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People v. Mayfield1/2/1997
he belief is based on the evidence before the jury ( People v. Miranda (1987) 44 Cal. 3d 57, 110 [241 Cal. Rptr. 594, 744 P.2d 1127]). Similarly, " eferring to the testimony and out-of-court statements of a defendant as 'lies' is an acceptable practice so long as the prosecutor argues inferences based on evidence rather than the prosecutor's personal belief resulting from personal experience or from evidence outside the record." ( People v. Edelbacher, (supra) , 47 Cal. 3d 983, 1030.) Applying these principles, we find no misconduct.
During jury selection, on general voir dire of a prospective juror, the following exchange occurred:
"Q. [By the prosecutor] Would you agree that if I'm going to step out and make those kinds of charges [that is, the charges against defendant] that I should be pretty much convinced about the evidence that I have to present ?
"A. Definitely.
"[DEFENSE COUNSEL]: Calls for Conclusion and speculation.
"THE COURT: I'll allow it, however.
"Q. [By the prosecutor] Would you expect me to make those kind of charges and not be convinced that I could back them up ?
"A. No.
"Q. You would think it would be kind of strange, or I'd imagine you would think it would be strange, if I come in trying to convince you twelve people that these charges are true if I'm not convinced on my own?
"A. That correct." (Italics added.)
The italicized portion of the prosecutor's statements make clear that the belief to which he was referring was a belief based on evidence that would be presented at trial.
During argument to the jury the prosecutor said: "And I'm going to point out to you later some areas where I think that are very obvious that [defendant] was willfully false in his testimony. It's not very often that I come right out and call an individual a liar, but sometimes you have to call a spade a spade. And I think that that's what he did, and I'll point out to you some of these areas where I feel it's obvious, blatant that he was lying."
The prosecutor then proceeded to analyze defendant's testimony in light of other evidence to demonstrate that it was necessarily false. We are satisfied that a reasonable juror would understand that the prosecutor's reference to defendant's "lying" during his testimony was grounded in the trial evidence rather than in information outside the record.
Later during jury argument, the prosecutor said: "When [defendant] went back along that wall, and I told you yesterday I had a chance to look at that wall before I cross examined him, he said that down at the east side that he had to get up on it to see over to see what was going on. You know that's not true. That just goes to his credibility as to the wall." (Italics added.) As the italicized sentence emphasizes, the prosecutor's argument that defendant had testified falsely was based on evidence in the record, including the jury view, concerning the height of the wall, and not on information outside the record. Accordingly, the prosecutor did not commit misconduct.
2. Injecting Racial Issues
Defendant contends there were improper racial references in the prosecutor's guilt phase argument to the jury. Because defense counsel did not object to these statements or request that the jury be admonished, the contention is not reviewable on appeal. ( People v. Berryman (1993) 6 Cal. 4th 1048, 1072 [25 Cal. Rptr. 2d 867, 864 P.2d 40].) We consider below (pt. IV.T.3., post) defendant's claim that trial counsel's failure to object denied him his federal constitutional right to the effective assistance of counsel.
T. Ine
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