P. v. Broughton

Filed 10/22/08 P. v. Broughton CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court for the County of Los Angeles. James B. Pierce, Judge. Reversed.

Patricia Ihara, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________

SUMMARY

Mark Alan Broughton, who was on parole after a conviction for assault with a deadly weapon, was tried for the murder of his wife, Teresa Davila Broughton (Davila). Davila and Broughton did not live together, but saw each other frequently, and Broughton was with Davila when she died. The medical examiner could not determine the cause of death, and found the death to be a homicide only because of suspicious circumstances. Broughton claimed Davila, who suffered from diabetes, obesity, and heart disease, died of natural causes after he unsuccessfully administered cardio-pulmonary resuscitation (CPR). However, Broughton did not call for help, and remained in Davilas apartment with her decomposing body for at least eight days and perhaps a week or so longer. There were three previous incidents of domestic violence, two in 1989 and one in 1995, and a July 19, 2001 restraining order forbad Broughton from contact with Davila; remaining away from Davila was also a condition of Broughtons parole. A jury convicted Broughton of murder after a trial at which the prosecutor was admonished several times for misconduct of various sorts. Broughton appeals, asserting insufficiency of the evidence, prosecutorial misconduct, and other claims of error.

We reverse the judgment. While the evidence was sufficient to sustain a conviction, the case was an extremely close one. Prosecutorial misconduct and other error affecting a critical element of the prosecutions case lead us to conclude that, had the trial proceeded without those defects, there is a reasonable probability the verdict would have been different.

FACTUAL AND PROCEDURAL BACKGROUND

Broughton was charged with murder (Pen. Code, 187, subd. (a)) in a one-count information that also alleged he had served one prior prison term.[1] ( 667.5, subd. (b).) A jury found him guilty of murder,[2]and the trial court found the prior prison term allegation to be true. The court denied Broughtons motion for a new trial on grounds of insufficient evidence and prosecutorial misconduct, and Broughton was sentenced to state prison for 16 years to life. The court imposed a $10,000 restitution fine, a $10,000 parole revocation restitution fine (stayed), and a $100 security fee, and Broughton was given credit for 742 days in custody.[3] Broughton filed a timely notice of appeal.

The evidence presented at trial, viewed in the light most favorable to the judgment, was as follows.

1. The condition of Davilas body.

Davilas body was found in the bedroom of her apartment on March 24, 2004, in a state of moderate to severe decomposition. Broughton was living in the apartment. He had covered Davilas body with blankets and clothing, sprinkled white talcum powder throughout the apartment, and was using several fans and air conditioning. Shades were drawn and blankets covered windows and the sliding glass door in the living room. An autopsy determined Davila had been dead for days to weeks. The medical examiner (Dr. Vadims Poukens) could not determine the cause of Davilas death due to the state of decomposition. Death was not caused by blunt force trauma or sharp force injuries, but decomposition could mask superficial injuries. Poukens could not exclude asphyxia as a cause of death, but there was no physical evidence of asphyxia. The autopsy showed Davila had a bad heart. Her heart was slightly enlarged, and she had significant arteriosclerosis (clogged arteries). She was five feet tall and at autopsy her body weighed 212 pounds. She was diabetic, and could have died from diabetic shock or a heart attack. Had there been no suspicious circumstances, the medical examiner would have determined Davila died of heart disease.[4]

2. The discovery of the body.

Davilas body was discovered when the Long Beach police came to Davilas apartment to check on her welfare. They did so after receiving a call from Broughtons stepfather (a San Bernardino County sheriffs employee), who told the police he had received a telephone call from Broughton and that Broughtons wife may or may not be dead. When the police arrived (Officer Dylan Lobascio and his partner), Broughton opened the door and said, Im glad to see you guys. Come in. Come in. Broughton appeared to be relieved that the police had arrived. When Broughton opened the door, the police officers could smell the decomposition. Broughton told them his wife had passed away a few days ago, and at the time he didnt know what to do, so he had kept her there. The body was on the floor between the bed and the window. Blood stains were found on the underside of a pillow on the bed, and the bed sheet also appeared to contain dried blood stains.

When Lobascio asked Broughton what had happened, Broughton related the following. He talked with Davila by telephone on March 9, 2004, and Davila told him she was not feeling well and wanted Broughton to come over and help take care of her. Broughton agreed. On March 16, Davila was not feeling well, and Broughton helped her into bed. He left to go to the local 7-Eleven store, and returned 12 to 15 minutes later to find Davila lying on the bed and breathing heavily. She had bubbles coming out of her mouth and was unresponsive. Broughton rolled her over to get the fluid out of her mouth; he got the fluid out but she remained unresponsive, so he moved her to the floor and administered CPR. The CPR was unsuccessful and Davila died. Broughton said he was confused, numb, didnt know what to do and didnt want to let go, so he kept Davilas body in the apartment; when the decomposition odor began, he used powder and fans to deal with it. On March 23, 2004, he called his stepfather and told him what had happened.

Another officer, Gary Lawson, arrived on the scene later and also spoke to Broughton.[5] He asked Broughton why he didnt call 911, and Broughton responded, I didnt know what to do. Lawson also asked why he waited so long to call the police, and Broughton first told him that he (Broughton) didnt have rent money for the place he had been staying, and had no other place to go; Broughton then said, I couldnt let her go.

3. Broughtons record and history of domestic violence.

At trial, the parties stipulated to the occurrence of three incidents of misdemeanor conduct by Broughton against Davila during their marriage: (1) on May 5, 1989, police officers observed Davila with a swollen left eye and a small laceration; (2) on June 2, 1989, officers observed Davila with bruises and swelling to her shoulder and redness to her neck area; and (3) on September 2, 1995, officers observed Davila with a bruise to her left knee.

In addition, Veronica Mercado, a friend of Davilas and a neighbor from 1998 to May 2003, testified that she heard Broughton threaten Davila more than once in 2002 or 2003.[6] She testified:

[S]ometimes he would go like, you know, one of these days Im going to kill you, bitch, and, you know, inside of the apartment, right. And sometimes, when he was coming from outside, he will come close to the door and kick the door and, you know, tell her to open the door and let him in. And then he would go like, Ill have a surprise for you. One of these days Im going to kill you.

The last time Mercado actually saw Davila was in July 2003.

Broughton admitted during interrogation that he got prison time for aggravated assault, for stabbing someone who had attacked him in his house. He was placed on parole in July 2002.[7] One of the special conditions of Broughtons parole was that he could not have any contact with Davila. Less than two months after his release, he was found in Davilas company and taken into custody for violating his parole.[8] He was released a year later, in September 2003, six months before Davilas death.

The trial court permitted the prosecution to reopen its case to receive expert testimony from a Long Beach police officer working the domestic violence detail, Detective Robin Hawkins. Hawkins testified that domestic violence victims do not always tell the truth, often recant their allegations, do not always report what happens to them, and usually stay with their abusers.

4. Broughtons interviews with the police.

After the police found Davilas body on March 24, 2004, Broughton was taken into custody for violating the conditions of his parole. He was interviewed for several hours on March 24th by Detective Richard Conant and another detective, and again nine months later on December 17, 2004, by Detective Mark McGuire and Detective Conant. (Broughton was not charged until February 9, 2006.) The tapes of both interviews were played in their entirety for the jury.

The March 24, 2004, interview.

Conant testified that Broughtons story about how Davila died was consistent throughout the March 24 interview, although as the interview went on and the questioning continued, more details about the event came out. Conant said that nothing changed in the story Broughton had told him at the apartment and what Broughton told him in the taped interview. Broughton was combative at certain points, and at times began to get angry, as when he was questioned about why he did not call 911. He said, I didnt call 911. I just didnt. Why, I dont know. And: I cant tell you cause I dont know. I was stressed out . While staying in Davilas apartment with her dead body, he prepared food for himself, fed the cat, and washed his shirts. He at first denied drinking after Davilas death, but then admitted he had a beer. He said he was despondent, and What happened is what happened.

At one point Broughton claimed he wasnt aware his current parole conditions included a prohibition on contact with Davila. He also said he had last been at his residence (a residential hotel in Wilmington) on March 15, and on that day called Davila, who said she was sick and needed his help.[9] When questioned about the cause of the 2001 restraining order, he said, I dont know exactly. . . .  Eighteen years ago or something, I guess we got in a bit of argument. The detectives asked if it went pretty bad, and Broughton winked at the detectives and said Yes, yes. He admitted being arrested for domestic violence against Davila on [a] couple of occasions, including [w]hen [he] beat her up in 1995. He said he didnt remember the details of the domestic violence incidents involving Davila. He stated he thought she went to the hospital and had a check up after one of the incidents. When the detective said, But its been a pattern going back 20 years up until a year or two ago, and now we have this incident, Broughton replied, Which is ridiculous. I know it doesnt look good, does it? Broughton admitted being convicted of assault with a deadly weapon for stabbing someone who attacked me in my house; he said the victim in that case was a convicted child molester who came into his house when Davila was selling her van. When the detectives told him there was blood on the bed, Broughton said it probably dripped from the pillow; he said that the pillow recovered from the bed was the one that was on the floor when he was doing CPR, that blood was coming out of her mouth and nose when she was on the floor, and he put the pillow on the bed after she died; he said [t]he original pillow, the one that I covered up on the bed was down on the floor. I didnt want her I didnt want it all over her face . . . .

The December 17, 2004, interview.

Detectives McGuire and Conant conducted a second interview with Broughton nine months later. Broughton was cooperative and a little jovial . . . . His account of Davilas death, according to McGuire, was consistent with his two previous accounts to Detective Conant (at the apartment on March 24 and at his subsequent taped interview). This time he stated he performed CPR at first on the bed. Davila wasnt breathing, and then he turned her over and put her on the floor, and started pushing her back and compressing her, but there was nothing, just the fluid. Davila ended up on her side when he changed the pillow; I had to get the pillow out from her head and lay her head back down. Broughton said he went to Davilas apartment on March 12, he left that day and came back on March 16 because Davila told him she was very sick. He said he did not call 911 because I didnt wanna go back to prison and and if I did call [they would] have took me back . . . . The detectives confronted Broughton with a notebook in which he had written several entries relating to Davilas death. Broughton said they were [n]otes for my stepfather, and he wrote them after Davila died.[10] When asked by the police whether he had made any phone calls during the time he was at Davilas apartment, Broughton said he called his sister-in-law after Davila died, and asked her to call his stepfather, as he was too distraught.[11]

5. Other evidence.

The pillow recovered from the bed had three blood stains on one side; two of them were reddish-brown in color, and the third appeared to be a continuation of a large brown-and-yellow stain from the other side of the pillow (which was negative for blood). There was also a reddish brown blood stain on the corner of the bed sheet. The DNA extracted from the bloodstains was consistent with Davilas DNA. Broughton was excluded as a contributor to any of the stains, and fingernail scrapings and clippings taken from Davila were consistent with her own DNA, not with Broughtons. The medical examiner (Poukens) testified that fluid may come out of a decedents nose and mouth at the time of heart stoppage, and this fluid is usually a clear fluid with a slight mixture of blood, pinkish rather than bright red in color.

Video from a nearby 7-Eleven stores surveillance camera showed Broughton visited the store numerous times between March 9 and March 23, 2004, and purchased 40-ounce bottles of malt liquor and bottles of wine, as well as other items. He appeared friendly with the clerks.

Broughton had an appointment with Joseph Gilmartin, his parole agent, on March 16, 2004, but did not appear. On March 23rd, Broughton left a voicemail message for Gilmartin, saying that his wife had died, he would be coming in before the end of the month to file a resident report with Gilmartin, but right now everything is kinda right up in the air.

The wife of the manager of the residential hotel in Wilmington where Broughton lived testified that on March 8, 2004, she put a letter concerning a change in management under the door of Broughtons room. The letter was still there on March 21, 2004, when she entered Broughtons room to leave a note regarding the overdue rent. When the police examined Broughtons room on March 25, a sheet covered the window, and the letter and note were recovered from the room.

There was a single black x marked on the date of March 9, 2004, on a calendar in Davilas apartment.

6. The defense evidence.

Broughton presented evidence from several of Davilas doctors; from a forensic pathologist; and from a clinical psychologist who evaluated Broughton.

Dr. Jennifer Hsieh is an endocrinologist. Davila was referred to her in July 2003 because her diabetes was poorly controlled. Davila then weighed 224 pounds, and had smoked half a pack of cigarettes per day since age 16. In January 2004, Davila told Hsieh she had gotten extremely sick, and had stopped taking the medication Hsieh prescribed. Davila had high blood pressure and a blood sugar level that was high, but not severely out of control. Hsieh last saw Davila on March 4, 2004. (She was apparently the last person, other than Broughton, to see Davila.) Davila was flushing and sweaty, but had restarted her medications and her diabetes had improved. When asked if Davilas diabetes was life threatening, Hsieh said, Thats a tough one to answer, but that she would say [i]t would not be considered life threatening. Hsieh characterized Davilas diabetes control as 65-70, on a scale of zero (perfect diabetes control) to 100 (uncontrolled diabetes). Davila had had diabetes for 13 or 14 years.

Dr. Cathy Gentemann, a doctor specializing in internal medicine, last saw Davila in January 2004, when her medical problems included poorly controlled diabetes, high blood pressure, schizophrenia, a foot ulcer, restless leg syndrome, and obesity. Her blood pressure and diabetes placed Davila at higher risk of a heart attack, but arteriosclerosis is not necessarily a life-threatening condition, and Gentemann didnt see any medical problem that I would expect her to immediately die from.

Dr. Clifford Sussman and colleagues in his medical group treated Davila from 1999 to 2001. Sussman testified Davila was prescribed medication for various mental disorders (depression, psychosis, anxiety, and schizophrenia). Davila was also on medications not related to her mental health or diabetes, including Celebrex, which the FDA has warned can increase the risk of cardiovascular disease, in particular heart attack and stroke.

Dr. Robert Anthony, a forensic pathologist, agreed with the medical examiner (Poukens) that Davilas cause of death could not be determined, but criticized Poukens for failing to consider Davilas medical records when he determined her death was a homicide, and for not ordering a comprehensive toxicology report. He testified that a person sweating, with foam or bubbles coming out of their mouth, [p]otentially could be consistent with a drug overdose, including prescription drugs. It could also be consistent with a heart attack. A diabetic with insufficient insulin may have fluid buildup in the lungs, and may start bubbling fluid from the mouth and nose prior to death. Anthony also testified about the risk of sudden death for people with enlarged hearts and about the variable symptoms of pre-heart attacks. He said that the blood on the pillow could be accounted for because, when a dying person is subjected to CPR, air can mix with bloody material from the breakdown of capillaries, and pink to dark red foam can come from the mouth. He testified the manner of death, in his opinion, should be undetermined rather than homicide.

The defense also presented testimony from Dr. Stephen Bindman, a clinical psychologist and neuropsychologist who tested Broughtons I.Q. Bindman testified Broughton had an overall I.Q. of 88, which is in the 16th or 17th percentile and is classified as low average. Various subtests generally placed Broughton in the low average range, although he scored in the 80th percentile on an information subtest and in the 25th percentile on a vocabulary subtest. Broughtons general memory was classified as poor (at the 5th percentile) and affected his ability to remember events accurately. Broughtons performance on one of the tests indicated that he could not describe how things are functionally related very well, suggesting impairment in the frontal lobe of his brain.[12]

7. The prosecutors conduct during trial.

Before the trial began, the court held a hearing under Evidence Code section 402 concerning evidence the prosecution sought to adduce of Broughtons prior acts of violence against Davila and others. In addition to Broughtons interviews with the police, the prosecutor wanted to adduce evidence about two instances in 1989, and another in 1995, involving misdemeanor violence by Broughton against Davila. The trial court ruled Broughtons statements to the police about these acts were admissible, but the specific instances in 89 and 95 are excluded at this point until I hear what you intend to introduce. Eventually, the parties presented the jury with a stipulation about those three instances. The court also ruled that, with respect to Broughtons 1998 conviction for felony assault, the People would not be allowed to go into the facts of the assault without a further order or ruling by the court.

During the course of the trial, there were incidents precipitating motions for a mistrial by defense counsel, one of which was among those the trial court later characterized as major violations by the prosecutor, deputy district attorney Grace Rai, as well as other incidents for which the prosecutor was admonished.[13] These are related in serial order.

a. Gilmartins testimony.

During the testimony of Joseph Gilmartin (Broughtons parole officer), the prosecutor asked him if one of Broughtons special conditions of parole was taking part in a 52 session or 52 sessions of domestic violence counseling. The court sustained the defense objection (leading and hearsay), and then the prosecutor asked what other special conditions of parole existed. Gilmartin answered, It was to attend and complete a 52 week batterers program. The defense moved to strike the answer on hearsay and relevance grounds, and the court struck the answer from the record. Defense counsel then moved for a mistrial, stating the prosecutor had been previously admonished not to ask questions of that nature. The trial court stated:

Counsel, if I didnt make it clear before, Im making it clear now. This is not relevant, the fact that he [the parole officer] added conditions that had nothing to do with this victim is not relevant to this trial. . . .  [] . . . [] Its not to be gone into at all. Ill take under submission your moving for mistrial. At this time its denied.[14]

b. The 1999 incident.

During Virginia Mercados testimony about Broughtons threats to kill Davila in 2002, the prosecutor asked Mercado if she had ever seen injuries on Davila, such as bruising marks or red marks. The court allowed the question, and Mercado said:

Once I saw her, you know, her wrist. She had some kind of, you know, like a bandage or something. So I asked her, and she keeps claiming that her bone hurt. So I asked her what happened. She was at my house.

The defense moved to strike the answer as non-responsive, and the court held a sidebar. The court stated it was not familiar with the incident and asked the prosecutor, What is this about? The prosecutor said that she didnt know that [the witness] was going to say that, and the court told the prosecutor to stay away from it then . . . .

Later, during cross-examination of Dr. Sussman, the prosecutor elicited testimony that Davila was seen on August 20, 1999, in the emergency room, for injuries to her head and right arm, and that Davila said a neighbor had beaten her up. After the conclusion of Sussmans testimony, a recess was taken; after reconvening and dismissing the jury for lunch, the court indicated that there had been further discussions in chambers about the bringing in front of this jury a prior instance, a prior specific instance of violence against [Davila], namely, a 1999 incident that was covered on cross-examination by [the prosecutor] in front of this jury. The court recounted the pre-trial lengthy discussions as to what the court would allow in and what the court would not allow in, and now theres some instance in 1999 that the court did not have any prior knowledge of, and in the courts opinion was totally inappropriate to bring in front of this jury . . . .[15] The court asked how it could unring that bell, and at the end of the defense case, a stipulation was read to the jury that there was no evidence to suggest Broughton was responsible for or involved in the 1999 incident.[16] The trial court later described this incident as the most egregious and the major error done by the prosecutor.

c. Eliciting inadmissible hearsay.

The prosecutor also elicited inadmissible hearsay in the form of questions. During Mercados testimony, the prosecutor asked her if she remembered telling Detective McGuire that the victim was afraid of Broughton. The trial court sustained defense counsels objection and struck Mercados yes answer. The prosecutors next question was whether Mercado was in fear of the defendant, to which the defense objection was also sustained. Similarly, during her direct examination of Detective McGuire, the prosecutor asked: Remember when you stated in your interview to the defendant, you had mentioned a doctor who had stated that [Davila] . . . was in fear of the defendant? The trial court struck McGuires yes answer.

d. The choking claim in closing argument.

One of the prosecutions theories was that Davila died of asphyxiation (and that the blood on the pillow came from a battering of some sort by Broughton). In closing argument, the prosecutor referred to the 1989 and 1995 incidents of domestic violence that had been adduced in evidence thusly:

But throughout this entire history no one sees [Broughton] do this. [Davila] just miraculously shows up with these with these swollen eyes, with these bruises on her knee, on her shoulder, redness to her neck. How does redness to the neck happen? How does that happen? Probably by choking.

The prosecutor knew, however, from the police report that Davila told police Broughton had held a knitting needle to her neck and jabbed at her neck with it. The trial court sustained defense counsels objection, and told the jury, [y]ou must base your decision only on the evidence in the case. Counsel has crossed the line in that regard. The prosecutor immediately resumed, saying: You be the judges. You be the judges. In your own personal experience, how does redness of the neck happen? The court later remarked that it thought the objection and its comment to the jury cured any error that was made, but it was definitely a significant violation by the People. At the conclusion of the prosecutors argument, defense counsel again moved for a mistrial, pointing out that the prosecutor, in the choking claim, clearly stated something that she has absolutely no evidence of fact, and, in fact, she has evidence quite to the contrary. The trial court admonished the prosecutor, who eventually admitted there was evidence contrary to her statement.[17] At a later sidebar, after the case was given to the jury, the prosecutor stated, I dont believe that I said it was due to choking, the redness on her neck.

e. The prosecutors repeated references to trauma.

The fourth violation of major significance that may have affected this trial, in the trial courts view, was the prosecutions repeated, and I mean repeated, argument trying to make this case a trauma case when there was no evidence of trauma:

And what Im talking about is the arguments in regards to at one point in time [the prosecutor] held up the photographs and said, Is this a fair fight? I remember that very vividly, implying that somehow the damage that was done here was done as a result of trauma, and theres no evidence of that. The other item that was referred to is the excessive blood over and over and over again, again, trying to turn this case into a trauma case which it wasnt.[18]

f. Other incidents.

The prosecutor was also admonished by the trial court for violating Code of Civil Procedure section 273, subdivision (b) during her closing argument. That section provides that a rough draft transcript by the official reporter cannot be used, cited, or transcribed as the official certified transcript of the proceedings. The prosecutor told the jury she had asked the reporter to print out an answer given by Dr. Anthony (the defenses forensic pathologist) about homicidal violence of undetermined etiology, and she reproduced the testimony for the jury and read from it. The trial court later told the prosecutor that, when she put the testimony on the overhead projector without telling the jury it was a draft, she violated section 273, subdivision (b), and Im going to ask you not to do that again ever. While a violation of this sort might ordinarily be unremarkable, the record shows that, when the prosecutor read the answer at issue to the jury, she omitted a sentence of Anthonys answer quoted in italics in the margin that contained an important qualifying statement.[19]

Finally, in her closing argument, the prosecutor said, I dont believe that it is involuntary manslaughter. It is murder, and [i]f you dont think hes guilty of murder, just come back not guilty on the murder. Okay? He did not do involuntary manslaughter. I dont want that. Im not looking for it because it didnt happen. While admonishing her for the umpteenth time[20](in connection with the choking claim), the court also admonished the prosecutor for improper expressions of personal belief.[21]

8. The rebuttal witness.

After the close of the prosecution case, and after the contretemps over the 1999 incident, the prosecutor sought to present a rebuttal witness to testify that victims of domestic violence often stay with their batterers and sometimes go to emergency rooms and lie about the nature of the injuries. After initially refusing, the trial court decided to allow the prosecution to bring in a witness. The defense objected that such testimony would not be proper rebuttal, but the trial court characterized it as reopening the evidence. The court expressly stated that bringing in the requested witness has nothing to do with the 1999 incident. When the prosecutor said that testimony on lying about injuries directly has to do with the [1999] incident, the court said: No, no, no, no. Were not going to start litigating the 1999 incident. If youre bringing in domestic violence for the 1999 incident, that does not come in. And again: I am not going to allow either side to argue that the 1999 incident was connected to this defendant either directly, indirectly, by speculation, by insinuation or by any other means. Detective Hawkins then testified that domestic violence victims do not always tell the truth or report what happens to them.

In closing argument, the prosecutor did not refer to the 1999 incident. However, she referred to Hawkinss testimony about lying by victims of domestic abuse, and the only possible incident in which Davila could have been lying was the 1999 incident. The trial court later acknowledged that it erred when it allowed the domestic violence rebuttal witness. As the court explained:

If I had known then what I know now in how that was going to be used I mean the only purpose really of that domestic violence expert was this 1999 incident and how that victims lie. They dont always mean to be lying and so forth. Thats really how that expert was used on closing argument repeatedly over and over and over again. And it was all in regards to the 1999 incident. And that is my greatest concern.[22]

9. The verdict and motion for a new trial.

Defense counsel asked for a jury instruction on prosecutorial misconduct that specifically referred to the 1999 incident and the choking claim.[23] The court refused the instruction, observing it was a very tough call to make, but that it was satisfied the instruction was not necessary. I felt that by bringing this to the attention of the jurors, while you may be unringing the bell, youre also ringing that bell again loud and clear.

The jury found Broughton guilty of murder, and Broughton moved for a new trial based on insufficiency of the evidence and prosecutorial misconduct. The court denied the motion. It observed there had been four major violations of not only court orders and so forth but and Im not referring to any of the misconduct that was directed personally at the court. . . . But Im talking about errors on the record or with this jury, and items that were of major significance that may have affected this trial. The court discussed these items: the 1999 incident, the choking claim, the repeated references to trauma, and the rebuttal witness (see ante, parts 7(b), 7(d), 7(e) and 8 of the factual and procedural background). It then discussed the Peoples evidence, which it described as four items that the People have and only four items. These were the concealment of the body (a very strong piece of evidence), plus (1) the prior threat to the victim, (2) the prior violence to another individual (the stabbing incident), and (3) the prior domestic violence, which were very significant corroboration . . . for the Peoples interpretation of . . . the concealed body. The court concluded there was sufficient evidence for the jury to find Broughton killed Davila:

I think those four areas go to that. I think its very, very important. Its very tough. Its because its all circumstantial evidence, but I think in light of the defendants very lengthy statements that he gave, that the jury could rightly conclude that this concealment along with those other three things I mentioned was sufficient to convict him of murder.

The court then stated that it was a very difficult analysis to make as to the impact of the four errors it had identified on the jurys determination as to whether or not the defendant committed murder. The court then read a response that one juror (an attorney not involved in criminal law) had sent the court, in response to the courts standard questionnaire asking, among other questions, for impressions of court personnel. The juror wrote:

Prosecutor: Disturbing and irritating mannerisms in hunting for pictures and notes leaving one with the impression of poor organization or hunting and stumbling for what to do next. Also irritating manner of unnecessary repetition of facts or points made. I did not get a favorable impression in the closing argument when the prosecutors characterization of the evidence or testimony strayed from presentation or summarization to slang, ridicule, and clichs that seemed to reflect more her anger or frustration or personal opinion and emotion instead of a logical and true summary of what[s] . . . been presented.

The court read the jurors comments into the record, because I think thats what was necessary for this jury to determine, what was hype, what was exaggeration, and what was evidence in this case. Finally, the court said:

The 1999 incident was specifically addressed by the court, and the court told the jury to ignore that. I believe they did. I only can hope that they did. The repeated argument sure did not help, but most of that was what I would consider hype and over dramatization and repetitive nature that really had nothing to do with the evidence in the case. I can only hope and pray that the jury could see through all that. Based on this comment, I believe they did. The motion for new trial is denied.

DISCUSSION

On appeal, Broughtons principal claims are that the evidence was constitutionally insufficient to support his murder conviction, and that prosecutorial misconduct denied him a fair trial. While we cannot say the evidence was insufficient as a matter of law, the closeness of the case, combined with prosecutorial misconduct that bolstered the critical element of the prosecutions case, compel us to conclude that Broughton must have a new trial. We discuss first Broughtons claim the evidence was insufficient to support his conviction, and then turn to the claims that compel us to reverse his conviction.

A. The evidence was sufficient to support

a conviction.

Because we are reversing the judgment on other grounds, we need not address most of Broughtons other claims, including claims that he was denied a fair trial because jury instructions (CALCRIM No. 852) permitted the jury to convict him based on prior acts of domestic violence, and that Evidence Code 1109 (permitting evidence of prior acts of domestic violence) is unconstitutional.[24] However, Broughton also contends the evidence was insufficient to support a conviction. If that were so, double jeopardy principles would prevent his retrial. (People v. Hill (1998) 17 Cal.4th 800, 848.) We accordingly address, and reject, his claim of insufficient evidence.

In reviewing Broughtons claim, we determine whether, viewing the whole record in the light most favorable to the prosecution, the record discloses substantial evidence evidence which is reasonable, credible, and of solid value from which a reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Osband (1996) 13 Cal.4th 622, 690.) We must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Ibid.)

Broughton claims the prosecutions case was based on suspicion and speculation, and there was no solid or convincing evidence that he killed her principally because the coroner could not determine the cause of death, and there was strong evidence that Davila died from a heart attack. We disagree.

First, the coroners inability to determine the cause of death was due to the advanced state of decomposition of the body. This in turn was due to Broughtons failure to report her death. A rational trier of fact could make the inference the prosecution suggested: that Broughton concealed the body and delayed reporting Davilas death for at least a week, and perhaps much longer, because he killed her and in order to prevent the cause of death from being discovered. Broughton did not call 911 when Davila was allegedly in medical distress; he did not call the police, or anyone else, when she died; he covered her body, which was on the far side of the bed between the bed and the window, where it could not be seen from the door of the apartment or from the door of the bedroom; the windows were covered; and he used fans and talcum powder to mask the decomposition odor. Broughton claims the record shows Davilas body was not concealed in the sense that [Broughton] purposefully hid it to prevent it from being found. He relies on his statements to the police about pulling her off the bed and trying to resuscitate her on the floor, where she died, and that she was too heavy to move. But the jury was not required to believe that explanation, and could have concluded that Broughtons account of moving Davila from the bed to the floor to perform CPR was implausible. In short, as the trial court concluded, the concealment of the body was a very strong piece of evidence.

Second, Broughtons claim there was strong evidence Davila died of a heart attack is merely his characterization of the evidence and the inferences that should be drawn from it. But it is the jurys province to decide what inferences to draw from the facts it determines. The coroner testified that, had there been no suspicious circumstances, he would have determined Davila died of heart disease. But there were suspicious circumstances, and the evidence that Davila died of a heart attack was, in the end, just as speculative as any other cause of death all the testimony was consistent on the point that the cause of death could not be determined. Broughton points to all the medical evidence about Davila: the autopsy finding that her heart was enlarged; Broughtons description of Davilas pre-death symptoms that were consistent with symptoms of a heart attack; the medications she was taking (pseudoephedrine and codeine) suggesting she had flu-like symptoms that can also be symptoms of a heart attack; her high risk for a heart attack (poorly controlled diabetes, clogged arteries, obesity, smoking, medications including Avandia and Celebrex which might be associated with increased risk of heart attack, high blood pressure). Again, however, the evidence that Davila was at greater risk of a heart attack than most of us does not require a jury to infer heart disease caused her death, in the face of the suspicious circumstances suggesting otherwise.

Third, Broughton argues that his inability to adequately explain the bloodstains on the bedding is not evidence that he caused her to bleed, and the prosecutions theory he did so is pure speculation. He points to Dr. Anthonys testimony that that a dark red foamy material can sometimes come out of a persons mouth who is being actively subjected to CPR, and to Broughtons statement to the police at the scene that, when he returned from the 7-Eleven store on the day she died, he noticed blood coming out of her nose after she stopped breathing. But the coroner testified that fluid bubbling from the mouth during a heart stoppage is usually pinkish rather than bright red in color, and the jury could have disbelieved Anthonys testimony. Indeed, the jury could have disbelieved Broughtons claims to the police that he performed CPR.

Fourth, as the People point out, there was evidence Broughtons demeanor, for example, on the videos from the 7-Eleven store, was inconsistent with his claims of shock and despondency as reasons for not reporting Davilas death. And, while his accounts of Davilas death were generally consistent, there were contradictions in his various accounts as to when he began staying at Davilas apartment, and contradictions between his notebook and his statements as to when she died.

Finally, while the evidence of concealment of the body would not be sufficient standing alone to support a murder conviction, there was convincing evidence that Broughton was disposed to commit domestic violence on Davila, in the form of three incidents of misdemeanor domestic violence in 1989 and 1995. There was also evidence of his stabbing another individual, threats to kill Davila in 2002, and a restraining order protecting Davila issued in July 2001 that was still in effect. We conclude that, viewed as a whole, the record discloses substantial evidence from which a reasonable jury could have found beyond a reasonable doubt that Broughton killed Davila.

B. Reversal is required due to prosecutorial

misconduct and trial court error.

The Supreme Court has summarized the standards under which we evaluate prosecutorial misconduct.

A prosecutors 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.)

The defendant may not complain on appeal of the prosecutors misconduct unless he timely objected at trial and also requested that the jury be admonished to disregard the perceived impropriety. (People v. Thornton, supra, 41 Cal.4th at p. 454.) If the defendant objected, or if an objection would not have cured the harm, we ask whether the improper conduct was prejudicial, that is, whether it is reasonably probable a result more favorable to the defendant would have occurred if the prosecutor had refrained from the misconduct. (People v. Haskett (1982) 30 Cal.3d 841, 866.)

We have described the prosecutors conduct in some detail. Much of the conduct for which she was admonished consisted of efforts to put before the jury inadmissible evidence of Broughtons propensity for domestic violence (the Gilmartin testimony, the 1999 incident, questions suggesting Davila was afraid of the defendant), or the misstatement of domestic violence evidence that was properly admitted (the choking claim). This is misconduct, and it is particularly troubling when viewed in context, as we necessarily do. (See People v. Morales, supra, 25 Cal.4th at p. 47.) At its core, the prosecutions case depended on Broughtons history of domestic violence. Without that history, Broughtons conduct after Davilas death could not have supported a murder conviction. Certainly his concealment of the body was not normal conduct. But, as the jury was instructed, while an attempt to hide evidence may show an awareness of guilt, it cannot prove guilt by itself. Moreover, Broughton had violated his parole by staying with Davila, and had no place to go after March 19, so one could infer he did not report Davilas death because he knew he would be returned to prison, and he had no other place to go explanations he proffered at various times in his interrogations, along with I couldnt let her go. As the jury was also instructed, where two reasonable inferences may be drawn from circumstantial evidence, a jury is required to draw the inference pointing to innocence rather than guilt. (While most of us may not consider it reasonable to remain with a dead body under any circumstances, surrounding circumstances must necessarily be considered.) In any event, the point is that, without the evidence of Broughtons commission of other domestic violence against Davila, it is difficult to see how a murder conviction could be had that evidence was at the heart of the prosecutions case.

Not satisfied with the evidence of domestic violence that she was allowed to adduce, the prosecutor repeatedly sought to put other evidence of Broughtons propensity for violence before the jury, in violation of the courts express rulings. We conclude this misconduct brings this case within the principle stated in People v. Wagner (1975) 13 Cal.3d 612, 621, namely, a miscarriage of justice has occurred when the case is closely balanced and the acts of misconduct are such as to have contributed materially to the verdict. In Wagner, the question of the defendants guilt turned on a single issue: his credibility vis--vis that of the prosecution witnesses. The misconduct in Wagner was the prosecutors improper cross-examination of the defendant, implying he had previously engaged in similar illegal acts. (Ibid.; see People v. Bolton (1979) 23 Cal.3d 208, 215 [misconduct was harmless beyond a reasonable doubt, but [a] closer case, marred by the same misconduct, might well require reversal].) In short, this was an extremely close case, with no evidence of the cause of death and no evidence of a motive for murder. The principal acts of prosecutorial misconduct, as in Wagner, went to an issue that was the lynchpin of the prosecutions case, improperly bolstering the evidence that Broughton in 1989 and 1995 committed acts of domestic violence on Davila. Under these circumstances, we think that, absent the prosecutorial misconduct, there was a reasonable probability the verdict would have been different.

We recognize that the jury was admonished or otherwise directed not to consider the matters that constituted the more egregious conduct by the prosecutor. Thus, the jury was expressly told by stipulation that there was no evidence to suggest that defendant . . .  was responsible for such injuries or involved in such incident [the 1999 incident]. Similarly, when the prosecutor stated the redness to Davilas neck in the 1989 incident was probably caused by choking, the trial court sustained an objection and told the jury, [y]ou must base your decision only on the evidence in the case. Counsel has crossed the line in that regard. And, of course, the jury was instructed that the remarks and questions of attorneys are not evidence, that they should not assume something is true just because an attorneys question suggested it was true, and that they were to disregard testimony that was stricken from the record. We conclude, however, that these admonishments and instructions were not sufficient, particularly in view of the cumulative nature of the prosecutors improper statements and questions and the closeness of the case, to cure the prejudicial effect of the prosecutors conduct and related trial errors. (See People v. Wagner, supra, 13 Cal.3d at p. 621 [neither the admonition nor the form instruction were sufficient to cure the prejudicial effect of the prosecutors repeated insinuations regarding defendants past conduct].) We note several points.

First, while the trial court told the jury the prosecutor had crossed the line after she made the choking claim, the jury of course was not told the prosecutor had information to the contrary. The trial court refused the defense request to instruct the jury specifically that certain questions and remarks, including the choking remark, were improper and must be disregarded, concluding that while it was a very tough call to make, bringing it to the attention of the jurors would be ringing that bell again loud and clear. However, as the court stated in People v. Bolton, supra, 23 Cal.3d at p. 215, fn. 5, while an instruction may exacerbate the problem by calling the jurors attention to improper remarks, nevertheless, when the defense counsel requests cautionary instructions, the trial judge certainly must give them if he agrees misconduct has occurred.

Second, the trial court identified four major violations. One of them was not prosecutorial misconduct, but rather an acknowledgement that the court erred in permitting a rebuttal witness whose testimonys only purpose was to emphasize that domestic violence victims do not always tell the truth or report what happens to them. But, as the court reported, there were others, as related in part 7 ante. We recognize that many of Broughtons claims of misconduct are trivial and in some cases forfeited for lack of an objection (see footnote 21, ante). In addition, the prosecutors repeated references to trauma, which so troubled the trial court (see part 7(e) of the factual background), did not elicit an objection from defense counsel. However, the other conduct described in part 7 did elicit objections, and cannot be characterized as trivial, minor or collateral. Further, while we cannot and do not characterize the prosecutors efforts to present a rebuttal witness (and to cite her testimony in closing argument) as misconduct, the trial court erred in permitting that testimony (see post), and the prosecutor naturally capitalized on that error in her argument. The pertinent point is that a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error. (People v. Hill, supra, 17 Cal.4th at p. 844; People v. Herring (1993) 20 Cal.App.4th 1066, 1075 [these statements by themselves and absent timely and specific objection would not be cause for reversal since a timely admonition likely would have cured the harm, but we must weigh the cumulative effect of the improper statements that pervaded the prosecutors closing argument].) Likewise, we necessarily weigh the cumulative effect of trial court error and prosecutorial misconduct.

Third, the trial court itself betrayed a significant level of concern when it said that it can only hope and pray that the jury could see through all that [hype and over dramatization in closing argument]. The trial court thought the jury could, emphasizing one jurors unfavorable comment on the prosecutors closing argument (as straying from summarization of the evidence to slang, ridicule, and clichs that seemed to reflect more her anger or frustration or personal opinion and emotion instead of a logical and true summary . . . ). We are less sanguine than the trial court. The prosecutors efforts to portray Broughton as a batterer, and therefore a murderer, with inadmissible evidence occurred during the trial as well as in closing argument. In light of the indispensable role Broughtons history of domestic violence played in the prosecutions case, it is not enough to hope and pray that the jury was able to ignore the improper statements and insinuations on that subject, both at trial and in closing argument.

Finally, we address several points raised in the Peoples brief.

First, in several instances, the People argue Broughton forfeited specific assertions of prosecutorial misconduct because, while an objection was made, he did not request a jury admonition as in the case of the prosecutors questions suggesting that Davila was afraid of Broughton (part 7(c), ante). The People are mistaken; defense counsel requested an instruction referring to certain uncalled for insinuations about the defendant [by the prosecutor], and mentioned to the court the 1999 incident and several other questions to which objections were sustained which insinuate that there is more to this case than the jurys actually hearing. (See footnote 23, ante.) The request was denied as too broad, as was counsels subsequent request for a narrower instruction referring only to the 1999 incident, the Gilmartin testimony, and the choking claim. Consequently, to the extent defense counsel did not request an admonition with respect to any specific claim of misconduct, it is clear such a request would have been futile. Consequently, there is no merit in the Peoples argument.

Second, the People argue with respect to each specific claim of misconduct that the particular incident did not prejudice Broughton either because an objection was sustained, or because the jury was instructed that questions were not evidence, and so on. But, as we have seen, admonitions and instructions may be insufficient in the face of repeated insinuations (People v. Wagner, supra, 13 Cal.3d at p. 621), and we must weigh the cumulative effect of improper statements, rather than view each one standing alone. (People v. Herring, supra, 20 Cal.App.4th at p. 1075.)

Third, the People argue that the trial court did not err in admitting Detective Hawkinss testimony. We disagree. Evidence Code 1107 permits expert testimony in a criminal action about what is commonly known as battered womens syndrome:

[E]xpert testimony is admissible . . . regarding intimate partner battering and its effects, including the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge. (Evid. Code, 1107, subd. (a).)

But such evidence is admissible only when it is relevant to a contested issue at trial other than whether a criminal defendant committed charged acts of domestic violence (People v. Gadlin (2000) 78 Cal.App.4th 587, 592), for example, a defendants claim of self-defense, or to impeach the credibility of a recanting victim. But in this case, there was no contested issue at trial on which the expert testimony would have been probative. It was probative only to impeach Davilas statement that a neighbor had beaten her up in the 1999 incident an incident the trial court had ruled off limits in no uncertain terms and to suggest that Broughton abused Davila more recently and more frequently than the evidence indicated. Consequently, as the trial court acknowledged, the admission of Hawkinss expert testimony was erroneous. And while that error alone would not warrant reversal, we necessarily consider the cumulative effect of the error in the context of the prosecutorial misconduct associated with the same critical element of the prosecutions case.

In short, this was a close case that hinged on Broughtons history of domestic violence. The prosecutors misconduct in repeatedly bringing before the jury inadmissible evidence on that topic, along with the trial courts related error, lead us to conclude it is reasonably probable the verdict would have been different absent these defects. Broughton is entitled to a reversal of the judgment and a retrial.