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People v. Mayfield1/2/1997
I.6., ante), defense counsel's failure to bring this testimony to the jury's attention was not deficient performance because it is clear that Amicone misspoke when he quoted the statement as being "The officer took it back" rather than "The officer tried to take it back."
3. Failing to Object
Defendant faults trial counsel for failing to object to (1) evidence that a knife was found behind the service station; (2) Deputy Stein's reading of defendant's alleged postarrest statement from Stein's report; (3) proceedings during the jury view; and (4) the prosecutor's racial references during closing argument.
We have already rejected defendant's claim that trial counsel performed inadequately by not bringing a motion before the trial began to exclude all evidence of the knife. Because the knife evidence was admissible, defense counsel's failure to seek its exclusion earlier did not prejudice defendant.
During a hearing out of the jury's presence to determine the admissibility of evidence, Deputy Stein testified to certain statements defendant made shortly after his arrest. (See pt. IV.A., ante.) During this testimony, the trial court noted for the record that the witness was reading from his report. Defendant contends that defense counsel should have objected and thereby forced Deputy Stein to testify from his own memory. According to defendant, this would have provided a dramatic test of Deputy Stein's claimed ability to remember defendant's long statement verbatim.
We are not persuaded. Defense counsel could reasonably conclude that an objection at that preliminary stage, even though legally well founded, would not gain any significant advantage for the defense. The witness properly could have used the report to refresh his memory (Evid. Code, § 771), and we may not speculate that testimony given in this manner would have revealed that Deputy Stein's memory was not as accurate as he claimed. Moreover, the mere fact that the witness chose to read from his report, rather than rely on his memory, provided ample support for this argument. In any event, as we have previously explained (see pt. IV.A.4., ante), even if Deputy Stein exaggerated the accuracy of his memory, the jury could reasonably conclude that the statement as it appeared in Deputy Stein's report, which was transcribed from notes that Deputy Stein wrote within minutes of hearing defendant's statement, was accurate as to substance even though not verbatim. (See Evid. Code, § 1237 [past recollection recorded].)
Defendant next faults counsel's conduct during the jury view. Specifically, defendant claims that counsel should not have entered into stipulations in defendant's absence and should have objected when the trial court undertook to answer questions posed by jurors. We have already considered and rejected this claim. (See pt. IV.B.2.-4., ante.)
In the final ineffective assistance claim, defendant faults trial counsel for not objecting to improper racial references in the prosecutor's guilt phase argument to the jury. We reject the claim. The prosecutor's argument did not contain improper racial references.
The first remark defendant cites is this: "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." Having carefully examined the prosecutor's entire argument, and especially the context in which this remark was made, we are persuaded that the prosecutor did not intend, nor would a reasonable juror have perceived, a racial reference in the word "spade."
Referring to defendant's tape-recorded telephone conversation with Yvonne Hester, the prosecutor said: "Then she goes on t
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