P. v. Trayers
Filed 1/31/14 P. v. Trayers CA4/1
OFFICIAL REPORTS
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prohibits courts and parties from citing or relying on opinions not certified
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JENNIFER MICHELLE
TRAYERS,
Defendant and Appellant.
D061564
(Super. Ct. No.
SCD231116)
APPEAL
from a judgment of the Superior Court of
San Diego County, Joan P. Weber, Judge.
Affirmed.
Nancy
J. King, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General,
for Plaintiff and Respondent.
After
defendant Jennifer Michelle Trayers[1]
suspected her husband, Frederick Trayers (Dr. Trayers), was having an extramarital affair and then
confirmed her suspicion by reading his e-mail correspondence with his
girlfriend, Jennifer killed him with a knife as they lay in bed by stabbing him
numerous times. When the police forcibly
entered the Trayers' home, they found Dr. Trayers dead on the bedroom floor on
one side of the bed, and Jennifer, who was close to death with numerous
lacerations later determined to be self-inflicted, on the floor on the other
side of the bed near a military-style knife.
A
jury convicted Jennifer of second degree murder (Pen. Code,[2]
§ 187, subd. (a)) and found true an allegation that she personally used a
deadly and dangerous weapon (a knife) in committing the murder within the
meaning of section 12022, subdivision (b)(1).
The court sentenced her to an aggregate prison term of 16 years to life.
Jennifer
appeals her conviction based on three contentions. First, she contends the court deprived her of
her federal constitutional rights to due process and a fair trial by erroneously
admitting evidence of her own extramarital affair, which she asserts was
irrelevant and prejudicial character evidence the court should have excluded
under Evidence Code sections 1101, 1102, and 352. Second, Jennifer contends the evidence is
insufficient to support her conviction of second degree murder because no
rational trier of fact could have found beyond a reasonable doubt that she
killed her husband with malice rather than in the heat of passion, and thus
there is no substantial evidence she committed any crime greater than voluntary
manslaughter. Last, she contends the
prosecutor misstated the law and committed prosecutorial misconduct during her closing
arguments by arguing that the degree of provocation required to
reduce the unlawful killing of her husband to voluntary manslaughter was provocation
that would cause a reasonable person to kill, thereby lowering the People's
burden of proof in violation of her due process right to a fair trial. We affirm Jennifer's conviction of second
degree murder. Accordingly, we affirm
the judgment.
FACTUAL BACKGROUND
A.
The People's Case
Dr.
Trayers was an emergency medicine
physician at the Balboa Naval Medical Center in San Diego. When Jennifer killed him on
December 4, 2010,[3] they had been married for
18 years.
1. Stabbing death of Dr. Trayers
After
he attended a holiday party on the night of December 3, Dr. Trayers worked a night
shift at the Balboa Naval Hospital until 6:00 o'clock the next morning. He was
next scheduled to work at 11:00 a.m. on Sunday, December
5, and coworkers became worried when he did not come to work. They began attempting to reach him by phone
on Sunday evening. Friends went to the
Trayers' home, and, although both of the Trayers' cars were there, they saw no
sign of anything out of the ordinary other than that the Trayers were not at
home. Coworkers called police late Sunday
night.
Police
officers went to the Trayers' home on Sunday night to conduct a welfare check, but
observed that everything was quiet. Officers
returned the next morning, December 6, and one of them looked through a window
into a bedroom and saw a female (Jennifer) lying face up on the floor, with her
clothing covered in blood, next to the left (or east) side of the bed (viewing
the scene from the foot of the bed).
The
officers forcibly entered the Trayers' home and found that Jennifer was barely
alive with what were later determined to be self-inflicted knife wounds. A military-style knife with a blade about
seven inches in length was found on the floor under the edge of the left (east)
side of the bed very close to where Jennifer was found.[4]
Dr.
Christina Stanley, a forensic pathologist who examined Jennifer in the
hospital, testified that Jennifer had suffered about three dozen stab wounds or
sharp force injuries primarily over a small area of her chest, many of which
were superficial, and she had lost a significant amount of blood and was in
shock. Her most significant injury was
to an artery in the wall of her abdomen, but the wound did not go inside her
abdomen.
Dr.
Michael Sise, a vascular surgeon and trauma medical director at Scripps Mercy Hospital who
treated Jennifer's multiple knife wounds, opined that the wounds were
self-inflicted. Dr. Sise explained that he
found no wounds of self-defense, which are usually on the hands. He also explained that the multiple wounds in
the central area of Jennifer's chest were "hesitation marks," a term
that trauma surgeons use to describe superficial wounds that may have
penetrated the skin but had not penetrated deeply.
The
police officers who entered the Trayers' home found Dr. Trayers dead and face
down on the floor on the right (or west) side of the bed─opposite where
Jennifer was found on the floor on the left side of the bed─in a fetal
position facing the bed and leaning against the side of the bed with the bedding
around his lower extremities. The
bedding around Dr. Trayers's body, as well as the pillows and the fitted sheet on
the bed in the area near the headboard, were cut. A kitchen or chef's knife was found near Dr.
Trayers's left calf under the bedding. He
had a strand of hair─later determined to be Jennifer's─in his left
hand.
According
to a deputy medical examiner for the County of San Diego who examined Dr.
Trayers's body at the scene of the killing, Dr. Trayers had suffered numerous stab
wounds: two in the chest, six in the
back, one in the back of the head, one in the right forearm, one on the tip of
the right index finger, one on the tip of the right middle finger, and another
by the left thumb. One of the chest
wounds, which could have been a fatal wound, went through the heart and the
right lung. The multiple superficial
incised wounds to Dr. Trayers hands were consistent with defensive wounds
inflicted as he was attempting to block or grab the knife.
A
large saturation of Dr. Trayers's blood was found on the pillows, sheets, and
mattress on Dr. Trayers's right (west) side of the bed, and his blood spatter
was on the west side of the headboard, the wall, and the nightstand on his side
of the bed. A blood spatter expert found
the blood evidence was consistent with Dr. Trayers's having been stabbed while
lying on the bed under the bedding, having flung a hand that was cut from the
palm to the forearm, and having moved and ended up on the floor where the
officers found him with the bedding (a comforter and sheet) around him.
The
results of forensic toxicology testing indicated the presence of Zolpidem, a prescription
sleep aid, in both Jennifer's system and that of Dr. Trayers. The amount in Dr. Trayers' system was within
the normal therapeutic range for a single dose.
Zolpidem is commonly used by emergency physicians as a sleep aid because
they work different shifts and sometimes have trouble falling asleep. One empty bottle of Zolpidem, which had been
prescribed for Dr. Trayers, was found on the left side of the bed within three
or four feet of the military-style knife in the area where Jennifer was found,
and another nearly empty bottle was found in a medicine box.
Three
of four stacked manila envelopes found on a shelf near the Trayers' kitchen contained
218 pages of printouts of screen captures and numerous text messages to and
from Dr. Trayers's phone, e-mails, and photographs of Dr. Trayers. Most of the documents were correspondence
between Dr. Trayers and Danielle Robins (discussed, post) discussing how much they loved each other and their future plans
together. There was also a lengthy e-mail
from Jennifer to Robins.
2. Dr.
Trayers' relationship with Danielle Robins and the events culminating in his
death
Robins
testified that she met Dr. Trayers in August 2010 on a Mercy-class hospital
ship when she was a medical student, and they developed a friendship. They both returned to San Diego County after
their journey on the ship. Robins
eventually started an emergency room rotation at Balboa Naval Medical Center where
Dr. Trayers worked, and they began to have an affair at the end of
September. They exchanged numerous e-mail
and text messages in which they expressed their love for each other.
During
this same time period, Dr. Trayers and Jennifer attended marriage counseling,
and Dr. Trayers was conflicted about whether he should continue his affair with
Robins. In late November or early
December, he told Robins a false story that Jennifer was pregnant, and Robins
told him they would have to end the affair.
Unbeknownst to Dr. Trayers and Robins, Jennifer was reading their e-mail
communications.
Early
in the morning on December 4, Dr. Trayers texted Robins, who was in Maryland, that he
had finished his shift and had about 30 minutes of dictation to complete. At around 7:15 a.m., Dr.
Trayers, who was at home, sent his last text message to Robins telling her he
was going to sleep. He took some
Zolpidem to help him sleep.
About
an hour later, Jennifer replaced her husband's photographs on Facebook with
photos of themselves in happier times.
Shortly thereafter, using her husband's e-mail account, Jennifer sent
Robins two e-mails with attachments, one of which was a lengthy eight-page
letter written by Jennifer and addressed to "Little Miss Grass is Not
Greener on My Side." In her letter,
Jennifer accused Robins of having ruined her husband's marriage, career, and
future. Jennifer wrote, "I was the
last person he was with."
Within
minutes of sending the e-mail to Robins, Jennifer deleted Dr. Trayers's Gmail
account. On a shelf near the kitchen, Jennifer
left manila envelopes containing copies of her e-mailed letter to Robins and e-mails
between Dr. Trayers and Robins. It is
undisputed that Jennifer killed Dr. Trayers that morning with a knife.
3. Additional
evidence
Jennifer's
mother, Deborah Smith, testified that she spoke with Jennifer by telephone on
the morning of December 4 right after she texted Jennifer at around 9:00 a.m. Jennifer told her she and
Fred (Dr. Trayers) were sleeping in.
a. Evidence of Jennifer's extramarital affair
Orvill
Webb testified he met Jennifer in Florida in 2001 or
2002, and they a sexual affair that began around 2002 and ended in late 2004 or
2005.
B.
Defense Case
Jennifer
testified on her own behalf. She and Dr.
Trayers, who was in the Navy training to be a pilot, met in 1991 and married in
1992. In 1997, they moved to Fallon, Nevada, so Dr.
Trayers could teach at the Top Gun flight school. In Fallon, Dr. Trayers met Danielle Merket, a
civilian who was conducting some sort of psychological research on pilots. The two continued to have contact after
Merket left Fallon.
Jennifer
testified that she and her husband moved to Fort Lauderdale in
2001, and her husband started medical school. Dr. Trayers contacted Merket, who lived in Orlando, and they started
spending time together. Jennifer eventually
became convinced they were having an affair.
Jennifer
began to have a sexual relationship with Webb in early 2003 because she was
upset her husband was in love with Merket and felt their marriage was over. Dr. Trayers learned about the relationship a couple
months after it started and blamed himself for not paying attention to Jennifer
and not being home. The couple stayed
together, but the marriage was under strain.
Jennifer
testified that when they moved from Florida to San Diego in 2005,
they agreed to put the affairs behind them and renewed their vows in 2007 on
their 15th anniversary. Jennifer became
angry when she caught Fred e-mailing Merket late in 2007, but she remained in the
marriage. She testified that her
relationship with Dr. Trayers from early 2010 to early August of that year was
good, there was never a time when she used physical violence against him, and
he did not use physical violence against her.
Jennifer
testified that when Dr. Trayers returned from the Mercy ship cruise in early September,
she became suspicious over the amount of time he spent sending text messages to
someone else on his phone. She became
anxious because she felt something was wrong and started losing weight and not
sleeping. The couple began going to counseling
in late September, but Dr. Trayers continued to deny anything was happening.
Jennifer
stated she installed spyware software on their home computer and Dr. Trayers's laptop
in early October that allowed her to see what he was communicating by e-mail. The first e-mail she read was from Dr. Trayers
to another woman about what he had done with her that day. She mistakenly thought Dr. Trayers was
communicating with Danielle Merket. Jennifer
testified she felt sick when she read that e-mail, and she began to print the e-mails. She confronted Dr. Trayers in mid-October
about the hundreds of text messages the phone bill showed he had sent to a
phone number in Maryland, and he told her he was simply helping a medical student (Danielle
Robins) in Maryland.
Jennifer
testified she read one e-mail from Danielle Robins that called Dr. Trayers "Mr.
Wonderful" and suggested he was with Robins exclusively. Jennifer started feeling better when she
deduced from the e-mails that Dr. Trayers's relationship with Robins was
ending, but then in late November she saw one informing Dr. Trayers that Robins
was returning to Camp Pendleton. Jennifer testified she continued
feeling anxious and losing weight. In
late November, Dr. Trayers removed photos of the two of them from his Facebook
page.
The
eight-page e-mail that Jennifer sent to Robins was actually a journal Jennifer began
in October. She testified she made her
last entry on December 1. She made no entry
on the morning of December 4. She stated
that when she wrote her entries─such as, "I will have the joy of
knowing I got to spend quality time with him," and "I got to see him
every day," which she acknowledged seemed to be in the past tense─she
had no plan to kill her husband, but was considering suicide. By the end of November, she was sleeping only one
or two hours a night.
Jennifer
also testified that on December 3, before Dr. Trayers left for the holiday
party and then work, he sat down on the couch with her and told her he would
never leave her and that he wanted to start being honest with her and
communicating more. Jennifer wanted him
to admit his affair with Robins, but did not confront him about it because she
had not told him she was reading his e-mail.
She did not sleep at all that night; she was awake worrying about their
relationship.
Dr.
Trayers came home from work at around 7:30 a.m. (Dec. 4), and talked
about the Christmas party the night before. He said there would be pictures from it on
Facebook. Jennifer said to him, "Speaking
of Facebook," and asked what had happened to the missing photos of the two
of them on his Facebook page. Jennifer
testified he claimed he did not know what she was talking about, and she became
angry that he was "playing dumb." They went to the computer and Dr. Trayers pretended
he did not know how the pictures had disappeared. He posted some pictures of the two of them, and
said, "Now are you happy" in a voice that sounded like he was
disgusted with her.
Jennifer
testified that, while Dr. Trayers was in the bathroom, she stayed at the computer
and found 12 to 15 new e-mails that she believed were from Robins and deleted all
of them without reading them. She then
sent an e-mail to Robbins from Dr. Trayers's account with photos attached
showing him wearing his wedding ring. She
also sent screen prints of pornography and herpes Web sites Dr. Trayers had
visited. Finally, in a second e-mail, Jennifer
pasted the journal she had been keeping and sent it as the eight-page e-mail to
Robins using Dr. Trayers's account.
According
to Jennifer, when Dr. Trayers came out of the bathroom she repeatedly asked him
to talk to her about what he had said the night before, about being honest and
communicating more. Dr. Trayers told her
to calm down, said they should first take a nap, and told her they should both
take Ambien and get some sleep. During
this time, Dr. Trayers received a phone call he said was from a Virginia area code,
and Jennifer assumed it was Robins. Dr.
Trayers let the call go to voice mail.
Jennifer
testified that Dr. Trayers crushed more than one Ambien pill, put them in
orange juice, and they each drank half. She
did not know how many Ambien pills he put in the juice. She became increasingly anxious and angry,
and Dr. Trayers kept saying he wanted to take a nap before talking. Jennifer retrieved the manila envelopes in
which she had been keeping the e-mails and other documents and showed them to
Dr. Trayers, who shook his head and said that he did not want to see them, he
was going to bed to read, and they could talk after lunch.
Jennifer
testified she became more angry, went to the kitchen, slammed down the
envelopes, and grabbed a butcher knife. She
thought if she threatened to hurt herself she would get him to talk to
her. She took the knife into the bedroom
where Dr. Trayers was lying on the right side (as viewed from the foot of the
bed), got into the middle of the bed by his right arm, held the blade of the
knife to her wrist, and asked him whether that was the way to cut her wrists. She had no intention to kill or hurt Dr.
Trayers, but assumed he would stop her if she tried to hurt herself. He started laughing at her. Dr. Trayers told her the butcher knife was not
sharp enough, and then reached down and opened the bottom drawer of the
nightstand to show her his military knife. Jennifer testified she jumped over him and
grabbed it, put the butcher knife on the nightstand, and returned to the middle
of the bed. Jennifer put the military
knife against her left wrist and again asked him how to hold the knife to cut
her wrist. Dr. Trayers told her that, if
she wanted to kill herself, she needed to cut an artery that ran down her arm, and
she started poking at that artery with the knife.
According
to Jennifer's testimony, Fred did not respond, and she grew angrier. She poked herself harder and started to bleed
and from Dr. Trayers' reaction she believed he thought it was funny. Jennifer held the knife to her chest and
asked where she should stab herself, and he said, "Lower." Jennifer testified she became angrier than she
had ever been.
Jennifer,
while still being questioned by her counsel on direct examination, testified that
Dr. Trayers, using his left hand, grabbed her wrist to try to take the knife
from her. She also stated that Dr.
Trayers was right-handed, and he used his left hand because she was kneeling on
his right hand. Jennifer testified she
did not intentionally kneel on his right hand to pin it down.
Jennifer's
counsel asked her, "And at this point right as he starts to grab toward
the knife, do you recall whether you were feeling the effects of the Ambien or
not" Jennifer replied, "I don't
recall that I am."
Jennifer
indicated she and Dr. Trayers started wrestling when she was still on top of
his right hand, but he got his right hand out from under her, and then they
struggled over the knife. During the
struggle, the knife remained pointed in Jennifer's direction even though her
arms were swinging. To force Dr. Trayers
to release his grip on her right wrist, Jennifer leaned over him and banged his
left arm on the side of the mattress. She
testified that, even through Dr. Trayers was stronger, she was able to free her
wrist from his grip. Dr. Trayers then
sat up and reached with his right hand for the butcher knife on his
nightstand. Jennifer testified that Dr.
Trayers touched the handle of the knife, and she stabbed him with the military
knife in the back of the neck because "[i]t was the first place I saw skin"
and she aimed for it. The butcher knife fell
to the floor.
Dr.
Trayers then stood up by the nightstand, facing her and pulling the comforter
and flat sheet from underneath her. Jennifer
testified that Dr. Trayers bent down and then she blacked out. She stated she did not remember stabbing Dr.
Trayers a second time, and she had no memory of stabbing him multiple times in
the chest and back. Jennifer also testified
she did not specifically intend to kill her husband that morning, and she never
thought that morning that she was so jealous of his seeing Robins that she wanted
him dead.
DISCUSSION
I. ADMISSION OF EVIDENCE OF JENNIFER'S EXTRAMARITAL AFFAIR
Jennifer
first contends her second degree murder conviction must be reversed because the
court deprived her of her federal constitutional rights to due process and a
fair trial by erroneously admitting evidence of her marital affair with Webb,
which she asserts was irrelevant and prejudicial character evidence that the
court should have excluded under Evidence Code sections 1101, 1102, and
352. This contention is unavailing.
A.
Background
1.
Jennifer's in limine motion to
exclude evidence of her extramarital affair
Jennifer
filed a motion in limine seeking to exclude evidence that she had an
extramarital affair with Webb that ended around 2005. Jennifer argued that evidence of Dr. Trayers's
first affair with Danielle Merket in 2007 should be admitted as it was relevant
to her state of mind at the time she killed him "because there is a strong
inference that the culmination of [Dr. Trayers's] marital indiscretions
provided sufficient provocation for [her] to engage in the killing of her late
husband." However, she claimed that
evidence of her own affair with Webb should be excluded under Evidence Code
section 352 (discussed, post) because
it was irrelevant and its admission would create substantial danger of undue
prejudice.
The
prosecutor did not object to admission of evidence of Dr. Trayers's first
affair, but argued that evidence of Jennifer's own "lengthy" affair with
Webb should be admitted to show the true state of their marriage. Specifically, the prosecutor argued that in
the eight-page letter Jennifer e-mailed to Robins, Jennifer portrayed herself as
a wife who had been dedicated to her husband during their 19-year marriage
despite his two affairs, and who had been faithful to him and had supported him
at every step. The prosecutor also
argued the letter should be admitted in its entirety because it showed Jennifer's
"thought processes, her deliberation, her consideration," and "her
manipulation of the truth." The
prosecutor further argued the evidence of Jennifer's affair should be admitted
during the People's case-in-chief because the admission into evidence of the
eight-page letter "paint[ed] a picture" of a dedicated wife who had sacrificed
for her husband, and based on the admission of that evidence Jennifer chose not
to testify. The evidence of Jennifer's
extramarital affair would show "the truth of this marriage," that "[i]t
was not a committed relationship," and there was "a
history . . . of rupture in this marriage."
a. First ruling
The
court ruled that evidence of Jennifer's extramarital affair was admissible and should
be presented during the prosecution's case-in-chief. The court explained that "trials are
about a search for the truth and evaluating both sides, and to paint a picture
of . . . the wife who has done everything for the husband
and sacrificed everything for him . . . would paint a very
misleading picture if the jury were not to be made aware of this problem in her
marriage where she had this long-term affair." The court indicated that this evidence should
not be kept from the jury─especially when the defense was arguing that
evidence of an affair Dr. Trayers had, even before Jennifer had her own affair,
was relevant─because the jury had to evaluate what was going on in
Jennifer's mind when she killed Dr. Trayers and how his relationship with
Robins affected her. The court found the
evidence of Jennifer's affair was relevant in "impeaching her honesty in
the emails" and "impeaching the motivation which she expresses in
this lengthy email that she sen[t]" to Robins. However, the court ruled the prosecution
could only call as a witness the person (Webb) with whom she had the affair,
and he could only testify briefly that he had the affair and the dates of the
affair.
2.
Jennifer's renewed objections to
the evidence of her extramarital affair
Defense
counsel renewed his objections before Webb testified during the prosecution's
case-in-chief. Jennifer's attorney
asserted that Webb's testimony was not relevant and requested that Webb "not
be allowed to testify under [Evidence Code section] 352." Counsel stated that Jennifer would not deny her
affair with Webb if asked about it.
In
response, the prosecutor argued Webb's testimony was still needed because
defense counsel's opening statement indicated that Jennifer would testify her
affair with Webb was brief and not continuous, and Webb's testimony would be
different. Noting that Webb was an
out-of-state witness whose availability was limited under the terms of the
interstate compact, the prosecutor expressed concern the People would be unable
to present Webb's testimony if they had to wait until their rebuttal case. Both the prosecutor and defense counsel
acknowledged that Jennifer's testimony was expected to be lengthy.
a. Second ruling
The
court reaffirmed its earlier ruling that the prosecution would be allowed
during its case-in-chief to present Webb's testimony about his affair with
Jennifer. The court explained that Webb's
testimony "[would] be relatively brief" about an affair that "[Jennifer]
really doesn't dispute," and "the [Evidence Code section] 352 aspects
of it are very limited." The court
stated it was "inclined to allow [Webb] to testify" given that both
defense counsel and the prosecutor acknowledged Jennifer would be on the
witness stand for more than a day, and "we'd lose the ability to have him
testify" unless he testified during the prosecution's case-in-chief. The court also observed that the "chances"
Jennifer's testimony and Webb's testimony would be identical regarding their
affair were "rather remote," and, thus, Webb's testimony "would
be coming in legitimately in rebuttal in any event." The court reiterated that the jury needed to
hear as much information as possible about what happened during the last 10
years of Jennifer and Dr. Trayers's marriage "in order to understand what
the emotions were and what [Jennifer] was feeling
on . . . December 4" when she killed Dr. Trayers.
Shortly
thereafter, the prosecution presented Webb's brief testimony (discussed,
Jennifer, which, he stated began around 2002 and ended in late 2004 or 2005.
B.
Applicable Legal Principles
Evidence
Code section 350 provides that only relevant evidence is admissible. Evidence Code section 210 defines relevant
evidence as "evidence, including evidence relevant to the credibility of a
witness or hearsay declarant, having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the
action." "[A] trial court has
broad discretion in determining the relevance of evidence." (People v. Smithey (1999) 20 Cal.4th
936, 973.)
1.
Evidence Code section 1101
Evidence
Code section 1101, subdivision (a) "prohibits admission of evidence of a
person's character, including evidence of character in the form of specific
instances of uncharged misconduct, to prove the conduct of that person on a
specified occasion." (People v.
Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) Thus, evidence of other crimes or bad acts is
inadmissible when it is offered to show that a defendant had the criminal
disposition or propensity to commit the crime charged. (Evid. Code, § 1101, subd. (a).)
Evidence
Code section 1101, subdivision (b) "clarifies, however, that this rule
does not prohibit admission of evidence of uncharged misconduct when such
evidence is relevant to establish some fact other than the person's character
or disposition." (Ewoldt, supra,
7 Cal.4th at p. 393, fn. omitted.) Specifically,
that subdivision provides that nothing in Evidence Code section 1101 "prohibits
the admission of evidence that a person committed a crime, civil wrong, or
other act when relevant to prove some fact (such as motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake or accident
. . .) other than his or her disposition to commit such an act." (Evid. Code, § 1101, subd. (b).)
2.
Evidence Code section 352
If
the trial court determines that uncharged misconduct is admissible under
Evidence Code section 1101, subdivision (b), it must then determine whether the
probative value of the evidence is " 'substantially outweighed by the
probability that its admission [would] . . . create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.' " (Ewoldt, supra, 7 Cal.4th at p.
404; Evid. Code, § 352.)
The
California Supreme Court has explained that "[t]he prejudice which
exclusion of evidence under Evidence Code section 352 is designed to avoid is
not the prejudice or damage to a defense that naturally flows from relevant,
highly probative evidence. '[All]
evidence which tends to prove guilt is prejudicial or damaging to the defendant's
case. The stronger the evidence, the
more it is "prejudicial." The "prejudice"
referred to in Evidence Code section 352 applies to evidence which
against the defendant as an individual and which has very little effect on the
issues. In applying [Evidence Code]
section 352, "prejudicial" is not synonymous with "damaging."
' " (People v. Karis (1988)
46 Cal.3d 612, 638, italics added.)
3. Standard of review
We
review the trial court's rulings under Evidence Code sections 1101 and 352 for
an abuse of discretion. (People v.
Lewis (2001) 25 Cal.4th 610, 637.) We
will not disturb the trial court's exercise of discretion except upon a showing
that it "exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of justice." (People v. Rodriguez (1999) 20 Cal.4th
1, 9-10.)
C.
Analysis
The
court did not abuse its discretion in admitting Webb's testimony about his extramarital
affair with Jennifer. Jennifer asserts
that Evidence Code section 1101 "codified the rule that protects a
defendant from being judged guilty of present charges because
of . . . her prior acts." (See Evid. Code, § 1101, subd. (a); Ewoldt,
supra, 7 Cal.4th at p. 393.)
However, as already discussed, this rule does not prohibit admission of
evidence of uncharged prior conduct when such evidence is relevant to establish
some fact other than the defendant's character or criminal disposition to
commit the charged offenses. (Evid.
Code, § 1101, subd. (b); Ewoldt, at p. 393.)
Jennifer
claims the court erred in admitting Webb's testimony because, although her
intent or motive was at issue, this evidence "shed no light on what [her]
mental state was" when she killed Dr. Trayers. This claim is unavailing. "Evidence of an accused spouse's
intimate relations with others is relevant to the state of . . . her
marital relationship with the victim spouse and, therefore, to motive." (People
v. Houston (2005) 130 Cal.App.4th 279, 307; see also People v. Gosden (1936) 6 Cal.2d 14, 25 [noting that "'[n]o
rule is more firmly established than that, upon the trial for murder of husband
or wife, evidence tending to show illicit relations of the accused with another
is admissible to show lack of love or affection for the defendant's lawful
spouse.'"].)
Here,
Jennifer placed at issue the state of her marriage with Dr. Trayers, and thus
her motive in killing him, by arguing that evidence of Dr. Trayers's first
affair─with Merket before she had her own affair with Webb─was
relevant to her state of mind at the time she killed Dr. Trayers. Webb's testimony about his affair with
Jennifer while she was married to Dr. Trayers was relevant to both the state of
her marital relationship with Dr. Trayers and her motive at the time she killed
him. (See People v. Houston, supra,
130 Cal.App.4th at p. 307; People v. Gosden,
supra, 6 Cal.2d at p. 25.)
Jennifer
also asserts "[t]here was nothing to link Webb's testimony to what happened
to [Dr. Trayers]" because "[i]t . . . said
nothing about [her] credibility." This
assertion is also unavailing. Evidence
Code section 1101 does not prohibit admission of evidence of uncharged prior
conduct to attack a defendant's credibility.
Subdivision (c) of that section expressly provides: "Nothing in this section affects the
admissibility of evidence offered to support or attack the credibility of a
witness." (See also
934-935 ["Evidence that defendant had sexual contact with women other than
[the woman to whom he considered himself married] during their relationship had
some tendency in reason to . . . call his credibility into
question."].)
Here,
Jennifer portrayed herself in the eight-page e-mail she sent to Robins as a
wife who had been dedicated to Dr. Trayers over the years and had sacrificed
for him despite his two extramarital affairs. Webb's testimony that Jennifer had her own
affair with him undermined her self-portrayal in that letter and "had some
tendency in reason to . . . call [her] credibility into
question." (People v. Clark, supra,
52 Cal.4th at p. 935.)
In
a related a claim, Jennifer asserts the Attorney General "offers no
authority for presenting 'impeachment' evidence to attack the credibility of
evidence [(Jennifer's statements in her e-mailed letter)] presented by the
prosecution." However, the reporter's
transcript of the hearing on Jennifer's motion to exclude Webb's testimony
shows the court agreed with the prosecutor's arguments that Webb's testimony
should be presented during the People's case-in-chief because (1) defense
counsel's opening statement indicated Jennifer would testify that her affair
with Webb was brief and not continuous, and Webb's testimony would be different;
(2) Webb was an out-of-state witness whose availability was limited; (3)
Jennifer's testimony was expected to be lengthy; and (4) the prosecution would be unable to
present Webb's testimony if it had to wait until its rebuttal case. The court found the chances Jennifer's
testimony and Webb's testimony would be identical regarding their affair were
rather remote, and, thus, Webb's testimony "would be coming in
legitimately in rebuttal in any event." We conclude the court did not abuse its
discretion in allowing the prosecution to present Webb's brief testimony during
the People's case-in-chief because the record shows he was an out-of-state
witness who would have been unavailable to testify as a rebuttal witness
following Jennifer's lengthy testimony.
Jennifer
also contends the court should have excluded Webb's testimony under Evidence
Code section 352 because, "[i]f there was any minimal relevance[,] it was
outweighed by its prejudicial effect."
We reject this contention. Under
Evidence Code section 352, evidence is properly excluded if its probative value
is "substantially outweighed" by the probability that its admission
will necessitate undue consumption of time, or create a substantial danger of
undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, § 352; People v. Cudjo
(1993) 6 Cal.4th 585, 609.)
Here,
the reporter's transcript of Webb's brief trial testimony consists of only 10
pages. Webb indicated he met Jennifer,
who was then married to Dr. Trayers, in 2001 or 2002 when he and the Trayers
lived in Florida. He testified that he and
Jennifer worked together, and they eventually had an affair that began around
2002 and became a sexual affair. Webb
stated the affair ended in late 2004 or 2005.
Webb's testimony was not unduly prejudicial for purposes of Evidence
Code section 352 as it did not amount to evidence that "'uniquely tends to
evoke an emotional bias against the defendant as an individual and which has
very little effect on the issues.'"
(People v. Karis, supra,
46 Cal.3d at p. 638.)
Last,
we reject Jennifer's contention that "[t]he erroneous introduction of
unnecessary and inflammatory evidence of an old extramarital affair that
contained little or no probative value rendered [her] trial fundamentally unfair,
in violation of the Fourteenth Amendment right to due process." For reasons already discussed, we conclude the
court did not err.
II. SUFFICIENCY OF THE EVIDENCE
Jennifer
also contends the evidence is insufficient to support her conviction of second
degree murder because no rational trier of fact could have found beyond a
reasonable doubt that she killed her husband with malice rather than in the
heat of passion; and, thus, there is no substantial evidence she committed any
crime greater than voluntary manslaughter.
We reject this contention.
A.
Applicable Legal Principles
1. Second degree murder and the heat of
passion form of voluntary manslaughter
"Criminal
homicide is divided into two types: murder
and manslaughter." (
941 (Beltran).)
"Murder
is the unlawful killing of a human being, or a fetus, with malice aforethought."
(§ 187, subd. (a).) Section 188 defines malice aforethought, which
may be either express or implied. (People
v. Chun (2009) 45 Cal.4th 1172,
1181 (Chun).) "Express
malice is an intent to kill. [Citation.]
. . . Malice is implied when a person willfully does an
act, the natural and probable consequences of which are dangerous to human
life, and the person knowingly acts with conscious disregard for the danger to
life that the act poses." (People
v. Gonzalez (2012) 54 Cal.4th 643, 653.)
First
degree murder is an unlawful killing with malice aforethought, willfulness, premeditation,
and deliberation. (Chun, supra, 45 Cal.4th at
p. 1181; see also § 189.) "'Second
degree murder is the unlawful killing of a human being with malice, but without
the additional elements (i.e., willfulness, premeditation, and deliberation)
that would support a conviction of first degree murder.'" (Chun,
at p. 1181.)
"Manslaughter
is the unlawful killing of a human being without malice." (§ 192.) A manslaughter offense is voluntary when the killing is "upon a sudden quarrel or heat of
passion." (§ 192, subd. (a).)
"Voluntary
manslaughter is a lesser included offense of murder." (People
v. Cole (2004) 33 Cal.4th 1158, 1215.)
Thus, voluntary manslaughter is a lesser included offense of second
degree murder, of which Jennifer was convicted in this case.
"The
heat of passion requirement for [voluntary] manslaughter has both an objective
and a subjective component." (
1252.) The subjective component requires
proof that the defendant "actually, subjectively, kill[ed] under the heat
of passion." (People v. Manriquez (2005) 37 Cal.4th 547, 584.) The objective or "reasonable person"
component of the heat of passion form of voluntary manslaughter requires proof
of physical or verbal conduct by the victim that, under the circumstances at
the time of the killing, was "sufficiently
provocative that it would cause an ordinary person of average disposition to
act rashly or without due
deliberation and reflection."
(People v. Lee (1999) 20 Cal.4th 47, 59; see also
Stated differently, the victim's provocative conduct "must be such
that an average, sober person would be so inflamed that he or she would lose
reason and judgment." (
"'[I]f
sufficient time has ela[ps]ed for the passions of an ordinarily reasonable person
to cool, a killing is murder, not [voluntary] manslaughter.'" (People v. Daniels (1991) 52 Cal.3d
815, 868.)
2.
Standard of review
When
assessing a challenge to the sufficiency of the evidence, we apply the
substantial evidence standard of review, under which we view the evidence "in
the light most favorable to the judgment below to determine whether it
discloses substantial evidence─that is, evidence that is reasonable,
credible, and of solid value─such that a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d
557, 578; Jackson v. Virginia (1979) 443 U.S. 307, 319.) "The same standard of review applies to
cases in which the prosecution relies mainly on circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342,
396.)
The
uncorroborated testimony of a single witness is sufficient to sustain a
conviction or true finding on an enhancement allegation, "unless the
testimony is physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284,
296.) We do not reweigh the evidence,
resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199,
1206; People v. Jones (1990) 51 Cal.3d 294, 314.) "Resolution of conflicts and
inconsistencies in the testimony is the exclusive province of the trier of
fact." (People v. Young
(2005) 34 Cal.4th 1149, 1181.)
B. Analysis
Viewing
the evidence in the light most favorable to the judgment, as we must (People v. Johnson, supra,
26 Cal.3d at p. 578; Jackson v. Virginia, supra, 443 U.S. at p.
319), we conclude any reasonable trier of fact could find beyond a reasonable
doubt that Jennifer acted with malice when she fatally stabbed Dr. Trayers, and
that Dr. Trayers's conduct was not "sufficiently
provocative that it would cause an ordinary person of average disposition to
act rashly or without due deliberation
and reflection." (Lee,
supra, 20 Cal.4th at p. 59.)
1.
Malice
Substantial
evidence shows Jennifer acted with malice by either intentionally killing Dr.
Trayers or by acting with a conscious disregard for his life while knowing she
was endangering his life. (See Chun, supra, 45 Cal.4th at p. 1181.) Jennifer's own testimony establishes that the
first stabbing wound she inflicted was to the back of Dr. Trayers's neck and
that she intentionally aimed at that part of his body. Specifically, Jennifer testified she stabbed
him "the first time" with the military knife "in the back of the
neck." Her trial counsel then asked
her, "Did you aim for the back of his neck or head, or did that just
happen that way" Jennifer replied,
"It was the first place I saw skin." Her counsel then asked her, "And when you
say that was the first place you saw skin, were you aiming for a part of his body that had skin showing" (Italics added.) Jennifer answered, "Yes."
In
addition, undisputed medical expert testimony established that Jennifer stabbed
Dr. Trayers numerous times in vital parts of his body, including twice in the
chest and eight times in the back. One
of the chest wounds, which was two and a half inches deep, went through the
heart and the right lung. The other
chest wound, which was three and a half inches deep, went through the left
lung. One of wounds in the back went
into the chest cavity, another entered the abdomen and cut into the right
kidney, and another went through the left kidney.
Any
rational trier of fact could find beyond a reasonable doubt that, because
Jennifer specifically and intentionally "aimed" her first strike with
the knife at the back of Dr. Trayers's neck, she also intentionally aimed the subsequent
knife strikes to the chest and back in such a way that they would cut through
vital organs. (See People v. Bolden (2002) 29 Cal.4th 515, 561 ["In plunging the
knife so deeply into such a vital area of the body of an apparently
unsuspecting and defenseless victim, defendant could have had no other intent
than to kill."].) Jennifer did claim
in her testimony that she suddenly "black[ed] out" after she stabbed
Dr. Trayers in the neck and that she had no memory "whatsoever" of
stabbing him multiple times in the chest and back. She also indicated that she and Dr. Trayers
had taken an equal dose of Ambien, which is a sleep medication, before she
attacked him with the knife.[5]
However,
Jennifer's own testimony shows she was not feeling any effects from the Ambien
during the struggle for the military knife she was holding immediately before
she stabbed Dr. Trayers in the neck.
Specifically, after Jennifer testified about that struggle, her counsel
asked her, "And at this point . . . do you recall
whether you were feeling the effects of the Ambien or not" Jennifer replied, "I don't recall that I
am." In her testimony, Jennifer
indicated she blacked out almost immediately after she stabbed Dr. Trayers in
the neck. However, in finding Jennifer
killed Dr. Trayers with malice aforethought and she was guilty of second degree
murder, the jury found her testimony was not credible. The foregoing substantial evidence supports
the jury's findings, and we will not reevaluate Jennifer's credibility as a
witness. (See People v. Ochoa,
the verdict is supported by substantial evidence, we must accord due deference
to the trier of fact and not substitute our evaluation of a witness's
credibility for that of the fact finder.'"].)
The
prosecution presented additional substantial evidence that supports the jury's
findings that Jennifer killed Dr. Trayers with malice and her testimony was not
credible. Expert witness testimony
established that the multiple incised wounds to Dr. Trayers's hands were
consistent with defensive wounds that were inflicted as he was attempting to
block or grab the knife to defend himself, Jennifer's knife wounds, most of
which were superficial, were self-inflicted, and she had no wounds of
self-defense.
Also,
as discussed in greater detail in the factual background, ante, substantial evidence showed that a large saturation of Dr.
Trayers's blood was found on the pillows, sheets, and mattress on his side of
the bed; the pillows, as well as the sheets that had been over and under Dr.
Trayers, were slashed; and a blood spatter expert found the blood evidence was
consistent with Dr. Trayers's having been stabbed while he was lying on the bed
under the bedding. From this evidence
any rational trier of fact could find beyond a reasonable doubt that Jennifer
stabbed Dr. Trayers while he was in bed trying to sleep and that she was not
credible when she testified that he stepped out of bed and pulled the flat sheet
and comforter off the bed before she inflicted the fatal stab wounds.
That
Jennifer acted with malice is also circumstantially shown by the eight-page
letter she e-mailed to Robins on the morning of the killing, in which she
wrote, "I was the last person he was with." A rational jury could infer from this
statement referring to Dr. Trayers in the past tense that Jennifer harbored the
intent to kill him.
For
all of the foregoing reasons, we reject Jennifer's contention that no rational
trier of fact could have found beyond a reasonable doubt that she killed her
husband with malice.
2.
Heat of passion
We
also reject Jennifer's contention that there is no substantial evidence she
committed any crime greater than voluntary manslaughter because "[n]o
reasonable juror could conclude that the situation was not one in which an
ordinary person could be provoked to act rashly, from passion rather than
judgment."
As
already discussed, voluntary manslaughter is a lesser included offense of
second degree murder. (See
We begin our analysis by noting that "'[i]n deciding whether there
is substantial evidence of a lesser offense, courts should not evaluate the
credibility of witnesses, a task for the jury.'" (People
v. Manriquez, supra, 37 Cal.4th
at p. 585, quoting People v. Breverman
(1998) 19 Cal.4th 142, 162.) Thus, we
will not disturb the jury's implied determination that Jennifer was not a
credible witness.
We
conclude the evidence of provocation is insufficient to satisfy the objective
or "reasonable person" component of the heat of passion form of
voluntary manslaughter, which requires proof that Jennifer's heat of passion
resulted from conduct on the part of Dr. Trayers that, under the circumstances
at the time Jennifer killed him, was "sufficiently provocative that it would cause an ordinary person of
average disposition to act rashly
or without due deliberation and reflection." (People
v. Lee,
extramarital affair with Robins on or shortly before the day of the stabbing. Substantial evidence shows she learned about the
affair in October, almost two months before she killed him in early December. Specifically, Jennifer testified that she
installed spyware software on their home computer and Dr. Trayers's laptop in
early October that allowed her to read what he was communicating by e-mail. She indicated she read one e-mail from Robins
in mid-October that referred to Dr. Trayers as "Mr. Wonderful," which
Jennifer interpreted to mean he was with Robins exclusively.
The
evidence also shows that in late November or early December, Dr. Trayers told Robins
a false story that Jennifer was pregnant, and Robins told him they would have
to end the affair. In her testimony,
Jennifer acknowledged that she deduced from the e-mails she was surreptitiously
reading that Dr. Trayers's relationship with Robins was ending and Dr. Trayers
had told Robins they could not see each other anymore. The foregoing evidence supports a reasonable
inference that Dr. Trayers had falsely told Robins that Jennifer was pregnant
as an excuse to end his relationship with Robins and stay with Jennifer.
In
her testimony, Jennifer claimed that Dr. Trayers laughed at her when she put
the blade of the butcher knife against her wrist and that she believed from Dr.
Trayers's reaction after she subsequently started poking her wrist harder with
the military knife that he thought her behavior was funny. Even if we were to assume the jury found this
testimony credible, Dr. Trayers's responses to Jennifer's escalatingly
provocative behavior were not sufficiently provocative that they would cause an
ordinary, sober person of average disposition under the circumstances to become
"so inflamed that . . . she would lose reason and
judgment" (People v. Lee, supra,
20 Cal.4th at p. 60) and "act rashly or without due deliberation and
reflection" (id. at p. 59).
III. PROSECUTORIAL MISCONDUCT
Last,
Jennifer contends the prosecutor misstated the law, and thereby committed
prosecutorial misconduct, during her closing arguments by arguing that the
degree of provocation required to reduce the unlawful killing of her husband from
murder to voluntary manslaughter was provocation that would cause a reasonable
person to kill, thereby lowering the People's burden of proof in violation of
her due process right to a fair trial.
This contention is unavailing.
A.
Applicable Legal Principles (
"A
prosecutor's conduct violates the Fourteenth Amendment to the federal
Constitution when it infects the trial with such unfairness as to make the
conviction a denial of due process. Conduct
by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state
law only if it involves the use of deceptive or reprehensible methods to
attempt to persuade either the trial court or the jury." (People v. Morales (2001) 25 Cal.4th
34, 44.)
When
a claim of prosecutorial
misconduct focuses on the prosecutor's questions or comments before the jury, "
'the question is whether there is a reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an objectionable
fashion.' " (People v. Cole,
supra, 33 Cal.4th at pp. 1202-1203,
italics added, quoting People v. Berryman (1993) 6 Cal.4th 1048, 1072,
overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 822-823.)
"[I]t
is misconduct [for a prosecutor] to misstate the law during argument." (People
v. Huggins (2006) 38 Cal.4th 175, 253, fn. 21, citing People v. Boyette (2002) 29 Cal.4th 381, 435.)
B.
Background
The
court instructed the jury on voluntary manslaughter based on heat of passion by
giving CALCRIM No. 570. The court's
instruction stated in relevant part:
"In deciding whether the
provocation was sufficient, consider whether a person of average disposition,
in the same situation and knowing the same facts, would have reacted from passion rather than from judgment." (CALCRIM No. 570, italics added.)
During
her closing argument, the prosecutor discussed the heat of passion form of voluntary
manslaughter and what constituted sufficient provocation. She then made the following statements that
Jennifer now claims, for the first time, misstated the law regarding
provocation:
"You decide whether the
provocation was sufficient.
"What does [Jennifer] tell you
about it
"You decide whether a person of
average disposition in the same situation, knowing the same facts, knowing the
same circumstances, would that person, that average person, have
rather than judgment[.]
[¶] . . .
"Well, would a person of average disposition kill if under those
circumstances this husband, who had been an ideal husband as described in this
letter . . . .
[¶] . . .
"If that were to occur where a
person were to say 'Don't do it like this.
Cut it that way," laugh, get up.
Get up off that bed. Get out of
that room. Get out of that condo and
leave that marriage. Walk out. Go.
"But stab a man in the head, in
the chest, in the back nine times for that
Is that sufficient provocation
Shortly
thereafter, the prosecutor argued, "Again, the defendant cannot set her
own standard. It has to be how a person
of average disposition would react."
(Italics added.)
C.
Analysis
Jennifer
contends the prosecutor's foregoing argument misstated the law regarding
provocation, and thereby constituted misconduct, because the prosecutor "encouraged
jurors to consider whether the provocation would cause an average person to do
what [(Jennifer)] did─kill the victim."
1.
Forfeiture
At
the threshold, the Attorney General argues Jennifer forfeited appellate review
of her claim of prosecutorial
misconduct by failing to object in the trial court to the statements he now
contends constituted misconduct and by failing to request an appropriate
curative admonishment. We agree.
A
defendant may not complain of prosecutorial
misconduct on appeal unless he or she objected at trial on that ground, in a
timely fashion, "'and also requested that the jury be admonished to
disregard the perceived impropriety.'" (People v. Lopez (2008) 42 Cal.4th 960,
966.) The California Supreme Court has
explained that "[t]he primary purpose of the requirement that a defendant
object at trial to argument constituting prosecutorial misconduct is to give the trial court an
opportunity, through admonition of the jury, to correct any error and mitigate
any prejudice. [Citation.] Obviously, that purpose can be served only if
defendant is required to, and does, raise any objection before the jury
retires." (People v. Williams,
supra, 16 Cal.4th at p. 254.)
Here,
Jennifer concedes that "[d]efense counsel did not object to the prosecutor's
argument," and she impliedly acknowledges that she thereby forfeited her prosecutorial
misconduct claim, suggesting that her trial counsel was constitutionally
ineffective for failing to preserve the claim for appellate review. However, she asks this court in its
discretion to reach the merits of her claim.
An
appellate court has discretion to adjudicate an important question of
constitutional law despite a party's forfeiture of the right to appellate
review. (People v. Johnson (2004) 119 Cal.App.4th 976, 985;
1056, 1061.) In the exercise of
discretion, we now reach the merits of Jennifer's claim of prosecutorial
misconduct.
2.
Merits
Jennifer
asserts that the prosecutor misstated the law, and thereby committed
misconduct, by telling the jurors that, in deciding whether the provocation in
this case was sufficient to reduce the unlawful killing of Dr. Trayers from
murder to voluntary manslaughter, they had to decide whether a person of
average disposition under the same circumstances "would . . . have
reacted in the same manner from passion,
rather than from judgment" (italics added). She asserts the prosecutor again misstated
the law by arguing that the jury had to decide whether "a person of
average disposition [would]
same circumstances and that the standard to be applied was "how a person
of average disposition would react."
(Italics added.)
Citing
Beltran, supra, 56 Cal.4th 935, the Attorney General acknowledges that, "[t]o
the extent that the prosecutor focused on the act (to kill), rather than the
reaction (with reason and judgment obscured), Beltran clarified that the prosecutor made a mistake in her
interpretation of the law."
Jennifer
and the Attorney General agree, correctly, that the prosecutor's remark
| Description | After defendant Jennifer Michelle Trayers[1] suspected her husband, Frederick Trayers (Dr. Trayers), was having an extramarital affair and then confirmed her suspicion by reading his e-mail correspondence with his girlfriend, Jennifer killed him with a knife as they lay in bed by stabbing him numerous times. When the police forcibly entered the Trayers' home, they found Dr. Trayers dead on the bedroom floor on one side of the bed, and Jennifer, who was close to death with numerous lacerations later determined to be self-inflicted, on the floor on the other side of the bed near a military-style knife. A jury convicted Jennifer of second degree murder (Pen. Code,[2] § 187, subd. (a)) and found true an allegation that she personally used a deadly and dangerous weapon (a knife) in committing the murder within the meaning of section 12022, subdivision (b)(1). The court sentenced her to an aggregate prison term of 16 years to life. Jennifer appeals her conviction based on three contentions. First, she contends the court deprived her of her federal constitutional rights to due process and a fair trial by erroneously admitting evidence of her own extramarital affair, which she asserts was irrelevant and prejudicial character evidence the court should have excluded under Evidence Code sections 1101, 1102, and 352. Second, Jennifer contends the evidence is insufficient to support her conviction of second degree murder because no rational trier of fact could have found beyond a reasonable doubt that she killed her husband with malice rather than in the heat of passion, and thus there is no substantial evidence she committed any crime greater than voluntary manslaughter. Last, she contends the prosecutor misstated the law and committed prosecutorial misconduct during her closing arguments by arguing that the degree of provocation required to reduce the unlawful killing of her husband to voluntary manslaughter was provocation that would cause a reasonable person to kill, thereby lowering the People's burden of proof in violation of her due process right to a fair trial. We affirm Jennifer's conviction of second degree murder. Accordingly, we affirm the judgment. |
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