under questioning by defense counsel, Johnson testified that Liz and Johnsons new wife had a verbal argument about the children. Liz was sitting in her car with the door open as Johnsons wife stood inside the door arguing with Liz. Liz put the car in reverse to back up with the door open, and the door came within inches of striking Johnsons wife. Defense counsel also elicited testimony that Liz had erratic mood swings, was stressed and angry during her divorce from defendant, and lied about a lot of things. Less than a week before the shooting, Johnson had told defendant that Johnson thought Liz was about to have a nervous breakdown and was about to snap.

Soon after Johnsons testimony, the court and attorneys discussed the proceedings outside the jurys presence. The prosecutor reminded the court of its earlier in limine ruling precluding admission of defendants prior acts of violence, and asked that the prosecution now be permitted to introduce that evidence because the defense introduced evidence of the victims violent character. (Evid. Code,  1103, subd. (b).) Defense counsel recognized that the issue was admission under Evidence Code section 1103, and made no argument that the evidentiary provision was inapplicable. The court ruled: I think the door is wide open now under [Evidence Code section] 1103. We knew it would happen eventually, I suppose, and it has, so there is no rule against doing it in [the prosecutions] case in chief. The rule is once [the defense] talked about the victims propensity for violence, then [the prosecution] could introduce character evidence for the defendants propensity for violence. I havent heard any reason [the prosecution] shouldnt do that, so feel free to do that. [If it] becomes cumulative or something like that Ill entertain those objections, but Ill let [the prosecutor] go quite a ways with this because it goes to the core of the case for both sides.

3. Defendants violent behavior at his dental office

The prosecution proceeded to introduce evidence of defendants propensity for violence. Leeann Blazer, office manager at defendants dental practice for two years, described an incident when defendant was violent towards her. Blazer was in the back office retrieving a report from the printer. The printer produced connected pages with the first page print side down. Blazers practice was to refold the pages to make the report easier to read. Blazer was doing this when defendant entered the room and asked: what the hell are you doing? Blazer explained, and defendant said if the paper was meant to be folded that way the printer would print it that way. Blazer said she needed to fold the paper so she could read it from the file. Blazer was standing a couple feet from defendant with the stack of paper in her hand. Defendant reached over and tried to grab the paper from Blazers hand. Blazer pulled it away and said he did not need to read the report, that he hired her to prepare reports, and she needed to read the report with the paper folded. As Blazer pulled her hand away, defendant said thats not yours, this is my business, those are my reports. Defendant hit Blazer on the arm, and she fell against the wall from the force of the blow. Blazer quit. She immediately collected her purse, left the office, and never worked for defendant again.

Sherry Rochester (formerly San Filippo) worked with defendant for about five years. On one occasion, she was assisting defendant with a patient when defendant kicked her on the shin because she had not given defendant a dental instrument fast enough. Another time, Rochester took an x-ray of a patient when defendant was in the x-rayed room, and he came out very angry and raised his hand as if to strike her. She said go ahead, I dare you and he backed down.

Minette Leggett worked with defendant for eight years as a dental assistant. She said defendant was very abusive and described violent episodes when defendant kicked her and poked her with a dirty dental instrument. In the first episode related, defendant was performing a root canal. Another patient had been waiting for two hours in an examination room, and grew irate. Leggett came to tell defendant that the waiting patient was irritated and, when she did so, defendant gave her a painful kick on the shin. Leggett asked the women assisting defendant in the root canal if they saw what defendant did, and they said yes. When Leggett left the room, she heard defendant tell the assistants: you saw nothing. One of those assistants, Katherine Haugen, corroborated Leggetts testimony about the angry kick and testified that, in her opinion, defendant has a violent character.

In the second violent episode Leggett described, defendant was displeased with the color of a tooth crown Leggett had selected for a patient. As Leggett was leaving the examination room, defendant gave her the evil eye, reached out with a pointed dental instrument he had been using in the patients mouth and poked her with it, breaking the skin. Leggett was concerned about infection and had blood tests performed.

Pam LaPierre was a lab technician in defendants office, and training to be a dental assistant. She said defendant was violent with a patient, and with her. LaPierre testified that she and defendant were in a treatment room with a patient who was crying and in pain. The patient started to leave the chair. Defendant put the patient back in the chair, told her to shut up, and slapped her in the face. LaPierre described another instance when defendant asked her to help him clean someones teeth. LaPierre told him she could not assist him because she did not have a license as a dental technician but defendant insisted anyway. LaPierre refused and defendant grabbed her by the arm and pulled her toward the examination room. LaPierre was scared. She pulled away, told defendant she was leaving, and went to get her purse. Defendant told LaPierre she could not leave, and blocked the doorway. LaPierre asked defendant to please move out of the way. Defendant stayed in the doorway, but then moved away and LaPierre fled from the office. Defendant followed LaPierre down the office building stairs but stopped before the exit. LaPierre never worked for defendant again.

4. Defendants anger and bullying behavior with female patients and staff

The prosecutor asked Lizs ex-husband Johnson, who was a dental patient of defendant, about defendants interactions with dental staff and asked if Johnson ever noticed anything about [defendants] attitude with regards to men versus women? Johnson said defendant was real demanding with the women. Very demanding.

Defendants office manager for over seven years, Aileen Contreras, testified that defendant had a volatile temper, would fly off the handle for no reason, and had angry outbursts. Office manager Blazer testified that defendant had mood swings when he would be in a (short-lived) good mood, then suddenly in a bad mood when he was short, curt, controlling, demanding, and angry. Blazer said defendant sometimes lost patients because he would behave angrily in front of them. Both Blazer and dental assistant Rochester said defendant belittled his female staff. Blazer described one instance when he lambasted her in front of a patient over a bad x-ray. The patient took Blazers side, and told defendant he was an asshole. Dental assistant Haugen said defendant had mood swings and yelled and cursed at his staff.

The defense tried to show Haugens bias by stating, on cross-examination, that she did not like defendant. Haugen insisted that she did like him. The defense then impeached her testimony with her statement to the police, in which she said defendant was the strangest, meanest human being she had ever met. The defense accused Haugen of being a gossip who talked badly about everybody.

5. Defense evidence of the victims violence and defendants nonviolence

The defense presented evidence of Lizs violent character and defendants nonviolent character. As discussed, the defense elicited Johnsons testimony that Liz almost struck Johnsons wife with a car. The defense also established on cross-examination of Detective Knutsen that defendant had called the police several times to report domestic violence by Liz.

Four witnesses were presented who attested to defendants good character, including his nonviolent nature. A dental assistant who worked in defendants office testified that defendant could be moody but that she never saw him violent with anyone. A woman who knew defendant from his participation in the Boy Scouts organization testified that defendant was honest, caring and a man of integrity. She never saw defendant violent.

In closing argument to the jury, defense counsel argued that defendant is a good decent man, and dismissed testimony from defendants dental staff about kicking and slapping as petty incidents that showed nothing more than an idiosyncratic man with personality quirks, not a murderer. In contrast to defendants good character, Liz was depicted as a woman on the verge of a nervous breakdown, who had a temper, was volatile, had the potential for violence, tried to run over Johnsons wife, and had assaulted defendant on five prior occasions. The defense said it was this situationLizs violent personality and the stress of the divorcethat led her to attack defendant and ultimately die in a shooting accident.

6. Evidence of defendants violent character was properly admitted to counter defense evidence of the victims violent character

As noted above, if a criminal defendant presents evidence that the victim had a violent character, the prosecution may counter with evidence of defendants violent character. (Evid. Code,  1103, subd. (b).) The trial court ruled that defendant Posey presented evidence of Lizs violent character by eliciting on cross-examination of Jeff Johnson (Lizs ex-husband) testimony concerning a specific instance when Liz acted violently: she intentionally backed up her car during an argument, almost striking Johnsons wife. The court ruled: I think the door is wide open now under [Evidence Code section] 1103. We knew it would happen eventually, I suppose, and it has, so there is no rule against doing it in [the prosecutions] case in chief. The prosecution proceeded to introduce character evidence from defendants dental staff.

Appellate counsel for defendant says the trial court erred in holding that defendant opened the door under Evidence Code section 1103, subdivision (b). Defendant, through counsel, argues: On direct, the prosecution elicited (inadmissible) character evidence from JohnsonJohnson testified that Elizabeth was nonviolent. The defense properly responded, during cross, by asking Johnson about whether his opinion reflected certain specific instances of violence. [] . . . [] This sort of cross-examination is not character evidenceindeed, it is not substantive evidence at all. It is admitted only for impeachment.

The argument does not bear scrutiny. It is true that the prosecutors direct examination of Johnson was objectionable in asking Johnson if he ever saw Liz display any violence during his marriage to her. A prosecutor may not present evidence of the victims character until the defense introduces the issue. (Evid. Code,  1101, subd. (a), 1103, subd. (a)(2).) But defendant did not object to the prosecutors examination of Johnson, thus forfeiting his right to challenge the testimony now. (Evid. Code,  353; People v. Demetrulias (2006) 39 Cal.4th 1, 19-22.)

It is likely that no objection was made because the defense intended to raise the issue of Lizs character with Johnson, as shown by the fact that it immediately did so on cross-examination. It was defense counsels cross-examination of Johnson, not the prosecutors single question on direct examination, that opened the door to propensity evidence. Johnson testified, on direct, that Liz never displayed any violence during his marriage to her. On cross-examination, defense counsel asked: now youve actually seen Elizabeth Posey become violent before, havent you? and proceeded to elicit testimony about the car episode.

It is not true, as defendant asserts on appeal, that the cross-examination was for the sole purpose of impeaching Johnsons testimony that Liz was nonviolent. The defense never made that assertion in the trial court when given the opportunity to do so, and the assertion is unsupported by the record. There could be no effective impeachment of Johnsons testimony that Liz showed no instances of violence during their marriage with evidence of Lizs violent act after their marriage. Proper impeachment of a character witness occurs when the witness expresses an opinion as to an individuals good character, or testifies about the good reputation of that individual, and the value of that opinion or knowledge of reputation is tested on cross-examination by asking if the witness is familiar with prior acts of misconduct of the individual inconsistent with the character evidence presented. (People v. Hempstead (1983) 148 Cal.App.3d 949, 953-954.) Here, Johnson did not provide opinion or reputation evidence as to Lizs character for violence. He was asked about specific conduct during a specific period of time. On direct, Johnson was asked Did you ever see [Liz] display any violence during the time that you were married to her? Johnson testified: No physical [violence.] Cross-examination as to a specific instance of violence years after the marriage ended was not impeachment.

The record as a whole shows that the defense elicited Johnsons testimony about Lizs violent act as substantive evidence to show her to be a violent person capable of shooting a gun at defendant. The true purpose of the cross-examination is shown by the fact that the defenses exploration of Lizs character did not stop at eliciting testimony from Johnson about her backing up a car toward Johnsons wife, but included an inquisition on Lizs erratic mood swings. Moreover, the defense made substantive use of Johnsons testimony in closing argument to the jury, when defense counsel told the jury that Liz had a temper, was volatile, and tried to run down Johnsons wife.

The intent to introduce defense evidence on Lizs alleged violent nature was plain from the start of the case. In his opening statement to the jury, defense counsel said that Liz had anger and behavior issues and became extremely volatile on occasion. Defense counsel maintained that Liz was the aggressor on the day she died. He recounted defendants police statement that Liz went for a gun when defendant refused to reimburse her $2,000. Defendants refusal supposedly sent Elizabeth into a rage, the kind of rage that she had been in many times before.

Appellate counsels argument that character evidence had no probative value in establishing what happened at the scene of the shootingand was slyly inserted into the case by the prosecutionis not credible. Defendant relied upon Lizs supposed violent attack upon him to explain her death. His account of the shooting depended upon Liz being volatile enough to try to kill her husband. Although appellate counsel now derides the use of character evidence in the case, defendants prospect for exoneration was improved by substantiating defendants police statement that Liz was a violent person. As the trial court recognized, evidence on propensity for violence goes to the core of the case . . . . The court properly ruled that defendant opened the door to rebuttal evidence on his violent character by introducing evidence of Lizs violent act against Johnsons wife.

Defendant next argues that, if character evidence was admissible, admission was limited to a trait for violence. Defendant contends that character evidence unrelated to violence was wrongly admitted. Defendant challenges an array of testimony from several witnesses. The short answer is that defendant forfeited any challenge to this testimony by failing to object in the trial court. (Evid. Code,  353; People v. Demetrulias, supra, 39 Cal.4th 1 at pp. 19-22.) The long answerto avert assertions that defense counsel was incompetent by failing to objectis that the evidentiary challenge is meritless. We have reviewed all of the many challenges raised in defendants opening brief on appeal but will limit our discussion to a few.

Much of the testimony challenged by defendant, contrary to his position, does constitute evidence that defendant had a character for violence or a trait of character for violence. (Evid. Code,  1103, subd. (b).) Testimony about defendants poor anger management, like that of office manager Contreras (stating that defendant had a volatile temper, would fly off the handle for no reason and had angry outbursts) is a trait tending to show violence, especially when introduced, as it was, in the broader context of physical assaults on office staff. (Evid. Code,  1103, subd. (b).)

Some of the challenged testimony was admissible for reasons apart from defendants character. Defendants bullying behavior, with Liz and other women, was admissible to prove a fact other than disposition. (Evid. Code,  1101, subd. (b).) The evidence supported the prosecutions position that Liz was too intimidated and frightened of defendant to initiate an attack upon him and wrestle him for a gun, contrary to his defense at trial that the shooting was an accident occasioned by Lizs aggression. Defendants portrait of Liz as the aggressor was undercut by Contrerass testimony that Liz dissolved into an hour-long bout of tears when defendant told Liz to shut the fuck up, and by testimony (by Johnson, Contrares, Blazer, and Rochester) that defendant was controlling, demanding, and belittling with women. Evidence of defendants angry outbursts at his dental office over minor events like a bad x-ray and a mismatched crown was also relevant to show that Lizs death was not an accident. The evidence undermined defendants police statement that he was not the least bit upset and was in a purely defensive posture after his wife supposedly tried to kill him. Some of the evidence was also relevant in establishing a motive for murder, by showing that defendants relationship with Liz was not amicable and congenial as he told the police, but toxic, as his former employee Haugen described it.

Some of the testimony challenged on appeal was not introduced as substantive evidence at all. Office manager Blazer, in describing defendants belittling attitude toward women, described an instance when defendant criticized her about an x-ray in front of a patient. The patient took Blazers side, and called defendant an asshole. The patients asshole comment was not introduced as substantive evidence of defendants character, but to show defendants belittling conduct toward his female staff, which even a bystander recognized.

Defendant also complains on appeal that a former employee described him as the strangest, meanest human being she had ever met. But this testimony was introduced by the defense for witness impeachment, not by the prosecution as character evidence. Former employee Haugen testified on direct that defendant was mean to Liz and berated her in front of staff. The defense tried to show Haugens bias by having her concede dislike for defendant. When Haugen insisted that she did like him, the defense impeached her testimony with her statement to the police, in which she said defendant was the strangest, meanest human being she had ever met. Haugens description of defendant was not, as defendant argues on appeal, prosecution character evidence.

Finally, defendant argues that evidence that he berated his wife, kicked and slapped his dental staff, and controlled and belittled women should have been excluded as more prejudicial than probative. (Evid. Code,  352.) As indicated above, we disagree with defendants claim that the evidence was of little probative value. Defendants verbal attacks upon, and disrespect for, his wife provide evidence of intent and motive, and counter the defense of an accidental shooting. It should be beyond dispute that the existence of a hostile relationship is highly relevant in a domestic shooting case. [E]vidence of prior quarrels between the same parties [involved in uncharged and charged acts] is obviously relevant on the issue whether the accused committed the charged acts, as is evidence showing prior  antagonism or enmity.  (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 585-586.) Where the victim of the crime is the spouse of the accused, evidence tending to show that the relations between the accused and the victim were unpleasant or hostile is admissible on the question of motive . . . .  (41 C.J.S. (2008) Homicide,  329.) Defendants misconduct with his staff (both physical assaults and bullying of women) was important in showing that Liz would have been too frightened and intimidated by defendant to attack him as defendant claimed and that defendant, not Liz, had a reputation for violent behavior.

We regard the potential for undue prejudice to be minimal here. The introduction of uncharged misconduct into a trial bears the risk that a jury will punish the defendant for the uncharged offenses, regardless whether it considered him guilty of the charged offenses . . . .  (People v. Ewoldt, supra, 7 Cal.4th 380 at p. 405.) That risk is low where the testimony describing defendants uncharged acts is no stronger and no more inflammatory than the testimony concerning the charged offenses. (Ibid.)

Here, the evidence of defendants uncharged misconduct with his wife and dental staff was far less inflammatory than the evidence on the charged offense of murder. Defense counsel dismissed testimony from defendants dental staff about kicking and slapping as petty incidents. Whether or not the incidents are properly characterized as petty, the incidents were not inflammatory. The incidents were far tamer than other instances of uncharged misconduct, like robbery and child molestation, that have been introduced in criminal trials over claims that the evidence of prior acts is inflammatory. (People v. Lindberg (2008) 45 Cal.4th 1, 25-26; People v. Ewoldt, supra, 7 Cal.4th at pp. 404-405.) The uncharged misconduct herekicking and slapping office staffwas unflattering but not inflammatory. There was no danger that a jury, thinking a man innocent of murder, would convict him anyway to punish him for bullying his employees.

Defendant suggests that the prosecutor prejudicially overemphasized defendants character in closing argument, by rhetorically asking, Who is Michael Posey? and then recounting defendants prior conduct with Liz and the dental staff. The suggestion fails to acknowledge that it was the defense which first posed the question Who is Michael Posey? in its opening statement to the jury, and interjected defendants character into the trial. The defense posed the question: who was Michael Posey back in 1996 and who is he today? The defense answered: The evidence will show that Michael Posey today is the same person he was back in 1996: A dedicated father; a dedicated family man; a dedicated friend; a dedicated dentist; a man who has led and lived an incredibly responsible life. And the evidence will show that there is nothing in Michael Poseys background, Michael Poseys experience, or Michael Poseys makeup that would ever lead him to commit such a heinous crime. The defense later introduced evidence that Liz was a violent person, and presented character witnesses who averred that defendant is nonviolent, honest, calm, caring, respectful to people and a man of integrity. The prosecutor was entitled to challenge that evidence. (Evid. Code,  1101, subd. (b), 1102, subd. (b), 1103, subd. (b).) His closing remarks providing a different answer to the question first asked by the defense, Who is Michael Posey? were not inflammatory. The probative value of the evidence of defendants uncharged misconduct outweighed the potential prejudicial effect, and was properly admitted and considered by the jury.

B. Admission of victims statements of defendants threats and her fear

As noted above in the summary of facts, multiple witnesses testified that Liz feared defendant would kill her. Lizs fear of defendant was attested to by her divorce lawyer, her mother, and six friends.[5] Defendant concedes on appeal that evidence Liz feared defendant was admissible. (Evid. Code,  1250, subd. (a)(1).) But defendant argues that inadmissible hearsay was introduced when several of these witnesses went beyond attesting to Lizs fear of defendant and testified that Liz reported to them that defendant had threatened to kill her. (Evid. Code,  1250, subd. (b).) Defendant is mistaken. Defendants threats to kill Liz were admitted as circumstantial evidence of Lizs fearful state of mind, not to prove that defendant made the threats.

1. General principles on admission of victims reports of threats and fear

In a murder trial, a witnesss testimony that the victim said the defendant threatened her is undeniably relevant in tending to prove that defendant, in fact, made threats of physical harm to the victim and, inferentially, that he carried them out. (People v. Noguera (1992) 4 Cal.4th 599, 620-621.) However, when introduced for that purpose, the testimony is hearsay and inadmissible unless authorized by a recognized exception. (Id.at p. 621; Evid. Code,  1200.) A spontaneous declaration under the stress of excitement, for example, is a recognized exception. (Evid. Code,  1240.)

Hearsay evidence of a victims fear may be introduced to prove the victims state of mind. (Evid. Code,  1250, subd. (a)(1).) Under this exception, hearsay statements that the victim feared defendant are admissible, not to prove that defendant actually made or posed a threat to the victim, but for the limited purpose of establishing [the victims] state of mind at or near the time she was murdered. (People v. Noguera, supra, 4 Cal.4th at p. 621.) [H]earsay statements of victims concerning fears of or threats against them by the accused, when offered to prove the conduct of the accused, are not within [this] exception to the hearsay rule. (Id.at p. 622, italics added.) But a victims statement that she feared defendant is admissible to prove the victims state of mind, when her state of mind is factually relevant. (People v. Hernandez (2003) 30 Cal.4th 835, 872-873.)

Where, for example, a defendant claims his estranged wife was shot during a struggle for a gu