People v. Moore

KENNARD, Acting C. J., Concurring and Dissenting.

I concur in the majority’s affirmance of the judgment of death. But I disagree with the majority’s analysis of an issue pertaining to a hypothetical question asked by the prosecutor.

Defendant was charged with bludgeoning and stabbing to death his 11-year-old neighbor, Nicole Carnahan, while burglarizing her house when she was home alone. Police found the victim’s body in her bedroom, which was stained heavily with blood. On the carpet in the living room was a single, small bloodstain.

That bloodstain became part of the prosecution’s theory of the crime: that Nicole saw defendant in her house and, presumably, cried out; that he hit her, and she fell; and that, as she lay on the living room carpet bleeding (and leaving a stain), defendant had what the prosecutor described to the jury as an “opportunity to think.” Calling that moment “the turning point” of the crime—at which defendant could have chosen to flee, but chose instead to kill Nicole and carry on with his burglary—the prosecutor used it to argue that the murder had been premeditated.

To support its theory, the prosecution called criminalist Greg Avilez, an expert on bloodstains, to testify about the lone stain in the living room. The prosecutor asked him whether the person who left the stain had likely been standing or lying down at the time. The defense objected, asserting that no evidence proved that the stain had come from a person bleeding on the carpet rather than from a bloody object that had been placed there—such as the brass rod or pipe that defendant had with him, and that was later found, stained with blood, in his toolshed. The trial court, reasoning that jurors could logically infer that the stain had come either from a person or from a bloody object, ruled that the prosecutor could base a hypothetical question on the first of those two inferences.

The prosecutor then asked criminalist Avilez whether, assuming that a person had “deposited” the bloodstain, the person “would have been standing or either lying down or very close to the carpet.” Avilez replied: “[a]t or near the surface of [the] carpeting.”

The majority concludes, first, that the prosecutor’s hypothetical question to the criminalist “called for an opinion without adequate foundation” and the trial court abused its discretion in allowing it, but, second, that the abuse of discretion was harmless. (Maj. opn., ante, at pp. 405-406.) On the first conclusion, I disagree. I conclude that the trial court did not abuse its discretion. Therefore, I do not reach the question of prejudice.

Decades ago, this court set forth principles governing hypothetical questions. In discussing the breadth of a trial court’s discretion in applying those principles, this court noted that “[i]t is not essential. . . that the facts assumed should be undisputed.” (Guardianship of Jacobson (1947) 30 Cal.2d 312, 324 [182 P.2d 537] (Jacobson).) Rather, hypothetical questions are proper as long as they are based on “facts within the possible or probable range of the evidence” and are “not unfair or misleading.” (Ibid.) The trial court has “large discretion relating to the form of the question.” (Ibid.)

Because a trial court hears all the evidence, that court is in the best position to decide if a hypothesis is within the “possible or probable range” of that evidence (Jacobson, supra, 30 Cal.2d at p. 324), and it therefore deserves a measure of latitude in doing so. The trial court can also best determine whether, ultimately, the testimony will help the trier of fact evaluate the issues it must decide. (People v. Richardson (2008) 43 Cal.4th 959, 1008 [77 Cal.Rptr.3d 163, 183 P.3d 1146].) Hence, this court reviews a trial court’s rulings on hypothetical questions for abuse of discretion. (See, e.g., id. at p. 1009.)

Here, the trial court did not abuse its discretion in concluding that the hypothesized fact—that the bloodstain came directly from a person—was within the “possible ... range” of the evidence. (Jacobson, supra, 30 Cal.2d at p. 324.) A hypothetical question can rest on “ ‘ “any theory which can be deduced” from any evidence properly admitted at trial, including the assumption of “any facts within the limits of the evidence.” ’ ” (People v. Boyette (2002) 29 Cal.4th 381, 449 [127 Cal.Rptr.2d 544, 58 P.3d 391], italics omitted.) “[D]irect testimony is not required” to support a hypothesized fact as long as the fact “is fairly inferable from the circumstances proved.” (1 McCormick on Evidence (6th ed. 2006) Requirement of Firsthand Knowledge, § 14, p. 89, fii. omitted.) The evidence here proved these circumstances: The wounds inflicted on the murder victim caused her to bleed, and hers was the blood on the carpet in the living room, an area where she could have been. From that evidence, a juror could reasonably deduce the factual theory assumed by the prosecutor’s hypothetical question, namely, that the victim’s blood was on the carpet because she bled there.

That the expert could not exclude the alternative possibility—that the bloodstain on the living room carpet came from a weapon used to attack the victim—is of no consequence. The inference must be a reasonable one, not the only reasonable one. For the same reason, it does not matter that no evidence pointed exclusively to the prosecutor’s hypothesis. Yet that is what the majority seems to require.

Nevertheless, because I find no impropriety in the trial court’s ruling at issue, I agree with the majority’s affirmance of the judgment of death.

Corrigan, J., concurred.

Appellant’s petition for a rehearing was denied March 16, 2011. Kennard, J., was of the opinion that the petition should be granted.