People v. Houston (130 Cal. App. 4th 279, 2005)

Opinion

LAMBDEN, J.

Raymond Houston (appellant) appeals his conviction for second degree murder with a weapon of his estranged wife, Lucille Houston (Houston), for which the trial court sentenced him to a term of 40 years to life in prison. Appellant contends that the trial court violated his constitutional rights by admitting into evidence Houston’s previous statements to police and hospital personnel about appellant’s acts of domestic violence against her; erred in refusing to exclude certain DNA evidence; committed prejudicial error by admitting purportedly improper “bad character” evidence regarding appellant’s extramarital affairs; and should have allowed him an evidentiary hearing to develop purported facts of spectator misconduct that supposedly tainted the jury. Appellant contends that his conviction must be reversed and a new trial granted or, in the alternative, that the matter must be remanded for an evidentiary hearing regarding the purported spectator misconduct. For the reasons stated post, we affirm appellant’s conviction.

BACKGROUND

I. Factual Background

On November 23, 2001, Houston’s friends contacted the police and appellant after Houston had failed to pick up an out-of-town visitor at the airport on November 21, 2001, appear with appellant at a friend’s house on November 22, 2001, for Thanksgiving dinner, or call her mother on her mother’s birthday. Houston, a photojoumalist for the San Jose Mercury News, was married to appellant since 1998. In June 2001, she had moved out of their jointly owned house on Fresno Street in Oakland and filed for divorce.

Appellant met with Houston’s friends and the police on November 23, 2001. There was testimony that he claimed at that time that Houston had stayed with him overnight at the Fresno Street house on November 20, 2001; that he had moved her car into his garage Tuesday night so she could remove camera equipment to make room for the luggage of her out-of-town visitor; that he had left her at the house early the following morning, November 21, 2001, to go to his workplace in Alameda; that Houston had planned, among other things, to pick up her friend at the airport and later meet him around noon at his workplace to have documents notarized transferring appellant’s ownership interest in the Fresno Street house to Houston; that they had planned to attend the Thanksgiving dinner together the next day; and that she did not appear at his workplace and had not contacted him since. Appellant said Houston had told him she was going to pick up her friend at the airport around 9:00 a.m. or 9:30 a.m., a time he later recalled to be 11:00 a.m. or 11:30 a.m. Appellant also claimed that he had tried to attend the Thanksgiving dinner, but could not find the friend’s house, although he had been there before and the friend was listed in the phonebook. Appellant said that he had tried to reach Houston by telephone. He allowed police to look through the house, but nothing was found relating to Houston.

Appellant gave a written witness statement to police later in the early morning of November 24, 2001, which was prepared by an interviewing officer and signed by appellant. He recited much of what he had said earlier, stating that he left Houston alive at the Fresno Street house when he left for work between 6:30 and 6:40 a.m. on the morning of November 21, 2001, and that “[i]t is very unlike Lucille to be missing. She has good physical and mental conditions and has never done anything like this before. I have no idea where Lucille could have gone.” The interviewing officer testified at trial that appellant did not indicate at the time that anyone else had access to the house.

On November 25, 2001, Lucille Houston’s body was found under a blue tarp on the backseat of her car, clad in underpants only, parked on a street within about 15 minutes’ walking distance of the Fresno Street house. The pathologist who performed an autopsy testified that Houston was killed by gunshots to her abdomen and head. Police recovered a bullet from Houston’s brain, but the bullet that caused the wound to Houston’s abdomen had passed through her body and was not found in the car. Police also found an envelope in the backseat pocket of the driver’s area containing documents which contemplated appellant’s transfer of his interest in the Fresno Street house to Houston.

Police searched the Fresno Street house again after they found Houston’s body. An investigator noticed a recently plastered area of one wall about 39 inches off the ground behind a coat rack in appellant’s upstairs bedroom. Inside the wall, police found a bullet. An experienced police forensic biologist extracted material from the bullet and found traces of what almost certainly was Houston’s DNA; she testified that only one in 635 billion people would be a DNA match. A police firearms expert conducted an extensive analysis of the bullets recovered from Houston’s brain and from appellant’s bedroom wall and concluded that they were fired from the same gun, a .380 automatic.

Police found other relevant physical evidence in the Fresno Street house. They concluded from their examination of a box spring in appellant’s bedroom that a bullet had passed through it, with the “entry” hole approximately 37 inches and “exit” hole about 39 inches above the ground when the box spring was placed on edge. They also found numerous unidentifiable fingerprints in the house, no blood evidence, cleaning supplies, and a container of joint compound.

The police did not find any of Houston’s personal effects at the Fresno Street house. They searched the hotel room where Houston had been staying, and found such things as her toiletries, cosmetics, clothes, and inhaler there.

Appellant was subsequently arrested and, by information filed on May 2, 2002, charged with murdering Houston sometime between November 20 and 25, 2001, in violation of Penal Code section 187, and with using a firearm in violation of Penal Code sections 12022.53, subdivisions (c) and (d), 1203.06, subdivision (a)(1) and 12022.5, subdivision (a)(1). Appellant pled not guilty and denied the enhancements.

II. Relevant Pretrial Motions

Prior to trial, the parties debated several relevant motions regarding evidence, which are addressed further in the discussion section, post. First, respondent sought to have admitted, and appellant sought to exclude, Houston’s hearsay statements regarding two prior incidents of domestic violence involving appellant. Houston had made statements to the police and hospital personnel that appellant had attacked her on June 22, 2001, in a fight at the Fresno Street house, pulling out some of her hair and injuring her finger, after Houston told him she wanted a divorce because she could not understand why he stayed out all night. Respondent also sought admission, and appellant the exclusion, of Houston’s statement to police about an August 2001 incident, in which she stated that appellant had argued with her about the disposition of the Fresno Street house in their divorce and then kicked out her car window. The court allowed all of the evidence to be admitted.

Second, appellant moved to exclude evidence of Houston’s DNA that police had extracted from the bullet found in the wall of appellant’s bedroom. Appellant contended that the police had “digested” the entire bullet to extract DNA from the bullet, and thereby made it impossible for appellant to determine the reliability of the police’s extraction methods. Respondent contended that under the circumstances of their investigation at the time, the police acted appropriately and without any intent to unnecessarily destroy evidence. The court denied appellant’s motion.

Third, the parties debated the admissibility of testimony from two witnesses, W.M. and S.P., who each testified at trial that she had had an affair with appellant during appellant’s marriage to Houston. Respondent moved to introduce S.P.’s testimony of her dealings with appellant, which at trial included appellant’s promises, before Houston’s death, to marry her and, later, to provide financial support for a baby they had conceived together. Respondent contended that this testimony was relevant to show appellant’s deceitfulness, arguing that appellant had been stringing S.P. along in the same manner that he had deceived Houston about selling his interest in the house to her. The court granted this motion.

Respondent moved to introduce testimony by W.M. that appellant made comments indicating he was possessive about his house in August of 2001. The court, after cautioning respondent about the possible undue prejudice that could result from extended testimony about appellant’s extramarital affairs, granted this motion as well.

Finally, the parties debated whether respondent would be allowed to ask S.P. and W.M. if appellant told them he was married during their affairs. Appellant contended such testimony would be prejudicial, while respondent contended it was relevant to the credibility of both appellant and of S.P. and W.M. The court, agreeing with respondent, allowed the line of questioning.

III. The Trial of Appellant

A. Respondent’s Evidence

Respondent presented the testimony and evidence discussed above. Witnesses also testified about suspicious statements and actions by appellant after Houston’s disappearance. For example, appellant did not respond to a telephone message on November 22, 2001, from the hostess of the Thanksgiving dinner expressing concern about Houston’s whereabouts; sought the advice of counsel before signing his witness statement for police; did not join in efforts to publicize Houston’s disappearance organized by Houston’s friends; abruptly volunteered to police that a blue tarp was missing from his backyard while discussing Houston’s disappearance with them; and misled a work dispatcher on November 24, 2001, about his whereabouts when told the police were “looking” for him because, a coworker testified, appellant said at the time that he feared arrest.

Respondent also presented evidence which indicated that appellant and Houston had engaged in difficult negotiations regarding the disposition of the Fresno Street house in their divorce. At the time of her disappearance, Houston had been urging appellant for some time to transfer his interest in the house to her so that she could refinance the property and use part of the funds obtained to pay appellant for his interest. A loan officer and escrow assistant testified, and their testimony together was that Houston had qualified for a loan, and had been given an interspousal deed for appellant’s signature in October 2001. Although Houston said that appellant had told her he had sent the deed back to the loan company in October, the company had not received the document, and the loan documents subsequently had expired. A few days before Houston’s disappearance, the loan company had sent new documents by overnight delivery to Houston for signing, and made an appointment with Houston to meet at 12:45 p.m. on November 21, 2001, but Houston did not show up. A friend of Houston’s testified that Houston told her that appellant would not sign the papers.

Three of appellant’s co workers also testified on respondent’s behalf. One coworker testified that a few days after Houston’s disappearance, on Saturday, November 24, 2001, appellant told her that he had argued with Houston when she stayed over at his house, and that he previously had tom up a quitclaim deed that he had signed because Houston had been unable to pay him for his interest. Appellant said Houston was supposed to have met him at his workplace to have documents notarized on November 21, 2001, but that he had told Houston “that she might as well not show up if she didn’t bring some proof that she had gotten financing for the house, a contract or a loan, some proof that she could pay him for his—for the house, that she might as well just not show up.” Appellant told the coworker that Houston had called him a “motherfucker” in reply. He then told the coworker “something like, bitch thinks she can play me. Bitch thinks she can bum me, something indicating that he felt that Lucy could get away with doing this, not paying for the house.” The coworker also testified that appellant had told her in earlier conversations “[t]hat it was his house and she wasn’t going to get his house.”

A second coworker, a notary, testified that she had notarized a transfer deed that appellant signed before her on October 26, 2001, but that she had no discussions with him about notarizing documents on November 21, 2001.

A third coworker recalled that before Houston’s death, appellant told him he owned guns, including a .380 automatic specifically.

Respondent also presented phone records showing the last call from Houston’s cell phone was at 6:17 p.m. on November 20, 2001. A witness, Barry, testified that he and Houston were platonic friends, and spoke by telephone at that time. Other telephone records showed that appellant’s cell phone voice mail was accessed between 2:00 a.m. and 3:00 a.m. on the morning of November 21, 2001.

Respondent also presented testimony about the June and August 2001 incidents of violence between appellant and Houston. The police officer who took Houston’s June 2001 statement testified that, independent of Houston’s statement, it appeared to him that a portion of Houston’s hair had been pulled out of her head and that there was blood on her ear.

Two witnesses testified about the August 2001 incident as well. Appellant’s neighbor testified, that she saw appellant and Houston in front of their house on the day in question, heard appellant say, “[B]itch, you go get some keys from the other nigga,” then appear to try to hit Houston, after which Houston ran to her car. She then saw appellant, looking angry, kick out a window on the driver’s side of Houston’s car. Houston’s supervisor at the San Jose Mercury News also testified that Houston called her in August 2001 and told her appellant had broken out a window in her company car, and that she wanted her car and cell phone changed so that appellant would not be able to contact her or find her.

W.M. and S.P. testified about their affairs with appellant. S.P. testified that her involvement with appellant began in 2000, and W.M. testified that her involvement with him began in the spring of 2001. Each woman testified that appellant did not tell her that he was married.

B. Appellant’s Evidence

Appellant’s defense relied heavily on a witness who testified that she saw a man by Houston’s parked car outside her home sometime between 6:30 a.m. and 7:00 a.m. on the morning of November 21, 2001. The witness initially told police on November 25, 2001, when Houston’s body was discovered in the car’s backseat, that she looked outside a window of her house early in the morning of November 21 and saw a black man who was “32 or 33 years old, about 6 [feet] 1 [inch] or 6 [feet] 2 [inches] and really thin, and maybe 150 pounds” emerging from Houston’s car. She indicated at trial that he was “lanky,” meaning “thin at the bottom, more broad at the top.” The man’s description of height and build apparently did not match that of appellant in 2001.

The witness acknowledged at trial that her recollections had changed significantly over time and that she had misled authorities in some of her accounts. She initially gave a written statement to police on November 25, 2001, then gave a recorded statement a few days later, and subsequently discussed the matter with appellant’s investigator on August 2, 2003. In her recorded statement, she indicated the man was older than her original description, stating he was in his late 30’s or early 40’s, and later told appellant’s investigator that the man was upward of 48 years old. At trial, she recalled a man of about 40 who was lanky, and who “looked as if he were locking a car. He did not drive up in the car.” She was inconsistent in her accounts about the time she saw the man and whether the sun had been shining. She admitted at trial that she had misled police about whether the sun was out in her written statement because she had wanted to get them out of her house, that she had not really read what the police had prepared from her comments before she signed it, and that she had previously lied to a prosecutor about whether or not she saw the man shut the car door because she did not want to appear in court. She also testified that she did not think she could identify the man she saw.

Appellant also relied on the testimony of two coworkers to contend that he was at work around the same time that this witness saw a man by Houston’s parked car on the morning of November 21, 2001. One coworker testified that he saw appellant with a bloody nose in a bathroom at his Alameda workplace at 6:50 a.m. one morning. However, the coworker’s testimony indicated he was less than certain whether he saw appellant on Tuesday, November 20, or Wednesday, November 21, 2001. When he was asked about the date, he testified that he had said in a recorded statement to police that it was Tuesday, but that it came out Wednesday because of a scratch in the tape. “I thought it was Tuesday. To the best of my knowledge I thought it was Tuesday. It could have been Wednesday. I can’t say for sure.” When pressed by appellant’s trial counsel about the transcript of his remarks, he stated, “If Wednesday is what I said, then that’s what I’ll have to go with,” and he did not argue with counsel’s representation that the interviewing officers’ notes also referred to Wednesday. The second coworker recalled appellant telling him by walkie-talkie at around 7:20 a.m. on Wednesday morning that appellant was returning to the yard from the field.

Appellant testified at trial as well, regarding many of the subjects raised by the prosecution. He denied killing Houston. He claimed to have substantial cleaning supplies in the house because a neighbor who worked for the Clorox Company had provided them to him, and to have previously plastered another wall in the house. He acknowledged having fights with Houston in June and August 2001, but downplayed each incident, contending, for example, that his actions in the June fight were the result of her violence towards him and suggesting that only extensions in her hair had come out.

Appellant testified that Houston had stayed the night with him on November 20, suggested that Houston had checked his voice mail in the middle of the night while he slept, and stated that he left her asleep in bed at around 6:25 a.m. or 6:30 a.m. on the morning of November 21, 2001. He testified that he did not worry about Houston when she failed to appear at his workplace on November 21, 2001, thinking she was “doing female, girlie things,” and remained relatively unconcerned after her friends and police contacted him on November 23, 2001, because he “just thought she was wherever. Maybe she was with her boyfriend.”

Appellant testified that Houston had been involved with two different lovers during their marriage. First, he testified that she had been involved with Barry, the witness who had testified about his November 20 telephone call with Houston. Appellant also testified that at the time of her death, Houston was lovers with a tall, thin, middle-aged African-American drug dealer named “Jesse.” Appellant testified that he had been friendly with Jesse at one time, stating, for example, that he had been to his apartment and went to a picnic for a company where Jesse worked. He stated that after Jesse became involved with Houston, Jesse threatened him over the telephone when appellant told him not to call his house, and that Jesse continued to call and threaten him after Houston had moved out. Appellant’s testimony about Jesse was lacking in many details; for example, appellant never provided any specific address for Jesse, nor could he recall the name of the company that held the picnic, or even Jesse’s last name. Other than appellant’s own testimony, neither appellant nor respondent presented any evidence showing that Jesse actually existed.

Appellant claimed in direct examination that he initially told police “maybe you ought to check with her boyfriend.” On cross-examination, he said that he did not bring up Jesse until after he had learned of the witness’s report to police that she had seen a man of Jesse’s description emerge from Houston’s car in the early morning of November 21, 2001. After he was asked if he had testified on direct that he told police about Jesse, appellant claimed that he “probably did” tell police. Appellant claimed that Houston told him on November 20, 2001, the night she stayed with him at the Fresno Street house, that she had quarreled with Jesse earlier that day. He also contended that Jesse had keys to the house, and that he told police on November 23, 2001, that when he returned home on November 21, he noticed that, unlike normal, his house alarm was off and two-by-fours that typically secured the garage door were not in place.

Appellant denied telling his coworker soon after Houston’s disappearance that he had previously tom up a grant deed transferring his interest in the house to Houston, contending instead that he signed and gave it back to Houston in late October 2001, who mailed them to the loan company, but that she later told him the loan company reported that it had not received them. He testified that he was ready to sign over his interest to Houston again on November 21, 2001, and that Houston told him she would give him a check for an agreed-to buy-out price of $38,000, and a contract indicating she would pay him an additional $2,000 over the next year.

Appellant also denied telling another coworker that he owned a .380 automatic, and stated that he lied to other people that he owned a gun. He also testified that he misled his work dispatcher about his whereabouts on November 24, 2001, because the dispatcher had said the police were going to arrest him.

Appellant testified that he told S.P. and W.M. that he was married. He contended that, contrary to S.P.’s testimony, she told him her child was -not his, and that, regardless, any demands for child support would not have put him under financial pressure because he held significant assets.

Appellant testified that he loved his wife, and that they continued to have a relationship up to the time that she was killed. He testified about notes he said he gave to Houston in the months before her death in which he expressed his love, declared that he was her “dream come true,” offered to move out of the house, and referred to her “new bitch man,” a reference appellant testified was intended to refer to Jesse rather than Barry.

After appellant’s representations about his marriage to Houston, respondent sought to cross-examine appellant regarding other extramarital affairs. After appellant at first stated he had only engaged in two affairs, he acknowledged two others. Appellant’s counsel objected that the line of inquiry was not relevant and constituted improper character evidence. The trial court overruled his objections, and admonished the jury that the evidence of these two additional affairs should be considered only regarding the issue of appellant’s credibility, and not his propensity to have murdered Houston.

The court also allowed respondent to ask appellant if he had had sex with W.M. in his house, and if several other women that respondent identified by name had been in the house after appellant’s separation from Houston. Appellant’s counsel objected that the testimony was inadmissible pursuant to Evidence Code section 352, but the court allowed the line of questioning to be admitted into evidence.

C. Closing Arguments

Respondent’s counsel opened his closing argument to the jury with a reference to the evidence from Houston’s June 2001 police report, then moved to a lengthy discussion of the substantial circumstantial evidence that supported the conclusion that appellant killed Houston. He wove together numerous facts and physical evidence, such as the bullet found in the wall of appellant’s upstairs bedroom at the Fresno Street house, to argue that appellant had shot and killed Houston in his bedroom on the evening of November 20, 2001, sometime after she arrived to attempt to persuade him to sign over his interest in the house to her, moved Houston’s car into his garage, wrapped the body in a blue tarp from his backyard, and removed it from the house. Respondent argued that if someone other than appellant had killed Houston in the house, they would have no incentive to remove her body from the premises in order to cover up their crime; only if a person lived in the house would they feel compelled to do so. Respondent argued “that [Houston] was killed there . . . and that the crime scene was covered up and the defendant is the only one with a motive to cover up the crime scene, that evidence alone is sufficient to prove to you beyond a reasonable doubt that this defendant killed his wife.”

Respondent’s counsel next contended that appellant had told numerous lies, and pointed to inconsistencies in appellant’s statements and testimony, including regarding his claimed failure to find the friend’s house on Thanksgiving; his ignorance about what time Houston was to pick up her friend at the airport; inconsistent statements about when he had moved Houston’s car into his garage; his abrupt reference to his missing blue tarp; his misrepresentation about his whereabouts to police on November 24, 2001; and his statements before Houston’s death that he owned a gun.

Respondent’s counsel then detailed the evidence of Houston’s efforts to persuade appellant to sign over his interest in the house to her, and appellant’s statements to his coworker after her disappearance that he had argued with Houston about the house and said words to the effect that “The bitch wants to take my house.” Respondent argued that appellant was deleting possibly incriminating telephone messages from Houston about the house from his voice mail in the early morning hours of November 21, 2001.

After this lengthy presentation, respondent’s counsel referred to the disputed evidence of appellant’s prior acts of violence against Houston to argue further that appellant was inclined to use violence against Houston and had a motive for killing her. Respondent’s counsel argued, “This house buyout was the thing that set him off. He had his disposition to commit violence against [Houston] which when she tried to stand up for herself and assert herself. [Sic.] This is evidence that proves to you beyond a reasonable doubt that this defendant shot and killed Lucy Houston.”

Appellant’s trial counsel argued that respondent’s case was a weak circumstantial evidence case and that the evidence, particularly the testimony of the witness who looked outside her home on the morning of November 21, 2001, and saw a tall, thin man by Houston’s car, pointed to Jesse as the killer. He argued: “So, what I’m saying is that, there, she was in the brightness of the early morning sun, and she saw this individual. End of the case, ladies and gentlemen of the jury. End of the case. [][] Since it’s purely circumstantial, since she obviously saw someone completely different, how can any objective, neutral, fair, just jury find my client guilty? End of the case.”

Appellant’s trial counsel contended that the evidence of appellant’s prior acts of violence against Houston was the “centerpiece” of the prosecution’s case. He discussed the incidents in some detail, using appellant’s own testimony to argue that the June 2001 incident was a “reciprocal” fight and the August 2001 kicking out of the car window not direct violence against Houston.

Appellant’s trial counsel offered various explanations for appellant’s actions and statements. For example, he defended appellant’s statements that he did not really own a gun, pointing out that no one had ever seen one owned by him, and argued that Jesse, as a drug dealer, would be much more likely to have one. He did not contest that appellant was upset about Houston’s failure to assure him payment for his interest in the house, but insisted that appellant’s instincts were “valid.” He argued it was reasonable for appellant to want to consult with a lawyer before signing a police statement under the circumstances and that appellant had cooperated fully with police efforts to search his house. He pointed out that the police did not discover the patched portion of the bedroom wall the first time they looked through the house on November 23, 2001. Suggesting that Houston was killed elsewhere, he contended that it was “an overwhelming probability” that Jesse framed appellant by using his keys to enter the Fresno Street house while appellant was at work, putting a hole in the upstairs bedroom wall, planting a bullet there, and patching up the wall, all with the confidence that the police would find Houston’s body and return to search the house again.

In his rebuttal, respondent’s counsel pointed out the inconsistencies in the statements by the witness who saw a tall, lanky man by Houston’s car on November 21, 2001; the evidence of numerous lies and inconsistencies in appellant’s statements, actions and testimony; and the absence of any evidence besides appellant’s own unconvincing testimony that Jesse actually existed.

D. Jury Deliberations and Verdict

In the course of discussing jury instructions, the parties revisited their differences over the evidence of appellant’s extramarital affairs. The court expressed its own concerns that the use of these affairs not be used to show appellant was a “person of immoral character,” and explained that it had allowed in the evidence regarding appellant’s affairs with W.M. and S.P. as relevant to motive, and the evidence of other women being in the Fresno Street house as relevant to the fingerprints found in appellant’s upstairs bedroom. The court provided the jury with an instruction so limiting the jury’s consideration of this evidence.

On October 23, 2003, after deliberations that occurred over the course of four different days, the jury returned with their verdict. They found appellant guilty of the second degree murder of Houston, and that he used a weapon in violation of Penal Code section 12022.53, subdivision (d).

E. Motion for Hearing; Verdict; Appeal

After the jury’s verdict, appellant moved for an evidentiary hearing to establish grounds to move for a new trial based on purported spectator misconduct, namely the wearing of buttons and placards bearing Houston’s likeness by certain spectators during the trial. At the hearing on this motion, a button and placard were admitted as exhibits, with the parties agreeing that the button was two and one-quarter inches in diameter and the placard about three inches wide and four and one-half inches long. The trial court denied appellant’s request, stating that the buttons and placards were merely an “innocent means of remembrance” of Houston, that he had twice admonished the jury not to consider them, that no misconduct had occurred, and that even if it had, “it wasn’t of such a character as to prejudice the defendant or influence the verdict in this case.”

On December 12, 2003, appellant was sentenced to a term of 40 years to life, which consisted of 15 years to life for the murder conviction and 25 years to life for the weapon use. He was also ordered to pay restitution and credited with days in custody. Appellant filed a timely notice of appeal on December 24, 2003.

DISCUSSION

I. Houston’s Statements About Appellant’s Violent Acts in June and August 2001

Appellant contends that his federal constitutional rights to due process, confrontation and cross-examination were violated because Houston’s June and August 2001 hearsay statements to police and hospital personnel that appellant had attacked her were testimonial in nature and, therefore, should have been excluded from the evidence pursuant to the United States Supreme Court’s recent decision, Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177, 124 S.Ct. 1354] (Crawford). Respondent contends that Houston’s statements were not testimonial pursuant to the interpretation of Crawford discussed in People v. Cage (2004) 120 Cal.App.4th 770 [15 Cal.Rptr.3d 846], review granted October 13, 2004, S127344 (Cage), and that, regardless of their admissibility, any error was harmless and, therefore, not grounds for reversal pursuant to Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824], Since the parties submitted their appellate briefs in this matter, our Supreme Court has granted review of Cage and several other recent cases addressing what statements are and are not “testimonial,” presumably to establish a clear definition of what is “testimonial” pursuant to Crawford. We do not need to determine here whether or not Houston’s statements were testimonial in nature, however, because even if they were erroneously admitted, it was a harmless error in light of the overwhelming evidence of appellant’s guilt and the cumulative nature of the evidence involved.

At the time of trial in this matter, constitutional inquiries regarding the admissibility of hearsay evidence were governed by Ohio v. Roberts (1980) 448 U.S. 56 [65 L.Ed.2d 597, 100 S.Ct. 2531], which allowed the admission of certain hearsay based upon a judicial determination of its reliability. (Id. at p. 66.) However, the Supreme Court overruled Ohio v. Roberts, supra, 448 U.S. 56, in Crawford, supra, 541 U.S. at pages 61-68 [158 L.Ed.2d at pp. 199-203], The Crawford court held that, pursuant to the confrontation clause of the Sixth Amendment of the United States Constitution, a hearsay statement that is “testimonial” in nature cannot be used against a criminal defendant unless the declarant is available to testify at trial or has been available previously for defendant’s cross-examination, regardless of a judicial determination about its reliability. (Crawford, supra, 541 U.S. at pp. 61-68.) The court left “for another day any effort to spell out a comprehensive definition of ‘testimonial.’ ” (Id. at p. 203.)

We need not determine the constitutional issues raised by appellant, however, if any claimed error by the trial court in admitting Houston’s statements was harmless beyond a reasonable doubt, pursuant to Chapman v. California, supra, 386 U.S. at page 24. (People v. Jenkins (2000) 22 Cal.4th 900, 1015-1016 [95 Cal.Rptr.2d 377, 997 P.2d 1044] [finding it unnecessary to examine a “complex constitutional question” because there was harmless error].) “Under that test, ‘we must determine on the basis of “our own reading of the record and on what seems to us to have been the probable impact... on the minds of the average jury,” [citation], whether [the hearsay was] sufficiently prejudicial to [defendant] as to require reversal.’ [Citations.]” (People v. Anderson (1987) 43 Cal.3d 1104, 1128 [240 Cal.Rptr. 585, 742 P.2d 1306].) The admission of cumulative evidence, particularly evidence that is tangentially relevant to establishing a defendant’s guilt, has been found to be harmless error. {People v. Jenkins, supra, 22 Cal.4th at pp. 1015-1016.) Even when confessions are involved, “if the properly admitted evidence is overwhelming and the . . . extrajudicial statement is merely cumulative of other direct evidence, the error will be deemed harmless.” (People v. Anderson, supra, 43 Cal.3d at p. 1129.)

A. There Was Overwhelming Evidence of Appellant’s Guilt

The record here indicates that, regardless of Houston’s June and August 2001 statements, there was overwhelming evidence that appellant murdered Houston, including that:

(1) Appellant and Houston had separated several months before her death and were in the process of divorcing.

(2) The two were arguing over the disposition of the Fresno Street house in their divorce, a house which appellant was possessive about and which remained his home.

(3) Appellant and Houston met at the Fresno Street house on the evening of November 20, 2001, and argued bitterly over the house.

(4) No one other than appellant reported seeing or hearing from Houston after November 20, 2001.

(5) Appellant reported that he had moved Houston’s car into his garage sometime on the evening of November 20, or in the early morning of November 21, 2001.

(6) A witness saw Houston’s car parked outside the witness’s home on the street, within walking distance of the Fresno Street house, sometime between 6:30 and 7:00 a.m. on November 21, 2001, where police later discovered it.

(7) Houston’s body was found on November 25, 2001, in the backseat of her car, mutilated by two gunshot wounds and containing a bullet from a .380 automatic, covered by a blue tarp, and an envelope containing real estate documents sent to Houston for appellant’s execution was found in the backseat pocket of the driver’s area.

(8) Police subsequently found a bullet inside a concealed, recently plastered area of a wall in appellant’s bedroom, as well as a box spring in the bedroom that was damaged in a manner consistent with a bullet passing through it.

(9) A police firearms expert concluded from an extensive examination of the bullet recovered from Houston’s brain and the bullet removed from appellant’s bedroom wall that they were fired from the same gun, a .380 automatic.

(10) Police found joint compound and cleaning supplies in the Fresno Street house.

(11) Appellant did not report that anything was amiss inside the house before the police discovered the incriminating physical evidence discussed herein, and the house did not show signs of Houston having been there.

(12) Appellant’s actions and statements in the days after Houston’s disappearance were highly suspicious, including that although appellant contended that Houston failed to meet him as planned on November 21 and 22, 2001, he made no corroborated effort to find Houston or tell others that she was missing.

(13) During Houston’s disappearance, appellant misled the police about his whereabouts because, as he told a coworker, he was afraid he would be arrested, and consulted with an attorney before signing a police witness statement, although evidence of a crime had not yet been discovered.

(14) During Houston’s disappearance, appellant volunteered abruptly to police that a blue tarp was missing from his backyard.

(15) Prior to Houston’s disappearance, appellant told a coworker that he owned a .380 automatic.

(16) Appellant had engaged in violent acts against Houston within months of her death, fighting with her in June 2001 just prior to their separation and kicking in her car window in August 2001.

Appellant did not present anything credible to rebut this incriminating evidence. He relied greatly on his own testimony. Over and over again, he insisted that the testimony of other witnesses was false, and repeatedly testified in a self-serving and inconsistent fashion, to the point that no reasonable jury could find him credible. For example, he claimed that he was not worried about Houston when he spoke to police on November 23, 2001, yet stated in his written witness statement at the time that it was unlike Houston to be missing. Despite his professed lack of concern, appellant testified that he told police his house was not secured when he returned home on November 21, 2003, which is absent from his witness statement. He simply denied that he made incriminating statements to coworkers, such as that he had previously ripped up a grant deed, argued with Houston about the Fresno Street house when she stayed over at his house, or owned a .380 automatic. He testified that he gave Houston his signed grant deed in October 2001, but that she told him later that the loan company had never received the papers, and that he was ready to sign papers again on November 21, contradicting the testimony of the loan officer, Houston’s friend, and appellant’s coworker. His contentions that his fight with Houston in June 2001 was reciprocal and that he did not actually hit Houston in August 2001 when he kicked out her car window were unpersuasive distinctions that failed to rebut the evidence that he used violence against Houston on each occasion. Faced with damaging testimony from two women, W.M. and S.P., with whom he had affairs during his marriage, he claimed each was lying. He attempted to lie on the stand when he denied that he had had other affairs, admitting to them only after respondent persisted in cross-examination. He claimed that he had in effect misled people when it suited his purposes, testifying that he made statements to people in the past indicating that he owned a gun when he did not.

Most importantly, appellant could not explain how a bullet fired from the same gun as the bullet found in Houston’s brain, and containing traces of Houston’s DNA, made its way into a freshly plastered wall of his own bedroom. Appellant’s insistence that Houston had a lover named “Jesse” who was the real killer was particularly incredible. He did not present any verifiable information about Jesse, not even his last name. Moreover, he acknowledged on cross-examination that he did not bring up Jesse until after learning of a witness’s description of a man seen by Houston’s car on November 21, 2001. Although he then backtracked to contend that he “probably told” police initially about Jesse, this too is absent from his police witness statement. In the end, appellant’s trial counsel was left with little besides speculation to argue to the jury that Jesse had somehow framed appellant by planting the DNA-tainted bullet in his bedroom wall while appellant was away from his home.

Appellant also placed great emphasis on the witness who testified that she saw a tall, lanky man by Houston’s car on the morning of November 21, 2001, and on coworkers’ testimony that they saw him at work, arguing that this was proof that someone other than appellant was the real killer. This evidence presented the only mildly controversial factual question in the case, and it was a very weak question at that, particularly in light of the overwhelming evidence of appellant’s guilt. The witness who saw a tall, lanky man by Houston’s car outside her home between 6:30 and 7:00 a.m. on the morning of November 21 changed her description of the man and his actions over time, indicating she was less than certain about what she saw in the first place. The coworker who saw appellant at their workplace provided similarly uncertain testimony about whether he saw appellant on the morning of November 20 or 21. The other coworker’s testimony that he talked to appellant by walkie-talkie later on the morning of November 21, was relatively inconsequential, since it did not establish one way or the other if appellant was at his workplace earlier.

Furthermore, appellant’s own statements undermined his contention that the “real killer” was seen standing by Houston’s car on the morning of November 21, 2001. Appellant stated in his police witness statement that he left Houston at his house between 6:30 and 6:40 a.m. on the morning of November 21, 2001, and he testified at trial that he left Houston at his house at around 6:25 or 6:30 a.m. that morning. This left appellant’s “real killer” a scant few minutes, if any at all, to kill Houston, wrap her in appellant’s blue tarp, place her body in Houston’s car, and drive to the location where, according to the witness’s trial testimony, “he” was seen by Houston’s car between 6:30 and 7:00 a.m. that morning. This time frame, if realistic at all, would also indicate that this “real killer” shot Houston at the Fresno Street house (contrary to appellant’s trial counsel’s suggestion in his closing argument that the murder occurred elsewhere), removed her body, and returned to the house to clean up and patch appellant’s bedroom wall, although leaving the body and the evidence would have cast suspicion on appellant. In other words, appellant’s story does not withstand even the slightest scrutiny.

Appellant’s incredible story about another killer only underscores the importance of the physical evidence found in the Fresno Street house. Indeed, appellant’s appellate counsel acknowledges the strength of this evidence in her opening brief to this court, stating, “the DNA on the bullet was strong circumstantial evidence that Houston was killed at home, making [ajppellant the most likely agency of her demise.” In short, the physical evidence found at appellant’s home was very strong evidence and, when combined with the other circumstantial evidence, it was overwhelming evidence of appellant’s guilt.

B. Houston’s Statements Were Tangential and Cumulative

As indicated by our discussion directly ante, Houston’s June and August 2001 statements were tangential to the overwhelming evidence that appellant murdered Houston at the Fresno Street house and then covered up his crime. The tangential nature of her statements was demonstrated by respondent’s closing argument, in which respondent extensively discussed other evidence before delving into any detail about appellant’s past acts of violence against Houston.

Houston’s statements also were cumulative of other evidence unchallenged by appellant, including his own testimony. Houston’s June 22, 2001 statements to police and medical personnel indicated that appellant had attacked her that day in a fight at the Fresno Street house, pulling out some of her hair and causing an injury to her finger, after Houston told him she wanted a divorce because she could not understand why he would stay out all night. Even if her statements had been excluded, there was testimony by the police officer who took her June 2001 statement that Houston appeared before him with a portion of her hair tom out and blood on her ear, and appellant’s own testimony that he and Houston had fought that day. Furthermore, appellant testified that Houston left him that night and filed for divorce in the week following this incident, from which it could be inferred that their fight was related to problems in their marriage.

Houston’s report to police about appellant’s destruction of her car window in the August 2001 incident was similarly cumulative. A neighbor also testified that she saw appellant mn after Houston and kick in her car window after appearing to try and hit Houston, Houston’s employer testified that Houston told her what appellant had done, and appellant himself admitted kicking in the car window at trial. No one testified that appellant was set off by what Houston claimed in her report, an argument over the disposition of their Fresno Street house. However, other evidence already discussed, such as the testimony of the loan officer, of Houston’s friend about Houston’s efforts to obtain appellant’s interest in the house, of a coworker recounting what appellant said about the subject, indicated that appellant and Houston were engaged in a bitter dispute over the Fresno Street house.

C. The Jury’s Deliberations Did Not Indicate This Was a “Close Case”

Appellant also contends that the jury engaged in lengthy deliberations spread over the course of four days, thereby demonstrating that the case was a close one that requires a finding of prejudice here. This is incorrect.

Appellant cites our Supreme Court’s conclusion that deliberations of almost 12 hours were an indication that a case was not “open and shut.” (People v. Cardenas (1982) 31 Cal.3d 897, 907 [184 Cal.Rptr. 165, 647 P.2d 569].) Appellant does not refer to anything in the record that indicates how many hours the jury deliberated below; without such information we cannot say the deliberations were lengthy merely because they were spread out over four days.

Furthermore, the length of a jury’s deliberation is related to the amount of information presented at trial, as is indicated in another case cited by appellant, People v. Filson (1994) 22 Cal.App.4th 1841, 1852 [28 Cal.Rptr.2d 335], overruled on other grounds in People v. Martinez (1995) 11 Cal.4th 434, 452 [45 Cal.Rptr.2d 905, 903 P.2d 1037] (noting that jury deliberations were longer than the evidentiary phase of the trial). Here, the record indicates that there were extensive trial proceedings involving over three dozen witnesses occurring on 10 different days spread over three weeks, as well as lengthy closing arguments and jury instructions spread over two additional days. The jury’s deliberation of this mass of information over the course of four days speaks only for its diligence. Its requests for the reading back of selected testimony does not necessarily indicate that this was a “close” case as appellant argues; in fact, the jury’s time spent reviewing that testimony reduced their time spent actually deliberating. (People v. Walker (1995) 31 Cal.App.4th 432, 438 [37 Cal.Rptr.2d 167] [jury’s 6.5 hours of deliberations after a 2.5-hour trial were not an indication of a “close case,” particularly when some time was spent listening to testimony readbacks].) In short, to conclude that this was a “close case” in light of the jury’s actions “in the absence of more concrete evidence would amount to sheer speculation on our part. Instead, we find that the length of the deliberations could as easily be reconciled with the jury’s conscientious performance of its civic duty, rather than its difficulty in reaching a decision.” (Id. at p. 439.)

Even assuming for the sake of argument that the jury’s actions indicate this was a “close case,” appellant argues only that this would mean that “ ‘any error of a substantial nature may require a reversal and any doubt as to its prejudicial character should be resolved in favor of the appellant.’ [Citation.]” (People v. Von Villas (1992) 11 Cal.App.4th 175, 249 [15 Cal.Rptr.2d 112], italics added.) We have no reason to reverse under this standard because, as our discussion above indicates, any error was neither substantial nor arguably prejudicial.

Accordingly, any error by the trial court in admitting Houston’s June and August 2001 statements was harmless beyond a reasonable doubt because the other evidence of appellant’s guilt was overwhelming, and Houston’s statements were both cumulative of other evidence and of a tangential nature. Therefore, any such error is not a ground for reversal here. (Chapman v. California, supra, 386 U.S. at p. 24.)

II. Evidence of the Victim’s DNA on the Bullet Found in Appellant’s Bedroom Wall

Appellant next contends that the trial court committed reversible error by denying his pretrial motion to exclude the evidence of Houston’s DNA found on the bullet recovered from inside a wall of appellant’s bedroom because its admission was a violation of his federal due process rights. This too is incorrect.

The parties agree that the applicable law is stated in People v. Roybal (1998) 19 Cal.4th 481, 509-510 [79 Cal.Rptr.2d 487, 966 P.2d 521], as follows; “Law enforcement agencies have a duty, under the due process clause of the Fourteenth Amendment, to preserve evidence ‘that might be expected to play a significant role in the suspect’s defense.’ [Citations.] To fall within the scope of this duty, the evidence ‘must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’ [Citations.] The state’s responsibility is further limited when the defendant’s challenge is to ‘the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.’ [Citation.] In such case, ‘unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.’ [Citations.]” (Italics added.)

Our Supreme Court has also made clear that “[when] the prosecution finds it necessary to consume the evidence in order to test it, there is no due process violation. The prosecution must be allowed to investigate and prosecute crime, and due process does not require that it forego investigation in order to avoid destroying potentially exculpatory evidence.” (People v. Griffin (1988) 46 Cal.3d 1011, 1021 [251 Cal.Rptr. 643, 761 P.2d 103].)

The parties also agree that we apply a substantial evidence standard of review to the trial court’s denial of appellant’s motion; that is, “we must determine whether, viewing the evidence in the light most favorable to the superior court’s finding, there was substantial evidence to support its ruling.” (People v. Roybal, supra, 19 Cal.4th at p. 510.)

At the pretrial hearing below on whether or not to exclude the DNA evidence, an experienced forensic biologist for the Oakland Police Department testified that she received the bullet on November 29, 2001, and examined it prior to anyone’s being arrested for Houston’s murder. She consulted with the department’s firearms expert, who wanted to test the bullet as well, and decided that she should conduct her examination of the bullet first to avoid the possibility that the firearms expert would destroy potential biology in handling it. She then put the bullet in a plastic tube with digestion material, which digested all of the DNA off of the bullet. While she acknowledged that it was preferable not to digest all of the DNA off of the bullet, she also explained why alternatives suggested by appellant’s counsel in his cross-examination of her would not work. She also tested only a portion of the biological material recovered from the bullet, and took steps to preserve the remainder, which was about three times the amount she tested herself. The remainder was still available for testing at the time of the pretrial hearing.

The court denied appellant’s motion, ruling that the DNA evidence did not necessarily identify appellant directly, but indicated only “that circumstantially at some point the decedent in tins case . . . had contact with the slug,” rather than specifically and directly pointing at the appellant. The court found that the police used reasonable methods to examine the bullet under the circumstances, that the defense still had the opportunity to examine any possibly exculpatory material taken from the bullet, and that there was no evidence that anyone had willfully destroyed any potentially exculpatory material.

Appellant contends on appeal that the forensic biologist acted improperly because she “made no attempt to find an alternative to total consumption of the sample other than consulting with a firearms expert, who presumably was not well versed in DNA testing and solutions to her problem. . . . Although a portion of extracted DNA remained available for retesting, [a]ppellant was foreclosed from determining the reliability of the extraction process itself.” The forensic biologist’s lack of action by itself, however, does not indicate bad faith, which is an essential element to appellant’s claim. (People v. Griffin, supra, 46 Cal.3d at p. 1022.) To the contrary, the evidence indicates that she acted in good faith and in furtherance of the state’s legitimate interests in examining the bullet in the course of the police investigation. She testified that she consulted with the department’s firearms expert to determine the order of their tests so as to preserve as much biological material as possible; was unaware of any other method she could have applied for her testing; and took steps to preserve the material extracted from the bullet for later testing. Appellant does not cite to any evidence showing that the forensic biologist deliberately avoided finding ways to partially consume the biological material, or that any method in fact exists that would have allowed her to partially consume the biological material on the bullet. In short, there simply is no evidence that she acted in bad faith. (See People v. Roybal, supra, 19 Cal.4th at pp. 509-510 [testimony indicating a door jamb was lost because of inadvertent police error was insufficient to establish bad faith].)

Appellant cites two cases for the proposition that police should be “careful to preserve the ability of both parties to have independent testing.” As respondent points out, nothing in these cases alters the analysis. In People v. Cooper (1991) 53 Cal.3d 111 [281 Cal.Rptr. 90, 809 P.2d 865], the court found that where there was only enough material for one test, the defendant did not have the right to seize that material, test it confidentially and keep the results from the prosecution. (Id. at pp. 814-816.) None of this is at issue in the present case. Similarly, in Prince v. Superior Court (1992) 8 Cal.App.4th 1176 [10 Cal.Rptr.2d 855], the court found that the trial court had erred by preventing the petitioner from conducting confidential, independent tests of extracted semen, half of which had been allocated to it. (Id. at p. 1181.) This is not at issue here either; to the contrary, the extracted DNA was preserved and nothing in the record indicates it was unavailable to appellant to test independently and confidentially, if he so wished.

We find, therefore, that there was substantial evidence to support the trial court’s denial of appellant’s motion to exclude the DNA evidence. Accordingly, we affirm the court’s ruling.

III. Evidence Regarding Appellant’s Extramarital Affairs

Although appellant does not contest on appeal most of W.M.’s and S.R’s testimony about their relationships with appellant during his marriage to Houston, appellant argues that the trial court committed prejudicial error, and violated his due process rights, by admitting their testimony that he did not tell them he was married, as well as by allowing respondent to cross-examine him about other extramarital affairs and women.

A trial court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will, among other things, “create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352 (section 352).) “Under Evidence Code section 352, the court must strike a balance between the probative value of the evidence and the danger of prejudice. The court must consider ‘ “the relationship between the evidence and the relevant inferences to be drawn from it, whether the evidence is relative to the main or only a collateral issue, and the necessity of the evidence to the proponent’s case as well as the reasons recited in section 352 for exclusion.” [Citation.]’ ” (People v. Harlan (1990) 222 Cal.App.3d 439, 445 [271 Cal.Rptr. 653].) A trial court’s discretionary ruling under section 352 will not be disturbed on appeal absent an abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 201 [58 Cal.Rptr.2d 385, 926 P.2d 365].)

As we discuss post, the disputed evidence was admissible because it was relevant, in part because appellant put his own credibility at issue in the case. Regardless, the admission of the contested evidence was not particularly prejudicial.

A. W.M. ’s and S.P. ’s Testimony About Appellant’s Deceit

Appellant first contends, as he did below, that the trial court should not have allowed W.M. and S.P. to testify that appellant failed to tell them that he was married because it “was nothing more than inflammatory bad character evidence” that should have been excluded pursuant to section 352. Respondent essentially restates its arguments that this evidence was relevant to the credibility of appellant and of W.M. and S.P. The trial court admitted the evidence, noting that “the fact that [S.P. and W.M.] knew whether he was married or not probably affects them more than it affects him. The fact that he was carrying on, the jury is going to know he was married at the time.” The parties