People v. Spector (194 Cal. App. 4th 1335, 2011)

Opinion

KLEIN, P. J.

Defendant and appellant, Phillip Spector, appeals the judgment entered following his conviction, by jury trial, for second degree murder with firearm use enhancements (Pen. Code, §§ 187, 12022.5, 12022.53, subd. (b)). He was sentenced to state prison for a term of 19 years to life.

The judgment is affirmed.

INTRODUCTION

Phillip Spector was convicted of murdering Lana Clarkson, a woman he met one night at the House of Blues nightclub in Los Angeles, where she was working. Clarkson accepted Spector’s invitation to visit his home. They were driven there by Adriano De Souza, Spector’s chauffeur. According to De Souza, Spector came out of the house two hours later with a revolver in his hand and said he had killed someone. The police subsequently found Clarkson’s body slumped in a chair near the back door of Spector’s house. There was a revolver on the floor underneath one of her legs. She had been shot once in the head and neck, the bullet having entered through her mouth. Spector and Clarkson were the only two people inside the house when Clarkson was shot.

The question at trial was whether Spector had committed implied malice murder by killing Clarkson in the course of assaulting her with the gun, or whether Clarkson had used the gun to shoot herself, either committing suicide or killing herself accidentally. Because Spector could not be convicted solely on the basis of his extrajudicial confession to De Souza, the prosecution sought to provide corroborating evidence in the form of crime scene forensics and “other crimes evidence” demonstrating his long history of violence toward women in similar situations. Spector did not testify. The defense put on forensic and mental state evidence' trying to show Spector could not have fired the gun and that Clarkson had reasons to commit suicide.

A key question at trial was what the resulting forensic evidence would have been if Clarkson, rather than Spector, had fired the gun. In this regard, Spector contends the trial court erred by admitting into evidence a videotape in which the trial judge purportedly acted as a witness for the prosecution. We will hold, however, that this videotape merely shows the trial judge seeking to clarify a prosecution criminalist’s ambiguous testimony.

Spector contends the trial court erred by admitting the “other crimes evidence” consisting of testimony from five women who, over a 20-year period, were the victims of armed assaults by Spector. We will conclude this evidence was properly admitted to prove Specter’s motive for committing implied malice murder and that Clarkson’s death was not self-inflicted. We will conclude the trial court properly admitted “generic threat” evidence tending to show Specter’s state of mind at the time of his fatal encounter with Clarkson, and that the jury was properly instructed on how to consider all of this evidence.

Finally, we will reject Specter’s contention there was prosecutorial misconduct during closing argument and conclude the prosecution neither impugned the personal integrity of defense counsel, nor improperly attacked the credibility of the defense expert witnesses.

BACKGROUND

Defendant Spector was originally tried in 2007. That trial ended in a hung jury. Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [26 Cal.Rptr.2d 23, 864 P.2d 103]), the evidence presented at Specter’s 2008-2009 retrial established the following.

1. Prosecution evidence.

a. The shooting.

(1) Spector meets Clarkson at the House of Blues.

Adriano De Souza was working as a valet parking attendant at the Grill in the Alley (the Grill), a Beverly Hills restaurant. There he met Specter’s chauffeur, who asked if De Souza wanted to work as Specter’s backup driver. De Souza agreed because he could make between $30 and $40 an hour driving for Spector. By February 2003, De Souza had driven Spector between 12 and 15 times over the course of three or four months.

These backup driving jobs were arranged by Michelle Blaine, Specter’s secretary, who would call De Souza a few hours before he was needed. De Souza would arrange for someone to cover his shift at the Grill and then drive his own car to Specter’s house in Alhambra. After going through the main entrance gate, De Souza would drive to the back of the house, park, prepare Specter’s car and wait for him to come out. Spector had two cars, a Rolls-Royce and a brand new Mercedes. De Souza testified Spector would tell him where to drive and that he always understood Specter’s directions. He and Spector communicated easily, although if Spector had been drinking he was sometimes hard to understand.

De Souza had been bom in Brazil and he grew up there. He began studying English in school when he was 11 or 12 years old. In college he earned a B.A. degree in computer science. The instructional materials for his computer courses were in English. He had served for eight or nine years in the Brazilian military.

On Sunday afternoon, February 2, 2003, Blaine called and asked De Souza to drive for Spector that night. De Souza arrived at Specter’s house in the early evening and prepared the Mercedes. Spector got into the car carrying a leather briefcase and told De Souza to drive to Studio City, where his friend Rommie Davis lived. Davis had gone to high school with Spector and then met him again years later at a high school reunion. During 2002, they occasionally went out to dinner together, but they were not romantically involved.

De Souza picked Davis up and then drove to the Grill. Spector and Davis went inside for dinner. Spector had one daiquiri and at least part of another during dinner. When he ordered the second daiquiri, Davis “suggested that it wasn’t a good idea because he was acting silly.” Spector ignored her and continued to drink. He appeared to be a little drunk. They finished dinner between 9:30 and 10:00 p.m. Davis wanted to get to bed early because she had to work the next day.

Kathy Sullivan was working at the Grill that night as a server. She first met Spector in 1997 and had socialized with him occasionally for a year or two, always in the company of her friend, Susan. Sullivan and Susan would visit Spector at his Alhambra house. Sullivan testified her relationship with Spector was entirely platonic and had never been romantic; she described Spector as acting “fatherly” toward her. She stopped visiting him when she lost touch with Susan in 1999. Then, after Susan came to work at the Grill, Sullivan would sometimes see Spector at the restaurant.

On Sunday night, February 2, 2003, Sullivan greeted Spector and Davis when they came into the Grill. After finishing her shift, Sullivan was eating when another restaurant employee came over and asked if she and her coworker Karen wanted to join Spector for a drink. Karen declined, but Sullivan went over to Specter’s table and then accepted his invitation to go to Trader Vic’s. Spector and De Souza took Davis home and returned to the Grill to pick up Sullivan. De Souza and Sullivan knew each other because they both worked at the Grill.

At Trader Vic’s, Spector and Sullivan went to the bar. Spector ordered and drank a Navy Grog and Sullivan had an Amaretto sour. Spector ordered a second Navy Grog, but may have taken no more than a sip of it. Then they returned to the Mercedes. Sullivan said she was tired, but Spector wanted company at Dan Tana’s restaurant. Because Dan Tana’s was located between Trader Vic’s and Sullivan’s apartment, Spector had De Souza drive Sullivan to her car. Sullivan dropped her car off at her Hollywood apartment and got back into the Mercedes.

De Souza arrived at Dan Tana’s restaurant about 12:30 a.m. There, Spector ordered a daiquiri and Sullivan ordered another Amaretto sour. They ate some food and ordered a second round of drinks. Spector then suggested going on to the House of Blues. Sullivan agreed, although she really wanted to go home.

At the House of Blues, Spector tried to get into the “Foundation Room,” a private VIP section of the club. Euphrates Lalondriz, who worked at the House of Blues doing security, testified he had been training Lana Clarkson to be a hostess and a security officer for the Foundation Room. Working security at the Foundation Room involved taking care of the VIP clientele and checking wristbands to make sure only properly authorized people were allowed in. Spector was a VIP client of the Foundation Room.

Clarkson stopped Spector and Sullivan from entering the Foundation Room because they were not wearing the appropriate wristbands. Spector said, “Do you know who I am?” Sophia Holguin, one of the cocktail waitresses, told Clarkson the man was Phil Spector, a music producer and a multimillionaire. She asked Clarkson to be sure to give Spector a seat in her section because he had previously left her a big tip. Clarkson seated Spector and Sullivan on a sofa in Holguin’s section, and told them if they were going to order drinks they had to hurry because it was late.

Holguin took their orders. Spector ordered Bacardi 151, an expensive rum which had double the proof of regular rum. Spector tried to order a drink for Sullivan, but she just wanted water. According to Holguin, Spector seemed irritated and upset by this. In an aggressive, agitated manner, he told Sullivan to “just order a fucking drink,” but Sullivan insisted she only wanted water.

Sullivan testified Spector “took the hint and said, ‘Oh, you want to go home. Fine. I’ll have my driver take you home.’ ” Sullivan initially thought Spector was being “perceptive and thoughtful,” but then he shouted “Get Lana” and, when Clarkson came over, he said “I’m sending Kathy home.” This made Sullivan “feel like crap” because Spector made it sound like he was dismissing her. Clarkson escorted Sullivan to the Mercedes. Clarkson told De Souza to take Sullivan home and then bring the car right back.

Meanwhile, Holguin served the water intended for Sullivan. Spector said, “I don’t want it. I don’t want that fucking water.” Spector downed his drink in one swallow. He appeared to have drunk a lot of alcohol and he “definitely appeared intoxicated.” Spector asked Holguin to have a drink with him. When she explained she could not drink with him because she was working, Spector asked her to go home with him. Holguin said she could not because she had something to do the next day. Holguin testified Spector was “hitting on” her, and that he was also hitting on Clarkson.

After Sullivan left, Clarkson came into the room, fluffing up the pillows on the couch and making small talk with Spector. Holguin testified this was not how Clarkson usually behaved with customers, and it seemed she was doing it because she had learned Spector was a wealthy VIP. At one point, Spector commented that Clarkson was “acting like fucking Charlie Chaplin.” He told her to just calm down and have a drink with him. Clarkson had to get permission from her manager, who said she could sit with Spector but not have a drink. After Spector finished his Bacardi 151, he asked for another drink. Holguin said she needed her manager’s approval because of the time. The manager refused to approve any more alcohol and Holguin closed out Specter’s tab.

Lalondriz walked into the Foundation Room just as Clarkson, who had completed her job duties for the night, was about to leave. Spector asked if she needed a ride and Clarkson said yes. Spector then asked, “Do you want to go to the house so we could talk?,” but Clarkson said she just wanted a ride to her car.

Spector and Clarkson left the House of Blues about 2:20 a.m. While they were standing by the Mercedes, De Souza heard Spector say, “Let’s go to the Castle, let’s go to the Castle.” This was a reference to Specter’s Alhambra house, a replica of a Pyrenees castle which had been built in 1926. Clarkson again declined. She said she was tired and she could get into trouble if she left with a client. She asked Spector to take her to a parking structure near the House of Blues so she could retrieve her car. Spector agreed. They got into the Mercedes and De Souza drove to the parking structure.

Spector said he needed a bathroom and Clarkson said he could go behind one of the walls. When De Souza stopped, Spector got out and urinated behind a wall inside the parking structure. Clarkson got her car and De Souza followed her as she parked it on the street nearby. Clarkson then got back into the Mercedes, telling De Souza she was just going for a drink. Spector got upset and screamed, “Don’t talk to the driver, don’t talk to the driver.”

(2) Arrival at Spector’s home.

De Souza drove Spector and Clarkson to Specter’s house. During the drive, De Souza smelled alcohol coming from the back of the Mercedes. Spector and Clarkson were watching a DVD, and talking and laughing. De Souza got to the house about 3:00 a.m. He dropped Spector and Clarkson in front of the house and then drove around to the back, where he parked in a motor court just six feet from the rear door of the house. De Souza collected some things that had been left in the back of the Mercedes, including Specter’s leather briefcase, cell phones and a DVD player.

Spector came out the back door a short time later and De Souza handed him the DVD player. De Souza then walked to the open back door, reached inside, and put Spector’s briefcase onto a chair that was sitting next to the entrance. De Souza did not see or hear Clarkson at this time. Spector went back into the house and closed the door. About 3:20 a.m., De Souza got back into the Mercedes to wait until it was time to give Clarkson a ride back to Hollywood.

Around 5:00 a.m., De Souza was startled by a sharp noise which sounded like a “pow” or a “bang.” He got out of the Mercedes to investigate. For two or three minutes he looked around, but he could not find anything, so he got back into the car and shut the door.

A few seconds later, Spector opened the back door. He was wearing the same clothes he had been wearing earlier that night: black pants, a black shirt, and a white or cream-colored jacket. De Souza got out of the Mercedes because he thought it was time to give Clarkson a ride. Spector stepped out onto the back porch and De Souza could see he was holding a revolver in his right hand. Spector said, “I think I killed somebody.” De Souza testified he did not have any trouble hearing what Spector said.

De Souza thought he saw a “little bit of blood” on Specter’s right index finger. Behind Spector, De Souza could see a woman’s legs through the open back door. When he stepped to one side to get a better view, he could see Clarkson’s entire body. She was sitting slumped in a chair, sort of half in the chair and half on the floor, with her legs extended out in front of her. There was blood on her face. De Souza asked Spector what happened. Spector shrugged his shoulders but he did not say anything. He had a blank look on his face.

De Souza got scared when he realized Clarkson might be dead and he started running away from the house. He tried to use his cell phone, but he was so disoriented he could not manage it at first. Then he ran back to the Mercedes, got in and drove to the main entrance gate.

When he calmed down enough to use his cell phone, De Souza called Michelle Blaine, Specter’s secretary, because her number had been programmed into his cell phone. He called Blaine because he did not know Specter’s street address, which he wanted so he could give it to the police. When Blaine did not pick up, De Souza left her the following message: “Michelle. Michelle. It’s Adriano, Michelle. Michelle, I have to—you have to come to, to Mr. Phillip’s house. I think he killed some—a lady. Please call me, call me back. I’m gonna call the police right now.”

De Souza found Specter’s address posted on a sign outside the front gate and he called 911. The call was recorded at 5:02 a.m. De Souza told the CHP (California Highway Patrol) dispatcher, “I think my boss killed somebody.” Asked why he believed there had been a killing, De Souza said: “Because . . . he have a lady on the, on the floor and he have a gun in, in his hand.” After the dispatcher transferred the call to the Alhambra Police Department, the following exchange occurred: “ALHAMBRA: Okay. So have you seen your ■ boss? [][] DE SOUZA: Yes. He had, he had the gun in his hand.”

The first officer to respond to the shooting scene was Alhambra Police Officer Brandon Cardella. He saw De Souza standing next to a black Mercedes, waving his arms frantically. De Souza told Cardella he heard a gunshot and then saw Spector with a gun in his hand. According to his police report, which Cardella wrote less than two hours later, De Souza said he heard Spector say, “I think I just kill [íz'c] her.”

Police witnesses testified De Souza was not allowed to go back up to Spector’s house.

About 8:30 a.m., De Souza was interviewed by Alhambra Police Officers Esther Pineda and Garrett Kennedy. De Souza told them he saw Spector with a revolver in his right hand and heard him say, “I think I killed somebody.” De Souza described seeing Clarkson: “She was, I think, half in the—in the chair and half on the floor,” and she had blood on the left side of her face.

De Souza was subsequently interviewed at the Alhambra Police Department by Detectives Paul Fournier and Rich Tomlin about 9:45 a.m. that same morning. De Souza said that when he picked up Spector and Clarkson from the House of Blues, Spector was “completely drunk.” De Souza said that when Spector came out the back door he had a gun in his hand and he said, “I think I, I, I killed somebody.”

(3) Police response and crime scene findings.

Four other police units arrived after Cardella. The group of officers walked through the front gate and up the driveway. They moved slowly because Specter’s property was wooded and very large. They came to a garage which faced the rear of Spector’s house. From there, Cardella could see Spector moving around on the second floor of the house. Eventually, Spector returned to the first floor and then walked out the back door. He stood there, looking at the officers. The officers ordered him to take his hands out of his pockets and put them in the air. Instead of complying, Spector turned around and walked back into the house, saying, “Hey, guys, you’ve got to come see this.” The officers followed Spector into the house and detained him. This was about 40 minutes after Cardella had responded to De Souza’s 911 call.

The officers found Clarkson’s body slumped in a chair in a foyer near the back door. Her legs were extended straight out in front of her and her left arm hung down by her side. Her right hand was draped over the right arm of the chair, resting on a purse. The purse straps “were wrapped around her shoulder, and somewhat twisted, and then wrapped around the right-hand arm of the chair twisted in an unnatural fashion.” There was blood on her face and blood on her chest.

Underneath Clarkson’s left calf was a .38-caliber, six-shot Colt Cobra revolver. The gun was loaded with five live rounds and there was a spent round under the hammer. The gun was bloody. There was blood on both sides of the wooden grips, on the trigger guard, on the frame directly in front of the wooden grips, and on the metal strap securing the grips. A part of Clarkson’s artificial tooth had lodged in the front sight of the gun. More pieces of artificial tooth were found on the floor across the foyer from Clarkson’s body.

Next to Clarkson was a bureau or side table. One of its drawers was partially open. Inside this drawer there was a leather holster. The Colt Cobra fit into this holster.

Six feet to the left of Clarkson’s body was a leather valise sitting on a chair. The valise had the initials “PS” and it contained various personal items, including a three-pack of Viagra, of which only one of the original three pills remained. Underneath the valise was a small portable DVD player. There were two working cell phones clipped to the outside pockets of the valise. There was also another phone in the foyer. There was blood on the doorknob and on the latchbolt assembly of the back door. The thumb lever for the dead bolt was in the “off’ position and did not have any blood on it, which meant it had not necessarily been touched at the same time or by the same hand that left bloodstains on the doorknob and the latchbolt.

There was a formal living room off the foyer. This room was very dark, with the only light coming from some candles on top of the fireplace. On a coffee table, there was an almost empty bottle of tequila and a brandy snifter containing alcohol. Background music was playing.

There was a small bathroom nearby. In the bathroom, there was a matching brandy snifter containing a small amount of alcohol. A pair of false eyelashes was sitting on top of the toilet tank. On the floor of the bathroom there was a cotton diaper covered with blood on both sides. This diaper had also been soaked with water.

On the second floor of the house was the master bedroom. Inside the bedroom closet was a white jacket stained with blood. This jacket was lying crumpled on the closet floor.

Sean Hecker, an officer with the Alhambra Police Department, responded to the crime scene and was asked to escort Spector, who already had been taken into custody, to the police station. Hecker did so and also obtained gunshot residue samples from Specter’s hands. During that process, Spector told Hecker he was right handed. Hecker did not notice any blood on Specter’s hands.

Jaime Lintemoot, a criminalist with the Los Angeles County Coroner’s Office, was part of the coroner’s response team that analyzed the crime scene. Lintemoot collected blood swabs from Clarkson’s hands and wrists. She took one swab from “the backside of the right wrist” where she saw “red, mist-like drops consistent with blood.” She collected two sets of swabs from Clarkson’s left hand: “One . . . from the backside of the wrist of the left hand, and the other was from the inside of the wrist.” Lintemoot testified: “There were two regions on which I thought there was possible blood. One was the backside of the wrist, and this consisted of the fine, mist-like spots. The other area . . . appeared to be ... a larger area and appeared to be more of a smear.” By “smear” Lintemoot meant a contact or transfer bloodstain.

Regarding Clarkson’s purse, Lintemoot testified: “It was a leopard print purse with a long black strap, and the black strap was going over the decedent’s right arm. The purse was resting on the floor, [f] The interesting thing was that the purse was rotated almost... 180 degrees. The back of the purse strap appeared to have caught the edge of the seat or the arm of the chair and got flipped around when it landed.”

(4) Other forensic evidence.

Deputy Coroner Louis Pena conducted the autopsy. He concluded Clarkson died from a single gunshot wound to the head and neck. The bullet entered through her mouth, nicked the upper side of her tongue, traveled to the back of her throat, hit her spinal cord and lodged in the base of her skull. The bullet had completely transected the spinal cord, tearing it from the brain stem and cutting it in half. This meant Clarkson would have immediately lost all bodily function the moment she was shot. A forensic neuropathologist confirmed the bullet had separated Clarkson’s spinal cord from her brain stem.

The trajectory of the bullet was from front to back, and slightly upward. The recoil from the gun fractured and shattered two of Clarkson’s upper front teeth. On the left side of Clarkson’s tongue there was a bruise consistent with blunt force trauma that could have been caused by the gun’s barrel, but not by the bullet. Pena found other injuries on Clarkson suggestive of resistance or a struggle. There was a bruise on the back of Clarkson’s left hand which had been caused by blunt force trauma that had been inflicted prior to death. There were bruises on the back of Clarkson’s right wrist and on her right forearm, also caused by blunt force trauma. All these bruises had been inflicted during the same event and they were consistent with a struggle, with Clarkson having been grabbed or hit.

Pena concluded Clarkson’s death was a homicide, although he agreed intraoral gunshot deaths were usually suicides and only rarely homicides.

Steve Renteria, a prosecution criminalist, testified he found a mixture of both Specter’s and Clarkson’s DNA in a number of places; on the pair of false eyelashes found in the bathroom; on the brandy snifters; in the blood found on Clarkson’s left inner and outer wrist; in the blood found on Clarkson’s right wrist. Blood containing a mixture of their DNA was found on the inside doorknob and latchbolt of the back door to the house. Clarkson’s blood was on the banister of the staircase leading to the second floor of the house. The diaper found in the bathroom contained thick areas of blood which had been diluted with water in some places. Four DNA samples were taken from the diaper; three of them came entirely from Clarkson.

A swab of the nipple of Clarkson’s left breast contained DNA from both Spector and Clarkson. A sample taken from Specter’s scrotum contained DNA from two people: Spector and another person who was likely to have been Clarkson. Clarkson’s blood was found inside the left front pocket of Spector’s pants. The jacket on the floor of Spector’s bedroom closet was stained with Clarkson’s blood in various places: on the front edge of the left cuff; in the elbow area on the front of the left sleeve; on the inside surface of the left front panel near the abdominal area; on the outside surface of the right front panel near the abdominal area.

Dr. Lynne Herold is a forensic scientist who works for the crime lab at the Los Angeles County Sheriff’s Department. Based on her analysis of the forensic evidence, Herold came to the following ultimate conclusions: Clarkson had been sitting slumped in the chair when she was shot; the barrel of the gun was in her mouth and it was being held “upright in a normal, operating manner”; assuming Spector was wearing his jacket when the gun went off, he had been standing within two or three feet of Clarkson when she was shot; Clarkson could not have fired the fatal shot.

Herold explained the specific findings that led her to these conclusions. When Clarkson was shot, she had been sitting in the chair in the same position as when her body was discovered, except that her head had been tilted to the right, not to the left as it was when police found her body. There was blood on the right side of Clarkson’s face, on the bridge of her nose, up toward her right cheek and in her hair. Assuming Clarkson had been immediately incapacitated by the gunshot, this evidence meant another person had moved Clarkson’s head and smeared the blood on Clarkson’s face and hair with the diaper. The evidence was consistent with the diaper having been first wetted with water and then applied to Clarkson’s face and hair. It takes at least five minutes, and possibly as long as 15, for blood to clot; so this amount of time passed between the shooting and when someone wiped Clarkson’s face.

There were mistlike spatter bloodstains on Specter’s white jacket. There was impact spatter (see fn. 3, ante), rather than transfer spatter, on the lower edge of the left cuff of Specter’s jacket, which shows his cuff had been pointed toward Clarkson’s mouth when the gun went off. There were transfer bloodstains on the right outside and left inside front panels of Specter’s jacket. This indicated a bloody hand had either opened or closed the jacket. Based on the bloodstain patterns on Specter’s jacket, “[h]e had to have been on Lana Clarkson’s right-hand side, slightly to the right, such that... the left panel of the jacket would be exposed to a high energy back spatter event. . . which would place him within two to three feet of the source of the blood at the time the gun discharged, meaning Lana Clarkson’s mouth.”

When the gun went off, it was oriented in a normal, upright shooting position. Specter’s left arm was raised and extended toward Clarkson’s mouth. The barrel of the gun was in Clarkson’s mouth and the gun’s front sight was at least behind her front teeth. Based on Lintemoot’s testimony about finding mistlike blood on the back of Clarkson’s wrists, Herold concluded Clarkson could not have fired the gun: “. . . I cannot think of an orientation ... for Lana Clarkson to be holding the gun that would allow for the deposition [of blood] on the back of the wrists and pull [sic] the trigger, given what we know about the position of the gun having to be upright and in her mouth.”

If Clarkson had been holding one or both of Spector’s hands at the time the gun went off, this would account for the bloodstains found at the scene, including the blood spatter on the back of Clarkson’s hands. Although there was smeared blood on the gun’s grip, there was no blood in the area of the carpet where the gun was found by the police, which suggested the blood on the gun was already dry when it was placed under Clarkson’s leg. Blood on the back of the gun’s hammer had to have been transferred there after the shooting event. Something had moved blood on various parts of the gun; this could have happened if someone had wiped the gun.

b. Clarkson’s activities and plans prior to her death.

Donna Clarkson, a psychiatric nurse, was Lana Clarkson’s mother. Donna testified Clarkson had had a career as an actress and a model. On January 9, 2003, Clarkson and her mother picked up 200 copies of photo headshots Clarkson was planning to use in applying for modeling and acting jobs. Clarkson had an upcoming modeling job for a print advertisement with Siemens, a cell phone company. The photo shoot for the advertisement had been scheduled for February 8, less than a week after the shooting.

On January 22, Clarkson had been hired as a participant in an infomercial for a product called the “Lateral Thigh Trainer.” Actors who participate in infomercials get valuable exposure in the entertainment industry. Her participation involved dieting and exercising with the product under the guidance of a personal trainer for a month. At the end of that period, she would give a testimonial during the infomercial. A producer for the infomercial testified she had checked in with both Clarkson and the personal trainer several times and that Clarkson appeared committed to the program. The infomercial itself was scheduled to be filmed over two days beginning February 17 or 18.

Clarkson worked at the House of Blues on Friday, January 31, 2003. The next morning, she attended the Comic-Con science fiction convention. Having acted in the movie Barbarian Queen (Concorde Pictures 1985), Clarkson enjoyed going to such events to sign autographs and interact with her fans. On Saturday night, Clarkson again worked at the House of Blues.

On Sunday, February 2, Clarkson made plans to attend a party hosted by a good friend; she wrote an RSVP saying, “Can’t wait, love, Lana.” Also on February 2, Clarkson and Donna went shopping for flat shoes Clarkson could wear while working at the House of Blues. Clarkson ended up buying eight pairs of flat shoes, which Donna paid for. When Clarkson and Donna parted company that day in the late afternoon, Clarkson said, “ ‘Thank you for the shoes, Mom. I love you,’ ” and “ ‘I’ll call you tomorrow.’ ”

After the shooting, Donna went into Clarkson’s apartment with the police. They found tax-related documents organized into several piles, apparently in preparation for an appointment Clarkson had scheduled with her accountant for February 4.

c. The other crimes evidence.

(1) Dorothy Melvin.

While working as a personal manager for the comedian Joan Rivers, Dorothy Melvin occasionally dated Spector between 1989 and mid-1993. They did not see each other all that often during this time because she traveled a lot and he tended to be reclusive. They had a sexual relationship. Melvin described Spector as “[bjrillant beyond belief,” and “a very charming, lovable man when he wants to be. He is a wonderful person to be around, and when he is drinking and he gets to a certain point, then he totally loses it, and he becomes this demon.”

In July 1993, Melvin visited Spector at his home in Pasadena. She had never been there before. During the evening, Spector drank a lot of vodka and was being very charming. Then he disappeared for a while and Melvin fell asleep on a couch. She awoke before daybreak and discovered Spector pointing a .38 snub-nose revolver at her brand new car.

Melvin screamed at Spector, “What the [fuck] do you think you’re doing?” Spector told her to go back into the house. When Melvin kept screaming at him, Spector hit her in the head with the gun and said, “I told you to get the [fuck] into the house.” Melvin returned to the house. Spector followed her and started going through her purse. He accused her of looking for things to steal and sell. He told her to take her clothes off and go up to the third floor, where Melvin assumed his bedroom was. All the while, Spector was waving the gun around, sometimes pointing it at her.

When Melvin refused to take her clothes off, Spector hit her in the head with the gun again. Melvin was terrified. She managed to retrieve her car keys, run out of the house, get into her car and start driving, but the entrance gate was closed. As Melvin sat in her car at the gate, she saw Spector running down the driveway with a pump-action shotgun. Spector worked the pump and screamed, “I told you to get the [fuck] out of here.” When Melvin said the gate would not open, Spector suddenly became calm again and asked quizzically, “Gate won’t open?” Then he said, “Well, I’m going to go back and open it,” and he ran back to the house and opened the gate. Once Melvin got through the gate she called 911 and made a police report.

(2) Stephanie Jennings.

In 1994, Stephanie Jennings, a photographer with a professional interest in the music business, began a long-distance dating relationship with Spector. Jennings lived in Philadelphia and had an agency in New York, while Spector’s primary residence was in Pasadena.

In January 1995, Jennings was Spector’s guest at a Rock and Roll Hall of Fame inductee award dinner and a Waldorf-Astoria afterparty. At the after-party, Spector was drinking heavily, being unpleasant and making obnoxious remarks. The more Spector drank, the louder and more boisterous he became.

Jennings left the party between 2:00 and 3:00 a.m., and took a taxi back to the Carlyle Hotel. She went to her room and fell asleep. She was awakened when one of Spector’s bodyguards knocked on her door and said Spector wanted her to join him in his room. Jennings said she would see him the next day. After Jennings went back to sleep, Spector himself knocked on her door and said he wanted her to join him in his suite. When Jennings declined, Spector got angry, yelled at her and demanded that she come. He reminded her he was paying for her hotel room. He said if she did not come to his suite, she’d have to leave and pay for her own hotel.

Jennings said she would do just that. Spector entered her room and they argued while she packed. Scared by Specter’s anger, Jennings was upset and crying. When she started packing up her things in the bathroom, the argument became more heated. Spector pushed or slapped Jennings, causing her to fall backwards onto the toilet. She got up and pushed Spector, who fell into the bathtub, knocking down the shower curtain. Spector jumped up and left the room.

As Jennings finished packing, Spector returned. He pulled a chair in front of the door and sat down, blocking her exit. He had a gun in his hand. He was waving the gun around, sometimes pointing it at her. Jennings was even more scared than before. She could not leave the hotel room because Spector was holding her at gunpoint. She sat on the bed, crying, and asked Spector to let her leave. Spector would not let her leave with her bags, but since they contained her photographic equipment Jennings would not leave without them. Jennings picked up the phone and called 911. Spector thought she was calling her mother and said, “You can call your mom all you want. There is nothing she can help you with now.” The 911 operator managed to take a report with Jennings only having to answer yes or no. Officers were dispatched and they came to the room with the hotel manager; Spector left Jennings’s room just before they arrived.

(3) Devra Robitaille.

In the 1970’s, Devra Robitaille, a British pianist, worked for Spector as the administrative director of his record label, Wamer-Spector Records. Robitaille idolized Spector and believed he was a genius. A year after she started working for him, they began a romantic relationship which, for her, was an extramarital affair. During this time, Robitaille frequently organized parties for Spector at his Beverly Hills home. She attended these parties as an employee, not as a guest.

At one of these parties, probably in 1975, the guests had all gone and Robitaille was standing in the foyer, very tired and wanting to leave. The door was locked, so she asked Spector to let her out. Spector left the foyer for a few minutes. Robitaille was standing there with her purse and jacket, ready to leave, when she felt the barrel of a gun touch her temple. She turned and saw Spector holding a shotgun. He had been drinking that night and he was very drunk. Spector said, “If you try to leave, I’m going to blow your fucking head off.”

When Robitaille said she had to leave, Spector swore and shouted at her, saying things like “I’m going to blow your head off. I’ll blow your brains out. You can’t leave. I’m not unlocking the door.” He was still holding the gun to her head; Robitaille stood her ground, saying, “Just stop it. This is ridiculous. I just want to go home.” Suddenly, Specter’s demeanor changed: “I remember him just sort of—I can’t describe it any other way. He just sort of relaxed, and the moment passed, and he went and got the keys, and unlocked the door, and let me go.” “There was a little moment of suspension, and then he became Phil again. I didn’t recognize the other maniac.”

As a result of this incident their romantic relationship ended, and then a year later Robitaille ended their business relationship. She returned to England and had a musical career for five or six years. In 1986, she moved back to the United States, reestablished contact with Spector and accepted a part-time job with him in Los Angeles.

That same year, Robitaille went to a party at Specter’s house. By the time all the guests had gone, it was very late, possibly dawn. Robitaille was tired and wanted to leave, but the door was locked. She found Spector and asked him to let her out. He was drunk. Robitaille stood near the front door in the foyer with her purse, waiting to leave. Suddenly, Spector pointed a shotgun at her face. He was swearing and making threats: “I’ll blow your head off. I’ll shoot you. I’ll kill you. I’ll blow your brains out. I could shoot you right now.” He was “[a]ngry, sinister, shouting, bulging veins. There was a look in his eyes that wasn’t the look that is him.” Robitaille told him to put the gun down and let her leave. At one point Spector went away, leaving Robitaille in the foyer, still unable to leave. Spector returned and the situation “started to unwind, and he started to unwind, and the tension broke again like it had the first time, and he unlocked the door . . . .” Again, there had been a sudden change in Specter’s mood.

Robitaille left and quit her job with Spector. She testified he had been drunk during both the 1975 and the 1986 incidents.

(4) Dianne Ogden

Dianne Ogden worked in the entertainment industry. In 1982, after having been introduced by Spector’s publicist, she accepted a dinner invitation from Spector. At the restaurant, Spector drank alcohol. Afterward, they went to tour his Beverly Hills house. After seeing the house and talking with Spector, Ogden said she needed to go home because she had to work the next day. Spector did not want her to leave. He disappeared and Ogden got ready to go, putting her purse over her shoulder. Then she heard a buzzer go off. Spector had locked the door using a remote control. Ogden pleaded with him to let her leave. She begged him some more and he finally unlocked the door and let her leave.

From 1982 until 1988 Ogden and Spector kept in touch. When Ogden was between jobs in 1988, she accepted Specter’s offer to be his paid assistant. In March 1989, she went to his house in Pasadena where he was entertaining some people. Spector drank alcohol during the evening. About midnight, as people were leaving, Ogden said she was going home. Spector did not want her to leave. He went away and she put her purse on her arm in preparation for leaving. Spector then appeared with a rifle and screamed, “You’re not fucking leaving.” Ogden testified he seemed to have become “demonic”: “[H]e was talking and screaming, not being him. He was just like taken over by something, I don’t know what, but he wasn’t Phillip.” Ogden sat down. Then Spector pointed a pistol at her, touching her face with it and screaming that he was going to blow her brains out. He ordered her to go upstairs to his bedroom where, at gunpoint, he made her partially disrobe. He then tried unsuccessfully to have intercourse with her. Ogden testified she had never had a sexual relationship with Spector.

A few months later, Ogden was at Specter’s house with a couple of other people. After the others left, Ogden got ready to leave. Once again, Spector disappeared. Then, from behind her, he screamed, “You’re not going anywhere. I can’t stand the sound of your voice.” He said, “I have an Uzi here. I am going to kill you.” He was holding some kind of gun. Ogden said, “Phillip, stop it. I am just going to go home and don’t do this to me again. Please. You’re drinking too much.” She fled to her car and got in. Spector ran up and banged the Uzi on her window while yelling at her. Ogden ducked down as she drove away fast because she thought he was going to shoot at her car.

(5) Melissa Grosvenor.

In 1991, Melissa Grosvenor, while working as a waitress in New York, developed a “romantic but platonic” dating relationship with Spector. In late 1992 or early 1993, she accepted an invitation to visit him in California, using an airline ticket he bought for her. They went out to dinner at the Beverly Hills Hotel. Spector had alcohol with his meal. At 11:00 p.m., they went to Spector’s house in Pasadena. Grosvenor was tired and had jetlag. Spector had another drink. By this time he was a little drunk.

Between 1:00 and 2:00 a.m., Grosvenor was getting very tired and wanted to leave. “[A]s soon as I told him that I wanted to go, he turned and looked at me, pointed his finger and he said, ‘What?’ And ... his whole demeanor changed, and he said, ‘You just wait. Wait right there.’ ” Spector walked off. Grosvenor sat down in a chair with her purse next to her. Spector returned a few minutes later with a handgun. He walked up to her, pointed the gun a couple of inches from her face, and said, “If you [try to] leave, I’m going to kill you.” He was irate. He put the gun into a shoulder holster he was wearing.

Grosvenor believed Spector would shoot her if she tried to leave, so she stayed in the chair. She did not say anything, she just cried. Eventually, she fell asleep. She awoke the next morning when Spector tapped her on the foot. He was not wearing the holster and he no longer had the gun. He appeared to be “back to normal.”

2. Defense evidence.

a. Crime scene forensics.

Stuart James is a forensic scientist with a specialty in bloodstain pattern analysis. He concluded some of the bloodstains on Spector’s jacket had come from impact spatter and, therefore, that Spector must have been within arm’s reach of Clarkson when the gun went off. The stain on the jacket’s left cuff was not impact spatter from the gunshot; rather, it was a transfer stain caused by the cuff rubbing up against Clarkson’s blood which had been deposited on some other object. James found no blood spatter on the right front panel of Specter’s jacket, including the front of the right sleeve. Based on the photographs of Clarkson’s hands taken at the crime scene, James concluded there was impact spatter on the back of Clarkson’s left hand, between her thumb and index finger. Given the directionality of this bloodstain, it could not have occurred if Clarkson’s palm had been facing outward and held at a 90-degree angle to the floor.

James Pex is another forensic scientist with experience in the field of blood spatter analysis. Based on the photograph of Clarkson’s left hand, which showed apparent blood spatter on the back of her hand and wrist area, Pex concluded this bloodstain could only have occurred if Clarkson’s thumb had been pointing toward her mouth. There was no spatter on the sleeve of Specter’s jacket below the elbow, which was inconsistent with his having done the shooting. A piece of spatter on the back of the jacket’s right sleeve above the elbow was inconsistent with his having done the shooting because blood spatter generally “travels in a straight line.”

Pex conducted an experiment in which he fired a Colt Cobra at a supply of blood while holding the gun in a normal firing position. He got back spatter on his fingers, which prevented the medallion on the head of the grip screw from getting any blood on it, whereas the medallion on Specter’s gun was full of blood. Pex also did a back spatter experiment with a different gun, a Smith & Wesson. When he was testifying, Pex used a photographic slide to illustrate the Colt Cobra experiment, but it turned out the slide he used was actually from the Smith & Wesson experiment.

Pex testified there was impact spatter on the gun’s grip that could not have been deposited there if the gun was being held in a normal shooting position when it was fired. Pex had never seen a homicide case with these kinds of bloodstains on a gun’s grip. He had, however, seen such bloodstains in suicide cases because of the way the victim had been holding the gun. Pex concluded the Colt Cobra in this case was not being held in a normal firing position when it went off, but that the evidence was more consistent with Clarkson having shot herself.

Werner Spitz is a forensic pathologist. He concluded Clarkson had committed suicide. He testified 99 percent of intraoral gunshot deaths are suicidal in nature, that there was no evidence suggesting the gun had been forced into Clarkson’s mouth or that there had been any kind of struggle. The markings on Clarkson’s wrists that Pena testified were bruises had been caused postmortem. The prosecutor described for the record Spitz’s demonstration of how he believed Clarkson might have been holding the gun: “The tips of his fingers were interlaced. The thumbs were basically touching point to point. His palms facing his mouth. The dorsal portion of his hands facing away from his mouth.”

Vincent DiMaio is another forensic pathologist who testified for the defense. After reviewing all the evidence, he concluded Clarkson had shot herself. Ninety-nine percent of intraoral gunshot wounds are self-inflicted, and DiMaio had never seen an intraoral homicide with a snub-nose revolver. The blood spatter patterns on the front of the gun’s grip and on Clarkson’s left hand were consistent with her having shot herself.

On cross-examination, the prosecutor showed DiMaio a photographic slide James Pex had used to illustrate how Clarkson might have been holding the gun in order to shoot herself. DiMaio testified Pex’s suggested hand position was unlikely. DiMaio opined Clarkson would have been holding the gun with only one hand and using the thumb of that hand to pull the trigger. She would have used her other hand either to steady her wrist or to stabilize the gun from above. DiMaio demonstrated how he believed Clarkson had been holding the gun:

“A. It would be this way.

“Q. And again, you have sort of capped the gun, if you will, with the palm and fingers of your [left] hand over the top of the cylinder, your right . . . hand, the fingers wrapped around the back of the grip; your thumb on the trigger?

“A. Yes.”

The following colloquy then occurred:

“Q. Now, in that configuration, taking a look at your right hand as it is right now in front of your face, what is the one area of your hand and wrist that would not be exposed to the bloodletting event?

“A. The back of the hand.

“Q. So, if, in fact, Jaime Lintemoot [(the coroner’s office criminalist)] found high-velocity spatter on the backs of both the right and left hands of Lana Clarkson, both the right and left hand, you could exclude, as a scientist, that she held the weapon in the way that you just suggested, correct?

“A. No, because you would still get it back on the left, and I told you about the short trajectory blood coming on there, and in addition, well, looping over and hitting the back of the hand.”

The prosecutor asked:

“Q. . . . Your testimony is the high-velocity, submillimeter-type spatter would come out of her mouth and somehow wrap around and impact this area here?

“A. What Pm saying is, you get all different velocities, and some of the smaller [sic] could go on the back of the hand.”

DiMaio also testified the grip, frame size, configuration of the grip and shape of the trigger guard were all different on the two guns tested by Pex. In particular, the Smith & Wesson only holds five rounds, instead of six, so the cylinder is smaller. The Smith & Wesson is “a more compact gun. It’s actually smaller than the Colt.” The position of a hand shooting the two guns “would be different because the frame size is different.” DiMaio was asked: “Q. Okay. So the hand that covers the grip on . . . the Smith & Wesson . . . would, by definition, be in a completely different position—and I am talking about the literal measurements of how a hand would wrap around this weapon than a hand would wrap around this [other] weapon, correct? [f] A. It would be different because the frame size is different.”

b. Evidence about Clarkson’s mental state.

(1) Expert testimony about Clarkson’s mental state.

Dr. Lakshmanan, the Coroner of Los Angeles County, agreed that intraoral gunshot deaths are usually suicides and only rarely homicides. Asked if “it would be difficult to insert a gun forcefully into somebody’s mouth without leaving evidence of blunt force trauma,” Lakshmanan testified, “That is correct, unless they’re intimidated and they’re afraid that somebody will shoot them, and they will open their mouth.” Lakshmanan found no evidence of trauma that would suggest the Colt Cobra had been forced into Clarkson’s mouth.

Lakshmanan testified he stood by his office’s conclusion this had been a homicide. Circumstances he considered included the information that Clarkson had no psychiatric history, no prior suicide attempts or threats, and no suicidal ideation. She had apparently suffered only normal psychological depression after fracturing her wrists in December 2001. On a recent medical questionnaire, Clarkson had left unchecked these questions; “Axe you suffering from hopeless outlook, work or family problems, considered suicide, desired psychiatric help?” Clarkson wrote on this questionnaire: “Dealing with these headaches on a 24-hour basis, I’m healthy, exercise, am happy, positive and successful. I’m pretty much a vegetarian, and I don’t do drugs anymore.” Lakshmanan considered her activities on the weekend before she died. He considered that Spector was almost a complete stranger and that Clarkson was killed with Spector’s gun inside Specter’s house.

Lakshmanan was asked if he had “ever heard of a case where a person with no suicidal history has gone with a complete stranger to his house for the first time and within three hours of meeting him kills herself?,” and he replied, “Not that I recall.”

Richard Seiden, a psychologist and former professor at the University of California at Berkeley, testified as a suicide expert. He explained that impulsive, spur-of-the-moment suicides, as opposed to planned suicides, account for 40 percent of all suicides and might involve no more than five minutes, contemplation. Impulsive suicide is not correlated with clinical depression, but rather with feelings of hopelessness about oneself and the future. Hopelessness about finances, loss of a relationship, career disappointments and chronic pain are all correlated with suicide.

Seiden listed various risk factors for suicide, all of which were present in Clarkson’s life around the time she died: depressive ideation; suicidal ideation; ongoing problems with drugs and alcohol; financial difficulties; career problems; debilitating injury to her wrists; chronic migraines; and a tendency to impulsivity. Seiden acknowledged Clarkson was not suffering from clinical or major depression. Based on all of these factors, Seiden concluded it would be wrong to rule out the possibility Clarkson had committed suicide.

Seiden acknowledged he had not spoken to any witnesses and none of Clarkson’s family, friends or coworkers, although he had read interviews these people had given. Seiden testified he also based his conclusion on the 30 e-mails, written by Clarkson, which the defense had shown him. At the time of Clarkson’s death, there were 3,553 deleted and nondeleted e-mails in her computer’s in-box, and copies of 1,932 e-mails she had sent out.

Seiden acknowledged that during the 40 years he had spent studying suicide, he could not recall a single case where someone had committed suicide inside the home of a person they had first met a few hours earlier, using that person’s gun, and firing the fatal gunshot in that person’s presence.

(2) Lay testimony about Clarkson’s mental state.

The prosecution and defense both presented lay testimony regarding Clarkson’s mental state around the time of her death. The defense put on evidence to show Clarkson had been despondent, was having financial difficulties, and had been depressed for much of 2002 after accidentally fracturing both her wrists on Christmas Eve in 2001. Clarkson had been hospitalized for a week and then underwent followup treatment lasting eight months, during which time she had been unable to work.

The prosecution put on evidence to show Clarkson often overdramatized her emotional life, and that her career had been getting back on track in the aftermath of her wrist injury. Nick Terzian, a talent agent specializing in commercials and print advertisements, had represented Clarkson since 1992. He testified that in the fall of 2002, as Clarkson began to recover from her accident, she told him she wanted to go on auditions again. In September or October, Clarkson auditioned to be in a print advertisement for Chesterfield Cigarettes in Spain and beat out almost 500 actors and models for the job. Terzian got Clarkson an interview for a print advertising job for Siemens, the international mobile phone company. She went to the audition on January 22, 2003. On January 31, the Friday before her death, Clarkson was notified she had received the job and she was overjoyed. The fitting for the Siemens job was scheduled for February 4 and the photo shoot was to take place on February 8.

CONTENTIONS

1. The trial court erred by admitting into evidence the videotape of a witness’s testimony from the first trial.

2. The trial court erred by admitting “other crimes evidence” concerning Specter’s gun assaults on other women.

3. The trial court erred by admitting “generic threat” evidence.

4. There was prosecutorial misconduct during closing argument.

DISCUSSION

1. Trial court did not err by admitting videotape of testimony from the first trial.

Spector contends the trial court erred by admitting into evidence a short videotape, made during an evidentiary hearing at the first trial, in which criminalist Jaime Lintemoot described where she had seen blood spatter on Clarkson’s hands. Spector claims he was unfairly prejudiced because the videotape showed the trial court’s personal intervention during Lintemoot’s testimony. This claim is meritless.

a. Background.

As our description of the trial testimony demonstrates, the forensic evidence was fiercely contested, particularly the question whether bloodstains on Clarkson’s hands proved she could or could not have shot herself.

A key part of the prosecution’s forensic case was the testimony of Lynne Herold, the Los Angeles County Sheriff’s Department criminalist, who concluded Clarkson could not have fired the gun. Asked if the presence of “mist-like spatter or small pinprick spatter” on the back of Clarkson’s hands and wrists would be inconsistent with Clarkson having held the gun in a firing position, Herold testified it was not only inconsistent, it was an impossibility. As Herold explained, “[Bjlood, 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.” On cross-examination, Herold indicated she was relying on Jaime Lintemoot’s testimony, at the retrial, regarding “blood staining on [Clarkson’s] hands.”

On appeal, Spector claims the strength of Lintemoot’s testimony had been improperly and unfairly bolstered by the trial court’s own words and actions while Lintemoot was testifying at an evidentiary hearing during the first trial. This issue arose in the following way.

Lintemoot testified to the jury at the first trial about having observed bloodstains on Clarkson’s hands at the crime scene. Lintemoot’s handwritten notes, which she made at the scene, referred to blood spatter on the “outside” of Clarkson’s wrists. Her subsequently prepared typed report, however, stated only: “Small red stains were also observed on both of the decedent’s hands and wrists.” Crime scene photographs of Clarkson’s hands, which had been taken at Lintemoot’s direction but not by her, came out badly and were apparently of little use for confirming this aspect of Lintemoot’s observations. At an evidentiary hearing held outside the jury’s presence, the following colloquy occurred:

“By Mr. Jackson [(the prosecutor)]:

“Q. What you believe to be mist-like spatters were on you indicated, if I am not mistaken, on her wrists?

“A. On the outside of the decedent’s wrists.

“Q. All right. Not on her hands per se?

“A. Just in this area (indicating), two or three-inch radius around, around the wrists.

“The Court: 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, [f] Would that be correct?

“Mr. 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.

“Mr. Jackson: Actually, I 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.

“The Witness: Exterior. So the outside of the wrist area.

“Q. By Mr. Jackson: Okay. The outside of the wrist.

“A. Yes.”

As discussed ante, Lintemoot testified at the retrial about having seen mistlike bloodstains on the back of Clarkson’s wrists. On cross-examination, defense counsel asked her: “And in both cases, with respect to both hands, the spots that you saw were on what you would now describe as the forward portion of my right hand, the forward portion of my left hand? [j[] A. Not the finger region, [f] Q. Not [the] finger region, but. . . above the webbing of the thumb opposite the palm? [][] A. Correct.”

The prosecutor later recalled Lintemoot to the stand to clarify this exchange with defense counsel. Lintemoot testified: “The area that I saw the mist-