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People v. Robinson12/11/2000
gued that the defense expert, Dr. Fuller, would be paid only if he testified favorably for the defense. Defendant did not object when this argument was made, and cannot raise it now on appeal. (People v. McDowell, supra, 46 Cal.3d at p. 572; People v. Green (1980) 27 Cal.3d 1, 27.) Moreover, even on the merits, the argument fails. Counsel is given wide latitude in arguing the credibility of witnesses, and may engage in harsh and colorful attacks, including arguments that a witness might "stretch" a principle "for a buck." (People v. Arias (1996) 13 Cal.4th 92, 161-162.) Indeed, the compensation paid to an expert witness is a proper subject of inquiry by an adverse party, is relevant to the credibility of the witness, and can be commented on in argument. (Evid Code, § 722, subd. (a); People v. Arias, supra, 13 Cal.4th at p. 162.) Here, the evidence showed that the witness was to be paid for his testimony at the rate of $250 an hour and the jurors could certainly consider the possibility that the witness could be biased in favor of the party who called him and secured his appointment which would result in his substantial enrichment.
Next, defendant asserts that the prosecutor erred when he commented in argument that the law in sexual assault cases was unique and different in that it allowed a juror to consider evidence that defendant had raped other women to show that he was disposed to commit such crimes "because something is wrong with him." In fact, the jurors were given a special instruction that told them specifically that they could use evidence of other sexual assaults to prove that defendant did in fact have a "disposition" to commit the charged rape. This instruction itself informed the jurors that they could use the evidence of other crimes to conclude that there was something "wrong" with defendant, and that the thing that was "wrong" was that he had the disposition to commit rape. This argument was entirely proper, and no error occurred.
Defendant also claims that the prosecutor erred when he argued that Dr. Carpenter's testimony at trial was more credible than his testimony at the preliminary hearing because he had a chance to review the file prior to trial and think more about the case since the preliminary hearing. The record demonstrates that this argument was supported by the evidence in the case. Indeed, Dr. Carpenter testified that he had "reviewed the autopsy report" and had done so "more than once." He testified he had reviewed the report since the preliminary hearing. He also testified he had thought "more" about the case since the preliminary hearing. We conclude that no error occurred.
Defendant next asserts that the prosecutor erred when he asked the jurors in argument if they had heard testimony from a forensic pathologist who disagreed with the testimony of Dr. Carpenter, and when he argued that the defense could have called a defense expert to rebut Dr. Carpenter's testimony about the bruises but failed to do so. The prosecutor then added the comment that, "You don't think a pathologist in the world would come in and give you evidence of something?" An objection was sustained as to this comment and the jury was instructed to disregard it. We find the comment about the lack of a forensic pathologist being called was proper, and thus no error occurred when the prosecutor argued that no pathologist had rebutted the testimony of Dr. Carpenter. While the comment about finding some pathologist in the world to testify about "something" was improper, it was in no way prejudicial to defendant. Defendant argues that while the error may not have been prejudicial in and of itself, the error " relevant to the cumulative effect of the prosecutor's misconduct." We find that
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