Forcing the defendant to demonstrate in court how he strangled the victim was error, said the First District Court of Appeal in People v. Rivera (Nov. 30, 2011, A130421), __ Cal.App.4th __ [2011 DJDAR 17217].
Defendant admitted that he strangled the victim to death, but contended he acted in either the heat of passion or the unreasonable belief of the need for self-defense. During cross-examination of the defendant, the prosecutor asked him to "show us how you killed the victim," with the prosecutor offering to portray the victim. Defense counsel objected, suggesting that a mannequin should be used, so the court directed the prosecutor to "go find yourself a dummy."
The prosecutor returned to court with a female mannequin wearing a blue dress, a pink ribbon and a hat. Defense counsel objected that the mannequin was different from a full-grown man. The court told the prosecutor to take the clothes, ribbon, hat and hair off the mannequin. Defense counsel said, "I still object, but that's better." The defendant then proceeded to strangle the mannequin, following directions from the prosecutor and the court.
The trial court abused its discretion in permitting the demonstration, said the court of appeal. The reenactment was of little probative value, since it added nothing to the proof of intent or malice and was cumulative to the defendant's testimony. The demonstration was not a reasonable representation of the event, and the court noted that a courtroom "is hardly the appropriate venue to attempt to recreate and prove the manner of commission of a murder by strangulation." It added that "the use of a small, disrobed, wigless, lifeless female mannequin rendered the exhibition almost derisory, with the spectacle of defendant throttling a nonsentient, plastic entity that bore little physical likeness to the large male victim, all as orchestrated by the prosecutor."
The demonstration was inflammatory, said the court, and was "suggestive of a slapstick parody." The error, however, was harmless given the overwhelming evidence that defendant "intentionally strangled Neff, stole his flutes and computers, and set fire to his residence." It was, therefore, not reasonably probable that the demonstration affected the jury's verdict.