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People v. Banks1/24/2003
e trial court sustained the objection and instructed the jury to disregard the last question and answer. The prosecutor asked to approach, and the trial court replied, "Yes. Later. Not now."
After a lunch break, during redirect examination of Mastick, the prosecutor asked the officer if Jackson told him how she got the lacerations. Mastick stated, "From the defendant in a previous incident." Defense counsel objected, based on the trial court's prior ruling. The trial court sustained the objection, struck the testimony, and admonished the jury to disregard it.
In the ensuing sidebar discussion, the prosecutor explained that she believed the court had excluded the evidence of Jackson's statements until she laid a proper foundation under Evidence Code section 1370, subdivision (a)(3) and that she did so by asking Mastick whether the wounds were fresh. The trial court and the prosecutor discussed whether the injuries having been sustained "within the last couple of days," as Mastick testified, satisfied the requirement that the statement have been made "at or near the time" they were inflicted. The trial court stated, "So there has been a ruling on this, both at sidebar and out in open court. Although I don't think it's an intentional violation because I understand the ambiguity in my order."
Defense counsel requested a mistrial. The trial court denied the request, ruling that the prosecutor had not acted intentionally and that the error had been corrected when the trial court struck the testimony and admonished the jury. Later, in discussing the motion for mistrial, the prosecutor stated, "I have a recollection that when we were discussing the injuries that I needed to establish whether or not they were fresh, how old they are, things of that nature. And I had established that prior to the break." The trial court responded, "I don't think you did. Which is why, when you asked the question, I sustained an objection when it came up before." The prosecutor explained that, aside from believing she had laid a proper foundation under Evidence Code section 1370, she believed that "once [defense counsel] asked [Mastick] on cross-examination about the injuries on her wrist, asking him specifically about suicide, then at that point I mentioned to the court that I thought that opened the door in reference to how she sustained the injuries."
The trial court again denied the motion for mistrial, finding no prejudice. The court stated, "How prejudicial is it, if you already have a 1995 incident which comes in under [Evidence Code section] 1109, you have the officers testifying. [ ] . . . [ ] But in my view, when you take into account the small portion of the testimony, it remains the fact it was one question and answer and the fact your objection was immediately sustained and the jury was instructed to disregard it. [ ] . . . [ ] And they will get another instruction at the end of the case saying, if you have been instructed to disregard something, you have to abide by that instruction. . . ." Later, towards the end of the trial during the discussion of jury instructions, when defense counsel mentioned an instruction on prosecutorial misconduct, the trial court stated, "I didn't see it that way. I didn't see . . . it as an instance of violation."
Appellant argues that the prosecutor committed prejudicial misconduct by eliciting this testimony despite the trial court's ruling that it was inadmissible, resulting in the denial of a fair trial and due process. He further argues that the trial court's denial of his motion for mistrial after these repeated instances of prejudicial misconduct resulted in a denial of his right to a fair trial. Not so.
"The standards
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