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People v. Mayfield1/2/1997
a GSR (gunshot residue) kit with a kit number of 02868. Wallis testified that the kit he analyzed had a kit number of 02868. Thus, the prosecution introduced admissible evidence independent of the laboratory report to establish that the kit Wallis analyzed was the kit that Gregonis had collected at the autopsy of Sergeant Wolfley.
H. Prosecutorial Misconduct in Cross-examination of Defendant
Defendant contends that the prosecutor committed misconduct during cross-examination of defendant by repeatedly asking questions that (1) assumed facts not in evidence, (2) sought to elicit testimony only to contradict it, (3) were argumentative or irrelevant, or (4) tended to demean or abuse defendant; that the trial court erred in denying a motion for mistrial on the grounds of improper cross-examination; and that the improper cross-examination denied defendant his constitutional rights to a fair trial, to testify and present a defense, to a trial by jury, and to a reliable guilt verdict in a capital case (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, § 1, 7, & 15).
"To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct." ( People v. Price, (supra) , 1 Cal. 4th 324, 447.)
1. Assumption of Facts Not in Evidence
Defendant asserts that the prosecutor committed misconduct on numerous occasions by asking questions that insinuated facts that the prosecutor knew the defendant would deny, even though the prosecutor had no intention of proving those facts by other means. (See People v. Visciotti, (supra) , 2 Cal. 4th 1, 52 [improper to examine a witness solely to imply or insinuate the truth of the facts about which questions are posed]; accord, People v. Price, (supra) , 1 Cal. 4th 324, 481.) At trial defendant objected on this ground (that is, that the question "assumed facts not in evidence" or "misstated the evidence") as follows:
After defendant conceded he had caused Haverstick pain by "nudging" his foot to make him cry out, the prosecutor asked: "But you went ahead and caused him some more injury to the leg that had already been shot?" The trial court sustained an objection that the question assumed that the "nudging" had caused "injury" rather than "pain."
After defendant testified that Sergeant Wolfley had been "making statements to me indicating the fact that I was through or . . . something to that effect," THE PROSECUTOR ASKED: "Well, that's not how you testified the other day, was it?" The trial court sustained a defense objection that this misstated the evidence.
The prosecutor asked: "You indicated that you at some point pulled yourself up on the wall and looked over the wall and saw some officers around Sergeant Wolfley that was on the ground. Do you recall that?" In response to a defense objection and the trial court's inquiry whether the prosecutor was intimating that defendant had seen Sergeant Wolfley on the ground, the prosecutor rephrased the question.
The prosecutor asked a series of questions about fences defendant had gone over or walked next to after leaving the Sunstone Apartments parking lot. At one point the prosecutor asked a question referring to the "south fence." Upon defense objection that the question assumed facts not in evidence, the prosecutor amended the question to refer to the "west fence."
Referring to events behind the service station, the prosecutor asked: "Did you have to turn after you got possession of the gun to run eastbound because you w
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