IN THE CALIFORNIA COURT OF APPEAL SECOND APPELLATE DISTRICT - DIVISION THREE THE PEOPLE OF THE STATE OF CALIFORNIA, No. B216425 Plaintiff/Respondent, v. PHILLIP SPECTOR, Defendant/Appellant. ) ) ) ) ) ) ) ) ) ) ) Los Angeles County Superior Court No. BA255233 ‘The Honorable Larry P. Fidler DENNIS P. RIORDAN, Esq., No. 69320 CHARLES SEVILLA, Esq., No. 45930 DONALD M. HORGAN, Esq., No. 121547 1010 Second Ave., 1825 RIORDAN & HORGAN San Diego CA 92101 523 Octavia Street ‘Telephone: (619) 232-2222 San Francisco, CA 94102 Telephone: (415) 431-3472 Attorneys for Appellant PHILLIP SPECTORTABLE OF CONTENTS INTRODUCTION reciente erie ene nee eae eset 1 STATEMENT OF THE CASE .......000:ee00eeeceeeeeeeeue es eeeenied 8 STATEMENT OF APPEALABILITY ........... re eee nse aes 9 STATEMENT OF FACTS cee tegen eeae tage 9 A. — February 2 and 3, 2005: Events Before the Shooting ...............5 10 B. February 3: The Shot and Its Aftermath ........ a2! C. Appellant's Arrest eet eetiae ete lS) D. The Investigation .............eceeeveeee ees cpr enpnncentien 16 1. The Initial Crime Scene Findings ........6..00..00ese0eeeee 16 2. ‘The Autopsy 17 3. The Physical Evidence .... eee a9) a. Toxicology........... tee ee neem is 19 Geet ethelGunee temic ee tieneniae 20 c. DNAEvidence............ eae teeta 20 d. Gunshot Residue ...... eee cee 21 ¢. Blood Spatter Evidence . ceveeee fetta f. Fingerprints Bea Bvidenos of Sinigele so sg ecg tee ecg 25 E, The Evidence Concerning Whether Lana Clarkson Committed Suicide or Shot the Gun Accidentally ........ 0.0.06. 02020ceeeee ee 28Table of Contents continued 5 Evidence That Intraoral Killings Are Almost Always Suicides ........ eee Evidence That The Trajectory Of Intra-oral Suicides Is Typically Upward tasscterceedteeesuecstaeeata Drugs and Alcohol Reduce Impulse Control ..........+ Evidence Relating to Clarkson's Psychological State at the Time of the Shooting eee Expert Testimony on Suicide .....2... 00000 eeeee F. The Failure to Investigate Clarkson's Psychological History Before Concluding That She Did Not Commit Suicide ....... G. The Expert Testimony On Who Fired The Fatal Shot . .. .. a 4. 5. ARGUMENTS 1. Lynn Herold . pOvNMare Secreted Reece eerie rece Werner Spitz . Sees ee ees THE INTRODUCTION AGAINST APPELLANT SPECTOR OF TESTIMONIAL STATEME! S OF THE VERY JUDGE BEFORE WHOM SPECTOR WAS BEING TRIED VIOLATED HIS STATE STATUTORY AND FEDERAL CONSTITUTIONAL RIGHTS AND REQUIRES REVERSAL ...... 0.00.20. 00000000 e ees A. Statement of Facts ..... 2.2... Seat efeeecaiste treet “i. 28 28 29 34 35, 37 37 38 41 43 45 45Table of Contents Continued IL. ie The Herold Testimony At The Retrial 00.6.0... se eee eee The Lintemoot Testimony At The Retrial . . . 3. The Videotape of the 2007 Hearing 4. Use of the Videotape In Prosecution Cross-Examination at Appellant's Retrial 5. Defense Objections to The Videotape ......- 6.6.62 62ee eee 6. Use Of the Videotape During The State’s Closing rArpummeme rs aieeentieeieiiecs es B. Judge Fidler’s Statements and Gestures at the 2007 Hearing Were Inadmissible Hearsay . . C. The Admission of the Court’s Video-taped Statements and Demonstration Deprived Appellant of His Sixth Amendment Right to Confront the Witnesses Against Him ........... 0.00064 D. Admission of The Judicial Testimony Taken At A Hearing From Which Appellant Was Absent Violated Both California Law And the Fourteenth Amendment’s Due Process Clause . . FE. The Errors Require Reversal ......00....20. THE TRIAL COURT COMMITTED REVERSIBLE ERROR UNDER STATE AND FEDERAL LAW BOTH IN ADMITTING EVIDENCE OF UNCHARGED BRANDISHING OFFENSES AND IN INSTRUCTING THE JURY ON HOW THAT EVIDENCE, FRAP See oe tear ee era Sea A. Introduction And General Principles. .....-..--+..60.00005 B. Standard of Review Ca The Relevant Facts .............. eee eta eee eee eee -iii- 47 48 50 31 53 56 .37 . 59 62‘Table of Contents continued 1. The Rulings on Admissibility at the First Trial ......... The Admissibility Rulings At The Second Trial. . 69 71 3. The Prosecution’s Opening Statement 4. The Section 1101 (b) Witnesses ©0000... 00.ceeeeveeeeeee eee 3 a. Dorothy Melvin (1980's to 1993) 0.0... cess eeeeeee B b. Stephanie Jennings (1994 to 1995) ............ . 76 cc. Devra Robitaille (1970s to 1986) .......0..05 7 d. Diane Ogden ( 1980s) ePperennn Pennie 79 ©. Melissa Grosvenor (1991) .......6see eee ee - 80 5. The Instructional Rulings Prior to Closing Argument ... BE 6. The Prosecution’s Closing Arguments ............45 . 83 7. ‘The Final Section 1101(b) Instruction .......... . 85 ‘The Trial Court Brred in Instructing the Jury, and Permitting the Prosecutor to Argue, That the Evidence of Uncharged Offenses Could Be Used to “Establish(]...The Defendant Was the Person Who Committed the Offense Alleged in this Case” ....... 88 1, Introduction 2. Evidence of the Uncharged Offenses Was Inadmissible under Section 1101(b) to Prove Identity . . . 89 3. The Language Used in the Uncharged Offense Instruction in Lieu of the Term “Identity” Constituted Both Substantive and Procedural Ertor ...... 6.0.0 c esse cece e eee teen eee 91 “iveTable of Contents continued UL. b. The Procedural Statutory and Due Process Error .... The Issues of Mistake, Accident, or Suicide Provided No Independent Bases for Admission of the Uncharged Offense SNe Retire egret aoe eevee ee rede ere oer ETT ‘The Uncharged Offense Evidence Was Inadmissible on the Issue of Motive 2.2.62... 0226 02200 e ee See ans 1 Introduction ............. Pe rae eee eer The Relevant Law ..... 3. The Prior Offense Evidence Was Clearly Inadmissible on the Issue of Motive .. 2.0... 00... eee e eee eee ee 4. The Trial Court Erred in Admitting the Evidence Pursuant to a Dictionary Definition of Motive, and in Instructing the Jury on That Definition ...........00c0ececsceeeee eens G. The Uncharged Offense Evidence Should Have Been Excluded under Section 352 and the Federal Due Process Clause . H. ‘The Court's Decision to Permit the Prosecution to Argue the Existence of Appellant's “Pattern” of Violence and Misogyny Was an Independent Source of Reversible Error... +. 00000005 ADMISSION OF THE TESTIMONY OF VINCENT TANNAZZO- CONCERNING APPELLANT’S PROFANE STATEMENTS ABOUT WOMEN A DECADE BEFORE THE CHARGED OFFENSE WAS. REVERSIBLE ERROR A B. cee tsa eet eee ‘The Relevant Facts 2.2.6.6... 0c e es ee eee ‘The Substantive Error ..... eer . 103 104 - 106 . 107 110 110 112Table of Contents IV. 1. The Admissibility Rulings ..............005 2. Tannazzo’s Testimony 3. The Prosecution’s Use of the Tannazzo Testimony in its Opening Statement and Closing Argument 4. The Jury Instruction Conference .. Sec eciThe Mustruction Given cance etches eras C. The Tannazzo Testimony Was Inadmissible Because Intent Was Not in Dispute .......... 006 D. The Tannazzo Testimony Was Not Admissible As a “Generic Threat”... Pe gd eeu rn gdeecy 1. Introduction 2... 0.26 e eee eee eee e eee eee 2. The Case Law... 0... ce eeeeeee ee 3. The First Statement 4. The Second Statement ..........2..6+ E. The Remainder of the Tannazzo Testimony Was Inadmaibsible heer re tenn eee F. The Tannazzo Testimony Was Barred by Evidence Code Section 352 and the Federal Due Process Clause G. The Court’s Instructional Error Exponentially Compounded the Prejudice of Its Error in Admitting the Tannazzo Testimony .. THE PROSECUTION’S MISCONDUCT DURING CLOSING ARGUMENTS DEPRIVED APPELLANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL . 0.0.0.0. 00 00 0c cece eset ee ee eeee - 112 14 116 .u7 118 119 122 122 . 122 +. 125 129 130 131 - 132 - 133Table of Contents continued A B. CONCLUSION dtitoduction tie ieee een ie ieee ant The Prosecution’s Closing Arguments... Accusing Attorney Weinberg of Fabricating the Defense by Paying Witnesses to Give False cetnon Was Exresious and Prejudicial Error 6.0.22... 002... The Prosecution Committed Misconduct by Castigating Defense Experts for “Pay to Say” Fees... 00... .e. cee cece L Professor Elizabeth Loftus ........... 0060s cece cee e ee eee 2. Dr. Richard Seiden 3. Stuart James and Jim Pex ........---eeeseeeeeeeee 4. Dr. Werner Spitz and Dr. Vincent DiMaio E. Reversal is Required ......0...0. 00000 ces eeeeeeeeeeeees -vii- . 136 139 - 142 143 144 . 145 146 147 149TABLE OF AUTHORITIES ‘CASES: Brown v. Lynbaugh (Sth Cir. 1988) 843 F. 849 Chapman v. California (1967) 386 U.S. 18 Crawford v. Washington (2004) 541 U.S. 36 Donnelly v. DeChristoforo (1974) 416 U.S. 637 Douglas v. Alabama (1965) 380 U.S. 415 Hassoldt v. Patrick Media Group, Inc. (2000) 84 Cal.App.4th 153 Herring v. New York (1975) 422 U.S. 853 In re Charlisse C. (2008) 45 Cal.4th 145 In re Esperanza C. (2008) 165 Cal.App.4th 1042 In re Martin (1977) 71 Cal.App.3d 472 In re Murchison (1955) 349 U.S. 133 Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918 Koon y, United States (1996) 518 U.S. 81 Lisenba v. California (1941) 314 U.S. 219 McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378 Melendez-Diaz v. Massachusetts (2009) 129 S.Ct. 2527 Michelson y, United States (1948) 335 U.S. 469 People v. Alcala (1984) 36 Cal.3d 604 ~viii- 60 62, 109 52, 57 139 141 89, 103 69 6 61,93 131 69 107 107, 131 58, 134 65 passimTable of Authorities continued People v. Armstead (2002) 102 Cal.App.4th 784 People v, Bain (1971) 5 Cal.3d 839 People v. Bell (1989) 49 Cal.3d 502 People v. Bolton (1979) 23 Cal.3d 208 People v. Castain (1981) 122 Cal.App.3d 138 People v. Cummings (1993) 4 Cal Ath 1233 People v. Daggett (1990) 225 Cal. App.3d 751 People v. Duncan (1945) 72 Cal.App.2d 247 People v. Ervin (2000) 22 Cal.4th 48 People v. Ewoldt (1994) 7 Cal.4th 380 People v. Falsetta (1999) 21 Cal.ath 903 People v. Felix (1993) 14 Cal. Appth 997 People v. Gibson (1976) 56 Cal. App.3d 119 People v. Gosden (1936) 6 Cal.2d 14 People v. Harris (1998) 60 Cal.App.4th 727 People v. Hayes (1998) 52 Cal.3d 577 People v. Hernandez (1977) 70 Cal.App.3d 271 People v. Herring (1993) 20 Cal. App Ath 1066 People v. Hill (1998) 17 Cal.4th 800 95, 132 140 140, 148 62, 63, 141 144 124 139 passim, 106 109 101 99 106 69, 100 144 140 139, 140, 148Table of Auth ies continued People y. Johnson (1981) 121 Cal.App.3d 94 141 People v. Lisenba (1939) 14 Cal.2d 403 98 People v. Karis (1988) 46 Cal.3d 612 124, 126, 128 People v. Kelley (1967) 66 Cal.2d 232 99 People v. Mahoney (1927) 201 Cal. 618 63 People v. Martinez (1980) 106 Cal.App.3d 524 69 People v. McGreen (1980) 107 Cal, App.3d 504 142 People v. Medina (1990) 51 Cal.3d 870 142 People v. Parson (2008) 44 Cal.4th 332 142 People v. Pic'l (1981) 114 Cal.App.3d 824 104 People v. Pitts (1990) 223 Cal. App.3d 606 139 People v. Rivera (1985) 41 Cal.3d 388 109 People v. Saille (1991) 54 Cal.3d 1103 4 People v, Sanchez (1978) 83 Cal. App.3d Supp. 1 94 People v. Schader (1969) 71 Cal.2d 761 66 People v. Sears (1970) 2 Cal.3d 180 4 People v, Sheer (1998) 68 Cal.App.4th 1009 100, 101, 102 People v. Simon (1986) 184 Cal.App.3d 125 102, 104 People v. Smallwood (1986) 42 Cal.3d 415 65, 123, 126, 131People v. Sturm (2006) 37 Cal.4th 1218 People v. Thompson (1980) 27 Cal.3d 303 People v. Varona (1983) 143 Cal.App.3d 566 People v. Wolcott (1983) 34 Cal.34 92 Singh v. Prunty (9th Cir. 1998) 142 F.3d 1157 Sizemore v. Fletcher (6th Cir. 1990) 921 F.2d 667 State v. Smith (N.J. 2001) 167 N.J. 158 Steven S. v. Deborah D. (2005) 127 Cal.App.Ath 319 Taylor v. Kentucky (1978) 436 U.S. 478 Tyler v. Swenson (8th Cir. 1970) 427 F.2d 412 United States v. Gaskin (9th Cir. 1988) 849 F.2d 454 United States v. Sampson (3d Cir. 1992) 980 F.2d 883 STATUTES Cal Const. Art, 1 Sections 7, 15 Evid. Code § 703 Evid. Code § 1101(a) Evid. Code § 1108 Evid. Code § 1109 63 67 144 142 63 143 143 65 148 94 67 59 61 107 65, 106 65, 106,Table of Authorities continued Evid. Code § 1200(b) Penal Code § 1093.5 Penal Code $187 Penal Code § 1093.5 Penal Code § 1237(a) Penal Code § 12022.5(a)(1) Penal Code § 12202.53(b) U.S. Const. Amend. VI U.S. Const. Amend. XIV MISCELLANEOUS Brandon L. Garrett, Judging Innocence (2008) 108 Colum.L.Rev. 55, 119 Edward Imwinkelried, The Use of Evidence of an Accused’s Uncharged Misconduct to Prove Mens Rea: The Doctrines Which Threaten to Engulf the Character Evidence Prohibition, 51 Ohio St.L.J. 575, 583 (1990) George Fisher, Evidence 144-49 (2002) Richard O. Lempert & Stephen A. Saltzburg, A Modern Approach to Evidence 216-25 (2d ed. 1983) -xii- 56 94 94 59 59 134 61 oT 67‘TRODUCTION Lana Clarkson died in the early morning hours of February 3, 2003 from a single intraoral gunshot sustained while seated in a chair in the foyer of the home of appellant Phillip Spector. ‘The two had met just hours before at the House of Blues, a Los Angeles club where Clarkson had been recently hired. Appellant was accused of murdering Clarkson. His first trial ended in a hung jury; his second in a conviction for second degree murder The prosecution's theory of the case, stated in pre-trial proceedings and announced in opening statement at appellant Spector’s first trial in 2007, was straightforward: Lana Clarkson was the victim of a malice murder committed by Mr. Spector. Prosecutor Jackson thus informed the jury at the beginning of his opening statement: “The evidence is going to paint a picture of a man [defendant Spector] who on February 3, 2003, put a loaded pistol in Lana Clarkson's mouth, inside her mouth, and shot her to death.” (FT RT 1156 ; see also FT RT 1214: “The defendant pulled his handgun, his gun out of his bureau drawer, secured in his holster and loaded with his bullets, and he shot Lana Clarkson through the mouth, a single gunshot.”)! The bullet which killed Ms. Clarkson came from a .38 Colt revolver. Appellant's "There are a number of instances herein in which appellant Spector refers to matters at his first trial to provide needed context to the claims of error he raises as to his second trial, which resulted in his conviction. ‘The transcript pages from the first trial are cited as FT RT.driver testified that he heard and saw his employer make a self-incriminating statement while holding a firearm soon after the fatal shot was fired, But there was a wealth of forensic evidence supporting the conclusion that Mr. Spector did not fire the shot that killed Ms. Clarkson. As Mr. Spector's counsel told jurors in her opening statement at his first trial: “The science will tell you, through the evidence of science, that Phillip Spector did not shoot Lana Clarkson, the decedent, that he did not hold the gun, and that he did not pull the trigger.” (FT RT 1291.) Mr. Spector's fingerprints and DNA were not on the gun. He is right-handed, but there was no gunshot residue (“GSR”) found on his right jacket sleeve, as there should have been if he fired the fatal shot. Both of Ms. Clarkson’s hands had GSR on them. Almost all intraoral gunshot wounds are self-inflicted, and Clarkson had suffered none of the injuries that would have resulted from a gun being forced into her mouth. The state’s own experts were forced to concede that the physical evidence was consistent with the conclusion that Ms. Clarkson shot herself. Furthermore, at the time of her demise, Clarkson had a high blood alcohol level as well as Vicodin and Benadryl in her system. Ms. Clarkson had also written and spoken with others about being at the “end of her rope.” Given the powerful proof that Spector did not shoot Ms. Clarkson on February 3, 2003, the prosecution was unwilling to rest its case on the evidence concerning the events of that night, Despite the statutory prohibition on character evidence (Evidence Codesection 1101(a)), which fully applied in this case,? the prosecution sought to plug the critical gaps in its case with evidence of whom Spector was — evidence of his character and propensities. Much of the testimony at appellant’ s first trial concerned not the events in Spector's Alhambra home in February 2003, but those occurring in places as far flung as New York and at times as distant as the mid-nineteen seventies, Jurors heard five ‘women testify that Mr. Spector had on certain occasions threatened them with a firearm in anger. At Mr. Spector's first trial, the court admitted this evidence on a theory of “motive” at odds with controlling case law of the California Supreme Court, and then submitted the 1101(b) evidence to the jury based on an unprecedented instruction of its own creation that effectively equated “motive” with propensity. Although intent, as opposed to identity, was never in dispute in this case, jurors at the first trial also were regaled with testimony admitted on an intent theory to the effect that in the early 1990's, over ten years before the charged offense, Spector twice had made vile and obscene comments about Women to Vincent Tannazzo, a security guard at a Christmas parties at Joan Rivers’ apartment. In its closing argument at the first trial, the prosecution proclaimed that Mr. Spector was the type of man who abused women and thus was guilty of the murder of Ms. Clarkson — a classic propensity argument. It was a testament to the strength of the exculpatory forensic evidence that, despite ? The state could not and did not claim that the exceptions to the ban on character evidence set forth in Evidence Code sections 1108 and 1109 were applicable to the charges in this case.being inundated in an avalanche of “bad character” allegations, the jury at Spector's first trial did not convict. Rather, after two weeks of deliberations and four votes, it reported itself solidly deadlocked at seven to five. (FT RT 11721.) The reason for that deadlock after six months of trial was well-stated by the trial judge, Larry Fidler: “We don't know how the gun got in her mouth.” (FT RT 11878.) Nine of the twelve jurors indicated that further instruction or readbacks would not assist the jury in reaching a verdict. (FT RT 11723-11724.) But Judge Fidler then took extraordinary measures to break the jury’s deadlock. During its rebuttal argument at the first trial, the prosecution had played an animated video depicting Mr. Spector placing a gun in Ms, Clarkson’s mouth and firing it. (FT RT 11600-11605.) In response to an appropriate defense request for a theory of the case instruction, the court initially had informed the first jury that it was “the prosecutions’s contention that the act committed by the defendant that caused the death of Miss Clarkson was to point a gun at her which resulted in the gun entering Miss. Clarkson’s mouth while in Mr. Spector's hand.” (FT RT 11657.) The Sears? instruction further stated that the prosecution had the burden of proving that alleged act. (FT RT 11657-11658.) > (People v. Sears (1970) 2 Cal.3d 180, 190; see also People v. Saille (1991) 54 Cal.3d 1103, 1119-20; accord People v. Ervin (2000) 22 Cal.4th 48, 90- 91 [Proposed defense instructions which relate particular facts to a legal issue in the case or “pinpoint” the crux of a defendant's case are required to be given upon request when there is evidence supportive of the theory].)Following the announcement of the deadlock, however, Judge Fidler instructed the jury, over strenuous defense objection, (a) that the court had withdrawn the theory of the defense instruction and jurors should henceforth deliberate “as though you had never heard of it” (FT RT 11900); and (b) that Spector could be convicted on the theory that he forced Ms. Clarkson “to place the gun in her mouth at which time it discharged” (FT RT 11901), a theory never advanced by any witness nor suggested by the prosecution during its closing arguments. Despite being given that remarkable supplemental charge, the jury remained deadlocked, and a mistrial was declared. At Spector’s retrial in 2008 and 2009, also presided over by Judge Fidler, the court for a second time allowed the prosecution to put before the jury the same voluminous “uncharged offense” evidence on the court’s flawed theory and instructions concerning “motive.” Likewise, the court again permitted the introduction of the Tannazzo evidence on the non-disputed issue of intent, but failed to instruct the jury on the limited purpose for which the evidence of Spector's alleged comments could be considered. The admission of the section 1101(b) evidence on a motive theory, the introduction of the ‘Tannazzo evidence on an intent theory, and the defective instructions given to the jury regarding motive and intent are raised as claims of error in this appeal. Although the evidence relating to the prior uncharged incidents remained essentially unchanged, the court also radically expanded the bases on which the section 1101(b) evidence could be considered by the jury to include identity, as well as lack ofaccident, mistake, and/or suicide. At the first trial, the court had declined to send the evidence to the jury as proof of the absence of accident or mistake because appellant Spector never contended that the shooting of Ms. Clarkson was the result of an accident or mistake on his part, That ruling had been correct. The court erred in reversing itself on this point at appellants retrial. Identity had also been rejected as a ground for introduction of the 1101(b) evidence at appellant's first trial because the uncharged offenses did not remotely approach the degree of similarity required for admission under an identity theory of admissibility. None of the “uncharged offense” evidence involved events in which Mr. ‘Spector put a gun in someone's mouth, much less fired it. The trial court reversed itself prior to the second trial, however, ruling that the section 1101(b) evidence would be admitted on the issue of identity, but by the retrial’s end had reversed itself again, concluding that the jury should not be instructed to consider the other offense evidence on that issue. But the court then replaced the term “identity” in its instruction on the uncharged offense evidence with unprecedented language that permitted the jury to consider that evidence for any and every purpose whatsoever. The court compounded this instructional error by permitting the prosecution to do in its closing argument what it had been barred from doing in its opening statement: to assert that appellant had a history and “pattern” of violence against women, and thus should be convicted based on his bad character and evil propensities.‘The cumulative prejudicial impact of the trial court’s errors in admitting and instructing on the evidence of uncharged offense and acts cannot possibly be deemed harmless, particularly given (a) the inflammatory and lurid manner in which the prosecution made use of the material in closing argument, and (b) the lengthy deliberations — nine days — that preceded the verdict at the retrial. Furthermore, the prosecutors compounded the prejudicial effect of all of these errors with vituperative attacks on the integrity of defense counsel and the expert witnesses called by appellant, attacks that clearly passed over the line separating aggressive advocacy from prosecutorial misconduct. Despite the strength of these numerous claims, appellant Spector will raise yet another as his threshold claim for reversal, both because of its startling nature and because the relevant facts and law can be succinctly summarized, As will be explained below, the state, having failed at appellant's first trial to obtain a conviction, at the second trial dramatically shifted the testimony of its most important forensic witness. Prosecution criminalist Lynn Herold had testified at the first trial that there was no forensic evidence inconsistent with the conclusion that Ms. Clarkson shot herself, Herold asserted at the retrial, however, that there was blood spatter evidence provided by an evidence technician, Jamie Lintemoot, of which Herold had previously been unaware and which proved Clarkson did not shoot herself. A key piece of evidence admitted by the prosecution to bolster Herold’s revisionist theory was a videotape of Judge Fidlercommenting on Lintemoot’s description of blood stains on Clarkson’s hands. Those hearsay comments by the judge were made during Spector’s first trial at a hearing outside the presence of the jury from which appellant Spector was absent and at which Judge Fidler was not subjected to cross-examination. In closing argument, the prosecution not only played the video of the comments of Judge Fidler concerning Lintemoot’s testimony, but also (a) declared the blood spatter evidence to be the most important issue in the case; and (b) displayed Judge Fidler’s picture, along with that of Lintemoot, as persons who had supplied crucial evidence supporting a guilty verdict. Under California law, a judge may not offer evidence in a trial over which he presides, and a mistrial must be declared if he does. Furthermore, the Confrontation Clause of the Sixth Amendment bars the admission of testimonial statements not subject to cross-examination. Given the closeness of the case, these state and federal errors cannot possibly be deemed harmless. Reversal of appellant’s conviction is required on the basis of this improper judicial testimony alone. STATEMENT OF THE CASE On September 20, 2004, over eighteen months after Ms. Clarkson's death, a Los Angeles grand jury issued an indictment charging Phillip Spector with a single count of murder (Penal Code $187) and alleged that in the course of that offense he personallyused a firearm. (Penal Code §12022.5(a)(1), 12202.53(b).) (CT 1104.)* A jury trial began on April 25, 2007. (CT 3589.) On September 17, 2007, after a week of deliberation, the jury first declared itself at an impasse. (App RT 11721.) After supplemental instructions and another week of deliberation, the jury declared itself hopelessly deadlocked on September 26, 2007. (CT 5452.) The court declared a mistrial the same day. (CT 5513.) A retrial commenced on October 29, 2008. (CT 5844.) The jury retired to deliberate on March 26, 2009. (CT 6421.) After deliberations on nine days between March 26, 2009 and April 13, 2009, the jurors returned a guilty verdict, (CT 6457.) Spector was sentenced on May 29, 2009, to 19 years to life in prison. (CT 6516.) Judgment was entered June 3, 2009, (CT 6519.) Spector filed a timely notice of appeal on May 29, 2009. (CT 6521.) STATEMENT OF APPEALABILITY A timely notice of appeal having been filed, this appeal is properly before the Court under Penal Code § 1237(a). STATEMENT OF FACTS. Given the many thousands of pages of testimony taken during the six month retrial below, a complete summary of the evidence would not be possible within the confines of this appellate brief, nor is one necessary. Much of the testimony introduced at appellant's + “CT” refers to the Clerk's Transcript on appeal and “RT” to the Reporter's ‘Transcript at appellant’ retrial.retrial had little to do with the crucial factual issues on which the ultimate question of guilt and innocence turned. Furthermore, appellant does not claim that the prosecution's evidence was so insubstantial as to merit a directed verdict of acquittal on appeal, a claim that would have required an extremely detailed recitation of the state’s proof. What appellant does assert is that the evidence at trial was profoundly conflicted on the one issue at the center of the case: who was holding the firearm when it discharged and killed Ms. Clarkson? It is within the context of that conflict, amply demonstrated by the jury deadlock at his first trial and the protracted deliberations at his second, that appellant’s claims of evidentiary error and prosecutorial misconduct must be considered and decided. And it is that conflict that appellant addresses in the factual summary that follows. ‘The evidentiary and procedural facts relevant to appellant's individual claims of error are separately summarized in the arguments that follow this Statement of Facts. A. February 2 and 3, 2005: Events Before the Shooting Appellant Phillip Spector and Rommie Davis were old friends who had met in high school. (11 RT 1950.) On the evening of February 2, 2003, appellant and his driver, Adriano DeSouza, left Spector's Alhambra residence, called “The Castle,” in a black Mercedes, picked up Ms. Davis at her home at around 7:30 p.m., and took her to the Beverly Hills Grill. (11 RT 1957, 14 RT 2479.) Ms. Davis had to be home early that night and appellant and his driver dropped her off at around 10:45 p.m. (11 RT 1962.) 10At the Grill, appellant saw Kathy Sullivan, who worked as a waitress there and had been a friend of appellant's for a number of years. (12 RT 2149, 2157.) After dropping off Ms, Davis, appellant went to Trader Vic's with Ms. Sullivan (12 RT 2152-2154, 2159.) After Trader Vic's, the pair went first to Dan Tana’s (12 RT 2170), and then to the House of Blues. (12 RT 2174-2175.) It was at the House of Blues that appellant and Sullivan met Lana Clarkson, who worked there as a hostess, (12 RT 2179-2182, 13 RT 2343.) At about 2 a.m, appellant had Mr. DeSouza take Ms, Sullivan home. (12 RT 2185- 2187.) When Mr. DeSouza returned to the House of Blues he heard appellant invite Clarkson back to the “Castle.” (14 RT 2505.) Clarkson declined. (14 RT 2505.) Appellant did not insist. (14 RT 2569.) Clarkson accepted a ride to her car. (13 RT 2353.) DeSouza and appellant took Clarkson to the parking structure where Clarkson had her car. (14 RT 2508.) After Clarkson exited the garage and parked nearby, she got back in the Mercedes and said to DeSouza, “You know, I want to have a drink. I really need a drink, so I’m going to go with him.” (RT 2509, 2570.) ‘The three arrived at the Castle at around 3 a.m. (14 RT 2517.) DeSouza parked around back near Spector's garage. (14 RT 2519.) About twenty minutes later Spector came to the door. (14 RT 2520.) DeSouza put appellant's briefcase in the entryway. (14 RT 2522.) DeSouza did not hear or see Clarkson. (14 RT 2524.) ALB. February 3: The Shot and Its Aftermath At around five a.m. on February 3“, DeSouza was resting inside the car when he heard a loud noise. (14 RT 2525.) Before the noise he heard no yelling or screaming. (14 RT 2584.) He told the police he was awakened by the sound. (15 RT 2759-2760.) He walked around for a few minutes trying to find the source of the noise and then got back in the car. (14 RT 2526.) It was fairly dark and the light on the porch was dim. (14 RT 2587.) Three to five minutes later appellant Spector came outside and stood on the porch holding a gun. (14 RT 2528.) DeSouza testified that appellant was wearing the same clothes he had been dressed in that night: black pants, a black shirt and a white jacket (14 RT 2529.) DeSouza testified that appellant said: “I think I killed somebody.” (14 RT 2532.) DeSouza testified that he saw blood on the top of Spector’s finger (14 RT 2534.), but had told police he was not sure if Spector had blood on his hands. (15 RT 2761.) Through the door DeSouza saw Clarkson’s legs and then her whole body. (14 RT 2535.) DeSouza reported that Clarkson was slumped down in the chair, her body half in and half out of the chair, (14 RT 2538.) He asked Spector what happened and Spector shrugged. (14 RT 2535.) DeSouza ran ten to fifteen feet and tried to use his cell phone. (14 RT 2540.) DeSouza called 911 at 5:02 a.m., reporting that he had seen appellant was carrying a gun; that appellant had said that he thought he had “killed her;” and that Clarkson’s body was 2on the floor, A transcript of the call was placed in evidence as Exhibit 143.5 (14 RT 2544.) What DeSouza did or did not hear appellant say when he emerged from the Castle was in dispute at trial. DeSouza’s day on February 2™ had started at around six a.m, (14 RT 2559.) He did not sleep at any point during the day. (14 RT 2560.) He worked until five a.m. the next morning without having slept. (14 RT 2560.) He did not eat between seven p.m. on February 2°‘and his multiple police interviews on the morning of February 3, (46 RT 9090.) When interviewed at the scene, DeSouza was described by an investigating officer as “very agitated.” (15 RT 2785.) In his grand jury testimony (14 RT 2632), as in his interviews at the time of the incident, DeSouza described Spector's statement as: “I think I just killed somebody” and, alternatively, as “I think 1 just killed her.” There was a running fountain between Spector and DeSouza which DeSouza described as “fairly loud.” (14 RT 2581.)' DeSouza believed Spector may have been drunk at the time. (14 RT 2605.) DeSouza had difficulty understanding Spector when he drank, and sometimes Spector mumbled and was hard to 5 The first report of the shooting was a 911 call from a cell phone at 5:02 amon February 3rd. (14 RT 2445; Exhibit 142.) © For instances where DeSouza used the term “somebody,” see Exhibit 161, at 3, 8- 9, and 23; Exhibit 147, at 45, 55-56. For his use of “her,” see 13 RT 2282 and Exhibit 143, the 911 call. 7 A tape of a police interview of DeSouza conducted near the fountain was played for the jury to demonstrate how loud the fountain was. (14 RT 2582.) 13understand. (14 RT 2557, 2558.) According to DeSouza, Spector had slurred his words during that evening and was hard to understand. (Exhibit 147 at 36.) DeSouza, a Brazilian national, is a native Portuguese speaker; he speaks that language at home. (14 RT 2551.) In an interview on February 3° (Exhibit 147 at 55-56), DeSouza told police officers that because of his imperfect English, he could not be sure what Spector said to him outside the house. (14 RT 2662.) At the time of the charged incident, DeSouza had overstayed his student visa and was working in violation of U.S. law. (14 RT 2654.) DeSouza admitted that he had lied on various government immigration forms. (15 RT 2746.) When he told the police about his visa status they informed him that he was immediately removable from the U.S, (15 RT 2751.) As a result of his cooperation with the prosecution in this case the District Attorney helped to defer INS action to remove him from the country. (14 RT 2654.) Indeed, the DA wrote letters to immigration officials asking that DeSouza be permitted to remain in the country indefinitely, that he be able to work, and that his mother be able to visit. (Exhibits 514, 515, 516.) Defense witness Elizabeth Loftus, a professor at UC Irvine and an expert on eyewitness testimony (45 RT 8811-8817), testified concerning factors affecting the accuracy of DeSouza’s testimony.* Loftus testified, inter alia, that the amount of time someone witnesses an event is a key factor in accuracy. (45 RT 8821.) People tend to overestimate the amount of time they observe an event. (45 RT 8821.) Similar rules apply to audio as well as visual (cont.) 14C.— Appellant’s Arrest About forty minutes after arriving at appellant's residence, arresting police officers approached appellant's residence and announced themselves at the back door. (15 RT 2789, 2791, 2841.) Appellant was walking back and forth on the second story of the house. (15 RT 2794.) Without having received any orders from the police, Spector came onto the back porch. (15 RT 2795, 2844.) He slurred his words, and was described as frantic, dazed, and confused. (15 RT 2796, 2845.) As officers approached the house, he stated: “Hey guys, you’ve got to come see this.” (15 RT 2807.) Spector walked back into the house. (15 RT 2795.) The police followed. (15 RT 2810.) Using a four-foot wide plastic shield the police took Spector to the ground inside acquisition. (45 RT 8822.) Poor lighting or other visual conditions may reduce acquisition of information and weak information is more easily corrupted by later events or questioning. (45 RT 8822.) Other circumstances may interfere with acquisition of information, such as stress, audio or visual distractions, lack of sleep. (45 RT 8823.) Loftus testified that a person who had not slept in twenty two hours would have a reduced ability to perceive events accurately. (45 RT 8823.) Stress in particular may have a negative effect on memory, particularly for peripheral details. (45 RT 8824.) ‘The main reason that a person’s descriptions of events change from one telling to the next is exposure to corrupting post-event information. (45 RT 8838.) Post-event information, including hearing statements by others or being questioned, can contaminate and distort memories. (45 RT 8833.) If someone is questioned repeatedly, the continual retrieval can act as corrupting post-event information. (45 RT 8841.) If a person is unsure of a memory and later states he is sure of it, itis likely that intervening positive feedback ‘was a corrupting influence on the person's confidence in the memory. (45 RT 8934.) 15the foyer and arrested him. (15 RT 2811.) D. The Investigation Both the Los Angeles Sheriff's Department and the Los Angeles Coroner were involved in the investigation of the Clarkson shooting, an inquiry that extended from February 2003 to the time of the retrial in late 2008. Unlike defense experts, who were cross-examined at length about their compensation for participation in the case (evidence the prosecution relied heavily on in closing), there was no record of the amount of time or money spent by those departments. The chief Coroner, Dr. Lakshmanan,.’ testified that twelve members of his staff worked on the case. (31 RT 6014.) 1. The Initial Crime Scene Findings Paramedics and investigating officers found Lana Clarkson’s body clothed and slumped in a chair in a narrow foyer. (16 RT 3060-61; Exhibit 19.) Her shoulder blades hit the middle of the top cushion of the chair. (16 RT 3069.) Her arms were down by her sides and her head was turned to the left, (15 RT 2854.) Her right heel was on the floor but the rest of her foot was slightly elevated. (16 RT 3069.) There was blood on her face running down her chest. (16 RT 3064.) Clarkson's purse strap was wrapped over her shoulder, twisted, and then wrapped around the right arm of the chair. (16 RT 3065.) A .38 Colt six shot, two-inch barrel revolver loaded with five rounds (including a ° Lakshmanan Sathyavagiswaran is the Coroner of Los Angeles County. Because his last name is difficult to pronounce, at trial the parties referred to him as Dr. Lakshmanan, Appellant follows that convention in this brief. 16spent round under the hammer) was found under Clarkson’s left calf and ankle area. (15 RT 2814 3079-80.) A drawer of a bureau in the foyer was open three to four inches. (15 RT 2850, 3170.) Inside the bureau was a holster for a .38, (16 RT 3085.) White material, a part of Clarkson’s artificial tooth (a “cap”), had lodged in the sight of the gun. (17 RT 3194.) Pieces of one of Clarkson’s caps were found on the floor across the foyer from her body and on two stairs opposite her body. (17 RT 3113.) The pieces of artificial tooth were found essentially in a straight line. (17 RT 3208.) The tooth material traveled up to fifteen feet from Clarkson to the stairs. (22 RT 4242.) In the living room, which was lit only by candles, police found a quarter-full bottle of ginger ale, a brandy snifter with alcohol in it, and next to it an empty bottle of tequila. (17 RT 3117.) Inside a bathroom near the foyer, investigators found a cloth diaper that was wet and had blood on it. (17 RT 3120.) Investigators found a white jacket with blood on it in Spector's upstairs dressing room. (17 RT 3127.) The jacket was crumpled and in the middle of the floor. (17 RT 3127.) The jacket was not hidden and it was not damp, that is, as if someone had tried to remove blood stains from it with water. (17 RT 3213.) 2, The Autopsy Deputy Coroner Louis Pena did his original autopsy on February 4, 2003; he finalized his report on September 19, 2003. (21 RT 4086.) Pena testified that the cause of ‘Clarkson’s death was injuries to her head and neck caused by an intraoral gunshot which 17did not exit her body. (21 RT 4001.) The bullet traveled through Clarkson’s mouth, severed her spinal cord, and entered the lower part of her head. (21 RT 4003.) The trajectory was front to back and slightly upward. (21 RT 4007.) Pena testified that the shot fired was a near or loose contact shot because there was no stippling in the mouth. (21 RT 4024.) It was his opinion that Clarkson’s artificial tooth was broken and propelled out of her mouth by recoil from the gun. (21 RT 4024.) Pena opined that the bullet caused a complete transection of the spinal cord, which meant Clarkson would have immediately lost all function, (21 RT 4022.) A forensic neuropathologist confirmed that the shot separated Clarkson’s spinal cord from her brainstem, (24 RT 4750.) When Dr. Pena had first arrived at the scene, he was told appellant confessed to the shooting. (21 RT 4049.) He admitted that after hearing this, he had an inclination to prove that assessment correct. (21 RT 4089.) Thus, he was hoping the shot was not intraoral, common in suicides, because an external shot would be obviously a homicide. (21 RT 4050.) There were three drafts before Pena issued a final autopsy report in September of 2003 (22 RT 4233). The original draft had no opinion regarding the manner of Clarkson's death — i.e., whether it was a homicide or suicide or accident. (22 RT 4276.) It had been impossible for Pena to determine whether Clarkson had been killed or committed suicide based on the autopsy, (21 RT 4051.) In a report of a meeting on July 22, 2003 (22 RT 184277), Pena wrote that the physical evidence in the case would not support a finding of homicide; there would need to be additional investigative input. (22 RT 4277-4280.) Pena’s ultimate opinion that the death was a homicide was first rendered on July 29, 2003, a week after he stated he was unable to reach that conclusion. (22 RT 4287; Exhi 569.) Pena claimed he was able to render the opinion on the 29" because by then he had received additional information orally from the Sheriff's investigators. (22 RT 4288.) 3. The Physical Evidence ‘The trial testimony concerning the physical evidence collected at the scene was voluminous. There was often, but not always, a consensus as to what trace evidence had been located at the scene, As will be seen in following sections, however, there were deep divisions among experts as to what conclusions could and could not be drawn from that evidence. Again, because it is neither possible nor necessary to describe the universe of the physical evidence in detail, appellant limits the following summary to that material which proved central to the opinions of the numerous expert witnesses. a. Toxicology Spector's blood tested positive for seizure medications and Prozac. (19 RT 3482.) His blood alcohol level was .07. (19 RT 3484.) Clarkson's blood alcohol level at the time of her death was .14 or .12, depending on the test, at least 1.5 times the legal limit, (19 RT 3486-3487, 3494.) She also tested positive for Vicodin and Benadryl. (19 RT 3485.) Theamount of Vicodin in Clarkson’s body was more than if she had taken two tablets, suggesting recent use. (19 RT 3485, 3489 19 RT 3513.) b, The Gun The 38 Colt involved in the shooting was a snub nose with a two inch barrel. (21 RT 3888.) Given the artificial tooth material found in the sight of the gun, the gun had to have been fired while inside Clarkson's mouth no more than 1.5 inches. (21 RT 3920- 3921.) cDNA Evidence Steve Renteria, the prosecution criminalist found both Spector's and Clarkson's DNA ona number of items, including a pair of false eyelashes (Clarkson was the major donor; that is, Spector's DNA could have been from touching it or saliva); blood on Clarkson’s left inner and outer wrist (Clarkson was the major donor); and blood on Clarkson’s right wrist (Clarkson was the major donor). (19 RT 3635, 3636, 3639-3640, 3650-3651, 3662-65.) Samples that were found to contain exclusively Clarkson's DNA included four blood samples from the chair in which she was sitting, and a blood transfer stain on the lower part of the stairway banister. (19 RT 3660-3668.) ‘The rag that had been found in Spector’s bathroom had blood that was diluted in some places; it looked as if it had been watered down. (19 RT 3680.) All four samples from the rag were Clarkson’s. (19 RT 3681.) One sample had a weak “Y” or male marker. 20(19 RT 3681-3682.) A swab of the nipple of Clarkson’s left breast contained both Spector's and Clarkson's DNA, with Clarkson as the major donor. (20 RT 3707.) The criminalist found a weak positive for amylase on the left nipple, which is in high concentration in saliva. (20 RT 3708.) A sample taken from Spector's scrotum contained DNA from two people — Spector and another person who was likely Clarkson. (20 RT 3715-3716)!” Seven samples were taken from the gun and one from the ammunition. (19 RT 3686.) Clarkson's DNA was found on the gun and ammunition. (19 RT 3689, 3692.) Although Spector’s DNA was found mixed with blood and otherwise at various locations around the scene, Spector’s DNA was not found on the gun. (20 RT 3778.) 4. Gunshot Residue Gunshot residue (GSR) travels about 2.5 fect in a diameter around a revolver when itis fired. (19 RT 3527.) GSR contains the elements of barium, antimony, and lead (19 RT 3539-3541.) A particle that has all three of these elements is a “highly specific” indication of GSR (Id.) Under FBI guidelines, in order to identify something as gunshot residue a sample must contain all three elements of gunshot residue: lead, barium, and antimony. The FBI does not report a gunshot residue finding unless the substance tested contains at least three “highly specific” particles. (19 RT 3555, 3576.) '° Only one in 94,000 persons would have DNA characteristics consistent with those of the second donor, and Ms. Clarkson was one such person. aCoroner's investigator Jaime Lintemoot collected possible gunshot residue samples from Clarkson's hands with “sticky disks.” (17 RT 3262, 18 RT 3303.) Lintemoot found gunshot residue on Clarkson’s thumb, webbing, and first two fingers of both hands. (19 RT 3521, 3542.) The presence of gunshot residue meant Clarkson either fired the gun or that her hands were in the area when the gun was fired. (19 RT 3522.) Alter Spector was taken into custody and transferred to jail, police conducted gunshot residue tests on his hands. (18 RT 3402, 3405.) Police found one particle specific to gunshot residue and one particle consistent with residue, i.e., with less than all three elements. (19 RT 3580.) Spector could have had this quantity of residue on his hand simply by touching Clarkson or carpet or furniture, all of which were covered with residue. (19 RT 3581.) The particles on Spector's hands also could have become affixed when he was sitting in the Alhambra Police Department patrol car. (19 RT 3552.) Residue comes off in a short time with normal activity. (19 RT 3526.) But it is harder to remove residue from clothing than from skin because the particles affix themselves to fabric. (19 RT 3559.) Police investigators did not test Spector's clothes for residue. (19 RT 3557.) However, Sheriff's criminalist Lynn Herold looked over Spector's entire jacket under a microscope. (34 RT 6515.) Her original report stated that “no smokeless powder of obvious morphology [i.e.. shape] was seen.” (26 RT 5250.) She testified, however, that she removed a particle of smokeless powder from Spector’s jacket that was badly deformed. (25 RT 5036.) Other than the single particle, police found no 22other residue or powder (burned or otherwise) on any article of Spector's clothing. (26 RT 5266.) e. Blood Spatter Evidence In her contemporaneous report, Jamie Lintemoot noted that she observed small red stains on Clarkson’s left and right hands and wrists. (Exhibit 583.) In the report she identified two areas — a small area of stain and a large smear, both on the back of Clarkson's left hand, between the forefinger and the thumb as follows: “left wrist — outside “blood splatter”; “left wrist — inner larger area.” (Exhibit 613.) ‘As will become evident in appellant's lead argument below, the issue of the existence and location of blood spatter assumed great importance and was hotly disputed at appellant's second trial. The specific dispute centered on prosecution witness Jamie Lintemoot’s testimony at the retrial that she had observed blood spatter on the back of Clarkson’s wrists. (18 RT 3382-3383.) Ata February, 2004 meeting the prosecution expressed concerns about problems with the collection and recordation of blood spatter evidence. (28 RT 5598; Exhibit 608.) At the crime scene, Lintemoot had collected possible blood swabs from the area of Clarkson’s hands and wrists but had not described precisely where on the body they were; the photographs taken at the scene were too poor to show the location of the blood. (28 RT 5599-5600.) Lintemoot used a tape lift on Clarkson's dress which disturbed blood evidence. (28 RT 5601.) Clarkson's body was washed before there had been adequate 23documentation of the supposed spatter. (28 RT 5600.) Finally, and most dramatically, there was the blood purge that occurred when Lintemoot turned Clarkson's body in the Coroner’s office, thus obscuring blood and other evidence on the body. (28 RT 5602.) At the first trial, Dr. Pena testified that there was blood on Clarkson's fingers. (22 RT 4257, 24 RT 4701.) At the retrial, Pena first testified that his prior testimony was wrong — he never documented blood on Clarkson’s fingers. (22 RT 4259.) Later Pena retreated from that statement, telling the jury that he saw blood on her fingers but could not say whether it was blood spatter or a stain, (24 RT 4703.) A criminalist testified that he observed nine stains on Spector's jacket, seven of which he confirmed as blood. (20 RT 3752.) The lower front of Spector's white jacket had a series of fine blood stains. (18 RT 3349.) The highest stain was on the top portion of the left lapel. (25 RT 5051.) There was also a stain on the left cuff. (25 RT 5056.) ‘There was no blood on the outside of Spector's pants or on Spector's black shirt. (25 RT 5039.) There was a single spatter stain on the backside of the upper portion of the right arm of his right jacket, (25 RT 5059.) f, Fingerprints Investigators did not ask for fingerprints from the holster inside the bureau drawer or from the handle of the drawer. (17 RT 3171-3172.) A tequila bottle found in the living room had only Clarkson’s prints on it. (25 RT 4815.) At Spector’s first trial, the prosecution’s fingerprint examiner testified that he had 24tested the gun and found no prints. (25 RT 4820.) ‘That examiner's report was peer reviewed. (25 RT 4822.) A different examiner, John Andrews, testified at the retrial that he could observe what he believed to be a small human ridge detail in a photograph of the front strap of the 38 revolver. (25 RT 4807; Exhibit 74.) The print appeared in some sort of fluid, but he could not say what kind of fluid, (25 RT 4808.) The ridge structure had to come after the liquid was on the gun. (25 RT 4809.) Unlike the conclusions of the state’s examiner who testified at the first trial, Andrews’s conclusions were not peer reviewed. (25 RT 4830.) ‘The ridge on the photograph is vertical, which is not how the finger is placed if the gun is held in a shooting position. (25 RT 4832.) g Evidence of a Struggle Clarkson was over six feet and 160 or 170 pounds, while Spector was much smaller — five feet two inches and around 140 pounds. (14 RT 2577.) Investigators found no evidence of tom clothing, skin under nails, or disturbed furniture suggesting there had been a struggle between Clarkson and Spector. (17 RT 3203.) ‘There was no foreign DNA under Clarkson's fingernails. (20 RT 3821.) A part of Clarkson’s nail was broken off, but she could have broken her artificial nail in the process of pulling the trigger of the gun, (17 RT 3205, 3229, 3207.) Medical examiner Pena testified that the room where the body of Clarkson was located contained no evidence of a struggle. (22 RT 4226.) The bureau had various 25photographs on it that were not disturbed. (22 RT 4228.) He observed no scratches on Clarkson. (22 RT 4228.) Dr. Lakshmanan agreed that itis difficult to foree a gun into someone’s mouth. (32 RT 6193.) He testified that there was no evidence of trauma to Clarkson's mouth that would suggest the gun was forced into her mouth. (33 RT 6452.) After looking back at his cases, he was unable to find a case in which a gun was forced into someone's mouth and discharged. (32 RT 6193.) Dr. Pena testified that injuries to the middle of Clarkson's tongue were caused by the firing of the bullet that killed her. (21 RT 4012.) At the first trial Pena testified the gun was held loosely in Clarkson's mouth before it discharged. (22 RT 4285.) He also testified at the first trial that the gun was not forced down Clarkson’s throat, (22 RT 4285.) At the time of the autopsy, Pena attributed no significance to a bruise on the left side of Clarkson’s tongue. (21 RT 4090.) He only considered it significant after the prosecutor asked him about it. (21 RT 4090.) At the retrial, Pena testified that the bruising on the left side of Clarkson’s mouth was not caused by the bullet, but rather was caused by blunt force trauma, (21 RT 4014.) Pena’s theory that the gun caused blunt force trauma to the left side of Clarkson's tongue was problematic because only 1.25 inches of the barrel could have been inside Clarkson’s mouth and the bruising was at the back of the tongue, at least two inches 26inside the mouth, (21 RT 4103.) Pena admitted that if the gun had been pushed into her mouth — by which it might have reached two inches inside — there would be bruising evident on the outside of Clarkson's mouth, and there was none. (21 RT 4099.) Pena conceded the bruising at the back of the mouth could have been caused by gasses released when the shot was fired or by Clarkson’s teeth clamping down, (21 RT 4094- 4095.) Indeed, he agreed that such a cause was more likely. (21 RT 4109.) Pena agreed there was no blunt force trauma elsewhere in the mouth, the teeth, the lips or face. (21 RT 4055.) Pena testified at the retrial that a bruise on Clarkson’s left hand was of recent vintage and resulted from blunt force trauma, (21 RT 4030-31, 4110.) He found other recent bruises below the joint area of Clarkson’s right wrist and another on her forearm. (21 RT 4032-33.) Pena did not document these bruises at the scene; rather he discovered them at the time of the autopsy. (24 RT 4689.) By that time Clarkson had been moved to the ground at the scene and transported to the Coroner’s office. (24 RT 4689.) Criminatist Jaime Lintemoot had made no reference to such bruises in her worksheet or her final report regarding the crime scene, (32 RT 6186, Exhibit 613, Exhibit 583.) Coroner’s investigator Barbara Nelson examined the body and made no mention of any bruises. (32 RT 6186-6187, Exhibit 614.) Pena testified at the retrial that the bruises were consistent with Clarkson's having been grabbed. (21 RT 4035.) At the grand jury, however, Pena testified that he could not give an opinion as to the cause of the bruises. (21 RT 4119.) He previously testified that ahe could not tell whether the bruises occurred at the same time. (24 RT 4691.) It was possible the bruises were caused when Clarkson's arms hit the chair after the shot. (21 RT 4124.) Clarkson also could have received the bruises at work. (21 RT 4127.) Clarkson stated on a medical form that she bruised easily. (21 RT 4130.) She had taken the drug Acyclovir, which leads to increased bruising. (21 RT 4131, 23 RT 4366.) E The Evidence Concerning Whether Lana Clarkson Committed Suicide or Shot the Gun Accidentally 1 Evidence That Intraoral Killings Are Almost Always Suicides Doctor Pena agreed that intraoral gunshot deaths are usually suicides. (22 RT 4252.) Dr. Lakshmanan testified that in his experience intraoral gunshot wounds are almost always self-inflicted. (31 RT 6055.) 2. Evidence That The Trajectory Of Intra-oral Suicides Is ‘Typically Upward Doctor Lakshamanan testified that the trajectory of shots in the case of intraoral suicides is typically front to back and rising, which was precisely the trajectory in this case. (32 RT 6194.) Doctor Pena agreed that the trajectory of the bullet in this case was consistent with suicide, (21 RT 4053.) 3. Evidence That Drugs and Alcohol Reduce Impulse Control Dr, Lakshmanan testified that the combination of drugs and alcohol in Clarkson’s system may have reduced her impulse control, (32 RT 6204.) Dr. Pena testified that he could not rule out the possibility that a highly intoxicated Clarkson pulled the trigger of 28the gun accidentally. (32 RT 4260.) Pena agreed that the high alcohol level in Clarkson, combined with the Vicodin and Benedryl, could have combined to reduce Clarkson’s judgment and increased the likelihood that she died as the result of suicide or an accident. (22 RT 4262.) 4. Evidence Relating to Clarkson’s Psychological State at the Time of the Shooting In an effort to determine whether Clarkson may have committed suicide, Pena met once with Clarkson's mother, Donna Clarkson, just days after the shooting. (22 RT 4289, 27 RT 5508-5509.) Donna Clarkson told him Clarkson had not expressed suicidal ideation and had no psychiatric history. (22 RT 4295.) Pena did not talk to anyone else in Clarkson's life, whether friends or family or co-workers. (22 RT 4292.) ‘The evidence introduced by the parties concerning Clarkson's mental state around the time of her death was, not surprisingly, in conflict. The prosecution introduced evidence that Clarkson had immediate plans for her future. She had signed on to take part in an infomercial regarding an exercise program (although she was not to be paid for the appearance). (27 RT 5475.) She told the producer of the program on the Friday before the shooting that she would be at a training session the following Monday. (27 RT 5480.) Clarkson's mother testified that she went shopping with her daughter for shoes the day before the shooting. Clarkson bought eight pairs of shoes, including shoes to use at her new job at the House of Blues. (27 RT 5485.) Clarkson had an appointment to go over her taxes on the Tuesday following the shooting; she had tax documents laid out in her 29apartment, apparently in preparation for that appointment, (27 RT 5489.) She was set to do a modeling job for Siemens on February 8". (27 RT $491; 46 RT 9011.)"" On the other hand, the defense introduced a veritable mountain of evidence at trial that Ms. Clarkson had been extremely despondent in the months prior to her death, was in deep financial difficulties, and had a long history of drug and alcohol abuse. A fraction of that evidence is summarized below. Clarkson's medical records established that she fractured both her wrists around Christmas 2001. (22 RT 4292.) Clarkson had been depressed over that holiday period and into 2002. (22 RT 4292.) Clarkson was under treatment for her injuries for eight months, was unable to work, and took Vicodin for pain relief. (22 RT 4293.) In her medical records Clarkson revealed that she had debilitating migraines of an unknown etiology. (22 RT 4294.) In a medical questionnaire Clarkson completed in 2001 she stated that she had “severe, constant” headaches and was seeing a neurologist to try to solve that issue. (24 RT 4606.) She stressed her bad headaches on the form, putting four check marks next to the “headaches” box. (24 RT 4631.) No cause was ever found for the headaches; the neurologist prescribed Paxil and Elavil, which are mood stabilizers, (24 RT 4630.) Clarkson said she had neck pain, ringing in her ears, coughed up blood and had dizzy spells, (24 RT 4631.) She reported that she was taking barbiturates to try to get rid “Clarkson would not have been recognizable in the print ad and was to receive only $750 for the appearance, twenty percent of which she would have paid to her (cont.) booking agent. (Id) 30of the headaches. (24 RT 4607.) She described coughing up blood due to a bruised lung suffered while riding a horse. (24 RT 4607.) In the questionnaire Clarkson reported: fatigue, a racing heart, faintness, numbness, lack of concentration, lack of memory and sleeping problems (24 RT 4632); she had used marijuana from age 13 to 37 (24 RT 4626). Clarkson said her father was a drug addict (24 RT 4629); she had been taking Vicodin for eight months for pain from her wrist injury (24 RT 4627); and she continued to use Vicodin after her prescription ran out and had it in her system at the time of the shooting (24 RT 4628). In February of 2001, for example, she wrote an e-mail to a friend in which she said, “I hurt myself of course, injured as usual by tequila.” (Exhibit $77.) Clarkson wrote a series of e-mails in the months before her death which suggest she was seriously depressed by health and financial problems, a floundering career, and a failed romantic life. On December 8, 2002, just weeks before her death, Clarkson wrote to her friend “I am truly at the end of this whole deal. I’m going to tidy up my affairs, and chuck it because it’s really all too much for just one girl.” (Exhibit 572.) During the same period she wrote: “This has definitely been the most difficult year of my entire life” and that it had not gotten any better. (Exs. 659, 578; 23 RT 4334; 42 RT 8304) In another message dated December 3, 2002, Clarkson wrote this: 1 feel like I am really losing it. I’m kind of feeling like giving up the dream and, therefore, the struggle. 31(23 RT 4540; Exhibit 186.) In another message of mid-December 2002 Clarkson wrote, “Over here things are pretty bad. I won’t go into detail, but I am on the verge of losing it all. Just hanging on by a thread.” (22 RT 4345.) In an undated message from this period Clarkson refers to an episode in which she and Hugo Quackenbush, a man from whom she had borrowed money, had a fight on a city street. “You were screaming, calling me names, like ‘fucking bitch’ and lashing out at me on Van Ness Boulevard.” (24 RT 4648.) After detailing the miserable weekend they spent, she went on to discuss her dire financial straits and ask Quackenbush for $6000. (24 RT 4649.) John Baron wrote a play called Brentwood Blondes. (37 RT 7166.) Clarkson. auditioned for the part of Marilyn Monroe and was hired. (37 RT 7170-7172.) The pay for each performance was five dollars. (37 RT 7168.) Clarkson told other cast members that she and Baron had rewritten the play, which was false. (37 RT 7175.) On one occasion Clarkson was at Baron's apartment and became aware that he had Vicodin. (37 RT 7181.) She asked him for some and he gave it to her. (37 RT 7181. Although it was a small production, Clarkson was very demanding and was taking over the show, (37 RT 7179, 7212.) She was aggressive with other cast members. (37 RT 7221.) On January 9, 2003, Baron fired her. (37 RT 7179.) David Schapiro was in a writing group with Clarkson in the summer of 2002. (37 RT 7249.) They became friends and he saw her a few times each month. (37 RT 7251.)Clarkson was disappointed that she had not become more of a star. (37 RT 7254.) She was unhappy about not getting any acting roles. (37 RT 7254.) He believes she was depressed generally and depressed about her career in particular. (37 RT 7254.) At times in discussing her situation she became teary and found it difficult to talk. (37 RT'7255.) In December, 2002 Clarkson told Schapiro her phone was disconnected and she was going to be evicted; then she asked Schapiro to borrow $600. (37 RT 7256.) When he said he could not give her $600 she said she would settle for $200. (37 RT 7269.) When he eventually said he could not lend her money she became angry, telling him by way of e-mail, effectively, that it was his fault she would be evicted. (37 RT 7274.) Gregory Sims is a film producer who met Clarkson through her friend Punkin Pie. (40 RT 7895.) Just days before Clarkson died they met at a party. (40 RT 7897.) At an after-party Clarkson had a lot to drink. (40 RT 7900.) She was in a distressed state, (40 RT 7901.) She was very depressed. (40 RT 7902.) Clarkson cried and did most of the talking. (40 RT 7902.) The conversation lasted one and a half to two hours. (40 RT 7909.) Clarkson was crying most of that time. (40 RT 7909.) Clarkson talked about being unhappy in life and giving up. (40 RT 7903.) She said she hated the people in the business and was unhappy that she had no children and that her relationships failed. (40 RT 7903.) Sims told the jury that the extent to which Clarkson was distressed that night was extreme. (40 RT 7904.) Clarkson kept drinking to the point that she was non-functioning. (40 RT 7906.) 33She expressed feelings of despair, being at the end of her rope, and not having a reason to live, which led him to ask her whether she had any professional help. (40 RT 7906.) Sims said he had never seen her in such a dark place. (40 RT 7907.) She talked about not wanting to go on with her life as it was. (40 RT 7908.) She said she wanted to die. (41 RT 7978.) 5. Expert Testimony on Suicide Defense witness Richard Seiden, a psychologist and former professor at U.C. Berkeley testified as an expert on suicide (42 RT 8230.), of which there are two kinds: (a) premeditated and planned and (b) impulsive and spur of the moment. (42 RT 8241.) The latter category accounts for forty percent of all suicides. (42 RT 8241.) In the case of an impulsive suicide there may be only five minutes or less between contemplation of, suicide and the act. (42 RT 8247.) Suicide is often driven by a health or financial crisis or failure of a relationship. (42 RT 8243.) Often the trigger for an impulsive suicide is a fight or heavy drinking and/or drug use. (42 RT 8248.) Many studies show that alcohol is a chief culprit in leading to suicide. (42 RT 8254.) Binge drinking, too, is associated with suicide. (42 RT 8260.) Impulsive suicide is not correlated with major, clinical depression. (42 RT 8253.) Rather, it is tied to feelings of hopelessness about oneself and the future. (42 RT 8253.) Depressive ideation, which includes hopelessness, is a risk factor for suicide. (42 RT 348257.) A person’s hopelessness about her financial situation, loss of a relationship, career disappointments, and chronic pain are all correlated to suicide. (42 RT 8260, 8261.) Firearms are more likely to be used in suicides than in homicides. (42 RT 8255.) Gun suicides are growing among woman, (42 RT 8255.) Women most frequently shoot themselves in the temple or intraorally. (42 RT 8256.) Based on an extensive review of Clarkson’s medical records and writings and testimony from the first trial, Seiden listed various risk factors for suicide, all of which were present in Clarkson’s life around the time she died: (a) depression and hopelessness, (b) suicidal ideation, (c) unresolved and ongoing alcohol and drug abuse issues, (d) tendency to binge and blackout drinking, (e) financial setbacks and difficulties, (f) loss of a primary relationship, (g) career disappointments and setbacks, (h) debilitating injury and chronic pain, and (i) physical aggressiveness, physical recklessness, and tendency to impulsivity. (43 RT 8326-30, 44 RT 8652.) Based on all of these factors, Seiden said it would be wrong to rule out the possibility that Clarkson committed suicide. (43 RT 8330.) F, The Failure to Investigate Clarkson’s Psychological History Before Concluding That She Did Not Commit Suicide Dr. Pena had no psychology training. When necessary the Coroner consults with experts at U.S.C. on issues relating to the psychology of a decedent, (43 RT 4265.) Pena agreed that the decedent’s mental health history is relevant, as are recent medical records and interviews with friends and family. (22 RT 4273.) 35Dr. Lakshmanan agreed that the circumstances of the decedent are relevant, (28 RT 5649.) They attempt to gather such evidence by looking at medical records and speaking with friends and family. (28 RT 5649.) Ina meeting on March 31, 2004, which included two assistant district attorneys, Pena, a criminalist named Steve Dowell, and others, Dowell brought up the issue of the Coroner's conducting a psychological autopsy as to Clarkson. (22 RT 4325.) Assistant DA Douglas Sortino said that the Coroner should hold off on doing that, (22 RT 4326- 27.) Pena testified that he later learned the DA was already doing a psychological investigation. (22 RT 4327.) By the time of the meeting the autopsy had already been finalized, though it still had not been released. (22 RT 4328.) Dr. Lakshmanan testified that he received a letter in May, 2004 from the District Atomey informing him that the DA was conducting an investigation and that the Coroner should hold off on any psychological autopsy until the DA completed its inquiry. (32 RT 6222.) Four days later the DA informed the Coroner that it could release the autopsy report, (32 RT 6223.) In March, 2005 the DA wrote the Coroner to say that it had completed its investigation and that there was no reason to believe Clarkson had committed suicide, (32 RT 6225.) The letter contained a packet of materials relating to the DA’s psychological investigation, including the e-mails and medical records discussed above. (32 RT 6224-6226.) Dr. Lakshmanan, to whom the letter was addressed, never looked at the materials and did not show them to Pena. (32 RT 6225.) 36Pena testified that when he wrote his report regarding the manner of death he had no idea that materials relating to Clarkson's psychological state at the time of the shooting were being gathered by the DA and would be delivered to his boss. (22 RT 4327.) G. The Expert Testimony On Who Fired The Fatal Shot Both parties called experts who opined on the identity of the person holding the Colt revolver when it discharged, killing Ms. Clarkson, Needless to say, those ultimate opinions, based on lengthy analyses of the physical evidence, were in conflict. The key points of the expert's testimony are briefly summarized below. 1. Lynn Herold Dr. Herold was the prosecution's chief forensic witness in the case. Herold concluded, based on her review of the evidence, that at the time of the fatal shot, Spector was holding the gun, standing slightly to Clarkson's right, in a stance such that the left panel of his jacket, which had a blood stain, was exposed to the shot, and he was standing two to three feet from Clarkson's mouth — within arm’s reach, (25 RT 5061.) In her opinion, Spector held the gun in his right hand and had his left arm raised toward Clarkson’s mouth. (25 RT 5062.) Clarkson was holding one or both of his hands at the time of the shot. (25 RT 5063.) As will be much discussed in Argument I below, the comerstone of Herold’s expert opinion evidence was the testimony of Jaime Lintemoot that there was fine mist spatter, i.e., impact spatter, on the back of Clarkson's wrists. (25 RT 5069.) Herold’s view 37was that such spatter was inconsistent with Clarkson having killed herself. (25 RT 5071, 5276.) Herold testified that the blood stains on Clarkson’s hands — that is, the ones that do appear in the photographs Lintemoot had taken —could have started as spatter and been smeared. (25 RT 5109.) Herold testified that the single stain on the upper rear of the right arm of Spector's jacket was an impact spatter stain and must have been exposed to the shooting. (26 RT 5203.) She believed it was possible that if Spector were positioned in the right way the left front panel of his jacket could be exposed to spatter while the front right panel was not. (26 RT 5206.) 2, Stuart James Defense witness Stuart James is a recognized forensic scientist with a specialty in bloodstain pattern analysis. (29 RT 5712 et seq.) He testified that photographs are used to document evidence and that a scientific opinion cannot be based on another, non-expert’s description of evidence. (29 RT 5732.) Specifically, oral description of blood stains cannot be a basis for analysis. (29 RT 5728-32.) Unlike impact spatter, which results from a gunshot or high impact event, satellite spatter occurs when blood drops onto other blood or when blood hits a rough surface. (29 RT 5734.) Satellite spatter may also occur in the case of rapidly flowing blood that cascades, thus causing spatter on surrounding surfaces. (30 RT 5909.) Impact spatter and 38satellite spatter may be very similar in appearance and may be difficult to distinguish. (29 RT 5742.) James concluded that at least some of the stains on Spector's jacket were from impact spatter and thus that Spector was within arms reach of the spatter event. (30 RT 5952-53.) It was impossible to tell whether the stains on the left side of Spector's jacket were impact or satellite spatter. (29 RT 5757.) James opined that the stain on the edge of the left cuff of Spector’s jacket was not impact spatter from the gun discharge. (29 RT 5759.) Rather, it was a transfer stain — that is, it occurred when the cuff rubbed some source of blood after the shooting. (29 RT 5759.) The stain had none of the directionality expected in the case of impact spatter. (29 RT 5760.) James testified that his finding in this regard was peer reviewed by other scientists. (29 RT 5760.) James found no spatter on the entire right front panel of Spector’s jacket, including the front of the right sleeve. (29 RT 5762.) Stains near the button of the right sleeve were transfer stains. (29 RT 5762.) ‘As to the single spot on the back of the right sleeve, if the spatter event was as Herold posited, the back of Spector's right sleeve would not have been exposed, even if his arm were bent. (29 RT 5769.) There was no spatter below the right elbow or on the forward portion of the right sleeve, which would be expected if the sleeve was exposed to the spatter event, (RT 5770.) Based on the photographs of Clarkson's hands taken at Jaime Lintemoot’s 39direction, there was impact spatter between Clarkson's thumb and index finger. (29 RT 5797; Exhibits 546, 547.) Such spatter could not have occurred if Clarkson’s palms were out, ninety degrees to the floor, as was the prosecution’s theory. (29 RT 5798.) 3. Werner Spitz Defense witness Werner Spitz is one of the leading forensic pathologists in the world. (33 RT 6476.) He has supervised or done about sixty thousand autopsies. (33 RT 6480.) Afier reviewing all the relevant evidence Spitz had no doubt the manner of death in this case was suicide. (34 RT 6500, 6545.) Spitz has autopsied several hundred intraoral gunshot deaths and none was a homicide. (34 RT 6501.) The literature is clear that ninety-nine percent of such deaths are suicides. (34 RT 6503,) There was no evidence that the gun was forced into Clarkson’s mouth. (34 RT 6505.) There was no evidence of any struggle in the form of scratches, skin under fingernails, disruption of furniture or clothing. (34 RT 6521.) The trajectory of the shot in this case — midline and slightly upward — is consistent with suicide. (34 RT 6504.) There was a considerable quantity of residue on Clarkson’s hands but none on appellant's jacket which, under the prosecution’ s theory, was very close to the gunshot. (34 RT 6515.) Although the prosecution theory was that Spector, who is right-handed (31 RT 5999.), held the gun with his right hand, there was no blood spatter on the right sleeve of his jacket below the elbow (34 RT 6515.) The single spatter stain above the rightelbow on the reverse side of the sleeve would not have been exposed to the spatter event under the prosccution’s homicide theory. (34 RT 6516.) There was no evidence of Spector’s fingerprints or DNA on the gun. (34 RT 6522.) The small tear on Clarkson's tongue was caused by the bullet and exploding gases from the shot, (34 RT 6535.) The discoloration on the tongue was not caused by blunt force trauma, but rather by the shot itself. (34 RT 6537.) Indeed, a gun with a 1.5 inch barrel could not have caused trauma that far back in Clarkson’s mouth. (34 RT 6538.) In Spitz’s opinion, the areas on Clarkson’s wrists that Pena found to be bruises were not created before her death. (34 RT 6527.) The absence of bruises in the initial photographs of Clarkson’s wrist suggest that the marks were caused post-mortem. (34 RT 6530.) The marks could have been caused after Clarkson died, for example, when she was moved on the autopsy table. (34 RT 6532.) 4, James Pex Defense witness James Pex is a well regarded forensic scientist. (36 RT 6945 et seq.) In order to do proper spatter analysis it is necessary to see the location, size, shape, and distribution of the spatter stain, (34 RT 6963.) He would not rely on another person’s description of a stain to render an opinion. (34 RT 6964.) After reviewing the photographs of Clarkson’s hands Lintemoot had taken at the scene (Exhibits 546, 547), Pex testified that the stains on Clarkson’s hands are impact spatter and that they could not have received such spatter unless they were pointed toward 41the spatter event — that is, toward Clarkson’s mouth. (36 RT 6975.) ‘The fact that Spector had a single stain above the elbow on the rear of the right arm of his jacket is inconsistent with his having been the shooter. (36 RT 6988.) Pex could not say whether the stains on the front left lapel of Spector's jacket were impact or satellite stains. (36 RT 6995.) Pex testified that there are spots of blood — impact spatter — on the gun’s grip that could not have hit the weapon if it was held in the normal manner (j.e., the manner posited by the prosecution). (36 RT 7012-16; Exhibits 593, 628.) Pex found four independent impact spatter stains on the front of the grip that would not have occurred if Spector was holding the gun. (36 RT 7014-17.) Pex opined that he has never seen a homicide case with the sort of impact spatter stains on the grip of a gun that exist in this, case. (36 RT 7018.) He has seen such spatter evidence in suicide cases because the gun was held with the shooter’s palm over the back of the grip. (36 RT’ 7019.) Pex’s findings with regard to the impact spatter stains on the gun were peer reviewed with Dr. James and another scientist. (37 RT 7054.) Pex opined that the gun was not held in the normal firing position. (36 RT 7027.) The blood on the gun was more consistent with the shot having been self-inflicted. (36 RT 7028.) If one person has gunshot residue on her hand and the other does not have such residue on his hands or sleeves, that evidence is inconsistent with their having been partof the same gunshot event. (36 RT 7034.) Pex explained that Herold’s finding of a single particle of powder on Spector’s jacket was unreliable. (36 RT 7035 et seq.) After finding the particle microscopically, it should have been chemically tested. (36 RT 7038.) It is not enough simply to see it. (36 RT 7038.) He cannot say with any degree of scientific certainty that the fiber found by Herold contained gunpowder. (36 RT 7042.) i Defense witness DiMaio is one of the world’s leading forensic pathologists. (40 RT 7684, et seq.) After reviewing all the relevant evidence in the case he concluded that Clarkson died of a self-inflicted gunshot wound. (40 RT 7690.) Ninety-nine percent of intraoral gunshot wounds are suicides. (40 RT 7692.) Although he had been involved with tens of thousands of autopsies, DiMaio had never seen an intraoral homicide with a snub nose revolver. (40 RT 7694.) Clarkson had gunshot residue on her hands. (41 RT 7695.) The upward trajectory of the bullet in this case — through Clarkson’s hard and soft palette — was consistent with intraoral suicides. he has seen. (40 RT 7698, 7845-46.) Most intraoral suicides hold the gun with one hand, using the thumb on the trigger and steady the gun with the other hand. (40 RT 7708.) The pattern of spatter on Clarkson’s hands was consistent with her having committed suicide in this fashion. (40 RT 7708-09.) Impact spatter on the grip suggested there was nothing covering the front of 43the grip at the time of the shot, a fact left unexplained by the prosecution's evidence. (40 RY 7714-17; Exhibit 593.) There were no external injuries to Clarkson’s mouth to suggest force was applied to get the gun into her mouth. (40 RT 7717.) A barrel of only 1.5 inches could not have been forced into her mouth without evidence of such trauma, (40 RT 7718.) There was no blood spatter on Spector's right cuff or sleeve of his white jacket (40 RT 7719.) Other spatter spread at least to the hem of Clarkson’s dress, into the gun’s barrel, and to the handle of the gun, so it would be on that cuff and sleeve if Spector fired the shot. (40 RT 7720.) Stains on Spector's jacket suggest he was within a few feet of the event, but the absence of spatter on his right cuff and sleeve demonstrates he was not the shooter. (40 RT 7742.) Spector's DNA was not on the gun. (40 RT 7731.) Had he handled it, his DNA almost certainly would have been detectable on the gun. (40 RT 7731.) DiMaio found no evidence of a struggle. (40 RT 7732.) Because the tongue is a muscle, it is virtually impossible to push a gun into a mouth with enough force to cause a bruise. (40 RT 7734.) The bruises on Clarkson’s tongue were the result of discharge of gases in her mouth at the time of the shooting. (40 RT 7733.) The gun in this case was too short to reach the area of supposed bruising, (RT 7735.) ‘DiMaio testified it was impossible to tell how the supposed bruises on Clarkson’s wrists were caused because they were not photographed at the scene. (40 RT 7738.)ARGUMENTS I. THE INTRODUCTION AGAINST APPELLANT SPECTOR OF TESTIMONIAL STATEMENTS OF THE VERY JUDGE BEFORE WHOM SPECTOR WAS BEING TRIED VIOLATED HIS STATE STATUTORY AND FEDERAL CONSTITUTIONAL RIGHTS AND REQUIRES REVERSAL A. Statement of Facts 1, The Herold Testimony At The Retrial The most significant difference between the evidence introduced by the prosecution at the defendant's first trial, which did not result in Mr. Spector's conviction, and the second, which did, concerned the testimony of Lynn Herold, the criminalist from the Los Angeles County Sheriff's office, upon which much of the state’s forensic case rested, At Mr. Spector’s first trial, Herold testified that based on six years of investigation, she had been unable to determine with scientific certainty that Phillip Spector fired the shot that killed Lana Clarkson (FT RT 6113); she also offered no opinion that any of the evidence admitted at trial was inconsistent with the conclusion that Clarkson shot herself. At the second trial, however, while again conceding that based on the forensic evidence she could not say that “Mr. Spector fired that shot” (26 RT 5065), on direct examination Herold did opine that Clarkson could not have been the shooter. Specifically, Herold testified in response to a hypothetical question from the prosecutor that the 45presence of “mist-like spatter or small pinprick spatter” on the back of the wrists of Clarkson would be inconsistent with Clarkson’s having held the 38-caliber Cobra in a firing position at the time it discharged. (25 RT 4976-4977) Herold explained: “[B}lood, to get on that side due to being mist-like and associated with the gunshot, would have to fly around a comer to hit the target, and that doesn’t happen.” (25 RT 4977.) When cross-examined on the seismic shift in her position, Herold admitted that she had seen all of the photographs taken of Clarkson’s hands, and none showed misting blood on the back of Clarkson's hands. (26 RT 5069.) At a meeting in her office in September of 2008 with defense counsel, Herold had been asked whether “based on all of the evidence, [there is] a single piece of scientific evidence that is inconsistent with the conclusion that Lana Clarkson shot herself,” Herold had replied “No.” (26 RT 5068.) Her changed opinion was due to the fact that in December of 2008, Herold had been given transcripts of the testimony of Jamie Lintemoot at the second trial concerning “blood staining on the hands.” (26 RT 5069-5070.) On redirect, Herold emphasized the importance of the Lintemoot testimony concerning blood stains on the back of Lana Clarkson’s wrists in supporting Herold’s recent conclusion that it was “impossible” that Ms. Clarkson could have been holding the firearm when it discharged the fatal shot. (26 RT 5276-5277.) But Herold admitted that apart from the Lintemoot testimony and the prosecutor's hypothetical based on it, no evidence in the case was inconsistent with Clarkson having shot herself. (26 RT 5071, 5269.)2. The Lintemoot Testimony At The Retrial Jamie Lintemoot, a criminalist with the Los Angeles Coroner’s Office, had been assigned the task of collecting evidence from Lana Clarkson’s body on February 3, 2003. (17 RT 3252-3253.) Lintemoot, then in her first year with the Coroner's office, was primarily a toxicologist, but did evidence collection from bodies about twenty percent of the time. (/d.) At appellant’s retrial, she testified that while at the crime scene in 2003, she had swabbed what appeared to be mist-like blood drops from the back side of the right wrist (17 RT 3264) as well as the back side of the wrist on the left hand (17 RT 3266-3267). The left wrist also contained a smear or transfer blood stain (Id.) Lintemoot conceded that the photographs she had taken of Clarkson's hands did not show the possible blood drops she now claimed to have observed there, and she had not drawn a diagram of the drops at the time. (17 RT 3266, 18 RT 3292.) Lintemoot could not identify from the photographs of Ms. Clarkson’s hands what was a spatter as opposed to a transfer because she was “not a blood spatter expert.” (18 RT 3294-3295.) She later reiterated: “I can’t interpret blood spatter.” 18 (RT 3296.) She had no training that would allow her to opine from which direction blood spatter had come. (18 RT 3297.) Lintemoot’s typed report (Defense Exhibit 583) referred to “smalll red stains observed on both of the decedent's hands and wrists.” Members of the Los Angeles County District Attorney's Office had criticized the lack of detail in the description of blood in Lintemoot’s report in a meeting with the Los Angeles County Chief Medical 47Examiner, Doctor Lakshmanan, on February 25, 2004. (32 RT 6293.) The D.A.’s representatives complained that Lintemoot had “collected three swabs from the wrist and mentioned possible smears/spatter, though it was not described;” and that Doctor Pena, who performed the autopsy, “did not describe or mention any blood spatter on hands, and photos don’t show the same...” (32 RT 6294.) Lakshmanan held a meeting with Lintemoot, Pena, and others on March 23, 2004. (32 RT 6297.) At that time, Lintemoot read to Lakshmanan her handwritten notes made at the scene, called a form 42, which did not refer to the blood spatter on the “back” or “back side’ of Clarkson’s wrists, but rather to the “outside” of the wrists. (Ex. 613; RT 6303-6305.) It was during Lakshmanan’s testimony that the state requested permission to play a video of Lintemoot's testimony at a hearing held during Mr. Spector's first trial. (32 RT 6308-6309.) Defense counsel objected to the video being played on relevancy grounds, but the objection was overruled, and the video was admitted into evidence and played before the jury. (32 RT 6309-6310.) 3. The Videotape of the 2007 Hearing At the retrial, prosecutor Do stated on numerous occasions that the video was of Lintemoot’s testimony before the jury on June 13, 2007 during Mr. Spector's first trial. (32 RT 6308, 6310.) That assertion was in error. In fact, the video was of testimony taken " The video was marked as Exhibit 243; a transcript of it was marked Exhibit 244. (32 RT 6309.) 48‘on May 4, 2007 at a hearing outside the presence of the jury where Mr. Spector was not present.'* The hearing was one of several held on an issue concerning whether attorney Sarah Caplan would be required to testify concerning the possible disappearance of evidence related to the alleged offense. The question of the location of blood spatter on Clarkson’s hands was not broached at all during the direct examination of Lintemoot, called by the defense at the Caplan hearing, nor during the prosecution's cross- examination of Lintemoot. (FT RT of May 4, 2007, at 1768-1786.) At the end of the defense redirect, defense counsel! raised a different subject, and the prosecution objected on the ground that the matter was outside the scope of cross- examination, (/d., at 1792.) The defense sought to question Lintemoot concerning the meeting held at Lakshmanan’s office addressing the “complaint lodged as to the photo documentation of the hands because...there was no proper photographs of the hands, and there was no proper photographs of the blood spatter...” (/d., at 1793-1794.) Upon reopening , Lintemoot testified that she did “see red stains mist-like on the outside of both wrists,” but could not state that it was blood spatter.” (Id., at 1795.) On recross, in response to a question by the prosecutor as to whether she saw “mist-like spatters,” Lintemoot replied “on the outside of her wrists.” (Id., at 1797.) The following colloquy involving the court ensued: ar the beginning of the Caplan hearing on May 4", Judge Fidler states: ‘Counsel are present with — Mr. Spector is not present pursuant to 977.” (RT of May 4, 2007, at page 1732.) 49Defense counsel Plourd: Not on her hands per se? Lintemoot: Just in this area (indicating), two or three - inch radius around, around the wrists. The Court [gesticulating): I would say it’s from — if you take where the wrist joint is, the two to three - inch radius would be in a circle from that point. ‘Would that be correct? Prosecutor Jackson: The interior wrist, that portion of the wrist joint — ‘The Court: That's the exterior, isn’t it? The interior would be this part, the exterior would be where she was pointing. Prosecutor Jackson: Actually, | was making a differentiation between this part of the joint and that part of the joint. ‘The Court: Why don’t you show us? That would be the best. Lintemoot: Exterior. So the outside of the wrist area. Prosecutor Jackson: Okay. The outside of the wrist. Lintemoot: Yes. (d., at 1797-1799.) 4. Use of the Videotape In Prosecution Cross- Examination at Appellant’s Retrial During the cross-examination of defense expert Spitz at appellant's retrial, prosecutor Jackson played the video of the Lintemoot testimony and distributed a transcript of it to jurors. (34 RT 6621; Ex. 243, 244.) When asked where Lintemoot indicated she “saw the blood on the outside of Lana Clarkson's wrist,” Spitz replied, “on 50the back of the hand, on the area of the thumb. On the side of the thumb...” (34 RT 6621.) A dispute then broke out between the prosecutor and witness Spitz, over whether Lintemoot had pointed to an area near the webbing of the hand or the back of the wrist, and the video was played again, with stops and starts. (34 RT 6623-24.) At that point, the defense objected to the trial judge that the replay “draws you into the case as a witness because she started over here, and then you point like this and then she went like that.” (24 RT 6624.) The court overruled the objection, stating “It speaks for itself. It speaks for itself in front of the jury, and I don’t agree with your interpretation of what | was doing....” (34 RT 6625.) ‘The video was played again (id.), after which the prosecutor asked Spitz: “Did you see where the court is pointing after Jamic Lintemoot indicates where she saw it where the court is pointing and making a record for the first trial?” (34 RT 6625.) Spitz replied that he had seen the video, and in his opinion Lintemoot had pointed “to the radius here, and the ulna here...almost half of the back of the hand.” (Id.) After the video was played once more, the prosecutor asked whether Lintemoot had pointed on the video to the back of the wrist, the area where the prosecutor’s watch was located, and Spitz replied that “I don’t think it would be accurate based on what the video shows.” (34 RT 6626- 6627.) 5. Defense Objections to The Videotape Defense counsel moved to strike both the Lintemoot testimony “that she saw micro 31spatter,” and the Herold blood spatter testimony based on Lintemoot’s testimony, on the ground Lintemoot “has no expertise to make that statement.” (40 RT 7879.) The defense noted that during her testimony at the hearing outside the presence of the jury “[s]he points to the radial aspects of the hands. Then there is confusion. What is he pointing to? I don’t know. The court then indicates the backs of the wrists. I don’t know why the court did that.” (40 RT 7883.) ‘The court then replied: “Because I had the best view in the courtroom...1 had the best view in the courtroom, I’m looking down at the witness.” (Jd.) Apparently under the mistaken view that the video testimony was taken before the jury at the first tial, the court then stated: “Everybody else — she didn’t show it where the jury can see the top. ‘The lawyers can’t even see it. The only person who could see it is me, and I’m describing what I'm watching.” (Id.) At the close of the evidence, defense counsel objected to the admission of the Lintemoot video and transcript on the grounds, among others, that it was not introduced as a prior consistent statement, nor was it produced during Lintemoot’s examination, when she could be cross-examined on it. (46 RT 9140.) The defense noted that the video ‘was used to cross-examine an expert, and material used to test the opinion of an expert does not become admissible material. (Id.) Of critical importance, citing Crawford,"* the defense objected that “that video has ™ Crawford v. Washington (2004) 541 U.S. 36. 52,the court making certain statements about what it observed and the court doing that ina way that became testimony, and it cannot be cross-examined.” (46 RT 9141.) The court replied that “at any time, in any trial, a court may define and describe what a witness is doing...1 had the best view of Miss Lintemoot, so it was appropriate for me to do it.” (46 RT 9142.) “The defense responded: “By taking a clip from a previous trial, we are denied the right to cross-examine or to correct a record...{I]f the testimony had come in in this proceeding, we would have had the right to cross-examine, and we didn’t.” (46 RT 9142 - 9143.) The defense added that “for the jury to see a clip in which the court appears to be saying ‘this is where it was, on the back of the wrist’ is highly influential and prejudicial.” (46 RT 9143.) The court responded that it did not “consider it a Crawford problem.” (46 RT 9144.) Finally, the defense pointed out that the video testimony had not been taken before the jury, but during a hearing outside the jurors’ presence at the first trial. (46 RT 9145.) Prosecutor Do incorrectly claimed to the contrary before prosecutor Jackson stated: “Bither way, who cares? It was under oath,” (46 RT 9146.) At that point, the court overnuled all defense objections to admission of the video and the accompanying transcript. (Id.) 6. Use Of the Videotape During The State’s Closing Argument The state’s contention that there had been blood spatter on the back of Lana Clarkson's wrist was a cornerstone of its closing arguments. In the state’s initial 53argument, prosecutor Do asserted: “The back spatter on Lana’s wrist absolutely proves that she could not have held that gun.” (47 RT 9264-9265.) Reiterating that claim as “an absolute,” Ms. Do then replayed the video “where Jaime Lintemoot clearly explains where the back spatter is,” while misstating that the testimony was that of Lintemoot before the jury on July 13, 2007. (47 RT 9275.)'* Do then relied on the trial judge as a witness when she asked jurors to “see with your own eyes where she and the judge indicated the back spatter was on Lana’s wrist on the outside, at the joint, a two or three inch radius.” (47 RT 9275.) In replaying the video, Do specifically relied on Judge Fidler’s words and demonstration to attack the integrity of defense counsel [lust so we are clear, let's go through it in slow motion. She is pointing to the backside of the wrist at the joint area, just like she’s consistently testified. Now, the judge who had the best position, seated next 10 the witness, looks over to what she's done in that videotape, and then he describes it both by words and by his own demonstration, and this is what he did. So, when Mr. Weinberg gets up here and tries to argue to you that it wasn’t here and that it’s here, remember this videotape because then he’s going to be telling you you can’t believe your own eyes. 'S Prosecutor Do later again wrongly argued that Lintemoot’s video testimony was, “what she said to the last jury on July 13", and that is the video that you have.” (47 RT 9291.) When the defense objected that in fact “it was a hearing out of the presence of the jury on May 5, 2007” [in fact, May 4"], Do claimed defense counsel was “not correct,” wrongly claiming that “the defense called her back in their case, and that is where the videotape comes from.” (47 RT 9292.) The court ruled that Do’s error was not “important, The only thing is that there’s prior testimony under oath, and that is what counts.” (47 RT 9293.) 34(47 RT 9295; Italics added.) Do then characterized the blood spatter evidence as bearing on the most important issue in the case. “Why is it the defense needs to go through this long process of machinations of truth on this? Because this is the single piece of evidence they cannot explain away. It is absolutely inconclusive with Lana Clarkson holding the gun.” (47 RT 9297; italics added.) Following the conclusion of Do’s argument, the defense noted its prior objections to the Lintemoot video — “the issue of confrontation and lack of cross-examination, et cetera, and also the fact that it functionally turned the court into a witness and a witness that we could not cross-examine.” (47 RT 9319.) The defense then objected that not only was the tape played but ... three pictures were flashed of Jaime Lintemoot and then three pictures of the court, making the court a witness for the prosecution. There were three pictures of you, your honor, flashed on the screen in support of the testimony of Jaime Lintemoot. | think that is totally inappropriate, and it was intended to cloak Ms. Lintemoot's suspect testimony with the imprimatur of the court, (47 RT 9319; italics added.) ‘The defense requested a cautionary instruction that ‘nothing the court did or said was intended to be evidence in the case. Ms. Lintemoot was the witness. It’s what she said and did which was the evidence, and the court is not a witness for either party.” (47 RT 9319.) The court replied that it had already made its ruling “as to why its permissible. It’s not error to have used it in closing argument.” (47 RT 9320-9321) 55In his rebuttal argument, prosecutor Jackson said of Lintemoot: “This is where she was pointing to. This is where the court saw her pointing to, ‘That is where her finger ends up on the back of the wrists.” (48 RT 9609.) In instructing the jury, the court informed them that the exhibits in the case were evidence, (48 RT 9658.) B. Judge Fidler’s Statements and Gestures at the 2007 Hearing Were Inadmissible Hearsay Judge Fidler's videotaped statements and his physical demonstration accompanying his statements at the 2007 hearing held outside the presence of the jury from which appellant was absent were (a) “evidence of a statement that was made other than by a witness while testifying” at appellant’s retrial; and (b) were “offered to prove the truth of the matter stated” — i.e., what Lintemoot was pointing at when she testified at the 2007 hearing, (See Evidence Code section 1200; see also Evidence Code section 225 (b) {"Statement” means ...nonverbal conduct of a person intended by him as a substitute for oral or written expression.”.) Consequently, that portion of the videotape containing Judge Fidler’s words and actions constituted hearsay when played again and again at appellant's retrial Unless it comes within a recognized exception to the hearsay rule, hearsay is inadmissible. Evid. Code section 1200(b). The state cited no exception that would have permitted admission of Judge Fidler’s videotaped statements, and no such exception exists under California law. ‘The admission of the judge’s statements was state law error. 56Under Crawford v. Washington (2004) 541 U.S. 36, two questions are in order. First, does the Confrontation Clause apply to Judge Fidler’s statement and demonstration? ‘The Admission of the Court’s Video-taped Statements and Demonstration Deprived Appellant of His Sixth Amendment Right to Confront the Witnesses Against Him It surely does. The Clause applies to Id., at 51. Crawford expounded on the definition of “testimonial statements” subject to the “witnesses” against the accused--in other words, those who “pear testimony.” | N. Webster, An American Dictionary of the English Language (1828). "Testimony," in turn, is typically “{a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." Ibid. Confrontation Clause. “ex parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,"... "extrajudicial statements . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,” White v. Illinois, 302 U.S. 346, 365, 112 S.Ct. 736, 116 L.Ed.2d 848, (1992) (THOMAS, J., joined by SCALIA, J., concurring in part and concurring in judgment); "statements that were made under circumstances which would lead an objective witness reasonably (o believe that the statement would be available for use at a later trial,"... These formulations all share a common nucleus and then define the Clause's coverage at various levels of abstraction around it, Regardless of the precise articulation, some statements qualify under any definition--for example, ex parte testimony at a preliminary hearing. 37Id,, at 51-52. Judge Fidler’s statements and demonstration plainly qualify as both "ex parte in- court testimony or its functional equivalent” and “extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.” The statements and demonstration were “functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.” (Melendez-Diaz v. Massachusetts (2009) 129 $.Ct. 2527, 2532 (citing Davis v. Washington (2006) 547 U.S. 813, 830)) ‘The remaining issue under Crawford is whether appellant Spector had the opportunity, either at the 2007 Caplan hearing or at his retrial in 2009, to cross-examine Judge Fidler. “Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross- examination ... Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” (Id., at 68-69.) As his counsel made clear in objecting to admitting the challenged judicial statements, Mr. Spector had no such opportunity in regard to the hearsay statements of Judge Fidler. Judge Fidler's response to the defense’s Crawford objection was, in essence, that Crawford does not apply to judicial observations of witnesses, He stated: “[A}t any time, in any trial, a court may define and describe what a witness is doing...I had the best viewof Miss Lintemoot, so it was appropriate for me to do it.” (46 RT 9142.) But the question is not whether Judge Fidler did anything inappropriate in making a record at the 2007 hearing at which he was the finder of facts as to the Caplan issue. Plainly he did not. The question is whether his statements and observations made other than from the witness stand could be introduced as evidence of appellant's guilt at Spector's 2009 retrial, absent an opportunity for appellant to confront the testimonial statements against him. The answer is “n ” The admission into evidence of Judge Fidler's comments and demonstrations regarding Lintemoot’s testimony at the Caplan hearing violated appellant's rights under the Confrontation Clause. D. Admission of The Judicial Testimony Taken At A Hearing From Which Appellant Was Absent Violated Both California Law And the Fourteenth Amendment's Due Process Clause The Sixth Amendment Confrontation Clause violation was compounded by the fact that the statements admitted without cross-examination (a) were those of the judge who presided over appellant’s trial; and (b) were made at a hearing from which the appellant was absent, a deprivation of the constitutional right to be present separate and distinct from the Confrontation Clause error. (U.S. Const. Amends. VI, XIV; Cal Const. Art. 1 Sections 7, 15.) Further, as a general proposition, a judge may not serve as both a witness and a fact-finder in a case. Assume a bailiff observed Lintemoot’s testimony in 2007 and could describe it to the jury at Spector's retrial. There would be no legal bar to introducing that 59testimony, assuming, of course, that the bailiff was subject to cross-examination. But even had Judge Fidler been available at the retrial for cross-examination on his 2007 statements and observations, federal and state law would have barred him providing that evidence at a trial over which he presided. For example, in Tyler v. Swenson (8th Cir. 1970) 427 F.2d 412, 416, an issue arose as to whether a judge had made a certain unrecorded remark concerning sentencing during plea negotiations. Based on his own recollections, the judge found that he had not, without permitting defense counsel to examine him. The Eight Circuit held: A party should be permitted to test a judge's recollection, as a witness presenting factual material testimony, as he would any other witness upon cross-examination, It has long been recognized under similar circumstances that a judge cannot serve as a material witness as well as the trier of fact. (cites omitted] Tyler went on to quote In re Murchison (1955) 349 U.S. 133, which held that a judge may not serve as fact finder in a contempt proceeding in which he would also be a witness. Tyler, 427 F.2d at 417. Due process fairness is denied to a defendant where the trial judge gives evidence against him. (Brown v. Lynbaugh (5 Cir. 1988) 843 F. 849, 851 ["We conclude that Brown was denied a fair trial when the state was allowed to establish the essential elements of the crime of escape through the testimony of the presiding trial judge.”].) Furthermore, California statutory law bars a judge from testifying in a civil or criminal case unless he first discloses the nature of his testimony to the parties and offers 60,them a chance to object; if any such objection is lodged, the judge must declare a mistrial and recuse himself. Evid. Code § 703." That rule has been cited as support for barring a judge from sitting in judgment of allegedly contemptuous conduct which the judge observed. (In re Martin (1977) 71 Cal. App. 3d 472, 482 [due process requires someone other than the original trial judge to hear contempt case arising out of that trial.) The defense objected strenuously to permitting Judge Fidler’s testimonial statements from being placed before the jury as evidence in support of the prosecution's case. At that point, Judge Fidler was required either (a) to exclude the material concerning him from evidence, or (b) declare a mistrial and allow the matter to be tried before another judge, permitting Judge Fidler to be called as a witness and, if the prosecution chose that course, to be cross-examined by the defense. The failure to provide the defense with cither remedy was grave error. '® Evidence Code Section 703 reads in relevant part: (a) Before the judge presiding at trial of an action may be called to testify in that trial as a witness, he shall, in proceedings held out of the presence and hearing of the jury, inform the parties of the information he has concerning any fact or matter about which he will be called to testify. (b) Against the objection of a party, the judge presiding at the trial of an action may not testify in that trial as a witness. Upon such objection, the judge shall declare a mistrial and order the action assigned for trial before another judge. (c) The call of the judge presiding at a trial to testify in that trial as a witness shall be deemed a consent to the granting of a motion for mistrial, and an objection to such calling of a judge shall be deemed a motion for mistrial. 61E. The Errors Require Reversal As a matter of federal constitutional law, in order to avoid reversal, the state would have to prove beyond a reasonable doubt that the erroneous admission of the Fidler material did not influence the verdict. (Chapman v. California, 386 U.S. 18, 24 (1967); People v, Bolton (1979) 23 Cal.3d 208, 214 n. 4 [Prosecutor's misconduct in placing unsworn assertions of fact before jury in closing argument subject to Chapman standard of review].) That is an impossible task. At appellant's first trial, where the material was not introduced, Spector was not convicted. ‘The major shift in the state’s testimony was that of Lintemoot and Herold concerning blood spatter. In her closing argument, the prosecutor described the new blood spatter evidence as proof of the most important issue in the case. (47 RT 9297 “Why is it the defense needs to go through this long process of machinations of truth on this. Because this is the single piece of evidence they cannot explain away. It is absolutely inconclusive with Lana Clarkson holding the gun.”) (47 RT 9297.) And it was on that precise issue that the prosecution gained admission of Judge Fidler’s statements and demonstration. In seeking a conviction, the prosecution not only repeatedly urged the jury to accept Judge Fidler’s version of events as crucial corroboration of its interpretation of the Lintemoot testimony at the Caplan hearing; it also replayed Judge Fidler’s remarks and demonstration numerous times during closing argument. Most remarkably, as with 62witnesses such as Lintemoot, during the state’s closing arguments prosecutors displayed three still pictures of Judge Fidler as a party who had provided evidence of guilt. Plainly, the prosecution perceived it needed to rely on Judge Fidler’s unsworn statements and demonstration to win a conviction on the murder charge. (Singh v. Prunty (Sth Cir, 1998) 142 F.3d 1157 [“In the adversarial process, the prosecutor, more than neutral jurists, can better perceive the weakness of the state’s case.”).) Our Supreme Court has strongly condemned unsworn assertions of fact by prosecutors because such testimony, “although worthless as a matter of law, can be ‘dynamite’ to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence.” (Bolton, supra, 23 Cal.3d at 213.) “Statements of supposed facts not in evidence ... are a highly prejudicial form of misconduct, and a frequent basis for reversal.” (5 Witkin & Epstein, supra, Trial, § 2901, p. 3550.) Needless to say, given the even greater respect judges are afforded by jurors, their unsworn statements of fact are all the more prejudicial. (People v. Sturm (2006) 37 Cal.dth 1218, 1233 [Jurors “rely with great confidence on the fairness of judges, and upon the correctness of their views expressed during trials.”]; People v. Mahoney (1927) 201 Cal. 618, 626 [“Jurors rely with great confidence on the fairness of judges, and upon the correctness of their views expressed during trials. For this reason, and too strong emphasis cannot be laid on the admonition, a judge should be careful not to throw the weight of his judicial position into a case, either for or against the defendant.”].) 63Even with the admission of the Fidler material, the jury at the retrial deliberated for nine days before returning a verdict of guilt on the murder charge. Plainly, this was a very close case. Any contention that the Dur Process and Confrontation Clause violations have been proven harmless beyond a reasonable doubt would be specious. Furthermore, under Evidence Code section 703, the remedy that appellant was entitled to but was denied when Judge Fidler functionally served as a witness against him was a mistrial and a trial before a different judge. That is the remedy appellant now must be provided. I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR UNDER STATE AND FEDERAL LAW BOTH IN ADMITTING EVIDENCE OF UNCHARGED BRANDISHING OFFENSES AND IN INSTRUCTING THE JURY ON HOW THAT EVIDENCE COULD BE CONSIDERED A. Introduction And General Principles ‘As was true under the common law, trial by character evidence is impermissible in California. Under Evidence Code §1101(a), “evidence of a person’s character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” The “codification of the common law rule... is absolute where it applies. However probative to common sense, evidence must be excluded under section 1101(a) if the inference it directly seeks to establish is solely one of propensity to commit crimes in general, or of a particular class.” (People v. Alcala (1984) 36 Cal.3d 604, 631. [Emphasis added])The ban on character evidence applies to “any kind of evidence of a defendant's evil character to establish a probability of his guilt..[I]t simply closes the whole matter of character, disposition and reputation on the prosecution's case-in-chief.” (Mickelson v. United States (1948) 335 U.S. 469, 475-76.) Our Supreme Court has stated the policy considerations underlying the rule. As Wigmore notes, admission of this evidence produces an over-sirong tendency to believe the defendant guilty of the charge merely because he is a likely person to do such acts. It breeds a tendency to condemn, not because he is believed guilty of the present charge, but because he has escaped unpunished from other offenses. . .. Moreover, the jury might be unable to identify with a defendant of offensive character, and hence tend to disbelieve the evidence in his favor. (People v. Smallwood (1986) 42 Cal.3d 415, 428.) To be sure, in 1995 and 1996, the California Legislature worked a substantial change in state law when it partially lifted the section 1101(a) ban on character evidence, permitting the admission of evidence of a defendant’s prior sexual offenses in sexual assault prosecutions (Evid. Cade, § 1108) and of prior incidents of domestic violence in domestic violence cases (Evid. Code, § 1109.) But the legislative judgment that a relaxation of the ban on character evidence was justified in these two classes of cases represents a corollary determination that the prohibition remains absolute in cases which do not come within the exceptions of $§ 1108 and 1109, such as the present one. (Steven S. v. Deborah D. (2005) 127 Cal.App.4th 319, 327 [“It is presumed that the Legislature knows how to create an exception to the provisions of a statute, and that where it does not 65create an exception, it is presumed that it did not intend to do so”).) ‘The story does not end with $1101(a), of course; there are exceptions to the general ban on character evidence, notably Evidence Code §1101(b), which permits admission of evidence of past misconduct when it is offered “to prove some fact (stich as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident... other than his or her disposition to commit such an act.” But courts have long held that evidence of past misconduct must be admitted with great caution because of the enormous potential for undue prejudice to the defendant. As the Supreme Court said in People v, Ewoldt (1994) 7 Cal Ath 380, 404, “le]vidence of uncharged offenses is so prejudicial that its admission requires extremely careful analysis.” (Emphasis added.) Such evidence “is to be received with extreme caution, and all doubts about its connection to the crime charged must be resolved in the accused's favor.” (Alcala, supra, 36 Cal.3d at 631 [emphasis added.) Of critical importance, if the prosecution is to gain admission of prior offense evidence, it cannot do so by simply asserting that the evidence is offered to prove a matter listed in §1101(b). The court "must look behind the label describing the kind of similarity or relation between the [uncharged] offense and the charged offense; it must examine the precise elements of similarity between the offenses with respect fo the issue for which the evidence is proffered and satisfy itself that each Jink of the chain of inference between the former and the latter is reasonably strong." (People v. Schader, supra, 71 Cal.2d at p. 775, fn. omitted.) 66(People v. Thompson (1980) 27 Cal. 3d 303, 316.) Rather, the prosecution must establish that the evidence logically proves a §1101(b) factor without resorting to the premise that the defendant's past conduct demonstrates a propensity to act in a similar manner. “If the government offers prior offense evidence, it must clearly articulate how that evidence fits into a chain of logical inferences, no link of which can be the inference that because the defendant committed . . offenses before, he therefore is more likely to have committed this one.” (United States v. Sampson (3d Cir. 1992) 980 F.2d 883, 887 [emphasis added].)'” In this case, the prosecution was permitted to introduce evidence of seven instances, covering a span of thirty years with the most recent more than eight years before the charged event, in which appellant Spector allegedly became angry with a woman in his company and brandished a gun in her presence. Five women — Dorothy Melvin, Stephanie Jennings, Devra Robaitelle, Diane Ogden, "* and Melissa Grovesnor — testified concerning the alleged incidents.” In none of the seven instances did appellant " (See also George Fisher, Evidence 144-49 (2002); Richard O. Lempert & Stephen A. Saltzburg, A Modern Approach to Evidence 216-25 (2d ed. 1983); Edward Imwinkelried, The Use of Evidence of an Accused's Uncharged Misconduct to Prove Mens Rea: The Doctrines Which Threaten to Engulf the Character Evidence Prohibition, 51 Ohio St. L.J. 575, 583 (1990).) '8 Ogden, who had testified in person at appellant's 2007 trial, passed away before the 2009 retrial. Her testimony was read into the record at the second trial "° The present argument, addressing evidence admitted under Evidence Code section 1101(b), does not address the testimony of Charles Tannazo concerning Spector's alleged comments about women at the Joan Rivers Christmas party, which was admitted 67commit either of the acts of which he was accused in this case: that is, (a) putting a gun in a woman's mouth; and/or (b) firing a shot. On the other hand, there was no evidence that on February 3% appellant had argued or became angry with Lana Clarkson before she died by gunshot. Appellant's “pattern” and “history” of behavior impermissibly became the focus of his trial due to several separate but related errors on the trial court’s part. First, the court erred in admitting the uncharged offense evidence under several theories, each and every one of which was patently flawed under California law. Secondly, in charging the jury on the two principal theories under which the evidence had been admitted — to prove identity and motive — the trial court included language never before used in an instruction addressing section 1101(b) evidence. These unprecedented instructions, along with a ruling that the prosecution was free to argue that Spector had a “pattern” of past violence against women, enabled the prosecution to improperly argue in closing, over vigorous defense objection, that the jury could and should convict appellant based on his purportedly violent and misogynistic character. ‘The uncharged offense evidence, and the uses the prosecution made of it in closing argument, were the heart of the state’s case, the sine qua non of its effort to gain a conviction despite forensic evidence that supported a verdict of acquittal. The errors in the admission of, and instructions concerning, the section 1101(b) evidence were plainly under a different evidentiary theory. See Argument III, infra. 68prejudicial. B. Standard of Review “A trial court's ruling admitting evidence of other crimes is reviewable for abuse of discretion.” (People v. Hayes (1998) 52 Cal. 3d 577, 617.) Discretion is abused as a matter of law when the court misapplies governing legal principles. (People v. Martinez (1980) 106 Cal.App.3d 524, 532; see also In re Charlisse C. (2008) 45 Cal.4th 145, 159 [A decision that rests on an error of law constitutes an abuse of discretion]; accord, In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1061); Koon v. United States (1996) 518 U.S. 81, 100 [“A district court by definition abuses its discretion when it makes an error of law."}) C. The Relevant Facts 1 The Rulings on Admissibility at the First Trial Ata hearing on May 23, 2005 prior to appellant's first trial, Deputy District Attorney Sortino explained the prosecution’s theory of admission for the uncharged offense evidence: Number one, that will be a common plan and scheme that I argued in my paperwork. | think those acts should come in to establish the implied malice theory, which is going to be our primary theory of murder in the case. Finally, lack of accident or mistake ... it should come under that for that purpose and. that theory. (RT of May 23, 2005 at 2.) The trial court admitted the evidence on the implied malice 9and absence of mistake grounds but not that of common plan or scheme. (Id, at 49-51.) ‘As the first trial opened, on April 10, 2007, the trial court expanded the grounds on which the uncharged evidence could be admitted to include motive: {C]ertainly 1101(b) evidence is admissible for motive. We think of motive in a certain specific way when we discuss cases, but the actual definition of motive in the law is "a state of mind which impels a person to act in accordance with that particular feeling or belief." And that's exactly what the People are offering it for. (RT April 10, 2007 at 14.) After the close of evidence at appellant's first trial, the defense filed a motion to strike the §1101(b) testimony because the court had relied for its original ruling on the issues of malice and accident, but there had been no dispute at trial with regard to those issues. Specifically, the defense had presented its case without offering evidence or argument to suggest that if Spector fired the shot that killed Lana Clarkson, (a) his doing so was the result of an accident or mistake or (b) he lacked a subjective awareness that placing and firing a gun into the mouth of Ms. Clarkson posed a grave danger to her life, ie., implied malice Ata hearing on the motion to strike on August 27, 2007, the prosecutor did not rely on the theories it had originally asserted in May of 2005 to admit the evidence: malice and absence of accident. The court denied the motion to strike on the ground that the uncharged offense evidence was admissible for the sole and exclusive purpose of 70proving Spector’s motive. (FT RT 10770-10771.) The court then instructed the jury: The People presented evidence that the defendant committed seven offenses of assault with a firearm, involving five witnesses, that were not charged in this case. .. . If you decide that the defendant committed the uncharged offenses, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: the defendant had a motive to commit the offenses alleged in this case. Motive is an emotion that may impel or incite one to act in accordance with his state of emotion. . . . Do not consider this evidence for any other purpose except for the limited purpose of motive, (FT RT 11654-11655.) 2. The Admissibility Rulings At The Second Trial Prior to appellant’s retrial, the court heard argument on the admissibility of the uncharged offense evidence. Although there was no substantive change in the evidence being offered under section 1101(b), Judge Fidler ruled that it could be introduced on several grounds in addition to the sole theory of motive under which he had admitted the same evidence at the first trial. ‘The court first stated that it would err if jt admitted the uncharged evidence on a theory of common scheme or plan. The court would not “accept common scheme or plan,” because that exception to the ban on character evidence required preplanned acts, not a series of similar random acts. (RT of 9-15-08, at 32.) The court also rejected the theory that testimony of the 1101(b) witnesses could be admitted on the theory that the witnesses corroborated one another. [d. The court then ruled that the uncharged evidence ncould be admitted on the theory of motive and absence of suicide. (Id., at 35). It also ruled the evidence could be introduced on the specific “identity” issue of “who brought the gun into the situation.” (Jd., at 35-36.) 3. The Prosecution’s Opening Statement In his opening statement, prosecutor Jackson asserted that the state would present “a picture of a man who, when he is confronted with the right circumstances, when he is confronted with the right situation, turns very sinister, and very violent and ultimately, very deadly.” (7 RT 1125.) Jackson predicted: “The evidence in this case... will establish a pattern, In order to more fully understand how Lana Clarkson fell victim to the defendant in this case, you will be introduced to the evidence of this pattern. You will be introduced to a very rich and lively and active history of violence on the part of the defendant Phillip Spector.” (Id.) ‘The prosecutor emphasized that he intended to prove that appellant had character traits of violent rages and hatred for women. “In order to give you some context about what happened on February 2". . . you will be presented with evidence of Phillip Spector's very rich history of violent [sic], that history that I talked to you about just a second ago, . . a history of rage, a pattern of hate, a history of abuse against women.” (7 RT 1128.) Jackson described each of the section 1101(b) witnesses as “victims of {appellant's} hate, victims of his abuse, and what you will begin to see is a pattern that will emerge.” (7 RT 1128.) According to the prosecutor, “this pattern of violence, this Rhistory that is attendant to Mr. Spector, that goes back not weeks, not months, not even years, folks. It actually goes back decades.” (7 RT 1129.) In response to the defense’s objections to the prosecutor's repetition of the term. “pattern,” the court cautioned the prosecutor as to its use. (7 RT 1158-1160.) Although prosecutor Jackson assured the court he would not “touch on this any further” (7 RT 1160), he used the term repeatedly when he resumed his opening statement. (7 RT 1179.) The court then rebuked Jackson for ignoring its directive. (7 RT 1180: “The problem is you keep saying pattern, pattern, pattern. It’s the repetition of the word.”) The court stated that using the term “pattern” came close to using the uncharged offense evidence as propensity evidence, and “propensity is what you can’t use 1101(b) for.” (7 RT 1183.) ‘The defense moved for a mistrial (7 RT 1184, 8 RT 1266), which was denied. (8 RT 1274.) 4, The Section 1101 (b) Witnesses a. Dorothy Melvin (1980's to 1993) Dorothy Melvin met appellant Spector at a club in the late 1980's. (8 RT 1389, 1391.) They began a dating relationship that continued, she claimed, until 1993. (8 RT 1396.) She went to his house over July 4° weekend of 1993. (8 RT 1397.) Spector drank a ot of what she believed to be vodka from a bottle. (BRT 1400-01.) She testified that “When he is drinking and he gets to a certain point, then he totally loses it, and he becomes this demon.” (8 RT 1501.) She fell asleep on a couch and when she awoke, she Blooked outside and saw appellant pointing a gun at her car. (8 RT 1404.) She said “what the fuck do you think you’re doing” and he told her to get back in the house. (8 RT 1406.) Melvin claimed that Spector backhanded her with the gun in her left temple. (8 RT 1407.) Spector followed Melvin into the house, (8 RT 1409.) He went through her purse. (RT 1409.) Melvin testified that appellant told her to go to the third floor and take off her clothing. (RT 1409.) Spector said he was upset because he had been looking for her. 9 (RT 1592.) Spector believed that she had taken things from the house to sell. (9 RT 1595.) Spector had the gun in his hand and pointed it at her intermittently. (8 RT 1409.) Melvin claimed he hit her again when she refused to take off her clothing. (8 RT 1412.) Eventually he tossed her keys at her and she ran out, (8 RT 1412.) She drove out to the gate but could not get out, (8 RT 1414.) She heard him running toward her, saw him holding a shotgun, and heard the pump action of the gun. (8 RT 1414.) She told Spector she could not get out and he said he would go back to the house to open the gate for her. (SRT 1416.) Melvin called 911 to report the incident. (8 RT 1418.) She told police she just wanted to retrieve her handbag that she had left in Spector’s house. (8 RT 1421.) Melvin told Chris Russ, the Pasadena police officer who took the call (9 RT 1637), that she had been at her boyfriend’s house, they had a disagreement and the boyfriend pulled a gun. (9 RT 1638, 1640.) Melvin said the boyfriend had her purse and she wanted it back. (9 RT 1638.) 14,In his report, Russ stated that Melvin and Spector had a disagreement. (9 RT 1670- 71.) He made no reference to any physical altercation — a circumstance he believes he would have written down, (9 RT 1670.) Melvin did not say that Spector waved his gun or hit her, just that he displayed it and forced her to leave. (9 RT 1671.) Russ observed no injuries on Melvin and his report does not refer to Melvin’s being hit with a gun or being injured. (9 RT 1679.) Russ did not recall seeing any injuries. (9 RT 1682.) Detective Richard Tomlin interviewed Melvin in 2003. (38 RT 7357.) Melvin described the Pasadena incident as one in which Spector accused her of stealing things from the house. (38 RT 7358.) There was no reference in his report to Melvin's saying that Spector had told her to go upstairs. (38 RT 7359.) Tomlin interviewed the officers involved in the incident and none had any recollection of any allegation by Melvin that Spector had hit her or that she had sustained any injuries. (38 RT 7360-61.) Spector later left Melvin a voice message stating, in part, that you never did anything wrong, it was all me, y’know, and I’m, really sorry about my inexcusable behavior. I'll stay out of your life, don’t worry. I don’t know how to apologize for my actions. I haven’t gotten used to losing my son yet and I just am not handling it very well obviously at certain hours of the night or the early morning hours. So my inexcusable behavior is inexcusable and you had nothing to do with it. (Exhibit 135.) Melvin and appellant Spector were in touch before Lana Clarkson’s death. (RT 1587.) They attended parties together and went to a Lakers game. (9 RT 1587.) 15Spector’s daughter Nicole testified that her twin brother, Phillip, Jr., died in December 1991. (31 RT 6000.) She met Dorothy Melvin in 1993. (31 RT 6003.) She went on trips with her father and Melvin in 1993, including a week-long trip to Toronto. (31 RT 6003.) At some point Spector and Melvin broke up, but Melvin continued to have contact with her. (31 RT 6004.) Melvin called Nicole when Nicole moved to New York in 1999, (31 RT 6004.) Melvin wanted to resume contact with Spector. (31 RT 6004.) Melvin told Nicole that she was upset because her attempts to reconnect with Spector had been rejected. (31 RT 6005.) b. Stephanie Jennings (1994 to 1995) Stephanie Jennings, a photographer, met Spector at an award ceremony in Philadelphia in 1994. (11 RT 1974.) She saw him a few weeks later at Elaine’s in New York. (11 RT 1976.) Spector invited her to join the table. (11 RT 1978.) Eventually a group went back to his hotel. (11 RT 1979.) She spent the night with Spector. (11 RT 1981.) In January of 1995 Spector invited Jennings to dinner for inductees at the Rock and Roll Hall of Fame. (11 RT 1983.) She had her own room at the Carlyle Hotel. (11 RT. 1985.) At trial she testified she never saw him without a drink that night. (11 RT 1987.) Spector became louder and more boisterous as he drank. (RT 1988.) She decided to leave and returned to her hotel room. (11 RT 1989.) Later Spector came to her room. (11 RT 1990.) He was loud and angry. (11 RT 161991.) They argued, and Jennings said she would go downstairs and leave immediately. (11 RT 1992.) While she was packing her bags in the bathroom he pushed or slapped her and she fell back onto the toilet. (11 RT 1992.) She then pushed him and he fell into the tub. (11 RT 1992.) Spector left and she finished packing. (11 RT 1994,) Spector returned with a gun in his hand and pointed it at her. (11 RT 1995, 1996; 11 RT 2063.) Jennings called 911. (11 RT 1998.) Spector made no attempt to prevent her from using the phone, (11 RT 2063.) Spector then left the room. (11 RT 2000.) Jennings attended the Rock and Roll Hall of Fame event with appellant the next year, again taking her own hotel room. (11 RT 2003.) She continued dating Spector for years after the Carlyle hotel incident (38 RT 7377), but the relationship broke up after she stood him up for his birthday party in 1996. (11 RT 2006, 2074.) ¢. _Devra Robitaille (1970s to 1986) Spector hired Devra Robitaille as an assistant in the early 1970s. (9 RT 1747.) ‘They had a year-long romantic relationship. (9 RT 1750.) Around 1975, after a party she had attended as an employce and not as a guest, Robitaille wanted to leave. (9 RT 1752.) The door was locked and she asked appellant to unlock it. (9 RT 1752.) Spector put a gun ® At 6:23 a.m. on January 13, 1995, a New York City 911 operator received a call from Stephanie Jennings from the Carlyle Hotel. (9 RT 1714; Exhibit 139.) The record of the call says that a female was threatened with assault with a weapon. (9 RT 1716.) > On February 5, 2003, two days after Lana Clarkson’s death, the National Enquirer paid Jennings $1000 to talk about her relationship with Spector (11 RT 2014.) 1to her head and said “If you try to leave I’m going to blow your fucking head off.” (RT 1754.) Spector continued to make threats. (RT 1755.) She told him to stop and at some point he relaxed and let her out. (RT 1755.) Robitaille told investigators that the first incident did not scare her. (RT 1867.) Despite the incident Robitaille kept working for Spector for a year and a half. (9 RT 1756.) The romantic relationship continued after the gun incident but eventually fizzled. (10 RT 1773, 1774.) Robitaille moved to England and then retuned to the United States in 1986. At that time she did part-time work for Spector. (10 RT 1776.) She went to Spector's house for a party. (10 RT 1778.) Very late that night she attempted to leave, (10 RT 1780.) The door was locked. (10 RT 1780.) Spector waved a gun in her face and threatened to shoot her if she left. (10 RT 1781.) She told him to stop but this time she was less successful and the incident was more protracted. (10 RT 1784.) At some point he started to unwind and let her out. (10 RT 1785.) Robitaille told investigators she could not remember much about the second incident and that she was reaching for details. (10 RT 1875.) She did not remember 9 In her initial interviews, Robitaille said nothing about Spector's saying he was going to “blow her brains out.” (10 RT 1847.) She told the police Spector said very quietly, “I will pull the trigger.” (10 RT 1847.) She said there was no screaming and or yelling. (10 RT 1848.) In fact, the transcript of the interview with Robitaille makes clear it was the investigating officer who suggested the “blow your brains out” language and suggested that Spector had used expletives. (10 RT 1861, 1928-1931.) 78anything that was said. (10 RT 1876.) She first testified she did not work for Spector thereafter (10 RT 1932), but then admitted that testimony was wrong — she did continue to work for Spector after the second gun incident. (10 RT 1933.) Attrial Robitaille testified that Spector was drunk during both incidents. (10 RT 1787.) But she told police Spector was not taking drugs or drinking during the incidents, and that he did not push or slap her. (10 RT 1845.) Upon hearing about Lana Clarkson's death, she did not contact police. (10 RT 1800.) Rather, she gave an interview to the Mail, a British newspaper, which paid her $5000. (10 RT 1800.) d. Diane Ogden (1980s) Diane Ogden dated Spector several times in 1982, more than twenty years before Lana Clarkson's death. (FT RT 1945-50.) On one occasion they had a late dinner and she followed him in her car to his house. (FT RT 1950.) He had been drinking at the restaurant. (FT RT 1950.) At some point she said she had to go home; he buzzed the door shut so she could not leave. (FT RT 1953.) For about thirty minutes she begged him to let her leave. (FT RT 1953, 1985.) Eventually he opened the door and she left. (FT RT 1953.) She continued to work for Spector and in 1987 became his part-time assistant. (FT RT 1987.) * Ogden testified at the first trial. She died before the second. Over objection the prosecution was permitted to play a videotape of Ogden’s testimony. (Exhibit 155.) The jurors were given a transcript of the testimony as well. (Exhibit 156.) The page references below are to the reporter's transcript of the 2007 trial, 19Ogden was at Spector’s house another time after a party and said she had to leave. (FT RT 1957.) Spector had been drinking. (FE RT 1960.) He pointed a rifle at her when she tried to leave. (FT RT 1957.) He screamed, using profanity. (FT RT 1960.) Ogden described Spector as “demonic.” (FT RT 1960.) Spector then pointed a pistol at her and she believed he was going to kill her. (App. RT 1961.) He yelled expletives and said he was going to blow her brains out, (FT RT 1961, 1964.) He repeatedly touched her face with the gun, (FF RT 1961.) Spector insisted that she go up to his bedroom, where he tried to rape her. (FE RT 1963.) She then spent the night in his bed. (FT RT 1964.) ‘Ogden went to Spector’s house a few months later for dinner with some other people. (FT RT 1968.) The others left first, (FT RT 1968.) When she tried to leave Spector said “You're not going anywhere. I can’t stand the sound of your voice.” (FT RT 1968.) He said he had an Uzi and was going to kill her. (FT RT 1968.) She ran to her car and he chased her. (FT RT 1969.) She got in her car and he banged a gun on the window. (ET RT 1969.) She never reported the incidents to the police. (FT RT 1976.) ¢. Melissa Grosvenor (1991) Melissa Grosvenor met Spector at a party in 1991. (13 RT 2379.) The following day Spector's assistant called and asked her to have dinner with Spector. (13 RT 2382.) She dated Spector but they never had sex. (13 RT 2385.) In the spring of 1993 Spector asked her to visit him in California, (RT 2388.) He sent her a one-way plane ticket, which 80she accepted. (13 RT 2390.) When she arrived they had dinner and went back to his house in Pasadena. (13 RT 2394.) Spector was drinking, slurred his words, and played the same song over and over. (13 RT 2396.) Between one and two a.m. she was tired and wanted to go. (13 RT 2398.) At that point Spector’s demeanor changed. (13 RT 2399.) He left the room, returning with a gun. (13 RT 2401.) He held the gun to her face and said, “If you try to leave, I'm going to kill you.” (13 RT 2401.) Thereafter he put the gun in a shoulder holster and began to ramble, (13 RT 2403.) He used profanity and told her she was not going to leave, (13 RT 2405.) She fell asleep in the chair and Spector did not disturb her. (3 RT 2421.) The next morning she was awakened by Spector’s tapping her foot, (13 RT 2408.) He had no gun. (13 RT 2408.) She did not try to get away from the house or call for help. (13 RT 2426.) He asked her if she wanted to get breakfast. (13 RT 2408.) He also asked if she wanted to go back to her home in New York. (13 RT 2410.) She said yes and he got her a ticket. (13 RT 2410.) Grosvenor had a conviction for embezzlement which involved stealing from her bank employer. (13 RT 2417, 2419.) She also lied about the conviction on her application for an airline job. (13 RT 2421.) 5. The Instructional Rulings Prior to Closing Argument As the taking of evidence wound down, the court held several hearings on the 81instructions to be given on the uncharged evidence. In addition to preserving its objection (o any instruction being given on motive as a basis for consideration of the uncharged evidence instruction, the defense additionally objected to language in the court’s proposed instruction, discussed below, that had never been used in any form instruction concerning motive. (45 RT 8739.) The court ruled “the language will stay.” (45 RT 8742.) ‘The defense then objected to any instruction that would permit the jury to consider the uncharged offense evidence on the issue of who placed the firearm in Ms. Clarkson’s mouth and fired it--ie., identity-- because none of the prior incidents involved either of those two acts. (45 RT 8744-8745, 8749.) Ata subsequent hearing, the court stated that it had a concern whether the jury should be instructed that the evidence should be considered on the issue of identity. The court noted that “taking identity and making ita separate category has some dangers in ity” specifically, “the subject heading or the category of identity is the more carefully scrutinized under 1101(b),” with some cases requiring a “highly distinctive” resemblance between the charged offense and the prior acts. (46 RT 9129-9130.) ‘The court suggested that identity could “be put in without making it a heading.”(46 RT 9131.) The prosecutor did not object to the suggestion as long as it could still argue that “the prior incidents establish to this jury who did this,” because “what{ever] you think about 1101 evidence in any of these categories, however you want to label it, really does go to proving identity anyway.” (46 RT 9132) The court suggested that the section 1101(b) instruction might 82simply say that the uncharged offense evidence could be considered on whether or not the death of Lana Clarkson was a result of “accident, mistake, or suicide.” (46 RT 9132.) At the same hearing, the court reversed the position that it had taken during the prosecution's opening statement barring the use of the word “pattern,” ruling over defense objection that although “pattern does get close to propensity,” the prosecution could use the term in its closing argument. (46 RT 9219.) 6. The Prosecution’s Closing Arguments In the state’s initial closing argument, prosecutor Do again and again urged the jury to convict on the basis of the defendant’s character. (See, e.g., 47 RT 9233-9334: “In Phil Spector's world, you can commit such violence, such conscious disregard for human life not once but seven times;” 47 RT 9235: “Lana...did not know the real Phil Spector. She did not know that behind that VIP was a very dangerous man...who when fueled by alcohol, confronted by [sic] a loss of control, ignites.”) When Do told the jury that “Lana could not have known that she would be the last woman in Phil Spector's history of extreme indifference to human life,” the court overruled the defense objection that Do was arguing the evidence as “character testimony.” (Id.) Do then attempted to mislead the jury by suggesting that Spector had pulled the trigger, but not discharged a bullet, in all of the uncharged instances: This case is about a man, a man who has had a pattern and a history of playing Russian Roullette with the lives of women, six women. And in this game of lethal chance, by the grace of 8320d, five other women got the empty chamber and lived to tell. Lana just happened to be the sixth woman who got the bullet. Lana’s is a murder that was waiting to happen in Phil Spector's world of conscious disregard for human life. That is what this case is about. (47 RT 9236; see also 47 RT 9307: “Every one of these women, who he assaulted with a gun, could have gotten a bullet.”) Prosecutor Do later emphasized that the case should be decided on the basis of appellant’s personal history. “Let's talk about history. Let's talk about the history that matters in this case. Let's talk about the history of Phillip Spector and his gun violence against women when he is fueled by alcohol and ignited by loss of control. ‘That is the only history that matters in this case.” (47 RT 9301.) Do claimed that “you are going to hear from Judge Fidler that you can consider the evidence of these gun assaults against all these women, the five other women to prove who had the gun, why he pulled the gun, and the absence of suicide.” (47 RT 9301-9302.) “[The law tells you...you can consider his pattern of gun assault to decide who pulled the gun, why he pulled the gun and why, absolutely not, Lana committed suicide in this case.” (46 RT 9302.) Do continued: “[H]e has a history of violence, that wherever there has been a ‘woman, there has been aleohol, there has been a loss of control, there has been a gun, and there has been Spector holding it.” (20 RT 3712.) Do concluded her argument by claiming that Clarkson's death ‘was a murder waiting to happen in Phil Spector's world of 84conscious disregard for life. And so when we get back to what happened after she got into that car and went home alone with him, not knowing the real Phil Spector, you have heard the stories of these five women, but it’s like one voice, five voices blending into one because it’s the same pattern; it's the same story... (47 RT 9313.) ‘The court then denied a renewed defense motion for a mistrial made on the ground that the prosecution had argued the uncharged offense evidence, admitted for specific limited purposes, as character evidence. (47 RT 9314-9317.) In his rebuttal argument, prosecutor Jackson argued that Lana Clarkson's death resulted from conduct that appellant had engaged in many times: “Phillip Spector does what he does time after time, after time, after time, after time, after time and again. He gets frustrated. He gets angry. He feels like he’s no longer in control. So he pulls a gun, and he threatens Lana Clarkson with it...And this time, this time that gun goes off.” (48 RT 9547.) 7. ‘The Final Section 1101(b) Instruction Following the defense argument and prior to prosecutor Jackson's completion of his rebuttal argument, the prosecution submitted a proposed instruction on the uncharged offense evidence that included the sentence: “If the jury decides that the defendant committed the uncharged offenses or acts, the jury may consider that evidence for the limited purpose of establishing that the death of Lana Clarkson is not the result of accident, mistake, or suicide, but, rather, that the defendant was the person who 85committed the offense alleged in this case.” (48 RT 9616-9617.) The defense objected to this proposed instruction on the ground that there had been no defense raised by appellant that he had shot Ms, Clarkson by accident or mistake. (48 RT 9617.) As to the remainder of the sentence, the defense objected that what the court is telling the jury is that they may consider this, evidence not for any — for any specific purpose, whether included in 1101(b) or not, but simply for the general purpose of “Is he guilty?” There's no limitation in this instruction...And what the prosecution has now done with his proposed amendment is to make that problem even more glaring by adding the phrase “but, rather, the defendant was the person who committed the offense alleged in this case.’ ...[T]hat makes 1101 meaningless. [t just basically says ‘Unlimited purpose, consider for whether or not he is guilty.’” (Id.) (48 RT 9617) The court overruled the objection on the ground that “the language tracks just exactly what I had in mind.” (48 RT 9618.) ‘The instruction read to the jury stated, in the parts relevant to this claim, that: The People presented evidence that the defendant committed other offenses of assault with a firearm, namely against Devra Robitaille, Diane Ogden-Halder, Dorothy Melvin, Melissa Grosvenor, and Stephanie Jennings, which are not charged in this case. ieee If you decide that the defendant committed the uncharged offenses or acts, you may, but are not required to, consider that evidence for the limited purpose of:Determining whether the defendant had a motive to commit the offenses alleged in this case. For the purpose of this instruction, motive is an emotion that may impel or incite a person to act in accordance with his state of emotion. Or Establishing that the death of Lana Clarkson was not the result of accident, mistake, or suicide, but rather that the defendant was the person who committed the offense alleged in this case. In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offenses and acts and the charged offense. Do not consider this evidence for any other purpose. Do not conclude from this evidence that the defendant has a bad character or is disposed to commit the crime. If you conclude that the defendant committed the uncharged offenses or acts, that conclusion is only one factor to consider along with all the other evidence, It is not sufficient by itself to prove that the defendant is guilty of the charged offense. The People must still prove each element of the charge beyond a reasonable doubt. (48 RT 9672-9674.) W MW W " 87D. The Trial Court Erred in Instructing the Jury, and Permitting the Prosecutor to Argue, That the Evidence of Uncharged Offenses Could Be Used to “Establish(]...The Defendant Was the Person Who Committed the Offense Alleged in this Case” 1. Introduction As noted above, the trial court ruled before trial that the uncharged offense evidence could be admitted on a limited theory of identity. The flaws in that ruling need not be argued at length; by the close of the evidence, the court itself recognized that it ‘would commit error if it instructed the jury that the section 1101(b) evidence could be considered proof of appellant's identity as the perpetrator of the charged crime. While deleting the term “identity” from the instruction on uncharged offense evidence, however, the court took the unprecedented step of instructing the jury that the section 1101(b) evidence could be relied on to establish that “the defendant was the person who committed the offense alleged in this case.” Obviously, that instruction permitted the jury to rely impermissibly on the evidence of the uncharged incidents to prove identity, as the prosecutor urged them to do. Furthermore, as the defense objected, the novel instruction enabled the jury to use the evidence without any limitation whatsoever in considering guilt or innocence. The court’s handling of the “identity” issue constituted prejudicial error. Ww W 882, Evidence of the Uncharged Offenses Was Inadmissible under Section 1101(b) to Prove Identity In his seminal opinion in Ewoldt, supra, Justice George explicated the standards for admissibility applicable to uncharged offense evidence offered for different purposes, such as intent, common plan or design, or identity. Unlike evidence of common plan or design, which is directed at proving that a defendant committed a disputed act,”* “{elvidence of identity is admissible where it is conceded or assumed that the charged. offense was committed by someone, in order to prove that the defendant was the perpetrator.” (Ewoldt, 7 Cal.4th at 394 fn. 2; emphasis in original.) ‘The hurdle to be surmounted to gain admission of uncharged offenses is greatest when the state seeks to admit that evidence to prove idemtity. “The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.” (Ewoldt, 7 Cal.4th at 403; accord, Hassoldt v. Patrick Media Group, Inc. (2000) 84 Cal. App.4th 153, 165-167.) -vidence of a common design or plan is admissible to establish that the defendant committed the act alleged. Unlike evidence used to prove intent, where the act, is conceded or assumed, "[i}n proving design, the act is still undetermined..." (2 Wigmore, supra, (Chadbourn rev. ed. 1979) § 300, p. 238.)” (Ewoldt, 7 Cal.4th at 394 fn, 2; original emphasis.) 89Prior to the retrial, the court indicated it would admit the uncharged offense evidence not to establish the identity of the person who fired the fatal shot, but on the question of “who brought the gun into the situation.” (RT of 9/15/ 08, at 35-36.) Even that limited ruling on identity was incorrect. The prosecution could not prove a “distinctive signature” between the uncharged incidents and the charged incident on the issue of who introduced the gun because the available evidence concerning the charged crime itself established little or nothing about what happened between Clarkson and Spector at his residence. That evidence did not and could not establish Clarkson wanted to leave, thereby angering Spector, or what words, if any, were exchanged between the ‘two, much less that Spector got the gun or held the gun or pointed the gun at Clarkson's head. Inessence, the state’s argument was that because Spector had brandished a firearm at women before, he must have done the same with Lana Clarkson; because he acted in that manner with Clarkson, then the charged incident resembled the prior uncharged brandishings, making the latter admissible to prove the former. But such bootstrapping is. impermissible; there must be independent proof of the nature of the events surrounding the charged offense that establishes its commonality with the uncharged offenses if the latter are to be admitted into evidence. Because there was no evidence establishing how the gun was introduced prior to the fatal shot in this case, the prosecution could not and did not establish that the charged event and the prior brandishing incidents shared 90,“common features that are sufficiently distinctive so as to support the inference that the same person committed both acts.” (Ewoldt, supra, 7 Cal.4th at 403.) The trial court was correct when, at the close of the evidence, it reversed its initial ruling and concluded that it could not instruct the jury that the uncharged offense evidence was admissible on the issue of identity. Itis undisputed that the trial court never ruled that the uncharged offense evidence met the Ewold test on the issue of the identity of the person who committed the principal acts with which appellant Spector was charged in this case: viz., placing a gun in Ms. Clarkson’s mouth, and causing it to discharge. In none of the prior seven incidents did appellant place a gun in anyone’s mouth, nor did he ever cause a gun to discharge. The 1101(b) evidence certainly could not be introduced on the issue of identity of the person who caused the firearm to discharge in Ms. Clarkson’s mouth because the prosecution could not and did not meet the “distinctive signature” test required by Ewoldt and Hassoldt. 3. The Language Used in the Uncharged Offense Instruction in Lieu of the Term “Identity” Constituted Both Substantive and Procedural Error Recognizing that uncharged offenses must bear the same distinctive signature as that of the charged offense to be admissible on the issue of identity, the trial court correctly concluded that it could not include what it called the “heading” of “identity” in its instruction defining the permissible uses of the section 1101(b) evidence. Yet the o1court instructed the jury that the testimony of the five women concerning the uncharged events could be used to establish that “the defendant was the person who committed the offense alleged in this case.” That instruction constituted both substantive and procedural error requiring reversal. a. The Substantive Error As to substance, the instruction proposed by the prosecution and read by the trial court obviously permitted jurors to do just what the court had determined it could not directly instruct the jury (o do: consider the section 1101(b) evidence on the issue of idemtity. There is no difference between instructing a jury that it can consider evidence on the issue of identity and telling jurors they may rely on that same evidence to find that the defendant committed the charged offense. That equivalence is made most obvious by the fact that the prosecution held true to its promise (see 46 RT 9132) to vehemently argue the section 1101(b) on the issue of identity, even after the term “identity” was dropped from the court’s instructions. (See, e.g., 48 RT 9547: “Phillip Spector does what he does time after time, after time, after time, after time, after time and again. He gets frustrated. He gets angry. He feels like he’s no longer in control, So he pulls a gun, and he threatens Lana Clarkson with it...And this time, this time that gun goes off.”) The uncharged offense evidence here was inadmissible under Ewoldt to prove identity; it did not become admissible for that purpose simply because the trial court dropped the term “identity” from its section 1101(b) instruction to avoid, to use its own 92words, being “more careful scrutinized.”(46 RT 9129-9130.) Furthermore, the court’s freshly minted instruction was far more prejudicial than would have been the standard CALCRIM instruction. (46 RT 9129-9130.) As defense counsel aptly pointed out below, an instruction that evidence may be used to establish that the defendant committed the charged offense is an invitation to use that evidence for whatever purpose a jury finds convenient in finding the defendant guilty. Under the court’s instruction, the jury was free to consider the evidence on issues as to which the court had expressly ruled it was inadmissible, such as to prove common design and plan, or to serve as corroboration of the testimony of other witnesses. Furthermore, as explained above, even had the other offense evidence been admissible to establish who introduced the gun during the events of February 3, 2003 — which it was not — it would not have been admissible on the issue of who fired the fatal shot. Any instruction on the uncharged offense evidence had to make that limitation clear. ‘The tial court’s jerry-rigged instruction, never given before in a prosecution in this state, removed any and all limitations from the jury’s consideration of the section 1101(b) evidence. It therefore constituted reversible error. (People v. Swearington (1977) 71 Cal.App.3d 935, 947 [conviction reversed where court's other offense instruction failed to limit jury’s consideration of other offense evidence to those issues as to which the evidence was “relevant and admissible”].) Wt 93b. The Procedural Statutory and Due Process Error The prosecution first submitted, and the court accepted, the specific instructional language that the section 1101(b) evidence could be used to establish that “the defendant was the person who committed the offense alleged in this case,” that is, after defense counsel finished his closing argument and prosecutor Jackson had begun his rebuttal argument.(48 RT 9616-9617.) A defendant has a constitutional right to present a full and complete closing argument. (Herring v. New York (1975) 422 U.S. 853, 858 [“closing argument for the defense is a basic element of the adversary fact finding process in a criminal trial”).) A defendant in a criminal case in California is entitled to have the court’s instructions to the Jury settled prior to his presentation of his closing argument, in order that his or her counsel can address the law under which the jury will determine guilt or innocence. (Pen. Code § 1093.5; People v. Sanchez (1978) 83 Cal.App.3d Supp. 1, 6 [Conviction reversed after trial court withdrew an instruction on which the defendant had relied in closing argument].) ‘The federal courts have applied a rule similar to that in Penal Code section 1093.5 to the same effect. (Federal Rule of Criminal Procedure Rule 30; United States v. Gaskin (9" Cir. 1988) 849 F.2d 454, 460 [Conviction reversed where trial court instructed on new theory of liability during deliberations).)As explained above, the portion of the instruction on uncharged offenses proposed by the prosecution only after the defense completed its closing argument expanded the grounds upon which the uncharged offense evidence could be considered by the jury. In People v. Armstead (2002) 102 Cal.App-4th 784, the court reversed convictions on several counts because of a similar error. The trial court there, in responding to a jury question during deliberations, permitted a broader consideration of evidence that had been admitted only for a limited purpose. The trial court’s response to the juror’s question in effect changed the scope or basis of admissibility of the evidence, essentially redefining it as “other crimes” evidence on the issues of identity, motive and intent, without having had that evidence properly admitted for such purposes during the trial. In the usual course of considering the admissibility of “other crimes” evidence, the court follows well established rules of evidence and law after hearing argument from counsel on the matter; this requires the court to carefully review each count in light of the alleged “other crimes” evidence to determine its probativeness to prove a material fact other than criminal disposition and then to weigh its probative value against its prejudicial effect before it is admitted. This was not done here. The substantial change in the scope of the evidence before the jury as a result of the court's response to its question after the ‘case was submitted for deliberation, also deprived Armstead of the opportunity to meaningfully challenge the evidence in its new character. The evidence as to individual counts was not offered or received during the trial as “other crimes” evidence. In addition to not having had a fair opportunity to contest the admissibility of evidence for such purpose, Armstead had no Jair opportunity to argue the weight of “other crimes” evidence to the jury. We thus think the trial court’s ad hoc shift in the scope of the evidence after the case had been 95submitted to the jury was fundamentally unfair and denied Ammstead due process. (id.,, at 793-794.) ‘The same result is required here. E. The Issues of Mistake, Accident, or Suicide Provided No Independent Bases for Admission of the Uncharged Offense Evidence The trial court's decision to admit the uncharged offense evidence as proof that Lana Clarkson’s death was “not the result of accident [or] mistake,” and to so instruct the jury, is, at first glance, puzzling. Other offense evidence may, of course, be admitted to rebut a defense that a charged homicide was not intentional, but rather resulted from an accident or mistake on the defendant's part. But, as with other potential grounds for the admission of uncharged offense evidence, the issue of lack of mistake or accident can justify admission of otherwise highly prejudicial uncharged offense evidence only when that issue has been placed in dispute. In People v. Balcom (1994) 7 Cal.4th 414, a rape prosecution, the Supreme Court found that uncharged offense evidence, always prejudicial in nature, could not be admitted on the issue of intent because that issue was not fairly in dispute. “No reasonable juror considering this evidence could have concluded that defendant committed the acts alleged by the complaining witness, but lacked the requisite intent to commit rape. (Id., at 422; see also Swearington, supra, 71 Cal.App.2d at 948 ["It is a well settled rule of evidence thatevidence is irrelevant and, hence inadmissible, when it is offered to prove an undisputed issue of fact.”].) In this case, appellant did not raise the defense that he shot Lana Clarkson by accident or mistake at either his first or second trial. That is why the court ultimately refused to admit the uncharged evidence on the ground of lack of accident or mistake at appellants first trial. Had the evidence been admitted at the retrial on the non-issue of whether appellant shot Ms. Clarkson by mistake or accident, that ruling would have been error. It appears, however, that the trial court intended the language of “mistake or accident” to refer not to the actions of the defendant, but of Ms. Clarkson. ‘That is to say, the court admitted the uncharged offense evidence not to disprove that appellant shot Ms. Clarkson as a result of mistake or accident (a contention he never made), but to disprove that Clarkson killed herself as a result of her own negligence. That reasoning on the trial court's part is consistent with its inclusion of “suicide” within this portion of the uncharged offense evidence instruction. The court plainly instructed the jury that the charged offense evidence, which concerned the alleged past conduct of appellant, could be considered to disprove that Clarkson intentionally took her own life. But neither case law nor logic permits the admission of evidence of uncharged offenses by a defendant to prove the conduct (or absence of conduct) of an alleged victim, The CALCRIM form instruction on uncharged offense evidence makes clear that the 97“mistake or accident” ground for admission of section 1101(b) evidence refers only to actions of the defendant.”> What Phillip Spector did or did not do with Stephanie Jennings at the Carlyle Hotel in New York in the nineteen nineties had no tendency in reason to prove or disprove whether Lana Clarkson mistakenly discharged a gun in Alhambra, California in 2003. Likewise, nothing about Spector's conduct with Diane Ogden in the nineteen eighties had any tendency in reason to prove whether or not Ms. Clarkson was suicidal twenty years later. Itis true, of course, that if the prosecution could prove that (a) Ms. Clarkson’s death was a homicide (b) committed by Mr. Spector, it would disprove that Clarkson killed herself either intentionally or by mistake. But in order to gain admission of the uncharged offense evidence on the disputed proposition that Clarkson’s death was a homicide, the evidence would have had to meet the test for common design or plan. “Evidence of a common design or plan, therefore, is not used to prove the defendant's intent or identity but rather to prove that the defendant engaged in the conduct alleged to constitute the charged offense.” (Ewoldt, at 394.) The trial court correctly ruled, however, that the > See CALCRIM 375, which states in relevant part: “If you decide that the defendant committed the (uncharged offenses(s}/act{s]), you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: . . . (E) Accident: The defendant's alleged actions were the result of mistake or accident.” * Thus in People v. Lisenba (1939) 14 Cal.2d 403, where the defendant was charged with drowning his wife to gain insurance proceeds while attempting to make the death appear accidental, the Supreme Court ruled that evidence that he had drowned a prior wife for the same reason was admissible as proof of a common design and plan. (Accord, Ewoldt, at 7 Cal.4th at 399, citing People v. Schader (1969) 71 Cal.2d 761, 776- 981101(b) evidence was inadmissible on a “common design or plan” theory because the prior incidents did not reflect the requisite degree of planning. (RT of 9/15/ 08, at 32.) Of course, to gain admission of the section 1101(b) evidence to prove the proposition that Spector was the perpetrator of the alleged homicide, the state would have had to overcome the Ewoldt “identity” hurdle, which, as demonstrated above, it could not and did not do. ‘The issues of “absence of mistake, accident, or suicide” provided no independent basis for admis ion of the uncharged offense evidence F. The Uncharged Offense Evidence Was Inadmissible on the Issue of Motive 1. Introduction At both appellant's first and second trial, the lower court admitted the testimony of, the five women regarding the seven uncharged instances of brandishing as proof of motive. The lower court did so by shunning controlling Supreme Court precedent, which requires a direct nexus between the uncharged offense and the charged crime such that the former provides a clear reason to commit the latter. But the trial court instead admitted the womens’ testimony on a theory and definition of “motive” that has before never been adopted in the section 1101(b) context. If the trial court's theory of motive evidence — which equates motive with emotion TIT; People v. Kelley (1967) 66 Cal.2d 232, 239; People v. Gosden (1936) 6 Cal.2d 14, 24-25.) 99or impulse — were embraced, it would obliterate the limitations on identity and common plan or scheme evidence enunciated in Ewoldt. The prosecution could simply end-run those barriers by proffering section 1101(b) evidence on the issue of motive, as the court expansively defined that term below. All past crimes of a defendant would constitute proof that he or she is by nature a criminal, and thus was motivated to commit additional crimes such as that charged in the present prosecution. 2, The Relevant Law The test for the admission of uncharged offense evidence on the issue of motive is unlike those applicable to the issues of identity, common design or plan, or intent, which focus on the similarity between the charged and uncharged offenses. Motive requires a close factual nexus that supports the logical inference that the first offense gave rise to a reason for the defendant to commit the charged crime. (See, e.g. People v. Daniels (1991) 52 Cal.3d 815, 856 [introduction of prior offense evidence on issue of motive permissible when “there is a direct relationship between the prior offense and an element of the charged crime"].) In Daniels, there was “direct relationship” between the police's shooting of the defendant during an uncharged bank robbery attempt and the defendant's alleged killing of two police officers a year later. The shooting and consequent paralysis of the defendant gave him a motive to want to murder police officers, In People v, Sheer (1998) 68 Cal.App.4th 1009, the most cited case on this issue in 100California jurisprudence, the defendant was convicted of felony hit and run and vehicular manslaughter. The issue was whether a prior offense relating to a car chase involving a police officer was admissible as motive evidence. (Id. at p. 1018.) The Sheer court concluded that the prior misconduct evidence should not have been admitted because “there must be a nexus or direct link between the commission of the prior misconduct and the charged crime, Here there is none. No relationship exists between appellant’ s 1993 flight from police following his failure to obey a red light and his flight from civilian eyewitnesses after a collision between his vehicle and another. The individuals involved in each accident are wholly unconnected to each other.” (Id. at pp. 1019-20; emphasis added.) Critically, the Sheer court observed that the CALIIC instruction and some courts had improperly fused two concepts — motive and common design or plan. The trial court in Sheer had focused on the fact that there were factual similarities between the prior flight from the police and the charged offense. That similarity might have been relevant to evidence proffered on a theory of common design or scheme, but it was irrelevant to a motive analysis. “The manner in which the prior misconduct was committed, which is the focus of the common plan or design inquiry, does not give rise to a motive, ice., incentive or impetus, for commission of the charged crime. A contrary conclusion would be a non sequitur.” (68 Cal.App.4th at 1020-1021; see also People v. Gibson (1976) 56 Cal.App.3d 119 [where defendant was convicted of murder after he beat his companion to death and 101took his money, trial court erred in admitting on issue of motive evidence relating to (a) a robbery involving injury to a female victim, (b) a battery against a crippled victim lying in bed, and (c) a battery and theft against a third victim because nexus to charged crime was lacking). Consequently, the defendant’s pointing of a gun at another person in prior incidents of brandishing cannot constitute evidence of that defendant's motive to commit a charged murder. (People v. Simon (1986) 184 Cal.App.3d 125, 130 £.4 (“The mere pointing of a gun at Ashton [in the prior incident], whatever the circumstances surrounding it, had no tendency to prove a motive for killing Soto [in the charged homicide].) Finally, of great importance is this Division's opinion in Hassoldt v. Patrick Media (2000) 84 Cal. App.4th 153. In Hassoldt, a civil case in which identity was in dispute, the plaintiff proffered the testimony of Fred Johnson, an employee of the defendant company, to the effect that the company had engaged in the same wrongful conduct alleged by the plaintiff — cutting down trees without the owner’s permission — on prior occasions. The trial court ruled the testimony admissible on the issue of motive. Asa threshold matter on appeal, this Court ruled that the admissibility of prior offense evidence is governed by the same Supreme Court precedent in both criminal and civil cases —i.e., People v, Ewoldt (1994) 7 Cal.4th 380.2” Turning to the merits, the * (Id., at 165, n. 11: “[Tyhe principles enunciated in Ewoldr are as applicable to a civil case involving the admissibility of prior uncharged acts as they are to a criminal case involving the same issues. (Brown v. Smith (1997) 55 Cal-App.Ath 767, 790, fn. 15 [64 102Court ruled that other offense evidence is admissible under the test for motive if the identity of the perpetrator is not in dispute, but if identity is contested, the other offense evidence is admissible only if it mects the Ewoldr test. (Wohere the identity of the actor is in dispute and the uncharged misconduct fails to satisfy the stringent "so unusual and distinctive as to be like a signature” standard enunciated in Ewoldt, the uncharged conduct is not admissible on such issues as intent, motive or lack of mistake or accident-all of which issues presume the identity of the actor is known. Indeed, it would make no sense to admit evidence of uncharged misconduct on the issue of intent, motive or lack of mistake or accident where the identity of the actor is not yet determined. Stated otherwise, it would not be relevant to inquire into the issues of intent or motive until it is established the defendant is the person or entity whose motive or intent is at (84 Cal. App. 4” at 166-167.) 3. The Prior Offense Evidence Was Clearly Inadmissible on the Issue of Motive Under the above principles, the other offense evidence was inadmissible for two reasons. First, there is no rational argument that the events that transpired between Dianne Ogden and Phil Spector in the 1980's provided him with a reason or motive to shoot Lana Clarkson twenty years later. There can be no logical inference that Spector was motivated Cal.Rptr.2d 301] ["{tJhe same evidentiary rules apply in both civil and criminal case{s] concerning evidence of other uncharged misconduct. [Citation]"].)) 103to shoot Clarkson because of anything that transpired between him and Dorothy Melvin in 1993, or any dispute he had with Stephanie Jennings in 1995, with Melissa Grosvenor in 1991, much less with Devra Robitaille in the 1970's. There is no relationship, much less a direct one, between the charged incident and the uncharged incidents which would logically support a conclusion that the earlier incidents created a reason or a desire on the defendant's part to commit the charged offense. Paraphrasing People v. Simon, 184 Cal. App.3d at 130, appetlant’s “pointing of a gun” at women on prior occasions, “whatever the circumstances surrounding [them], had no tendency to prove a motive for killing” Lana Clarkson. Secondly, because identity was in dispute — indeed it was the disputed issue at appellant's trials — the other offense evidence had to pass muster under the Ewoldt- Hassoldt test for identity evidence. It did not, as the trial court ultimately conceded. 4. The Trial Court Erred in Admitting the Evidence Pursuant to a Dictionary Definition of Motive, and in Instructing the Jury on That Definition Rather than analyzing the case law cited above on the issue of motive, the trial court employed a novel definition in ruling on the matter, namely: “Motive is an emotion that may impel or incite a person to act in accordance with his state of emotion.” In objecting to the court’s intention to give the definition to the jury, the defense asserted its belief that the court had gleaned the language, which had never before been used in a jury instruction, from an appellate opinion, People v. Pic'l (1981) 114 104Cal.App.3d 824. The defense argued that it was not appropriate to frame an instruction by cherry-picking language from appellate opinions,” and that was doubly true in the case of Pic'l, which had found that the admission of other offense evidence on motive grounds had been error. (45 RT 8740.) The trial court stated of its definition: I believe, and I could be wrong, that the motive definition, it may well appear in Pic’l, but it is taken from a dictionary. If you look under “motive,” I believe that is what appears in the dictionary. It’s one of them. There are actually several definitions. So that’s actually where it came from. (45 RT 8741.) The court then ruled that the dictionary language would remain in its instruction (45 RT 8742), and the jury was so instructed. Defining motive as an “emotion that may impel or incite a person to act in accordance with his state of emotion” may well conform to the average citizen’s understanding of that term, but it is wholly at odds with the term’s legal definition in the context of section 1101(b) evidence. Greed may well be an emotion that leads one to act ® See, e.g., People v. Colantuono (1994) 7 Cal. 4th 206, 222 (“The discussion in an appellate decision is directed to the issue presented, The reviewing court generally does not contemplate a subsequent transmutation of its words into jury instructions and hence does not choose them with that end in mind. We therefore strongly caution that when evaluating special instructions, trial courts carefully consider whether such derivative application is consistent with their original usage.") 105in accordance with the emotion of greed, but greed is a character trait. The fact that a person has acted greedily on past occasions does not permit admission of those instances in a prosecution for embezzlement. A bad temper may be viewed as something that incites or impels a party to act, but past instances of a defendant's propensity to react in anger are not by that fact admissible in his or her prosecution for a crime of violence. If that were not the case, section 1101 (a)'s ban on propensity and character evidence would be rendered a dead letter. That truth is well-exemplified by the prosecution's inflammatory closing arguments urging the jury to convict appellant due to his character traits and personal history. G. The Uncharged Offense Evidence Should Have Been Excluded under Section 352 and the Federal Due Process Clause Even when evidence is admissible to prove bad character and propensity, as in sexual assault (Evid, Code section 1108) and domestic violence (Evid. Code section 1109) cases, a court has an obligation to exclude that evidence from admission under Evidence Code section 352 where its probative value is outweighed by its prejudicial effect. (People v. Falsetta (1999) 21 Cal. 4" 903, citing with approval People v. Harris (1998) 60 Cal App. 4th 727 [Conviction reversed because the trial court had abused its discretion under section 352 in admitting under section 1108 inflammatory evidence which was not sufficiently similar to the charged offense).) Furthermore, the admission of character evidence not material to any legitimate 106issue denies a criminal defendant his right to due process under the Fourteenth Amendment to the United States Constitution. (McKinney v. Rees (Sth Cir. 1993) 993 F.2d 1378, 1382-1385 [(character evidence of propensity — defendant's possession of and fascination with knives — did not support any permissible inference relevant to defendant's prosecution for the stabbing-murder of his mother, and violated due process]. For the reasons stated above, none of the uncharged offense evidence was admissible under section 1101(b); all of it was instead character and propensity evidence barred from admission by section 1101(a). Were it possible to argue that the evidence had some legally cognizable probative value, its prejudicial effect plainly far outweighed that value. It also infused the trial with such unfaimess as to deny due process of law. (Lisenba v. California (1941) 314 U.S. 219, 228.) All of the other offense evidence was inadmissible under section 352 and the federal due process clause. (Alcala, 36 Cal.3d at 631 [Other offense evidence “is to be received with extreme caution, and all doubts about its connection to the crime charged must be resolved in the accused's favor”) H. — The Court’s Decision to Permit the Prosecution to Argue the Existence of Appellant’s “Pattern” of Violence and Misogyny Was an Independent Source of Reversible Error Itis simply beyond cavil that other offense evidence, even when admitted for a specific purpose under section 1101(b), never becomes admissible to prove “a person’s character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct)...” Evid. Code section 1101(a). Thus, if a court 107properly admitted other offense evidence for the limited purpose of proving lack of accident, the prosecution would be limited to urging the jury to consider that evidence for that purpose alone. It would be wholly improper to permit a prosccutor to argue that the section 1101(b) evidence demonstrated that the defendant was disposed or inclined to commit offenses of the sort alleged in the case at bar, and therefore jurors should conclude that the defendant was likely to commit and did commit the charged crime.” The trial court, however, lifted all limits on the prosecution’s use of the section 1101(b) evidence when it reversed its ruling made during prosecutor Jackson’s opening statement, permitting the use of the term “pattern” in the state's closing argument. Asserting that a defendant has a “pattern” of violent conduct is indistinguishable from. arguing that he or she has a propensity or character trait for violence. Both prosecutors made hay when the sun shined, using the term “pattern” over forty times in their closing arguments. Any contention that the state’s closing arguments were anything other than a entreaty to convict Spector due to his purported character traits and history would be risible.” The same would be true of any argument that the state’s inflammatory but highly ® Such an argument would be permitted if the uncharged offense evidence was admitted as character evidence under Evidence Code section 1108 or 1109. % (See, e.g. 47 RT 9233-9334: “In Phil Spector's world, you can commit such violence, such conscious disregard for human life not once but seven times;” 47 RT 9235: Spector “was a very dangerous man...who when fueled by alcohol, confronted by a loss of control, ignites;” 47 RT 9236: “This case is about a man, a man who has had a pattern 108effective use of the improperly admitted other offense evidence was harmless, especially given the inherently prejudicial nature of other offense evidence (Ewoldt ,7 Cal.ath at 404), and the protracted nature of the jury deliberations at both trials. (People v. Rivera (1985) 41 Cal.3d 388, 393 [(When evidence of a prior uncharged act is erroneously admitted, the error requires reversal if it is reasonably probable thal a result more favorable to the defendant would have been reached if the error had not occurred); People v, Alcala, supra, 36 Cal.3d at 636; People v. Felix (1993) 14 Cal. App.4th 997, 1007-1008.) Appellant contends this was federal constitutional error under Chapman v. California (1967) 386 U.S. 18, requiring reversal unless the beneficiary of the error can prove beyond a reasonable doubt that it did not affect the result, Even if viewed as state law error, prejudice is evident and reversal required. and a history of playing Russian Roullette with the lives of women...Lana’s is a murder that was waiting to happen in Phil Spector's world of conscious disregard for human life:"47 RT 9301: “Let's talk about history. Let's talk about the history that matters in this case. Let's talk about the history of Phillip Spector and his gun violence against women when he is fueled by alcohol and ignited by loss of control. That is the only history that matters in this case;” 47 RT 9302: [T]he law tells you...you can consider his pattern of gun assault to decide who pulled the gun, why he pulled the gun and why, absolutely not, Lana committed suicide in this case;"46 RT 9302: “[H]e has a history of violence, that wherever there has been a woman, there has been alcohol, there has been a loss of control, there has been a gun, and there has been Spector holding it;” 47 RT 9313: “[Y]ou have heard the stories of these five women, but it's like one voice, five voices blending into one because it's the same pattern; it's the same story...; 48 RT 9547: “Phillip Spector does what he does time after time, after time, after time, after time, after time and again. He gets frustrated. He gets angry. He feels like he’s no longer in control. So he pulls a gun, and he threatens Lana Clarkson with it...And this time, this time that gun goes off.”.) 109Ill. ADMISSION OF THE TESTIMONY OF VINCENT TANNAZZO CONCERNING APPELLANT’S PROFANE STATEMENTS ABOUT WOMEN A DECADE BEFORE THE CHARGED OFFENSE WAS REVERSIBLE ERROR A. Introduction Prior to appellant’s first trial, the prosecution made a motion to admit into evidence the testimony of a New York City security guard, Vincent Tannazzo, who claimed to have twice heard appellant Spector, at Christmas parties more than a decade before the charged offense, make ugly remarks about women, referring to them as “fucking cunts” and saying on one occasion “they all deserve a bullet in the head” and the other that he “ought to put a bullet in the head” of Dorothy Melvin. After initially ruling the Tannazzo testimony inadmissible for very good reasons, the trial court reversed itself and admitted the evidence at the first trial; it later did the same at the retrial over an extensive written objection by the defense, The court admitted the testimony at the second trial on the ground that it constituted a “generic threat” admissible solely on the issue of “intent.” That ruling was in error for four reasons. First, the issue of intent was never in dispute at either of Spector’s trials. The prosecution’s theory of the case was not that appellant intentionally killed Ms. Clarkson — an express malice murder — but rather that her death resulted from appellant’s acting with a conscious disregard of the risk to Clarkson’s life created by his brandishing a gun — an implied malice murder. At both trials, appellant made clear that his sole defense was that 110he did not put the gun in Ms. Clarkson’s mouth; he never disputed that her death, if found. to be a homicide, would be anything less than an implied malice murder. The grossly prejudicial testimony of Tannazzo could not be admitted to prove an issue that was never in dispute in this case. Secondly, in California there is a well developed legal standard which must be met to gain admission of “generic threats” as evidence of intent; unless that standard is satisfied, generic threat evidence constitutes nothing more than bad character evidence inadmissible under section 1101(a). The Tannazzo incidents plainly could not pass muster under the relevant legal standard, not least of all because they were not threats at all, and also were far too temporally removed from the charged offense. Thirdly, under any fair application of Evidence Code section 352, the Tannazzo testimony was plainly more prejudicial than probative, and should have been excluded on that basis as well. That is all the more true of the profane language the statements contained, which had absolutely no probative value whatsoever. In denying the defense’s separate request to exclude the references to “fucking cunts” from Tannazzo’s testimony, the trial court wholly dispensed with the meaningful weighing process section 352 requires. Finally, the trial court itself stated that the Tannazzo testimony required a specific instruction directing the jury to consider the evidence only on the (non-disputed) issue of intent, yet the court failed to meet its obligation in that regard. As a result, the prosecution was free to urge the jury to improperly rely on the Tannazzo testimony as pure character MLevidence, which it did with greatly prejudicial effect in its closing arguments. The combined impact of the errors concerning the Tannazzo testimony requires reversal, B. The Relevant Facts 1. The Admissibility Rulings Prior to appellant’s first trial, the prosecution argued that it intended to use the Tannazzo testimony to prove that: “This man, when he has a gun, when he's been drinking, he hates women.” ( RT of 4/10/07, at 18.) The court denied the motion to introduce the testimony, stating [W]hat you have is a vile, crude, misogynist rant on two occasions. However, it certainly could be argued, and the People have that you can draw certain inferences. [sic] However, when you weigh the prejudicial value against the probative value of these statements, to me, under 352, the prejudicial value far outweighs the probative value given what's in the statements. (id., at 18-19.) The court contraposed the Tannazzo testimony with the section 1 101(b) evidence it had previously ruled admissible: The conduct that I am letting in is very specific. In my mind, assuming what the People are able to prove establishes a certain reaction to a certain stimulus. | have heard people make similar rants such as this. It could also be argued someone does not end up dead after such a rant, but it is extremely prejudicial. I find that although it has some probative value, one, it would 112have to be dealt with in voir dire. I think the likelihood of getting a jury would be severely impacted by allowing the statements that were set forth by Mr. Tannazzo. And weighing all the possibilities, putting one against the other, itis so highly inflammatory because of the use of a particular word — Tam just going to leave it there for right now because of how women understandably react to that word -- I don't find the probative value is enough to allow us to go down this path, (ia. Subsequently, the court reversed itself and admitted the Tannazzo testimony at appellant's first tial. (FT RT 6679-6680) Appellant filed a lengthy memo prior to his retrial opposing admission of the Tannazzo testimony on the grounds that (a) the incidents described therein could not possibly qualify for admission under section 1101(b) because they had no common features with the charged offense; (b) the evidence did not qualify as an admissible “generic threat” under California law; and (c) in any case, the probative value of the evidence was far outweighed by its prejudicial effect. (CT 5763, et.seq.) Appellant also objected to the remainder of Tannazzo's testimony concerning matters other than the statements themselves on the ground that additional testimony was irrelevant and consisted largely of inadmissible hearsay. (CT 5775-5776) In ruling on the motion, the trial court divided the Tannazzo testimony into two “levels,” the first being “tafking about a threat to do violence to women” and the second being “the words that are in play, if you will, I’m going to use the “c” word in this case.” (2 113,RT of 10/20/08, at 36.) The court stated that “the generic threat, which is generic in the sense it does not mention Miss Clarkson, but it’s also very specific as to intent as to ‘what I will do because this is how I view women and this is what | think they deserve...”” (Id., at 37). Although the court was “very concerned about the language,” it ruled that as to both levels “the probative value does outweigh the prejudicial value,” principally because “this very specific threat, generic in its basis” was part of a “continuing pattern.” (Id., at 37-38). When the defense asked the court to partially reconsider its ruling and at least “exelud[e] the obscenities,” prosecutor Jackson responded that the jury should not be denied evidence of “what Phillip Spector's mind is, what his pervasive state of mind is of women to do violence...it shows what Phillip Spector thinks about women and what he thought about Lana Clarkson that night.” (Jd., at 39-40.) ‘The defense responded that argument was one based on “pure character evidence. How Mr. Spector feels about women in general is absolutely inadmissible.” (Id.) ‘The court reserved its ruling on the obscenity issue, but later allowed the testimony concerning “fucking cunts,” finding that while the language was “clearly... inflammatory,” it had probative value “because it shows the depth of the threat, the likelihood that the threat will be carried out...” (3 RT 317.) 2. Tannazzo’s Testimony Vincent Tannazzo is a retired New York City police officer. (8 RT 1279.) At trial he claimed to be a licensed private investigator but records indicated he was only licensed as a security guard. (8 RT 1321.) When he first talked to law enforcement about his M4connection to the Spector case the relevant facts were at least 13 years old and could have been as much as 16 years old. (8 RT 1322-23.) Indeed, Tannazzo’s trial testimony was at odds with his original statement to investigators on the subject of dates: he told the police the events were between 1995 and 1998; he told the jury the events were between 1991 and 1994. (8 RT 1337, 1340.) Although Tannazzo had been aware of the Spector case, the first time he spoke with police was in 2007. (8 RT 1374.) Following his retirement Tannazzo took on Joan Rivers as a client. (8 RT 1280.) Tannazzo knew that Rivers’ manager was a woman named Dorothy Melvin and that Melvin was dating Spector, (8 RT 1281.) Rivers had an annual Christmas party at her New York apartment. Tannazzo worked security at the party. At some point Tannazzo received a calll from Melvin who reported that Spector had pulled out a gun, (8 RT 1286.) Tannazzo went up to Rivers apartment and saw Spector and Melvin having an argument. (8 RT 1287.) Spector said “these fucking cunts” over and over again. (8 RT 1288.) Melvin told him to calm down, (8 RT 1288.) Tannazzo did not see Spector with a gun, (8 RT 1289.) In the elevator with Spector on the way out of the building he surreptitiously patted down Spector and felt what he believed was a .38 revolver. (8 RT 1290.) Spector continued to use profanity, including the word “cunt” in the elevator. (8 RT 1291.) When they reached the lobby Spector moved his hand to the area of his gun. (8 RT 1291.) Tannazzo said, “If you pull your gun out I'll blow your fucking brains out.” (8 RT 11s1291.) Spector said, “I love cops. All I want is my keyboard.” (8 RT 1293.) ‘Tannazzo and Spector then went to Spector's limousine and sent the driver back to the apartment to retrieve the keyboard. (8 RT 1293.) In the limousine Spector produced a badge and said he was a sheriff from North Carolina, (8 RT 1294.) Spector produced a permit and said, “I have permits for all over the place. Everywhere I go I carry a piece.” Spector said, “These fucking cunts, they all deserve a bullet in their heads.” (8 RT 1295.) Spector did not appear to be joking when he made the remark. (8 RT 1296.) After the limousine driver returned Spector left. (8 RT 1296.) Tannazzo then asked Melvin whether there was a complaint regarding Spector's use of a gun, and Melvin said there was not and that he should return to his security post. (8 RT 1297.) ‘Tannazzo saw Spector at Rivers’ Christmas party the following year. (8 RT 1298.) He saw Spector and Melvin having an argument outside an elevator. (8 RT 1300.) Spector said “that fucking cunt” over and over. (8 RT 1300.) Melvin told Tannazzo to get Spector tohis car. (8 RT 1301.) Spector said, “That fucking cunt. I ought to put a bullet in her head right now.” (8 RT 1302.) Tannazzo took Spector to his limousine and Spector left. (8 RT 1303.) 3. The Prosecution’s Use of the Tannazzo Testimony in its Opening Statement and Closing Argument In his opening statement, prosecutor Jackson told the jury that “through the evidence . . . you will hear Phillip Spector tell you what he thought of these women and 116what he thought of women in general. ‘Women are all fucking cunts. They all deserve a bullet in their head,’ a quote by Harvey Phillip Spector.” (7 RT 1128.) In her closing argument, prosecutor Do described appellant as “a man who (47RT believed that all women are fucking cunts and deserved a bullet in their head, 9235). She asserted that: “Behind a man’s violence is a man’s state of mind. A man who believes that all women are fucking cunts, and deserve a bullet in their head.” (Id., at 9301.) 4, The Jury Instruetion Conference At the jury instruction conference, defense counsel Weinberg objected to including the Tannazzo testimony in the prosecution's proposed instruction concerning the evidence of uncharged offenses because Tannazzo’s testimony was not admitted to prove appellant Spector's “behavior.” Weinberg argued that “the court didn’t admit [the testimony] on the issue of prior misconduct but rather on the issue of statement of intent, and so it doesn’t belong here at all.” (45 RT 8735.) Defense counsel continued: “That evidence did not come in to prove behavior. It came in, erroneously we believe, to establish state of mind, So any reference to Tannazzo in this instruction at all is misleading. (Id., at 8737). ‘The court responded: “The bottom line is, I agree with what you said. Tannazzo’s statements were admitted solely for the purpose of showing the acting on the intent...at a later time...somewhere along the line they have to understand what that was admitted for. There has to be something.” (Ibid.) u75. The Instruction Given The instruction given to the jury concerning the Tannazzo testimony followed the paragraph on the section 1101(b) evidence introduced through the testimony of the five women: The People presented evidence that the defendant committed other offenses of assault with a firearm, namely against Devra Robitaille, Diane Ogden-Halder, Dorothy Melvin, Melissa Grosvenor, and Stephanie Jennings, which are not charged in this case. The People presented evidence of other behavior by the defendant that was not charged in this case, namely the behavior testified to by Vincent Tannazzo. (48 RT 9673.) There was no further instruction stating that the Tannazzo testimony was offered solely on the issue of intent. Rather, the Tannazzo testimony was effectively included with all of the other uncharged acts when the court defined the purposes for which the section 1101(b) evidence could be considered: If you decide that the defendant committed the uncharged offenses or acts, you may, but are not required to, consider that evidence for the limited purpose of: Determining whether the defendant had a motive to commit the offenses alleged in this case. For the purpose of this instruction, motive is an emotion that may impel or incite a person to act in accordance with his state of emotion. Or Establishing that the death of Lana Clarkson was not the result 118of accident, mistake, or suicide, but rather that the defendant was the person who committed the offense alleged in this case. (48 RT 9672-9674) C. The Tannazzo Testimony Was Inadmissible Because Intent Was Not in Dispute ‘The sole issue on which the Tannazzo testimony was admitted was intent, but the issue of intent was never in dispute in this case. In her closing argument, prosecutor Do described a case in which a man gets angry with a woman, says he is going to kill her, “and does exactly what he says. That is an express intent to kill.” (47 RT 9238.) Do then emphasized “that’s not what this case is about. It’s not about express malice. Ir is about what is called implied malice. Certain conduct that you engage in the law will imply malice from that conduct.” (Id.) After describing the elements of implied malice murder, Do continued: In this case we got something else that everybody knows is dangerous, a loaded gun. Everybody in this courtroom, knows that a loaded gun is dangerous. Children know that. Implied malice. You know it’s dangerous. You do it anyway and someone dies. No intent to kill is required. No intent that someone dies is required. (id., at 9240.) Do stressed that it was the prosecution’s position that: “This case is nothing less than a second degree murder...Mr. Spector pulled a loaded gun, held it within arm’s reach of another human being, pointed that gun at her. That, by definition, is dangerous to 119human life, shows conscious disregard for human life. That is second degree murder. (Id., at 9241.) At both trials, appellant Spector agreed with the state's position that if Ms. Clarkson's death was a homicide, it was nothing less than a second degree implied malice murder. In his motion filed before his retrial opposing the admission of uncharged evidence for the purpose of proving intent, appellant said the following: If Spector’ s defense were that he was pointing a firearm at Clarkson and it discharged without his realizing the risk of life that his conduct presented, the state might have an argument that the prior gun incidents are admissible on the issue of implied malice. But Spector’s defense remains unchanged from the first trial, at which this Court ultimately declined to admit the evidence to prove intent. Spector will present evidence and argue that he was not holding the gun when Clarkson was shot. If the prosecution proves otherwise, the jury will convict of malice murder, because the evidence will not justify instruction on any lesser included offense. ‘There is simply no dispute in this case that if Spector had shot, Clarkson, he had to have done so with the requisite mental state, (CT 5619, 5630) Appellant’s motion relied on the California Supreme Court’s decision in People v. Balcom (1994) 7 Cal.4th 414,where the high court rejected the state’s claim that other offense evidence was admissible on the issue of intent; the high court so ruled because there was no meaningful dispute raised by the evidence as to the issue of intent. Spector’s motion below asserted: ‘The circumstances here are indistinguishable from Balcom. 120Given the parties” positions at trial, there is no meaningful dispute about implied malice or any other aspect of intent. If Spector shot the weapon, he is guilty of implied malice murder. If he did not, he must be acquitted. ‘The prior offense evidence is therefore inadmissible on intent grounds. (CT 5631) The trial court refused to admit the testimony of the five women concerning the seven alleged brandishing incidents on the issue of intent. But the same logic required exclusion of the Tannazzo evidence because there was no dispute between the parties on the element of intent. ‘The only issue in this case was that of the identity of the person who put the gun in Ms. Clarkson's mouth and caused it to discharge. The Tannazzo testimony was proffered on the theory that it demonstrated that Spector intended to shoot women in the head, but the state's implied malice murder theory of Clarkson's death was that: “No intent to kill is required. No intent that someone dies is required.” (47 RT at 9240.) The defense never contested the mental state element of second degree murder. Consequently, after the Tannazzo testimony was admitted, the prosecution did not rely on it to prove the mental state of implied malice. Rather, as its closing argument made obvious, the prosecution impermissibly used the Tannazzo testimony as proof of Spector's characters traits — “Behind a man’s violence is a man’s state of mind. A man who believes that all women are fucking cunts, and deserve a bullet in their head” — and then argued those traits proved appellant's identity as the person who fired the fatal shot. 121The Tannazzo testimony was not admitted, and could not have been admitted, on the issue of identity. The prosecution's use of the Tannazzo testimony to establish identity after it was improperly admitted solely on the non-disputed issue of intent was grave error. D. The Tannazzo Testimony Was Not Admissible As a “Generic Threat” 1. Introduetion Given (a) that the Tannazo testimony in no way concerned the specific events many years later at Mr. Spector’s house on the night of the charged offense, and (b) that the absolute ban on “bad character evidence” imposed by Evidence Code section 1101 (a) fully applied in this case, the state carried a heavy burden in its effort to gain the testimony’s admission. Even had the issue of intent been in dispute, the Tannazzo testimony would not have been admissible under the California case law concerning “generic threats.” 2. The Case Law ‘There is a fairly extensive corpus of law in California concerning the admissibility of “generic” statements of intent to commit a crime — i.e., statements of criminal intent that do not name a particular vietim or time and place of the intended crime. If such statements ate made within a relatively short period before the charged crime was committed and with sufficient detail to permit the conclusion that the defendant intended to soon commit a crime similar to the crime he is charged with committing, then the statement is deemed relevant “state of mind” evidence bearing on the defendant’s intent, and is admissible. If it is made at a time and in a context remote from the charged crime, 122then it would be relevant only to the extent that it sheds light on the defendant's character traits, and is thus barred by the §1101(a) general ban on character evidence. (People v Alcala, supra, 36 Cal.3d at 631.) In People v. Duncan (1945) 72 CalApp.2d 247, the defendant was charged with murdering his girlfriend, His defense was that, in fact, the girlfriend had committed suicide. On appeal Duncan argued that the trial court had erred by excluding testimony by the victim's ex-husband that the alleged victim had, before her divorce in 1937, threatened suicide. The Court affirmed, holding that statements made eight years prior to the charged crime were so remote as to be irrelevant on the issue of the girlfriend’s state of mind at the time of her death. (Jd. at 253.) In People v. Rodriguez (1986) 42. Cal.3d 730, evidence was admitted at trial that Rodriguez, accused of killing two CHP officers in 1978 during their attempt to arrest him, had in that same year expressed “contempt and hatred for potice and declare{d] that he would kill any officer who attempted to arrest him.” (Id. at 756.) The Supreme Court held that the evidence was admissible: “A defendant's threat against the victim . .. is relevant to prove intent in a prosecution for murder. . . . The statements here in question did not specify a victim or victims but were aimed at any police officer who would attempt to arrest appellant, Such a generic threat is admissible to show the defendant's homicidal intent where other evidence brings the actual victim within the scope of the threat.” (Id. at 757.) (emphasis added). Because he was charged with killing law enforcement officers,the prior threats were relevant. (Id.) The Rodriguez court did not face the remoteness question because the threats in that case were very recent. (See also People v. Cummings (1993) 4 Cal.4th 1233, 1289-90 [evidence of threat, day before the charged killing, to kill any police officer who got in his way, was admissible: “The time frame was such that a jury could reasonably infer that the intent to kill police officers stated at that time still existed at the time of the killing” .) In People v. Karis (1988) 46 Cal.34 612, there was evidence Karis had told a witness in July 1981, the same month as the charged homicide (46 Cal.3d at 622), that he would not hesitate to eliminate witnesses if he committed a crime. (Id. at 634.) The trial court admitted the evidence under §1250 as “circumstantial evidence of defendant's state of mind showing his design and plan to kill the victim if he committed a crime,” which in turn “would be circumstantial evidence that he acted in accordance with that plan... .” (la.) In considering whether the lower court had erred, the Supreme Court began by noting that Evidence of a defendant's statement regarding possible future criminal conduct in a hypothetical situation has at least as great a potential for prejudice in suggesting a propensity to commit crime as evidence of other crimes. Therefore, the content of and circumstances in which such statements are made must be carefully examined both in determining whether the statements fall within the state-of-mind exception, as circumstantial evidence that defendant acted in accordance with his stated intent, and in assessing whether the probative value of the evidence outweighs that potential prejudicial 124effect. (Id. at 636.) (emphasis added.) The Karis court concluded that the threats at issue were admissible under §1250 because the crimes — the killing and attempted killing of a crime victim and a witness soon after the threats were made — fell neatly within the defendant's stated intention. (Id. at 637.) “The evidence is therefore admissible unless the circumstances in which the statements were made, the lapse of time, or other evidence suggests that the state of mind was transitory and no longer existed at the time of the charged offense.” (Id.) (Emphasis added.) Finally, the Supreme Court said: (id., at 637.) [Tyhe fact that the statement was made only three days before the commission of the crime enhanced its probative value, and because at the time of the ruling the identity of the perpetrator appeared to be the principal issue, the [trial] court concluded that as a statement of motive, plan, and design the probative value of the statement was great. The court therefore concluded that the highly probative nature of the evidence substantially outweighed the danger of undue prejudice from its admission. 3. The First Statement None of the relevant case law supported admission of the Tannazzo testimony concerning the ea lier of the two statements. In order for a generic statement to be admissible under either §1250 or §1220, two things must be true. First, as the Rodriguez 125court held, “a generic threat is admissible to show the defendant's homicidal intent where other evidence brings the actual victim within the scope of the threat.” (42 Cal.3d at 757.) And second, generic threat evidence is “admissible unless the circumstances in which the statements were made, the lapse of time, or other evidence suggests that the state of mind was transitory and no longer existed at the time of the charged offense.” (46 Cal.3d at 647.) Put differently, there are three factors, each of which can demonstrate the state of mind was transitory and no longer existed at the time of the charged offense: (a) circumstances in which the statements were made or (b) lapse of time or (c) other evidence. ‘The statement Spector allegedly made to Tannazzo at the first Christmas party — “that’s why I have these permits. I carry a piece, these fucking cunts . , . they all deserve a bullet in their fucking heads” — is hardly an unequivocal threat of the sort at issue in Rodriquez or Karis, In ruling the statement admissible because it was “very specific as to intent as to ‘what I will do because this is how I view women and this is what I think they deserve...” ((2 RT of 10/20/08, at 37), the trial court erred factually. Spector never threatened to kill any class of person, but said women deserve a bullet in their heads. Everyday people make comments that others, even (or especially) blood relatives, deserve fates up to and worse than death — “my brother in law should be horsewhipped” — without meaning to suggest that they themselves intend to inflict injury on those persons. Furthermore, as will appear, the evidence failed to clear either of the other hurdles set up 126by the foregoing authorities to ensure that invalid character evidence does not make its way into a trial under the guise of “generic threats” testimony. First, the statement is so extraordinarily wide-ranging, apparently applying to all women under all circumstances, that it is effectively meaningless. In the cited cases, the defendant made a threat to kill a specific class of people under specific circumstances that took place soon thereafter. Thus, in Rodriguez, the defendant said that he hated police officers and said that he would kill any officer who attempted to arrest him. Rodriguez did not threaten to kill all police officers under any and all circumstances, only one who tried to arrest him. In Karis, the defendant said that he would not hesitate to eliminate witnesses if he committed a crime. In Cummings, the defendant threatened to kill any police officer who got in his way the day before he did just that, In all of the cases cited, in making the generic threat the defendant narrowed both the class of potential victims, and the circumstances in which he intended to kill the vietim. A statement of hostility that is so generic as to apply to half the population of the planet, without any limitation as to circumstances, is not the sort of statement envisioned by the cases cited, and it is not meaningfully probative of Spector’s state of mind on the evening of the Clarkson shooting. 1t is impossible to say, as per Rodriguez, that the evidence in this case brings the victim within the scope of the generic threat, when any female victim in any factual circumstance would do. The evidence fails the Rodriguez test on several other grounds as well. According 127to the prosecution, Spector and Clarkson were drinking, Clarkson tried to leave, and Spector produced a gun and shot her. The circumstances of the Clarkson shooting, even if they were as the District Attorney posits, simply do not match the purported generic threat. Spector's alleged statement to Tannazzo in the early nineteen nineties fails to satisfy the second prong of the admissibility test, as well. As per Karis, the generic threat evidence is “admissible unless the circumstances in which the statements were made, the lapse of time, or other evidence suggests that the state of mind was transitory and no longer existed at the time of the charged offense.” (46 Cal.3d at 647.) In order to gain admission of the statement, the state would have to demonstrate that the state of mind that purportedly demonstrated by the first statement sometime between 1991 and 1993 — an intention to shoot any and all women in the head — was maintained by Spector through 2003. No case in the history of California has approved a generic threat of such remoteness. In the cases cited previously, the lapse of time is never more than a year. Nine years or ten years is simply too long. Second, Spector found himself in the presence of hundreds of women between the early nineteen nineties and 2003. If the prosecution's evidence is to be believed, in a few cases, such as that of Stephanie Jennings in 1995, he allegedly brandished a gun in the presence of a woman, But in no case did he discharge a gun, much less make good on his alleged statement in the early nineties. The fact that the circumstances of the generic threat existed over and over again during the interceding years and yet Spector did not fire a gun 128over that decade is powerful evidence that the threat, if one was made, was transitory and no longer existed at the time of the Clarkson shooting. Indeed, those facts prove quite convincingly that Spector's first statement to Tannazzo was not a serious threat at all. ‘Third, the circumstances in which the threat was made themselves suggest the threat was not serious. Spector was speaking to a person he believed to be a “cop,” or at the very least a person with law enforcement ties. Spector had just had an argument with his girlfriend. He showed Tannazzo his badge and permits. He was clearly agitated and spoke in an offensive manner. But the statement that women deserved to be shot in the head cannot logically be taken as a serious threat to carry out the executions of women under any circumstances going forward. If Spector made the statement, he was blowing off steam in a particularly obnoxious manner. But he was not expressing an intention that bore any meaningful relationship to his state of mind in Clarkson’s presence some nine years. later. Under Rodriguez and Karis, the first threat is unquestionably inadmissible, 4, ‘The Second Statement ‘The second alleged statement by Spector was not a generic threat. If it was a threat at all, it was directed at a specific person — Dorothy Melvin — and not the decedent in this case. The generic threats rule does not apply. As to section 1101(b), Spector was not armed at the time; he did not state the threat directly to its intended object; the incident had nothing to do with a woman leaving Spector’s home or presence when he wanted her to stay; and the statement was made in public and in the presence of a security guard, and 129obviously was not meant to be taken seriously. While certainly painting Spector as an offensive personality, the second Tannazzo incident bears no similarity as to the charged event and thus was invalid character evidence under §1101(a). E. The Remainder of the Tannazzo Testimony Was Inadmissible As appellant argued in his motion in limine, most of ‘Tannazzo’s testimony had nothing to do with statements by Spector, and thus was plainly inadmissible. Specifically, Tannazzo should not have been permitted to testify (a) that Dorothy Melvin told him that Spector had pulled out a gun at the party, because such testimony was both hearsay and inadmissible under section 1101; (b) that he observed Melvin and Spector having an argument; (c) that he did a light pat down of Spector and “believed” Spector was carrying a gun; (d) that Melvin told Tannazzo to remove Spector from the premises; (e) that Spector made what Tannazzo believed was a move for his (Spector's) supposed gun; (f) that Tannazzo told Spector if he pulled out his gun Tannazzo would blow his fucking brains out; (g) that Spector said, “I’m cool, I love cops”; (h) that inside the limo, Spector produced a badge and claimed that he was a sheriff from North Carolina; (® that Spector took out a permit and said “that’s why I carry . .. . have permits all over the place. That is why I always have a piece on me”; (h) that at the following year’s party Tannazzo heard Spector and Melvin arguing as they left the elevator; (i) that Melvin told Tannazzo to put Spector in his car; and (j) that Tannazzo ultimately grabbed Spector and pulled him out of the building and walked him to his limo. 130None of this was evidence of any generic threat by Spector, and none of it was admissible under any exception to the general rule barring character evidence as set forth in Evidence Code §1101(b) F. The Tannazzo Testimony Was Barred by Evidence Code Section 352 and the Federal Due Process Clause In initially excluding the Tannazzo testimony, the trial court found it to be “extremely prejudicial” and “highly inflammatory,” (2 RT of 4/10/07, at 18-19.) That judgment was correct. On the other hand, its probative value on the sole issue as to which it was admitted — intent — was minimal or non-existent, because the mental state element of implied malice was never in dispute at trial Furthermore, the prosecution was allowed to offer testimony by five witnesses as to incidents in which Spector allegedly made threats, used a gun, and so forth. That evidence created a grave danger that the jury would focus not on the issue of whether appellant shot Clarkson, but would “condemn, not because he is believed guilty of the present charge, but because he has escaped unpunished from other offenses. . .."(People v. Smallwood (1986) 42 Cal.3d 415, 428.) Permitting the admission of the “extremely prejudicial” and “highly inflammatory” Tannazzo testimony in addition to the equally prejudicial section 1101(b) stretched the bounds of section 352 far beyond their breaking point. As was true of the section 1101(b) evidence (see argument II F, supra), the introduction of the Tannazzo testimony also violated Spector’s federal due process rights (McKinney v. Rees (1993) 993 F.2d 1378 ; Jammal v. Van de Kamp (9th Cir. 1991) 926 131F.2d 918, 920.) G. The Court’s Instructional Error Exponentially Compounded the Prejudice of Its Error in Admitting the ‘Tannazzo Testimony ‘The trial court itself agreed that the Tannazzo “generic threat” testimony, unlike the testimony of five women admitted under section 1101(b), had been admitted only on the issue of intent, and the jury would have to be so instructed. (Id., at 8737.) No such instruction was given. Instead, the Tannazzo testimony was, for instructional purposes, effectively bundled in with the section 1101(b) testimony, and the jury was told that it could be considered on the issues of motive, lack of accident, mistake or suicide, and on the issue of whether “defendant was the person who committed the offense alleged in this case, (48 RT 9672-9674.) In other words, the jury was not instructed on the one issue as to which the Tannazzo testimony was admitted, but was told that they could consider the evidence without limitation in deciding guilt or innocence. As was true of the trial court's belated instruction on the other offense evidence, its instruction on the Tannazzo testimony permitted a broader consideration of evidence of uncharged conduct that had been admitted only for a limited purpose, and did so after the instructions had been settled. As in People v. Armstead, supra, 102 Cal. App. 4" at 793- 794, reversal is required. 7 Ws 132IV. THE PROSECUTION’S MISCONDUCT DURING CLOSING ARGUMENTS DEPRIVED APPELLANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL A. Introduction No witness testified that he or she had witnessed the firing of the shot that killed Lana Clarkson. Nearly all of the evidence bearing on that event introduced by the prosecution came in the form of physical evidence gathered from the crime scene, Ms. Clarkson's body, or Mr. Spector — DNA, gun shot residue, fingerprint lifts, blood evidence, autopsy findings. That physical evidence in turn was the subject of analysis by the state’s forensic pathologists and criminalists. ‘The state's expert witnesses prepared and presented their opinion evidence over a period of time spanning six years and two trials, both of six month durations. Dr. Herold had free reign to spend as much time on the case as she liked during the 2003 to 2009 period. She did not keep track of her time over those six years. (26 RT 5099-5100.) An example of the time she spent on the case was her examination of the white jacket. That alone took one week. (26 RT 5223.) Steve Renteria, a Sheriff's criminalist, estimated he spent up to 800 hours working the case. (20 RT 3833.) Dr. Lakshmanan testified that twelve members of the Coroner's office worked on the case, and their time was never limited nor was any test foreclosed from being done. (31 RT 6014-6016.) Although the state’s witnesses claimed ignorance of the amount of money spent in the preparation and presentation of the state’s forensic 133evidence, plainly the total exceeded many hundreds of thousands of dollars. Ina criminal case where liberty is at stake, forensic evidence introduced by the state requires the same exacting scrutiny as any other form of proof. Following the recent wave of exonerations due principally to DNA testing, a study examining the factors that had led to these wrongful convictions found juries had been misled again and again by flawed or fraudulent expert testimony." A 2009 report of the National Academy of Sciences found that the conclusions of forensic labs administered by or working for law enforcement agencies, like all human endeavors, will on occasion be skewed by bias. The United States Supreme Court relied on that report in its recent opinion requiring that the findings of prosecution forensic experts be subjected to cross-examination: Because forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.” []. A forensic analyst responding to a request from a law enforcement official may feel pressure -- or have an incentive -- to alter the evidence in a manner favorable to the prosecution. (Melendez-Diaz v. Massachusetts (2009) 129 S. Ct. 2527, 2536.) ‘Thus counsel for the accused in a case as heavily dependent on forensic evidence would be patently incompetent if he or she did not utilize scientific experts in the employ of the defense to re-examine and/or re-test every piece of physical evidence examined or * Brandon L. Garrett, Judging Innocence (2008) 108 CoLuM. L. REV. 55, 119. 134tested by the prosecution’s witnesses. If the analyses of the defense experts generated relevant and exculpatory evidence, defense counsel likewise would be derelict if he or she failed to call those witnesses to the stand to testify on the defendants behalf, at both a trial and retrial, if necessary. And if the defendant in question was not indigent, defense counsel would have to ensure that the experts he or she retains are paid for their time in and out of court. In a case such as this one, in which the state expended huge sums of money to prepare and present testimony of experts in highly technical areas such as DNA blood spatter analysis, the cost of defense experts will necessarily be high indeed, When experts are paid by the defendant, the prosecution is, of course, entitled to place that fact before the jury as a potential source of interest and bias. What the prosecutors are not permitted to do is claim, as a matter of personal knowledge, that while the prosecutors themselves will only produce truthful testimony, the payment of defense experts is inherently corrupt, constituting as it does the knowing purchase of false evidence. Such improper tactics leave defense counsel with the Hobson's choice of breaching his or her professional obligations by failing to retain and call defense experts, thereby ensuring the defendant's conviction, or calling to the stand competent experts, thereby provoking a prosecutorial accusation of subornation of perjury. ‘The prosecutors employed that tawdry gambit here, In a case with forensic evidence as complex as this one, there were bound to be conflicts and inconsistencies within and between the testimony of the experts for both parties. As noted above, in many instances 135the testimony of prosecution experts “morphed” between the first and second trial in a manner designed to strengthen the state’s case at retrial. There was no basis in the evidence on which to rest a suggestion that defense counsel was less conscientious and ethical in the presentation of his forensic experts than the prosecutors had been in theirs. The vicious attacks on the integrity of defense counsel by both prosecutors in their closing arguments was not in service of the truth, but a distortion of it. B. The Prosecution’s Closing Arguments In his closing argument, in correctly explaining the application of the state’s burden of proving guilt beyond a reasonable doubt to a circumstantial case (see CALCRIM 224), defense counsel Weinberg stated : “I’m nor asking you to accept hypotheticals, possibilities. We are talking about reasonable conclusions. So, you must accept only reasonable conclusions and reject any that are unreasonable. But if one of these reasonable conclusions points to innocence and the other to guilt, you must accept the one that points to innocence.” (47 RT 9329; emphasis added.) In response, prosecutor Jackson asserted: “Mr, Weinberg said my job is to give you possibilities. That’s my job. I’m here to just give you possibilities, just regale you with all kinds of possibilities. That's funny. My job, Ms. Do's job, is to give you the truth.” (48 RT 9548-9549.) Jackson continued: “Mr. Weinberg doesn’t like the truth. He just moves it.” (48 RT 9550; emphasis added.) That defense counsel Weinberg was personally involved in presenting false 136evidence was a major theme of the state’s closing arguments. Prosecutor Do stated in her ‘opening argument: + “The defense in this case... {t]heir evidence is evidence of convenience. Their version of the truth shifts with whatever direction the wind blows.” (47 RT 9245.) + “Lexpect [Mr. Weinberg} to do with this evidence what he’s done with it all through the trial. Go through the machinations of the truth to avoid it, to change it, to move it from here to here. I mean, this is almost like an inside joke with us because we've seen this moved to here." (47 RT 9276; italics added.) + “[BJut the moment the evidence no longer suits their purpose, the truth, their version of the truth begins to shift.” (47 RT 9296.) Why does the “defense need{] to go through this long process of ‘machinations of truth on this? (47 RT 9297.) In his rebuttal, prosecutor Jackson claimed: + “When the truth doesn’t suit the defense, just move the truth or mask the truth.” (48 RT 9553.) + The defense was an “invention.” (48 RT 9558.) A second principle theme of the prosecution’s closing arguments was that the defense experts gave phony opinions in order to get big pay checks, and that defense 137counsel paid the fees to put on such testimony and divert the jury from the truth. The prosecutors argued: + “You can write a check for $419,000 to hire paid-to-say witnesses to get you ‘out of what you have done.” (47 RT 9234.) + They [defense experts] are willing, for a price, folks, and wait till you get this price, they are willing to come in and say suicide.” (48 RT 9597.) + “How does a homicide become a suicide? You write a big, fat check.” (48 RT 9605.) “Just go out and buy yourself a scientist.” (48 RT 9605.) This was a “pay to say” defense. “You pay it; I'll say it, no matter how ridiculous is.” (Ibid.) + “The total cost to the defense to hide the truth from you folks, a staggering $419,000. Cogitate on that number for just a second. A staggering $419,000 bucks to hide the truth.” (48 RT 9606.) Following prosecutor Jackson’s rebuttal, Mr. Weinberg objected. He argued: “I think we have stepped over the line with his conduct here, Basically, what he is saying is that we paid for false testimony, that the defense paid people to lie. He is accusing me — he is accusing me of buying testimony. ‘That is misconduct.” (48 RT 9606.) The court overruled the objection, stating it was “...a fair inference, that if you pay them enough, 138they will saying anything.” (Id.)* C. — Accusing Attorney Weinberg of Fabricating the Defense by Paying Witnesses to Give False Testimony Was Egregious and Prejudicial Error A prosecutor's final argument to the jury is a critical address, coming as it does from a representative of the People and at an important time in the trial. It "carries great weight and must therefore be reasonably objective. (Citation]." (People v. Pitts (1990) 223 Cal.App.3d 606, 694.) Referring to matters not in evidence is clearly wrong. (People v. Hill (1998) 17 Cal.4th 800, 827-829.) A lawyer cannot use subterfuge to place before a jury matters which it cannot properly consider. (People v, Daggett (1990) 225 Cal.App.3d 751, 759, citing ABA Model Code Prof. Responsibility, EC 7-25.) Baseless arguments that the defense is fabricated may “so infect{] the trial with unfairness as to make the resulting conviction a denial of due process.” (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643.) “A prosecutor commits misconduct if he or she attacks the integrity of defense * Defense counsel replied that the prosecutor was arguing that “we are paying them to say untrue things. Itis flat misconduct.” (48 RT 9606.) The court answered, “that’s not the way I read it but please clear that up. (Jbid.) ‘Then prosecutor Jackson argued that “some” (one) of the defense experts said “some” things that were “pretty truthful.” (48 RT 9607.) But, he added that generally the other defense experts said things helpful to the defense that “do not in any ways, shape, form or fashion fit into the science in this case. You have to ask yourself why.” Then, he answered the question that it was the money they were paid and that this determined “how much credibility you are going to give them.” (RT 9607.) % In violation of the U.S. Constitutional guarantees of the Fourteenth Amendment to due process of law, and article I, sections 7 and 15 of the California Constitution. 139counsel, or casts aspersions on defense counsel.” (Hill, 17 Cal.4th at 832; see also People v. Bain (1971) 5 Cal.3d 839, 845-848 [prejudicial error for prosecutor to accuse defendant's attorney of fabricating evidence]; People v. Herring (1993) 20 Cal.App.4th 1066, 1075-1077 [reversible error to argue defense counsel fabricated defense and suborned perjury].) Personal attacks on the integrity of opposing counsel constitute prosecutorial misconduct. (People v. Bell (1989) 49 Cal.3d 502, 538.) Prosecutor Jackson used his position and status as a public official to argue that he and Ms. Do were entirely truthful in what they said in closing argument — “Our job is to give you the truth” — while Mr. Weinberg’s argument was to be distrusted because he was a fundamentally dishonest person — “Mr. Weinberg doesn’t like the truth, He moves it.” (48 RT 9550.) Jackson made that assertion after misstating and then belittling Mr. Weinberg’s correct explanation of the principle of reasonable doubt. Defense counsel had argued: “I’m not asking you 10 accept hypotheticals, possibilities. We are talking about reasonable conclusions. So, you must accept only reasonable conclusions and reject any that are unreasonable,” (47 RT 9329.) Prosecutor Jackson completely reworked that comment by falsely asserting: “Mr. Weinberg said my job is to give you possibilities,” sarcastically commenting: “That's funny.” (48 RT 9548-9549.) Jackson flatly asserted that the defense experts had been retained and paid large sums of money to testify falsely. “The total cost to the defense to hide the truth from you 140folks, a staggering $419,000... staggering $419,000 bucks to hide the truth.” (48 RT 9606.) Mr. Weinberg’s objection that Jackson had told the jury defense counsel “paid for false testimony, that the defense paid people to lie. He is accusing me — he is accusing me of buying testimony. That is misconduct” was well-taken. (48 RT 9606.) Furthermore, Jackson’s assertion was not based on the record, which certainly had no evidence in it to support the assertion that Mr. Weinberg “doesn't like the truth.” Nor was prosecutor Do's assertion that “this is almost like an inside joke with us because we've seen this moved to here" based on the record evidence. (47 RT 9276; italics added.) Where a prosecutor so refers to facts outside the record during closing argument, “[t]he prosecutor, serving as his own unsworn witness, is beyond the reach of cross- examination.” (People v, Bolton, supra, (1979) 23 Cal.3d 208, 214 n.4.; see also People v. Johnson (1981) 121 Cal.App.3d 94 {prosecutor told the jury he had investigated the case and found the testimony of a defense witness to be an outright lie; because the comment ‘was a statement of the prosecutor's personal knowledge, it amounted to federal constitutional due process error even without objection.) Such misconduct likewise implicates the Confrontation Clause, and the error again requires reversal unless it can be deemed harmless under Chapman, (Douglas v. Alabama (1965) 380 U.S. 415, 419-20); Bolton, 23 Cal.3d at 214, n. 4.) In the first trial, the prosecution was admonished by the court for making such arguments to the jury: “there are two things that I did find some problems with. I do 141believe that in talking about the witnesses you seem to indicate that defense counsel was giving them a story, and that's disparaging counsel, and there's no evidence of that. So either you clean it up, and you say, ‘I made a mistake, or if that's what you think I was saying, I wasn't, or I'll take care of it. It's your choice. One or the other.” (FT RT 11115.) At the retrial, there was also “no evidence” of subornation of perjury but there was no limitation placed by the court on the prosecution, The prosecution's attack on the integrity of counsel was prejudicial misconduct aimed at undermining appellant’s advocate before the jury. D. The Prosecution Committed Misconduct by Castigating Defense Experts for “Pay to Say” Fees Independent of the assault on defense counsel's integrity, it was equally erroneous to argue that the defense experts’ testimony was false based on significant monetary payment. The accusations of witness dishonesty and greed were unsupported, excessive and prejudicial (see, e.g., People v. McGreen (1980) 107 Cal.App.3d 504, 514-519, [reversal in part based upon prosecutor's accusation that a defense expert sold his credentials and was a “habitual and chronic liar"-- even without defense objection); People v. Medina (1990) 51 Cal.3d 870, 895 [citing McGreen, supra at 517, but holding failure to object waived issue on the facts of that case).) While it is fair to ask witnesses about their compensation to show bias (People v. + Overruled on other grounds in People v. Wolcott (1983) 34 Cal.3d 92 142Parson (2008) 44 Cal. 4th 332, 362-363), the line is crossed when the prosecution argues opinions were made up for compensation — the “pay to say theme.” (State v. Smith (N.J. 2001) 167 N.J. 158, 188,770 A.2d 255 [“On this record, we are persuaded that the prosecutor's egregious comments that the defense experts may have ‘shaded their testimony’ in the hope of future employment requires a new trial. We note that the prosecutor’s comments resulted in an immediate objection by defense counsel, followed by an attempted curative instruction”); Sizemore v. Fletcher (6th Cir. 1990) 921 F.2d 667, 671-672 (reversing a state conviction where the prosecutor's argument that the defendant's wealth was used to “buy justice in court... was] calculated to generate a class bias in the jurors’ minds against the defendant.)) ‘The defense experts so lumped together and castigated were eminently qualified and carefully explained the basis for their opinions. 1. Professor Elizabeth Loftus Loftus testified to what professional research says about human memory. This was part of the defense to the recall of Adriano DeSouza about what he heard on the evening in question. Dr. Loftus gave no opinions about the case itself. (45 RT 8810-8940; see particularly 45 RT 8852, 8924.) As the prosecutor asked, she was testifying “to talk about the generalities of memory and certain specifics insofar as certain stimuli that may affect memory or factors that may affect memory.” (45 RT 8852.) But in closing argument, the prosecution characterized the basis for the defense 143offering the Loftus testimony as: “we will find some expert for hire that says confidence and consistency doesn’t matter, so that's why they do. They call in Elizabeth Loftus.” (48 RT 9575.) “She is a gun for hire,” said the prosecutor. (48 RT 9574.) And, the prosecutor continued, the jury would decide the “credibility of a witness, not the defense, certainly not some defense expert who is gun for hire.” (48 RT 9576.) Yet the prosecutor had not asked Loftus how much she was compensated. 2. Dr. Richard Seiden Dr. Seiden, a psychologist and former professor at U.C. Berkeley, specializes in the study of suicide. (42 RT 8230.) He testified that, given the state of the evidence concerning Ms. Clarkson, her depression and hopelessness, unresolved and ongoing aleohol and drug abuse issues, financial setbacks and difficulties, loss of a primary relationship, career disappointments and setbacks, debilitating injury and chronic pain, and tendency to impulsivity (43 RT 8326-30, 44 RT 8652), suicide could not be ruled out. (43 RT 8330.) For that, he was dismissed by the prosecutor as never making a medical diagnosis and not ruling out homicide. (48 RT 9594.) No such opinions were proffered because the court early on ruled that Dr. Seiden could not testify that Clarkson committed suicide. (28 RT 5569.) It is misconduct to argue the lack of defense evidence when the prosecutor successfully excluded it outside the jury's presence. (People v. Varona (1983) 143 Cal. App.3d 566; People v. Castain (1981) 122 Cal. App.3d 138; People v. Hernandez (1977) 70 Cal.App.3d 271, 279-280.) 144,Dr. Seiden was, the prosecutor argued to the jury, being asked to “make a judgment to help the defense, and he was paid for his time, and he did cash the check." (48 RT 9594.) Dr. Seiden testified he was paid “approximately $6,000" in addition to billing for his time spent testifying in Los Angeles. (42 RT 8239 see also 43 RT 8341-8342.) Notably, no one was called by the prosecution to refute either Loftus’s or Seiden’s opinions. Nor was there the slightest evidence that either rendered their opinions based on money rather than professional research and experience. 3. Stuart James and Jim Pex The testimony of Stuart James, a highly respected blood spatter expert, demonstrates the dishonesty of the prosecution's claim that experts retained and paid by the defense were by that fact inherently dishonest and unworthy of credibility. James rendered scientific opinions that were in some respects helpful to the prosecution. Both prosecutors repeatedly relied on certain of James’ findings in their closing arguments. (47 RT 9264-9266, 48 RT 9562, 9566-9568.) James Pex is a board certified forensic scientist, member of the International Association of Bloodstain Pattern Analysts since 1980, author of articles on blood spatter including one with Hurley and Vaughn entitled "High Velocity Back Spatter on Shirt Sleeves.” (36 RT 6948-6850.) He testified that an examination of appellant's white jacket showed no spatter below the elbow and that this finding is inconsistent with appellant having shot Clarkson as one would see spatter on the sleeve if he fired the weapon. (36 145RT 6987-6988, 6996.) Pex testified there would not have been blood on the grip of the gun if it were held in the conventional manner, but if the gun were being held by Clarkson, the portions of the gun that show blood (the front of the grip) would be available for deposits of blood. (36 RT 7003-7004.) He referenced several Sheriff's photos to make the point. (36 RT 7014.) Blood spatter on the grip is one of the differentiating factors between a suicide and a homicide. (36 RT 7018.) He then testified to experiments he did with a Colt Cobra to illustrate the above points. (36 RT 7019-7028.) For his work in the two trials, he stated he charged $66,829.53. (37 RT 7094.)®* 4. Dr. Werner Spitz and Dr. Vincent DiMaio Spitz and DiMaio are leaders in the field of pathology, having authored authoritative texts, and each has testified for both sides in criminal cases. There was nothing during the cross-examination remotely suggesting they fabricated their testimony or that they were motivated to lie for money, as was argued by the prosecution. (48 RT 9597, 9605) Indeed, the prosecution experts could dispute little of the substance of what the defense experts said was true: (a) that 99% of interoral shootings are suicides; % On several photos in his demonstration, the prosecution argued that they were taken in September 2008 when Pex was working with a Smith & Wesson rather than in October 2008 when Pex used a Colt Cobra in experiments. From this, the prosecution argued that Pex “lied” about the photos he used in his Powerpoint demonstration. (48 RT 9553.) The defense argued Pex simply mistakenly added several photos from his September work. (47 RT 9361.) 146(b) that the impact blood spatter on the front edge of the gun grip would be inconsistent with appellant holding it in Clarkson's mouth as his fingers would cover it (Dr. Herold said she saw the blood there not as spatter but rather smeared blood); (©) that there was absence of GSR and blood spatter on appellant's jacket and shirt sleeves; (d) that the physical evidence was consistent with Clarkson shooting herself; and (e) that Clarkson wrote despairing emails in 2002 decrying her financial condi health, employment, and love life. Yet, the prosecutor argued that Di Maio and Spitz and others gave testimony that does “not in any way shape, form or fashion fit into the science in this case. You have to ask yourself why.” (48 RT 9607.) He continued: “How much credibility are you going to give the science experts when they have been paid this kind of money.” (Id.) Prosecutor Jackson’s assertion that prosecutors always seek the truth when they present forensic evidence but defense counsel who challenge that evidence with experts of their own are inherently dishonest was nothing short of an assault on our adversary system of justice. E. Reversal is Required Ina hotly contested trial, as this was, and because appellant’s guilt depended in large part on which experts the jury believed, the prosecution’s arguments improperly swayed the jury and denied appellant a fair tial. As our Supreme Court observed in 147reversing another murder conviction from the Los Angeles Superior Court due to prosecutorial misconduct in closing argument, such comments are worthless as a matter of law, but can be “dynamite” to the jury because of the special regard it has for the prosecutor. (People v. Hill, supra, 17 Cal. 4th 828.) Cumulatively, these instances of misconduct deprived appellant of his right to a fair trial under due process clause of the 14th Amendment. (Taylor v. Kentucky (1978) 436 U.S. 478, 488 n. 15 [“the cumulative effect of the potentially damaging circumstances of this case violated the due process guarantee of fundamental fairness"); People v. Bell (1989) 49 Cal.3d 502, 532-34 [In determining whether instances of misconduct implicating the Confrontation Clause require reversal under Chapman, the reviewing court must consider their cumulative impact.J; Hill, 17 Cal Ath at 844-848 {cumulative effect under state standard].) Reversal is required, " 7 7 " u 148,CONCLUSION For the reasons stated, this Court should reverse appellant Spector's conviction and remand for a new trial Dated: March 3, 2010 By: Respectfully submitted, DENNIS P. RIORDAN DONALD M. HORGAN RIORDAN & HORGAN CHARLES SEVILLA Attorneys for Appellant PHILLIP SPECTOR 149CERTIFICATE OF COMPLIANCE 1, Dennis P. Riordan, hereby certify that the attached brief is proportionately spaced, has a typeface of 13 points, and contains 39,306 words. Dated: March 3, 2010PROOF OF SERVICE BY MAIL -- 1013(a), 2015.5 C.C.P. 1am a citizen of the United States; my business address is 523 Octavia Street, San Francisco, California 94102. I am employed in the City and County of San Francisco, where this mailing occurs; I am over the age of eighteen years and not a party to the within cause, I served the within: APPELLANT’S OPENING BRIEF on the following person(s) on the date set forth below, by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States Post Office mail box at San Francisco, California, addressed as follows: Edmund G. Brown, Jr. Clerk of the Superior Court Attorney General’ County of Los Angeles 300 South Spring Street 210 W. Temple Street Los Angeles, CA 90013 Los Angeles, CA 90012 Alan Jackson Phillip Spector #663408 Truc T. Do E-4-126L Deputy District Attorneys California Substance Abuse 210 W. Temple Street, Room 18-709 ‘Treatment Facility Los Angeles, CA 90012 P.O. Box 5242 Corcoran, CA 93212 [x] BY MAIL: By depositing said envelope, with postage thereon fully prepaid, in the United States mail in San Francisco, California, addressed to said party(ies); and L] BY PERSONAL SERVICE: By causing said envelope to be personally served on said party(ies), as follows: []FEDEX [ ] HAND DELIVERY [] BY FAX I certify or declare under penalty of perjury that the foregoing is true and correct. Executed on March 3, 2010 in Francisco, California.